Liberty Mutual Insurance v. Britton , 243 F.2d 659 ( 1957 )

PER CURIAM.

This appeal is from a judgment of the-District Court granting defendants’ (ap-pellees’) motion for summary judgment and dismissing plaintiffs’ (appellants’) complaint for mandatory injunction to-restrain the enforcement of a workmen’s-compensation award.¹

In this case the Deputy Commissioner-made findings that the employee suffered1 a permanent partial disability and a consequent loss of actual and potential wage-earning capacity. He also found that, the employee’s post-injury wages do not. fairly and reasonably represent his wage-earning capacity, and therefore fixed the wage-earning capacity at $54.90. The-award was based thereon, although wages-actually received before and after the injury were higher than this figure.² See 33 U.S.C.A. § 908(h). This conclusion, like a determination of whether-certain conduct is covered by the Act, “concerns a combination of happenings and the inferences drawn from them. In part, at least, the inferences presuppose applicable standards for assessing the simple, external facts. Yet the standards are not so severable from the experience of industry nor of such a nature as to be peculiarly appropriate for independent judicial ascertainment as ‘questions of law.’ ” O’Leary v. Brown-Pacific-Maxon, Inc., 1951, 340 U.S. 504, 507-508, 71 S.Ct. 470, 472, 95 L.Ed. 483.

On the record as a whole, the District Court found no reason to disturb the Deputy Commissioner’s determination, nor do we. See Annotation, 149 A.L.R. 413; 2 Larson, Workmen's Compensation Law § 57.31 and passim (1952). Accordingly, the j'udgment is

Affirmed.

1 . Under the Longshoremen’s and Harbor Workers’ Compensation Act of 1927, 44 Stat. 1424, 33 U.S.C.A. §§ 901-950, made applicable to the District of Columbia by the Act of May 17, 1928, 45 Stat. 600, D.C.Code 1951, §§ 36-501 and 36-502.

2 . This higher figure was due to a general wage increase following union negotiations.