STRACHAN SHIPPING COMPANY v. Hollis

• Decision Date: 17 May 1972
• Docket Number: No. 71-1376.,71-1376.
• Citation: 460 F.2d 1108
• Parties: STRACHAN SHIPPING COMPANY et al., Plaintiffs-Appellees, v. Lee H. HOLLIS, Deputy Commissioner, and Moses Lewis, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

460 F.2d 1108 (1972)

STRACHAN SHIPPING COMPANY et al., Plaintiffs-Appellees, v. Lee H. HOLLIS, Deputy Commissioner, and Moses Lewis, Jr., Defendants-Appellants.

No. 71-1376.

United States Court of Appeals, Fifth Circuit.

May 17, 1972.

Sidney Ravkind, Houston, Tex., for Lewis.

Anthony J. P. Farris, U. S. Atty., Houston, Tex., Leavenworth Colby, Sp. Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Jack Shepherd, Asst. U. S. Atty., Houston, Tex., Patricia Baptiste, Appellate Section, Morton Hollander, Civ. Div., Dept. of Justice, Washington, D. C., for Hollis.

E. D. Vickery, David B. Connery, Jr., Houston, Tex., for plaintiffs-appellees.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

We are faced on this appeal with a difficult and novel question concerning the administration of the Longshoremen's and Harbor Workers' Compensation Act, Title 33, U.S.Code, Chapter 18. The district court, 323 F.Supp. 1122 (S.D.Tex.1970), held that a formal compensation order issued in 1970 by the Department of Labor Deputy Commissioner, appellant Lee H. Hollis, in favor of claimant-appellant Moses Lewis, Jr., against employer-appellee Strachan Shipping Company and insurer-appellee Texas Employer's Insurance Association was barred by Section 22 of the Act, Title 33, U.S.C., Section 922.¹ Acting pursuant to Section 21 of the Act, Title 33, U.S.C., Section 921,² the court below enjoined enforcement of the 1970 order, which related to both compensation benefits and payment of Lewis' medical expenses. We affirm as to the award of compensation benefits but reverse as to the payment of medical expenses.

THE FACTS

Claimant Lewis sustained an injury on navigable waters in the course of his employment as a longshoreman on July 11, 1956. Employer Strachan Shipping Company reported the injury to the deputy commissioner on July 16, 1956, and on August 28, 1956, the insurer reported that on August 14, 1956, it had begun voluntary payment of compensation without awaiting award. On October 10, 1956, the insurer further reported utilizing Form US-208, that it had stopped voluntary payments of compensation on October 9, 1956. It did not, however, file Form US-207 contesting liability for compensation.

Following the stoppage of compensation, Lewis sent an undated letter to the deputy commissioner, which was filed by the deputy commissioner on December 10, 1956, making claim for the resumption of compensation payments and medical treatment. Although no formal claim was filed on Form US-203, the deputy commissioner accepted the letter as a claim and gave notice to the insurer and the claimant that a prehearing conference was set for December 14, 1956.

The claimant was not represented by counsel at this conference. Thereafter, the insurer had him examined by its doctors. On January 9, 1957, the claimant wrote to the deputy commissioner complaining that the insurer had denied his eligibility for compensation. On March 13, 1957, the deputy commissioner wrote to the insurer inquiring of the status of the matter. Using Form US-206, the insurer, on March 20, 1957, reported that it was resuming voluntary payment of compensation, without award, effective from October 10, 1956, the date as of which it had previously stopped benefits.

On March 26, 1957, the insurer reported on a second Form US-208 that it had again stopped payment as of October 9, 1956. By letter dated April 10, 1957, the claimant again complained to the deputy commissioner about the stoppage and requested additional compensation. Notice was given to the insurer and the claimant of a second prehearing conference April 19, 1957. At the conclusion of this second conference, Claims Examiner William O'Keeffe filed and mailed to the insurer and the claimant copies of a memorandum stating that the case was postponed for thirty days to permit the employer to ascertain the claimant's earnings.³ A continuation conference was noticed for May 31, 1957.

Following this third prehearing conference before Mr. O'Keeffe, at which the claimant was still not represented by counsel, a memorandum dated June 4, 1957, was filed and distributed which stated that the claims examiner recommended voluntary payment of compensation without award for temporary partial disability through February 12, 1957. The insurer accepted this recommendation, made voluntary payment without award and on June 8, 1957, filed a third Form US-208 reporting that it had paid compensation benefits to the claimant to February 12, 1957, and stopped. After an intervening fourth unscheduled conference on August 9, 1957, the claimant requested a further prehearing conference, which was noticed for August 23, 1957.

