Petition — National Van Lines, Inc. v. Director, Office of Workers' Compensation Programs
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RESALE ED
ag, x ‘
Te Oo as
'§ IN THE
‘ Gunsiels Court of the ited States
? .. Oerorer Term, 1979
791460
NationaL Van Lines, INc.,
Transport INDEMNITY COMPANY,
Petitioners,
V;
James A. Rizey, ITT) Director,
OFFICE ae, KERS’ px, 11) SATION PROGRAMS, US
Dept. 6 re Laber, ime
; PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
Leo A. Roru, JR.
DENVER H. GraHaM
1314-19th Street, N.W.
Washington, D. C. 20036
Attorneys for Petitioners
Pases or Byron 8. Anas Pantin, Inc., Washineton, D. C.
Page
I I ra ic ce arse nt wes dea ee anasns 1
WU eke lace crlek rrerccgatevassccaces 2
CE: TIS ik TAs. FE. 2
SRS OP CN inhi e dwwcnied cyeieeeed coveceses 5
ConstTITUTIONAL AND StaTuTORY PROVISIONS .......... 3
Reasons FOR GRANTING THE PETITION ................ 7
I. Failure of the District of Columbia Circuit to
faithfully adhere to this Court’s directive in
Magnolia Petroleum Co. v. Hunt, 320 U.S. 430
(1943), constitutes compelling justification for
SUOMI WE IE ack vnes websccceecsccess 8
II. The lower Court’s conclusion that the District
of Columbia and the Eureka—Riley employ-
ment_relation was “substantial” is based on a
clearly erroneous application of the constitu-
tional more of due process enunciated in
International Shoe Co. v. Washington, 326 U.S.
310 (1945) and Cardillo v. Liberty Mutual In-
surance Co., 330 U.S. 469 (1947) ............ 10
III. The disputes between the Fourth Circuit and
the ruling in the case at bar causes confusion
constituting compelling justification for grant-
£8 | RE I ay 19
COMI aids gabe nicks PAs abs kee Mein ance dee ccuas 20
BS Bok Oa Aaa ERO Ua Cae aoc re is cacees la
oy fog eT a 2a
GE BE ik iia ieee Cok Ce Oaw doe ac coc ccces 3a
RT abc Ba cake cdRtd wanes ka derecccees 32a
Pek SORA RAEN chk dee SAM ooo dace ces 4la
ii CITATIONS
Page
CasEs:
B. F. Goodrich Co. v. Britton, 78 U.S.App.D.C. 221,
SED Be GOP AAUOOD: chen cic ssecacde devas 13
Bolton v. Reddy Motors, Inc., et al., BRB No.: 78-323
CRUE i ROE 6063 Ch dv os 3a eek ReaNe ORR 17
Cardillo v. Liberty Mutual Insurance Co., 330 U.S.
469, 476, 67 S.Ct. 801, 806 (1947) .............. 10, 12
Ekar v. International Union of Operating Engineers,
im) 406, BRB Nos.: 74-209, 209A (April 11,
RUUD bb ak N CN amd ea ES Na DRC
Gudmundson v. Cardillo, 75 U.S.App.D.C. 230, 126 F.2d
DEE CURE Rovids< tadad vans i ceckickaviben 14
International Shoe Co. v. Washington, 326 U.S. 310
ba praia Abeer aey . OMe tyi 11
Magnolin Petroleum Co. v. Hunt, 320 U.S. 430 (1943). .8, 10
McKenny v. Capital Crane Corp., 321 F. Supp. 880,
883 (D.C.D.C. 1971)
Pettus v. American Airlines, 587 F.2d, 627 (4th Cir.
© 62 6.2°O 6 6 06 @.6'@ 8 6'O' 6 Op S'S 6.8.8 6 © 8S
1978) Cert. denied, US. (No. 78-1739
WIG iis oR kk eee 9, 10
Probst v. Southern Stevedoring Co., 379 F.2d 763
SIMEED. ho knaskod hiba need alan sa peed oak ka eee 16
South Chicago Coal € Dock Co. v. Bassett, 309 U.S.
ae GO Sh ben ibaa hd ck hs ches oka heise ce 15
Thomas v. Washington Gas Light Company, —— U.S.
Cert. granted (11/26/79 No.: 79-116) ...... 9,10
Travelers Insurance Co. v. Cardillo, 78 U.S.App.D.C.
SOG, FUR Pe Be CHO oc oe inn pies kcccue voce 13
U. S. Fidelity and Guaranty Co. v. Donovan, 94 U.S.
App.D.C. 377, 221 F.2d 515 (1954) ............. 14
Citations Continued iii
Page
ConstITuTIONAL AND StaTuToRY Provisions:
District of Columbia Code, Section 36-501 ........--- 4
Fourteenth Amendment, U.S. Constitution ........-- 3, 4
Longshoremen’s and Harbor Workers’ Compensation
Act, 33 U.S.C. 901 et seq. «0... eee e reer errr eee
‘ tion
Longshoremen’s and Harbor Workers’ Compensa
ay 33 U.S.C. 920(A) .... cece eee ee eee eeeeeees
United States Constitution, Art. IV, Section 1 ....... 3
Code of Virginia, VA. Code, Section G5.1-40 .... 2.000: 3
MISCELLANEOUS:
A. Larson, The Law of Workmen’s Compensation, Vol.
4 Section 85.10 ...... ccc cece cccscccesccceccecee
tatement of Law Second, Conflict of Laws, Section
sip 181, Poeteaiite Range of Territorial Application 18
IN THE
Supreme Cowt of the United States
OcToBER TERM, 1979
No.
NATIONAL VAN LINEs, INC.,
TRANSPORT INDEMNITY COMPANY, _
Petitioners,
Vv.
JAMES A, Riwey, III, Director,
OFFICE OF WoRKERS’ COMPENSATION PROGRAMS.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
National Van Lines, Inc. and Transport Indemnity
Company, petition this Honorable Court for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the District of Columbia Circuit
in this case.
OPINIONS BELOW
An Order denying Petition for Rehearing dated De-
cember 19, 1979 (App. A., no reported decision). An
Order denying suggestion for Rehearing en banc dated
2
December 19, 1979 (App. B, no reported decision). The
opinion of the United States Court of Appeals for the
District of Columbia Circuit in Director, Office of
Workers Compensation Programs v. National Van
Lines, Inc., et al, —— F.2d —— No. 78-1259, No. 78-
1268 (1979), (App. C). The second decision of the
Benefits Review Board dated January 23, 1978. (App.
D), reported at 7 BRBS 445 (1978). The initial deci-
sion of the Benefits Review Board dated May 6, 1975
(App. 3, reported at 1 BRBS 449 (1975). The initial
Decision of the Administrative Law Judge dated July
10, 1974. (App., F, unreported.)
JURISDICTION
The decision of the Court of Appeals was made and
entered on November 13, 1979. The Order of the Court
of Appeals denying the Petition for Rehearing and
for suggesting Rehearing En Bane dated December
19, 1979. The Petitioners invoke the jurisdiction of this
Court under 28 U.S.C. § 1254 (j).
QUESTIONS PRESENTED
1) Whether the obligation to give full faith and
eredit as set forth in Article IV, Section 1 of the
United States Constitution should be accorded the Vir-
ginia Workmen’s Compensation Act, including its ex-
clusive remedy provision, Virginia Code § 65.1-40
(1975 Repl. Vol.), and, if so, whether full faith and
credit will preclude a subsequent compensation award
in the District of Columbia after claimant’s voluntary
acceptance of workmen’s compensation approved by
the Industrial Commission of Virginia.
3
2) Whether the lower court’s decision to invoke the
jurisdiction of the District of Columbia Workmen’s
Compensation Act based on their finding that claim-
ant’s employment took place in the Washington me-
tropolitan area creates a direct and irreconcilable con-
flict between that court and the Supreme Court of the
United States with respect to constitutional due pro-
cess under the Fourteenth Amendment.
CONSTITUTIONAL AND STATUTORY PROVISIONS
Article IV, §1 of the United States Constitution
provides:
Full Faith and Credit shall be given in each State
to the public Acts, Records, and, judicial Proceed-
ings of every other State.
The Virginia Workmen’s Compensation Act is em-
bodied in Title 65.1 of the Virginia Code, VA. Code,
§ 65.1-40 (1975 Repl. Vol.), states:
§ 65.1-40. Employee’s rights under Act exclude
all others—The rights and remedies herein
granted to an employee when he and his employer
have accepted the provisions of this Act respec-
tively to pay and accept compensation on account
of personal injury or death by accident shall ex-
clude all other rights and remedies of such em-
ployee, his personal representative, parents, de-
pendents or next of kin, at common law or other-
wise, on account of such injury, loss of service or
death. (Code 1950, § 65-37, 1968, c. 660)
Section I of the Fourteenth Amendment of the
United States Constitution provides:
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
4
citizens of the United States and the State where-
in they reside, No State shall make or enforce any
law which shall abridge the privileges or immuni-
ties of citizens of the United States; nor shall any
State deprive any person of life, liberty, or prop-
erty, without due process of law; nor deny to any
person witbin its jurisdiction the equal protection
of the laws.
Title 36, §501 of the District of Columbia code
provides:
§ 36-501 Longshoremen’s and Harbor Workers’
Compensation Act made applicable to the District
of Columbia.
The provisions of Chapter 18 of Title 35, U.S.
Code, including all amendments that may
hereinafter be made thereto, shall apply in
respect to the injury or death of an employee
of an employer carrying on any employment
in the District of Columbia, irrespective of
the place where the injury or death occurs;
except that in applying such provisions the
term ‘‘employer’’ shall be held to mean ev-
ery person carrying on any employment in the
District of Columbia, and the term ‘“em-
ployee’’ shall be held to mean every employee
of such person. (May 17, 1928, 45 Stat. 600
ch. 612, § 1.)
Title 33, U.S.C., § 920(a) provides:
In any proceeding for the enforcement of or
claim for compensation under the Act, it shall pre-
sume, in absence of substantial evidence to the con-
trary—that the claim comes within the provisi
of this Act. provisions
5
STATEMENT OF THE CASE |
Respondent Riley entered into an employment con-
tract with Eureka Van & Storage Company in the
State of Virginia. He resided in Virginia at all times
applicable herein. The principle place of business be-
tween the Respondent and Eureka was in Virginia,
and the employer’s office was in Virginia. Eureka and
the Petitioner, National Van Lines, Inc., had an inde-
pendeny agency agreement which allowed Eureka to
move goods across state lines on National Van Lines’
interstate authority. The principle place of employ-
ment and business for Respondent and his employer
was the State of Virginia. The Respondent’s father
vaguely contends that he had in the past either an
answering service or office in Virginia. :
On January 7, 1966, the Respondent while driving
a truck for Eureka was injured when the vebicle with
a trailer skidded and struck a bridge abutment. The
accident happened in Grand Island, New York. The
trailer being towed by Respondent possessed Virginia
license plates. The truck being driven by Respondent
possessed New York license plates. The trip originated
in Virginia and the shipment included six items, one
of which was picked up in the District of Columbia,
but delivered before the accident occurred. The items
were to be delivered in New York, Connecticut, and
New Jersey. The Respondent entered the District of
Columbia once or twice a week within the five years
prior to the accident.
On February 22, 1966, James A. Riley, Sr., Presi-
dent of Eureka Van & Storage Company and, also
father of the Respondent, filed an Employer’s First
Report of Accident with the Industrial Commission of
6
Virginia. Riley, Sr., signing as Attorney in Fact,
signed on behalf of his son, the Respondent, an agree-
ment for compensation on March 8, 1966, with Mary-
land Casualty Company, the insurer of Eureka Van &
Storage Company. On March 30, 1976, the Virginia
Industrial Commission approved the agreement allow-
ing maximum benefits under the Act. Maryland Casu-
alty Company paid the maximum benefits to the Re-
spondent.
On May 2, 1972, Respondent filed a claim for benefits
in the District of Columbia pursuant to the Longshore-
men’s and Harbor Workers’ Relief Act, 33 U.S.C.,
901, et seq. Respondent has never filed a written claim
against National Van Lines, Inc., or its insurer, Trans-
port Indemnity Company. National Van Lines, Ine.
or its carrier were invited by a phone call to partici-
pate in the original Informal Conference and subse-
quent hearings and did do so.
The Administrative Law Judge dismissed the claim
on the grounds that the District of Columbia lacks
jurisdiction of the claim because of an absence of sub-
stantial interest in the employment and the accident
to the District of Columbia, and that the claim was
barred by limitations. (See App. F) The Benefits Re-
view Board reversed and remanded with a dissenting
opinion by board member R. Hartman. (See App. E.)
On remand, the Administrative Law Judge found
that Maryland Casualty Company had discharged its
obligation as an insurer and that National Van Lines,
Ine. was a statutory employer under Section 904 of
the Act and, therefore liable to the claimant. National
Van Lines appealed the Supplemental Decision. The
second decision by the Benefits Review Board ruled
7
that National Van Lines was not a statutory employer
but that Riley, Sr. and Eureka were liable or the spe-
cial fund in the event Riley, Sr. and Eureka were not
solvent. (See App D).
This decision was appealed by the Respondent Riley
and the Director, Office of Workers’ Compensation
Ss.
Programs, U. S. Department of Labor. The U.
Court of Appeals for the District of Columbia Cireuit
ruled that the District of Columbia had subject matter
jurisdiction and that National Van Lines was a sta-
tutory employer, and that the Statute of Limitations
did not bar the claim. Also, the Court affirmed that
Maryland Casualty Company had no further liability.
There was a dissenting opinion. (See App. C) Peti-
tions for Rehearing and Rehearing En Bane were filed
by National Van Lines and same were denied on De-
cember 19, 1979. (App. A and B)
This disnosition of this matter involves constitu-
tional doctrine, conflict of laws, res judicata principle
and jurisdictional standards.
This Honorable Court is requested to decide two
crucial issues, one involving the Full Faith and Credit
clause of the Constitution and one involving the due
process clause of the Fourteenth Amendment.
It is specifically requested for this Court to declare
that an employee who has received Workmen’s Com-
pensation benefits from one jurisdiction may not re-
ceive same from another jurisdiction without the latter
forum violating the Full Faith and Credit clause of
the Constitution.
8
Further, the Court is requested to define when one
forum may take subject matter jurisdiction for an ex-
traterritorial industrial injury without violating the
due process clause of the Fourteenth Amendment.
The resolution of the above two issues will establish
guidelines for the future in determining state sover-
eignty where as here there are conflicting and over-
lapping statutory provisions. Further, the resolution
of the jurisdictional question will establish guidelines
for forum court’s inherent power to adjudicate claims
for workmen’s compensation cases within the require-
ments of due process. Since the District of Columbia
has become a haven for these claims, the resolution of
the above issues will enable the Courts and Adminis- —
trative Agencies involved to have a basis upon which
to decide these constitutional issues for numerous
pending and future claims.
I
Failure of the District of Columbia Circuit to Faithfully Adhere to
This Court's Directive in Magnolia Petroleum Co. v. Hunt, 320 U.S.
430 (1943), Constitutes Compelling Justification Granting
Petition. ia wa
This Court’s rvling in Magnolia Petroleum Co. v.
Hunt, 320 U.S. 430 (1943) prevents the award of com-
pensation to the Respondent under the constitutional
restrictions of the Full Faith and Credit Clause.
In Magnolia, an employee received Texas work-
men’s compensation benefits pursuant to an accident
in Texas. Subsequently, he filed a similar claim in
Louisiana. The Texas award being a bar to any further
recovery was, therefore, exclusive of his remedy under
Louisiana law pursuant to the Full Faith and Credit
clause.
9
The purpose of the bar was succinctly stated as fol-
lows (id. at 439):
‘‘These consequences flow from the clear purpose
of the full faith and credit clause to establish
throughout the federal system the salutary prin-
ciple of the common law that a litigation once pur-
sued to judgment shall be as conclusive of the
rights of the parties in every other court as in
that where the judgment was rendered, so that a
cause of action merged in every other. The full
faith and credit clause like the commerce clause
thus became a nationally unifying force.’’ (Km-
phasis added).
In Pettus v. American Airlines, 587 F.2d 627 (4th
Cir. 1978) cert. denied, —— U.S. —— (No. 78-1739,
October 1, 1979), the 4th Circuit Court of Appeals re-
versed and vacated an award of compensation ren-
dered in the District of Columbia on the basis that the
employee first received benefits pursuant to the Vir-
ginia Act and, therefore, the Full Faith and Credit
clause dictated the employee’s loss of benefits pursuant
to the District of Columbia Act. The factual situation
in Pettus, cited supra, is identical to the case at bar.
Subsequent to the denial of Certiorari in Pettus,
cited supra, this Court granted a Petition for Writ of
Certiorari in Thomas v. Washington Gas Light Com-
pany, —— U.S. —— (November 26, 1979 No.: 79-
116). Said matter is still pending before this Court.
The factual situation in Thomas, cited supra, is, also,
identical to the case at bar. The employee there re-
ceived Virginia benefits and subsequently attempted to
receive District of Columbia benefits. An award was
originally granted but on April 27, 1979, the Fourth
Cireuit in an unpublished Per Curiam opinion re-
10
versed the award on the basis of Pettus v. American
Airlines, Inc., cited supra.
There is, therefore, a direct conflict existing between
the result in the case at bar and the decision of Mag-
nolia, Pettus, and Thomas, all cited supra.
As noted, the Fourth Circuit has specifically ruled
that the Virgin a statute forecloses a second recovery.
In so doing, the principles of Magnolia have been fol-
lowed. If the case at bar is allowed to stand, this
Court’s mandates as set forth in Magnolia will be
frustrated.
The Lower Court’s Conclusion That the District of Columbia and
the Eureka—Riley Employment Relation Was “Substantial” Is
Based on a Clearly Erroneous Application of the Constitutional
Principles of Due Process Enunciated in International Shoe Co. v.
Washington, 326 U.S. 310 (1945) and Cardillo v. Liberty Mutual
Insurance Co., 330 U.S. 469 (1947).
