Belton v. Traynor, 11094.

• Decision Date: 22 June 1967
• Docket Number: No. 11094.,11094.
• Parties: Frank BELTON, Appellant, v. John P. TRAYNOR, Deputy Commissioner, United States Employees' Compensation Commission, Fifth Compensation District and Liberty Mutual Insurance Company, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

381 F.2d 82 (1967)

Frank BELTON, Appellant, v. John P. TRAYNOR, Deputy Commissioner, United States Employees' Compensation Commission, Fifth Compensation District and Liberty Mutual Insurance Company, Appellees.

No. 11094.

United States Court of Appeals Fourth Circuit.

Argued April 7, 1967.

Decided June 22, 1967.

Ralph Rabinowitz, Norfolk, Va., (Kelsey & Rabinowitz, Norfolk, Va., on brief) for appellant.

Alfred H. Myers, Atty., Dept. of Labor (Charles Donahue, Solicitor of Labor, Neil R. Peterson, Atty., Dept. of Labor, Claude V. Spratley, Jr., U. S. Atty., and James A. Oast, Jr., Asst. U. S. Atty., on brief) for appellee John P. Traynor.

Frederick P. Aucamp (Rixey & Rixey, Norfolk, Va., on brief) for appellee Liberty Mutual Insurance Co.

Before SOBELOFF, BOREMAN and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge:

Longshoreman Belton, appellant, received considerably less money than he was entitled to have as compensation for injury under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 901-950. So much is conceded by respondents-appellees, Belton's employer, Old Dominion Stevedoring Company, its insurance carrier, Liberty Mutual, and the Deputy Commissioner, Bureau of Employees Compensation, United States Department of Labor. But Old Dominion, Liberty Mutual, and the Deputy Commissioner strenuously insist that Belton cannot now recover what he was clearly entitled to have because of a statute of limitations contained in the Act. The Deputy Commissioner rejected Belton's claim for additional compensation. On appeal to the district court, the Deputy Commissioner's motion for summary judgment was allowed, and his rejection of the claim affirmed on the ground that neither the claim nor an application for reconsideration was filed within one year after the date of the last payment of compensation. See 33 U.S. C.A. § 913(a).

There is no genuine issue as to any material fact. Belton received leg injuries in the course of his employment with Old Dominion while aboard the Vessel S. S. Mormacpenn on July 17, 1961. He has a sixth-grade education and has been a longshoreman since 1943.

On July 18, 1961, Old Dominion filed the "Employer's First Report to Deputy Commissioner of Accident or Occupational Disease." This report is U. S. Form # 202 required by the United States Department of Labor. Old Dominion reported in item 11 on this form that Belton earned an average of $54.00 per week. His average weekly wage actually was $100.00 per week, of which $78.10 was attributable to work for Old Dominion and the balance from other stevedoring companies.

Belton's claim for compensation was "informally adjudicated" by a conference and no formal compensation order was issued. Two such informal conferences were held by a claims examiner in the office of the Deputy Commissioner. Belton was represented by a union¹ official at these conferences. At neither of the conferences was there any discussion whatsoever about the average weekly wage of the employee.² The record does not indicate that Belton was advised by the Deputy Commissioner or by anyone else that his right to receive compensation was quantitatively related to and based upon his average weekly wage. See 33 U.S.C.A. § 910.

The memorandum of the second informal conference, signed by the Claims Examiner, a copy of which was sent to Belton, recites that compensation is payable at the rate of $36.00 per week and contained a warning to the employee that he has one year from the last date of payment to request a modification in the event of an increase in disability.³ Subsequently, the Claims Examiner in the office of the Deputy Commissioner sent Belton an official form (Form US-212) containing the following:

"You were paid compensation for disability as follows:

                Amount
                  "Temporary total from
                  7/17/61 to 10/23/61
                  at $36.00 a week           $509.14
                               * * *
                  "Permanent partial from
                  10/23/61 to 11/30/62
                  at $36.00 a week           $2,072.57
                                * * *
                

"If the facts in your case are as indicated above, you have received the amount of compensation payment to which you are entitled under the law, and the case will be closed in the files of this office." (Emphasis added.)

After Belton consulted counsel sometime during 1964, he made claim for compensation on the basis of the true average weekly wage of $100.00 rather than the incorrect $54.00 per week wage which had been reported by Old Dominion to the Deputy Commissioner.

