Counsel for plaintiff pose the question whether a Deputy Commissioner under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq., may consider medical expert testimony of the type held inadmissible in this Circuit before a court and jury. In the- present case, in accordance with what I understand to be the general custom, the Deputy Commissioner asked the medical witnesses for their opinion as to the percentage of loss of function. Since the percentage of loss of function is the ultimate fact in issue, such opinions not being admissible before a court and jury, under United States v. Stephens, 9 Cir., 73 F.2d 695, followed by United States v. McCreary, 9 Cir., 105 F.2d 297, counsel contend that these opinions should not have been sought or considered by the Deputy Commissioner.
Albert E. Stephan, member of the bar of this court, discussed the question: “Extent to Which Fact-Finding Boards Should Be Bound by Rules of Evidence” before the annual meeting of the American Bar Association in 1938. Mr. Stephan’s address, which was the prize winning essay for that year, pursuant to the terms of the bequest of the late Judge Ross, will be found in the August, 1938, number of the A. B. A. Journal, at page 630. The article cites abundant authorities and contains, as well, valuable conclusions of the author.
While I confess that a seeming anomaly arises where judges and juries may not hear testimony that may be heard by an administrative functionary, I am not prepared to impose the restrictions as to this type of testimony on the administrative arm of the Government that the decisions referred to impose on the judicial branch. 1
Second point. The language of the Deputy Commissioner’s award indicates that he was intending to apply the formula *872prescribed in subdivision (c) of Section 10 of the Act, 33 U.S.C.A. § 910(c), which the Circuit Court of Appeals of this Circuit indicated in Marshall v. Andrew F. Mahoney Co., 56 F.2d 74, was the correct formula for intermittent employment, such as certain classes of longshoreing. See also Hartford Accident & Indemnity Co. v. Hoage, 66 App.D.C. 154, 85 F.2d 411.2 It does not appear, however, that the Deputy Commissioner gave proper weight3 “to the previous earnings * * * of other employees of the same or most similar class”, and for that reason the award is set aside for further proceedings.