Marshall
Marshall v. Pletz
Opinion
Lead Opinion
Healy, J.
This is a proceeding to review a compensation order made under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq.
Appellee Pletz, a longshoreman in the employ of McCormick Steamship Company, was injured November 12, 1935, while working in the' unloading of a vessel on navigable waters at Portland, Oregon. On April 20, 1937, he filed a claim for compensation. The claim was controverted by the insurance carrier on the ground that no payments of compensation had been made and the claim was not filed within one year of the injury as prescribed by § 13(a) of the Act. 1 The deputy commissioner sustained the controversial and rejected the claim. Appellee then sought review under the appropriate provision of the Act, and after hearing the district court remanded the matter with directions to make specific findings concerning an asserted waiver or estoppel on the part of the insurance carrier.
Upon remand there was a hearing before the deputy commissioner at which considerable evidence was taken. The commissioner found that the claimant “has not been misled or overreached by the employer or insurance carrier,” and his claim was again…
Dissenting Opinion
Haney, J.
(dissenting).
I am unable to agree with either the reasoning or result set forth in the majority opinion for the following reasons: Where, as here, the carrier promptly tenders a specified sum which is refused by the claimant for any reason, the claimant has a year from the time of his injury within which to reach an agreement with the carrier as to amount of compensation, or, failing that, to file a claim.
The effect of the majority opinion is to amend the statute so that the one-year period runs from the date of the “last tender” rather than from the date of the “injury” as is specified in the statute. The result of such amendment is to open, for each claimant, a way to indefinitely suspend the statute by merely failing to accept a tender. Such construction does not contribute to “prompt” disposition of the matter, an aim said in the majority opinion to be desired.
The majority further says: “For the purpose of the limitation, tender must be held the equivalent of payment”. How there can be payment of a claim, the amount of which is not yet determined, is not clear. However, if the tenders were payment, then it is clear that claimant has been paid an amount in full…