# Petition — National Van Lines, Inc. v. Director, Office of Workers' Compensation Programs > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1870%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 448 U.S. 907 ## Text RESALE ED ag, x ‘ Te Oo as '§ IN THE ‘ Gunsiels Court of the ited States ? .. Oerorer Term, 1979 791460 NationaL Van Lines, INc., Transport INDEMNITY COMPANY, Petitioners, V; James A. Rizey, ITT) Director, OFFICE ae, KERS’ px, 11) SATION PROGRAMS, US Dept. 6 re Laber, ime ; PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Leo A. Roru, JR. DENVER H. GraHaM 1314-19th Street, N.W. Washington, D. C. 20036 Attorneys for Petitioners Pases or Byron 8. Anas Pantin, Inc., Washineton, D. C. Page I I ra ic ce arse nt wes dea ee anasns 1 WU eke lace crlek rrerccgatevassccaces 2 CE: TIS ik TAs. FE. 2 SRS OP CN inhi e dwwcnied cyeieeeed coveceses 5 ConstTITUTIONAL AND StaTuTORY PROVISIONS .......... 3 Reasons FOR GRANTING THE PETITION ................ 7 I. Failure of the District of Columbia Circuit to faithfully adhere to this Court’s directive in Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943), constitutes compelling justification for SUOMI WE IE ack vnes websccceecsccess 8 II. The lower Court’s conclusion that the District of Columbia and the Eureka—Riley employ- ment_relation was “substantial” is based on a clearly erroneous application of the constitu- tional more of due process enunciated in International Shoe Co. v. Washington, 326 U.S. 310 (1945) and Cardillo v. Liberty Mutual In- surance Co., 330 U.S. 469 (1947) ............ 10 III. The disputes between the Fourth Circuit and the ruling in the case at bar causes confusion constituting compelling justification for grant- £8 | RE I ay 19 COMI aids gabe nicks PAs abs kee Mein ance dee ccuas 20 BS Bok Oa Aaa ERO Ua Cae aoc re is cacees la oy fog eT a 2a GE BE ik iia ieee Cok Ce Oaw doe ac coc ccces 3a RT abc Ba cake cdRtd wanes ka derecccees 32a Pek SORA RAEN chk dee SAM ooo dace ces 4la ii CITATIONS Page CasEs: B. F. Goodrich Co. v. Britton, 78 U.S.App.D.C. 221, SED Be GOP AAUOOD: chen cic ssecacde devas 13 Bolton v. Reddy Motors, Inc., et al., BRB No.: 78-323 CRUE i ROE 6063 Ch dv os 3a eek ReaNe ORR 17 Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 476, 67 S.Ct. 801, 806 (1947) .............. 10, 12 Ekar v. International Union of Operating Engineers, im) 406, BRB Nos.: 74-209, 209A (April 11, RUUD bb ak N CN amd ea ES Na DRC Gudmundson v. Cardillo, 75 U.S.App.D.C. 230, 126 F.2d DEE CURE Rovids< tadad vans i ceckickaviben 14 International Shoe Co. v. Washington, 326 U.S. 310 ba praia Abeer aey . OMe tyi 11 Magnolin Petroleum Co. v. Hunt, 320 U.S. 430 (1943). .8, 10 McKenny v. Capital Crane Corp., 321 F. Supp. 880, 883 (D.C.D.C. 1971) Pettus v. American Airlines, 587 F.2d, 627 (4th Cir. © 62 6.2°O 6 6 06 @.6'@ 8 6'O' 6 Op S'S 6.8.8 6 © 8S 1978) Cert. denied, US. (No. 78-1739 WIG iis oR kk eee 9, 10 Probst v. Southern Stevedoring Co., 379 F.2d 763 SIMEED. ho knaskod hiba need alan sa peed oak ka eee 16 South Chicago Coal € Dock Co. v. Bassett, 309 U.S. ae GO Sh ben ibaa hd ck hs ches oka heise ce 15 Thomas v. Washington Gas Light Company, —— U.S. Cert. granted (11/26/79 No.: 79-116) ...... 9,10 Travelers Insurance Co. v. Cardillo, 78 U.S.App.D.C. SOG, FUR Pe Be CHO oc oe inn pies kcccue voce 13 U. S. Fidelity and Guaranty Co. v. Donovan, 94 U.S. App.D.C. 377, 221 F.2d 515 (1954) ............. 14 Citations Continued iii Page ConstITuTIONAL AND StaTuToRY Provisions: District of Columbia Code, Section 36-501 ........--- 4 Fourteenth Amendment, U.S. Constitution ........-- 3, 4 Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. 901 et seq. «0... eee e reer errr eee ‘ tion Longshoremen’s and Harbor Workers’ Compensa ay 33 U.S.C. 920(A) .... cece eee ee eee eeeeeees United States Constitution, Art. IV, Section 1 ....... 3 Code of Virginia, VA. Code, Section G5.1-40 .... 2.000: 3 MISCELLANEOUS: A. Larson, The Law of Workmen’s Compensation, Vol. 4 Section 85.10 ...... ccc cece cccscccesccceccecee tatement of Law Second, Conflict of Laws, Section sip 181, Poeteaiite Range of Territorial Application 18 IN THE Supreme Cowt of the United States OcToBER TERM, 1979 No. NATIONAL VAN LINEs, INC., TRANSPORT INDEMNITY COMPANY, _ Petitioners, Vv. JAMES A, Riwey, III, Director, OFFICE OF WoRKERS’ COMPENSATION PROGRAMS. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT National Van Lines, Inc. and Transport Indemnity Company, petition this Honorable Court for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. OPINIONS BELOW An Order denying Petition for Rehearing dated De- cember 19, 1979 (App. A., no reported decision). An Order denying suggestion for Rehearing en banc dated 2 December 19, 1979 (App. B, no reported decision). The opinion of the United States Court of Appeals for the District of Columbia Circuit in Director, Office of Workers Compensation Programs v. National Van Lines, Inc., et al, —— F.2d —— No. 78-1259, No. 78- 1268 (1979), (App. C). The second decision of the Benefits Review Board dated January 23, 1978. (App. D), reported at 7 BRBS 445 (1978). The initial deci- sion of the Benefits Review Board dated May 6, 1975 (App. 3, reported at 1 BRBS 449 (1975). The initial Decision of the Administrative Law Judge dated July 10, 1974. (App., F, unreported.) JURISDICTION The decision of the Court of Appeals was made and entered on November 13, 1979. The Order of the Court of Appeals denying the Petition for Rehearing and for suggesting Rehearing En Bane dated December 19, 1979. The Petitioners invoke the jurisdiction of this Court under 28 U.S.C. § 1254 (j). QUESTIONS PRESENTED 1) Whether the obligation to give full faith and eredit as set forth in Article IV, Section 1 of the United States Constitution should be accorded the Vir- ginia Workmen’s Compensation Act, including its ex- clusive remedy provision, Virginia Code § 65.1-40 (1975 Repl. Vol.), and, if so, whether full faith and credit will preclude a subsequent compensation award in the District of Columbia after claimant’s voluntary acceptance of workmen’s compensation approved by the Industrial Commission of Virginia. 3 2) Whether the lower court’s decision to invoke the jurisdiction of the District of Columbia Workmen’s Compensation Act based on their finding that claim- ant’s employment took place in the Washington me- tropolitan area creates a direct and irreconcilable con- flict between that court and the Supreme Court of the United States with respect to constitutional due pro- cess under the Fourteenth Amendment. CONSTITUTIONAL AND STATUTORY PROVISIONS Article IV, §1 of the United States Constitution provides: Full Faith and Credit shall be given in each State to the public Acts, Records, and, judicial Proceed- ings of every other State. The Virginia Workmen’s Compensation Act is em- bodied in Title 65.1 of the Virginia Code, VA. Code, § 65.1-40 (1975 Repl. Vol.), states: § 65.1-40. Employee’s rights under Act exclude all others—The rights and remedies herein granted to an employee when he and his employer have accepted the provisions of this Act respec- tively to pay and accept compensation on account of personal injury or death by accident shall ex- clude all other rights and remedies of such em- ployee, his personal representative, parents, de- pendents or next of kin, at common law or other- wise, on account of such injury, loss of service or death. (Code 1950, § 65-37, 1968, c. 660) Section I of the Fourteenth Amendment of the United States Constitution provides: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are 4 citizens of the United States and the State where- in they reside, No State shall make or enforce any law which shall abridge the privileges or immuni- ties of citizens of the United States; nor shall any State deprive any person of life, liberty, or prop- erty, without due process of law; nor deny to any person witbin its jurisdiction the equal protection of the laws. Title 36, §501 of the District of Columbia code provides: § 36-501 Longshoremen’s and Harbor Workers’ Compensation Act made applicable to the District of Columbia. The provisions of Chapter 18 of Title 35, U.S. Code, including all amendments that may hereinafter be made thereto, shall apply in respect to the injury or death of an employee of an employer carrying on any employment in the District of Columbia, irrespective of the place where the injury or death occurs; except that in applying such provisions the term ‘‘employer’’ shall be held to mean ev- ery person carrying on any employment in the District of Columbia, and the term ‘“em- ployee’’ shall be held to mean every employee of such person. (May 17, 1928, 45 Stat. 600 ch. 612, § 1.) Title 33, U.S.C., § 920(a) provides: In any proceeding for the enforcement of or claim for compensation under the Act, it shall pre- sume, in absence of substantial evidence to the con- trary—that the claim comes within the provisi of this Act. provisions 5 STATEMENT OF THE CASE | Respondent Riley entered into an employment con- tract with Eureka Van & Storage Company in the State of Virginia. He resided in Virginia at all times applicable herein. The principle place of business be- tween the Respondent and Eureka was in Virginia, and the employer’s office was in Virginia. Eureka and the Petitioner, National Van Lines, Inc., had an inde- pendeny agency agreement which allowed Eureka to move goods across state lines on National Van Lines’ interstate authority. The principle place of employ- ment and business for Respondent and his employer was the State of Virginia. The Respondent’s father vaguely contends that he had in the past either an answering service or office in Virginia. : On January 7, 1966, the Respondent while driving a truck for Eureka was injured when the vebicle with a trailer skidded and struck a bridge abutment. The accident happened in Grand Island, New York. The trailer being towed by Respondent possessed Virginia license plates. The truck being driven by Respondent possessed New York license plates. The trip originated in Virginia and the shipment included six items, one of which was picked up in the District of Columbia, but delivered before the accident occurred. The items were to be delivered in New York, Connecticut, and New Jersey. The Respondent entered the District of Columbia once or twice a week within the five years prior to the accident. On February 22, 1966, James A. Riley, Sr., Presi- dent of Eureka Van & Storage Company and, also father of the Respondent, filed an Employer’s First Report of Accident with the Industrial Commission of 6 Virginia. Riley, Sr., signing as Attorney in Fact, signed on behalf of his son, the Respondent, an agree- ment for compensation on March 8, 1966, with Mary- land Casualty Company, the insurer of Eureka Van & Storage Company. On March 30, 1976, the Virginia Industrial Commission approved the agreement allow- ing maximum benefits under the Act. Maryland Casu- alty Company paid the maximum benefits to the Re- spondent. On May 2, 1972, Respondent filed a claim for benefits in the District of Columbia pursuant to the Longshore- men’s and Harbor Workers’ Relief Act, 33 U.S.C., 901, et seq. Respondent has never filed a written claim against National Van Lines, Inc., or its insurer, Trans- port Indemnity Company. National Van Lines, Ine. or its carrier were invited by a phone call to partici- pate in the original Informal Conference and subse- quent hearings and did do so. The Administrative Law Judge dismissed the claim on the grounds that the District of Columbia lacks jurisdiction of the claim because of an absence of sub- stantial interest in the employment and the accident to the District of Columbia, and that the claim was barred by limitations. (See App. F) The Benefits Re- view Board reversed and remanded with a dissenting opinion by board member R. Hartman. (See App. E.) On remand, the Administrative Law Judge found that Maryland Casualty Company had discharged its obligation as an insurer and that National Van Lines, Ine. was a statutory employer under Section 904 of the Act and, therefore liable to the claimant. National Van Lines appealed the Supplemental Decision. The second decision by the Benefits Review Board ruled 7 that National Van Lines was not a statutory employer but that Riley, Sr. and Eureka were liable or the spe- cial fund in the event Riley, Sr. and Eureka were not solvent. (See App D). This decision was appealed by the Respondent Riley and the Director, Office of Workers’ Compensation Ss. Programs, U. S. Department of Labor. The U. Court of Appeals for the District of Columbia Cireuit ruled that the District of Columbia had subject matter jurisdiction and that National Van Lines was a sta- tutory employer, and that the Statute of Limitations did not bar the claim. Also, the Court affirmed that Maryland Casualty Company had no further liability. There was a dissenting opinion. (See App. C) Peti- tions for Rehearing and Rehearing En Bane were filed by National Van Lines and same were denied on De- cember 19, 1979. (App. A and B) This disnosition of this matter involves constitu- tional doctrine, conflict of laws, res judicata principle and jurisdictional standards. This Honorable Court is requested to decide two crucial issues, one involving the Full Faith and Credit clause of the Constitution and one involving the due process clause of the Fourteenth Amendment. It is specifically requested for this Court to declare that an employee who has received Workmen’s Com- pensation benefits from one jurisdiction may not re- ceive same from another jurisdiction without the latter forum violating the Full Faith and Credit clause of the Constitution. 