In their opinion, the lower court determined that
work or residence in the Washington metropolitan
area as opposed to the District of Columbia satisfies
the ‘‘substantial connection’’ requirement for work-
men’s compensation benefits established by this Court
in Cardillo v. Liberty Mutual Insurance Co., 330 U.S.
469, 476 (1947). Thus, according to their opinion, a
person or corporate resident in Northern Virginia,
without more, establishes an employment relation with
the District of Columbia which qualifies candidates for
benefits under that jurisdiction’s Workmen’s Compen-
sation Law.
This reasoning constitutes an impermissibly board
and novel expansion of the “minimum contacts” rule
established in the landmark decision of International
11
Shoe Co. v. Washington, 326 U.S. 310 (1945) and sets
a dangerous precedent for the courts to follow in fu-
ture workmen’s compensation cases.
The Supreme Court in International Shoe defined
what constituted sufficient contacts or ties between a
state and a corporate defendant to make it reasonable
and just in conformity with due process for the state
court to exercise subject matter jurisdiction over the
nonresident corporate defendant. The Court held that
the activities by a defendant salesman within the state,
including exhibiting samples of merchandise in perma-
nent display rooms and soliciting orders from pros-
pective buyers were of a ‘‘systematic and continuous”’
nature. In addition, the foreign corporation defendant
in International Shoe employed a salesman who main-
tained a resiuence within the state, continued his ac-
tivities over a period of years, and was responsible for
a substantial volume of merchandise regularly shipped
by the corporation to purchasers within the state.
It is clear that no such systematic and continuous
relationship existed between National Van Lines and
Eureka Van Lines and the District of Columbia that
would allow the District to exercise jurisdiction over
National Van Lines or Eureka Van Lines in conform-
ity with due process.
It is, also, quite evident that the Court in Jnterna-
tional Shoe based its decision solely on the basis of
for forum court’s inherent power to adjudicate claims
whether or not the corporation established minimum
contacts in the state and whether or not the contacts
were sufficient to invoke the state’s jurisdiction. No-
where in the International Shoe opinion do the justices
state or allude to the possibility that a state could exer-
cise jurisdiction over a non-resident simply because he
12
lives in the metropolitan area that borders the state.
This conclusion is not only unsupported by the opinion,
it has never been raised or established by any court in
any judicial opinion. A court which bases its jurisdic-
tion solely on these criteria clearly acts outside the
scope of permissible exercise of jurisdiction and vio-
lates all known principles of ‘‘traditional notions of
fair play and substantial justice’’ as noted in the Inter-
national Shoe opinion.
In the leading case of Cardillo v. Liberty Mutual
Insurance Co., 330 U.S. 469, 476, 67 S. Ct. 801, 806
(1947), the Supreme Court clarified the extraterri-
torial jurisdiction of the D.C. Act by the following
language :
A prime purpose of the Act is to provide residents
of the District of Columbia with a practical and
expeditious remedy for their industrial accidents
and to place on the District of Columbia employers
a limited and determinate liability. ‘
sis added) ility. (own empha
In addition, the Supreme Court in Cardillo clearly set
forth the D.C. Acts extraterritorial reach by promul-
gating:
... the Districts legitimate interest in providing
adequate workmen’s compensation measures for
its residents does not turn on the fortuitous cir-
cumstances of their work or injury. Nor does it
vary with the amount or percentage of work per-
formed within the District. * * * Rather it de-
pends upon some substantial connection between
the District and the particular em ployee-em ployer
relationship . . . (own emphasis added)
In Cardillo, the Supreme Court found the D.C. Act
applicable and granted compensation benefits to an
employee for injuries he sustained while working in
13
Virginia. The basis of the decision was predicated on
the finding that a “substantial’’ nexus existed between
the District and the employee-employer relationship
stemming from the fact that the employee was a resi-
dent of the District, his contract of employment was
entered into in the District and his employer had its
principal place of business in the District.
It is important to note that the Cardillo decision did
not alter prior case law on the scope of the D.C. Act’s
extraterritorial jurisdicion, but rather affirmed it. For
example, in the case of B. F. Goodrich Co. v. Britton,
78 U.S. App. D.C. 221, 1389 F.2d 362 (1943), an em-
ployee of the B. F. Goodrich Company was fatally
injured in an automobile accident during a business
trip in the State of Pennsylvania. In that case, this
court took cognizance of the fact that the deceased
employee was a resident of the District and spent at
least one-half of his working time at his employer’s
branch office in the District. As a result of these sub-
stantial ties to the District, the D.C. Act was applied
by this court.
In Travelers Insurance Co. v. Cardillo, 78 U.S. App.
D.C. 392, 141 F.2d 362 (1944), this court again in-
voked the extraterritorial jurisdiction of the D.C. Act
over the injuries sustained by an employee in Mary-
land. In that case, jurisdiction was premised on the
fact that the employee resided in the District, entered
his contract of employment in the District and the
employer’s principle place of business was in the Dis-
trict... Additionally, the court in Travelers further
stated that if a claimant pursues a claim to final award
1 See, also Travelers Insurance Company v. Cardillo, 78 U.S.
App. D.C. 394, 141 F. 2d 364 (1944).
14
in a jurisdiction other than the District, such other
award is conclusive on the D.C. Act.
Subsequent case law reiterates the same jurisdic-
tional factors as set forth by the Supreme Court in
Cardillo. That is, before a compensation claim will be
awarded under the D.C. Act for a foreign injury a
substantial connection must first be established be-
tween a claimant’s employment and the District of
Columbia. In the case of U.S. Fidelity and Guaranty
Co. v Donovan, 94 U.S. App. D.C. 377, 221 F.2d 515
(1954), this court stated that:
The particular employee killed or injured need not
have been working at the time within the District
of Columbia; one comes within the ‘‘intent and
design” of the statute when, as here, the employ-
er’s office, the place of hiring, the employee’s resi-
dence and other factors provide ‘‘some substantial
connection between the District and the particular
employee-employer relationship’’. Citing Cardillo,
supra.
On the other hand, however, when these crucial
factors are not present, this court has declined to in-
voke the extraterritorial reach of the D.C. Act. As
noted in Gudmundson v. Cardillo, 75 U.S. App. D.C.
230, 126 F.2d 521 (1942), jurisdiction of the D.C. Act
was denied over an injury occurring in Maryland
where the claimant’s contract of employment was
formulated in Maryland and compensation had already
been granted by the State of Maryland.
Likewise, in McKenny v. Capital Crance Corp., 321
F. Supp. 880, 883 (D.C.D.C. 1971), the court denied
extraterritorial compensation benefits under the D.C.
Act when the claimant’s accident occurred in Mary-
land, claimant worked in Maryland, the employer had
15
his principle place of business in Maryland and the
claimant accepted benefits under Maryland’s Compen-
sation Law.
In the first opinion concerning this claim dated July
10, 1974, the Administrative Law Judge ruled that the
D.C. Act lacked jurisdiction over the matter and de-
nied compensation benefits. In a well supported opin-
ion, the Administrative Law Judge held that his find-
ings of fact failed to indicate that a substantial con-
nection existed between the District and the claimant’s
employment. Applying the Cardillo case, the Adminis-
trative Law Judge found the presumption of jurisdic-
tion over the claim rebutted when the overwhelming
weight of the evidence supported a contrary result.
On May 6, 1975, the Benefits Review Board, hearing
claimant’s appeal, reversed and remanded the claim
back to the Administrative Law Judge by holding that
jurisdiction was proper within the D.C. Act. The
Board’s order cited only the case of Ekar v. Interna-
tional Union of Operating Engineers, 1 BRBS 406,
BRB Nos. 74-209, 209A (April 11, 1975), in support
of their reversal. However, it must be noted that a
strong dissent was recorded by one of the Board mem-
bers in this appeal who firmly agreed with the Ad-
ministrative Law Judge’s factual and legal findings.
The dissenting Board member’s opinion held that:
... the determination of the Anministrative Law
Judge is conclusive if supported by record evi-
dence. South Chicago Coel & Dock Co. v. Bassett,
309 U.S. 251 (1940). Moreover, if it is supported
by evidence and not inconsistent with law, an in-
ference drawn by the Administrative Law Judge
is conclusive, even where such inference is more
legal than factual, when it is evident that the fact-
16
finder’s choice is firmly based on record evidence
and is not forbidden by law. Citing Cardillo,
supra.
On remand, the Administrative Law Judge reluct-
antly aitered his previous position and found jurisdic-
tion within the D.C. Act. Yet, his supplemental opin-
ion firmly argued against jurisdiction of the D.C. Act
and only discussed the contrary in the following short
paragraph: '
Notwithstanding the foregoing we must find, in
accordance with the Board’s Mandate, that the
employer, Eureka Van and Storage Company,
Ine., is subject to the provisions of the Act. It
follows that Eureka’s failure to provide insurance
under the Act does not reduce its liability to the
employee (33 U.S.C. 904, 905; Probst v. Southern
Stevedoring Co., 379 F.2d 763 (1967).)
Appeal was again made to the Benefits Review
Board from the Administrative Law Judge’s second
opinion. On this appeal, the Board declined any fur-
ther comment on the question of jurisdiction, holding
that it had already settled the matter.
In viewing the four administrative opinions set
forth above, the only legal support given for conclud-
ing jurisdiction within the D.C. Act rests on the
Board’s sole reliance on the case of Ekar, supra. The
facts of this present claim, however, vary considerably
from those found in Ekar and must be distinguished.
In Ekar, jurisdiction was found as a result of the
employee being a resident of the District, entering his
contract of employment in the District and his em-
ployer operating a viable office in the District. Clearly,
the uncontroverted facts of this present claim lack the
extensive relationship to the District that existed in
17
Ekar. In the case of bar, at the time of the accident,
the claimant was a Virginia resident. His employer
was also a Virginia resident. The claimant’s employer
had his principle place of business in Northern Vir-
ginia. The claimant’s contract of employment was
entered into in Virginia. The tractor that the claim-
ant was driving at the time of the accident had New
York plates and not D.C. plates on it. The trailer that
claimant was hauling at the time of the accident car-
ried Virginia plates. Furthermore, none of the trucks
owned by the claimant’s employer were titled in the
District or even registered there.
Ostensibly then, none of the important factors are
present to support the Board’s conclusion that the
District had jurisdiction over this claim. In point of
fact, the only evidence indicating any type of relation-
ship with the District and this claim are the following:
1. Claimant made itinerant business trips to the
District about once or twice a week for about 5
years.
2. The day before the accident, the claimant
made a delivery in New York City of a shipment
that originated from the District.
3. Vague testimony by the claimant’s father
that Eureka had a telephone answering service in
the District. The Administrative Law J bey & dis-
pelled this connection as being unsupported by the
evidence.
Based on these unpersuasive facts, the Benefits Review
Board found a connection with the District despite the
strengths of the evidence to the contrary. Ironically,
however, in the recent case of Bolton v. Reddy Motors,
Inc. et al. BRB No. 78-323 (July 9, 1978), the Benefits
18
Review Board denied compensation benefits in a situa-
tion very similar to this one. In Bolton, the injury
occurred in Maryland, the claimant was a Maryland
resident and the claimant’s employer had his principle
place of business in Maryland. Even though the claim-
ant had frequent business travel within the District
of Columbia, the Board refused to grant compensation
on the grounds that the claimant’s employment failed
to equate the substantial connection to the District as
required by the D.C. Act.
Throughout the above decisions, it is implicit that
before the extraterritorial jurisdiction of the D.C, Act
will be invoked, there must first be a substantial eon-
nection existing between the District and the employee-
employer relationship. Unless the claimants employ-
ment evidences this required nexus with the District
the jurisdiction of the D.C. Act should not be con-
ferred.
This position is squarely supported by the Restate-
ment of the Law Second, Conflict of Laws, Section 181,
Permissible Range of Territorial Application which
provides as follows:
‘$181. Permissible Range of Territorial Applica-
tion.
‘A State of the United States may consistently with
the requirements of due process award relief to a
pa under its workmen’s compensation statute,
1
‘‘(a) the person is injured in the State, or
‘“‘(b) the employment is principally located in
the State, or
‘‘(c) the employer supervised the employee’s
activities from a place of business in the
State, or
19
‘“‘(d) the State is that of most significant rela-
tionship to the contract of employment with
respect to the issue of workmen’s compen-
sation under the rules of §§ 187-188 and 196,
or
‘‘(e) the parties have agreed in the contract of
employment or otherwise that their rights
should be determined under the workmen’s
compensation act of the State, or
‘‘(f) the State has some other reasonable rela-
tion to the occurrence, the parties and the
employment.”’
The Restatement properly summarizes the essential
criteria for territorial application of workmen’s com-
pensation benefits. The facts of the case at bar do not
support a conclusion as reached by this Court that a
substantial constitutional connection exists between
the Claimant, the accident, and the District.
The Disputes Between the 4th Circuit and the Ruling in the Case
at Bar Causes Confusion Constituting Compelling Justification for
Granting the Petition.
The District of Columbia because of its high benefits
has naturally become a haven for all injured employees
who come within its jurisdiction. Perhaps the time has
come for injured employees to receive higher benefits,
but this reasoning cannot interfere with the principles
of Full Faith and Credit and due process. These basic
principles of our Constitution and Amendments are
not elastic enough to permit their stretching to the
point of having no meaning. The number of claims filed
in the District of Columbia by Virginia residents both
before and after receipt of Virginia benefits are
numerous.
20
There exists a conflict between the result reached by
the lower court and the results reached by this Court
in Magnolia, and the Fourth Circuit in Pettus and
Thomas. Confusion necessarily has to exist for the
various tribunals called upon to decide the Full Faith
and Credit issue as well as the jurisdictional basis.
The geographical proximity of the two jurisdictions
makes it common for both Virginia and the District
of Columbia to have dual jurisdiction under certain
circumstances. The jurisdictional basis is not limited
to Virginia and the District of Columbia, since if liber-
ally construed, any clamant in any state may have
access to the District of Columbia. Our tribunals need
to know what guidelines to use to either accept or not
to accept cases where there is an injury outside the
boundaries of the District of Columbia.
A. Larson, The Law of Workmen’s Compensation,
Vol. 4, Section 85.10 (1979) succinctly sets forth the
problem that exists because of our modern society. He
observes that business and transportation are no longer
localized, thereby creating problems one might face on
a Conflict of Laws exam. Because of the above prob-
lems and the vast number of industrial injuries, our
tribunals need some rules to enable them to meet not
only the needs of claimants but to insure constitutional
protection to the employees.
CONCLUSION
This case will enable this Court to guide lower courts
and agencies that are confronted with the ever persist-
ent constitutional question of a second recovery as
balanced with the Full Faith and Credit clause.
21
Additionally and as important, this Court will be
able to succinctly set forth what factual situation will
not violate the due process clause regarding jurisdic-
tion for injuries to workmen outside the District of
Columbia boundary.
In order to avoid confusion created by the cited de-
cision and this case in the lower court, the Petition
For Writ of Certiorari should be granted.
Respectfully submitted,
Leo A. Roru, JR.
Denven’H. GRAHAM
1314-19th Street, N.W.
Washington, D. C. 20036
785-1200
Attorneys for Petitioners
CERTIFICATE OF SERVICE
I Heresy Certiry, that a copy of the foregoing
Petition for Writ of Certiorari was mailed, postage
prepaid this 14th day of March, 1980, to:
Walter S. Pitsenberger, Esquire
Belair Professional Village, Suite A-24
Bowie, Md. 20715
Attorney for Respondent Riley
Joshua T. Gillelan, II, Esquire
U.S. Department of Labor
200 Constitution Avenue, N.W., Suite N2716
Washington, D.C. 20210
Attorney for Director, Office of Workers’
Compensation Programs
Vincent H. Cohen, Esquire
815 Connecticut Avenue, N.W.,
Washington, D.C. 20006
Attorney for Maryland Casualty Co.
Leo A. Ror, JR.
APPENDIX
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1979
Drrector, OrriceE oF WorKERS’ COMPENSATION PROGRAMS,
Unirep States DEPARTMENT OF Lasor,
Petitioner
v.
NationaL Van Lines, Inc., Transport INDEMNITY CoMPANY,
Eureka Van & Srorace Company, Marytanp CasuaLty
Company, AND JAMEs A. Ritey, III,
Respondents
And Consolidated Case No. 78-1268
Berore: Wright, Chief Judge; Bazelon, Senior Circuit
Judge; and Tamm, Cireuit Judge
ORDER
Filed December 19, 1979
Upon consideration of respondents’ (National Van Lines,
Inc., et al.) petition for rehearing, it is
OrpERED, by the Court, that respondents’ aforesaid peti-
tion for rehearing is denied.
Per Curiam
For tHe Court:
/s/ Georce A. FisHEer
Clerk
2a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1979
No. 78-1259
Director, Orrice oF Workers’ CoMPENSATION Programs,
Unirep States DepartMENT oF Lasor,
~ Petitioner
Natrona Van Liss, Inc., Transport InpEmNity CoMPANy,
Eureka Van & Srorace Company, Maryann CasuaLty
Company, AND James A. Rixey, III,
Respondents
And Consolidated Case No. 78-1268
Berore: Wright, Chief Judge; McGowan, Tamm, Robin-
son, MacKinnon, Robb, Wilkey, Wald, and Mikva,
Circuit Judges
ORDER
Filed December 19, 1979
The suggestion for rehearing en bance filed by respon-
dents (National Van Lines, Inc., et al.) having been trans-
mitted to the full Court and a majority of the judges in
~— active service not having voted in favor thereof,
it is
Orperep, by the Court, that respondents’ aforesaid sug-
gestion for rehearing en banc is denied.
Per Curiam
For tHe Court:
/s/ Grorce A. FisHer
Clerk
Circuit Judges Tamm, MacKinnon, Robb, and Wilkey
— grant respondents’ suggestion for rehearing en
anc.
3a
APPENDIX C
Notice: This opinion is subject to formal revision before
publication in the Federal Reporter or U.S.App.D.C. Re-
ports. Users are requested to notify the Clerk of any formal
errors in order that corrections may be made before the
bound volumes go to press.
