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IMPERATO v. LOWE

April 13, 1940

IMPERATO
v.
LOWE, Deputy Compensation Commissioner, et al.



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This action was commenced on June 19th, 1939, to review an order of the Deputy Commissioner dated May 18th, 1939, denying plaintiff's application to reopen his claim.

The denial of the application to reopen was on the ground that the time within which such application could be made, under the provisions of Section 22 of the Longshoremen's and Harbor Workers' Compensation Act, Title 33, Section 922, U.S.Code, 33 U.S.C.A. § 922, had expired before the application to reopen was made.

 On January 7th, 1936, plaintiff sustained injuries while employed as a longshoreman by defendant Commonwealth & Dominion Line, Ltd.

 Voluntary advance payments of compensation were made by the defendant between January 7th, 1936, and April 4th, 1936, in the sum of $226.28.

 On April 29th, 1936, the United States Employees' Compensation Commission sent to plaintiff, and to the defendant Commonwealth & Dominion Line, Ltd., a notice that the case had been closed.

 On October 22nd, 1936, plaintiff filed a claim for compensation with the Deputy Commissioner in consequence of disability and loss of time resulting from the aforesaid injuries, and a hearing was held by the Deputy Commissioner on November 20th, 1936.

 Following that hearing a compensation order was made and filed by the Deputy Commissioner dated January 11th, 1937, awarding compensation to plaintiff of $275.14 covering the disability period found by the Deputy Commissioner to have resulted from plaintiff's injuries from January 7th, 1936, to April 22nd, 1936, which order directed that "the employer having already paid $226.28 of this amount, is now directed to pay $48.86 with which payment the case will be closed".

 The sum of $10 to be paid to Hyman Bernstein, Esq., plaintiff's then attorney, was made "a lien upon and deducted from payment of this award", and on January 26th, 1937, that sum was paid by the said defendant.

 On February 2nd, 1937, defendant Commonwealth & Dominion Line, Ltd., informed the Deputy Commissioner that plaintiff had failed to call for the balance of $38.86 due him pursuant to the compensation order dated January 11th, 1937.

 On February 3rd, 1937, the Deputy Commissioner directed the defendant Commonwealth & Dominion Line, Ltd., to send plaintiff a check for the amount due to him.

 During February and March, 1937, defendant Commonwealth & Dominion Line, Ltd., sent to plaintiff, on several different occasions, both by check and in cash, the amount due him.

 On March 10th, 1937, and again on March 31st, 1937, the defendant, Commonwealth & Dominion Line, Ltd., sent $38.86 in cash to the plaintiff at his home No. 46 Carroll Street, Brooklyn, New York, but plaintiff failed and refused to accept the money tendered to him in legal tender, notwithstanding the fact that it represented the entire balance due to him pursuant to the compensation order dated January 11th, 1937.

 On September 23rd, 1938, more than one year after the balance of compensation awarded to plaintiff by the order dated January 11th, 1937, had been tendered to him, both by check and in cash at his home, as above mentioned, plaintiff made an application to the Deputy Commission for a review of ...


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