The opinion of the court was delivered by: INCH
This is an action brought by plaintiff employer under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., to set aside a compensation order made by defendant as Deputy Commissioner, dated February 3, 1950.
Defendant moves for summary judgment dismissing the complaint, and plaintiff moves for an interlocutory injunction staying payment of the amounts awarded by the said order. On the argument, plaintiff, with the consent of defendant, was permitted to make a cross-motion for summary judgment setting aside the compensation award.
From the papers before me, the following facts appear to be undisputed: claimant, Frank Venery, was injured while in plaintiff's employ as a longshoreman, on September 19, 1935. Pursuant to the provisions of the Act, and of compensation orders issued by defendant's predecessor in office, plaintiff made the following compensation payments:
Temporary total disability at $ 18
per week from September 20,
1935 to February 21, 1936 $ 398.57
Temporary partial disability at
$ 8.15 per week for February
22, 1936 to April 7, 1944 3,455.60
Award for facial disfigurement 300.00
Total $ 4,154.17
On August 30, 1940 defendant's predecessor in office entered an order, modifying all previous orders, and awarding the claimant $ 8.15 per week for temporary partial disability 'until the disability shall have ceased, or until otherwise ordered.'
On or about April 7, 1944 plaintiff, upon being advised by its physician that claimant was not longer suffering disability, discontinued the aforesaid compensation payments, and duly notified the Deputy Commissioner.
Thereafter, on May 19, 1944 the claimant filed a claim for compensation, and on May 22, 1944 the defendant notified the plaintiff employer of the filing of said claim.
No further action appears to have been taken by any of the parties until November 17, 1949 when the Deputy Commissioner, on his own motion, gave notice that hearings would be held on December 2, 1949. Hearings were held on that date, and on January 10, 1950, which resulted in an order by defendant dated February 3, 1950 making a finding of fact that claimant 'has continued to suffer a partial disability which is permanent in quality and his physical condition has otherwise remained unchanged', and awarding claimant $ 8.15 per week from April 7, 1944 until otherwise ordered, and a fee of $ 300 to claimant's attorney.
In its complaint, plaintiff, in addition to attacking the validity of the compensation order dated February 3, 1950, alleges that the order of August 30, 1940 was contrary to the provisions of the Act because it purported to award compensation payments for temporary partial disability for a period in excess of five years, and further that there was no evidence before the defendant to support his finding in the 1950 order that claimant was suffering from a permanent disability. On these motions plaintiff abandoned the two latter contentions, and relies solely on the proposition that the Deputy Commissioner, as a matter of law, had no jurisdiction to make the order of 1950 under the circumstances here presented.
To understand plaintiff's position it is necessary to consider Sections 22 and 19 of the Act, 33 U.S.C.A. § 922, 919.
Section 22 provides in part as follows: 'Upon his own initiative, or upon the application of any party in interest, on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation * * * review a compensation case in accordance with the procedure prescribed in respect of claims in section 19, and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. * * * ' (Emphasis supplied.)
Section 19 provides in part as follows:
'(b) Within ten days after such claim is filed the deputy commissioner, in accordance with regulations prescribed by the Administrator, shall notify the employer and any other person (other than the claimant), whom the deputy commissioner considers an interested party, that a claim has been filed. Such notice may be served personally upon the employer or other person, or sent to such employer or person by registered mail.
'(c) The deputy commissioner shall make or cause to be made such investigations as he considers necessary in respect to the claim, and upon application of any interested party shall order a hearing thereon. If a hearing on such claim is ordered the deputy commissioner shall give the claimant and other interested parties at least ten days' notice of such hearing served personally upon the claimant and other interested parties or sent to such claimant and other interested parties by registered mail, and shall within twenty days after such hearing is had, by order, reject the claim or make an award in respect of the claim. If no hearing is ordered within twenty days after notice is given as provided in sub-division (b), the deputy commissioner shall, by order, reject the claim or make an award in respect of the claim. * * *'
The last payment of compensation was made on April 7, 1944, and plaintiff now claims that the one year within which the Deputy Commission retained jurisdiction 'to review' the claim began to run from that date. It is urged that the 'purely ministerial acts' of the Deputy Commissioner in receiving the claim and giving notice thereof did not constitute a 'review' of the case, so as to toll the running of the one year period of limitation and permit the Deputy Commissioner, more ...