Travelers Ins. Co. v. Parker

• Decision Date: 16 September 1941
• Docket Number: No. 138.,138.
• Citation: Travelers Ins. Co. v. Parker, 40 F.Supp. 692 (E.D. Va. 1941)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: TRAVELERS INS. CO. et al. v. PARKER, Deputy Compensation Com'r, (RAGSDALE et ux., Interveners).

40 F. Supp. 692

TRAVELERS INS. CO. et al. v.PARKER, DeputyCompensation Com'r, (RAGSDALE et ux., Interveners).

No. 138.

District Court, E. D. Virginia, Norfolk Division.

September 16, 1941.

Leon T. Seawell, of Norfolk, Va., for plaintiffs.

Sterling Hutcheson, U. S. Atty., and Russell T. Bradford, Asst. U. S. Atty., both of Norfolk, Va., for defendantE. V. Parker.

Stanley H. Kamerow, Washington, D. C., for intervening defendants.

WYCHE, District Judge.

This is a proceeding instituted under section 21(b) of the Longshoremen's and Harbor Workers' Compensation Act,33 U.S.C. A. § 921(b), to review a compensation order filed on January 9, 1941, by the defendantE. V. Parker, deputy commissioner for the fifth compensation district, in favor of Thomas and Annie B. Ragsdale, parents of Rubin T. Ragsdale.On August 12, 1938, Rubin T. Ragsdale, a longshoreman in the employ of William G. B. Thompson, while engaged in loading bulk nitrate into the hold of the S. S. "Baron Elphinstone" at Hopewell, Virginia, stumbled over the coaming of No. 3 hatch in the 'tween deck area of the ship and fell to the bottom of the lower hold, sustaining a crushed skull from which he died.

Plaintiffs had prompt notice of the employee's death and made full investigation with respect thereto.On September 1, 1939, formal claim for compensation was filed with the defendant deputy commissioner by Annie B. Ragsdale, and on February 20, 1940, formal claim was filed by Thomas Ragsdale.The defendants concede that these formal claims were filed more than one year after the employee's death and were, therefore, barred under the provisions of section 13(a) of the Longshoremen's Act, 33 U.S.C.A. § 913(a).But the defendants contend that the letter of Thomas Ragsdale, dated August 22, 1939, addressed to the deputy commissioner, and in which he makes the statement that both he and his wife were dependent upon the deceased son for support, considered in connection with the inquiry addressed to him by the deputy commissioner in the latter's letter of August 17, 1938, as to whether the parents claimed to be dependent, was sufficient to meet the requirements of section 13(a) of the act as to limiting the time for filing of a claim.

A hearing in the case was held before the deputy commissioner on November 14, 1940, and the transcript of the testimony taken at said hearing has been made a part of the record for review by this court.Based upon the evidence adduced at the hearing the deputy commissioner filed the compensation order of January 9, 1941, complained of in the petition for review, in which he awarded compensation to Thomas and Annie B. Ragsdale, parents of the said Rubin T. Ragsdale, upon finding, among other things, that (1) the injury sustained by Rubin T. Ragsdale arose out of and in the course of his employment, (2) the parents were dependent upon their son at the time of his death, and (3) that there had been a sufficient compliance by the parents with the provisions of section 13(a) of the Longshoremen's Act, 33 U.S.C.A. § 913(a), as to the filing of claim for compensation.

The questions raised by plaintiffs' petition for review are (1) whether the death of said employee arose out of and in the course of his employment, (2) whether the parents were dependent upon the said employee at the time of his death, and (3) whether there was a sufficient compliance by the parents with the provisions of section 13(a) of the Longshoremen's Act requiring claim for compensation to be filed within one year after the death of the employee.There is substantial evidence in the record to support the deputy commissioner's findings of fact to the effect that the fatal injuries sustained by Ragsdale arose out of and in the course of his employment, and that the parents were dependent upon their son at the time of his death.The findings of fact of the deputy commissioner on these points, being supported by substantial evidence, are final and conclusive and cannot be disturbed by me.South Chicago Coal & Dock Co. v. Bassett, Deputy Commissioner, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732;Voehl v. Indemnity Insurance Company of North America, 288 U.S. 162, 53 S.Ct. 380, 77 L.Ed. 676, 87 A. L.R. 245;Del Vecchio v. Bowers, 296 U. S. 280, 56 S.Ct. 190, 80 L.Ed. 229;Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L. Ed. 598;Jules C. L'Hote et al. v. Crowell, Deputy Commissioner, 286 U.S. 528, 52 S. Ct. 499, 76 L.Ed. 1270.