8 Further, the Court is requested to define when one forum may take subject matter jurisdiction for an ex- traterritorial industrial injury without violating the due process clause of the Fourteenth Amendment. The resolution of the above two issues will establish guidelines for the future in determining state sover- eignty where as here there are conflicting and over- lapping statutory provisions. Further, the resolution of the jurisdictional question will establish guidelines for forum court’s inherent power to adjudicate claims for workmen’s compensation cases within the require- ments of due process. Since the District of Columbia has become a haven for these claims, the resolution of the above issues will enable the Courts and Adminis- — trative Agencies involved to have a basis upon which to decide these constitutional issues for numerous pending and future claims. I Failure of the District of Columbia Circuit to Faithfully Adhere to This Court's Directive in Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943), Constitutes Compelling Justification Granting Petition. ia wa This Court’s rvling in Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943) prevents the award of com- pensation to the Respondent under the constitutional restrictions of the Full Faith and Credit Clause. In Magnolia, an employee received Texas work- men’s compensation benefits pursuant to an accident in Texas. Subsequently, he filed a similar claim in Louisiana. The Texas award being a bar to any further recovery was, therefore, exclusive of his remedy under Louisiana law pursuant to the Full Faith and Credit clause. 9 The purpose of the bar was succinctly stated as fol- lows (id. at 439): ‘‘These consequences flow from the clear purpose of the full faith and credit clause to establish throughout the federal system the salutary prin- ciple of the common law that a litigation once pur- sued to judgment shall be as conclusive of the rights of the parties in every other court as in that where the judgment was rendered, so that a cause of action merged in every other. The full faith and credit clause like the commerce clause thus became a nationally unifying force.’’ (Km- phasis added). In Pettus v. American Airlines, 587 F.2d 627 (4th Cir. 1978) cert. denied, —— U.S. —— (No. 78-1739, October 1, 1979), the 4th Circuit Court of Appeals re- versed and vacated an award of compensation ren- dered in the District of Columbia on the basis that the employee first received benefits pursuant to the Vir- ginia Act and, therefore, the Full Faith and Credit clause dictated the employee’s loss of benefits pursuant to the District of Columbia Act. The factual situation in Pettus, cited supra, is identical to the case at bar. Subsequent to the denial of Certiorari in Pettus, cited supra, this Court granted a Petition for Writ of Certiorari in Thomas v. Washington Gas Light Com- pany, —— U.S. —— (November 26, 1979 No.: 79- 116). Said matter is still pending before this Court. The factual situation in Thomas, cited supra, is, also, identical to the case at bar. The employee there re- ceived Virginia benefits and subsequently attempted to receive District of Columbia benefits. An award was originally granted but on April 27, 1979, the Fourth Cireuit in an unpublished Per Curiam opinion re- 10 versed the award on the basis of Pettus v. American Airlines, Inc., cited supra. There is, therefore, a direct conflict existing between the result in the case at bar and the decision of Mag- nolia, Pettus, and Thomas, all cited supra. As noted, the Fourth Circuit has specifically ruled that the Virgin a statute forecloses a second recovery. In so doing, the principles of Magnolia have been fol- lowed. If the case at bar is allowed to stand, this Court’s mandates as set forth in Magnolia will be frustrated. The Lower Court’s Conclusion That the District of Columbia and the Eureka—Riley Employment Relation Was “Substantial” Is Based on a Clearly Erroneous Application of the Constitutional Principles of Due Process Enunciated in International Shoe Co. v. Washington, 326 U.S. 310 (1945) and Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469 (1947). In their opinion, the lower court determined that work or residence in the Washington metropolitan area as opposed to the District of Columbia satisfies the ‘‘substantial connection’’ requirement for work- men’s compensation benefits established by this Court in Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 476 (1947). Thus, according to their opinion, a person or corporate resident in Northern Virginia, without more, establishes an employment relation with the District of Columbia which qualifies candidates for benefits under that jurisdiction’s Workmen’s Compen- sation Law. This reasoning constitutes an impermissibly board and novel expansion of the “minimum contacts” rule established in the landmark decision of International 11 Shoe Co. v. Washington, 326 U.S. 310 (1945) and sets a dangerous precedent for the courts to follow in fu- ture workmen’s compensation cases. The Supreme Court in International Shoe defined what constituted sufficient contacts or ties between a state and a corporate defendant to make it reasonable and just in conformity with due process for the state court to exercise subject matter jurisdiction over the nonresident corporate defendant. The Court held that the activities by a defendant salesman within the state, including exhibiting samples of merchandise in perma- nent display rooms and soliciting orders from pros- pective buyers were of a ‘‘systematic and continuous”’ nature. In addition, the foreign corporation defendant in International Shoe employed a salesman who main- tained a resiuence within the state, continued his ac- tivities over a period of years, and was responsible for a substantial volume of merchandise regularly shipped by the corporation to purchasers within the state. It is clear that no such systematic and continuous relationship existed between National Van Lines and Eureka Van Lines and the District of Columbia that would allow the District to exercise jurisdiction over National Van Lines or Eureka Van Lines in conform- ity with due process. It is, also, quite evident that the Court in Jnterna- tional Shoe based its decision solely on the basis of for forum court’s inherent power to adjudicate claims whether or not the corporation established minimum contacts in the state and whether or not the contacts were sufficient to invoke the state’s jurisdiction. No- where in the International Shoe opinion do the justices state or allude to the possibility that a state could exer- cise jurisdiction over a non-resident simply because he 12 lives in the metropolitan area that borders the state. This conclusion is not only unsupported by the opinion, it has never been raised or established by any court in any judicial opinion. A court which bases its jurisdic- tion solely on these criteria clearly acts outside the scope of permissible exercise of jurisdiction and vio- lates all known principles of ‘‘traditional notions of fair play and substantial justice’’ as noted in the Inter- national Shoe opinion. In the leading case of Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 476, 67 S. Ct. 801, 806 (1947), the Supreme Court clarified the extraterri- torial jurisdiction of the D.C. Act by the following language : A prime purpose of the Act is to provide residents of the District of Columbia with a practical and expeditious remedy for their industrial accidents and to place on the District of Columbia employers a limited and determinate liability. ‘ sis added) ility. (own empha In addition, the Supreme Court in Cardillo clearly set forth the D.C. Acts extraterritorial reach by promul- gating: ... the Districts legitimate interest in providing adequate workmen’s compensation measures for its residents does not turn on the fortuitous cir- cumstances of their work or injury. Nor does it vary with the amount or percentage of work per- formed within the District. * * * Rather it de- pends upon some substantial connection between the District and the particular em ployee-em ployer relationship . . . (own emphasis added) In Cardillo, the Supreme Court found the D.C. Act applicable and granted compensation benefits to an employee for injuries he sustained while working in 13 Virginia. The basis of the decision was predicated on the finding that a “substantial’’ nexus existed between the District and the employee-employer relationship stemming from the fact that the employee was a resi- dent of the District, his contract of employment was entered into in the District and his employer had its principal place of business in the District. It is important to note that the Cardillo decision did not alter prior case law on the scope of the D.C. Act’s extraterritorial jurisdicion, but rather affirmed it. For example, in the case of B. F. Goodrich Co. v. Britton, 78 U.S. App. D.C. 221, 1389 F.2d 362 (1943), an em- ployee of the B. F. Goodrich Company was fatally injured in an automobile accident during a business trip in the State of Pennsylvania. In that case, this court took cognizance of the fact that the deceased employee was a resident of the District and spent at least one-half of his working time at his employer’s branch office in the District. As a result of these sub- stantial ties to the District, the D.C. Act was applied by this court. In Travelers Insurance Co. v. Cardillo, 78 U.S. App. D.C. 392, 141 F.2d 362 (1944), this court again in- voked the extraterritorial jurisdiction of the D.C. Act over the injuries sustained by an employee in Mary- land. In that case, jurisdiction was premised on the fact that the employee resided in the District, entered his contract of employment in the District and the employer’s principle place of business was in the Dis- trict... Additionally, the court in Travelers further stated that if a claimant pursues a claim to final award 1 See, also Travelers Insurance Company v. Cardillo, 78 U.S. App. D.C. 394, 141 F. 2d 364 (1944). 14 in a jurisdiction other than the District, such other award is conclusive on the D.C. Act. Subsequent case law reiterates the same jurisdic- tional factors as set forth by the Supreme Court in Cardillo. That is, before a compensation claim will be awarded under the D.C. Act for a foreign injury a substantial connection must first be established be- tween a claimant’s employment and the District of Columbia. In the case of U.S. Fidelity and Guaranty Co. v Donovan, 94 U.S. App. D.C. 377, 221 F.2d 515 (1954), this court stated that: The particular employee killed or injured need not have been working at the time within the District of Columbia; one comes within the ‘‘intent and design” of the statute when, as here, the employ- er’s office, the place of hiring, the employee’s resi- dence and other factors provide ‘‘some substantial connection between the District and the particular employee-employer relationship’’. Citing Cardillo, supra. On the other hand, however, when these crucial factors are not present, this court has declined to in- voke the extraterritorial reach of the D.C. Act. As noted in Gudmundson v. Cardillo, 75 U.S. App. D.C. 230, 126 F.2d 521 (1942), jurisdiction of the D.C. Act was denied over an injury occurring in Maryland where the claimant’s contract of employment was formulated in Maryland and compensation had already been granted by the State of Maryland. Likewise, in McKenny v. Capital Crance Corp., 321 F. Supp. 880, 883 (D.C.D.C. 1971), the court denied extraterritorial compensation benefits under the D.C. Act when the claimant’s accident occurred in Mary- land, claimant worked in Maryland, the employer had 15 his principle place of business in Maryland and the claimant accepted benefits under Maryland’s Compen- sation Law. In the first opinion concerning this claim dated July 10, 1974, the Administrative Law Judge ruled that the D.C. Act lacked jurisdiction over the matter and de- nied compensation benefits. In a well supported opin- ion, the Administrative Law Judge held that his find- ings of fact failed to indicate that a substantial con- nection existed between the District and the claimant’s employment. Applying the Cardillo case, the Adminis- trative Law Judge found the presumption