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 78-1259
Drrecror, Orrice oF Workers’ CoMPENSATION
Procrams, Unrrep States DeparTMENT oF Lasor,
Petitioner
Vv.
Nationa, Van Lines, Inc., Transport INDEMNITY
Company, Eureka Van & Storace Company,
MaryLanp CasuaLty Company, and James A. Rizey, III,
Respondents
No. 78-1268
James A. Ruey, III, Petitioner
v.
Director, Orrice oF Workers’ CoMPENSATION
Programs, Unitev Srates DepartTMEeNT oF Lasor, e¢ al.,
Respondents
Bill of costs must be filed within 14 days after entry of
judgment. The court looks with disfavor upon motions to
file bills of costs out of time.
4a
Petitions for Review of an Order of the Benefits Review
Board of the United States Department of Labor
Argued June 1, 1979
Decided November 13, 1979
Joshua T. Gillelan, II, Attorney, Department of Labor,
with whom Carin Ann Clauss, Solicitor of Labor, and
Laurie M. Streeter, Associate Solicitor, were on the brief,
for petitioner Director, Office of Workers’ Compensation
Programs.
Walter W. Pitsenberger for petitioner James A. Riley,
IIT. ;
Jean S. Moore, with whom Vincent H. Cohen and AI-
phonso A. Christian, IT were on the brief, for respondent
Maryland Casualty Company.
Leo A. Roth, Jr. for respondents National Van Lines,
Ine. and Transport Indemnity Company.
Before Wricut, Chief Judge, Bazeton, Senior Circuit
Judge, and Tamm, Circuit Judge.
Opinion for the court filed by Chief Judge Wricurt.
Dissenting opinion filed by Circuit Judge Tamm.
Waricut, Chief Judge: These cases arise on petitions for
review of an order of the Benefits Review Board (Board).
*Under the Longshoremen’s and Harbor Workers’ Compen-
sation Act (LHWCA), 33 U.S.C. §§ 901-950 (1976), workmen’s
compensation claims are adjudicated in the first instance before
Administrative Law Judges (ALJ). Id. § 919(d). Cases that raise
substantial questions of law or fact may be heard by an admin-
istrative appeals board, called the Benefits Review Board (Board).
Id. § 921(b)(1) & (3). The three-member Board is a ** quasi-
judicial ”’ independent body, appointed by the Secretary of Labor,
id. § 921(b) (1); 20 C.F.R. §§ 801.101-103, 801.201 (1978). Peti-
tions for review of Board orders are heard by the United States
Court of Appeals, 33 U.S.C. § 921(c) (1976), see note 20 infra.
5a
The Board upheld a claim by petitioner James A. Riley,
III (Riley) for payments under the District of Columbia
Workmen’s Compensation Law,” in addition to those he
had already received under the Virginia statute.’ Riley’s
employer, Eureka Van & Storage Company (Eureka), now
defunct, and James A. Riley, Sr. (Riley, Sr.), the president
and sole shareholder of Eureka and claimant Riley’s father,
were held liable for the payments. To the extent that
Eureka and Riley, Sr. could not satisfy the judgment, the
claim would be paid from a special fund created by statute.*
The Board held that Eureka’s insurance carrier, Maryland
Casualty Company, was not liable because its policy cov-
ered only claims made by Eureka employees under Vir-
Prior to the 1972 amendments claims under the LHWCA were
heard in the first instance by deputy commissioners; judicial re-
view was by writ of injunction in the District Courts, 33 U.S.C.
§ 921 (1970) (amended 1972), with a right of appeal to the ap-
pellate courts, 28 U.S.C. §§ 1291-1292 (1970). See generally In re
District of Columbia Workmen’s Compensation Act, 554 F.2d
1075, 1078-1079 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976).
2The District of Columbia Code makes applicable to the Dis-
trict of Columbia the provisions of the LHWCA:
The provisions of chapter 18 of title 33, U.S. Code, includ-
ing all amendments that may hereafter be made thereto, shall
apply in respect to the injury or death of an employee of an
employer carrying on any employment in the District of
Columbia, irrespective of the place where the injury or death
occurs; except that in applying such provisions the term
‘‘employer’’ shall be held to mean every person carrying on
any employment in the District of Columbia, and the term
‘‘employee’’ shall be held to mean every employee of any such
person.
36 D.C. Code § 501 (1973). Certain exceptions, not pertinent here,
are listed in 36 D.C. Code § 502 (1973).
°Va. Code Ann. § 65.1-1 to 65.1-152 (1973 Repl. Vol. & 1978
Supp.).
‘The special fund was established pursuant to 33 U.S.C. §§ 944-
945 (1976) ; see also id. § 918(b).
6a
ginia law. The Board also held that National Van Lines,
Inc. and its insurer, Transport Indemnity Company, were
not liable to Riley because National Van Lines could not be
considered a general contractor for purposes of the con-
tractor liability provisions of the District of Columbia Act.
Riley v. Eureka Van & Storage Co., BRB Nos. 76-259,
259A, 259B, 7 B.R.B.S. 445 (Jan. 23, 1978).°
Petitioner Riley urges this court to reverse the decision
of the Board with regard to the liability of Maryland
Casualty Company, National Van Lines, and Transport
Indemnity Company. He is joined in his petition by the
Director of the Office of Workers’ Compensation Pro-
grams (OWCP) for the United States Department of
Labor,® who challenges only the portion of the order per-
taining to National Van Lines and its insurer.
I. BackGrounpD
Claimant Riley was severely injured in a highway acci-
dent on January 7, 1966 in New York State. He is perma-
nently totally disabled, as a quadriplegic. The accident
occurred during the regular course of Riley’s employment
as a driver for Eureka Van & Storage Company, which was
serving as an agent for National Van Lines in the haulage
of goods in interstate commerce. On the fateful trip Riley
was driving a truck marked with the colors and insignia
of National Van Lines, under the direction of a dispatcher
* Reprinted in Joint Appendix (JA) at 50.
*The Director of the Office of Workers’ Compensation Pro-
grams has standing as a petitioner in this proceeding both because
of his official responsibility for administration of the LHWCA
and because of his financial interest as administrator of the special
fund. See Director, Office of Workers’ Comp. Programs v. Bough-
man, 545 F.2d 210 (D.C. Cir. 1976) ; McCord v. Cephas, 532 F.2d
1377 (D.C. Cir. 1976); see also Director, Office of Workers’
Comp. Programs v. Eastern Coal Corp., 561 F.2d 632, 641-649
(6th Cir. 1977).
7a
for National Van Lines. He had picked up goods in the
District of Columbia, Virginia, and Maryland to be deliv-
ered in New York, Connecticut, and New Jersey. The goods
originating in the District of Columbia had been delivered
in New York City on the day before the accident.’
While Riley was hospitalized Riley, Sr. filed an “Employ-
er’s First Report of Accident” with the Industrial Com-
mission of the State of Virginia on February 22, 1966. No
report was made to the District of Columbia Workmen’s
Compensation Commission with respect to Riley’s accident
or claim until 1972.* On March 8, 1966 Riley, Sr., on behalf
of his son, executed an agreement with Eureka’s insurer,
Maryland Casualty, for benefits to be paid to claimant
Riley at a rate of $39.00 per week for 400 weeks ($15,600
total), plus all hospital and medical bills for two years
following the accident. The Virginia Industrial Commis-
sion approved the settlement, which was the maximum
award permitted under state law. Notice of Award of the
Virginia Industrial Commission, March 30, 1976.’
On May 2, 1972 Riley filed a claim with the District of
Columbia commission for additional benefits from Eureka
and Maryland Casualty under the District of Columbia
statute." No written claim was filed against National Van
Lines and Transport Indemnity, but they were involved
in all stages of the proceeding." .
™The facts are set forth fully in the first decision and order
of the ALJ filed July 23, 1974, JA 6-14. They are essentially
undisputed.
®In May 1966 Riley, Sr. filed a claim on his son’s behalf in
New York. The claim was dismissed without prejudice for failure
to prosecute on August 9, 1966. JA 12.
® JA 11-12.
° JA 13.
1 Brief for respondent Maryland Casualty Company at 8-9,
adopted in brief for respondent National Van Lines at 4.
8a
The Administrative Law Judge (ALJ) assigned to the
claim dismissed it on two grounds: (1) that the District
of Columbia lacked jurisdiction of the claim because of the
absence of a substantial and legitimate interest in claim-
ant’s employment or accident, and (2) that the claim was
barred by the statute of limitations.’* The Benefits Review
Board, in a split decision, reversed on both grounds and
remanded.”* On remand the ALJ reluctantly found Eureka
and its president, Riley, Sr.,* liable for payments under
the District of Columbia law. He further held that Mary-
land Casualty had fully satisfied its obligations, which
were limited to paying claims arising under Virginia law.
Finally, he concluded that Eureka was a subcontractor for
National Van Lines, and thus that National and its insurer,
Transport Indemnity, were jointly and severally liable to
the claimant.”
On appeal the Benefits Review Board affirmed the ALJ’s
decision holding Eureka and Riley, Sr. liable for additional
payments and Maryland Casualty not liable. The Board
reversed on the issue of the liability of National Van Liaes
and Transport Indemnity and held that, in the event that
Eureka and Riley, Sr. were unable to provide the payments,
Riley would be compensated from a special fund set up
12 JA 5-22.
** JA 23-31. This decision of the Board was appealed to the
United States Court of Appeals for the Second Circuit. The ap-
peal was dismissed because the Board decision was not a final
order. JA 37.
‘* A large part of the ALJ’s opinion on remand elaborated on
his disagreement with the Board over the issues of the jurisdic-
tion of the District of Columbia and the statute of limitations.
JA 39-43. This part of the opinion was vacated by the Board on
appeal. JA 56,
** Riley, Sr.’s liability, not at issue here, is based on 33 U.S.C.
§ 938(a) (1976).
JA 43-48.
9a
under the Longshoremen’s and Harbor Workers’ Compen-
sation Act (LHWCA).”
Claimant Riley and his father have at all relevant times
been residents of Virginia."* Eureka was a small moving
and storage company headquartered in Fairfax County,
Virginia and serving the metropolitan Washington, D.C.
area. Eureka was covered for workmen’s compensation
claims by Maryland Casualty Company. The policy ex-
pressly limited coverage to claims arising under the law
of Virginia. In addition to its Washington area business,
Eureka served as an agent for National Van Lines. Pur-
suant to an “Agency Agreement” with National, Eureka
operated trucks in interstate commerce under the Inter-
state Commerce Commission (ICC) license number of Na-
tional, displaying the colors and emblems of National.
National remained responsible to interstate shippers for
carriage under the agreement. Shippers paid National Van
Lines directly. National in turn gave instructions to Eureka
drivers, exercised some control over the hiring and training
of Eureka drivers involved in National Van Lines haulage,
and paid Eureka directly for its services. A clause of the
agreement required that Eureka furnish workmen’s com-
pensation insurance for the Eureka employees.”
Before reaching the merits of the liability of Maryland
Casualty, National Van Lines, and Transport Indemnity,
it is necessary to resolve a question of the jurisdiction of
the District of Columbia over this claim.”
17 JA 50-59. See 33 U.S.C. §§ 918(b), 944-945 (1976).
18 JA 103, 180.
19 JA 6-10.
20 The dissent questions the jurisdiction of this court. Our juris-
diction is pursuant to 33 U.S.C. § 921(¢) (1976):
Any person adversely affected or aggrieved by a final order
of the [Benefits Review] Board may obtain a review of that
order in the United States court of appeals for the circuit
in which the injury occurred, by filing in such court within
10a
II. Jurispicrionau Issues
A
The District of Columbia Workmen’s Compensation Act,
36 D.C. Code § 501 (1973), is of widest permissible extra-
sixty days following the issuance of such Board order a written
petition praying that the order be modified or set aside. * * *
(Emphasis added.) This provision is made applicable to the Dis-
trict of Columbia by 36 D.C. Code § 501 (1973). Relying on the
words ‘‘in which the injury oceurred,’’ the dissent claims that
this appeal should be heard in the Second Circuit rather than
this one.
Sensible as this construction of the Longshoremen’s Act may
be, it makes little sense as a construction of the District of Co-
lumbia Workmen’s Compensation Act. It would inevitably lead to
inconsistent interpretations of what is essentially parallel to a
State workmen’s compensation statute. Moreover, the argument of
the dissent runs counter to the long and unbroken practice of this
court. E.g., Director, Office of Workers’ Comp. Programs v. Bough-
man, supra note 6, 545 F.2d at 210; Amalgamated Ass’n of Street,
etc. Employees v. Adler, 340 F.2d 799 (D.C. Cir. 1964); U.S.
Fidelity & Guaranty Co. v. Donovan, 221 F.2d 515 (D.C. Cir.
1954) ; Jonathan Woodner Co. v. Mather, 210 F.2d 868 (D.C.
Cir.), cert, denied, 348 U.S, 824 (1954) ; see additional cases cited
in note 34 infra. Indeed, one case involving a District of Co-
lumbia employee who was injured in Virginia and died as a
result, which was reviewed by the United States District Court
for the District of Columbia and then in this court, was heard by
the Supreme Court with never a doubt about proper appellate
jurisdiction. Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469
(1947). At all times the statute provided for review in the fed-
eral court located where the injury or death occurred. See, e.g.,
Pub. L. No. 69-803 §21(b), 44 Srar. 1436 (1927). Consistent
with the above authorities, we hold that, for purposes of appel-
late jurisdiction, injuries giving rise to claims under 36 D.C. Code
§ 501 ‘‘oceur’’ within the territorial jurisdiction of the United
States Court of Appeals for the District of Columbia Circuit. See
also Overseas African Constr. Corp. v. McMullen, 500 F.2d 1291
(2d Cir. 1974). But see Home Indemnity Co. v. Stillwell, 597 F.2d
87, 90 (6th Cir. 1979) (dictum) ; Pettus v. American Airlines, Inc.,
587 F.2d 627 (4th Cir. 1978), petition for cert. filed, 47 U.S. L.
WEEK 3836 (U.S. No. 78-1739, May 18, 1979) ; Haughton Elevator
Co. v. Lewis, 572 F.2d 447, 448 n.* (4th Cir. 1978).
lla
territorial application. It incorporates the substantive and
procedural faahanide of the LHWCA, 33 U.S.C. $§ 901-950
(1976), in cases of injury or death of “an employee of an
employer carrying on any employment in the District of
Columbia, irrespective of the place where the injury or
death occurs.” The reach of the statute has been limited
in accordance with the dictates of the full faith and credit
clause of the United States Constitution, U.S. Const., Art.
IV, $1, to cases where there is “some substantial connec-
tion between the District and the particular employee-
employer relationship * * *.” Cardillo v. Liberty Mutual
Ins. Co., 330 U.S. 469, 476 (1947). So long as such a “sub-
stantial connection” exists, the District of Columbia Act
applies and satisfies constitutional strictures. Id. The prin-
cipal jurisdictional issue in this case is whether such a
“substantial connection” between Riley’s employment rela-
{ion and the District of Columbia exists.
On the facts, the issue is close. Many of the common
indicia of substantial connection,” for example, residence
of the employee, headquarters of the employer, place of
making the employment contract, are absent. For two
reasons, however, the usual indicia are of little relevance
to this case. First, Riley’s residence and Eureka’s head-
quarters were located in a metropolitan area encom pass-
ing the District of Columbia and parts of Virginia and
Maryland. For most practical purposes, it makes little
difference to the parties or to the jurisdictions, in the
context of the policies behind the Act, precisely where the
home or headquarters is. The most significant geographical
division is the metropolitan Washington area. Second, the
interstate nature of Eureka’s business makes it difficult to ~
pin the employment relation to a specific place. Even Eure-
ka’s “local” haulage involved three jurisdictions; under the
banner of National Van Lines, Eureka’s drivers penetrated
many of the states of the Union. Riley, for example, suffered
21 See 4 A. Larson, THE Law or WoRKMEN’s COMPENSATION
§ 86.10 at 16-33 (1979).
<
é .
a
12a
his injury in New York, while under the direction of a
National Van Lines dispatcher in Illinois. Given these two
factors, the proper territorial jurisdiction over the case
is anything but obvious.
In making our judgment on this petition our discretion
to evaluate the jurisdictional facts is doubly limited. First,
in our function as a reviewing court we may reverse the
decision of the Board only if that decision is unsupported
by substantial evidence or inconsistent with applicable law.
Cardillo v. Liberty Mutual Ins. Co., supra, 330 U.S. at 474;
Marcus v. Director, Office of Workers’ Comp. Programs,
548 F.2d 1044, 1049-1050 (D.C. Cir. 1976).
* See also O’Keefe v. Smith, Hinchman & Grylls Associates,
Inc., 380 U.S. 359, 362 (1965) ; O’Leary v. Brown-Pacific-Mason,
Inc., 340 U.S. 504, 508 (1951); Evening Star Newspaper Co. v.
Kemp, 533 F.2d 1224, 1226-1227 (D.C. Cir. 1976); Associated
Indemnity Corp. v. Shea, 455 F.2d 913, 914 (5th Cir. 1972) (per
curiam) ; Gudmudson v. Cardillo, 126 F2d 521 (D.C. Cir. 1942).
The legislative history of the LHWCA Amendments of 1972, Pub.
L. No. 92-576, 86 Strat. 1251 (1972), indicates that judicial review
is limited to the ‘‘substantial evidence’’ test. H.R. Rep. No. 92-
1441, 92d Cong., 2d Sess. 12 (1972).
The Second Circuit, in Pittston Stevedoring Corp. v. Della-
ventura, 544 F.2d 35, 48-50 (2d Cir. 1976), aff’d sub nom. North-
cast Marine Terminal Co. v. Caputo, 482 U.S. 249 (1977), sug-
gested that decisions of the Benefits Review Board on the cover-
age of the LHWCA are not entitled to much deference from the
courts. Accord, Stockman v. John T. Clark & Son of Boston, Inc.,
539 F.2d 264, 269-270 (1st Cir. 1976), cert. denied, 423 U.S. 908
(1977). At least in cases regarding the reach of the D.C. Act, we
cannot agree. It would be a poor use of judicial resources for this
court to decide for itself whether in each occurring permutation
of jurisdictional facts the case is sufficiently related to the District
of Columbia to fall within the Act. This we leave to the Board,
which is more familiar with the range of factual situations. We
will not upset the Board’s determinations lightly.
