Petition — National Van Lines, Inc. v. Director, Office of Workers' Compensation Programs

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RESALE ED

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'§ 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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