of jurisdic- tion over the claim rebutted when the overwhelming weight of the evidence supported a contrary result. On May 6, 1975, the Benefits Review Board, hearing claimant’s appeal, reversed and remanded the claim back to the Administrative Law Judge by holding that jurisdiction was proper within the D.C. Act. The Board’s order cited only the case of Ekar v. Interna- tional Union of Operating Engineers, 1 BRBS 406, BRB Nos. 74-209, 209A (April 11, 1975), in support of their reversal. However, it must be noted that a strong dissent was recorded by one of the Board mem- bers in this appeal who firmly agreed with the Ad- ministrative Law Judge’s factual and legal findings. The dissenting Board member’s opinion held that: ... the determination of the Anministrative Law Judge is conclusive if supported by record evi- dence. South Chicago Coel & Dock Co. v. Bassett, 309 U.S. 251 (1940). Moreover, if it is supported by evidence and not inconsistent with law, an in- ference drawn by the Administrative Law Judge is conclusive, even where such inference is more legal than factual, when it is evident that the fact- 16 finder’s choice is firmly based on record evidence and is not forbidden by law. Citing Cardillo, supra. On remand, the Administrative Law Judge reluct- antly aitered his previous position and found jurisdic- tion within the D.C. Act. Yet, his supplemental opin- ion firmly argued against jurisdiction of the D.C. Act and only discussed the contrary in the following short paragraph: ' Notwithstanding the foregoing we must find, in accordance with the Board’s Mandate, that the employer, Eureka Van and Storage Company, Ine., is subject to the provisions of the Act. It follows that Eureka’s failure to provide insurance under the Act does not reduce its liability to the employee (33 U.S.C. 904, 905; Probst v. Southern Stevedoring Co., 379 F.2d 763 (1967).) Appeal was again made to the Benefits Review Board from the Administrative Law Judge’s second opinion. On this appeal, the Board declined any fur- ther comment on the question of jurisdiction, holding that it had already settled the matter. In viewing the four administrative opinions set forth above, the only legal support given for conclud- ing jurisdiction within the D.C. Act rests on the Board’s sole reliance on the case of Ekar, supra. The facts of this present claim, however, vary considerably from those found in Ekar and must be distinguished. In Ekar, jurisdiction was found as a result of the employee being a resident of the District, entering his contract of employment in the District and his em- ployer operating a viable office in the District. Clearly, the uncontroverted facts of this present claim lack the extensive relationship to the District that existed in 17 Ekar. In the case of bar, at the time of the accident, the claimant was a Virginia resident. His employer was also a Virginia resident. The claimant’s employer had his principle place of business in Northern Vir- ginia. The claimant’s contract of employment was entered into in Virginia. The tractor that the claim- ant was driving at the time of the accident had New York plates and not D.C. plates on it. The trailer that claimant was hauling at the time of the accident car- ried Virginia plates. Furthermore, none of the trucks owned by the claimant’s employer were titled in the District or even registered there. Ostensibly then, none of the important factors are present to support the Board’s conclusion that the District had jurisdiction over this claim. In point of fact, the only evidence indicating any type of relation- ship with the District and this claim are the following: 1. Claimant made itinerant business trips to the District about once or twice a week for about 5 years. 2. The day before the accident, the claimant made a delivery in New York City of a shipment that originated from the District. 3. Vague testimony by the claimant’s father that Eureka had a telephone answering service in the District. The Administrative Law J bey & dis- pelled this connection as being unsupported by the evidence. Based on these unpersuasive facts, the Benefits Review Board found a connection with the District despite the strengths of the evidence to the contrary. Ironically, however, in the recent case of Bolton v. Reddy Motors, Inc. et al. BRB No. 78-323 (July 9, 1978), the Benefits 18 Review Board denied compensation benefits in a situa- tion very similar to this one. In Bolton, the injury occurred in Maryland, the claimant was a Maryland resident and the claimant’s employer had his principle place of business in Maryland. Even though the claim- ant had frequent business travel within the District of Columbia, the Board refused to grant compensation on the grounds that the claimant’s employment failed to equate the substantial connection to the District as required by the D.C. Act. Throughout the above decisions, it is implicit that before the extraterritorial jurisdiction of the D.C, Act will be invoked, there must first be a substantial eon- nection existing between the District and the employee- employer relationship. Unless the claimants employ- ment evidences this required nexus with the District the jurisdiction of the D.C. Act should not be con- ferred. This position is squarely supported by the Restate- ment of the Law Second, Conflict of Laws, Section 181, Permissible Range of Territorial Application which provides as follows: ‘$181. Permissible Range of Territorial Applica- tion. ‘A State of the United States may consistently with the requirements of due process award relief to a pa under its workmen’s compensation statute, 1 ‘‘(a) the person is injured in the State, or ‘“‘(b) the employment is principally located in the State, or ‘‘(c) the employer supervised the employee’s activities from a place of business in the State, or 19 ‘“‘(d) the State is that of most significant rela- tionship to the contract of employment with respect to the issue of workmen’s compen- sation under the rules of §§ 187-188 and 196, or ‘‘(e) the parties have agreed in the contract of employment or otherwise that their rights should be determined under the workmen’s compensation act of the State, or ‘‘(f) the State has some other reasonable rela- tion to the occurrence, the parties and the employment.”’ The Restatement properly summarizes the essential criteria for territorial application of workmen’s com- pensation benefits. The facts of the case at bar do not support a conclusion as reached by this Court that a substantial constitutional connection exists between the Claimant, the accident, and the District. The Disputes Between the 4th Circuit and the Ruling in the Case at Bar Causes Confusion Constituting Compelling Justification for Granting the Petition. The District of Columbia because of its high benefits has naturally become a haven for all injured employees who come within its jurisdiction. Perhaps the time has come for injured employees to receive higher benefits, but this reasoning cannot interfere with the principles of Full Faith and Credit and due process. These basic principles of our Constitution and Amendments are not elastic enough to permit their stretching to the point of having no meaning. The number of claims filed in the District of Columbia by Virginia residents both before and after receipt of Virginia benefits are numerous. 20 There exists a conflict between the result reached by the lower court and the results reached by this Court in Magnolia, and the Fourth Circuit in Pettus and Thomas. Confusion necessarily has to exist for the various tribunals called upon to decide the Full Faith and Credit issue as well as the jurisdictional basis. The geographical proximity of the two jurisdictions makes it common for both Virginia and the District of Columbia to have dual jurisdiction under certain circumstances. The jurisdictional basis is not limited to Virginia and the District of Columbia, since if liber- ally construed, any clamant in any state may have access to the District of Columbia. Our tribunals need to know what guidelines to use to either accept or not to accept cases where there is an injury outside the boundaries of the District of Columbia. A. Larson, The Law of Workmen’s Compensation, Vol. 4, Section 85.10 (1979) succinctly sets forth the problem that exists because of our modern society. He observes that business and transportation are no longer localized, thereby creating problems one might face on a Conflict of Laws exam. Because of the above prob- lems and the vast number of industrial injuries, our tribunals need some rules to enable them to meet not only the needs of claimants but to insure constitutional protection to the employees. CONCLUSION This case will enable this Court to guide lower courts and agencies that are confronted with the ever persist- ent constitutional question of a second recovery as balanced with the Full Faith and Credit clause. 21 Additionally and as important, this Court will be able to succinctly set forth what factual situation will not violate the due process clause regarding jurisdic- tion for injuries to workmen outside the District of Columbia boundary. In order to avoid confusion created by the cited de- cision and this case in the lower court, the Petition For Writ of Certiorari should be granted. Respectfully submitted, Leo A. Roru, JR. Denven’H. GRAHAM 1314-19th Street, N.W. Washington, D. C. 20036 785-1200 Attorneys for Petitioners CERTIFICATE OF SERVICE I Heresy Certiry, that a copy of the foregoing Petition for Writ of Certiorari was mailed, postage prepaid this 14th day of March, 1980, to: Walter S. Pitsenberger, Esquire Belair Professional Village, Suite A-24 Bowie, Md. 20715 Attorney for Respondent Riley Joshua T. Gillelan, II, Esquire U.S. Department of Labor 200 Constitution Avenue, N.W., Suite N2716 Washington, D.C. 20210 Attorney for Director, Office of Workers’ Compensation Programs Vincent H. Cohen, Esquire 815 Connecticut Avenue, N.W., Washington, D.C. 20006 Attorney for Maryland Casualty Co. Leo A. Ror, JR. APPENDIX la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT September Term, 1979 Drrector, OrriceE oF WorKERS’ COMPENSATION PROGRAMS, Unirep States DEPARTMENT OF Lasor, Petitioner v. NationaL Van Lines, Inc., Transport INDEMNITY CoMPANY, Eureka Van & Srorace Company, Marytanp CasuaLty Company, AND JAMEs A. Ritey, III, Respondents And Consolidated Case No. 78-1268 Berore: Wright, Chief Judge; Bazelon, Senior Circuit Judge; and Tamm, Cireuit Judge ORDER Filed December 19, 1979 Upon consideration of respondents’ (National Van Lines, Inc., et al.) petition for rehearing, it is OrpERED, by the Court, that respondents’ aforesaid peti- tion for rehearing is denied. Per Curiam For tHe Court: /s/ Georce A. FisHEer Clerk 2a APPENDIX B UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT September Term, 1979 No. 78-1259 Director, Orrice oF Workers’ CoMPENSATION Programs, Unirep States DepartMENT oF Lasor, ~ Petitioner Natrona Van Liss, Inc., Transport InpEmNity CoMPANy, Eureka Van & Srorace Company, Maryann CasuaLty Company, AND James A. Rixey, III, Respondents And Consolidated Case No. 78-1268 Berore: Wright, Chief Judge; McGowan, Tamm, Robin- son, MacKinnon, Robb, Wilkey, Wald, and Mikva, Circuit Judges ORDER Filed December 19, 1979 The suggestion for rehearing en bance filed by respon- dents (National Van Lines, Inc., et al.) having been trans- mitted to the full Court and a majority of the judges in ~— active service not having voted in favor thereof, it is Orperep, by the Court, that respondents’ aforesaid sug- gestion for rehearing en banc is denied. Per Curiam For tHe Court: /s/ Grorce A. FisHer Clerk Circuit Judges Tamm, MacKinnon, Robb, and Wilkey — grant respondents’ suggestion for rehearing en anc. 3a APPENDIX C Notice: This opinion is subject to formal revision before publication in the Federal Reporter or U.S.App.D.C. Re- ports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press. UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 78-1259 Drrecror, Orrice oF Workers’ CoMPENSATION Procrams, Unrrep States DeparTMENT oF Lasor, Petitioner Vv. Nationa, Van Lines, Inc., Transport INDEMNITY Company, Eureka Van & Storace Company, MaryLanp CasuaLty Company, and James A. Rizey, III, Respondents No. 78-1268 James A. Ruey, III, Petitioner v. Director, Orrice oF Workers’ CoMPENSATION Programs, Unitev Srates DepartTMEeNT oF Lasor, e¢ al., Respondents Bill of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time. 4a Petitions for Review of an Order of the Benefits Review Board of the United States Department of Labor Argued June 1, 1979 Decided November 13, 1979 Joshua T. Gillelan, II, Attorney, Department of Labor, with whom Carin Ann Clauss, Solicitor of Labor, and Laurie M. Streeter, Associate Solicitor, were on the brief, for petitioner Director, Office of Workers’ Compensation Programs. Walter W. Pitsenberger for petitioner James A. Riley, IIT. ; Jean S. Moore, with whom Vincent H. Cohen and AI- phonso A. Christian, IT were on the brief, for respondent Maryland Casualty Company. Leo A. Roth, Jr. for respondents National Van Lines, Ine. and Transport Indemnity Company. Before Wricut, Chief Judge, Bazeton, Senior Circuit Judge, and Tamm, Circuit Judge. Opinion for the court filed by Chief Judge Wricurt. Dissenting opinion filed by Circuit Judge Tamm. Waricut, Chief Judge: These cases arise on petitions for review of an order of the Benefits Review Board (Board). *Under the Longshoremen’s and Harbor Workers’ Compen- sation Act (LHWCA), 33 U.S.C. §§ 901-950 (1976), workmen’s compensation claims are adjudicated in the first instance before Administrative Law Judges (ALJ). Id. § 919(d). Cases that raise substantial questions of law or fact may be heard by an admin- istrative appeals board, called the Benefits Review Board (Board). Id. § 921(b)(1) & (3). The three-member Board is a ** quasi- judicial ”’ independent body, appointed by the Secretary of Labor, id. § 921(b) (1); 20 C.F.R. §§ 801.101-103, 801.201 (1978). Peti- tions for review of Board orders are heard by the United States Court of Appeals, 33 U.S.C. § 921(c) (1976), see note 20 infra. 