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MAIN SHIP REPAIR CORP. v. HUGHES

December 17, 1964.

MAIN SHIP REPAIR CORPORATION, employer and Liberty Mutual Insurance Company, insurance carrier, Plaintiffs-Appellants,
v.
Thomas F. HUGHES, as Deputy Commissioner for the Second Compensation District of the United States Department of Labor, Defendant-Appellee.



The opinion of the court was delivered by: ZAVATT

ZAVATT, Chief Judge.

This case is before the court upon cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The complaint, filed pursuant to 33 U.S.C. § 921, seeks to review and set aside a compensation order of Thomas F. Hughes, Deputy Commissioner, Bureau of Employees' Compensation, United States Department of Labor, dated September 18, 1963, as modified March 26, 1964. *fn1"

 The contested order awarded compensation to one Walter F. Wesolowski (hereinafter the claimant), in the amount of $1,554.00 for a deterioration of his hearing caused by exposure to excessive noise while employed as a welder by Main Ship Repair Corporation aboard the S.S. Kennebec. The complaint alleges that the record does not support the Deputy Commissioner's finding that the plaintiffs are liable for payment of the claimant's entire hearing loss disability as found to exist on January 27, 1962. The plaintiffs contend that the evidence establishes that the claimant suffered a scientifically measured loss of hearing prior to this employment which was in no way related to or caused by his employment with Main Ship Repair Corporation.

 Both parties have moved for summary judgment on the ground that there exists no genuine issue of fact. The court must now determine, as a matter of law, if the findings of the Deputy Commissioner are supported by substantial evidence on the record as a whole.

 Although described by 33 U.S.C. § 921, as an "injunction proceeding," the instant action is purely one of judicial review. Bassett v. Massman Constr. Co., 120 F.2d 230 (8th Cir.), cert. denied, 314 U.S. 648, 62 S. Ct. 92, 86 L. Ed. 520 (1941). The findings of fact by the Deputy Commissioner are to be accepted unless they are unsupported by substantial evidence on the record as a whole. Rotondi v. McLellan, 194 F. Supp. 415 (E.D.N.Y.1961). See also, Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951); O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S. Ct. 470, 95 L. Ed. 483 (1951); John W. McGrath Corp. v. Hughes, 264 F.2d 314 (2d Cir.), cert. denied, 360 U.S. 931, 79 S. Ct. 1451, 3 L. Ed. 2d 1545 (1959); Gooding v. Willard, 209 F.2d 913 (2d Cir. 1954).

 The Findings

 The order of the Deputy Commissioner was based upon the following findings:

 1. From October 10, 1961 to December 18, 1961, the claimant was in the employ of Main Ship Repair Corporation as a welder engaged in the repair of the S.S. Kennebec;

 2. from 1942 to October 9, 1961, the claimant had worked as a welder for many employers, including Main Ship Repair Corporation;

 3. during the course of these employments prior to October 10, 1961, he was exposed to injurious noises generated by pneumatic tools operated by chippers, scalers, and caulkers;

 4. Main Ship Repair Corporation was the last employer during the periods of employment wherein the claimant was exposed to such noises;

 5. the claimant became aware of a deterioration of his hearing on January 27, 1962.

 The Deputy Commissioner concluded that the claimant sustained a permanent partial disability (an 11.1% binaural loss of hearing computed in accordance with the American Medical Association formula), occupational in nature, caused by a continuous accumulative deterioration of his hearing as a result of his exposure to injurious noise. The claimant was awarded compensation in the amount of $1,554.00.

 Pursuant to an agreement between the parties, embodied in an order of this court, the matter herein was remanded to the Deputy Commissioner for further hearing, findings and evidence consistent with the record. The ...


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