Why did Old Dominion report to the Deputy Commissioner that Belton's average weekly wage was $54.00 when its own records showed that his average weekly wage with Old Dominion alone was $78.10, and it now willingly stipulates that the total average weekly wage (including earnings from other employers) was $100.00? The explanation, not in controversy, is crucial to our decision. It was not a matter of mistake. Hampton Roads Maritime Association, an employers' association of which Old Dominion was a member, and the International Longshoremen's Association had a written agreement beginning July 1, 1957, and purportedly expiring September 30, 1959, which undertook to fix the average weekly wages for longshoremen at $54.00 for compensation rate purposes. After September 30, 1959, the agreement lapsed by its terms but employers of longshoremen continued to operate under it until late 1963. Indeed, the record suggests that some employers continue presently to operate under this agreement, despite written cancellation of it by the Union on November 4, 1963.

This astounding agreement recites that its purpose is "the fixation of a uniform rate of compensation to be paid injured employees when found entitled to compensation under the provisions of the Longshoremen's and Harbor Workers' Compensation Act." It provides that the average weekly wage of longshoremen "shall be considered" as $54.00 per week, and that the rate of compensation to be paid all union members while employed as longshoremen under circumstances entitling them to compensation within the provisions of the Longshoremen's and Harbor Workers' Compensation Act "shall be $36.00 per week." The agreement further provides that it is consummated by the parties with the understanding that it shall become and remain effective when, if, and for so long a time as it shall have the "acceptance" of the United States Department of Labor, Bureau of Employees' Compensation.

More astounding than the agreement itself is the fact that it was "accepted" by the then Deputy Commissioner,⁴ Fifth Compensation District of the Bureau of Employees' Compensation.

The effect of the agreement, if valid, was to make true average weekly earnings irrelevant and to permit employers to ignore actual average weekly earnings and report $54.00 per week for all injured longshoremen.

It is urged upon us that there were many valid reasons for effecting such a scheme. Old Dominion and Liberty Mutual, joined to some extent by the Deputy Commissioner, maintain that the result is "fair". Fair to whom? It is insisted that although high-earning longshoreman Belton "lost", that other low-earning longshoremen "gained" and that the net result was an equitable one. Liberty Mutual and Old Dominion further insist that some such arrangement is simply necessary because longshoremen work for many employers in the course of a year and reconstructing their work records and computing their true average weekly wage is difficult to accomplish.

Belton says this is not so. His assertion is partly corroborated by Old Dominion's own records showing his average weekly wages to be $78.10. Belton represents that since 1950 the Hampton Roads Maritime Association (the employers' group) has maintained a central records bureau to which each employer reports all hours worked for each individual longshoreman every quarter. It is suggested that this data is kept current and that all that Old Dominion had to do to determine Belton's true average weekly earnings was place a telephone call and make the inquiry.

We need not decide whether such a communal agreement is either "fair" or "necessary" for the simple reason that it is plainly unlawful. Neither the Union nor the employers' association nor the Deputy Commissioner had the power to barter away Belton's statutory right to compensation. This is so for the reason that the Congress, with exceptions not pertaining here, has provided that "the average weekly wage of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation * * *." 33 U. S.C.A. § 910 (Emphasis added). This is mandatory. There is no room for construction. That the Congress meant what it said is exemplified by subsequent clauses of the same section spelling out in great detail the method of determining the average weekly wage.

At a hearing before the Deputy Commissioner on June 22, 1965, that officer apparently took the position that the illegal employer-Union agreement substituting an agreed upon average wage for the true one required by the statute was an irrelevant circumstance. The Deputy Commissioner states in the record that the agreement was never "approved" by the Bureau. In the very next sentence, he noted, however, that it had been "accepted" by the Bureau. We are unable to make such a nice distinction, nor is it urged upon us on appeal.

Plainly the former Deputy Commissioner became a party to an illegal agreement making actual average weekly earnings irrelevant to computation of benefits. Worse, he then represented to Belton that he had received "the amount of compensation payment to which you are entitled under the law" when the then Deputy Commissioner knew that the payment was an arbitrary one not sanctioned by statute.

The Deputy Commissioner and Old Dominion and its carrier knew that Belton had a right to compensation on the basis of his actual average weekly wage. There is nothing in the record to indicate that Frank Belton knew...