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The first employee, fortunately was able to secure a continuity of relatively steady employment. Unfortunately, the second employee because of lack of work in the industry could not secure a continuity of steady employment.
In our opinion, the humanitarian concept of the Workmen's Compensation Act should be the second employee would also be entitled to the same amount of compensation for the permanent partial disability suffered, or in the event of a permanent total disability irrespective of the earnings, why should any employee claimant be penalized relative to a partial permanent disability or a total permanent disability rating, where the employee as an individual, has absolutely no control over the continuity of employment in the shipbuilding, repair, conversion, or ship demolition industry in these United States ?
We recognize that in any social welfare legislation, there will always be what will be considered inequities. These inequities are to be expected to a certain degree and extent, but we do not believe that there should continue to be what we consider extreme unjust inequities that now prevail relative to Workmen's Compensation, under the present Longshoremen's
and Harbor Workers' Compensation Act. As a layman, I, of course, may be in error in some of my interpretations of the compensation payment. And, if so, I naturally stand corrected. Assuming other interested parties on the other side of the fence may propose amendments or, revision to the provisions of the Federal Longshoremen's and Harbor Workers' Compensation Act, in regards to the inalienable rights of an injured employee who has suffered a disability or there has been a fatality to deny the right of the widow, widower, or dependent children, to seek redress and equitable compensation under provisions of section 33(a) which guarantees this right under the present act to sue a third party in the courts of competent jurisdiction within this Nation.
I believe I may say without any fear of equivocation this distinguished, honorable subcommittee, would never consider or entertain, and the Senate of these United States permit, any amendments to the aforementioned provisions, section 33(a), that would prohibit in any manner, shape, or form the right of a disabled claimant, or in the event the injury causes death, abrogate the rights of his or her dependents or beneficiaries from this protection as is presently contained in the act. We would adamantly oppose any changes in the provision of section 33(a).
We are in a position to furnish this distinguished Senate subcommittee documented evidence that is undisputable, unrefuted regarding third party liability cases in courts of competent jurisdiction of admiralty law, case histories that we will introduce as evidence, shocking examples of disabling injuries, fatalities that occurred during the course and scope of an employee's work that emphasizes the human sufferings, hardships, and duress, that unfortunately have taken place within the shipyards of this Nation, without the right of third party liability, the disabled claimant or his dependents in the event of a fatality having the right as presently contained under section 33(a). Many of these disabled shipyard workers, or in the event the injury causes death, the dependents in many instances would be living in poverty, and would be placed on the welfare rolls in various States throughout these United States.
Senator MORSE. Let the record show that the Chair will receive into the record any subsequent memorandum that you want to submit for the record dealing with the comments you make in which you say that you will be prepared to submit specific documented evidence in regard to third party liability cases. I would like to have that memorandum and material submitted for this record by January 5.
Mr. CUMMINGS. I thank you for this privilege, Mr. Chairman, and I will certainly submit the documented case histories, and I also would like to exercise the privilege of submitting a rebuttal brief to some of the previous witnesses here today.
Senator MORSE. Yes, I was going to say when you finished that you have the same privilege as the other witnesses to submit a rebuttal brief.
The reason that I asked for this memorandum by January 5 is that it should be made part of the record so that the other parties of the hearing will have the opportunity to make any replies they want by the time we close the hearing.
Mr. CUMMINGS. Yes, Mr. Chairman. Thank you.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,
Oakland, Calif., January 4, 1968. SUPPLEMENTAL STATEMENT OF WILLIAM G. CUMMINGS, BUSINESS MANAGER,
LODGE No. 10
Hon. Senator WAYNE MORSE,
DEAR SENATOR MORSE: Pertaining to the subject matter of Senate Bill 2185 to amend the Longshormen and Harbor Workers' Compensation Act to improve its benefits and for other purposes, in the matter of your request on November 29, 1967 when I appeared before the Subcommittee hearings and you, Senator Morse, were the Acting Chairman, during the course of my presentation you requested that I submit to the Senate Subcommittee the documented evidence in regards to third party liability cases in courts of competent jurisdiction of Admiralty Law no later than January 5, 1968.
Enclosed are some of the documented cases we are submitting at this time in compliance with your request. We have a number of additional cases that are being researched at the present time and are respectfully requesting an extension to submit these additional cases. Unfortunately, because of the holiday season, I am having some delay in obtaining the additional documentation of these third party liability cases through the research of some of the Attorneys and Law firms that processed these cases.
