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payments is issued by a court under Section 21. This is much too short a time to give the employer any opportunity at all to seek an injunction from a court when he feels that the deputy commissioner's order is not in accordance with law. The practice in my area for the past several years has been to mail the compensation orders from the office of the deputy commissioner on a Thursday so that they are received on a Friday and the ten day period will have run by a week from the Sunday after its receipt on Friday. Since three days notice of a hearing on the injunction has to be given to the deputy commissioner and to the employee, it means the appeal must be filed from the compensation order received on Friday and service obtained by the following Monday so that a hearing can be held on the following Friday with respect to an injunction. Obtaining a court or a judge to hear the injunction and getting a decision from him on any sort of a realistic basis within this ten day time limit is almost impossible. In at least one instance we had to fly a U.S. Marshall from Houston to Corpus Christi to serve the Deputy Commissioner late at night in an attempt to get such an injunction. No cooperation is given by the Bureau or the Department of Justice as might be expected when only ten days are allowed, but in fact both pose every possible technical and procedural obstacle to defeat an injunction regardless of the merits of the appeal.

7. In Section 19 of the Act relating to procedures in respect to claims, some charges are needed to give the employer and its insurance carrier the right to take a pre-hearing deposition of the claimant or of the beneficiaries in order to develop enough information to be able to adequately determine whether a formal hearing is even needed.

The ten days notice for a formal hearing should be extended to at least 30 days, as ten days is an unreasonably short period of time in which to try to be prepared for any formal hearing.

The twenty days allowed in Section 19(c) to the deputy commissioner within which to issue his order is also too short and as a practical matter very few compensation orders are issued within this period of time in our experience.

Something also needs to be done to require the deputy commissioner short of a mandamus proceeding in the Federal Court to set a matter for hearing upon the request of a party at interest. The principal difficulty that has been had in our area is in getting the deputy commissioner to set a hearing on an application for modification of a compensation order because of a change in condition or a mistake in a determination of fact under Section 22. Many months go by in many instances and the employer is not able to get a hearing and on one occasion in this area they have been even had to go to a Federal Court to get an order directing the commissioner to give them a hearing on an application for a modification of a compensation order. This section of the Act should be 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, and if he does not set a hearing and rule on it within this period of time, the employer should be permitted to stop the payment of compensation under the compensation order. Apparently as long as compensation is being paid to the man the deputy commissioner is not particularly interested in setting another hearing and determining whether further compensation is owed although he is required by Section 22 of the Act to do so and although these applications for modification are relatively scarce in our experience.


Section 13 of the Act relating to the time for the filing of claim, should be amended to require that a claim be filed on the form already provided by the Bureau of Employees' Compensation. The purpose of such an amendment being to avoid the difficult situations which are posed in many instances where letters from the claimant, letters from his attorney, notations in the file, etc. may be held to constitute a claim within the meaning of this section. And these holdings have been reached even though the deputy commissioner has sent the claimant and in some instances the claimant's attorneys, copies of the proper form to be used in the filing of a claim. It is not done and then they come back possibly many years later and claim that some correspondence in the file constitutes a claim, and wherever there is any correspondence of any significance in the file at all, it is held to be a claim. This means that many old claims are reopened well after the period of limitation. The only way any certainty of any kind can be had in these matters is to know that when the one-year limitation or whatever

period of time is placed in the Act has passed, that unless a claim has been filed on the proper form provided by the Bureau that there is no further exposure to the employer for compensation benefits. When the Act is subject to these indefinite interpretations of informal writings, in most instances never even seen by the employer or the insurance carrier at the time they are sent to the deputy commissioner, it leads to much litigation and difficulties and encourages the filing of fraudulent claims. If it is considered that the one-year period of time is too short in which to expect claims to be filed then it ought to be enlarged, but it should be made definite that nothing constitutes a claim for compensation within the meaning of this section unless it is filed on the claim form already provided by the regulations of the Burau of Employees' Compensation.

Section 7 of the Act relating to medical benefits should be amended in such a way as to permit the employer to have an examination by a doctor of its selection. The injured employee now has a free choice from a panel of doctors approved by the deputy commissioner and if he refuses medical care and attention from this panel and seek treatment on his own from an unapproved doctor, the employer should be permitted to have an examination by a doctor of its selection and to stop compensation payments if the employee declines to be examined. The Act now provides that the employer can terminate payments if the employee unreasonably refuses such medical treatment but as a practical matter the deputy commissioners will not permit the payment of compensation to be stopped almost regardless of what doctor the man may be using. Additionally, when the injured employee seeks an operation or some other surgical procedure from a doctor of his own selection, the employer should be permitted to have a doctor present at this operation if it desires to do so, and if not so permitted the cost of the surgical procedure should not be recoverable.