The Director of the Office of Workers’ Compensation Programs
has not challenged the Board’s conclusion that the D.C. Act applies
to this case. Had he done so, our reviewing function might be dif-
ferent. See —— F.2d at —— (p. 24) infra.
13a
Second, we are bound by the congressionally-mandated
“presumption of jurisdiction.” * The LHWCA provides:
In any proceeding for the enforcement of a claim
for compensation under this chapter it shall be pre-
sumed, in the absence of substantial evidence to the
contrary—
(a) That the claim comes within the provisions of
this chapter.
33 U.S.C. § 920(a) (1976). As the Supreme Court has ob-
served, this presumption of jurisdiction “applies with equal
force to proceedings under the District of Columbia Act.
Cardillo v. Liberty Mutual Ins. Co., supra, 330 US. at 474,
Moreover, the workmen’s compensation statute at issue,
being designed to alleviate the suffering of injured workers
by spreading the cost of their injuries among the purchasers
of their products, must be interpreted liberally in favor of
23 Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, 541 (5th
Cir. 1976), cert. denied, 433 U.S. 908 (1977) ; Overseas African
Constr. Corp. v. McMullen, supra note 20, 500 F.2d at 1294.
Contra, Employers Mutual Liability Ins. Co. of Wis. v. Arrien,
244 F.Supp. 110, 113 (N.D. N.Y. 1965).
The Second Circuit, in Pittston Stevedoring Corp. v. Della-
ventura, supra note 22, 544 F.2d at 48, commented that the | ‘pre-
sumption’ of coverage’’ is ‘‘not * * * particularly helpful in de-
termining where the line should be drawn between employment
covered by the LHWCA and employment not so covered. Accord,
Stockman v. John T. Clark & Son of Boston, Inc., supra note 22,
539 F.2d at 269. The court recognized, however, that once the line
has been drawn, the presumption ‘‘come[s] into play in ruling on
eases near the border.’’ 544 F.2d at 48. In the present case the line
has long been drawn at the point where the District of Columbia 8
interest in the employment relation or the accident is substan-
tial’’; the presumption is therefore ‘‘helpful’’ to us in deciding
this case, which admittedly falls ‘‘near the border.
l4a
injured claimants. Evening Star Newspaper Co. v. Kemp,
533 F.2d 1224, 1227 (D.C. Cir. 1976).
In view of these two limitations, it is not surprising that
no case has been brought to our attention, nor has one
been found, in which this court has reversed the Board
(or the deputy commissioner under the pre-1972 system)
in favor of a more restrictive view of the extra-territorial
reach of the statute. Of course, should the Board seek to
extend its jurisdiction to cases involving employment rela-
tions without significant connection to the District of Co-
lumbia, we shall not hesitate to reverse. This is not such
a case.
Kureka’s principal service area was the metropolitan
Washington, D.C. area, including northern Virginia, the
Maryland suburbs, and the District.” Although the head-
quarters of the company were located in Virginia, there
is no dispute over the fact that it served many customers
in the District and regularly sent its employees into the
District in connection with the business.”* Riley himself
** Accord, Northeast Marine Terminal Co. v. Caputo, supra note
22, 432 U.S. at 268; Alabama Dry Dock & Shipbuilding Co. v.
Kininess, 554 F.2d 176, 177 (5th Cir.), cert. denied, 434 U.S. 903
(1977) ; Tampa Ship Repair & Dry Dock Co. v. Director, Office
of Workers’ Comp. Programs, 535 F.2d 936, 938 (5th Cir. 1976)
(per curiam).
*° The ‘‘place where the industry is localized’’ is a well recog-
nized contact that supports assertion of jurisdiction over work-
men’s compensation claims. 4 A. Larson, supra note 21, § 86.10 at
16-33. ‘‘[T]he place where the industry is localized has a special
interest, in that the burdens and costs of compensation fall most
directly upon employers and consumers in the area where the in-
dustry is centered.’’ Id. § 86.34 at 16-42.
*° There is testimony in the record by Riley, Sr. that Eureka
maintained a telephone answering service in the District. JA 210.
The ALJ rejected the evidence as unreliable. JA 39-40. It does
not matter whether or not Eureka maintained such a service; it
suffices to note that Eureka had customers in the District and its
business was centered there.
15a
went into the District on Eureka business on an average
of once or twice a week for five years.” The centering of
Eureka’s business in the Washington, D.C. area is especially
important, for the customers of the employer ultimately
bear the cost of compensation payments. Since Eureka
principally serviced Washington and its environs, many
District residents could be affected by the outcome of this
controversy.”
The interests of a jurisdiction in workmen’s compensa-
tion cases are primarily that those employees who work
within its boundaries be adequately protected and that
those employers who operate extensively within its bound-
aries be fairly limited in their liability. On this score the
District of Columbia has as strong an interest, perhaps
stronger, as Virginia or any other state.
It is important to bear in mind that in workmen's com-
pensation cases, unlike many controversies over choice of
law, it is not necessary to identify one jurisdiction with
predominant contacts or interests. The test of jurisdiction
is not whether the proposed forum has interests greater
than those of some other forum, but rather whether the
proposed forum’s interest is “legitimate and substantial in
itself.” 4 A. Larson, Toe Law or WorKMEN’s CoMPENSATION
§ 86.35 at 16-43 (1979).” So long as a set-off of previous
27 JA 10.
28In this case Eureka is defunct and will therefore be unable
to pass on any costs of workmen’s compensation to customers. The
contacts with the jurisdiction, however, are evaluated for juris-
dictional purposes as of the time of the injury.
2°'This principle was firmly established in Industrial Comm’n
v. McCartin, 330 U.S. 622 (1947). See RESTATEMENT (SECOND) OF
Conruict or Laws § 182 (1971): ‘‘Relief may be awarded under
the workmen’s compensation statute of a State of the United
States, although the statute of a sister State also is applicable.
16a
awards-in other jurisdictions is made,” thereby avoiding
duplicative recovery, a state or district with substantial
contacts to an employment relation may apply its compen-
sation laws without regard to whether another jurisdiction
has or could have asserted jurisdiction.”
°° See 4 A. Larson, supra note 21, § 85.70 at 16-30 to 16-32.
“In view of Magnolia Petroleum Co. v. Hunt, 320 U.S. 430
(1943), an opinion whose authority has been eroded but which
has not been overruled, see Industrial Comm’n v. McCartin, supra
note 29, 330 U.S. at 622, a problem under U.S. Const. Art. IV, § 1
and 28 U.S.C. § 1738 (1976) is raised: Does the decision of the
Board deny full faith and credit to the prior decision of the
Virginia Industrial Commission? In Pettus v. American Airlines,
Inc., supra note 20, 587 F.2d at 627, the Fourth Circuit faced
this question on similar facts. In Pettus an employee hired in the
District of Columbia by an airline company carrying on employ-
ment in the District of Columbia was injured while working in
Virginia. He received an award under the Virginia compensation
statute, Va. Code Ann. §§ 65.1.1 to 65.1-152 (1973 Repl. Vol. &
1978 Supp.). He subsequently was awarded benefits by the Bene-
fits Review Board under the District of Columbia compensation
statute, 36 D.C. Code §§ 501-502 (1973). On review before the
Fourth Circuit, see note 20 supra, the court held that the Virginia
statute, Va. Code Ann. §§ 65.1-1 to 65.1-152 (1973 Repl. Vol. &
thus that the Board’s award to Pettus was prohibited by the full
faith and credit clause of the Constitution.
We cannot agree. Instead, we adopt the reasoning of another
panel of the Fourth Circuit in Newport News Shipbuilding & Dry
Dock Co. v. Director, Office of Workers’ Comp. Programs, 583 F.2d
1273 (4th Cir. 1978), cert. denied, 440 U.S. 915 (1979). That
panel held that the Virginia statute does not preclude recovery
under the District of Columbia Act. 583 F.2d at 1277-1278. The
Supreme Court has made clear in Industrial Comm’n v. McCartin,
supra note 29, 330 U.S. at 628, that ‘‘[o]nly some unmistakable
language by a state legislature or judiciary’’ would warrant the
conclusion that a state workmen’s compensation statute is intended
“‘to cut off an employee’s right to sue under other legislation
passed for his benefit.’’ The Virginia statute provides, ‘‘The rights
and remedies herein granted to an employee * * ® shall exclude
all other rights and remedies of such employee * * * at common
law or otherwise * * .’’ Va. Code Ann, § 65.1-40 (1973 Repl. Vol.).
°
17a
Here the contacts between the District of Columbia and
the Eureka-Riley employment relation are substantial
enough that this court, faced with the presumption of
jurisdiction and with a determination by the Board that
the injury is covered by the District of Columbia Act, must
conclude that the District of Columbia Act applies.
This case presents a stronger case for application of
District of Columbia law than that presented by Director,
Office of Workers’ Comp. Programs v. Boughman, 545 F.2d
210 (D.C. Cir. 1976). In Boughman we adopted the reason-
ing of the Benefits Review Board finding the compensation
claim covered by the District of Columbia compensation
statute. Jd. at 211. Claimant was a representative of a
national labor union, murdered while meeting at a union
This language has been interpreted to preclude other Virginia
common law and statutory remedies, see Kighteenth Annual Sur-
vey of Developments in Virginia Law: 1972-1973, 59 Va. L. Rev.
1400, 1632 (1973). We do not interpret it as precluding remedies
to which workers are entitled under the laws of other jurisdic-
tions. See 4 A. Larson, supra note 21, §§ 85.30, 85.40 at 16-19 to
16-26.
Nor is the Board prevented from awarding additional benefits
by the principles of res judicata or collateral estoppel. Since the
Virginia statute does not preclude an additional award under the
District of Columbia law, the Virginia proceeding cannot deter-
mine the amount of recovery under the District of Columbia pro-
visions. Whatever effect the factual determinations and inferences
of the Virginia Industrial Commission may have in the subsequent
District of Columbia proceeding, there is no doubt that the Board
may reach its own independent decision on the size of the award.
See, e.g., Newport News Shipbuilding & Dry Dock Co v. Director,
Office of Workers’ Comp. Programs, supra; Director, Office of
Workers’ Comp. Programs v. Boughman, supra note 6, 545 F.2d
at 210; Peter v. Arrien, 325 F.Supp. 1361, 1366 (E.D. Pa. 1971),
aff’d, 463 F.2d 252 (3d Cir. 1972) (per curiam). In each of these
eases the courts affirmed the LHWCA awards even though the
claims had previously been adjudicated by state workmen ’s com-
pensation commissions. But see Pettus v. American Airlines, Inc.,
supra note 20, 587 F.2d at 628-629.
18a
hall in California with a representative of the local.** The
Board assumed jurisdiction even though the claimant re-
sided in California, was killed in California, and was di-
rected in his work by a regional officer in the western
United States. The contacts with the District of Columbia
included the employer’s national headquarters, the origin
of the claimant’s paychecks and travel reimbursements, the
administration of claimant’s pension fund, and (by infer-
ence) the place of the making of the employment contract.
Claimant also traveled occasionally to the District on
business.** Since jurisdiction was upheld in Boughman, we
must certainly uphold it here.™
B
Claimant Riley filed his claim in the District of Columbia
on May 2, 1972, some six years after his accident occurred.”
The ALJ ruled that his claim was barred by the statute
of limitations and also by laches.** This conclusion was
** The facts of Boughman are set out in the Board’s opinion,
Ekar v. International Union of Operating Engineers, BRB Nos.
74-209, 209A, 1 B.R.B.S. 406 (April 11, 1975).
88 Td.
** Other cases in which this court has applied the extraterritorial
provision of the District of Columbia Act to award compensation
in cases where death or injury occurred outside the District in-
clude U.S. Fidelity & Guaranty Co. v. Donovan, supra note 20,
221 F.2d 515; Travelers Ins. Co. v. Cardillo, 141 F.2d 362 (D.C.
Cir. 1944) ; Travelers Ins. Co. v. Cardillo, 141 F.2d 364 (D.C. Cir.
1944); B. F. Goodrich Co. v. Britton, 139 F.2d 362 (D.C. Cir.
1943). But cf. Gasch v. Britton, 202 F.2d 356 (D.C. Cir. 1953)
(upholding deputy commissioner’s decision that Maryland injury
to Maryland resident was not covered by the District of Columbia
Act, although the employment contract was made in the District
of Columbia).
* JA 13.
6 JA 19-22, 42-43.
19a
reversed by the Board.” The Board’s decision is challenged
by respondents Maryland Casualty, National Van Lines,
and Transport Indemnity.
Under the LHWCA an injured worker must file a claim
for compensation within one year after his injury or be
barred, subject to certain tolling provisions. 33 U.S.C.
§913 (1976). This limitation is mandatory and jurisdic-
tional in nature. Sun Shipbuilding & Dry Dock Co. v.
Bowman, 507 F.2d 146, 148 n.3 (3d Cir. 1975); Young v.
Hoage, 90 F.2d 395, 397 (D.C. Cir. 1937) ; see also Pillsbury
v. United Engineering Co., 342 U.S. 197 (1952). The par-
ties agree that Riley failed to file his claim in the District
until after the one-year period had expired.
But 33 U.S.C. § 930(f) (1976) tolls the statute of limita-
tions during the period that the employer fails to report
the injury to the Secretary of Labor.” In effect, the stat-
37 JA 30-31, 56.
8 33 U.S.C. § 913(a) (1976) provides:
Except as otherwise provided in this section, the right to
compensation for disability or death under this chapter shall
be barred unless a claim therefor[] is filed within one year
after the injury or death. If payment of compensation has
been made without an award on account of such injury or
death, a claim may be filed within one year after the date of
the last payment. Such claim shall be filed with the deputy
commissioner in the compensation district in which such in-
jury or death occurred. The time for filing a claim shall not
begin to run until the employee or beneficiary is aware, or
by the exercise of reasonable diligence should have been aware,
of the relationship between the injury or death and the em-
ployment.
39 33 U.S.C. § 930 (1976) provides in relevant part:
(a) Within ten days from the date of any injury or death
or from the date that the employer has knowledge of a disease
or infection in respect of such injury, the employer shall send
to the Secretary a report setting forth (1) the name, address,
and business of the employer; (2) the name, address, and oc-
—_——_--»
20a
ute of limitations does not begin to run on an injured em-
ployee’s claim under the District of Columbia Act until after
the employer has reported the injury to the Secretary.
United Brands Co. v. Melson, 594 F.2d 1068, 1070-1073
(5th Cir. 1979); Associated Indemnity Corp. v. Shea, 455
F.2d 913, 915 (5th Cir. 1972) (per curiam). Although Eu-
reka reported Riley’s accident to the Virginia Industrial
Commission, the company has never made the report to
the Secretary and to the compensation district as required
by the LITWCA. By the clear import of the statute, the
limitations period is tolled.
The respondents, employers and their insurers, however,
urge this court to adopt a construction of the tolling pro-
vision of Section 930(f) more in-line with its “purpose”
to encourage reporting of work-related accidents to the
proper authorities. They contend that Eureka’s report to
the Virginia commission fulfills this purpose. We cannot
adopt a reading of the statute that would enable respond-
ents to escape the responsibility placed upon them by the
cupation of the employee; (3) the cause and nature of the
injury or death; (4) the year, month, day, and hour when
and the particular locality where the injury or death oc-
curred ; and (5) such other information as the Secretary may
require. A copy of such report shall be sent at the same time
to the deputy commissioner in the compensation district in
which the injury occurred.
(f) Where the employer or the carrier has been given no-
tice, or the employer (or his agent in charge of the business
in the place where the injury occurred) or the carrier has
knowledge, of any injury or death of an employee and fails,
neglects, or refuses to file report thereof as required by the
provisions of subdivision (a) of this section, the limitations
in subdivision (a) of section 913 of this title shall not begin
to run against the claim of the injured employee or his de-
pendents entitled to compensation, or in favor of either the
employer or the carrier, until such report shall have been
furnished as required by the provisions of subdivision (a)
of this section.
2la
clear words of the statute. Such a reading would not be
consistent with the overriding purpose of the LHWCA,
which is to provide adequate compensation to injured
workers. See Blackwell Constr. Co. v. Garrell, 352 F.Supp.
192, 196-197 (D. D.C. 1972).
Nor can we agree that Riley is barred from pursuing
his claim by the doctrine of laches. Even were we to rule
that the congressional decision to toll the statute of limita-
tions in cuses such as this may be overridden by the exer-
cise of our equity power, this would be a highly inappro-
priate case for such action. See Peter v. Arrien, 325 F.
Supp. 1361, 1366 (E.D. Pa. 1971), aff'd, 463 F.2d 252 (3d
Cir. 1972). After the accident Riley was in no position to
investigate his rights under District of Columbia law; he
merely accepted the lesser payments that his father ar-
ranged for him under Virginia law. He was not informed
of his rights to additional compensation under the District
of Columbia law until he consulted a new attorney in
March 1972.*° He filed the District of Columbia claim less
than two months later. We recognize the hardship to Riley,
Sr. and to National Van Lines caused by the intervening
demise of Eureka; however, we cannot exercise the equi-
table powers of the court so as to deny Riley the the much-
needed benefits to which he is entitled under the law.”
© See JA 13.
*1 Respondent Maryiand Casualty Company has also argued that
Riley should be estopped from asserting the tolling provisions of
§ 903(f) because his father, as president of Eureka, had a conflict
of interest in the case. Brief for respondent Maryland Casualty
at 35. In this argument Maryland Casualty echoes the ALJ’s
opinion on remand. JA 43. Without pausing to consider whether
Riley Sr.’s conduct satisfied all the elements necessary to an
invocation of estoppel, we conclude that it would be inequitable
to visit the consequences of the father’s conflict of interest upon
his disabled son.