We are respectfully requesting, Senator Morse, that the Senator Subcommittee grant us an additional extension of time, approximately seven days, to January 12, 1968 to furnish the Senate Subcommittee with the additional cases that are being researched at the present time.
I sincerely and respectfully apologize to you, Senator Morse, and the Subcommittee for the delay in forwarding all of the information in compliance with your request by January 5, 1968.
Respectfully requesting your consideration of our request, I remain, with best wishes and kindest regards. Sincerely yours,
WILLIAM G. CUMMINGS,
Business Manager. Ruth Pritchard v. United Towing Company, Federal District Court,
San Francisco, No. 20,211B On May 31, 1963 plaintiffs husband, a shipyard worker, was killed by a violent explosion while working on libelee's Barge 20. The employer (Shipyard) had not been notified of the inflammable cargo of fuel in the bunkers, nor had a cleaning and flushing job been ordered. Making the barge safe for welding was estimated to have been approximately $3,000.
The widow received $116 a month pension under the Act. The Act provides this sum for her life subject to termination within 2 years of remarriage. In this instance the widow was but 41 years of age.
Subsequently, the widow 3rd party settlement grossed a sum of $75,000, which after paying attorney's fees and liens for benefits paid under the Act, netted her the sum of $41,938.95. The net sum was invested in Mutual Funds which had paid her a monthly sum in excess of $225 a month (Simple bank interest of 5% would pay her $175 a month). Frank Tucker v. Sheffield Tankers, United States Federal District Court
No. 27543 (Consolidated) Plaintiff suffered severe body concussion from an explosion in the engine room of the S. S. Jeannie, owned by Sheffield Tankers, Incorporated. The fire and explosion was due to unsafe working conditions of the vessel then undergoing repairs at Todd Shipyard plant in Alameda, California.
The injuries were serious to the extent that this man was rendered unemploy. able. The court, in the 3rd party suit awarded this man $67,951.44, which sum was disbursed as follows: Court costs
$1, 954. 72 Attorney fees.
22, 020. 48 Lien for medical bill.
2, 226. 27 Repayment for benefits paid by Travelers Insurance Co.
1, 317, 79 Net to client.---
39, 967. 63 Plaintiff invested $30,000 in Mutual Funds and has received $250 a month since 1963 with the principal of his investment still intact (Under the Act this man would receive monthly benefits of but $85 a month, an amount less than bank interest).
Abram Bittle y. Sheffield Tankers, Federal District Court, San Francisco
#27543 (Consolidated) Shipyard worker injured while working on board vessel by negligently caused fire and explosion. Man received weekly compensation and medical treatment under the Longshoremen and Harbor Workers' Act.
Subsequently received $4,012 from negligent vessel by way his third party suit. After deducting for attorney fees and lien imposed by carrier, he netted $2,217.65 which repaid him for actual wage lost and compensated him in part for pain and suffering.
Robert Wilcox v. Sheffield Tankers #27543 (Consolidated) Claimant sustained damage to right eye. The judgment rendered netted claimant approximately $5,000. The sum so received was less than afforded by the Act and the Deputy Commissioner awarded an additional $5,000, with $10,000 being the value of the permanent partial award. The Commissioner used different factor in approaching the measurement of damage than did the Federal Judge.
This demonstrates the fact that in no event does the Claimant receive less than the amount allowed under the Act.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS & HELPERS LODGE No. 10,
Oakland, Calif., January 11, 1968. Hon. Senator WAYNE MORSE, Senate Office Building, Washington, D.C.
DEAR SENATOR MORSE: Pertaining to the subject matter of Senate Bill 2485, my letter of January 4, 1968, please find additional cases in regards to third party liability.
Thank you for allowing me an extension on submitting these cases.
WILLIAM G. CUMMINGS,
The attached are four of our third party suits in recent years. Three of them pertain to the explosion aboard the Jeannie which occurred on January 29, 1957. The issue of liability alone was settled in a gross stipulated award by the Court by which each injured claimant was to receive 67% of all probable damages. Some of the individual claims were settled and some of them were tried in the United States District Court to determine the issue of total provable damages and at that time 67% of the total was the actual amount of money awarded the claimant.
1. John E. Polk.-U.S. District Court, Northern District of California, Southern Division--In Admiralty, No. 27543 (Consolidated): Gross award------
$45, 437. 33
Lien of Travelers Insurance Co---
4, 754, 07 2, 126. 63 13, 494. 60
Net to claimant.---
25, 062. 03 Vr. Polk suffered severe burns on the right and left hand and on his right ear.