10. Consideration should be given to amending Section 8(i) of the Act relating to agreed settlements in such a way as to permit agreed lump sum dispositions of more cases than is now possible under the limited interpretation of this section of the Act by the Bureau of Employees' Compensation. It is interpreted in such a strict manner that only very few agreed settlements are either submitted or approvedl.

CONCLUSION I am confident that this Committee is primarily concerned in seeing that the Longshoremen's Act is not only fairly and reasonably applied insofar as injured employees are concerned, but that it is also fair and reasonable in all its applications to employers as well. This equitable result cannot be achieved without both substantial eliminations and changes in the proposed amendments in S. 2185 and the addition of many other amendments to eliminate the injustices and inequities in the application of the Act insofar as the rights of employers are concerned.

Mr. VIOKERY. As I have indicated, I am with an admiralty law firm in Houston and Galveston, Tex., and I have specialized in admiralty and maritime law throughout the course of my 19 years as an attorn

Included in this has been my dealing on almost a daily basis with the Longshoremen and Harbor Workers' Compensation Act, and with all facets of the litigation that has arisen out of the act, both directly and indirectly, so I believe that I have had a peculiar opportunity in my legal career to become thoroughly familiar with the act, the way it has been administered, and the things that have been done to the intention of Congress in the enactment of the act by decisions of the courts, particularly the Supreme Court of the United States.

I have also, during the past 2 years, had the privilege of serving as national president of the Propeller Club of the United States, an organization with which I am sure this committee is familiar, and


during this period of time, it has been my opportunity to observe that on a nationwide basis, substantially what I have seen during my 19 years in connection with this act in Texas is true on a nationwide basis, so I do not think that my comments or my statement this morning can be confined to a geographical area.

I think that they will be true insofar as the entire country is concerned.

Senator YARBOROUGH. Thank you. I was more familiar with the Propeller Club during by 8 years on the Commerce Committee than

8 I have been in the last 212 years since I left the Commerce Committee.

Mr. VIOKERY. Yes, I would assume that that would be true, Senator. We have occasion to write to the chairman of the Commerce Committee frequently,

The associations which I represent, as you have pointed out, are mostly associations in the gulf area, from Florida to the coast of Mexico. These associations are composed of steamship companies, stevedoring companies, and steamship agencies.

Our associations believe that it is time that the Congress took a careful look at the Longshoremen's and Harbor Workers' Compensation Act, which was initially passed in 1927.

Except for periodic amendments which the Congress has passed to increase or to liberalize benefits, there have been substantially no changes or amendments in the Longshoremen's Act since that time.

The substantial new concepts that are proposed in the bill that has been introduced here and which is being considered by this committee are such that we believe it is time that the Congress took a look at some of the inequities and injustices that are being visited upon employers and their insurance carriers in connection with the administration of this act.

We think a study in depth is indicated in this regard, for the courts have, through judicial interpretation, or as some people like to call it, judicial legislation, for all practical purposes, completely emasculated section 5 of the Longshoremen's Act.

This is, perhaps, the grossest injustice and inequity that is being visited upon employers in connection with the Longshoremen's Act, directly contrary to the original intent of Congress when it was passed.

I found it very interesting, and I enjoyed, very much, reading the testimony of the distinguished Assistant Secretary of Labor, Esther Peterson, in support of this bill at the hearings that were held approximately 10 days or so ago.

With all due respect to this distinguished lady, who I know has served her country so ably for such a long period of time, I believe that the Department's justification for this bill as reflected by her testimony is based almost if not entirely on an absolutely incorrect premise.

In several places in the course of her testimony, the Secretary reiterated that this bill needed to be passed and the benefits increased under the act for two reasons: First of all, because the act is a substitute for the employees' valuable right to sue his employer for unlimited damages, and therefore, should contain liberal benefits, and secondly, because the employer's liability is certain and limited, which is the reward or the quid pro quo which the employer receives for paying these liberal benefits.

Now it is quite true that this was the basic premise on which the Longshoremen's Act was initially passed, and it is the basic premise on which the workmen's compensation acts of all of the States are based, but it is no longer the basis on which the Longshoremen's Act can be justified.

The Supreme Court of the United States, by its decisions, has so emasculated section 5 of the act that the injured employee not only still has his right to sue his employer, either directly or indirectly for unlimited damages, but he can recover compensation under the Longshoremen's Act while he is in the process of prosecuting this suit against his own employer, and this even though the act expressly says that the exclusive liability of the employer should be the benefits under the Longshoremen's Act.