22a
III. Liasmrry or Maryuanp CasuaLty
The parties have stipulated that the workmen’s compen-
sation insurance policy issued by Maryland Casualty to
Eureka stated that it was limited to compensation claims
arising under Virginia law.‘* The ALJ therefore decided
that Eureka was an uninsured employer under the District
of Columbia Act. Since Maryland Casualty had fully satis-
fied its obligations to Eureka and to Riley under its in-
surance with Kureka, he held that Maryland Casualty is
not liable to Riley for any additional payments under Dis-
trict of Columbia law.** This holding was affirmed by the
Board.*
Petitioner Riley challenges the Board order absolving
Maryland Casualty of liability under the District of Co-
lumbia Act. He argues that by operation of 33 U.S.C.
§ 935 (1976) ** the Maryland Casualty policy may be con-
*? Stipulation No. 7, JA 263.
* JA 43-44
* JA 56-57.
*© 33 U.S.C. § 935 (1976) provides:
In any case where the employer is not a self-insurer, in
order that the liability for compensation imposed by this
chapter may be most effectively discharged by the employer,
and in order that the administration of this chapter in respect
of such liability may be facilitated, the Secretary shall by
regulation provide for the discharge, by the carrier for such
employer, of such obligations and duties of the employer in
respect to such liability, imposed by this chapter upon the
employer, as it considers proper in order to effectuate the
provisions of this chapter. For such purposes (1) notice to or
knowledge of an employer of the occurrence of the injury
shall be notice to or knowledge of the carrier, (2) jurisdic-
tion of the employer by a deputy commissioner, the Board,
or the Secretary, or any court under this chapter shall be
jurisdiction of the carrier, and (3) any requirement by a
deputy commissioner, the Board, or the Secretary, or any
23a
strued as covering all workmen's compensation liability of
Eureka, under the law of any jurisdiction. In this argu-
ment he is mistaken. Section 935, by its terms, applies only
in cases “where the employer is not a self-insurer * * * ” *
In this case Eureka knowingly neglected to procure in-
surance against liability under. the laws of jurisdictions
other than Virginia.” No law operates to give Eureka
greater coverage than it was willing to pay for. With re-
spect to District of Columbia liability, Eureka was a self-
insurer. See Rex Investigative & Patrol Agency, Inc. v.
Collura, 329 F.Supp. 696, 699-700 (E.D. N.Y. 1971) ; Smith
v. Continental Nat'l American Group, 321 F.Supp. 1354,
1355 (E.D. La. 1971).
We find no reason to reverse the Board with regard to
the liability of Maryland Casualty.
IV. Liapmuty or NatronaL Van LINES AND
TRANSPORT INDEMNITY
The final issue raised in this petition is the liability of
National Van Lines and its insurer, Transport Indemnity
Company, as the “contractor” of Eureka’s interstate busi-
court under any compensation order, finding, or decision shall
be binding upon the carrier in the same manner and to the
same extent as upon the employer.
“ Td.
‘* There is some dispute over why Eureka failed to purchase
broader coverage from Maryland Casualty. JA 8-10. The ALJ
concluded, on the basis of conflicting testimony, that Riley, Sr.,
on behalf of Eureka,
knowingly and intentionally purchased workmen’s compensa-
tion insurance in Virginia only; * * * rejected coverage else-
where; * * * and did not refuse D.C. coverage because he
was misled, or because he expected National [Van Lines] to
provide it, but because it was more expensive, and not neces-
sary to satisfy the law of his domicile, (Virginia). * * *
JA 14-15. This conclusion, based on evaluation of the credibility
of testimony, is accepted by this court.
24a
ness. Section 904(a) of the LHWCA provides in relevant
part:
In the case of an employer who is a subcontractor, the
contractor shall be liable for and shall secure the pay-
ment of such compensation to employees of the sub-
contractor unless the subcontractor has secured such
payment.
National Van Lines is liable to Riley under this provision
if, and only if, Eureka served as a subcontractor to Na-
tional within the meaning of the statute. The ALJ ruled
that Eureka was such a subcontractor of National Van
Lines, but this ruling was reversed by the Board.*® The
Board’s decision is appealed to this court by petitioners
Riley and the Director of OWCP.
A
The basis for the Board’s decision is not fully clear from
its opinion. After setting out the law governing the impo-
sition of workmen’s compensation liability on general con-
tractors,” the Board stated without further explanation:
The relationship of National Van Lines and Eureka
Van Lines[,] the Board concludes, is not the contrac-
tor-subcontractor relationship contemplated by Section
4 [33 U.S.C. § 904]. We agree with National Van Lines
that Eureka was acting under an independent agency
or contractor agreement * * *,
JA 57.
Ordinarily, our review of such decisions by the Board is
limited: the decision will be affirmed unless it is unsup-
*8 JA 44-45.
* JA 57. :
° See —— F.2d at —— (p. 27) infra.
25a
ported by substantial evidence or inconsistent with appli-
cable law.” Such deference is made difficult in this case by
the failure of the Board to explain how its conclusion fol-
lows from its statement of the facts. Moreover, we should
note that we are freer to undertake an independent ex-
amination of this portion of the case because the Director
of OWCP opposes the Board’s decision on the liability of
National Van Lines and ‘Transport Indemnity. Cf. General
Electric Co. v. Gilbert, 429 U.S. 125, 144-145 (1976) (dif-
ference in interpretation of Title VII by Equal Employ-
ment Opportunity Commission and Wage and Hour Ad-
ministrator prevented the Court from strict deference to
the appropriate agency). Since OWCP is the policymaking
body in the area of workmen’s compensation,” and since
the Board’s decision involves a policy judgment, we believe
that this conflict between agencies necessitates a more
searching review by this court.
B
The “Agency Agreement” in effect between Eureka and
National Van Lines at the time of Riley’s accident did not
employ the words “contractor” or “subcontractor” with re-
spect to the parties.** Eureka was denominated an “agent”
of National Van Lines; the agreement specifically dis-
claimed by any employer-employee relation between Na-
tional Van Lines and Eureka or its employees. Obviously,
the terminology used in the agreement is not dispositive of
this case.
Eureka did not possess an ICC Motor Carrier’s license
of its own. It therefore could not, and did not, transport
51 See text and note at note 22 supra.
5290 C.F.R. §§ 1.1, 1.2 (1979) ; id. §§ 701.201, 701.202 (1978).
88 The facts surrounding the relationship between Eureka and
National Van Lines are recounted in the original decision of the
ALJ. JA 6-8. There is no significant dispute by the parties over
the facts.
26a
cargo outside the Washington, D.C. metropolitan area ex-
cept as an agent of National Van Lines. Eureka conducted
its interstate haulage in the name of National Van Lines,
in accordance with National’s instructions expressed in a
manual called the “Agent’s Guide,” in trucks decorated
with National’s name, colors, and insignia. Although Eu-
reka was not contractually obligated to accept any par-
ticular shipment for National’s customers, in practice
Eureka solicited orders for National and made extensive
deliveries under National’s direction. The contractual obli-
gations for interstate haulage remained with National Van
Lines, as did the right to payment. Although Eureka re-
tained substantial discretion over the details of its opera-
tions, National reserved the right to train Eureka em-
ployees involved in performing National’s contracts, and to
reject employees who did not successfully complete this
training.
This court has never interpreted the general contractor’s
liability provision of Section 904(a). In doing so now, we
are guided by the experience of the many jurisdictions with
similar provisions that have considered the question.“ We
are also guided by the purpose of the provision, which is
to protect injured employees engaged in a common enter-
prise from the irresponsible failure of their immediate
employers to insure. By imposing secondary liability on
the general employer or contractor, the provision deters
unscrupulous employers from dividing their work among
a number of smaller, uninsured entities, and creates an
incentive for the general employer to insist that his subcon-
tractors be adequately insured.”
** Forty-one states and the District of Columbia impose sec-
ondary liability for workmen’s compensation upon general em-
ployers for the benefit of employees of contractors under them.
1B A. Larson, supra note 21, § 49.10 at 9-1 to 9-2.
5° Id. § 49.11 at 9-6 to 9-9.
27a
A general employer will be held secondarily liable for
workmen’s compensation when the injured employee was
engaged in work either that is a subcontracted fraction of
a larger project or that is normally conducted by the gen-
eral employer’s own employees rather than by independ-
ent contractors.* The most common form of the relation-
ship—and that represented by the Eureka-National agree-
ment—is where the general employer delegates the per-
formance of portions of its contractual obligations to other
firms.
For example, in DeMola v. Riccio, 61 App. Div. 2d 854,
401 N.Y.S.2d 919 (3d Dep’t 1978), the general employer, a
towing company, contracted with the city to remove aban-
doned vehicles from the streets. It further arranged with
a second towing company—the immediate employer of the
injured worker—for the second company to perform some
of the work in exchange for the right to the proceeds of
the sale of the scrapped vehicles. This second firm was not
adequately insured. When the injured employee sought
further payments, the court held the general employer
liable. In Thorsheim v. State, 469 P.2d 383, 388-389 (Alaska
1970), the court announced these two requirements for the
relationship, under a statute substantially identical to the
District of Columbia provision: (1) the existence of a con-
tractual obligation on the part of a person held to be a
contractor, and (2) a subletting of a part of that obligation
to the person held to be a subcontractor.”
This statement of the law does not differ substantially
from that expressed by the Board in its opinion. The Board
said that Section 904 has been applied “in cases where a
contractor entered into a contract with a third party to
86 Id. § 49.12 at 9-33.
8t Accord, McCaskey v. Daniel International Corp., 422 F.Supp.
1360 (D. S.C. 1977) ; Jenkins v. Peddic, 145 So.2d 729 (Fila. 1962) ;
Evans v. Hawkins, 114 Ga.App. 120, 150 S.E.2d 324 (1966) ;
Brygidyr v. Rieman, 31 N.J.Super. 450, 107 A.2d 59 (N.J. 1954).
28a
perform a service. The contractor then delegated its duties
to the subcontractor.” JA 57. The Board‘s error was not
in its statement of the law, but in the application of that
law to the facts of this case. National Van Lines contracted
with various shippers to carry cargo interstate; it then
delegated a portion of its contracts to Eureka. There is no
doubt that Eureka employees performed work that would
normally be performed by National Van Line’s own em-
ployees. Applying the generally accepted test for con-
tractor liability, we must conclude that National Van Lines
is liable under Section 904.
To accept the Board’s conclusion would allow National
Van Lines to avoid liability to workers performing Na-
tional’s contracts, even though National’s subcontractor
was inadequately insured. This would defeat the purpose
of Section 904(a) and, more important, deny the benefit
of the law to injured workers who need its protection.™
National Van Lines cannot complain of unfair surprise
in this decision. In its agreement with Eureka, National
required that Eureka obtain workmen’s compensation in-
surance as required by law.” The reason National would
impose such a requirement is to protect itself from liability
under Section 904(a). National Van Lines could have
avoided any Section 904(a) liability simply by ensuring
that Mureka comply with the contract. Having failed to
enforce its contractual rights, National may not now shift
its loss to the hapless Riley.
** National Van Lines has asserted that its relationship to Eureka
was that of ‘‘owner’’ to contractor, based on the fact that Na-
tional is the owner of the ICC license that Eureka used. Brief
of respondent National Van Lines at 16. This argument is with-
out merit. The ‘‘owner’’ cases are exemplified by the situation in
which a property owner contracts with a contractor for services
to the property. Obviously, the Eureka-National Van Lines agree-
ment did not fit this pattern.
59 Td. at 7.
29a
V. ConcLusIon
The decision of the Benefits Review Board, BRB Nos.
72-259, 259A, 259B, 7 B.R.B.S. 445 (Jan. 23, 1978), is re-
versed with respect to the liability of National Van Lines
and its insurer, Transport Indemnity Company, to claim-
ant James A. Riley, III. In all other respects the decision
is affirmed.
So ordered.
30a
Tamm, Circuit Judge, dissenting: Despite the mental
pole-vaulting of the majority, I am unable to agree with
its decision in these cases.
First, I cannot conclude that the workers’ compensation
statute of the District of Columbia, D.C. Copg § 36-501
(1973), has any application to Petitioner Riley’s injuries.
At the time of the accident, Riley was a resident of Vir-
ginia. His principal place of employment was Virginia.
His employer, Eureka, was a Delaware corporation that
had its principal place of business in Virginia and directed
Riley’s activities from Virginia. National Van Lines, which
had engaged Eureka as its agent, had its principal office in
Illinois. The accident occurred in New York after all goods
shipped from the District of Columbia had been delivered.
None of the facts in these cases suggests a connection to
the District of Columbia that justifies applying its laws to
Riley’s claim. See Restatement (Szconp) or ConFLict oF
Laws § 181 (1971).
Second, even if this matter did fall under the District of
Columbia statute, this court would not have subject matter
jurisdiction to hear these petitions for review. Section
21(c) of the Longshoremen’s and Harbor Workers’ Com-
pensation Act provides for review “in the United States
court of appeals for the circuit in which the injury occurred
.... 33 U.S.C. §921(c) (1976) (emphasis added). The
accident in the cases before us occurred in New York, which
is in the Second Circuit, not this one. Review is proper
there, not here. See Home Indemnity Co. v. Stillwell, 597
F.2d 87, 90 (6th Cir. 1979), cert. denied, 48 U.S.L.W. 3221
(Oct. 1, 1979). Because this is a matter of jurisdiction, not
venue, we should dismiss the petitions rather than acqui-
esce in the parties’ decision not to press the issue further.*
*On June 21, 1978, a panel of this court denied a motion by
Respondents National Van Lines and Transport Indemnity to is-
miss the petitions for want of jurisdiction. The panel neverthelvss
entered its order without prejudice to the movants’ raising the
3la
Cf. Atlantic Ship Rigging Co. v. McLellan, 288 F.2d 589
(2d Cir. 1961) (predecessor to 33 U.S.C. §921(c), which
provided for initial review in the district court for the
judicial district in which the injury occurred, confers ju-
risdiction; it does not concern simply venue) ; Continental
Fire & Casualty Insurance Co. v. O'Leary, 236 F.2d 282
(9th Cir. 1956) (same).
Because District of Columbia law does not govern Riley’s
claim and because this court would not have subject matter
jurisdiction to hear these petitions even if District of
Columbia law were to apply, I respectfully dissent.
issue again when the cases would be heard on the merits. Director,
Office of Workers’ Compensations Programs v. National Van Lines,
Inc., Nos. 78-1259, 78-1268 (D.C. Cir. June 21, 1978) (order per
curiam). National Van Lines and Transport Indemnity earlier
had indicated their willingness to withdraw their objections if the
panel denied their motion. Reply to Response of the Director, Of-
fice of Workers’ Compensation Programs, in Opposition to Motions
to Dismiss (Apr. 28, 1978). Thus, the parties neither briefed this
issue nor discussed it at oral argument. It is well settled, however,
that the parties to an action cannot confer jurisdiction by con-
sent; rather, it is our obligation to raise questions of jurisdiction
sua sponte. E.g., Mansfield, C. & L.M. Ry. v. Swan, 111 U.S. 379
(1884); C. Wricht, HANDBOOK OF THE Law or FEDERAL Courts
§ 8, at 18 (3d ed. 1976). See cases cited id. at 18 n.8. The doctrine
of the law of the case does not prevent us from reopening this
issue, for we are ‘‘duty-bound’’ to recognize our lack of jurisdic-
tion, no matter how late. Potomac Passengers Ass’n v. Chesapeake
& O. Ry., 520 F.2d 91, 95 n.22 (D.C. Cir. 1975).
Eero
32a
APPENDIX D
U.S. DEPARTMENT OF LABOR
Benerits Review Boarp
Washington, D.C. 20210
BRB No. 76-259
NATIONAL Van Liygs, Ine.
and
Transport INDEMNITY Company,
Employer/Carrier, Petitioners
v.
James A. Rixey, III, Claimant
and
Eureka Van ano Storace Company, Employer
and
MaryLanp CasuaLty Company, Carrier-Respondents
BRB No. 76-259A
James A. Rirey, III, Claimant-Petitioner
v.
Nationa Van Langs, Inc.
and
Transport InpEMNITY ComPany,
and
Eureka Van anv Storace Company
and
MaryLanp Casuatty Company,
Employer/Carriers-Respondents
33a
BRB No. 76-259B
Director, Orrick or Workers’ CoMPENSATION PROGRAMS,
Unrrep States DepartTMENT or Lazor, Petitioner
V.
Eureka Van AND StoraGe Company
and
Maryann CasuaLty ComPANy
and
Nationa, Van Lings, Inc.
and
Transport INDEMNITY CoMPANY,
Employer/Carriers-Respondents
DECISION
Filed as Part of the Record Jan. 23, 1978
Appeals from the Supplemental Decision and Order of
John I. Nevin, Administrative Law Judge, United
States Department of Labor.
Walter W. Pitsenberger, Bowie, Maryland, for the
claimant.
M. S. Mazzuchi, Rockville, Maryland, for Eureka Van &
Storage and Maryland Casualty Company.
Leo A. Roth, Jr. (Brault, Graham, Scott & Brault), Wash-
ington, D.C., for National Vaa Lines, Inc. and Trans-
port Indemnity Company.
Joshua T. Gillelan, II (Carin Ann Clauss, Solicitor of
Labor, Laurie M. Streeter, Associate Solicitor),
Washington, D.C., United States Department of Labor.
Before: Smiru, Chairman and Mitier, Member.
34a
Miter, Member:
These are appeals by the claimant, National Van Lines
and Transport Indemnity Company and the Director, Office
of Workers’ Compensation Programs, from a Supplemental
Decision and Order (73-DCWC-86) of Administrative Law
Judge John I. Nevin, pursuant to the provisions of the
Longshoremen’s and and Harbor Workers’ Compensation
Act, as amended, 33 U.S.C. § 901 et seq., as extended to the
District of Columbia, 36 D.C. Code § 501 et seq. (hereafter
referred to as the Act).
The facts of this case were set forth in the Board’s prior
Decision, reported at 1 BRBS 449, BRB Nos. 74-155,
74-155A (May 6, 1975), as follows:
The claimant was employed as a truck driver by Eureka -
Van and Storage Company (hereafter, Eureka). On Janu-
ary 7, 1966, in the course of his employment, he was in-
volved in an accident at Grand Island, New York. He sus-
tained fractures of the fourth and fifth cervical vertebrae
with complete transection of the spinal cord. As a result
of this injury, the claimant is a quadriplegic, confined to
a wheelchair.