5a The Board upheld a claim by petitioner James A. Riley, III (Riley) for payments under the District of Columbia Workmen’s Compensation Law,” in addition to those he had already received under the Virginia statute.’ Riley’s employer, Eureka Van & Storage Company (Eureka), now defunct, and James A. Riley, Sr. (Riley, Sr.), the president and sole shareholder of Eureka and claimant Riley’s father, were held liable for the payments. To the extent that Eureka and Riley, Sr. could not satisfy the judgment, the claim would be paid from a special fund created by statute.* The Board held that Eureka’s insurance carrier, Maryland Casualty Company, was not liable because its policy cov- ered only claims made by Eureka employees under Vir- Prior to the 1972 amendments claims under the LHWCA were heard in the first instance by deputy commissioners; judicial re- view was by writ of injunction in the District Courts, 33 U.S.C. § 921 (1970) (amended 1972), with a right of appeal to the ap- pellate courts, 28 U.S.C. §§ 1291-1292 (1970). See generally In re District of Columbia Workmen’s Compensation Act, 554 F.2d 1075, 1078-1079 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976). 2The District of Columbia Code makes applicable to the Dis- trict of Columbia the provisions of the LHWCA: The provisions of chapter 18 of title 33, U.S. Code, includ- ing all amendments that may hereafter be made thereto, shall apply in respect to the injury or death of an employee of an employer carrying on any employment in the District of Columbia, irrespective of the place where the injury or death occurs; except that in applying such provisions the term ‘‘employer’’ shall be held to mean every person carrying on any employment in the District of Columbia, and the term ‘‘employee’’ shall be held to mean every employee of any such person. 36 D.C. Code § 501 (1973). Certain exceptions, not pertinent here, are listed in 36 D.C. Code § 502 (1973). °Va. Code Ann. § 65.1-1 to 65.1-152 (1973 Repl. Vol. & 1978 Supp.). ‘The special fund was established pursuant to 33 U.S.C. §§ 944- 945 (1976) ; see also id. § 918(b). 6a ginia law. The Board also held that National Van Lines, Inc. and its insurer, Transport Indemnity Company, were not liable to Riley because National Van Lines could not be considered a general contractor for purposes of the con- tractor liability provisions of the District of Columbia Act. Riley v. Eureka Van & Storage Co., BRB Nos. 76-259, 259A, 259B, 7 B.R.B.S. 445 (Jan. 23, 1978).° Petitioner Riley urges this court to reverse the decision of the Board with regard to the liability of Maryland Casualty Company, National Van Lines, and Transport Indemnity Company. He is joined in his petition by the Director of the Office of Workers’ Compensation Pro- grams (OWCP) for the United States Department of Labor,® who challenges only the portion of the order per- taining to National Van Lines and its insurer. I. BackGrounpD Claimant Riley was severely injured in a highway acci- dent on January 7, 1966 in New York State. He is perma- nently totally disabled, as a quadriplegic. The accident occurred during the regular course of Riley’s employment as a driver for Eureka Van & Storage Company, which was serving as an agent for National Van Lines in the haulage of goods in interstate commerce. On the fateful trip Riley was driving a truck marked with the colors and insignia of National Van Lines, under the direction of a dispatcher * Reprinted in Joint Appendix (JA) at 50. *The Director of the Office of Workers’ Compensation Pro- grams has standing as a petitioner in this proceeding both because of his official responsibility for administration of the LHWCA and because of his financial interest as administrator of the special fund. See Director, Office of Workers’ Comp. Programs v. Bough- man, 545 F.2d 210 (D.C. Cir. 1976) ; McCord v. Cephas, 532 F.2d 1377 (D.C. Cir. 1976); see also Director, Office of Workers’ Comp. Programs v. Eastern Coal Corp., 561 F.2d 632, 641-649 (6th Cir. 1977). 7a for National Van Lines. He had picked up goods in the District of Columbia, Virginia, and Maryland to be deliv- ered in New York, Connecticut, and New Jersey. The goods originating in the District of Columbia had been delivered in New York City on the day before the accident.’ While Riley was hospitalized Riley, Sr. filed an “Employ- er’s First Report of Accident” with the Industrial Com- mission of the State of Virginia on February 22, 1966. No report was made to the District of Columbia Workmen’s Compensation Commission with respect to Riley’s accident or claim until 1972.* On March 8, 1966 Riley, Sr., on behalf of his son, executed an agreement with Eureka’s insurer, Maryland Casualty, for benefits to be paid to claimant Riley at a rate of $39.00 per week for 400 weeks ($15,600 total), plus all hospital and medical bills for two years following the accident. The Virginia Industrial Commis- sion approved the settlement, which was the maximum award permitted under state law. Notice of Award of the Virginia Industrial Commission, March 30, 1976.’ On May 2, 1972 Riley filed a claim with the District of Columbia commission for additional benefits from Eureka and Maryland Casualty under the District of Columbia statute." No written claim was filed against National Van Lines and Transport Indemnity, but they were involved in all stages of the proceeding." . ™The facts are set forth fully in the first decision and order of the ALJ filed July 23, 1974, JA 6-14. They are essentially undisputed. ®In May 1966 Riley, Sr. filed a claim on his son’s behalf in New York. The claim was dismissed without prejudice for failure to prosecute on August 9, 1966. JA 12. ® JA 11-12. ° JA 13. 1 Brief for respondent Maryland Casualty Company at 8-9, adopted in brief for respondent National Van Lines at 4. 8a The Administrative Law Judge (ALJ) assigned to the claim dismissed it on two grounds: (1) that the District of Columbia lacked jurisdiction of the claim because of the absence of a substantial and legitimate interest in claim- ant’s employment or accident, and (2) that the claim was barred by the statute of limitations.’* The Benefits Review Board, in a split decision, reversed on both grounds and remanded.”* On remand the ALJ reluctantly found Eureka and its president, Riley, Sr.,* liable for payments under the District of Columbia law. He further held that Mary- land Casualty had fully satisfied its obligations, which were limited to paying claims arising under Virginia law. Finally, he concluded that Eureka was a subcontractor for National Van Lines, and thus that National and its insurer, Transport Indemnity, were jointly and severally liable to the claimant.” On appeal the Benefits Review Board affirmed the ALJ’s decision holding Eureka and Riley, Sr. liable for additional payments and Maryland Casualty not liable. The Board reversed on the issue of the liability of National Van Liaes and Transport Indemnity and held that, in the event that Eureka and Riley, Sr. were unable to provide the payments, Riley would be compensated from a special fund set up 12 JA 5-22. ** JA 23-31. This decision of the Board was appealed to the United States Court of Appeals for the Second Circuit. The ap- peal was dismissed because the Board decision was not a final order. JA 37. ‘* A large part of the ALJ’s opinion on remand elaborated on his disagreement with the Board over the issues of the jurisdic- tion of the District of Columbia and the statute of limitations. JA 39-43. This part of the opinion was vacated by the Board on appeal. JA 56, ** Riley, Sr.’s liability, not at issue here, is based on 33 U.S.C. § 938(a) (1976). JA 43-48. 9a under the Longshoremen’s and Harbor Workers’ Compen- sation Act (LHWCA).” Claimant Riley and his father have at all relevant times been residents of Virginia."* Eureka was a small moving and storage company headquartered in Fairfax County, Virginia and serving the metropolitan Washington, D.C. area. Eureka was covered for workmen’s compensation claims by Maryland Casualty Company. The policy ex- pressly limited coverage to claims arising under the law of Virginia. In addition to its Washington area business, Eureka served as an agent for National Van Lines. Pur- suant to an “Agency Agreement” with National, Eureka operated trucks in interstate commerce under the Inter- state Commerce Commission (ICC) license number of Na- tional, displaying the colors and emblems of National. National remained responsible to interstate shippers for carriage under the agreement. Shippers paid National Van Lines directly. National in turn gave instructions to Eureka drivers, exercised some control over the hiring and training of Eureka drivers involved in National Van Lines haulage, and paid Eureka directly for its services. A clause of the agreement required that Eureka furnish workmen’s com- pensation insurance for the Eureka employees.” Before reaching the merits of the liability of Maryland Casualty, National Van Lines, and Transport Indemnity, it is necessary to resolve a question of the jurisdiction of the District of Columbia over this claim.” 17 JA 50-59. See 33 U.S.C. §§ 918(b), 944-945 (1976). 18 JA 103, 180. 19 JA 6-10. 20 The dissent questions the jurisdiction of this court. Our juris- diction is pursuant to 33 U.S.C. § 921(¢) (1976): Any person adversely affected or aggrieved by a final order of the [Benefits Review] Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred, by filing in such court within 10a II. Jurispicrionau Issues A The District of Columbia Workmen’s Compensation Act, 36 D.C. Code § 501 (1973), is of widest permissible extra- sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside. * * * (Emphasis added.) This provision is made applicable to the Dis- trict of Columbia by 36 D.C. Code § 501 (1973). Relying on the words ‘‘in which the injury oceurred,’’ the dissent claims that this appeal should be heard in the Second Circuit rather than this one. Sensible as this construction of the Longshoremen’s Act may be, it makes little sense as a construction of the District of Co- lumbia Workmen’s Compensation Act. It would inevitably lead to inconsistent interpretations of what is essentially parallel to a State workmen’s compensation statute. Moreover, the argument of the dissent runs counter to the long and unbroken practice of this court. E.g., Director, Office of Workers’ Comp. Programs v. Bough- man, supra note 6, 545 F.2d at 210; Amalgamated Ass’n of Street, etc. Employees v. Adler, 340 F.2d 799 (D.C. Cir. 1964); U.S. Fidelity & Guaranty Co. v. Donovan, 221 F.2d 515 (D.C. Cir. 1954) ; Jonathan Woodner Co. v. Mather, 210 F.2d 868 (D.C. Cir.), cert, denied, 348 U.S, 824 (1954) ; see additional cases cited in note 34 infra. Indeed, one case involving a District of Co- lumbia employee who was injured in Virginia and died as a result, which was reviewed by the United States District Court for the District of Columbia and then in this court, was heard by the Supreme Court with never a doubt about proper appellate jurisdiction. Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469 (1947). At all times the statute provided for review in the fed- eral court located where the injury or death occurred. See, e.g., Pub. L. No. 69-803 §21(b), 44 Srar. 1436 (1927). Consistent with the above authorities, we hold that, for purposes of appel- late jurisdiction, injuries giving rise to claims under 36 D.C. Code § 501 ‘‘oceur’’ within the territorial jurisdiction of the United States Court of Appeals for the District of Columbia Circuit. See also Overseas African Constr. Corp. v. McMullen, 500 F.2d 1291 (2d Cir. 1974). But see Home Indemnity Co. v. Stillwell, 597 F.2d 87, 90 (6th Cir. 1979) (dictum) ; Pettus v. American Airlines, Inc., 587 F.2d 627 (4th Cir. 1978), petition for cert. filed, 47 U.S. L. WEEK 3836 (U.S. No. 78-1739, May 18, 1979) ; Haughton Elevator Co. v. Lewis, 572 F.2d 447, 448 n.