2. Billie B. Rawson.-U.S. District Court, Northern District of California, Southern Division-In Admiralty, No. 27543 (Consolidated): Gross award.-
Lien of Travelers Insurance Co.---
780, 82 3, 276. 74
Net to claimant------
7, 645. 71 Mr. Rawson suffered traumatic exacerbation of pre-existing neurosis incurred as a result of submarine duty during World War II. Mr. Rawson was hospitalized at the Veterans Hospital for psychiatric care and was still under medical treatment at the time of settlement.
3. John Allison.-U.S. District Court, Northern District of California, Southern Division-In Admiralty, No. 27543 (Consolidated): Gross award--
$38, 470. 59
Lien of Travelers Insurance Co--
538. 41 13, 213. 67
Net to claimant (including interest on judgment) ---------- 25, 078. 06 Mr. Allison suffered a slight depressed skull fracture on the right parietal region with the contention that he may at some future time, suffer epileptic fits. (None had occurred at the time of trial).
4. Carl J. Olsson.-0188on v. Westfal-Larsen & Co. (and cross action v. Schirmer Stevedoring Co.) U.S.D.C. No. 40,164 : Gross Recovery-
1, 283. 89 1, 997.66
Net to client.--.
14, 718. 45 Mr. Olsson suffered a fracture of the right leg while working aboard the M/S Porsanger when a line snapped loose and wound around his leg striking him down to the ground. Mr. Olsson was about 61 at the time of the accident.
Mr. CUMMINGS. Referring to S. 2485, “Users Charges, Safety Program,” section 14: In the event the users charges for a safety program are not contained in the final amendments to the present Longshoremen's and Harbor Workers' Compensation Act, we believe that the Congress of the United States will then have the responsibility of appropriating the necessary monetary funds that will be totally adequate to administer section 41 of the act, in accordance with and in
compliance with the U.S. Department of Labor, Bureau of Labor Standards, safety and health regulations for shipbuilding, ship repairing, and shipbreaking.
The original Federal safety and health regulations for ship repairing were certified by the hearing examiners to the Secretary of Labor on October 6, 1959. Since that time there have been additional amendments to include the Federal regulations, safety and health regulations for shipbuilding, and Federal safety and health regulations for shipbreaking, all in accordance with proper amendments to section 41(a) of the Federal Longshoremen's and Harbor Workers' Compensation Act.
At the present time, unfortunately, a large number of the U.S. Department of Labor, Bureau of Labor Standards, regional offices, that are empowered to enforce compliance with the aforementioned safety regulations are understaffed, because of lack of the adequate monetary funds needed to hire additional competent, qualified maritime safety consultants, inspectors, and industrial 'hygienists. The present staff of the regional office of the U.S. Department of Labor, Bureau of Labor Standards, maritime safety consultants that we are familiar with on the west coast are doing a very competent and highly commendable job in administering the Federal safety and health regulations for ship repairing, shipbuilding, and shipbreaking, even though they are drastically understaffed.
In the event in the final amendments to the Federal Longshoremen's and Harbor Workers' Compensation Act, administration expenses, users charges, section 15 of S. 2485, are not levied against the insurance carriers on a prorated basis, we then believe it would be the responsibility of the Congress of these United States to appropriate the necessary adequate monetary funds in order to increase the current staff of the various regional offices of the U.S. Department of Labor, Bureau of Employees Compensation, having the jurisdiction to administer the Federal Longshoremen's and Harbor Workers' Compensation Act to obtain additional competent personnel.
From the experience that we have on the west coast, in particular the State of California, the dedicated, highly competent Federal Deputy Commissioners of the U.S. Department of Labor, Bureau of Employees Compensation, are doing a highly commendable service in the administration of this act.
Unfortunately, because of the lack of adequate salaries being paid to Deputy Federal Commissioners, we find that the offices are understaffed, and that many of these Deputy Commissioners, if not all, have workloads in the processing of these workmen's compensation cases that with all their skill and ability, they cannot possibly keep up with the processing of cases. It is absolutely imperative that this subject matter be completely and thoroughly investigated by Federal agencies of competent jurisdiction.
I know, Mr. Chairman, that I do not have to request this subcommittee of the Senate committee to give all the consideration to the recommendations the amendments and proposals that are contained in this statement for and on behalf of the organizations I represent. I believe, and I know, this committee will do this. I believe, and I know, the Senate and the Congress of these United States will do this.