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Senator MORSE. You may proceed.
Mr. VICKERY. The fifth amendment that I would like to suggest to the act relates to section 21 of the Longshoremen's and Harbor Workers' Compensation Act, where the very limited review of compensation orders by Federal courts is provided for. The amendment which is needed here is to permit the Federal courts in their sound discretion to enter an interlocutory injunction staying the payments of compensation under an award, if they believe that the interest of justice insoever as all of the parties are concerned would best be served by such an interlocutory injunction.
At the present time, the act requires the Federal courts to find that irreparable injury would occur to the employer or to the insurance carrier before an interlocutory injunction can be issued.
There are some rare occasions when we have been able to obtain the stay of a part of a compensation award, pending an appeal, but the courts have interpreted and the Bureau and the Department of Justice have urged this, and continue to urge it, that the employer and the insurance carrier will not be irreparably injured within the meaning of this section of the act, unless it means that it would make them both have to go out of business or put them into bankruptcy.
Now, I don't believe that this was the real intention of the Congress when this section of the act was enacted, but the language is such and the court decisions are such that unless you can demonstrate that the employer and the insurance carrier are going to be bankrupt if they pay the compensation, it is virtually impossible to get a stay of payments under this section.
I think that we can leave to the sound discretion of our Federal judges whether or not an interlocutory injunction ought to be issued staying the payments of compensation, depending on what they feel is in the best interests of justice, under the facts as they exist in each individual case, and that this irreparable injury business needs to be
, taken out, if we are going to consider what is fair and just and equitable to all parties to this act.
Here again, the lung cancer case to which I referred a minute ago, where the Deputy Commissioner held without any support in the evidence that compensation had to be paid, the employer and the insurance carrier paid $6,500 in compensation to the beneficiaries of that longshoreman before they were able to get the erroneous decision rerersed by the courts.
And, of course, there was no possibility of recouping this, and this is the type of case where I think in the interest of justice, an interlocutory injunction could and should have been issued, because of the meritoriousness of the appeal.
Senator MORSE. May I have the citation of that case, too? Mr. VICKERY. Yes, sir. (The citation referred to follows:) Strachan Shipping Company v. Calbeck, D.C. Tex., 1961, 190 F. Supp. 255 aff'd 5 Cir., 1962, 306 F.2d 693, cert, denied 372 U.S. 954, 9 L.Ed.2d 978, 83 S.Ct. 950.
Mr. VICKERY. The sixth amendment that I would like to propose to the act deals with some amendments to be made in the time periods allowed in section 14 of the act with respect to the penalty provisions. If a compensation order is entered, it must be paid within 10 days, under the present wording of the statute, or a 20-percent penalty is owed to the employee, unless an injunction is obtained staying these payments as provided for in section 21 of the act.
This is simply too short a period of time to give the employer and the insurance carrier any real opportunity at all to seek an injunction from a court, when they feel that this is in order, and the deputy commissioner's order is not in accordance with law.
For example, the practice in my area for the last several years has been to mail compensation orders on Thursday, so they are received on Friday. The appeal has to be filed and a hearing set on the injunction on the following Monday.
Service has to be made on the Government and the deputy commissioner on that same Monday, in order to get a hearing and
a decision by the following Friday. As a practical matter, it is virtually impossible to accomplish this, to obtain a judge or to get the suit filed, and some relief needs to be provided insoever as this is concerned.
We have instances where we have had to fly marshals from Houston to other parts of the State to make service on a deputy commissioner who was down in Corpus Christi, on one particular occasion. We have also had to go to Tyler, and no attempt is made by the Department of Justice or the Bureau of Employees' Compensation, either one, to cooperate with you to give you your day in court on this injunction.
As a matter of fact, they put forward every possible technical obstacle that they can think of to defeat an injunction, regardless of the merits of your appeal.
At least, this has been my experience in my area, and I don't think they are discriminating against my part of the country. So some time is needed, additional time is needed, if here again we are interested in trying to do justice to all parties who are related to this act, and not just to one particular party who is concerned.
Senator Morse. How long a period, Mr. Vickery, would you have the amendment extend the time?
Mr. VICKERY. Your Honor, I would suggest that it be extended to at least 20 days. The courts, as you undoubtedly know, the Federal courts, are so crowded, to try to get a judge on Monday to set a case for you or a hearing on the following Friday, and have the hearing and make his decision on that same Friday, it is just almost an insurmountable obstacle as a practical matter.