* (4th Cir. 1978). lla territorial application. It incorporates the substantive and procedural faahanide of the LHWCA, 33 U.S.C. $§ 901-950 (1976), in cases of injury or death of “an employee of an employer carrying on any employment in the District of Columbia, irrespective of the place where the injury or death occurs.” The reach of the statute has been limited in accordance with the dictates of the full faith and credit clause of the United States Constitution, U.S. Const., Art. IV, $1, to cases where there is “some substantial connec- tion between the District and the particular employee- employer relationship * * *.” Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 476 (1947). So long as such a “sub- stantial connection” exists, the District of Columbia Act applies and satisfies constitutional strictures. Id. The prin- cipal jurisdictional issue in this case is whether such a “substantial connection” between Riley’s employment rela- {ion and the District of Columbia exists. On the facts, the issue is close. Many of the common indicia of substantial connection,” for example, residence of the employee, headquarters of the employer, place of making the employment contract, are absent. For two reasons, however, the usual indicia are of little relevance to this case. First, Riley’s residence and Eureka’s head- quarters were located in a metropolitan area encom pass- ing the District of Columbia and parts of Virginia and Maryland. For most practical purposes, it makes little difference to the parties or to the jurisdictions, in the context of the policies behind the Act, precisely where the home or headquarters is. The most significant geographical division is the metropolitan Washington area. Second, the interstate nature of Eureka’s business makes it difficult to ~ pin the employment relation to a specific place. Even Eure- ka’s “local” haulage involved three jurisdictions; under the banner of National Van Lines, Eureka’s drivers penetrated many of the states of the Union. Riley, for example, suffered 21 See 4 A. Larson, THE Law or WoRKMEN’s COMPENSATION § 86.10 at 16-33 (1979). < é . a 12a his injury in New York, while under the direction of a National Van Lines dispatcher in Illinois. Given these two factors, the proper territorial jurisdiction over the case is anything but obvious. In making our judgment on this petition our discretion to evaluate the jurisdictional facts is doubly limited. First, in our function as a reviewing court we may reverse the decision of the Board only if that decision is unsupported by substantial evidence or inconsistent with applicable law. Cardillo v. Liberty Mutual Ins. Co., supra, 330 U.S. at 474; Marcus v. Director, Office of Workers’ Comp. Programs, 548 F.2d 1044, 1049-1050 (D.C. Cir. 1976). * See also O’Keefe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 362 (1965) ; O’Leary v. Brown-Pacific-Mason, Inc., 340 U.S. 504, 508 (1951); Evening Star Newspaper Co. v. Kemp, 533 F.2d 1224, 1226-1227 (D.C. Cir. 1976); Associated Indemnity Corp. v. Shea, 455 F.2d 913, 914 (5th Cir. 1972) (per curiam) ; Gudmudson v. Cardillo, 126 F2d 521 (D.C. Cir. 1942). The legislative history of the LHWCA Amendments of 1972, Pub. L. No. 92-576, 86 Strat. 1251 (1972), indicates that judicial review is limited to the ‘‘substantial evidence’’ test. H.R. Rep. No. 92- 1441, 92d Cong., 2d Sess. 12 (1972). The Second Circuit, in Pittston Stevedoring Corp. v. Della- ventura, 544 F.2d 35, 48-50 (2d Cir. 1976), aff’d sub nom. North- cast Marine Terminal Co. v. Caputo, 482 U.S. 249 (1977), sug- gested that decisions of the Benefits Review Board on the cover- age of the LHWCA are not entitled to much deference from the courts. Accord, Stockman v. John T. Clark & Son of Boston, Inc., 539 F.2d 264, 269-270 (1st Cir. 1976), cert. denied, 423 U.S. 908 (1977). At least in cases regarding the reach of the D.C. Act, we cannot agree. It would be a poor use of judicial resources for this court to decide for itself whether in each occurring permutation of jurisdictional facts the case is sufficiently related to the District of Columbia to fall within the Act. This we leave to the Board, which is more familiar with the range of factual situations. We will not upset the Board’s determinations lightly. The Director of the Office of Workers’ Compensation Programs has not challenged the Board’s conclusion that the D.C. Act applies to this case. Had he done so, our reviewing function might be dif- ferent. See —— F.2d at —— (p. 24) infra. 13a Second, we are bound by the congressionally-mandated “presumption of jurisdiction.” * The LHWCA provides: In any proceeding for the enforcement of a claim for compensation under this chapter it shall be pre- sumed, in the absence of substantial evidence to the contrary— (a) That the claim comes within the provisions of this chapter. 33 U.S.C. § 920(a) (1976). As the Supreme Court has ob- served, this presumption of jurisdiction “applies with equal force to proceedings under the District of Columbia Act. Cardillo v. Liberty Mutual Ins. Co., supra, 330 US. at 474, Moreover, the workmen’s compensation statute at issue, being designed to alleviate the suffering of injured workers by spreading the cost of their injuries among the purchasers of their products, must be interpreted liberally in favor of 23 Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, 541 (5th Cir. 1976), cert. denied, 433 U.S. 908 (1977) ; Overseas African Constr. Corp. v. McMullen, supra note 20, 500 F.2d at 1294. Contra, Employers Mutual Liability Ins. Co. of Wis. v. Arrien, 244 F.Supp. 110, 113 (N.D. N.Y. 1965). The Second Circuit, in Pittston Stevedoring Corp. v. Della- ventura, supra note 22, 544 F.2d at 48, commented that the | ‘pre- sumption’ of coverage’’ is ‘‘not * * * particularly helpful in de- termining where the line should be drawn between employment covered by the LHWCA and employment not so covered. Accord, Stockman v. John T. Clark & Son of Boston, Inc., supra note 22, 539 F.2d at 269. The court recognized, however, that once the line has been drawn, the presumption ‘‘come[s] into play in ruling on eases near the border.’’ 544 F.2d at 48. In the present case the line has long been drawn at the point where the District of Columbia 8 interest in the employment relation or the accident is substan- tial’’; the presumption is therefore ‘‘helpful’’ to us in deciding this case, which admittedly falls ‘‘near the border. l4a injured claimants. Evening Star Newspaper Co. v. Kemp, 533 F.2d 1224, 1227 (D.C. Cir. 1976). In view of these two limitations, it is not surprising that no case has been brought to our attention, nor has one been found, in which this court has reversed the Board (or the deputy commissioner under the pre-1972 system) in favor of a more restrictive view of the extra-territorial reach of the statute. Of course, should the Board seek to extend its jurisdiction to cases involving employment rela- tions without significant connection to the District of Co- lumbia, we shall not hesitate to reverse. This is not such a case. Kureka’s principal service area was the metropolitan Washington, D.C. area, including northern Virginia, the Maryland suburbs, and the District.” Although the head- quarters of the company were located in Virginia, there is no dispute over the fact that it served many customers in the District and regularly sent its employees into the District in connection with the business.”* Riley himself ** Accord, Northeast Marine Terminal Co. v. Caputo, supra note 22, 432 U.S. at 268; Alabama Dry Dock & Shipbuilding Co. v. Kininess, 554 F.2d 176, 177 (5th Cir.), cert. denied, 434 U.S. 903 (1977) ; Tampa Ship Repair & Dry Dock Co. v. Director, Office of Workers’ Comp. Programs, 535 F.2d 936, 938 (5th Cir. 1976) (per curiam). *° The ‘‘place where the industry is localized’’ is a well recog- nized contact that supports assertion of jurisdiction over work- men’s compensation claims. 4 A. Larson, supra note 21, § 86.10 at 16-33. ‘‘[T]he place where the industry is localized has a special interest, in that the burdens and costs of compensation fall most directly upon employers and consumers in the area where the in- dustry is centered.’’ Id. § 86.34 at 16-42. *° There is testimony in the record by Riley, Sr. that Eureka maintained a telephone answering service in the District. JA 210. The ALJ rejected the evidence as unreliable. JA 39-40. It does not matter whether or not Eureka maintained such a service; it suffices to note that Eureka had customers in the District and its business was centered there. 15a went into the District on Eureka business on an average of once or twice a week for five years.” The centering of Eureka’s business in the Washington, D.C. area is especially important, for the customers of the employer ultimately bear the cost of compensation payments. Since Eureka principally serviced Washington and its environs, many District residents could be affected by the outcome of this controversy.” The interests of a jurisdiction in workmen’s compensa- tion cases are primarily that those employees who work within its boundaries be adequately protected and that those employers who operate extensively within its bound- aries be fairly limited in their liability. On this score the District of Columbia has as strong an interest, perhaps stronger, as Virginia or any other state. It is important to bear in mind that in workmen's com- pensation cases, unlike many controversies over choice of law, it is not necessary to identify one jurisdiction with predominant contacts or interests. The test of jurisdiction is not whether the proposed forum has interests greater than those of some other forum, but rather whether the proposed forum’s interest is “legitimate and substantial in itself.” 4 A. Larson, Toe Law or WorKMEN’s CoMPENSATION § 86.35 at 16-43 (1979).” So long as a set-off of previous 27 JA 10. 28In this case Eureka is defunct and will therefore be unable to pass on any costs of workmen’s compensation to customers. The contacts with the jurisdiction, however, are evaluated for juris- dictional purposes as of the time of the injury. 2°'This principle was firmly established in Industrial Comm’n v. McCartin, 330 U.S. 622 (1947). See RESTATEMENT (SECOND) OF Conruict or Laws § 182 (1971): ‘‘Relief may be awarded under the workmen’s compensation statute of a State of the United States, although the statute of a sister State also is applicable. 16a awards-in other jurisdictions is made,” thereby avoiding duplicative recovery, a state or district with substantial contacts to an employment relation may apply its compen- sation laws without regard to whether another jurisdiction has or could have asserted jurisdiction.” °° See 4 A. Larson, supra note 21, § 85.70 at 16-30 to 16-32. “In view of Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943), an opinion whose authority has been eroded but which has not been overruled, see Industrial Comm’n v. McCartin, supra note 29, 330 U.S. at 622, a problem under U.S. Const. Art. IV, § 1 and 28 U.S.C. § 1738 (1976) is raised: Does the decision of the Board deny full faith and credit to the prior decision of the Virginia Industrial Commission? In Pettus v. American Airlines, Inc., supra note 20, 587 F.2d at 627, the Fourth Circuit faced this question on similar facts. In Pettus an employee hired in the District of Columbia by an airline company carrying on employ- ment in the District of Columbia was injured while working in Virginia. He received an award under the Virginia compensation statute, Va. Code Ann. §§ 65.1.1 to 65.1-152 (1973 Repl. Vol. & 1978 Supp.). He subsequently was awarded benefits by the Bene- fits Review Board under the District of Columbia compensation statute, 36 D.C. Code §§ 501-502 (1973). On review before the Fourth Circuit, see note 20 supra, the court held that the Virginia statute, Va. Code Ann. §§ 65.1-1 to 65.1-152 (1973 Repl. Vol. & thus that the Board’s award to Pettus was prohibited by the full faith and credit clause of the Constitution. We cannot agree. Instead, we adopt the reasoning of another panel of the Fourth Circuit in Newport News Shipbuilding & Dry Dock Co. v. Director, Office of Workers’ Comp. Programs, 583 F.2d 1273 (4th Cir. 1978), cert. denied, 440 U.S. 915 (1979). That panel held that the Virginia statute does not preclude recovery under the District of Columbia Act. 583 F.2d at 1277-1278. The Supreme Court has made clear in Industrial Comm’n v. McCartin, supra note 29, 330 U.S. at 628, that ‘‘[o]nly some unmistakable language by a state legislature or judiciary’’ would warrant the conclusion that a state workmen’s compensation statute is intended “‘to cut off an employee’s right to sue under other legislation passed for his benefit.’’ The Virginia statute provides, ‘‘The rights and remedies herein granted to an employee * * ® shall exclude all other rights and remedies of such employee * * * at common law or otherwise * * .’’ Va. Code Ann, § 65.1-40 (1973 Repl. Vol.). ° 17a Here the contacts between the District of Columbia and the Eureka-Riley employment relation are substantial enough that this court, faced with the presumption of jurisdiction and with a determination by the Board that the injury is covered by the District of Columbia Act, must conclude that the District of Columbia Act applies. This case presents a stronger case for application of District of Columbia law than that presented by Director, Office of Workers’ Comp. Programs v. Boughman, 545 F.2d 210 (D.C. Cir. 1976). In Boughman we adopted the reason- ing of the Benefits Review Board finding the compensation claim covered by the District of Columbia compensation statute. Jd. at 211. Claimant was a representative of a national labor union, murdered while meeting at a union This language has been interpreted to preclude other Virginia common law and statutory remedies, see Kighteenth Annual Sur- vey of Developments in Virginia Law: 1972-1973, 59 Va. L. Rev. 1400, 1632 (1973). We do not interpret it as precluding remedies to which workers are entitled under the laws of other jurisdic- tions. See 4 A. Larson, supra note 21, §§ 85.30, 85.40 at 16-19 to 16-26. Nor is the Board prevented from awarding additional benefits by the principles of res judicata or collateral estoppel. Since the Virginia statute does not preclude an additional award under the District of Columbia law, the Virginia proceeding cannot deter- mine the amount of recovery under the District of Columbia pro- visions. Whatever effect the factual determinations and inferences of the Virginia Industrial Commission may have in the subsequent District of Columbia proceeding, there is no doubt that the Board may reach its own independent decision on the size of the award. See, e.g., Newport News Shipbuilding & Dry Dock Co v. Director, Office of Workers’ Comp. Programs, supra; Director, Office of Workers’ Comp. Programs v. Boughman, supra note 6, 545 F.2d at 210; Peter v. Arrien, 325 F.Supp. 1361, 1366 (E.D. Pa. 1971), aff’d, 463 F.2d 252 (3d Cir. 1972) (per curiam). In each of these eases the courts affirmed the LHWCA awards even though the claims had previously been adjudicated by state workmen ’s com- pensation commissions. But see Pettus v. American Airlines, Inc., supra note 20, 587 F.2d at 628-629. 18a hall in California with a representative of the local.** The Board assumed jurisdiction even though the claimant re- sided in California, was killed in California, and was di- rected in his work by a regional officer in the western United States. The contacts with the District of Columbia included the employer’s national headquarters, the origin of the claimant’s paychecks and travel reimbursements, the administration of claimant’s pension fund, and (by infer- ence) the place of the making of the employment contract. Claimant also traveled occasionally to the District on business.** Since jurisdiction was upheld in Boughman, we must certainly uphold it here.™ B Claimant Riley filed his claim in the District of Columbia on May 2, 1972, some six years after his accident occurred.” The ALJ ruled that his claim was barred by the statute of limitations and also by laches.** This conclusion was ** The facts of Boughman are set out in the Board’s opinion, Ekar v. International Union of Operating Engineers, BRB Nos. 74-209, 209A, 1 B.R.B.S. 406 (April 11, 1975). 88 Td. ** Other cases in which this court has applied the extraterritorial provision of the District of Columbia Act to award compensation in cases where death or injury occurred outside the District in- clude U.S. Fidelity & Guaranty Co. v. Donovan, supra note 20, 221 F.2d 515; Travelers Ins. Co. v. Cardillo, 141 F.2d 362 (D.C. Cir. 1944) ; Travelers Ins. Co. v. Cardillo, 141 F.2d 364 (D.C. Cir. 1944); B. F. Goodrich Co. v. Britton, 139 F.2d 362 (D.C. Cir. 1943). But cf. Gasch v. Britton, 202 F.2d 356 (D.C. Cir. 1953) (upholding deputy commissioner’s decision that Maryland injury to Maryland resident was not covered by the District of Columbia Act, although the employment contract was made in the District of Columbia). * JA 13. 6 JA 19-22, 42-43. 19a reversed by the Board.” The Board’s decision is challenged by respondents Maryland Casualty, National Van Lines, and Transport Indemnity. Under the LHWCA an injured worker must file a claim for compensation within one year after his injury or be barred, subject to certain tolling provisions. 33 U.S.C. §913 (1976). This limitation is mandatory and jurisdic- tional in nature. Sun Shipbuilding & Dry Dock Co. v. Bowman, 507 F.2d 146, 148 n.3 (3d Cir. 1975); Young v. Hoage, 90 F.2d 395, 397 (D.C. Cir. 1937) ; see also Pillsbury v. United Engineering Co., 342 U.S. 197 (1952). The par- ties agree that Riley failed to file his claim in the District until after the one-year period had expired. But 33 U.S.C. § 930(f) (1976) tolls the statute of limita- tions during the period that the employer fails to report the injury to the Secretary of Labor.” In effect, the stat- 37 JA 30-31, 56. 8 33 U.S.C. § 913(a) (1976) provides: Except as otherwise provided in this section, the right to compensation for disability or death under this chapter shall be barred unless a claim therefor[] is filed within one year after the injury or death. If payment of compensation has been made without an award on account of such injury or death, a claim may be filed within one year after the date of the last payment. Such claim shall be filed with the deputy commissioner in the compensation district in which such in- jury or death occurred. The time for filing a claim shall not begin to run until the employee or beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the injury or death and the em- ployment. 39 33 U.S.C. § 930 (1976) provides in relevant part: (a) Within ten days from the date of any injury or death or from the date that the employer has knowledge of a disease or infection in respect of such injury, the employer shall send to the Secretary a report setting forth (1) the name, address, and business of the employer; (2) the name, address, and oc- —_——_--» 20a ute of limitations does not begin to run on an injured em- ployee’s claim under the District of Columbia Act until after the employer has reported the injury to the Secretary. United Brands Co. v. Melson, 594 F.2d 1068, 1070-1073 (5th Cir. 1979); Associated Indemnity Corp. v. Shea, 455 F.2d 913, 915 (5th Cir. 1972) (per curiam). Although Eu- reka reported Riley’s accident to the Virginia Industrial Commission, the company has never made the report to the Secretary and to the compensation district as required by the LITWCA. By the clear import of the statute, the limitations period is tolled. The respondents, employers and their insurers, however, urge this court to adopt a construction of the tolling pro- vision of Section 930(f) more in-line with its “purpose” to encourage reporting of work-related accidents to the proper authorities. They contend that Eureka’s report to the Virginia commission fulfills this purpose. We cannot adopt a reading of the statute that would enable respond- ents to escape the responsibility placed upon them by the cupation of the employee; (3) the cause and nature of the injury or death; (4) the year, month, day, and hour when and the particular locality where the injury or death oc- curred ; and (5) such other information as the Secretary may require. A copy of such report shall be sent at the same time to the deputy commissioner in the compensation district in which the injury occurred. (f) Where the employer or the carrier has been given no- tice, or the employer (or his agent in charge of the business in the place where the injury occurred) or the carrier has knowledge, of any injury or death of an employee and fails, neglects, or refuses to file report thereof as required by the provisions of subdivision (a) of this section, the limitations in subdivision (a) of section 913 of this title shall not begin to run against the claim of the injured employee or his de- pendents entitled to compensation, or in favor of either the employer or the carrier, until such report shall have been furnished as required by the provisions of subdivision (a) of this section. 2la clear words of the statute. Such a reading would not be consistent with the overriding purpose of the LHWCA, which is to provide adequate compensation to injured workers. See Blackwell Constr. Co. v. Garrell, 352 F.Supp. 192, 196-197 (D. D.C. 1972). Nor can we agree that Riley is barred from pursuing his claim by the doctrine of laches. Even were we to rule that the congressional decision to toll the statute of limita- tions in cuses such as this may be overridden by the exer- cise of our equity power, this would be a highly inappro- priate case for such action. See Peter v. Arrien, 325 F. Supp. 1361, 1366 (E.D. Pa. 1971), aff'd, 463 F.2d 252 (3d Cir. 1972). After the accident Riley was in no position to investigate his rights under District of Columbia law; he merely accepted the lesser payments that his father ar- ranged for him under Virginia law. He was not informed of his rights to additional compensation under the District of Columbia law until he consulted a new attorney in March 1972.*° He filed the District of Columbia claim less than two months later. We recognize the hardship to Riley, Sr. and to National Van Lines caused by the intervening demise of Eureka; however, we cannot exercise the equi- table powers of the court so as to deny Riley the the much- needed benefits to which he is entitled under the law.” © See JA 13. *1 Respondent Maryiand Casualty Company has also argued that Riley should be estopped from asserting the tolling provisions of § 903(f) because his father, as president of Eureka, had a conflict of interest in the case. Brief for respondent Maryland Casualty at 35. In this argument Maryland Casualty echoes the ALJ’s opinion on remand. JA 43. Without pausing to consider whether Riley Sr.’s conduct satisfied all the elements necessary to an invocation of estoppel, we conclude that it would be inequitable to visit the consequences of the father’s conflict of interest upon his disabled son. 22a III. Liasmrry or Maryuanp CasuaLty The parties have stipulated that the workmen’s compen- sation insurance policy issued by Maryland Casualty to Eureka stated that it was limited to compensation claims arising under Virginia law.‘* The ALJ therefore decided that Eureka was an uninsured employer under the District of Columbia Act. Since Maryland Casualty had fully satis- fied its obligations to Eureka and to Riley under its in- surance with Kureka, he held that Maryland Casualty is not liable to Riley for any additional payments under Dis- trict of Columbia law.** This holding was affirmed by the Board.* Petitioner Riley challenges the Board order absolving Maryland Casualty of liability under the District of Co- lumbia Act. He argues that by operation of 33 U.S.C. § 935 (1976) ** the Maryland Casualty policy may be con- *? Stipulation No. 7, JA 263. * JA 43-44 * JA 56-57. *© 33 U.S.C. § 935 (1976) provides: In any case where the employer is not a self-insurer, in order that the liability for compensation imposed by this chapter may be most effectively discharged by the employer, and in order that the administration of this chapter in respect of such liability may be facilitated, the Secretary shall by regulation provide for the discharge, by the carrier for such employer, of such obligations and duties of the employer in respect to such liability, imposed by this chapter upon the employer, as it considers proper in order to effectuate the provisions of this chapter. For such purposes (1) notice to or knowledge of an employer of the occurrence of the injury shall be notice to or knowledge of the carrier, (2) jurisdic- tion of the employer by a deputy commissioner, the Board, or the Secretary, or any court under this chapter shall be jurisdiction of the carrier, and (3) any requirement by a deputy commissioner, the Board, or the Secretary, or any 23a strued as covering all workmen's compensation liability of Eureka, under the law of any jurisdiction. In this argu- ment he is mistaken. Section 935, by its terms, applies only in cases “where the employer is not a self-insurer * * * ” * In this case Eureka knowingly neglected to procure in- surance against liability under. the laws of jurisdictions other than Virginia.” No law operates to give Eureka greater coverage than it was willing to pay for. With re- spect to District of Columbia liability, Eureka was a self- insurer. See Rex Investigative & Patrol Agency, Inc. v. Collura, 329 F.Supp. 696, 699-700 (E.D. N.Y. 1971) ; Smith v. Continental Nat'l American Group, 321 F.Supp. 1354, 1355 (E.D. La. 1971). We find no reason to reverse the Board with regard to the liability of Maryland Casualty. IV. Liapmuty or NatronaL Van LINES AND TRANSPORT INDEMNITY The final issue raised in this petition is the liability of National Van Lines and its insurer, Transport Indemnity Company, as the “contractor” of Eureka’s interstate busi- court under any compensation order, finding, or decision shall be binding upon the carrier in the same manner and to the same extent as upon the employer. “ Td. ‘* There is some dispute over why Eureka failed to purchase broader coverage from Maryland Casualty. JA 8-10. The ALJ concluded, on the basis of conflicting testimony, that Riley, Sr., on behalf of Eureka, knowingly and intentionally purchased workmen’s compensa- tion insurance in Virginia only; * * * rejected coverage else- where; * * * and did not refuse D.C. coverage because he was misled, or because he expected National [Van Lines] to provide it, but because it was more expensive, and not neces- sary to satisfy the law of his domicile, (Virginia). * * * JA 14-15. This conclusion, based on evaluation of the credibility of testimony, is accepted by this court. 