The opinion of the court was delivered by: SUGARMAN
Kaare Peterson, an employee of the Seaboard Marine Service Corporation, was injured in the course of his employment on January 21, 1950. His employment was within the coverage of the Longshoremen's and Harbor Workers' Compensation Act.
The employer's carrier began paying compensation to the employee as provided for in the Act at the rate of $ 35 per week from January 22, 1950 which at that time was the maximum allowed by the Act.
On December 4, 1951 the employee served and filed a notice of election to sue a third party (Waterman Steamship Company) for damages resulting from the injuries he sustained. On December 5, 1951 further payments of compensation were stopped as a result of said notice. The State Insurance Fund, as the insurance carrier for Seaboard Marine Service Corporation, had paid to Peterson $ 3,410 compensation at $ 35 a week for the 97 3/7 weeks from January 22, 1950 to December 5, 1951. On January 16, 1952 the parties were advised that the carrier had expended $ 1,967.21 for medical disbursements. On or about April 15, 1954 the carrier gave its consent to a settlement made between Peterson and Waterman in the sum of $ 25,000
The $ 25,000 settlement fund was distributed:
For legal fees and expenses
of the third party suit $9,622.79
Reimbursement of the carrier
for compensation 3,410.00
Reimbursement of the carrier
for medical benefits 1,967.21
To Peterson 10,000,00
Thereafter, upon Peterson's claim for deficiency compensation alleging total disability, the Deputy Commissioner made an award against the employer and carrier in favor of the employee by granting maximum compensation
from January 22, 1950 to July 6, 1957, a period of 389 weeks at $ 35 a week, making a total of $ 13,615, less the $ 10,000 previously retained by Peterson out of the proceeds of the settlement of the third party suit and ordered the balance of $ 3,615 to be paid to the employee.
In computing the 'excess' compensation to which the employee was entitled, the Deputy Commissioner determined that the amount recovered by Peterson against Waterman was the $ 10,000 which had been retained by the employee.
The award recites in part:
'That the employer, Seaboard Marine Service Corp. and the insurance carrier, The State Insurance Fund, shall pay to the employee compensation as follows:
'389 weeks at $ 35.00 per week from January 22, 1950 to July 6, 1957, inclusive, which is $ 13,615.00 for permanent total disability, less the credit of $ 10,000.00 or a balance of $ 3615.00 which amount the employer and the carrier (are) Directed to pay forthwith to the employee in one sum, less attorney fee hereinafter provided, and to continue payments thereafter to the employee in bi-weekly installments at $ 35.00 per seek until otherwise ordered.'
The employer and carrier commenced suit in this court
on August 19, 1957 praying that the Deputy Commissioner
'modify such findings of fact, order, opinion and award as aforesaid and restraining him from enforcing said order and award herein pursuant to the provisions of the Act and granting credit on account of future compensation payments to the plaintiffs herein in the sum of $ 13,410.00 instead and in place of the sum of $ 10,000.00 heretofore granted by him * * *'
After issue joined, plaintiffs now move for summary judgment.
The employer and carrier contend that they should receive as a credit against the amount payable on account of Peterson's injury not only the $ 10,000 retained by him as above mentioned but also the $ 3,410 paid to him as compensation and returned to the employer and carrier out of the settlement fund.
The employee contends that the Deputy Commissioner was correct.
The plaintiffs must prevail.
The Act in part here pertinent ...