United States District Court, Northern District of Illinois, E.D
April 21, 1967
BUDSON COMPANY, CONTRACT 926 AND UNITED STATES FIDELITY & GUARANTY COMPANY, PLAINTIFFS,
ELMER E. OIKARI AND GEORGE A. BYRNE, DEPUTY COMMISSIONER, UNITED STATES DEPARTMENT OF LABOR, BUREAU OF EMPLOYEES' COMPENSATION, TENTH COMPENSATION DISTRICT, DEFENDANTS.
The opinion of the court was delivered by: Campbell, Chief Judge.
MEMORANDUM, CONCLUSIONS OF LAW AND JUDGMENT
The complaint herein seeks to review a compensation order
under the Longshoremen's and Harbor Workers' Compensation Act
as extended by the Defense Base Act. 42 U.S.C. § 1651 et seq.
All parties agree that there is no genuine issue of fact and
accordingly all have filed motions for summary judgment,
presenting the following questions of law.
1. The Application of the Defense Base Act
Claimant defendant was injured in his employment at Ladd Air
Force Base, Alaska. The Defense Base Act,
42 U.S.C. § 1651(a)(2) at that time provided coverage for "any
employment * * * upon any lands occupied or used by the United
States for military or naval purposes in any Territory or
possession outside the continental United States * * including
Alaska * * *."
Claimant's injury occurred May 8, 1959, five months after
Alaska was admitted to statehood. Had it occurred before
statehood while Alaska was still a territory there is no
question but that the claimant would have been covered by the
provisions of the Defense Base Act. The claimant, joined by
the Bureau of Employees Compensation, argues that the act
remained in full force and effect until the adoption by
Congress of the Alaska Omnibus Act of June 25, 1959, which act
amended the Defense Base Act by deleting the reference to
Alaska. Section 47(g) of the Omnibus Act provides in part:
"* * * with respect to injuries or deaths
occurring on or after January
3, 1959, and prior to the effective date of these
amendments, claims filed by employees engaged in
the State of Alaska in any of the employments
covered by the Defense Base Act * * may be
adjudicated under the Workmen's Compensation Act of
Alaska instead of the Defense Base Act." (Emphasis
The legal dispute centers on the meaning of the word
may in the Omnibus Act. Claimant and the Bureau of Employment
Compensation argue that during the six month interval between
Alaska statehood and the effective date of the Omnibus Act a
claimant had a choice of remedies, the Workmen's Compensation
Act of Alaska and the Defense Base Act.
Plaintiffs argue that after statehood the application of the
Defense Base Act terminated. They point out that under the
provisions of the Statehood Act the territorial laws in force
in the Territory of Alaska continued in full force and effect,
including the Alaska Workmen's Compensation Act. The use of
the key word may, according to plaintiffs was to approve the
result achieved by the Alaska Statehood Act, which made the
Alaska Compensation Act the sole remedy. Plaintiffs also point
out that in other states local compensation acts are the sole
remedy for employees on military bases. (40 U.S.C. § 290)
To rebut the position of plaintiffs, claimant and the Bureau
of Employee Compensation appropriately cite Senate Report No.
331, 86th Congress, 1st Session, page 21, U.S. Code
Congressional and Administrative News p. 1675, which
accompanied the Omnibus Act:
"* * * On January 14, 1959, the Alaska Industrial
Board announced that it would apply the Alaska
Workmen's Compensation Act in the Federal domain
in Alaska, effective January 3, 1959, the date of
statehood, under the act of June 25, 1936 (49
Stat. 1938), permitting such State action. A
potential workmen's compensation liability
exists, therefore, respecting employers of
workers on Federal property in Alaska under both
the Defense Base Act and the Alaska Workmen's
The purpose of the sections 40 and 42 is to
preclude such dual liability by deleting
reference to Alaska from the
Defense Base Act and the War Hazards Act and
adding a definition of "continental United
States" to the acts to make it clear that Alaska
comes within this term * * *.
Subsection (g) of section 47 makes it clear that
injuries occurring in employments subject to the
Defense Base Act in Alaska after January 3, 1959,
and until the effective date of amendments
provided by the first two draft sections may be
adjudicated under the Workmen's Compensation Act
I find the Senate report persuasive and consistent with my
own reading of the Act, particularly the construction of the
word may. I conclude, therefore, that claimant had a dual
remedy available to him during the six month period from
statehood to the effective date of the Omnibus Act. I find no
Constitutional barrier to the existence of such dual remedies.
(See Davis v. Department of Labor, 317 U.S. 249
, 63 S.Ct. 225,
87 L.Ed. 246.)
2. Claimant's Election of Remedies
Before filing his claim under the Federal Defense Base Act,
claimant filed a common law action which was dismissed and a
claim under the Alaska Compensation Act which was then barred
by lapse of time. Plaintiffs argue that the election to
proceed under the Alaska Act precludes his later proceeding
under the federal act. I find no support for this position.
Accordingly, I conclude that the election of the claimant to
proceed under the state compensation act is no bar to his
later recovery under the federal act. (Calbeck v. Travelers
Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368.)
3. Timely Filing of the Claim
Under the Defense Base Act a claim must be filed within one
year from the date of the injury. (33 U.S.C. § 913(a)) Within a
year after the injury, attorneys for claimant directed a letter
to the employer's insurance carrier who in turn transmitted it
to the Deputy Commissioner. Informal writings are liberally
construed in determining whether a claim has been filed.
(Beegan v. Brady-Hamilton Stevedore Co., 9th Cir.,
346 F.2d 857; Atlantic and Gulf Stevedores Inc. v. Donovan, 5th Cir.,
274 F.2d 794) I conclude that the letter transmitted by
claimant's attorneys to the employer's insurance carrier who
then transmitted it to the Deputy Commissioner gave adequate
notice that a claim would be filed under the act.
4. The Commissioner's Findings and The Evidence
Having established that the Commissioner had proper
authority to hear the claim, this Court in review of those
findings is limited to the determination of whether those
facts are supported by substantial evidence. The Deputy
Commissioner heard the testimony of the claimant as well as
the medical testimony offered on his behalf. Questions now
raised here by plaintiffs as to the permanency of the
claimant's disability or the cause thereof are best decided by
the initial trier of fact who had an opportunity to hear the
evidence and see the witnesses. My review of the record
indicates that there is substantial evidence to support the
Deputy Commissioner's decision, and conclude accordingly.
The motion of defendants Elmer E. Oikari and George A.
Byrne, Deputy Commissioner for Summary Judgment is granted.
Plaintiffs' motion for Summary Judgment is denied. The
complaint is accordingly dismissed, at plaintiffs' costs.
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