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WINDREM v. BETHLEHEM STEEL CORP.

October 24, 1968

John WINDREM, Plaintiff,
v.
BETHLEHEM STEEL CORPORATION and Thomas F. Hughes, Deputy Commissioner for the 2nd Compensation District of the United States Department of Labor, Bureau of Employees Compensation, Defendants



The opinion of the court was delivered by: SHAW

 Plaintiff sought an award of compensation pursuant to the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., and his claim was denied by Deputy Commissioner Thomas F. Hughes, Second Compensation District, United States Department of Labor, Bureau of Employee Compensation, on the ground that it had not been filed within the time prescribed by 33 U.S.C. § 913(a). This action was brought pursuant to 33 U.S.C. § 921(b) to review the order of the deputy commissioner. That section of the statute provides in pertinent part:

 
If not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings, mandatory or otherwise, brought by any party in interest against the deputy commissioner making the order, and instituted in the Federal district court for the judicial district in which the injury occurred * * *.

 The function of the Court is that of judicial review of the action of an administrative agency. Bassett v. Massman Construction Co., 120 F.2d 230 (8th Cir. 1941), cert. denied 314 U.S. 648, 62 S. Ct. 92, 86 L. Ed. 520 (1941); Main Ship Repair Corp. v. Hughes, 243 F. Supp. 882 (E.D.N.Y.1964). The material facts are not in dispute and the matter is now before the Court on cross-motions for summary judgment.

 Plaintiff, a land based employee of Bethlehem Steel Corp. (Bethlehem), was injured on March 5, 1963, while working as a welder on a ship which was docked in a shipyard at Hoboken, New Jersey, and which was in the process of being reconstructed and recommissioned. The vessel was afloat in navigable waters at the pier where the reconstruction work was being performed. Bethlehem furnished medical care in accordance with the provisions of Section 7(a) of the Act, 33 U.S.C. § 907, and made voluntary payments of compensation for a period of temporary disability from March 6, 1963, to August 5, 1963, inclusive, at the rate of $70.00 per week, amounting to $1,530.00. Plaintiff was advised by the deputy commissioner of his right to claim for additional benefits under the Act. He failed to acknowledge the communications with respect thereto but, instead, filed a verified petition with the New Jersey Department of Labor and Industry, Division of Workmen's Compensation, on May 1, 1963, claiming compensation pursuant to the provisions of the New Jersey Workmen's Compensation Act, N.J.S.A. 34:15-7 et seq. Bethlehem, answering the petition, asserted that "[the] Bureau has no jurisdiction in this matter." During the proceedings petitioner was represented by counsel and despite the challenge of Bethlehem to the jurisdiction of the New Jersey Department of Labor and Industry, Division of Workmen's Compensation, a hearing was held on the merits of the claim on February 24, 1964, and petitioner received an award for temporary disability in the amount of $983.57 and an award for permanent disability of $3,850.00. *fn1" The full amount of the award was paid by Bethlehem in weekly installments terminating on June 3, 1965.

 On June 7, 1965, plaintiff filed a claim for compensation for the same injury under the Longshoremen's and Harbor Workers' Compensation Act. Bethlehem resisted the claim on the following grounds: (1) plaintiff's claim was not filed within one year after the injury as required by 33 U.S.C. § 913(a); (2) plaintiff was bound by the doctrine of election of remedy; (3) the assumption of jurisdiction by the New Jersey Department of Labor and Industry, Division of Workmen's Compensation, at the instance of plaintiff precluded plaintiff from asserting the same claim again in the federal forum. The deputy commissioner held that federal jurisdiction was exclusive but he rejected plaintiff's claim on the ground that it had not been timely filed.

 As to the scope of review here, plaintiff contends that this Court is limited to consideration of whether the deputy commissioner correctly found that the claim was not filed within the period prescribed by 33 U.S.C. § 913(a). *fn2" The Court does not agree. The issue of jurisdiction was raised before the federal commissioner and decided. Since the material facts were not in dispute, the decision as to jurisdiction was one of law rather than of fact. Even the government, which is in the unusual position of urging that the commissioner be reversed, conceded that the question of jurisdiction was raised and decided by the commissioner and is therefore subject to review here.

 In New Jersey the employee could file his petition for compensation at any time within two years after the date on which the accident occurred. N.J.S.A. 34:15-51. A formal award of compensation can be reviewed within two years from the date when the employee last received a payment of compensation to recover increased compensation. N.J.S.A. 34:15-27. There are also provisions in the New Jersey statute for appeals from an award of compensation. N.J.S.A. 34:15-66. From this brief summary of the provisions of the New Jersey statute it is readily apparent that in this jurisdiction, and no doubt in many others, the one year period of limitation in the federal Act could be extended indefinitely while an employee exhausts state procedural steps to obtain an award of compensation and exhausts all of the time up to the point of a final payment on a state award.

 It should be further noted that if the construction of the statutory period of limitations in the federal Act which plaintiff urges on the facts in this case were adopted, there could be no uniform application thereof in the respective jurisdictions in which federal claims arise. State proceedings to which a claimant resorted to obtain final judgment before filing his federal claim would control.

 Bethlehem was not a voluntary party to the petition which plaintiff filed pursuant to the provisions of the New Jersey Workmen's Compensation Act. As a consequence of the prosecution of that petition by plaintiff, Bethlehem was subjected to an enforceable award of workmen's compensation. N.J.S.A. 34:15-66.1. It made the payments it was ordered to make and plaintiff accepted them. Such payments could not be considered as voluntarily made "without an award" as contemplated by the federal Act.

 The only case that this Court has found which lends any support to plaintiff's position is Great Lakes Dredge & Dock Co. v. Brown, 47 F.2d 265 (N.D.Ill. 1930). The facts in the case, however, do not appear to be analogous. While there was an award of workmen's compensation under the Illinois Workmen's Compensation Act, it seems that an agreement was entered upon between the employee and the employer whereby in consideration of the continued payments to be made under the Illinois Workmen's Compensation Act, the employee released every other claim to compensation which he might have had. The Court, noting this, pointed out that this release was without validity. In the instant action there is no evidence of any voluntary participation by Bethlehem which was intended to bypass liability to which it may have been subjected under the Longshoremen's and Harbor Workers' Compensation Act. Moreover, the case was decided before Davis v. Department of Labor and Industries of State of Washington, 317 U.S. 249, 63 S. Ct. 225, 87 L. Ed. 246 (1942) when federal jurisdiction was considered to be exclusive.

 
We think, however, that the availability of the state compensation remedy should not turn on the fortuitous circumstance of whether the ship on which an artisan was working was being constructed or being repaired. As Chief Justice ...

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