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May 16, 1960

TRAVELERS INSURANCE COMPANY and Bush Terminal Railroad Company, Plaintiffs,
John D. McLELLAN, Jr., Deputy Commissioner, Federal Security Agency, Bureau of Employees' Compensation, Second Compensation District, Defendant

The opinion of the court was delivered by: ZAVATT

This is an action by an employer and its insurance carrier to stay and set aside part of a 'compensation order' made by the defendant pursuant to applicable provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 901-950. Section 921 gives this court jurisdiction to entertain this action. The award that is under review, for such is the essence of this proceeding, was made to one Lars Hellberg for a back injury sustained by him while in the employ of the plaintiff Bush Terminal Railroad Company. The Deputy Commissioner, defendant in this action, moves for summary judgment.

The facts and the compensation consequences are these: Since 1936 the claimant Hellberg has been employed by Bush as a maintenance man doing mostly carpentry work. On January 4, 1956, while working aboard a car-float in the Brooklyn harbor he suffered 'an acute lumbo-sacral strain' when he attempted to lift a heavy pump by himself. He nevertheless continued to work from that date until January 13, 1956, at which time the pain and discomfort became such that he was unable to continue.

 The Deputy Commissioner found the claimant to be 'temporarily totally disabled' from January 13, 1956, until February 24, 1956, when the claimant returned to work with the aid of a back brace. The Deputy Commissioner awarded the claimant $ 210 for this period, based on his 'average weekly wages' of $ 84.53 at the time of the accident and the formula found in 33 U.S.C.A. § 908(b). The plaintiffs have paid this amount and do not question the propriety of this part of the compensation order.

 The claimant worked with the aid of this brace from February 24, 1956, until April 25,1956, at which time he entered the hospital to undergo corrective surgery to fuse the lower portion of his spine. During this last nine-week period the claimant was paid his full weekly salary, which, at the hourly rate then in effect, was $ 89.60. Nevertheless, the Deputy Commissioner found that the claimant was 'temporarily partially disabled' and that his 'wage-earning capacity' during this period was only $ 65. By application of the formula found in 33 U.S.C.A. § 908(e) the claimant was awarded $ 115.32. This sum had been paid and is not questioned.

 The claimant's period of convalescence lasted until November 24, 1957, when he again returned to work. For this 83 week period of 'temporary total disability' the claimant was awarded $ 2,890 in conformity with the statutory formula, 33 U.S.C.A. § 908(b). Most of this has been paid and the award is not questioned.

 The disagreement concerns the final part of the award covering the period after November 25, 1957, when the claimant was back at work. The Deputy Commissioner found these facts:

 'That the claimant returned to employment on November 25, 1957, such employment consisting of the same job as he held on the date of the injury; that the basic pay rate of that job had increased, in conformity with general increases of pay in the industry; that the claimant earns more now than his average weeky wage at the time of the injury, ($ 98.40 as contrasted with $ 84.53), but his present earnings are not truly representative of his earning capacity; that as a result of his injury the claimant was permanently partially disabled from November 25, 1957, to July 30, 1959, inclusive, on which date he was still disabled, that considering the nature and extent of his injury, the claimant had an earning capacity of $ 70.00 a week during such period, which is reasonable, and he is entitled to 87 4/7 weeks' compensation, at $ 9.69 a week, in the sum of $ 848.57, for such permanent partial disability. * * *'

 The employer was ordered to pay the claimant $ 9.69 a week 'until disability shall have ceased, or until otherwise directed.'

 The ultimate issue on this motion concerns the claimant's 'wage-earning capacity' and, more specifically, whether there is sufficient evidence in the record to support the Deputy Commissioner's findings in this regard. See O'Leary v. Brown-Pacific-Maxon, Inc., 1951, 340 U.S. 504, 71 S. Ct. 470, 95 L. Ed. 483; Universal Camera Corp. v. N.L.R.B., 1951, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456. The pertinent section of the act, 33 U.S.C.A. § 908(h), reads:

 'The wage-earning capacity of an injured employee in cases of (permanent) partial disability * * * shall be determined by his actual earnings if such actual earnings fairly and reasonably represent his wage-earning capacity: Provided, however, That if the employee has no actual earnings or his actual earnings do not fairly and reasonably represent his wage-earning capacity, the deputy commissioner may, in the interest of justice, fix such wage-earning capacity as shall be reasonable, having due regard to the nature of his injury, the degree of physical impairment, his usual employment, and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future.'

 The Deputy Commissioner made the preliminary finding, already quoted, that the claimant's earnings do not represent his capacity, and he therefore fixed a 'reasonable' capacity. However:

 'it does not appear on what basis this preliminary finding was made and the question as to whether it is supported by substantial evidence is particularly difficult since the statute does not define the factors upon which such a finding must rest.'

 That was said in Lumber Mutual Casualty Ins. Co. v. O'Keeffe, 2 Cir., 1954, 217 F.2d 720, 723, a case presenting certain surface similarities *fn1" to the instant case, and the case upon which the Deputy ...

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