Maybe 10 days was adequate in 1927, but I would say a minimum of 20 days, and preferably 30, and I don't think that this would do any violence to the whole compensation scheme.
The seventh amendment or amendments that I would like to suggest that this committee consider relate to section 19 of the act, dealing with procedures in respect to claims. First of all, some changes are needed in this section to give the employer or its insurance carrier or the self-insurer the right to take a prehearing deposition of the claimant, or of the beneficiaries in order to develop enough information to be able to adequately determine whether any formal hearing on the claim is needed.
As you can see, it is rare when a formal hearing is held. Only 2 percent of the claims reach this stage. But the procedures in handling these claims could be substantially expedited if the employers were given an opportunity to take a deposition of the claimant to find out just exactly what he was claiming, what doctors he had seen, or in
the case of beneficiaries, frequently some very touchy questions on common law marriages and things of this nature have to be carefully investigated to determine whether the proper beneficiaries are before the deputy commissioners or not, and this procedure would be very helpful in trying to determine the validity of particular types of claims, and I think would in many instances result in no formal hearings actually having to be held, but at this time, there is no procedure of this sort insoever as that is concerned.
Additionally, the 10-day notice for a formal hearing should be extended to at least 30 days, as 10 days is an unreasonably short period of time in which to try to prepare for a formal hearing.
A formal hearing under the Longshoremen's Act is equivalent to a trial of, say, an automobile collision case at the district court level, and therefore, it needs to be carefully handled.
The issues are not as complex, most of the formal hearings last less than 1 day, but the 10 days allowed for the preparation of these formal hearings is an unreasonable short period of time, and I would think that it would do no violence to the administrative procedures under the act if a period of at least 30 days was afforded for this basis.
The section also allows the deputy commissioner only 20 days in which to issue his order, after the hearing has been held. This, too, as a practical matter, is too short a period of time, and it should also be extended, for as a practical matter, there are not to many compensation orders, in our area at least, that are issued within this period of time.
So this section of the statute has been substantially ignored. I don't know that it is of great significance, but it would seem to me that a more reasonable period of time ought to be inserted in the statute.
Senator MORSE. You suggest 30 days or 60.
Mr. VICKERY. I would suggest 30 to 60 days. Perhaps the Bureau could give you a better estimate of this period of time, but the days, the period of time allowed in the act, I put this in to show you it is not just a one-way street.
The employers are not just asking for additional time. I think that the deputy commissioners also need it in this particular instance.
Then another amendment in the act needs to be inserted to require the deputy commissioners to set a hearing upon the request of a party at interest. I am a little bit at a loss to understand just exactly how this could be worded, but the principal difficulty we have had in our area has been in getting the deputy commissioner to set a hearing to modify a previous compensation order that has been entered.
Section 22 of the act expressly provides that such applications for modification can be filed, and that the deputy commissioner shall hold a hearing on them.
However, we find that most of the deputy commissioners that we have had in our area, the present one excepted, since he has only been there a few weeks, and we haven't had any real experience under him, have been to let many months go by, in many instances, where the employer and the insurance carrier are unable to get a hearing for a modification.
In fact, one employer and insurance carrier went to a U.S. district court and had to obtain an order mandamusing the deputy commissioner to hold a hearing under section 22 of the act. I think that, if the act were amended to require the deputy commissioner to give a hearing on an application for modification within a reasonable time after it is filed, say 30 to 60 days, or even 90 days, and, if he does not set a hearing, and rule on it within the period of time set in the statute, then the employer ought to be permitted to stop compensation until such time as the decision has been made as to whether the order ought to be modified.
I believe, with this provision, that would permit the employer and carrier to stop compensation, if the deputy commissioner did not hold a hearing and did not rule on it, would resolve this problem rather readily. But apparently, once they have entered a compensation order, and the man is receiving his compensation, they are not too interested for the most part in reconsidering their orders on applications for modifications.
The next amendment I should like to propose is to section 13 of the act, and this would be to require that a claim be filed for compensation on the form which has already been provided by the Bureau of Employees' Compensation. The purpose of this amendment is to make clear and certain just when a claim for compensation, either for an injury or a death, has actually been filed.
