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Insurance Co. v. Beatrice Gee Widow of John I. Gee and Director

March 14, 1983

THE INSURANCE COMPANY OF NORTH AMERICA, PETITIONER
v.
BEATRICE GEE [WIDOW OF JOHN I. GEE] AND DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS.



Insurer petitions pursuant to 33 U.S.C. § 921(c) (1976) for review of decision of the Benefits Review Board granting claimant's motion to dismiss the insurer's appeal from the decision of an Administrative Law Judge awarding claimant disability and death benefits under the Longshoremen's and Harbor Worker's Compensation Act, 33 U.S.C. §§ 901-50 (1976 & Supp. II 1978). Affirmed.

Author: Meskill

Before:

MANSFIELD and MESKILL, Circuit Judges, and NEAHER, District Judge.*fn*

MESKILL, Circuit Judge:

On November 19, 1981, an Administrative Law Judge (ALJ) ordered The Insurance Company of North America (INA) to pay disability and death benefits to Beatrice Gee, widow of John Gee, pursuant to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-50 (1976 & Supp. II 1978). INA's appeal to the Benefits Review Board (Board) of the United States Department of Labor was dismissed as untimely. INA brings this petition under 33 U.S.C. § 921(c) (1976) for review of the Board's order. We affirm.

John Gee worked at the General Dynamics Corporation in New London, Connecticut, from 1957 until May 25, 1979, when he was hospitalized and diagnosed as having small cell undifferentiated cancer of the lung. Upon learning of his disease, Gee filed an insurance claim with his employer pursuant to LHWCA § 12(a), 33 U.S.C. § 912(a) (1976). Gee never returned to work. He died on October 11, 1979. After his death, Beatrice Gee filed a claim for disability and death benefits. 33 U.S.C. § 913 (1976). After a hearing, the ALJ found that Gee's illness and death were caused by a combination of his cigarette smoking and his exposure to asbestos during the course of his employment. The ALJ ordered the employer's insurance carrier, INA, to pay Beatrice benefits for her husband's total disability, LHWCA § 8(a), 33 U.S.C. § 908(a) (1976), and subsequent death, LHWCA § 9, 33 U.S.C. § 909 (1976), together with attorney's fees and expenses.

The ALJ's decision and order were filed on November 30, 1981, in the Office of the Deputy Commissioner, Office of Workers' Compensation Programs, United States Department of Labor. By December 9, copies of the decision and order had been served on Beatrice Gee and her attorney, the employer and its attorney, and INA. The attorney of record for INA, however, was not served until March 4, 1982. INA filed a notice of appeal with the Board dated April 1, 1982.

Beatrice Gee moved to dismiss the appeal, arguing that the ALJ's compensation order became final and unreviewable on December 30, 1981 -- thirty days after it was filed. Section 21(a) of the LHWCA, 33 U.S.C. § 921(a) (1976), provides:

A compensation order shall become effective when filed in the office of the deputy commissioner as provided in section 919 of this title, and, unless proceedings for the suspension or setting aside of such order are instituted as provided in subdivision (b) of this section, shall become final at the expiration of the thirtieth day thereafter.

INA opposed the motion on the grounds that the ALJ's order had not been properly filed until March 4, 1982, when a copy of the order was served on its attorney.

On June 28, 1982, a three-member panel of the Board dismissed INA's appeal as untimely. A majority of the panel reasoned:

Section 802.205 of the Board's regulations provides that failure to file a timely appeal

shall foreclose all rights to review by the Board with respect to the case or matter in question. Any untimely appeal will be summarily dismissed by the Board for lack of jurisdiction.

The Board, therefore, lacks jurisdiction of this case because the decision and order appealed from became final on December 30, 1981, thirty days after the date of filing in the Office of the Deputy Commissioner. See American Steamship Company v. Nelson, 1 BRBS 30 (1974) and cases cited therein; see also Pittston Stevedoring Co. v. Dellaventura, 544 F.2d 35, 42 (2d Cir. 1976), aff'd ...


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