Kropp v. Parker

• Decision Date: 29 September 1934
• Docket Number: No. 2224.,2224.
• Citation: 8 F. Supp. 290
• Parties: KROPP v. PARKER, Deputy Com'r, et al.
• Court: U.S. District Court — District of Maryland

8 F. Supp. 290

KROPP v. PARKER, Deputy Com'r, et al.

No. 2224.

District Court, D. Maryland.

September 29, 1934.

Francis I. Mooney, of Baltimore, Md., for plaintiff.

Bernard J. Flynn, U. S. Atty., and G. Randolph Aiken, Asst. U. S. Atty., both of Baltimore, Md., for E. V. Parker, Deputy Com'r.

Robert D. Bartlett and C. Damer McKenrick, both of Baltimore, Md., for Arundel Corporation and United States Fidelity & Guaranty Co.

CHESNUT, District Judge.

In this case the plaintiff has filed his suit under section 21 of the Act of Congress known as the Longshoremen's and Harbor Workers' Compensation Act (March 4, 1927, c. 509, 44 Stat. 1424, 1436, 33 USC, § 921 33 USCA § 921) to set aside a compensation order of the Deputy Commissioner holding that the plaintiff employe was not entitled to compensation for injury sustained in the course of his employment because he had not filed his claim therefor within one year after his injury as required by section 13 of the act (33 USC, § 913 33 USCA § 913) which provides as follows:

"(a) The right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within one year after the injury."

Certain exceptions are provided for in the section but this case does not fall within any of them. The only question presented for judicial determination is whether under the facts as found by the Deputy Commissioner, the plaintiff's claim is barred for the reason stated. The findings of fact made by the Deputy Commissioner are as follows:

"That on or about the 25th of March, 1932, the claimant above named was in the employ of the employer above named at Baltimore in the State of Maryland in the Fourth Compensation District, established under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, and that the liability of the employer for compensation under said Act was insured by the United States Fidelity and Guaranty Company; that on said day claimant herein while performing service for the employer upon the navigable waters of the United States sustained personal injury resulting in his disability while he was employed as a pipe fitter's and machinist's helper, engaged in installing a rail around the engine in the forward hold of the dredge `National' which was afloat in the Patapsco River at the employer's shipyard, Fairfield, Baltimore, Maryland; that while so engaged, the captain of the dredge, cleaning off the deck above, attempted to throw off a block of wood, 12" × 12" and about three feet long, and weighing about one hundred pounds; instead of throwing the block of wood off the deck as intended, the said block fell through the open hatch under which Kropp was working and struck him a severe blow on the back of his head, knocking him to his knees, raising a knot on the back of head and breaking the skin; Kropp was stunned or dazed for a moment or two,—he was then sent to the yard office by the employer's superintendent who had witnessed the accident; at the office he was given first aid dressing, following which he returned and resumed his work on the dredge; he continued to work regularly thereafter, but complained from time to time to the superintendent and to others at the plant, of pains in the back of his head and appeared concerned as to whether this was due to his injury; he had not such pain in his head prior to the injury; Kropp had been employed by the employer for about eleven years and was considered a faithful, steady, and industrious worker "Subsequent to the injury, a fellow-employee noted that on some days Kropp seemed a little slow in work and not quite up to the former mark;

"On June 1, 1933, Kropp informed the employer that he could no longer stand the pain in his head and asked to be referred to a doctor, which was done; this physician, on examining him, did not consider there was disability due to an injury and referred claimant to an eye specialist who prescribed glasses which were obtained, but which did not give claimant relief; Kropp lost no time from work because of disability until June 3, 1933;

"On June 19, 1933, claimant entered the Maryland General Hospital; on June 20, 1933, his brain was X-rayed, and on July 5, 1933, a brain specialist operated on the back part of claimant's head and removed a cerebellar tumor of the glioma type;

"That the brain tumor removed July 5, 1933, and which first caused disability on June 3, 1933, was in direct causal relationship to the accident sustained by the claimant on or about March 25, 1932, as above found;

