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Powell v. Workmen's Compensation Board of the

January 23, 1964

THOMAS POWELL, PLAINTIFF-APPELLANT,
v.
WORKMEN'S COMPENSATION BOARD OF THE STATE OF NEW YORK, AMERICAN MUTUAL LIABILITY INSURANCE CO., AND O'BRIEN BROS. SHIPYARD CORPORATION, DEFENDANTS-APPELLEES. THOMAS POWELL, PLAINTIFF-APPELLANT, V. WORKMEN'S COMPENSATION BOARD OF THE STATE OF NEW YORK, AMERICAN MUTUAL LIABILITY INSURANCE CO., O'BRIEN BROS. SHIPYARD CORPORATION, LEE & SIMMONS LIGHTERAGE CO., INC., LIBERTY MUTUAL INSURANCE CO., NELSON ROCKEFELLER, GOVERNOR OF THE STATE OF NEW YORK, AND LOUIS LEFKOWITZ, ATTORNEY GENERAL OF THE STATE OF NEW YORK, DEFENDANTS-APPELLEES.



Author: Waterman

Before WATERMAN, HAYS and MARSHALL, Circuit Judges.

WATERMAN, Circuit Judge.

Plaintiff, a disappointed claimant in proceedings before the New York Workmen's Compensation Board, brought two separate actions in the United States District Court for the Southern District of New York, based upon the manner in which his claim for compensation had been processed by the Board.

In Action No. 1 plaintiff joined as defendants the Board, his employer O'Brien Brothers Shipyard Corporation, and his employer's insurance carrier, American Mutual Liability Insurance Company. Seeking damages for alleged violations of his civil rights, plaintiff grounded his complaint on Sections 1983 and 1985 of 42 U.S.C., which sections are part of the body of laws commonly known as the Civil Rights Statutes, 42 U.S.C. §§ 1981-1985. Plaintiff claimed that defendants had conspired to deprive him and had in fact deprived him of the equal protection of the laws, and his rights, privileges and immunities as a United States citizen, by means of unlawful and dilatory tactics designed to hinder the processing of his claim for workmen's compensation. Jurisdiction was based upon 28 U.S.C. § 1343, which expressly empowers federal district courts to entertain civil actions for violations of civil rights.

In Action No. 2 plaintiff named as defendants the same parties he had sued in Action No. 1, and also joined as defendants a previous employer of his named Lee and Simmons Lighterage Company, Inc., the Governor of New York, and the Attorney General of New York. For a first cause of action plaintiff alleged the unconstitutionality of Section 123 of the New York Workmen's Compensation Law, and sought a judgment declaring Section 123 unconstitutional, restraining the Board from enforcing Section 123, and declaring an order of the Board issued pursuant to that section to be null and void. Plaintiff based his second cause of action on 28 U.S.C. § 1343, and asked for a judgment directing certain of the defendants to pay to him what he alleged to be a proper amount of compensation.

The court below dismissed plaintiff's complaint in Action No. 1 on the ground that it lacked jurisdiction over the subject matter of the suit, because of plaintiff's failure to exhaust state remedies available to him. The complaint in Action No. 2 was also dismissed for lack of jurisdiction over the subject matter, on the ground that it failed to present a substantial federal question. Plaintiff's cross-motion for an order convening a three-judge court to hear and determine the action was denied. The decision is reported at 214 F.Supp. 283. Plaintiff has appealed from the judgments in both actions, and the cases have been consolidated on appeal. Since the two cases present different questions of law, we shall consider them separately, supplementing, where necessary, the brief facts which have already been set forth.

Action No. 1

The complaint in this action relates the long and involved story of plaintiff's efforts to secure workmen's compensation for a back injury which he sustained in 1957 while working for defendant O'Brien Brothers Shipyard Corporation.Apparently the immediate effect of the injury was to partially disable plaintiff, and he began to receive compensation at the rate of $15.64 per week as of February 28, 1957.

On April 8, 1958, while still being paid compensation at the above rate, plaintiff became totally disabled, he alleges, as a result of his 1957 injury. Defendants O'Brien Brothers Shipyard Corporation and its insurance carrier, American Mutual Liability Insurance Company, thereafter refused to pay plaintiff compensation at the increased rate of $36.00 per week, contending that plaintiff's total disability had occurred as the result of a previously compensated injury which he had sustained while working for another employer in 1941. Defendants did, however, continue to pay plaintiff compensation at the rate of $15.64 per week until May 19, 1958. On July 21, 1959, plaintiff underwent a spinal operation, the expenses of which defendants refused to pay.

On February 9, 1960, a referee of the New York Workmen's Compensation Board made an adjudication that plaintiff's disability was 50 per cent due to his 1957 accident and 50 per cent due to his 1941 accident, and that plaintiff was only 50 per cent disabled. Plaintiff appealed this decision to the Board, and on July 8, 1960, the Board, after a hearing, rescinded the referee's decision, reopened the earlier compensation case dealing with the 1941 injury, and restored the 1957 case to the referee's calendar for a hearing.

Hearings before a referee were thereafter held on October 28, 1960, February 17, 1961, and March 17, 1961, for the purpose of developing the record as to disability as a result of either or both accidents in question; but the matter was not resolved. Another hearing was held on May 5, 1961, and testimony was taken, but only as to whether liability could be apportioned to the 1941 accident. On July 21, 1961, the referee made a decision finally closing the 1941 case and directing that an early hearing be scheduled to determine the extent of plaintiff's disability and his earning capacity. A hearing for this purpose was later scheduled for September 7, 1961, but in the meantime plaintiff's employer and its insurance carrier had appealed the July 21, 1961 decision to the Board. The Board decided the appeal by holding that the 1941 case was properly open and by issuing an order of restoral. The hearing originally scheduled for September 7, 1961 was therefore canceled. At this time the Board asked plaintiff to make a formal request for the reopening of his 1941 case, but he refused.

On November 16, 1961, plaintiff made a demand on the Board for a formal hearing, and a hearing was scheduled for December 7, 1961. The referee at this hearing refused to take testimony as to plaintiff's disability and earning capacity, but granted plaintiff a temporary compensation award of $15.00 per week. Plaintiff's employer and its insurance carrier filed appeals from this decision on December 8, 1961 and December 29, 1961. Plaintiff alleges that as of the date of the filing of his complaint, March 27, 1962, no further action on his claim had been taken by the Board.

These delays and difficulties, according to the complaint, were not merely the result of natural administrative problems created by a complicated and heavily litigated claim; nor were they even due to honest errors on the part of those responsible for bringing the matter to final resolution. Rather, plaintiff alleges that he was hampered in his efforts to secure a just measure of compensation because of a successful conspiracy which the Board and the other defendants launched sometime after April 8, 1958, the date upon which plaintiff became totally disabled.

The purpose of this conspiracy, according to plaintiff, was to deprive him of the equal protection of the laws and his rights, privileges and immunities. Plaintiff has thus sought to take advantage of those sections of the Civil Rights Statutes found in 42 U.S.C. §§ 1983, 1985. Section 1983 gives a cause of action to any person who has been deprived of his constitutional rights, privileges or immunities under color of state law, while Section 1985 permits a ...


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