24a ness. Section 904(a) of the LHWCA provides in relevant part: In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the pay- ment of such compensation to employees of the sub- contractor unless the subcontractor has secured such payment. National Van Lines is liable to Riley under this provision if, and only if, Eureka served as a subcontractor to Na- tional within the meaning of the statute. The ALJ ruled that Eureka was such a subcontractor of National Van Lines, but this ruling was reversed by the Board.*® The Board’s decision is appealed to this court by petitioners Riley and the Director of OWCP. A The basis for the Board’s decision is not fully clear from its opinion. After setting out the law governing the impo- sition of workmen’s compensation liability on general con- tractors,” the Board stated without further explanation: The relationship of National Van Lines and Eureka Van Lines[,] the Board concludes, is not the contrac- tor-subcontractor relationship contemplated by Section 4 [33 U.S.C. § 904]. We agree with National Van Lines that Eureka was acting under an independent agency or contractor agreement * * *, JA 57. Ordinarily, our review of such decisions by the Board is limited: the decision will be affirmed unless it is unsup- *8 JA 44-45. * JA 57. : ° See —— F.2d at —— (p. 27) infra. 25a ported by substantial evidence or inconsistent with appli- cable law.” Such deference is made difficult in this case by the failure of the Board to explain how its conclusion fol- lows from its statement of the facts. Moreover, we should note that we are freer to undertake an independent ex- amination of this portion of the case because the Director of OWCP opposes the Board’s decision on the liability of National Van Lines and ‘Transport Indemnity. Cf. General Electric Co. v. Gilbert, 429 U.S. 125, 144-145 (1976) (dif- ference in interpretation of Title VII by Equal Employ- ment Opportunity Commission and Wage and Hour Ad- ministrator prevented the Court from strict deference to the appropriate agency). Since OWCP is the policymaking body in the area of workmen’s compensation,” and since the Board’s decision involves a policy judgment, we believe that this conflict between agencies necessitates a more searching review by this court. B The “Agency Agreement” in effect between Eureka and National Van Lines at the time of Riley’s accident did not employ the words “contractor” or “subcontractor” with re- spect to the parties.** Eureka was denominated an “agent” of National Van Lines; the agreement specifically dis- claimed by any employer-employee relation between Na- tional Van Lines and Eureka or its employees. Obviously, the terminology used in the agreement is not dispositive of this case. Eureka did not possess an ICC Motor Carrier’s license of its own. It therefore could not, and did not, transport 51 See text and note at note 22 supra. 5290 C.F.R. §§ 1.1, 1.2 (1979) ; id. §§ 701.201, 701.202 (1978). 88 The facts surrounding the relationship between Eureka and National Van Lines are recounted in the original decision of the ALJ. JA 6-8. There is no significant dispute by the parties over the facts. 26a cargo outside the Washington, D.C. metropolitan area ex- cept as an agent of National Van Lines. Eureka conducted its interstate haulage in the name of National Van Lines, in accordance with National’s instructions expressed in a manual called the “Agent’s Guide,” in trucks decorated with National’s name, colors, and insignia. Although Eu- reka was not contractually obligated to accept any par- ticular shipment for National’s customers, in practice Eureka solicited orders for National and made extensive deliveries under National’s direction. The contractual obli- gations for interstate haulage remained with National Van Lines, as did the right to payment. Although Eureka re- tained substantial discretion over the details of its opera- tions, National reserved the right to train Eureka em- ployees involved in performing National’s contracts, and to reject employees who did not successfully complete this training. This court has never interpreted the general contractor’s liability provision of Section 904(a). In doing so now, we are guided by the experience of the many jurisdictions with similar provisions that have considered the question.“ We are also guided by the purpose of the provision, which is to protect injured employees engaged in a common enter- prise from the irresponsible failure of their immediate employers to insure. By imposing secondary liability on the general employer or contractor, the provision deters unscrupulous employers from dividing their work among a number of smaller, uninsured entities, and creates an incentive for the general employer to insist that his subcon- tractors be adequately insured.” ** Forty-one states and the District of Columbia impose sec- ondary liability for workmen’s compensation upon general em- ployers for the benefit of employees of contractors under them. 1B A. Larson, supra note 21, § 49.10 at 9-1 to 9-2. 5° Id. § 49.11 at 9-6 to 9-9. 27a A general employer will be held secondarily liable for workmen’s compensation when the injured employee was engaged in work either that is a subcontracted fraction of a larger project or that is normally conducted by the gen- eral employer’s own employees rather than by independ- ent contractors.* The most common form of the relation- ship—and that represented by the Eureka-National agree- ment—is where the general employer delegates the per- formance of portions of its contractual obligations to other firms. For example, in DeMola v. Riccio, 61 App. Div. 2d 854, 401 N.Y.S.2d 919 (3d Dep’t 1978), the general employer, a towing company, contracted with the city to remove aban- doned vehicles from the streets. It further arranged with a second towing company—the immediate employer of the injured worker—for the second company to perform some of the work in exchange for the right to the proceeds of the sale of the scrapped vehicles. This second firm was not adequately insured. When the injured employee sought further payments, the court held the general employer liable. In Thorsheim v. State, 469 P.2d 383, 388-389 (Alaska 1970), the court announced these two requirements for the relationship, under a statute substantially identical to the District of Columbia provision: (1) the existence of a con- tractual obligation on the part of a person held to be a contractor, and (2) a subletting of a part of that obligation to the person held to be a subcontractor.” This statement of the law does not differ substantially from that expressed by the Board in its opinion. The Board said that Section 904 has been applied “in cases where a contractor entered into a contract with a third party to 86 Id. § 49.12 at 9-33. 8t Accord, McCaskey v. Daniel International Corp., 422 F.Supp. 1360 (D. S.C. 1977) ; Jenkins v. Peddic, 145 So.2d 729 (Fila. 1962) ; Evans v. Hawkins, 114 Ga.App. 120, 150 S.E.2d 324 (1966) ; Brygidyr v. Rieman, 31 N.J.Super. 450, 107 A.2d 59 (N.J. 1954). 28a perform a service. The contractor then delegated its duties to the subcontractor.” JA 57. The Board‘s error was not in its statement of the law, but in the application of that law to the facts of this case. National Van Lines contracted with various shippers to carry cargo interstate; it then delegated a portion of its contracts to Eureka. There is no doubt that Eureka employees performed work that would normally be performed by National Van Line’s own em- ployees. Applying the generally accepted test for con- tractor liability, we must conclude that National Van Lines is liable under Section 904. To accept the Board’s conclusion would allow National Van Lines to avoid liability to workers performing Na- tional’s contracts, even though National’s subcontractor was inadequately insured. This would defeat the purpose of Section 904(a) and, more important, deny the benefit of the law to injured workers who need its protection.™ National Van Lines cannot complain of unfair surprise in this decision. In its agreement with Eureka, National required that Eureka obtain workmen’s compensation in- surance as required by law.” The reason National would impose such a requirement is to protect itself from liability under Section 904(a). National Van Lines could have avoided any Section 904(a) liability simply by ensuring that Mureka comply with the contract. Having failed to enforce its contractual rights, National may not now shift its loss to the hapless Riley. ** National Van Lines has asserted that its relationship to Eureka was that of ‘‘owner’’ to contractor, based on the fact that Na- tional is the owner of the ICC license that Eureka used. Brief of respondent National Van Lines at 16. This argument is with- out merit. The ‘‘owner’’ cases are exemplified by the situation in which a property owner contracts with a contractor for services to the property. Obviously, the Eureka-National Van Lines agree- ment did not fit this pattern. 59 Td. at 7. 29a V. ConcLusIon The decision of the Benefits Review Board, BRB Nos. 72-259, 259A, 259B, 7 B.R.B.S. 445 (Jan. 23, 1978), is re- versed with respect to the liability of National Van Lines and its insurer, Transport Indemnity Company, to claim- ant James A. Riley, III. In all other respects the decision is affirmed. So ordered. 30a Tamm, Circuit Judge, dissenting: Despite the mental pole-vaulting of the majority, I am unable to agree with its decision in these cases. First, I cannot conclude that the workers’ compensation statute of the District of Columbia, D.C. Copg § 36-501 (1973), has any application to Petitioner Riley’s injuries. At the time of the accident, Riley was a resident of Vir- ginia. His principal place of employment was Virginia. His employer, Eureka, was a Delaware corporation that had its principal place of business in Virginia and directed Riley’s activities from Virginia. National Van Lines, which had engaged Eureka as its agent, had its principal office in Illinois. The accident occurred in New York after all goods shipped from the District of Columbia had been delivered. None of the facts in these cases suggests a connection to the District of Columbia that justifies applying its laws to Riley’s claim. See Restatement (Szconp) or ConFLict oF Laws § 181 (1971). Second, even if this matter did fall under the District of Columbia statute, this court would not have subject matter jurisdiction to hear these petitions for review. Section 21(c) of the Longshoremen’s and Harbor Workers’ Com- pensation Act provides for review “in the United States court of appeals for the circuit in which the injury occurred .... 33 U.S.C. §921(c) (1976) (emphasis added). The accident in the cases before us occurred in New York, which is in the Second Circuit, not this one. Review is proper there, not here. See Home Indemnity Co. v. Stillwell, 597 F.2d 87, 90 (6th Cir. 1979), cert. denied, 48 U.S.L.W. 3221 (Oct. 1, 1979). Because this is a matter of jurisdiction, not venue, we should dismiss the petitions rather than acqui- esce in the parties’ decision not to press the issue further.