The opinion of the court was delivered by: BYERS
This case was called for trial on October 10, 1956, when it was adjourned to November 13, in order to afford the plaintiff an opportunity to examine a missing contract said to contain a waiver, the nature of which will be hereinafter referred to.
On the last mentioned day, the case was called and brief argument was heard following the statement by plaintiff's counsel that the said contract is not available for production, and therefore the question of whether such a waiver actually existed cannot be the subject of proof.
The plaintiff's claim for relief as stated in his complaint, filed pursuant to Title 33 U.S.C.A. § 921(b), is that the rejection by order bearing date August 27, 1951, of his claim for compensation under the Longshoremen's and Harbor Workers' Compensation Act was illegal.
Under date of September 6, 1951, the attorney for the plaintiff applied to the Commissioner for a rehearing, and on September 10, 1951, that application was denied, for the stated reason that an objection had been made on the part of the employer involved, who alleged that he had been prejudiced in the legal sense by the failure of the plaintiff to take timely action within the provisions of the Compensation Statute.
The sole question for decision is one of law, since the record as made before the Commissioner is the necessary basis of the court's determination. See Rochester Telephone Corp. v. U.S., 307 U.S. 125, 59 S. Ct. 754, 83 L. Ed. 1147; National Broadcasting Co. v. U.S., 319 U.S. 190, at page 227, 63 S. Ct. 997, at page 1014, 87 L. Ed. 1344; Kwasizur v. Cardillo, 3 Cir., 175 F.2d 235; Pittston Stevedoring Corp. v. Willard, 2 Cir., 190 F.2d 267.
It appears without dispute that on May 23, 1947, the plaintiff, being an employee of Arthur Tickle Engineering Works as a shipfitter, was working on the S.S. Tullahoma, and while so engaged, sustained injuries involving total temporary disability. The employer and insurance carrier voluntarily paid compensation to him for such disability for ten weeks, although no award had been made since no claim had been filed under the Statute.
On November 24, 1947, the plaintiff filed a notice with his employer and the Deputy Commissioner, of his election to sue the third party, namely, the Keystone Shipping Company. No suit pursuant to that notice was ever brought, and the time to do so expired May 23, 1949.
On August 16, 1950, the plaintiff filed the claim which is the subject of the report now before the court. The claim was rejected by the Commissioner for the reason that, as he said:
'The rights of the employer and carrier were prejudiced by the claimant's failure to prosecute his claim against the third party within the statutory period.'
The present requirement therefore is to decide whether the conclusion of the Commissioner was correct in the legal sense.
The applicable provisions of the statute, Title 33 U.S.C.A. § 933, are as follows:
'Sec. 933. (a) If on account of a disability or death for which compensation is payable under this Act the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to the deputy commissioner in such manner as the commission may provide, to receive such compensation or to recover damages against such third person.
'(b) Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to ...