At the present time, the courts have held, and the Bureau and the deputy commissioners have followed this, that an informal note or memorandum from a claimant or a letter from his attorney, may constitute a claim for compensation, and this usually happens when the man comes back several years later to seek compensation, and has not filed a claim on the Bureau's proper forms.
The employer and the insurance carrier have closed their file, because they received no notice from the deputy commissioner that a claim had been filed. Several years later, they come back in and the man asserts that he is still having trouble as a result of this injury. The deputy commissioner goes through his file, and if he can find any sort of thing in writing from the man or from his representative which indicates that he wanted to continue his claim, then this is held to constitute a filing of a claim within 1 year of the date of the injury.
a I think that the act ought to be amended to make it definite and certain that these informal writings or memorandums contained in the file do not constitute a claim, and that the claim must be filed within whatever time is set in the statute, on the form which the Bureau has provided. This is already contained in the regulations of the Bureau, and I think the amendment to cure this deficiency and these inequities would be very simple insofor as the act is concerned.
The ninth amendment to it I should like to suggest be considered relates to section 7, insofar as medical benefits are concerned.
This would permit the employer to have an examination by a doctor of its own selection. As I indicated earlier, at this time, the employee selects his doctor from a panel of doctors approved by the deputy commissioner. But he does not have to accept this treatment, but can get treatment from a doctor of his own selection, even though unapproved by the deputy commissioner.
In these ca ses, the employer should be premitted to have an examination by a doctor of its selection, and to stop compensation payments if the employee declines to submit to this sort of an examination.
The act now provides that if the employee unreasonably refuses medical treatment, that the deputy commissioner can terminate his
compensation, but in 19 years of experience with this act, I have never seen a deputy commissioner hold that an employee has unreasonably refused to submit to medical treatment, so the language in the act now is in fact in actual practice, in our area at least, meaningless, and so I suggest that if the employee is not going to take treatment from a doctor on the panel of doctors approved by the deputy commissioner, that the employer should be entitled to a doctor of its own selection for an examination.
The 10th amendment that I should like to suggest is to section 8(i) of the act. This relates to the agreed settlement of cases, and I think that serious consideration should be given insofar as this section of the act is concerned for the permitting of lump-sum dispositions for more cases than is now possible under the limited interpretation of this section of the act given by the Bureau of Employees' Compensation.
It is interpreted in such a strict manner at this time that only a very few agreed settlements are ever submitted or ever approved, if they are in fact submitted to the Bureau in Washington for their approval.
I believe the act could be much improved, both from the employer and the employee's standpoint, if revisions were made insofar as these agreed lump-sum settlements of the case are concerned.
Senator Morse, I appreciate very much your affording me all the time that you have given me this morning. I apologize for the length of my statement. I have tried to keep it as brief as I could, and I am really embarrassed to see the amount of time I have consumed, but I deeply appreciate your attention and your consideration.
Senator MORSE. Mr. Vickery, the time that you have received from the committee you are entitled to, and your clients are entitled to. I commend you for the presentation of a very able statement to this committee. We may find it necessary, as we analyze your statement, to ask you for some supplemental material. If we do, you will hear from counsel in writing, and you will have adequate time to prepare it.
Thank you very much.
Mr. VICKERY. I would be pleased to attempt to do anything that the committee or its counsel thought might be helpful in arriving at what we are all seeking, and that is a fair and reasonable result insofar as this bill and the rights of the parties affected by the bill are concerned. Senator MORSE. Thank you very much.
. May I have the attention of Mr. Scanlan, the attorney representing the Philadelphia Marine Trade Association, the American Merchant Marine Institute, and the National Association of Stevedores-if it is satisfactory to you, because I understand you have another engagement early this afternoon, the acting chairman will be very glad to take your testimony at this time, so you will be free for your afternoon appointment.
Mr. SCANLAN. Thank you very much, Senator Morse.
Senator MORSE. Mr. Scanlan is accompanied by Mr. Casey of the American Merchant Marine Institute, and Mr. Giesen, executive director of the National Association of Stevedores, and general manager and counsel of the Maritime Association of the Port of New York.
Gentlemen, we are glad to have you associate yourselves with Mr. Scanlan. Feel perfectly free at any time to interrupt the hearing and