At the time of the accident, Eureka was a Delaware cor-
poration with its principal place of business in Fairfax
County, Virginia. Eureka also maintained an office in the
District of Columbia for telephone answering services. As
a local carrier, Eureka operated in the Washington, D.C.,
commercial zone, which embraced Northern Virginia, sub-
urban Maryland and the District of Columbia. As an agent
of National Van Lines, Inc. (hereafter, National), Eureka
was authorized to move shipments in interstate commerce,
using the motor carrier license number issued to National
by the Interstate Commerce Commission. Pursuant to the
“Sales, Service and Hauling Agreement” in effect between
the companies, all Eureka vehicles displayed National
colors and emblems. While all Eureka vehicles were regis-
35a
tered in Virginia, at least some were registered in other
states as well and carried license plates of both Virginia
and other states.
The claimant’s accident occurred while he was operating
a van for his employer, Eureka, as agent for National.
The shipments he carried were recorded on a National trip
manifest. On this trip, shipments were picked up in Vir-
ginia, the District of Columbia and Maryland for delivery
in New Jersey, Connecticut and New York. The one ship-
ment picked up in the District of Columbia had been de-
livered in New York City on the day before the accident.
Eureka’s workmen’s compensation insurance policy,
written by Maryland Casualty Company (hereafter, Mary-
land Casualty), provided benefits under Virginia law only,
regardless of where an injury occurred. A clause of the
agreement between Eureka and National provided that the
responsibility to furnish workmen’s compensation insur-
ance would lie with Eureka.
National was notified of the claimant’s accident within
an hour of its occurrence. Eureka, in turn was notified by
National shortly thereafter. The claimant’s father, who
was President of Eureka, filed an accident report in his
son’s behalf with the Virginia Industrial Commission on
February 22, 1966. At the same time, with assistance from
Maryland Casualty’s agent, he filed a compensation bene-
fits claim with that carrier. On March 8, 1966, the claim-
ant’s father executed an agreement between his own com-
pany, Eureka, and Maryland Casualty, awarding the
claimant $39.00 a week based on an average weekly wage
of $110.00, until terminated in compliance with the Virginia
law. The Virginia Industrial Commission approved this
agreement on March 30, 1966. The claimant did not sign
the compensation agreement, nor did he sign authorization
for anyone to act in his behalf. His father acted for him,
apparently without formal permission. However, the
claimant did accept benefits for four hundred weeks and
36a
medical expense payments for two years, the maxima pro-
vided by the Virginia statute in effect at that time.
A claim was filed by the claimant’s father under New
York State’s compensation law for the benefit of the
claimant. However, a decision was rendered on August 9,
1966, by the Workmen’s Compensation Board of New York,
closing the case. “... without prejudice, due to failure to
prosecute”. No subsequent claim has been filed in New
York.
The claimant personally filed a claim for compensation
under the Act, against Eureka, on May 2, 1972. This claim
for permanent total disability gave rise to this case. No
written claim has ever been filed against National and its
carrier, Transport, directly. However, National was in-
vited to appear at the informal hearing before the deputy
commissioner. National and Transport were represented
by counsel and did participate at the informal hearing and
at the formal hearing before the administrative law judge.
It is clear that the claimant is asserting a claim against
National.
The administrative law judge in his original Decision
and Order concluded that claimant was not covered by the
Act at the time of the injury, and the claim was barred by
the statute of limitations. The Board (with one member
dissenting) reversed the administrative law judge’s hold-
ing on both points, and remanded the case to the adminis-
trative law judge “for entry of an Order in favor of the
claimant against the appropriate parties for compensation
for permanent total disability in accordance with the Act.”
The administrative law judge in his Supplemental De-
cision and Order on remand, after disputing the Board’s
conclusion that claimant was covered under the Act and
was not time barred, went on to enter an Order against
the employer, Eureka Van & Storage Company, and
James A. Riley, Senior, personally, in that Riley had as
37a
president of the company failed to secure the payment of
compensation pursuant to Section 38 of the Act, 33 U.S.C.
§ 938. The administrative law judge also held National Van
Lines and Transport Indemnity Company responsible for
benefits pursuant to Section 4 of the Act, 33 U.S.C. § 904,
which provides that a contractor is liable for, and shall
secure the payment of, compensation to the employee of a
subcontractor if the subcontractor failed to secure the com-
pensation.
National Van Lines and Transport Indemnity Company
have appealed contending that claimant is barred by the
statute of limitations, that claimant is not covered by the
Act, that National Van Lines is not liable under Section
4, and that Maryland Casualty Company is liable for com-
pensation pursuant to Section 35 of Act, 33 U.S.C. $935.
The claimant also argues that Maryland Casualty Com-
pany should be held liable. Both the claimant and Director,
Office of Workers’ Compensation Program, contend that
the administrative law judge exceeded his scope of au-
thority when he made further findings of fact and further
analysis of the jurisdictional and timeliness issues in his
Supplemental Decision and Order. They also contend that
the administrative law judge erred in failing to award
claimant reimbursement for his self-procured medical
supplies and attendant care pursuant to Section 7 of the
Act, 33 U.S.C. § 907.
The Board will not consider National Van Lines’ con-
tention that claimant is not covered under the Act, and
that claimant did not timely file. These issues were decided
by the Board in its prior decision and the Board will not
reconsider the matter. Moreover, the Board vacates those
parts of the administrative law judge’s Supplemental De-
cision and Order addressing the questions of coverage of
the Act and the timeliness of the claim.
The Board does not agree with claimant’s and National
Van Lines’ contention that Maryland Casualty Company
38a
should be held liable for the payment of compensation,
under Section 35 of the Act. Section 35 applies only if the
insurer issued a policy under the Act. See 33 U.S.C. § 936
(a). From the record, it appears that Maryland Casualty
only insured employer under the Virginia workmen’s com-
pensation law, and not under the Act. Moreover, it is not
the province of the Board to bind Maryland Casualty un-
der Section 35 through some form of estoppel argument,
centering on its obligations to fully inform a potential pur-
chaser of the varying forms of insurance the purchaser
might need.
However, the Board is also convinced that National Van
Lines is not liable for compensation under Section 4. Un-
der prior case law, Section 4 has been applied in cases
where a contractor entered into a contract with a third
party to perform a service. The contractor then delegated
its duties to the subcontractor. As a geners! rule, the sub-
contractor is responsible for the workmen's compensation
claims of its employees. Section 4 provides a limited ex-
ception, making a contractor liable for the compensation
claims of the subcontractor’s employees if the subcon-
tractor was uninsured.
The relationship of National Van Lines and Eureka Van
Lines the Board concludes, is not the contractor-subcon-
tractor relationship contemplated by Section 4. We agree
with National Van Lines that Eureka was acting under
an independent agency or contractor agreement, and that
National Van Lines is not liable to the employees of
Eureka.
Therefore, Eureka Van Lines, Inc. is responsible for the
payment of benefits under the Act. However, the record
discloses that Eureka Van Lines, Inc., is no longer in busi-
ness, and is not insured for the payment of benefits under
the Act. Accordingly, James A. Riley, II, as president of
Kureka Van Lines, Inc., is personally liable for such com-
pensation under the Act because of his failure to secure
39a
payment of compensation under Section 32 of the Act, 33
U.S.C. § 932. See 33 U.S.C. §938. If James A. Riley, II,
is unable to provide these benefits, the Special Fund, es-
tablished by 33 U.S.C. § 944, will be responsible for the
payment of benefits pursuant to Section 18(b) of the Act.
33 U.S.C. § 918(b).
The administrative law judge in his Supplemental De-
cision and Order also held that claimant was entitled to
reimbursement for the reasonable medical expenses in-
curred by him. However, this administrative law judge
added that if the parties could not agree on the reason-
ableness of these expenses they would have to follow the
procedures set forth in the Act and Regulations concern-
ing a dispute as to the reasonableness of medical expenses.
Inasmuch as the claimant at the hearing stated what these
medical expenses were, and inasmuch as employer/carrier
at that time made no exception whatsoever, we agree with
the Director that the administrative law judge should have
awarded claimant reimbursement for these medical ex-
penses and Order.
Accordingly, the board vacates that portion of the ad-
ministrative law judge’s Supplemental Decision and Order
wherein he found National Van Lines and Transport In-
demnity Company responsible for payment of benefits un-
der the Act. The Board also modifies the administrative
law judge’s Supplemental Decision and Order to provide
that claimant is to be reimbursed for those medical ex-
penses which he detailed at the hearing. The remainder of
the administrative law judge’s Supplemental Decision and
Order is affirmed.
/s/ Jutrus Miuer
Julius Miller, Member
Smitru, Chairman, Concurring:
While I agree fully with my colleague’s opinion and re-
sult in this appeal, I must point out that I express no opin-
40a
ion on the Board’s original determination of jurisdiction
on the facts of this case. Riley v. National Van Lines, Inc.,
1 BBS 449, BRB No. 74-155 (May 6, 1975). I agree with
my colleague that since the issue of jurisdiction has pre-
viously been fully argued and determined by this Board,
the Board should not permit the issue to be relitigated.
/s/ Samue. J. SmitH
Samuel J. Smith, Chairman
Dated this 23rd day of January, 1978
4la
APPENDIX E
U.S. DEPARTMENT OF LABOR
Benerits Review Boarp
Washington, D.C. 20210
James A. Riuey, III, Claimant-Petitioner
v.
Eureka Van anv Storace Company
and
Maryuanp CasuaLtty CoMPANY
and
NationaL Van Lrvzgs, Inc.
and
Transport InpemNity Company,
Employers/Carriers-Respondents
Dreector, Orrice or Workers’ CoMPENSATION Programs,
Unirep States DepartTMENT or Lasor, Petitioner
Vv.
Eureka Van ANp Storace Company
and
Maryann Casualty CoMPANY
and
NationaL Van Lings, Inc.
and
Transport INDEMNITY COMPANY
Employers/Carriers-Respondents
BRB Nos. 74-155 and 74-155A
42a
DECISION
Filed as Part of the Record May 6, 1975
Appeals from Decision and Order of John I. Nevin, Ad-
ministrative Law Judge, United States Department of
Labor.
Walter W. Pitsenberger (Gelb and Pitsenberger), Wash-
ington, D.C., for claimant.
M. S. Mazzuchi, Washington, D. C., for employer, Eureka
Van and Storage Company and carrier, Maryland
Casuaity Company.
Leo A. Roth, Jr., Washington, D. C., for employer, Na-
tional Van Lines and carrier, Transport Indemnity
Company.
Joshua T. Gillelan, II, (William J. Kilberg, Solicitor of
Labor; Marshall H. Harris, Associate Solicitor),
Washington, D. C., for Director, Office of Workers’
Compensation Programs, United States Department
of Labor.
Before: Washington, Chairperson, Hartman and Miller,
Members.
Washington, Chairperson:
These appeals by the claimant and by the Director, Office
of Workers’ Compensation Programs, seek review and re-
versal of a decision and order (73-DCWOC-86) of Adminis-
trative Law Judge John I. Nevin. The claimant was denied
compensation for permanent total disability. The claim in
question was filed pursuant to provisions of the Long-
shoremen’s and Harbor Workers’ Compensation Act, 44
Stat. 1424, as amended, 33 U.S.C. § 901 et seq., as made
applicable to employment in the District of Columbia by
the District of Columbia’s Compensation Act, 36 D.C. Code
§ 501 et seg. (hereafter referred to as the Act).
43a
The claimant was employed as a truck driver by Eureka
Van and Storage Company (hereafter, Eureka). On Janu-
ary 7, 1966, in the course of his employment, he was in-
volved in an accident at Grand Island, New York. He sus-
tained fractures of the fourth and fifth cervical vertebrae
with complete transection of the spinal cord. As a result
of this injury, the claimant is a quadriplegic, confined to
a wheelchair. |
At the time of the accident, Eureka was a Delaware cor-
poration with its principal place of business in Fairfax
County, Virginia. Eureka also maintained an office in the
District of Columbia for telephone answering services. As
a local carrier, Eureka operated in the Washington, D. C.,
commercial zone, which embraced Northern Virginia, sub-
urban Maryland and the District of Columbia. As an agent
of National Van Lines, Inc. (hereafter, National), Eureka
was authorized to move shipments in interstate commerce,
using the motor carrier license number issued to National
by the Interstate Commerce Commission. Pursuant to the
“Sales, Service and Hauling Agreement” in effect between
the companies, all Eureka vehicles displayed National
colors and emblems. While all Eureka vehicles were regis-
tered in Virginia, at least some were registered in other
states as well and carried license plates of both Virginia
and other states.
The claimant’s accident occurred while he was operating
a van for his employer, Eureka, as agent for National. The
shipments he carried were recorded on a National trip
manifest. On this trip, shipments were picked up in Vir-
ginia, the District of Columbia and Maryland for delivery
in New Jersey, Connecticut and New York. The one ship-
ment picked up in the District of Columbia had been de-
livered in New York City on the day before the accident.
Eureka’s workmen’s compensation insurance policy, writ-
ten by Maryland Casualty Company (hereafter, Maryland
Casualty), provided benefits under Virginia law only, re-
44a
gardless of where an injury occurred. A clause of the
agreement between Eureka and National provided that the
responsibility to furnish workmen’s compensation insur-
ance would lie with Eureka.
National was notified of the claimant’s accident within |
an hour of its occurrence. Eureka, in turn was notified by
National shortly thereafter. The claimant’s father, who
was President of Eureka, filed an accident report in his
son’s behalf with the Virginia Industrial Commission on
February 22, 1966. At the same time, with assistance from
Maryland Casualty’s agent, he filed a compensation bene-
fits claim with that carrier. On March 8, 1966, the claim-
ant’s father executed an agreement between his own com-
pany, Eureka, and Maryland Casualty, awarding the claim-
ant $39.00 a week, based on an average weekly wage of
$110.00, until terminated in compliance with the Virginia
law. The Virginia Industrial Commission approved this
agreement on March 30, 1966. The claimant did not sign
the compensation agreement, nor did he sign authorization
for anyone to act in his behalf. His father acted for him,
apparently without formal permission. However, the claim-
ant did accept benefits for four hundred weeks and medi-
cal expense payments for two years, the maxima provided
by the Virginia statute in effect at that time.
A claim was filed by the claimant’s father under New
York State’s compensation law for the benefit of the
claimant. However, a decision was rendered on August 9,
1966, by the Workmen’s Compensation Board of New York,
closing the case, “... without prejudice, due to failure to
prosecute.” No subsequent claim has been filed in New
York.
The claimant personally filed a claim for compensation
under the Act, against Eureka, on May 2, 1972. This claim
for permanent total disability gave rise to this case. No
written claim has ever been filed against National and its
carrier, Transport Indemnity Company (hereafter, Trans-
45a
port), directly. However, National was invited to appear
at the informal hearing before the deputy commissioner.
National and Transport were represented by counsel and
did participate at the informal hearing and at the formal
hearing before the administrative law judge. It is clear
that the claimant is asserting a claim against National.
The administrative law judge considered two issues in
this case. First, is this claim within the jnrisdiction of the
Act? Secondly, is the action barred by failure to timely
file a claim? The administrative law judge resolved both
of these issues against the claimant and “dismissed” the
claim because of lack of jurisdiction to apply the Act and
because of failure to file within one year of the date of
injury. Both the claimant and the Director, Office of Work-
ers’ Compensation Programs, appeal this Decision.
We proceed first to consider whether the claim asserted
here, considering the employment relationship which was
in effect at the time of the claimant’s injury, is properly
within the jurisdiction of the Act.
In a recent decision, adjudicating appeals from an award
of death benefits to the survivors of an employee who was
killed in the course of his employment in California, the
Board reviewed the coverage provision of the Act and its
extraterritorial application. Ekar v. International Union
of Operating Engineers, 1 BRBS 406, BRB Nos. 74-209,
209A (April 11, 1975). In affirming the award of benefits
in that case, we found that the protection of the Act may be
extended to a claimant when it is shown that the District
of Columbia has sufficient legitimate interest in an employ-
ment-related injury or death to permit application of the
Act. Sufficient legitimate interest is predicated upon show-
ing some substantial contact between the employer-employee
relationship and the District of Columbia. The first issue
to consider in the instant case, then, is whether or not the
District of Columbia has sufficient legitimate interest in
Riley’s accident to warrant application of the Act to his
claim for compensation for permanent total disability.
os Err
46a
The record indicates that activities pursuant to the em-
ployment relationship between Riley and Eureka were car-
ried out in the District of Columbia regularly over a period
of years. Eureka’s area of operations as a local carrier was
metropolitan Washington, D.C. There is uncontradicted
testimony that the claimant entered the. District of Colum-
bia in performance of Eureka’s business once or twice a
week for five years preceding his accident. During the trip
which culminated in his accident and injury, the claimant
picked up one shipment in the District of Columbia and
delivered it in New York City on the day before the accident.
Thus, this final trip itself bore a relationship to the District
of Columbia. Finally, Eureka’s President, the claimant’s
father, admitted that he operated a place of business in the
District of Columbia—an office maintained for telephone
answering services.
In the judgment of this Board, there is substantial con-
tact between the employer-employee relationship and the
District of Columbia in this case which is sufficient in degree
to permit application of the Act to Riley’s claim. We hold
that the administrative law judge incorrectly “dismissed”
this claim because of lack of jurisdiction to apply the Act.
The second issue to be resolved in these appeals concerns
timeliness of filing the claim. The administrative law judge
found that this claim is barred by Riley’s failure to file it
within one year of the date of injury, as prescribed by
Section 13(a) of the Act, 33 U.S.C. §913(a). However,
Section 30(a) requires the employer to file a report with
respect to an injury with the Secretary of Labor and with
the deputy commissioner of the district within which the
injury occurred, within ten days from the date of the
injury; Section 30(f) tolls the statute of limitations in
Section 13(a) where the employer or carrier, having notice
or knowledge of the injury, fails, neglects or refuses to
file the required report. 33 U.S.C. §§ 913(a), 930(a), 930(f).