So it is no longer proper to say that under the Longshoremen's Act, the employee cannot sue his employer, and it is no longer proper to say that the employer's liability is certain and limited, for it is clear that he can both sue his employer, and that the employer's liability is uncertain and in fact unlimited. Let me give you two quick illustrations of this, if I may.

. Lykes Bros. Steamship Co., which I am sure the committee recognizes as one of the largest American steamship companies operating on the seven seas, employs its own longshoremen to load and discharge its vessels in the U.S. ports.

Assume a death case, in which a longshoreman unfortunately is killed during the loading or the discharging operations. The widow and the minor children of that particular longshoreman immediately, under the Longshoremen's Compensation Act, are paid the benefits called for by the act.

Shortly thereafter, and frequently within a matter of 2 or 3 weeks or a month, Lykes Bros. is also sued directly for unlimited damages, on the grounds that some unseaworthiness of the vessel caused this unfortunate accident.

If the court or the jury concludes that unseaworthiness contributed to the accident, then the beneficiaries recover unlimited damages against their own employer, Lykes Bros. Steamship Co.

This is a direct action against the employer, directly contrary to the express language of the Longshoremen's Act, and this was created by the Supreme Court's decision in Reed v. Yaka.

Precisely the same situation exists where you have a longshoreman who is working for an independent contractor, and he is injured because of some defective equipment, for example, that the stevedore brings on board the vessel.

He is not employed directly by the vessel; he is employed by an independent contractor, but the courts have held that if the independent contractor brings any of its own equipment on board which is unseaworthy, it makes the vessel unseaworthy, and the longshoreman can recover his damages from the shipowner, but in turn, the shipowner recovers those damages from the stevedoring company who brought the defective equipment on board—the man's own employer.

He gets his compensation; he sues the shipowner; he gets the monoy from the shipowner for his unlimited damages, and the shipowner immediately gets its money back from the stevedoring company.

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This is why I say that he sues either directly or indirectly. All the shipowner does or serves as in this case where the stevedore is an independent contractor is to transfer the money from the stevedoring company employer to his employee under a legal fiction.

This is why I say to you gentlemen that it is no longer proper to say that the Longshoremen's Act replaces the right of the employee to sue his employer, for regardless of whether he is employed directly by the vessel owner, or whether he is employed by an independent contractor, he still has the right to sue for unlimited damages. And, in most cases, these damages are being paid not by the shipowner but by his employer; and this is exactly what the Longshoremen's Act says could not be.

But it is—it has come about, simply because the Supreme Court of the United States has been willing to ignore the plain language of the Longshoremen's Act, and has acknowledged in the decisions in which it has done so that it is ignoring the plain congressional mandate.

The solution to this problem, or this gross inequity that is being done to employers, insofar as the Longshoremen's Act is concerned, will be the subject of Mr. Frank Scanlan's discussion with the committee this morning, and I won't dwell into it any further, but I thought it particularly interesting, and I thought this committee ought to realize, that the basic premise on which the Department of Labor supported its position in favor of this bill at the hearings held several days ago is absolutely incorrect.

İt is no longer valid, insofar as the Longshoremen's Act is concerned. It may be valid as to the District of Columbia to which this act also applies, but insofar as longshoremen and harbor workers are concerned, it is no longer a valid basis, or a valid contention.

Now, if I may, there are other injustices and inequities in the handling of this act which require amendments with which I will treat later in my statement to the committee.

I would like to turn now to the specific provisions of the bill, and I am now getting back to my prepared statement, if you desire to follow me in connection with it.

Senator MORSE. May I interrupt?
Mr. VICKERY. Yes, sir.

Senator MORSE. I think counsel has raised very, very important issues, and I am going to ask the Chair's authorization to assign to counsel of the committee the responsibility of preparing a memorandum for us, analyzing the very cases that the witness raises, because I think we should go into it very carefully.

Senator YARBOROUGH. I will so instruct the counsel.

Senator MORSE. And have a brief prepared by our own counsel with regard to this.

Senator YARBOROUGH. Yes, sir.

Senator MORSE. You talk about the fact that the witness has made an analysis of the Supreme Court decisions that he is satisfied bears out his conclusions, and I think we owe it to the witness to do a very careful analysis of his argument.

We consider it a very important argument, and therefore, I think we should have the benefit of the advice of our own counsel.

Senator YARBOROUGH. The suggestion of the distinguished Senator from Oregon is adopted. Counsel is ordered to brief this matter, and

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