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11/01/71 Charles C. Bartges, v. E. D. Woodworth

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


November 1, 1971

CHARLES C. BARTGES, APPELLANT

v.

E. D. WOODWORTH, DEPUTY COMMISSIONER, UNITED STATES DEPARTMENT OF LABOR, STANDARD FIRE INSURANCE COMPANY, THE RAILWAY EXPRESS AGENCY, INC. 1971.CDC.235

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPELLATE PANEL:

Bazelon, Chief Judge, and McGowan, Circuit Judge, and Gourley,* Senior District Judge for the Western District of Pennsylvania.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GOURLEY

This appeal is from the grant of Motions for Summary Judgment sustaining the denial by the Deputy Commissioner of the United States Department of Labor, Bureau of Employees' Compensation, of claims made pursuant to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., as made applicable to the District of Columbia by the Act of May 17, 1928, 45 Stat. 600, D.C.Code 36-501.

The Deputy Commissioner rejected the claim that appellant sustained a ruptured disc while employed as a freight handler by the Railway Express Agency, Inc. on February 13 and 14, 1967 when his duties required the loading of freight car boxes weighing between 50 to 70 pounds. The Deputy Commissioner's rejection of the claim was based on the following reasons:

*fn1. failure to establish that the injury was sustained on the dates alleged;

2. failure to give written notice of the injury to the employer or Deputy Commissioner within thirty days;

3. failure to establish a causal relationship between the injury and the appellant's employment.

What the foregoing reasons fail to establish, however, is whether the Deputy Commissioner gave proper consideration to the possibility that appellant's failure to give timely notice as required by statute was excusable "for some satisfactory reason."1

In order that such a determination be made, we remand to the District Court with instructions to direct the Deputy Commissioner to determine whether any basis for excusing the failure to give timely notice exists. Thereafter, the District Court may make proper disposition of the Motions for Summary Judgment.

So ordered.

APPELLATE PANEL: FOOTNOTES

* Sitting by designation pursuant to 28 U.S.C. § 294(d) (1964).


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