Powell v. WORKMEN'S COMPENSATION BOARD OF STATE OF NY

• Citation: 214 F. Supp. 283
• Parties: Thomas POWELL, Plaintiff, v. WORKMEN'S COMPENSATION BOARD OF the STATE OF NEW YORK, American Mutual Liability Insurance Co., O'Brien Bros. Shipyard Corporation, Lee & Simmons Lighterage Co., Inc., Liberty Mutual Insurance Co., Nelson Rockefeller, Governor of the State of New York and Louis J. Lefkowitz, Attorney General of the State of New York, Defendants.
• Decision Date: 09 January 1963
• Court: U.S. District Court — Southern District of New York

214 F. Supp. 283

Thomas POWELL, Plaintiff, v. WORKMEN'S COMPENSATION BOARD OF the STATE OF NEW YORK, American Mutual Liability Insurance Co., O'Brien Bros. Shipyard Corporation, Lee & Simmons Lighterage Co., Inc., Liberty Mutual Insurance Co., Nelson Rockefeller, Governor of the State of New York and Louis J. Lefkowitz, Attorney General of the State of New York, Defendants.

United States District Court S. D. New York.

January 9, 1963.

Dora Aberlin, New York City, for plaintiff.

Louis J. Lefkowitz, Atty. Gen. of New York, New York City, pro se and for defendants Workmen's Compensation Board of New York and Nelson Rockefeller, Governor of New York; Irving L. Rollins, New York City, of counsel.

Albert P. Thill, Brooklyn, N. Y., for defendants Lee & Simmons Lighterage Co. and Liberty Mutual Insurance Co.

Cotter, Carey, Fox & McKay, New York City, for defendant American Mutual Liability Insurance Co.; William P. Cotter, New York City, of counsel.

McLEAN, District Judge.

Plaintiff complains of a decision of the New York Workmen's Compensation Board. His amended complaint contains two counts. The first alleges jurisdiction on the basis of 28 U.S.C. §§ 2281 and 2284. It seeks a judgment restraining the Workmen's Compensation Board from enforcing Section 123 of the New York Workmen's Compensation Law, McKinney's Consol.Laws, c. 67, declaring Section 123 unconstitutional under the Fourteenth Amendment, and declaring an order of the Board made pursuant to that section to be null and void. The second count bases jurisdiction upon 28 U.S.C. § 1343. It seeks a judgment directing defendant O'Brien Bros. Shipyard Corporation and its insurance carried defendant American Mutual Liability Insurance Co. to pay to plaintiff the full amount of compensation which plaintiff claims to be due him. Neither count alleges any diversity of citizenship of the parties. Each count alleges that plaintiff sues on his own behalf and on behalf of other persons who have been or may be injured in industrial accidents.

All defendants except defendant O'Brien Bros. Shipyard Corporation have moved, pursuant to Rule 12(b), to dismiss the amended complaint on the grounds (1) that the court lacks jurisdiction over the subject matter, and (2) that the amended complaint fails to state a claim upon which relief can be granted. Plaintiff has cross-moved for an order convening a three-judge court to hear and determine the action. Although plaintiff's notice of motion does not so state, it would seem that the cross-motion relates only to the first count.

The essential allegations of the first count may be summarized as follows. In 1941 plaintiff, then employed by defendant Lee & Simmons Lighterage Co., Inc., sustained a back injury, and was paid compensation therefor pursuant to the Workmen's Compensation Law. He also maintained an action against third parties in which he recovered $12,000. In 1943 the Workmen's Compensation Board decided that plaintiff was able to do his regular work and that there was no deficiency compensation due him, and marked the case closed.

In 1957 plaintiff, then employed by defendant O'Brien Bros. Shipyard Corporation, again sustained a back injury. He was paid compensation for this injury for four months in 1957. In 1958 plaintiff made a claim for total disability as a result of the 1957 accident. Defendant O'Brien Bros. Shipyard Corporation and defendant American Mutual Liability Insurance Co. opposed the claim on the ground that plaintiff's disability was attributable to the 1941 accident. On the application of those defendants, the Workmen's Compensation Board reopened the 1941 compensation case over plaintiff's objection. On June 8, 1962, the Board decided that 50 per cent of plaintiff's present disability was attributable to the 1941 accident and 50 per cent to the 1957 accident. The Board accordingly directed defendants O'Brien Bros. Shipyard Corporation and American Mutual Liability Insurance Co. to pay to plaintiff one-half of the total compensation to which he was entitled for that disability. The Board refused to direct plaintiff's 1941 employer or its insurance carrier to pay the other half, on the ground that Section 123 of the Workmen's Compensation Law prevented such a recovery. That section provides that, although the Board has power to modify former awards, no award of compensation shall be made "against an employer or an insurance carrier where application therefor is made after a lapse of eighteen years from the date of the injury or death and also a lapse of eight years from the date of the last payment of compensation."

The amended complaint alleges that Section 123, as interpreted by the Board, is unconstitutional in that it denies to plaintiff and other injured workmen the equal protection of the laws, by reason of the fact that it permits the Board to assess liability for a present disability against a compensation case which has been closed for many years, while at the same time it prevents the enforcement against the former employer of the liability so assessed. The amended complaint also alleges that the decision of the Board was erroneous, in that it ignored Section 15(8) (d) of the Workmen's Compensation Law which allegedly requires the second employer to pay to the plaintiff the full amount of compensation due him, leaving it to the second employer to secure reimbursement from a special fund for a portion of the amount so paid.

When a plaintiff applies for an order convening a three-judge court to determine a claim of unconstitutionality of a state statute, the single District Judge to whom the application is made may dismiss the complaint if it appears that the court lacks jurisdiction of the action. When, as here, no diversity of citizenship exists, it is essential to jurisdiction that a substantial federal question of unconstitutionality be presented. A single District Judge has the power and the duty to determine whether the complaint reveals the existence of such a question. There is no substantial federal question if plaintiff's claim of unconstitutionality is obviously without merit.

Ex parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L.Ed. 152 (1933); Bell v. Waterfront Commission of New York Harbor, 279 F.2d 853 (2d Cir., 1960); Aberlin v. Domestic Relations Court, 159 F.Supp. 59 (S.D.N.Y.1958); See Idlewild Bon Voyage Liquor Corporation v. Epstein, 370 U.S. 713 at 715, 82 S.Ct. 1294, at 1296, 8 L.Ed.2d 794 (1962).

It is well established that in order to violate the equal protection clause, a statute must discriminate against a particular person or a particular class of persons. Tinsley v. Anderson, 171 U.S. 101, 18 S.Ct. 805, 43 L.Ed. 91 (1898); Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945); Aberlin v. Domestic Relations Court, supra.

It is plain on the face of Section 123 that it does not so discriminate. The section is in essence a statute of limitations. It applies generally to all compensation claimants. In this respect it is similar...