"That due to same claimant was totally disabled June 3, 10, 12, 1933, and from June 17, 1933, to October 20, 1933 and was still totally disabled on the latter date;

"That written notice of the injury was not given, but the employer had immediate knowledge of same and has not been prejudiced by failure to give written notice;

"That claim for compensation was filed June 22, 1933, more than one year after injury, and objection to such failure was raised by the employer and insurance carrier at the first hearing of such claim;

"That the average weekly wage of the claimant at the time of the injury was $19.25;

"Upon the foregoing facts it is ordered by the Deputy Commissioner that the claim be and it is hereby Rejected for the reason that such claim was not filed within one year after the injury (section 13 of the act), which requirement of the statute is mandatory."

For the decision of the question presented the controlling facts so found by the Deputy Commissioner are the following: The accident occurred March 25, 1932. It was verbally reported to the employer on the same date and first aid treatment given; the employe lost no time from work thereafter until June 3, 1933, when his medical treatment began, which resulted in the removal of a brain tumor that had resulted, as the Deputy Commissioner found, from the accident. Neither the employe nor the employer was aware of the latent injury caused by the accident and the discomfort occasioned thereby to the employe was not sufficient to prevent his working continuously until more than a year after the occurrence of the accident. He did not become disabled to an extent entitling him to disability payments under the act until June 3, 1933; and the claim for compensation was not filed until June 22, 1933, more than one year after the accident which resulted in the disabling injury.

The legal question thus presented is one of interpretation or construction of the word "injury" in the above quotation from section 913. Is it to be construed as meaning the accident which caused the injury, or the injury resulting from the accident which culminated in the brain tumor, the existence of which was not discovered until June 19, 1933? It is obvious if the former meaning is given to the word the employe's claim is barred by the statute, but if the latter meaning is the correct one, then the claim was not barred. In support of the view taken by the Deputy Commissioner it is argued that section 913 is a statute of limitations to limit the time for filing claims, and thus to bar stale and possibly fictitious claims and also those considered too remote in time to have resulted from an accident occurring more than a year previously. But for the employe it is argued that there is a definite difference between an accident and the resulting injury; and, looking at the Longshoremen's Act as a whole (section 1 et seq. 33 USCA § 901 et seq.), and bearing in mind its remedial and beneficent purposes, it is unreasonable to attribute to Congress the intention to bar a claim for a disability which only arose more than a year after the accident. Or, in other words, it is said that the term "injury" as used in the section must be construed in the sense of "compensable injury."

In section 902, 33 USCA, the term "injury" is defined as follows:

"(2) The term `injury' means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment."

However, this definition furnishes no real help in deciding the question presented.

It has been held by Judge Caffey in the Southern District of New York, in Romaniuk v. Locke, Dep. Com'r, 3 F. Supp. 529, that the limitation in the section is mandatory; but the particular point here involved seems not to have heretofore been determined by any federal court. The case of Hoage v. Employers' Liability Assurance Corporation, 62 App. D. C. 77, 64 F.(2d) 715, 718, may be thought to give some support to the contention of the employe in this case although it is not directly in point. In that case the court was dealing not with an accident, but with what was a slowly developing occupational disease which first manifested itself on December 4, resulting in a necessary surgical operation after the first of January following. The insurance carrier made the point that its liability had ceased before January 1st, but the court said "The injury, as we have already pointed out, occurred December 4 and not as suggested after the first of January when the resection operation was performed." It may be said that the court here treated the first manifestation of the employe's disability as the time of the sustaining by him of the "injury".

In the absence of any direct federal decision it is natural to turn to state court decisions under similar provisions in Workmen's Compensation Laws. The federal statute is modeled upon the New York law Wheeling Corrugating Co. v. McManigal, 41 F.(2d) 593, 595 (C. C. A. 4) which as enacted in 1914, used the word "injury" in its similar limitation section (Laws 1914, c. 41, § 28) but in 1918 the act was amended and the word "accident" substituted for "injury" (Law 1918, c. 634, § 4). I...