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RODRIGUEZ v. FUIEDMAN

November 3, 1969

Sixto RODRIGUEZ, Plaintiff,
v.
Emanuel FUIEDMAN, Deputy Commissioner, Second Compensation District, Bureau of Employees' Compensation, United States Department of Labor, Michigan Mutual Liability Company, Insurance Carrier, and American Stevedores, Inc., Employer, Defendants



The opinion of the court was delivered by: ZAVATT

MEMORANDUM

This appeal from a compensation order and award of the Deputy Commissioner, made under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq., (the Act), arises in the context of summary judgment motions by plaintiff and all defendants, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Jurisdiction to review the order is vested in this court by virtue of 33 U.S.C. § 921(b).

 The essential facts, which are not in dispute, are (1) that the plaintiff was a longshoreman in the employ of the defendant, American Stevedores, Inc. (employer), on March 24, 1964; (2) that, as such, he was aboard the M/S PRESIDENT ROXAS while it was in navigable waters and moored to Pier 12, Brooklyn Army Base, Brooklyn, New York during the unloading operation; (3) that, while acting within the scope of his employment as a hold man, he fell from a carton of cargo (on which he was standing); (4) that, by reason thereof, he sustained injuries to his left wrist, left knee and lower back. (Plaintiff claims that these injuries have rendered him totally disabled from the date of the accident to the present -- a period of approximately five and one-half (5 1/2) years); (5) that the defendant Michigan Mutual Liability Company (Michigan Mutual) was the insurer of the employer.

 Following the filing of a claim for compensation under the Act and hearings before the Deputy Commissioner on January 18 and March 9, 1967 pursuant to section 919 of the Act, the Deputy Commissioner made an award in Case No. 966-5577, dated May 15, 1967, for the sum of $ 3,718.36 based upon his findings (1) that the claimant was totally disabled from March 25, 1964 to November 19, 1964; (2) that he was partially disabled from November 19, 1964 to September 8, 1965; (3) that all disability ended on September 8, 1965. Based upon these findings, the Deputy Commissioner made an award for (1) 34 1/7 weeks of total disability at $ 54.35 per week ($ 1855.66); (2) 42 weeks of partial disability at $ 44.35 per week ($ 1862.70) pursuant to the schedules set forth in section 908 of the Act. *fn1" The compensation order credited the employer and insurer with $ 2,757.57, previously paid to the claimant, and directed payment of the balance of $ 960.79 to the claimant, subject to the lien of claimant's attorneys in the sum of $ 150.

 For the reasons hereinafter stated, the plaintiff's motion for summary judgment is denied; the motions of the defendants for summary judgment are granted.

 Plaintiff's contentions

 The plaintiff contends:

 1) that the record does not substantiate the finding that his disability ended on September 8, 1965;

 (2) that the record does not substantiate the finding that he was only partially disabled during the period November 19, 1964 to September 8, 1965;

 (3) that, at the first hearing, the defendants did not claim only partial disability for the period November 19, 1964 to September 8, 1965 and that, therefore, it was error for the Deputy Commissioner to find only partial disability for that period;

 (4) that certain documentary evidence was improperly admitted at the hearing.

 The scope of the court's review

 Under the Act, the scope of the court's review is narrow. A compensation order may be suspended or set aside only if it is 'not in accordance with law.' 33 U.S.C. § 921(b). 'The findings are to be accepted, unless they are unsupported by substantial evidence on the record considered as a whole.' O'Leary v. Brown-Pacific -Maxon, Inc., 340 U.S. 504, 508, 71 S. Ct. 470, 472, 95 L. Ed. 483 (1951). Accord, Banks v. Chicago Grain Trimmers' Association, 390 U.S. 459, 88 S. Ct. 1140, 20 L. Ed. 2d 30 (1968), rehearing denied, 391 U.S. 929, 88 S. Ct. 1800, 20 L. Ed. 2d 671 (1968). 'The inferences drawn by the Deputy Commissioner are to be accepted unless they are irrational or 'unsupported by substantial evidence on the record * * * as a whole'.' O'Keeffe v. Smith, ...


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