The opinion of the court was delivered by: JUDD
This is an action under Section 21 of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 921, to set aside and enjoin an order of the Deputy Commissioner awarding compensation to defendant Kulagowski.
The matter has been submitted to the court on a motion for summary judgment by the plaintiffs, and on a cross-motion for summary judgment by the defendant Deputy Commissioner.
The action is in the nature of a review of the administrative decision, and is governed by the standards set forth in the Administrative Procedure Act, 5 U.S.C. § 706. As said in O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 508, 71 S. Ct. 470, 472, 95 L. Ed. 483 (1951), "the findings are to be accepted unless they are unsupported by substantial evidence on the record considered as a whole." The inferences drawn by the Deputy Commissioner from the objective facts as found by him, should be sustained unless "irrational or without substantial evidence on the record as a whole." O'Keeffe v. Smith, Hinchman & Grylls Ass'ns., Inc., 380 U.S. 359, 363, 85 S. Ct. 1012, 1015, 13 L. Ed. 2d 895 (1965).
Realizing the difficulty of a reversal on the facts, plaintiffs emphasize an attack on the fairness of the Deputy Commissioner.
The facts will be set forth briefly. The defendant Kulagowski, a native of Poland, had been an outside machinist at Todd Shipyards since June, 1963, shortly after he came to this country. As a result of the high level of noise incident to this employment, he began to notice an impairment of his hearing in early 1967, as well as ringing in his ears (tinnitus). He filed a claim for compensation with the office of the Deputy Commissioner in June, 1967. A medical report to the Bureau of Employees' Compensation on June 15, 1967 stated that Kulagowski had "a bilateral, profound hearing loss." After a conference with a claims examiner in the Bureau on November 14, 1967, the employer and the carrier agreed that he had suffered a 26% binaural deterioration of his hearing, and undertook to pay voluntarily a schedule award of 52 weeks at $70.00 per week, for loss of hearing of one ear. 33 U.S.C. § 908, subd.(c)(13). He had worked in his usual capacity with Todd after the onset of his hearing difficulties, but on December 12, 1967, he was released or fired, because Todd's personnel director thought that a hearing loss in excess of 18% made a man a hazard to other employees. He applied for work in two other shipyards, but was refused employment when he told them that Todd had let him go because of his loss of hearing. This much is undisputed.
After Kulagowski's discharge, his claim was scheduled for an evidentiary hearing.
Dr. Berg, a specialist in neurology and psychiatry, testified that Kulagowski suffered "traumatic conversion hysteria, anxiety state, severe" as well as loss of hearing. He testified that the emotional condition "was initiated and triggered by the episode of being fired and preceded his being fired."
Dr. Berg testified that a "conversion hysteria is an emotional state which arises as against and on top of an organic defect or an organic injury."
There is little substance to plaintiffs' claim that Kulagowski's emotional disturbance is not compensable because it arose from his being discharged, and not from his employment.
The Deputy Commissioner found that Kulagowski had suffered an employment-related emotional disturbance, characterized as "anxiety state with conversion hysteria," which resulted in permanent partial disability.
The reasoning, which seems logical, was that if his work caused his hearing loss, and his hearing loss caused his discharge, and his discharge caused his conversion hysteria, ...