There is no question that the employer had notice of the
claimant’s injury within a few hours of its occurrence.
47a
Since no report of injury was filed with the Secretary or
the deputy commissioner, the statute of limitations did not
begin to run against Riley’s claim. Therefore, the claim
filed under the Act on May 2, 1972, more than five years
after the accident, is timely. Cain v. Fort Lee Officers’ Open
Mess, 1 BRBS 372, BRB No. 74-194 (March 31, 1975);
Associated Indemnity Corporation v. Shea, 455 F.2d 913
(5th Cir. 1972); Travelers Insurance Company v. Adler,
230 F.Supp. 593 (D.D.C. 1964).
Since the administrative law judge failed to apply Sec-
tions 30(a) and (f) of the Act in determining whether or
not this claim was timely filed, his conclusion that Riley’s
claim is barred by the statute of limitations is erroneous.
The Board, therefore, remands this case to the admin-
istrative law judge for entry of an Order in favor of the
claimant against the appropriate parties for compensation
for permanent total disability in accordance with the Act.
/s/ Ruta V. WasHincTton
Ruth V. Washington, Chairperson
I Concur:
/s/ Jutius MILLter
Julius Miller, Member
- —ahenh
48a
Hartman, Member, dissenting:
I respectfully dissent from the majority opinion in this
case.
Although I would not deny this claim on the issue of
timeliness, I cannot agree that the record before this Board
permits, let alone requires, reversal of the Decision of the
administrative law judge on the issue of jurisdiction.
Section 21(b)(3) of the Act, 33 U.S.C. §921(b)(3), and
the law as summarized in O’Keeffe v. Smith Associates,
380 U.S. 359 (1965), require the Board to affirm a decision
when that decision is supported by substantial evidence, is
not irrational, and is in accordance with law.
In our recent Decision in Ekar v. International Union of
Operating Engineers, 1 BRBS 406, BRB Nos. 74-209, 209A
(April 11, 1975), the Board expressed the view that extra-
territorial application of the Act is permissible if it can
be shown that there are substantial contacts between the
District of Columbia and an employer-employee relation-
ship, such that the District of Columbia has sufficient legiti-
mate interest in that relationship to warrant application of
the Act. The Board’s interpretation of the extraterritorial
extension provision of the Act was founded principally on
analysis of the Supreme Court decision in Cardillo v.
Liberty Mutual Insurance Co., 330 U.S. 469 (1947). At the
time of writing his Decision in the present case, the admin-
istrative law judge did not have the benefit of the Board’s
guidance as expressed in Ekar, supra. However, he did
evaluate the record evidence before him in light of his own
analysis of the concepts of “substantial contacts” and “le-
gitimate interest of the District of Columbia” as they are
discussed in the Cardillo opinion. In denying this claim for
compensation for permanent total disability, the adminis-
trative law judge found that there is no substantial con-
nection between the District of Columbia and the employer-
employee relationship in this case, so that substantial
49a
interest on the part of the District of Columbia is absent.
I believe this Board is bound to accept that conclusion. The
Decision of the administrative law judge is clearly sup-
ported by substantial evidence.
The claimant was a resident of Virginia, hired in Vir-
ginia, employed by an employer whose place of business
was in Virginia. He was paid in Virginia and was covered
by workmen’s compensation insurance in accordance with
Virginia law. By virtue of his occupation as a driver of a
long distance moving van, the claimant had transitory
relationships with many states and the District of Colum-
bia. However, his base of operations remained Virginia.
During the trip which culminated in his accident and
injury, the claimant did pick up one shipment in the Dis-
trict and delivered it in New York City. However, he also
made at least three pick ups in Virginia and two in Mary-
land on this same trip. At the time of the accident and
injury in New York, the shipment from the District of
Columbia had been delivered. If the District had any inter-
est in the claimant’s employment, it had already been
extinguished.
The claimant testified that he had visited the District on
behalf of Eureka once or twice a week during a period of
about five years prior to his accident. However, the record
indicates that these visits were merely temporary contacts
of short duration. In my opinion, this record supports the
conclusion that such contacts are not sufficient to bring the
claimant within the ambit of the Act for compensation for
an injury incurred in the course of employment other than
in the District of Columbia. If the injury had been sus-
tained in the District, the interest of the District would
have been different and the claimant would certainly be
entitled to claim benefits under the Act. However, the injury
here was sustained in New York by a Virginia resident
employed by a Virginia employer.
The record before this Board is unclear as to whether or
not the claimant’s employer actually maintained a place of
50a
business in the District of Columbia. Did Eureka merely
subscribe to a telephone answering service in the District,
or did the employer have an office with resident employees
who solicited and accepted business in the District of
Columbia? In my opinion, this record supports the conclu-
sion that Eureka was not an employer within the meaning
of the Act, and thus was not subject to the jurisdiction of
the Act.
Determination of whether or not the Act may be applied
to a claim for compensation is a jurisdictional question.
However, when an issue of jurisdiction turns on questions
of fact, the determination of the administrative law judge
is conclusive if supported by record evidence. South Chicago
Coal € Dock Co. v. Bassett, 309 U.S. 251 (1940). Moreover,
if it is supported by evidence and not inconsistent with law,
an inference drawn by an administrative law judge is con-
clusive, even where such inference is more legal than
factual, when it is evident that the fact-finder’s choice is
firmly based on record evidence and is not forbidden by
law. Cardillo, supra. This Board has expressed the view
that the coverage provision of the Act, including its extra-
territorial application, is so imprecise as to be susceptible
of more than one interpretation. Ekar, supra. Therefore,
the inference that there is no substantial connection be-
tween the District of Columbia and the employer-employee
relationship in this case such that substantial interest on
the part of the District of Columbia is absent, is certainly
not forbidden by law. The conclusion that this claim is not
within the jurisdiction of the Act is entirely reasonable
and supported by substantial evidence.
Therefore, I would affirm the administrative law judge
in his denial of compensation because of lack of jurisdiction
to apply the Act.
/s/ Rateuw M. Hartman
Ralph M. Hartman, Member
Dated in Washington, D.C. this 6th day of May 1975
5la
APPENDIX F
U.S. DEPARTMENT OF LABOR
Orrice or ADMINISTRATIVE Law JUDGES
Washington, D.C. 20210
Case No. 73-DCWC-86
(Formerly 69461)
In the Matter of
James A. Rizey, III, Claimant
v.
Eureka Van anp StoraGE CoMpany, AND
Maryann CasuaLty Company, Employer and Carrier
Nationa, Van Lings, Inc. aND
Transport INDEMNITY Company, Employer and Carrier
Walter W. Pitsenberger, Esq.
1120 Connecticut Avenue, N.W.
Washington, D.C. 20036
For the Claimant
M. S. Mazzuchi, Esq.
405 Investment Building
1511 K Street, N.W.
Washington, D.C. 20005
For Maryland Casualty
Company and Eureka Van
and Storage Company
Leo Roth, Jr., Esq.
1314 - 19th Street, N.W.
Washington, D.C. 20036
For National Van Lines, Inc.
and Transport Indemnity Company
52a
Before: Joun I. Nevin
Administrative Law Judge
DECISION AND ORDER
Statement of the Case
Pursuant to the Longshoremen’s and Harbor Workers’
Compensation Act, 33 U.S.C. 901 et seq., and the District of
Columbia Compensation Act, 36 D.C. Code 501, and the
Rules and Regulations implementing said statutes, 20 CFR
Parts 701 and 702, a hearing in the above-captioned matter
was held before me on January 20, 1974, in Washington,
D.C. All parties were represented by counsel and afforded
full opportunity to adduce evidence and to call, examine
and cross-examine witnesses. Thereafter the parties sub-
mitted briefs which have been duly considered.
The basic issues raised at the hearing and argued in the
briefs are whether these claims are within the jurisdiction
of the District of Columbia Workmen’s Compensation Act;
and whether they are barred by failure to assert them
within the time prescribed. Inherent in these are subordi-
nate issues concerning the liability of Maryland Casualty
Company and National Van Lines in the District through
the Employer, Eureka.
Findings of Fact
1, James A. Riley, II, hereinafter referred to as Riley,
Senior, was both the father of Claimant and the sole stock-
holder and President of Eureka Van and Storage Company,
Ine. (Tr. 169-74; ALJ-9). Eureka’s principal place of busi-
ness was in Fairfax County, Virginia. Its principal service
area was the Washington Metropolitan area (ALJ-9; Tr.
93-94). Eureka became a corporation, as distinguished from
a sole proprietorship prior to the accident (Tr. 169). All
of the hiring, direction, control and discharge of Eureka’s
employees, including Claimant, was performed by Riley,
53a
Senior as President of the corporation (Tr. 128-31, 192-95).
Eureka owned, paid for and maintained the nine vehicles
operated by it. They were all registered in Virginia, but
carried other license tags as well (Tr. 104).
2. Eureka did not have an ICC Motor Carrier’s license
number of its own. When it moved shipments in interstate
commerce it did so pursuant to an agreement with National
by which it used National’s ICC Motor Carrier’s number
(Tr. 149, 167, 169-72; Cl. Exh. 2; Tr. 173, 187). Eureka
vehicles displayed colors and emblems of National pursuant
to the agreement (Cl .Exh. 2; Tr. 70-71, 103-06, 169-73).
3. The contract with National Van Lines was a written
agreement dated August 10, 1961, between National and
Riley, Senior, signing as owner of Eureka Van and Stor-
age Company. This agreement, titled an “Agency Agree-
ment,” provided in essence that the agent, Eureka, was to
solicit orders for National’s services and accept orders in
the name of National for execution in accordance with
company policy (Act I). The agent further agreed to adver-
tise and promote National’s name in conjunction with its
own, all in accordance with a company manual entitled
“Agent Guide” which was to be used as a guide in the
discharge of normal business (Act III). National agreed
to provide designs and color schemes for use by Agent (in
decorating its vehicles) subject only to the proviso that
such use should not indicate that the Agent was a “general”
agent (IV B, Supp. IT).
The agreement was to be construed in accordance with
the laws of Illinois and the United States and was not to
create an employer-employee relationship between National
and the Agent or its employees (Act V). The agent was to
hire, supervise, pay, control and discharge its own em-
ployees and pay such taxes arising out of their employment
directly (VIII A).
As a condition precedent to operation of agent’s vehicles
in the service of National, the agent was to have obtained
d4a
the required workmen’s compensation and other insurance
as provided in the insurance clause (Supp. I-B). The insur-
‘ance clause provided, inter alia, that the agent was to
supply workmen’s compensation insurance and employees
liability insurance on individuals which the agent employs ©
for interstate moving services during the term of the agree-
ment (Supp. III-C; Cl. Exh. 2; ALJ-9).
This agreement remained in effect continuously through
the date of the accident and was the agreement in effect on
that date (Tr. 200-205, 207-208; ALJ-9).
4. The modus operandi of National and Eureka under
their contracts was as follows:
Eureka was one of several National agents in the
Washington area. An agent would contact a shipper
and obtain freight pick-up information. He would also
contact National to provide the necessary vehicle at
the desired pick-up time. The driver would pick up the
shipment (Tr. 135, 206-07). At the same time the agent
would provide the desired delivery time from the ship-
per (Tr. 135). The driver would report the delivery
when made (Tr. 131-33).
Co-ordination was provided by a National employed
dispatcher. He would frequently offer additional ship-
ments going in a general direction to a driver already
bound in that direction, giving the driver the desired
information as to pick-up and delivery. The driver was
not obliged to accept the order from the dispatcher.
In Eureka’s case the driver could and did consult
Eureka (Riley, Senior) as to whether to accept on
the basis of profitability (Tr. 152-160, 163-65, 193,
206-07 ).
Eureka could and did make shipments on its own, as
well as on behalf of National, but when they moved
in interstate commerce they moved in National’s name
(Tr. 136, 167).
55a
No direction was given by National as to the route
to be traveled from point to point (Tr. 132).
Eureka drivers, including Claimant, attended a train-
ing course at Broadview, Illinois sponsored by National
Van Lines in which methods of record-keeping, prep-
aration of Bills of Lading, etc. were taught. The pur-
pose of the course was to teach the drivers how to
comply with the required ICC regulations pertaining
to shipments moving in interstate commerce, in pur-
suance of the agreement with National (Tr. 155-56,
160-62, 193-94). Successful completion of the course
was necessary to National’s approval of the individual
as a driver. Lack of approval prohibited the driver
from hauling National shipments. It did not prevent
the driver from handling Eureka shipments within
Virginia (Tr. 155-56, 193-94).
5. In 1963, witness Nicholas Castellano was an indepen-
dent insurance agent employed by the O’Shaughnessy In-
surance Agency. He placed business with several companies
including Maryland Casualty Company.
On or about August or September 1963, Castellano first
met Riley, Senior. Prior to that time Eureka’s operation
had been covered by Maryland Casualty and continued to
be so covered insofar as workmen’s compensation was con-
cerned. He discussed with Riley, Senior, the nature of
Riley’s operations. He stated that Riley, Senior told him
that his operations were in Northern Virginia only and
that the liability on vehicles and men outside of Virginia
was covered by a contract he had with the “Van” lines.
The discussion included the amount of premiums to be
charged (Tr. 51-52, 56-58, 68-70; Tr. IL—25).
Riley, Senior testified that he did not remember the
conversation related by Castellano but states he was told
by Castellano that all he needed was coverage under Vir-
ginia laws (Tr. 175-76, 186-187, Tr. IL. 27-28).
56a
Castellano delivered the renewal policies to Eureka in
Virginia (Tr. 52, 54).
The Declaration Section of Policy No. 01-82-27-81 issued
by Maryland Casualty Company covering the period from
October 10, 1965 to October 10, 1966, was issued to Eureka
Van and Storage Company, Inc. as a renewal of Policy
No. 01-769112. The street address of the insured was in
Falls Church, Virginia, later changed to Merrifield, Vir-
ginia. The policy provided that:
“All usual work places of the insured at or from which
operations covered by this policy are conducted are
located at the above address unless otherwise stated.”
It further specifically provided that:
“Coverage A of this policy applies to the workmen’s
compensation law and any occupational disease law
of each of the following States: Virginia.” (Tr. 21-22,
211; Eureka Exh. 1).
In addition to the Declaration Section of the policy, there
is a cover jacket containing the general provisions. These
provisions revised as of August 1963, were in use in all
States and the District of Columbia (Tr. 75; Eureka Exh.
6; Tr. 224, 229; Tr. II.—10). These two portions constituted
the complete contract which showed on its face that it
covered Virginia operations only (Tr. 231-32, ALJ-9).
6. There was also available, through Maryland Casualty,
an “all states” compensation clause that could have been
added, by endorsement of the policy, the effect of which
was to provide coverage all over the Continental United
States (Tr. 80-81). No such coverage was applied for in
this case. Riley, Senior stated he only wanted Virginia
coverage (Tr. 82-83).
The coverage on a policy had a direct bearing on the
premium to be paid. Riley, Senior’s policy covered only
Virginia (Tr. 82). The fiscal premium is figured by the
57a
Carrier, Maryland, on the basis of the payroll submitted
by the agent and the rate for the State concerned (Tr. 88-
89).
In computing premiums for multiple coverage in more
than one State the form used is the same but the payroll
and category of employment in each State is allocated and
set forth so that the policy holder knows from the face of
the policy what coverage, by State, he has and what he is
paying for it in premiums (Tr. 90).
7. Riley, Senior, admitted that he received and read the
policy about thirty days after it was written. He noted the
Virginia coverage only. He does not remember if he ques-
tioned it. He admits that the policy was never changed
(Tr. 177, Tr. II—34). It was stipulated that the Virginia
policy covered claims occurring anywhere in the Continental
United States in accordance with Virginia Law and at
Virginia rates of benefit. —
8. James A. Riley, III, who is herein before and after
referred to as the Claimant, stated he was born in 1943
(November 19); he is now unemployed and has been so
since January 7, 1966, the date of the accident (Tr. 93). The
accident oceurred at Grand Island, New York, a suburb of
Buffalo (Tr. 93). The truck driven by Claimant “jack-
knifed” on an icy road and struck an abutment (Tr. 93).
At the time of the accident and for five years earlier,
Claimant had been employed by the Employer, Eureka, as
a truck driver (Tr. 93, 128-31). He had been so employed
at the time Eureka was incorporated (Tr. 93-94).
The particular track involved in the accident was a 1965,
GMC Tractor, bearing New York, as well as, Virginia tags
(Tr. 104). The trailer had only Virginia license tags (Tr.
104). The unit was owned by Eureka and had National
Van Lines markings (Tr. 65-66, 69, 104).
The trip on which the accident occurred is recorded on
a National Van Lines trip manifest form which shows the
ete, A te, ph de
58a
Bill of Lading number, shipper’s name, origin, destination,
loading date, estimated time of arrival, cubic feet and type
of shipment (National or COD). This trip was Number 151,
Manifest No. N474, showing Eureka as the agent and J.
Riley as the driver. The manifest date was January 5, 1966
(Tr. 29, Cl. Exh. 1). Item 2 on the manifest originated in
the District of Columbia and was picked up on December
30, 1965. It had been delivered in New York City one day
before the accident (Tr. 96-97).
The Claimant stated he had visited the District of Colum-
bia on company business once or twice a week for five years
prior to the accident (Tr. 94).
9. Claimant made no reports himself to National, Eureka
or anyone else on the date of the accident because he was
incapable of doing so (Tr. 138-42, 148). Riley, Senior first
received word of the accident through the National Van
Lines dispatcher at Broadview, Illinois shortly after the
accident (Tr. 18).
10. An “Employer’s First Report of Accident” was filed
by Riley, Senior as President of Eureka Van and Storage
Company, Inc. before the Industrial Commission of Vir-
ginia, on February 22, 1966. It recited that the Employer’s
place of business was in Merrifield, Virginia; that the
accident occurred at Grand Island, New York on January
7, 1966 at 10:30 A.M.; and that the foreman, James A.
