United Engineering Co. v. Pillsbury

• Decision Date: 10 May 1950
• Docket Number: 29058,28810,No. 28735,29292.,28735
• Citation: 92 F. Supp. 898
• Court: U.S. District Court — Northern District of California
• Parties: UNITED ENGINEERING CO. et al. v. PILLSBURY, Deputy Commissioner. MATSON TERMINALS, Inc. et al. v. PILLSBURY, Deputy Commissioner. UNITED ENGINEERING CO. et al. v. CYR, Deputy Commissioner.

92 F. Supp. 898

UNITED ENGINEERING CO. et al. v. PILLSBURY, Deputy Commissioner.

MATSON TERMINALS, Inc. et al. v. PILLSBURY, Deputy Commissioner.

UNITED ENGINEERING CO. et al. v. CYR, Deputy Commissioner.

Nos. 28735, 28810, 29058, 29292.

United States District Court N. D. California, S. D.

May 10, 1950.

John H. Black, Edward R. Kay, San Francisco, Cal., for plaintiffs.

Frank J. Hennessy, U. S. Atty, Edgar R. Bonsall, Asst. U. S. Atty., Macklin Fleming, Asst. U. S. Atty., all of San Francisco, Cal., for defendants.

GOODMAN, District Judge.

In these four consolidated actions, the plaintiff employers and their respective insurance carriers have asked this court to set aside and enjoin the enforcement of Compensation Orders and Awards made by the Deputy Commissioner pursuant to the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S. C.A. §§ 901-950. The question presented is whether the Deputy Commissioner lacked jurisdiction to make the awards because the claims for compensation were not filed within a year after the claimants were injured as is allegedly required by Section 13(a) of the Act. The Deputy Commissioner has moved to dismiss the complaints on the ground that the claims were timely filed and that therefore the awards were proper.

Section 13(a) of the Act provides that "The right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within one year after the injury, and the right to compensation for death shall be barred unless a claim therefor is filed within one year after the death, except that if payment of compensation has been made without an award on account of such injury or death a claim may be filed within one year after the date of the last payment. Such claim shall be filed with the deputy commissioner in the compensation district in which such injury or such death occurred." (Emphasis added.)

For a proper understanding of the issues presented, a brief account of the injuries suffered by the claimants and the events leading up to the compensation awards is here necessary.

Claimant Howard Johnson on May 12, 1947 struck his head on a cross-beam of the vessel Monterey while working as a leaderman welder. The muscles of his neck were severely strained and he was unable to continue to weld aboard ship. His employer transferred him to lighter work in the machine shop at no reduction in wages. Although his neck continued to trouble him, he continued to work regularly for more than a year until he was discharged by the new owner of the ship yards because he was unable to weld aboard ship. Since that time he has been employed only intermittently because he is physically able to perform only the less strenuous types of welding operations. When Johnson first lost time from work, he was told it was too late for him to file a claim for compensation. But when he discovered how many employment opportunities were lost because of his condition, he decided to attempt to secure compensation. On January 31, 1949, more than a year and a half after the accident, he filed his claim with the Deputy Commissioner.

Claimant Frank Curnutt on February 17, 1947, while employed as a sheetmetal worker aboard the S. S. Lurline, wrenched his back when he lifted a pre-heater from the deck to a table. He did not work for several days. When he returned to his job, he was relieved of all heavy work on doctor's orders. With some discomfort, he performed lighter duties at his former wage rate until his job ended in about a year. After resting for two weeks to give his back a chance to heal, he obtained work with the Bethlehem Steel Company. In June of 1948 he quit work for five weeks, as a therapeutic measure suggested by his physician. In July he went to work for a sheet-metal company, but soon was forced to give up this job, and subsequent ones, because the work proved too strenuous. On January 17, 1949, nearly two years after injuring his back, Curnutt filed his claim for compensation.

Claimant Louis Shallat on November 21, 1947, while working as a stevedore aboard the S. S. Mauna Lei, caught his hands between a sling and a bight. Considerable pain and swelling in his hands resulted. According to Shallat, his left hand has pained him continuously since it was injured and he has applied self-treatment. While he testified at the hearing before the Deputy Commissioner that the injury grew "more and more severe," he also stated that "the left hand is still the same as it was when I got injured." Shallat had lost no time from work up to the date of the final hearing before the Deputy Commissioner. At that hearing, Shallat stated that he did not file his claim for compensation until May 23, 1949, nearly a year and a half after he was injured, because he thought the injury "wasn't so serious," and that "it would work its way out."

Claimant Chris Manos was welding on the deck of the tanker Purisima on December 22, 1947 when he was struck on the head by an iron saddle falling from above. He was instructed by the examining physician not to weld thereafter and consequently was given lighter work by his employer. He suffered no reduction in rating or wages. About two months later his employment terminated as a result of a general reduction in the number of men employed at the ship yard. In a week or so he obtained a shop welding job at a slightly higher wage than he had previously received at the ship yard. This job ended in January of 1949 due to a general lay off. At the time of the hearing before the Deputy Commissioner on August 29, 1949, Manos was still unemployed, but was planning to engage in...