Bethlehem Steel Co. v. Parker, 5610.

• Decision Date: 27 August 1947
• Docket Number: No. 5610.,5610.
• Parties: BETHLEHEM STEEL CO. v. PARKER, Deputy Com'r, U. S. Employees' Compensation Commission, et al.
• Court: U.S. Court of Appeals — Fourth Circuit

163 F.2d 334 (1947)

BETHLEHEM STEEL CO. v. PARKER, Deputy Com'r, U. S. Employees' Compensation Commission, et al.

No. 5610.

Circuit Court of Appeals, Fourth Circuit.

August 27, 1947.

John G. Rouse, Jr., and James C. Morton, Jr., both of Baltimore, Md., for appellant.

Herbert P. Miller, Asst. Chief Counsel, United States Employees' Compensation Commission, of New York City, and Harry J. Dingle, of Baltimore, Md. (Bernard J. Flynn, U. S. Atty. and C. Ross McKenrick, Asst. U. S. Atty., both of Baltimore, Md., and W. E. Boote, Chief Counsel, United States Employees' Compensation Commission, of New York City, on the brief), for appellees.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This is an appeal by the Bethlehem Steel Company (hereinafter called Bethlehem) from a judgment of the United States District Court for the District of Maryland, dismissing a proceeding brought in that court by Bethlehem seeking to set aside an award, in favor of Aberdeen Curtis, made by E. V. Parker, a Deputy Commissioner of the United States Employees' Commission, under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, (hereinafter called the Act), 33 U.S.C.A. § 901 et seq. The only ground advanced by Bethlehem as a basis for setting aside the Deputy Commissioner's award was that no such notice of injury was given to Bethlehem by Curtis as is required by Section 12 of the Act, 33 U.S.C.A. § 912.

The accident here in question happened on May 4, 1945, when the claimant Curtis, engaged in repair work aboard Bethlehem's Motor Vessel Megare, in descending the engine-room ladder, slipped on the last tread, lost his balance, spun around trying to catch the handrail and this caused a strain and wrench of his right knee.

According to the opinion of Judge Coleman, in the District Court, 72 F.Supp. 35, 36:

"The testimony presented to the Deputy Commissioner, in so far as it relates to the question of notice, is very fragmentary and somewhat ambiguous, but the following is not disputed: The injury to claimant occurred on May 4, 1945, but he treated it as trivial — a minor sprain, — continued to work, gave no notice to his employer of his injury, and sought no medical aid until the middle of August. On September 25th, following advice given him in August by one of his employer's physicians, he subjected himself to examination by an orthopaedic surgeon, who found that claimant was suffering from a torn cartilage of the knee and recommended an operation. Then claimant realized that the trouble he was having with his knee was the result of the accident in May. His knee was operated upon October 25, 1945. He left the hospital on October 31st, but he gave no notice of his injury to his employer until December 17th."

Section 12 of the Act, 33 U.S.C.A. § 912, provides:

"(a) Notice of an injury or death in respect of which compensation is payable under this Act shall be given within thirty days after the date of such injury or death (1) to the deputy commissioner in the compensation district in which such injury occurred and (2) to the employer.

"(b) Such notice shall be in writing, shall contain the name and address of the employee and a statement of the time, place, nature, and cause of the injury or death, and shall be signed by the employee or by some person on his behalf, or in case of death, by any person claiming to be entitled to compensation for such death or by a person on his behalf.

"(c) Notice shall be given to the deputy commissioner by delivering it to him or sending it by mail addressed to his office, and to the employer by delivering it to him or by sending it by mail addressed to him at his last known place of business. If the employer is a partnership such notice may be given to any partner, or if a corporation, such notice may be given to any agent or officer thereof upon whom legal process may be served or who is in charge of the business in the place where the injury occurred.

"(d) Failure to give such notice shall not bar any claim under this Act (1) if the employer (or his agent in charge of the business in the place where the injury occurred) or the carrier had knowledge of the injury or death and the deputy commissioner determines that the employer or carrier has not been prejudiced by failure to give such notice, or (2) if the deputy commissioner excuses such failure on the ground that for some satisfactory reason such notice could not be given; nor unless objection to such failure is raised before the deputy commissioner at the first hearing of a claim for compensation in respect of such injury or death."

We agree entirely with the District Judge that the Act must be liberally construed as a remedial enactment; that there is no evidence that the delay of Curtis in giving notice has in any way prejudiced Bethlehem; that the claim of Curtis has substantial merit and that Bethlehem's single defense (lack of proper notice) is highly technical. That, however, does not lessen our responsibility to interpret and...