The fifth prehearing conference was held as scheduled before claims examiner O'Keeffe after which he filed a memorandum, dated August 28, 1957, which stated that the claimant was not represented by counsel and that the claimant and the insurer agreed that there was a twelve percent (12%) permanent partial loss of the use of the left leg. The memorandum included a recommendation by Mr. O'Keeffe that the insurer make a further voluntary payment of compensation without award for 29.76 weeks at the rate of $35.00 per week, amounting to $1,041.60.

The insurer accepted this recommendation and on September 3, 1957, it filed a fourth Form US-208 reflecting that it had paid the recommended amount and had stopped further payments of compensation. Following receipt of this notice from the insurer, the deputy commissioner sent to the claimant, still not represented by counsel, a completed Form US-212, "Notice to Injured Employee of Termination of Compensation Payments", dated September 16, 1957. This form advised the employee to notify the deputy commissioner within ten days if the full amount of payments called for had not been received. The following language appeared at the conclusion of the form:

"The right to compensation for disability is barred unless claim therefor is filed within one year after the injury or within one year after the date of the last payment of compensation and any application for review of a compensation case must be filed with the Deputy Commissioner within one year after the date of the last payment of compensation or within one year after rejection of a claim".

On August 27, 1958, the deputy commissioner gave notice to the insurer and the claimant that a sixth prehearing conference was scheduled for September 5, 1958. Neither party at this conference requested the deputy commissioner to adjudicate the claim pursuant to Section 19(c) of the Act, Title 33 U.S.C., Section 919(c).⁴ The deputy commissioner thereafter took no action pursuant to Section 14(h) of the Act, Title 33 U.S.C., Section 914(h),⁵ to "properly protect the rights of all parties". Instead, he allowed the claim to remain in abeyance while the insurer continued to pay the cost of the claimant's treatment by the insurer's orthopedic surgeon, Dr. W. M. Palm.

This state of affairs continued until the claimant, by letter dated December 7, 1966 complained to the deputy commissioner that the insurer had terminated all further medical care. The deputy commissioner then gave notice to the insurer and to the claimant that a seventh prehearing conference would be held on February 9, 1967. As a result of this conference, Claims Examiner Robert D. Wedemeyer recommended that the insurer continue to furnish orthopedic socks to the claimant.

On January 15, 1969, the claimant again wrote to the deputy commissioner protesting the insurer's discontinuance of medical treatment. By letter of January 15, 1969, the deputy commissioner reminded the insurer of its continuing obligation and requested medical recommendations as to further medical care. Following receipt of the claimant's letter of April 24, 1969, advising of the insurer's continuing refusal to provide treatment, the deputy commissioner gave notice to the parties of an eighth prehearing conference on May 15, 1969.

At the May 15, hearing the deputy commissioner directed that the claimant be examined by a physician of the Public Health Service. Following that examination, the deputy commissioner, on June 12, 1969, advised the parties that the Public Health Service examining physician was of the opinion that the 1956 injury had caused marked deterioration of the claimant's left knee. The eighth prehearing conference was continued until June 26, 1969, as a result of which the claimant was advised to submit a formal claim for compensation, utilizing a Form BEC-203, because a question had developed "as to whether the claimant's previous correspondence constitutes an informal claim which would toll any limitation for filing claim for benefits at a later date". A formal claim on a Form BEC-203 was filed with the deputy commissioner by the claimant on July 14, 1969. The insurer, using a Form US-215, answered by denying the claimant's disability, either permanent or temporary, for the period claimed and by asserting that "a Formal Claim was not filed within the one year statutory period".

The claimant retained counsel on November 15, 1969, and a ninth prehearing conference was scheduled for January 22, 1970. At this conference it was determined that two issues were appropriate for a formal hearing: (1) Was the July 14, 1969, claim, which utilized a Form BEC-203, barred by the one year statute of limitations? and (2) Was the claimant entitled to continued disability compensation and medical treatment?

The first and only formal hearing was held before the deputy commissioner on April 29, 1970. At this time counsel for the insurer and the employer asserted the following defense: The claimant's original letter of December 10, 1956, did not constitute a claim; even if that letter did constitute a claim, Claims Examiner O'Keeffe's memorandum of August 28, 1957, fully adjudicated any and all pending claims, thereby triggering the one year limitations period of Section 22 o...