The remaining question for my determination is whether there was sufficient compliance by the parents of the employee with the provisions of section 13(a) of the Longshoremen's Act relating to the filing of claim for compensation.This section of the Act, 33 U.S.C.A. § 913(a), provides as follows: "The right to compensation for disability under this Act 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."

The defendants contend that upon receiving from the employer a report of the death of Ragsdale, the deputy commissioner under date of August 17, 1938, which was within a few days following the employee's death, wrote to the father of the employee, Thomas Ragsdale, advising him of the death of his son, explaining to him the benefits provided by the Longshoremen's Act, and specifically asking him to advise the deputy commissioner whether he or his wife claimed to have been dependent for support upon their son; that in reply thereto Thomas Ragsdale, the father, wrote to the deputy commissioner under date of August 22, 1938, a letter in which he advised the deputy commissioner that he and his wife were dependent upon the deceased employee for support at the time of his death, and that the correspondence with the deputy commissioner constituted a sufficient compliance by the parents with the provisions of section 13(a) of the Longshoremen's Act.

The letter of the deputy commissioner, dated August 17, 1938, to Thomas Ragsdale reads as follows: "This office has received report from Mr. Wm. G. B. Thompson of Hopewell, Virginia, to the effect that your son, Rubin T. Ragsdale, was fatally injured on August 12, 1938, while loading nitrate into the hold of a ship at Hopewell.

"This injury and death comes under the provisions of the Federal Longshoremen's and Harbor Workers Compensation Act, which is administered by this office.The law provides that in case of accidental death arising out of and in the course of employment, death benefits are payable to certain dependents such as the widow, children under eighteen, and dependent parents and grandparents.

"You are requested to advise me whether or not your son left surviving him a widow or any children under the age of eighteen; also whether or not yourself or your wife claim to have been dependent for support upon your son.

"The funeral and burial expenses are also allowed in the sum not to exceed $200.00 The enclosed form US-265 may be turned over by you to the undertaker who conducted the funeral, so that he can execute it and return it to this office."

Thomas Ragsdale's letter to the deputy commissioner, dated August 22, 1938, reads as follows: "replying to your letter of the 17th instant in regard to my son, Rubin Thomas Ragsdale, deceased, I beg to advise that he was unmarried, with no children.My wife, Annie B. Ragsdale, and I were dependent upon him for support.

"I return herewith form US-265 duly executed."

The deputy commissioner inclosed with his letter to Thomas Ragsdale form US-265, the purpose of which was to claim funeral benefits, and Thomas Ragsdale returned with his letter said form duly executed.Under section 2(12) of the Act, 33 U.S.C.A. § 902(12), the term "compensation" is defined as including "funeral benefits" provided in the Act.

Neither the Longshoremen's Act nor the rules and regulations of the United States Employees' Compensation Commission promulgated thereunder (Code of Federal Regulations, Title 20, Subchapter C, Part 1, § 31.1 et seq.) requires that a claim for compensation shall be filed on any particular form.Any letter or notice to the deputy commissioner from which it may reasonably be inferred that a claim for compensation is being made is sufficient to meet the requirements of the statute for filing claims.In the case of Louisiana-Texas Waterways Co. et al. v. United States Employees' Compensation Commission, D.C.Ky.1935, 19 F.Supp. 396, which arose under the Longshoremen's Act, the applicable authorities have been collected and analyzed.In that casethe claimant's attorney wrote to the deputy commissioner identifying the accident and requesting blank forms for filing claim.The letter did not state that claim for compensation was being made, it merely indicated a desire to file a claim.The court held that such letter was sufficient to toll the statute of limitations in section 13(a) of the Longshoremen's Act.

In Kaplan v. Kaplan Knitting Mills, Inc., 248 N.Y. 10, 161 N.E. 204, 206, which arose under the New York workmen's compensation law, the...