Riley, was aware of the accident by 11:30 A.M. of that
same day. The injured man was described as the Claimant,
James A. Riley, III, of Fairfax, Virginia, 22 years old,
whose regular occupation was that of a truck driver for
the corporation at a salary of $110.00 per week for a six
day week. The accident occurred when the tractor truck
driven by the injured employee jackknifed (Tr. 23-25;
Eureka Exh. 2). The form was filled out and signed in
Eureka’s office by Riley, Senior in the presence of an ac-
countant and Castellano. Castellano forwarded the claim to
59a
Maryland Casualty at their Branch Office in Wheaton Plaza,
Montgomery County, Maryland (Tr. 71-77; Eureka Exh. 2).
11. On March 8, 1966 an agreement as to compensation
was executed on behalf of the Employee, James A. Riley,
III, by his father, Riley, Senior, signing as attorney in fact;
the Employer, Eureka Van and Storage Company, Inc.
(with no particular signature on its behalf), and Maryland
Casualty Company, by an adjuster. The signature of Riley,
Senior was witnessed by N. R. Castellano of 220 Balsam
Road, Sterling, Virginia. This agreement recited that the
Claimant should receive $39.00 per week (based on an
average weekly salary of $110.00) from January 14, 1966
until terminated in accordance with the provisions of the
Workmen’s Compensation Law of the State of Virginia.
The basis for the agreement was compensation for the in-
jury received on January 7, 1966 (Tr. 23-25; Eureka Exh.
5, 188-190). He stated he signed the agreement in the best
interest of his son and deposited the benefits to his son’s
account (Tr. 188-190).
12. By Notice of Award dated March 30, 1966, the Vir-
ginia Industrial Commission approved the settlement agree-
ment calling for payment of $39.00 per week compensation
under the Virginia Act. The final paragraph states per-
tinently :
“If any party in interest doubts that the agreement
made has been made strictly according to law, he may
address the Commission with an inquiry, or complaint.”
(Tr. 23-25; Eureka Exh. 4).
Claimant started to receive benefits from Maryland Casual-
ty at the rate of $39.00 per week for 400 weeks or until
about two months before this hearing, i.e., October 1973.
The total amount paid in compensation was $15,600.00. In
addition, Maryland Casualty paid the hospital and medical
bills for the first two years. These medical benefits termi-
nated on January 7, 1968 (Tr. 110-111, 116). Maryland
60a
Casualty has discharged its obligation under Virginia Law
(Tr. 116-117). No further claim is now made pursuant to
Virginia Law (Tr. 117; ALJ-9).
13. Claimant had never been to Virginia after the acci-
dent and prior to April 1966 to participate in hearings
before the Industrial Commission (Tr. 106). He did not sign
the compensation agreement (Tr. 106; Eureka Exh. 3). He
never signed any written authorization for anyone to act
on his behalf (Tr. 108).
Claimant stated that he enjoyed a usual happy father
and son relationship with Riley, Senior and that during his
six months hospitalization in New York his father visited
him often (Tr. 118-120). During this period, he assumed
his father was handling his business affairs, although he
didn’t ask him not to do so (Tr. 120). He states he never
saw any checks personally but assumed they were deposited
to his account (Tr. 120, 188-190). He never objected to his
father acting on his behalf (Tr. 199).
Claimant became aware, after he was released from the
New York hospital and returned to Virginia, that he was
receiving checks from the Maryland Casualty Company
pursuant to the Virginia Statute (Tr. 124). He discussed
with his father the fact that the insurance company was
paying for the accident and was told he was entitled to
the payments (Tr. 124-26).
About eight to ten weeks elapsed from the date of the
accident and the resumption of the son’s ability to discuss
his affairs with his father (Tr. 197). This would have been
about April or May 1966.
14. An action was filed by Riley, Senior under the New
York State Compensation Law (Tr. 29-31, 184-86; Nat.
Exh. 1). This action was not prosecuted by Claimant be-
cause it was shown in New York that there has been Vir-
ginia coverage only and that an award had already been
made (Tr. 34-35; Opening statement of counsel for Claim-
6la
ant). It was dismissed without prejudice on August 9, 1966
(Nat. Exh. 1).
Claimant states he never saw the paper from the State
of New York until the date of the hearing (Tr. 121). He
never personally filed a claim in New York (Tr. 122; Nat.
Exh. 1). Neither did he ever retain counsel in New York
(Tr. 122).
15. Claimant had consulted a Washington attorney about
a year prior to March 22, 1972 (March 22, 1971), which was
the date he retained his present counsel (Tr. 122-24). He
stated that the subject of discussion at that time was the
possibility of filing additional claims in New York State.
16. An Employee’s Claim for Compensation dated May
2, 1972, and signed by James A. Riley, III was filed with
the Deputy Commissioner. It recited Claimant was born in
November, 1943; that he suffered an accident at 11:00 A.M.
on January 7, 1966; that his average weekly wage at the
time was $125.00 and his annual salary was $6,500.00. It
named as his foreman, “Dispatcher, National Van Lines,
Broadview, Illinois.” It was stated that the dispatcher knew
of the accident on the same day as it occurred. It further
stated the accident had occurred in New York State at
Grand Island, New York. It also said that Claimant had
never returned to work after the accident and was perma-
nently confined to a wheelchair as a result thereof (ALJ-6).
The answer of Respondents, Maryland Casualty and Eure-
ka, filed by the Carrier, admitted all allegations except that
the Employee and Employer were subject to the Act at the
time of the injury (ALJ-8).
17. The Claimant never filed a claim against National
similar to that addressed to Eureka and its Carrier in 1972
(ALJ-6; Tr. 137-38). However, Claimant is now asserting
a claim against National as well as Eureka (Tr. 157).
18. The parties stipulated that the average weekly wage
at the time of the injury was $110.00 (Tr. II.—4).
ay
62a
19. Claimant was totally and permanently injured, within
the scope of his employment, as a result of the accident.
He was hospitalized a total of two years, six months of
which were in New York State (Tr. 105). He is a quadri-
plegic having no use of his four limbs except for limited
ability to carry out self-care activities. He is confined to a
wheelchair (Tr. 105, ALJ-7, 9).
20. Claimant states that since January 1968, he has in-
curred additional medical expenses. He was hospitalized at
Cafritz Hospital for about six weeks and at Fairfax Hos-
pital for about two weeks. The cost of each hospitalization
was paid under his wife’s insurance policy through the
Washington Post. No amounts were stated (Tr. 111). The
Claimant stated that on both occasions he was treated for
“Decubiti”, or bed sores, and urinary tract infections (Tr.
114). Claimant further states that since January 1968, he
has expended from his own funds the following sums of
money for medical attendance, supplies and equipment
without reimbursement (Tr. 115-116).
Year Attendant Medicine and Equipment
1968 $6,500.00 $2,700.00
1969 $7,020.00 $2,900.00
1970 $7,540.00 $1,500.00
1971 $7,800.00 $3,515.00
1972 $8,060.00 $8,203.00
1973 $8,320.00 $3,500.00
Conclusions of Law
1. The testimony of Riley, Senior throughout the hearing
was evasive, vague, and full of “I don’t remember” answers
to questions, the subject matter of which one could hardly
fail to remember. For instance, he did not remember if he
retained an attorney to represent him in New York; or if
he had been appointed by anyone to represent his son’s
interest in New York; or if he had received a signed paper
63a
appointing him his son’s attorney-in-fact; or if a court
appointed him (Tr. 182-90). We also note that although as
the employer, he was nominally, an opposing party to the
Claimant, in fact he conducted himself throughout the
history of this claim as the naturally concerned and in-
terested father of the injured Claimant. He was thus in a
conflict of interest between his duty to the Corporation and
his filial concern for his son. His testimony reflects that he
resolved this conflict, not unnaturally, in favor of the Claim-
ant. On the whole it is not sufficiently credible to constitute
the substantial evidence upen which our decision must rest
(Richardson vs. Perales, 402 U.S. 389 (1971).
2. Notwithstanding Riley, Senior’s testimony to the con-
trary, we find that he knowingly and intentionally pur-
chase? workmen’s compensation insurance in Virginia only ;
that he rejected coverage elsewhere ; that he knew, or should
have known, that the Virginia coverage was applicable
country-w.de and that he considered it to be a discharge
of his contractual obligation to provide workmen’s compen-
sation insurance for drivers operating under the National
agreement. We further find that Riley, Senior, as the Em-
ployer, did not refuse D.C. coverage because he was misled,
or because he expected National to provide it, but because
it was more expensive, and not necessary to satisfy the
law of his domicile, (Virginia). To conclude otherwise
would be to indulge in a presumption, unsupported by any
contemporary evidence, that he not only intended to breech
his contract with National by not providing the workmen’s
compensation insurance he was obliged to provide under
that contract, but that he deliberately exposed himself to
the criminal sanctions imposed on employers subject to
the Act by failing to obtain D.C. coverage (see 33 U.S.C.
§ 938).
3. We further find, contrary to the argument in Claim-
ant’s brief, that there is no evidence that the corporate
Employer, Eureka, through Riley, Senior, and Maryland
64a
Casualty contrived to bring a compensation claim into a
jurisdiction “selected” by them, nor did anything else
amounting to fraud, deceit, or even innocent misrepresen-
tation of facts that would justify treating the Virginia
Award as other than final. Neither is there a basis for con-
verting an “involuntary” payment into a “voluntary” one.
The facts clearly show that Riley, Senior filed the claim
in Virginia because it was the most logical place to file it.
Both, Eureka, father and son, were residents of Virginia
and the only insurance coverage was Virginia coverage
provided in accordance with Virginia Law. Further, he
undertook to act for his son out of parental concern, when
his son was unable to act for himself. When the son became
able to control his own interests, he ratified the cast that
his father had taken on his behalf. The son accepted the
benefits achieved through his father’s actions continuously,
over a substantial period of time, until they were ex-
hausted. One who assumes a position in a legal proceeding
and successfully maintains it is precluded from thereafter
assuming an inconsistent position if it be to the prejudice
of one who acquiesced in the position formerly held. Such
is the rule in Virginia and in the federal courts [Davis vs.
Wakeslee, 156 U.S. 680 cited in Rhea vs. Shields, 49 SE2
70 (1904); McLaughlin vs. Gholson, 171 SE2 816 (1970);
Davis vs. Wakeslee, supra, cited in Jones vs. Central Rail-
way of Georgia, 331 F2 649 (1964); Roth vs. McAllister,
316 F2 143 (1963). We think he is estopped to challenge
that proceeding now, in what is, in effect, a collateral attack
on a foreign judgment (only after it has been satisfied). If
Claimant believed then, as he now alleges before us, that
the Virginia Industrial Commission was induced to make
an award on the basis of misrepresentation of facts before
it, the fraud alleged was upon the Commission and this
argument should have been addressed to it. Claimant failed
to do so. His acquiescence in the result over a period of
years creates a strong inference that it was, and is, proper.
65a
4. Section 36-501 of the District of Columbia Code per-
tinently states:
“§ 36-501. Longshoremen’s and Harbor Workers’ Com-
pensation Act made applicable to District of Columbia.
The provisions of Chapter 18 of title 33, U.S. Code,
including all amendments that may hereafter be made
thereto, shall apply in respect to the injury or death
of any employee of an employer carrying on any em-
poyment in the District of Columbia, irrespective of
the place where the injury or death occurs; except
that in applying such provisions the term “employer”
shall be held to mean every person carrying on any
employment in the District of Columbia, and the term
“employee” shall be held to mean every employee of
any such person. (May 17, 1928, 45 Stat. 600, Ch. 612,
$i."
The treatment of jurisdiction in cases of this nature is
largely a treatment of which statute applies, but the two
concepts usually coincide since the compensation law of one
jurisdiction cannot ordinarily be enforced in another (Lar-
son: Workmen’s Compensation Law, Sec. 84:20, hereinafter
cited as Larson). A sound reason for this is because the
purpose of a commission, as in Virginia, is to not only
administer disputes and make money awards, but to super-
vise the contining beneficial application of the statute as
needed.
5. The rule is that the full faith and credit clause of the
United States Constitution applies to statutes as well as
judgments, but the constitutional requirement is satisfied
where the legitimate interest of the forum state is such
that it may justifiably protect that interest by application
of its own rule [Larson, Sec. 86; Alaska Packers Assn. vs.
Industrial Accident Commission, 294 U.S. 532 (1935) ;
Pacific Employers Insurance Co. vs. Industrial Accident
Commission, 306 U.S. 493 (1939); Cardillo vs. Liberty
66a
Mutual Insurance Company, 330 U.S. 469 (1947), 67 S.Ct.
801]. Where the local forum sits in the jurisdiction where
the injury occurred, the contract of employment was made,
the employment relation exists, the employee resides and
where the business is localized, then the local compensation
statute is applicable (Larson, Sec. 86). Where the injury
occurs in another jurisdiction the local forum must decide
whether it will apply its own statute. As an example, for
Virginia to apply, as it did in this instance, its out-of-State
rule, it requires the presence of four elements: the place of
contract, the employer’s business, the employee’s residence,
and a showing that the services were not to be rendered
exclusively outside the State (Larson, Sec. 87:11 citing
Virginia Code, Sec. 65-68).
The District of Columbia statute leaves delineation of
the restrictions on its extra territorial application to the
courts (Larson, Sec. 87:13, 36 D.C. Code 501). In the
leading case in the District of Columbia [Cardillo vs. Liber-
ty Mutual Insurance Company, 330 U.S. 469 (1947) the
Supreme Court dealt with the application of the D.C. Sta-
tute as well as with the constitutional need to give full faith
and credit to the Statute of Virginia. In that case, the em-
ployment contract was made in the District, the employer
was in the District and the claimant was a resident of the
District. The injury occurred in Virginia. It was contended
that Virginia had sole jurisdiction over the claim. The
Court held jurisdiction is to be presumed in the absence
of substantial evidence to the contrary, citing Section 20
of the Longshoremen’s Act, a provision which, it stated,
applies with equal force under the D.C. Act and; jurisdic-
tion rests upon the D.C. Act, the language of which leaves
no room to exclude employees who have substantial busi-
ness and personal connections in the District but who are
injured outside the District. However, the Court further
stated that whether this language covers employees who
are more remotely related to the District is a matter which
was not then decided. The opinion stated that the purpose
67a
of the Act was to provide residents of the District with a
remedy and District employers with a limited and deter-
minate liability. To further this purpose, the District’s
interest in providing a remedy for its residents did not
turn on the location of the injury, but on the existence of a
substantial connection between the District and the par-
ticular employer-employee relationship which it found to
exist in that case, and which existed in earlier holding of
the Court of Appeals for the District of Columbia which
were cited with approval. For instance, see B.F. Goodrich
vs. Britton, 139 F2 362 (1943), where the employer and the
employee resided in the District and the employer was
engaged in business in the District, even though the acci-
dent occurred elsewhere; to the same effect see Travelers
Insurance Co. vs. Cardillo, 141 F2 362 (1944); and, Travel-
ers Insurance Co. vs. Cardillo, 141 F2 364 (1944). From
these holdings it is apparent that a substantial connection
between the employer-employee relationship and the Dis-
trict exists when both the employer and employee are resi-
dents, the contract of employment is made in the District
and business is carried on in the District.
In a contemporaneous case the Court of Appeals for the
District of Columbia held that where the injury was sus-
‘tained in Maryland, the contract of employment was made
in Maryland, and at the time of the injury no employment
existed within the District of Columbia, and an award had
already been made under the Maryland Compensation Law,
the claimant even though a resident of the District of Co-
lumbia was not subject to the District of Columbia Act
[Gudmundson vs. Cardillo (1942) 126 F2 521). And, in
Travelers Insurance Co. vs. Cardillo, supra, (141 F2 362),
the Court by way of dictum stated that if the claimant had
made and pursued his claim to final award in Maryland, it
would have been final and conclusive in the District and
elsewhere.
In the Suburban Glass Co. (Suburban Glass Co. vs.
Wood, BRB 130-73, March 8, 1974) case the Benefits Review
68a
Board found that the D.C. Statute contained no prerequi-
site that the employment contract arise in the District;
that the employer maintain an office in the District, nor
even that the injury occur in the District. The only require-
ment for jurisdiction is stated to be that the employer
carry on employment in the District. In so holding it stated
that the cases relied upon by the petitioner therein were not
controlling in that none of them required the presence of
any specific factor as necessary, [citing Cardillo vs. Liberty
Mutual Insurance Co., 330 U.S. 469, 67 S.Ct. 901 (1947);
Pacific Employer's Insurance Co. vs. Industrial Accident
Commission, 306 U.S. 493, 59 S.Ct. 629 (1939); Alaska
Packers Association vs. Industrial Accident Commission,
294 U.S. 532, 55 S.Ct. 518 (1935); U.S. Fidelity Guaranty
Co. vs. Donovan, 221 F.2d 515 (1954) }.
We do not find, as the Board did in Suburban Glass, that
the Employer herein was carrying on employment in the
District sufficient in degree to require the District to invoke
its Act. In this case the Employer entered the District on
an itinerant basis to make pick-ups or deliveries of mer-
chandise enroute to or coming from other parts of the
Country. On these trips as on the trip in which the accident
occurred, the employer’s vehicle passed through, perhaps
without even stopping, several intermediate States to reach
its destination. It can hardly be said that the mere passage
through these States makes the employer liable under their
respective workmen’s compensation statutes. Yet, this is
what Claimant would have us hold to be true of them and
of the District of Columbia. Such is not the rule of reason.
Logic and common sense hold us to a rule which gives
practical effect to the real interest of the District of Colum-
bia in the application of its statute. We can find none here.
The Claimant was a Virginia resident. His contract of
employment, to the extent that public policy made local
law a part of the contract, incorporated Virginia Law. The
employer’s place of business was in Virginia and subject
to Virginia Law. The accident occurred in New York. The
69a
policy of the District Law as observed by the Court in
Cardillo is to conserve and forward the interests of District
residents while at the same time placing on District em-
ployers a limited and determinate liability. It does not
purport to make every itinerant foreign employer, whose
presence in the District at any particular time is vicarious
and uncertain, a District employer whose liability is over
and above that of its domicile when the foreign employer
has already met all th
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