* *On June 21, 1978, a panel of this court denied a motion by Respondents National Van Lines and Transport Indemnity to is- miss the petitions for want of jurisdiction. The panel neverthelvss entered its order without prejudice to the movants’ raising the 3la Cf. Atlantic Ship Rigging Co. v. McLellan, 288 F.2d 589 (2d Cir. 1961) (predecessor to 33 U.S.C. §921(c), which provided for initial review in the district court for the judicial district in which the injury occurred, confers ju- risdiction; it does not concern simply venue) ; Continental Fire & Casualty Insurance Co. v. O'Leary, 236 F.2d 282 (9th Cir. 1956) (same). Because District of Columbia law does not govern Riley’s claim and because this court would not have subject matter jurisdiction to hear these petitions even if District of Columbia law were to apply, I respectfully dissent. issue again when the cases would be heard on the merits. Director, Office of Workers’ Compensations Programs v. National Van Lines, Inc., Nos. 78-1259, 78-1268 (D.C. Cir. June 21, 1978) (order per curiam). National Van Lines and Transport Indemnity earlier had indicated their willingness to withdraw their objections if the panel denied their motion. Reply to Response of the Director, Of- fice of Workers’ Compensation Programs, in Opposition to Motions to Dismiss (Apr. 28, 1978). Thus, the parties neither briefed this issue nor discussed it at oral argument. It is well settled, however, that the parties to an action cannot confer jurisdiction by con- sent; rather, it is our obligation to raise questions of jurisdiction sua sponte. E.g., Mansfield, C. & L.M. Ry. v. Swan, 111 U.S. 379 (1884); C. Wricht, HANDBOOK OF THE Law or FEDERAL Courts § 8, at 18 (3d ed. 1976). See cases cited id. at 18 n.8. The doctrine of the law of the case does not prevent us from reopening this issue, for we are ‘‘duty-bound’’ to recognize our lack of jurisdic- tion, no matter how late. Potomac Passengers Ass’n v. Chesapeake & O. Ry., 520 F.2d 91, 95 n.22 (D.C. Cir. 1975). Eero 32a APPENDIX D U.S. DEPARTMENT OF LABOR Benerits Review Boarp Washington, D.C. 20210 BRB No. 76-259 NATIONAL Van Liygs, Ine. and Transport INDEMNITY Company, Employer/Carrier, Petitioners v. James A. Rixey, III, Claimant and Eureka Van ano Storace Company, Employer and MaryLanp CasuaLty Company, Carrier-Respondents BRB No. 76-259A James A. Rirey, III, Claimant-Petitioner v. Nationa Van Langs, Inc. and Transport InpEMNITY ComPany, and Eureka Van anv Storace Company and MaryLanp Casuatty Company, Employer/Carriers-Respondents 33a BRB No. 76-259B Director, Orrick or Workers’ CoMPENSATION PROGRAMS, Unrrep States DepartTMENT or Lazor, Petitioner V. Eureka Van AND StoraGe Company and Maryann CasuaLty ComPANy and Nationa, Van Lings, Inc. and Transport INDEMNITY CoMPANY, Employer/Carriers-Respondents DECISION Filed as Part of the Record Jan. 23, 1978 Appeals from the Supplemental Decision and Order of John I. Nevin, Administrative Law Judge, United States Department of Labor. Walter W. Pitsenberger, Bowie, Maryland, for the claimant. M. S. Mazzuchi, Rockville, Maryland, for Eureka Van & Storage and Maryland Casualty Company. Leo A. Roth, Jr. (Brault, Graham, Scott & Brault), Wash- ington, D.C., for National Vaa Lines, Inc. and Trans- port Indemnity Company. Joshua T. Gillelan, II (Carin Ann Clauss, Solicitor of Labor, Laurie M. Streeter, Associate Solicitor), Washington, D.C., United States Department of Labor. Before: Smiru, Chairman and Mitier, Member. 34a Miter, Member: These are appeals by the claimant, National Van Lines and Transport Indemnity Company and the Director, Office of Workers’ Compensation Programs, from a Supplemental Decision and Order (73-DCWC-86) of Administrative Law Judge John I. Nevin, pursuant to the provisions of the Longshoremen’s and and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. § 901 et seq., as extended to the District of Columbia, 36 D.C. Code § 501 et seq. (hereafter referred to as the Act). The facts of this case were set forth in the Board’s prior Decision, reported at 1 BRBS 449, BRB Nos. 74-155, 74-155A (May 6, 1975), as follows: The claimant was employed as a truck driver by Eureka - Van and Storage Company (hereafter, Eureka). On Janu- ary 7, 1966, in the course of his employment, he was in- volved in an accident at Grand Island, New York. He sus- tained fractures of the fourth and fifth cervical vertebrae with complete transection of the spinal cord. As a result of this injury, the claimant is a quadriplegic, confined to a wheelchair. At the time of the accident, Eureka was a Delaware cor- poration with its principal place of business in Fairfax County, Virginia. Eureka also maintained an office in the District of Columbia for telephone answering services. As a local carrier, Eureka operated in the Washington, D.C., commercial zone, which embraced Northern Virginia, sub- urban Maryland and the District of Columbia. As an agent of National Van Lines, Inc. (hereafter, National), Eureka was authorized to move shipments in interstate commerce, using the motor carrier license number issued to National by the Interstate Commerce Commission. Pursuant to the “Sales, Service and Hauling Agreement” in effect between the companies, all Eureka vehicles displayed National colors and emblems. While all Eureka vehicles were regis- 35a tered in Virginia, at least some were registered in other states as well and carried license plates of both Virginia and other states. The claimant’s accident occurred while he was operating a van for his employer, Eureka, as agent for National. The shipments he carried were recorded on a National trip manifest. On this trip, shipments were picked up in Vir- ginia, the District of Columbia and Maryland for delivery in New Jersey, Connecticut and New York. The one ship- ment picked up in the District of Columbia had been de- livered in New York City on the day before the accident. Eureka’s workmen’s compensation insurance policy, written by Maryland Casualty Company (hereafter, Mary- land Casualty), provided benefits under Virginia law only, regardless of where an injury occurred. A clause of the agreement between Eureka and National provided that the responsibility to furnish workmen’s compensation insur- ance would lie with Eureka. National was notified of the claimant’s accident within an hour of its occurrence. Eureka, in turn was notified by National shortly thereafter. The claimant’s father, who was President of Eureka, filed an accident report in his son’s behalf with the Virginia Industrial Commission on February 22, 1966. At the same time, with assistance from Maryland Casualty’s agent, he filed a compensation bene- fits claim with that carrier. On March 8, 1966, the claim- ant’s father executed an agreement between his own com- pany, Eureka, and Maryland Casualty, awarding the claimant $39.00 a week based on an average weekly wage of $110.00, until terminated in compliance with the Virginia law. The Virginia Industrial Commission approved this agreement on March 30, 1966. The claimant did not sign the compensation agreement, nor did he sign authorization for anyone to act in his behalf. His father acted for him, apparently without formal permission. However, the claimant did accept benefits for four hundred weeks and 36a medical expense payments for two years, the maxima pro- vided by the Virginia statute in effect at that time. A claim was filed by the claimant’s father under New York State’s compensation law for the benefit of the claimant. However, a decision was rendered on August 9, 1966, by the Workmen’s Compensation Board of New York, closing the case. “... without prejudice, due to failure to prosecute”. No subsequent claim has been filed in New York. The claimant personally filed a claim for compensation under the Act, against Eureka, on May 2, 1972. This claim for permanent total disability gave rise to this case. No written claim has ever been filed against National and its carrier, Transport, directly. However, National was in- vited to appear at the informal hearing before the deputy commissioner. National and Transport were represented by counsel and did participate at the informal hearing and at the formal hearing before the administrative law judge. It is clear that the claimant is asserting a claim against National. The administrative law judge in his original Decision and Order concluded that claimant was not covered by the Act at the time of the injury, and the claim was barred by the statute of limitations. The Board (with one member dissenting) reversed the administrative law judge’s hold- ing on both points, and remanded the case to the adminis- trative law judge “for entry of an Order in favor of the claimant against the appropriate parties for compensation for permanent total disability in accordance with the Act.” The administrative law judge in his Supplemental De- cision and Order on remand, after disputing the Board’s conclusion that claimant was covered under the Act and was not time barred, went on to enter an Order against the employer, Eureka Van & Storage Company, and James A. Riley, Senior, personally, in that Riley had as 37a president of the company failed to secure the payment of compensation pursuant to Section 38 of the Act, 33 U.S.C. § 938. The administrative law judge also held National Van Lines and Transport Indemnity Company responsible for benefits pursuant to Section 4 of the Act, 33 U.S.C. § 904, which provides that a contractor is liable for, and shall secure the payment of, compensation to the employee of a subcontractor if the subcontractor failed to secure the com- pensation. National Van Lines and Transport Indemnity Company have appealed contending that claimant is barred by the statute of limitations, that claimant is not covered by the Act, that National Van Lines is not liable under Section 4, and that Maryland Casualty Company is liable for com- pensation pursuant to Section 35 of Act, 33 U.S.C. $935. The claimant also argues that Maryland Casualty Com- pany should be held liable. Both the claimant and Director, Office of Workers’ Compensation Program, contend that the administrative law judge exceeded his scope of au- thority when he made further findings of fact and further analysis of the jurisdictional and timeliness issues in his Supplemental Decision and Order. They also contend that the administrative law judge erred in failing to award claimant reimbursement for his self-procured medical supplies and attendant care pursuant to Section 7 of the Act, 33 U.S.C. § 907. The Board will not consider National Van Lines’ con- tention that claimant is not covered under the Act, and that claimant did not timely file. These issues were decided by the Board in its prior decision and the Board will not reconsider the matter. Moreover, the Board vacates those parts of the administrative law judge’s Supplemental De- cision and Order addressing the questions of coverage of the Act and the timeliness of the claim. The Board does not agree with claimant’s and National Van Lines’ contention that Maryland Casualty Company 38a should be held liable for the payment of compensation, under Section 35 of the Act. Section 35 applies only if the insurer issued a policy under the Act. See 33 U.S.C. § 936 (a). From the record, it appears that Maryland Casualty only insured employer under the Virginia workmen’s com- pensation law, and not under the Act. Moreover, it is not the province of the Board to bind Maryland Casualty un- der Section 35 through some form of estoppel argument, centering on its obligations to fully inform a potential pur- chaser of the varying forms of insurance the purchaser might need. However, the Board is also convinced that National Van Lines is not liable for compensation under Section 4. Un- der prior case law, Section 4 has been applied in cases where a contractor entered into a contract with a third party to perform a service. The contractor then delegated its duties to the subcontractor. As a geners! rule, the sub- contractor is responsible for the workmen's compensation claims of its employees. Section 4 provides a limited ex- ception, making a contractor liable for the compensation claims of the subcontractor’s employees if the subcon- tractor was uninsured. The relationship of National Van Lines and Eureka Van Lines the Board concludes, is not the contractor-subcon- tractor relationship contemplated by Section 4. We agree with National Van Lines that Eureka was acting under an independent agency or contractor agreement, and that National Van Lines is not liable to the employees of Eureka. Therefore, Eureka Van Lines, Inc. is responsible for the payment of benefits under the Act. However, the record discloses that Eureka Van Lines, Inc., is no longer in busi- ness, and is not insured for the payment of benefits under the Act. Accordingly, James A. Riley, II, as president of Kureka Van Lines, Inc., is personally liable for such com- pensation under the Act because of his failure to secure 39a payment of compensation under Section 32 of the Act, 33 U.S.C. § 932. See 33 U.S.C. §938. If James A. Riley, II, is unable to provide these benefits, the Special Fund, es- tablished by 33 U.S.C. § 944, will be responsible for the payment of benefits pursuant to Section 18(b) of the Act. 33 U.S.C. § 918(b). The administrative law judge in his Supplemental De- cision and Order also held that claimant was entitled to reimbursement for the reasonable medical expenses in- curred by him. However, this administrative law judge added that if the parties could not agree on the reason- ableness of these expenses they would have to follow the procedures set forth in the Act and Regulations concern- ing a dispute as to the reasonableness of medical expenses. Inasmuch as the claimant at the hearing stated what these medical expenses were, and inasmuch as employer/carrier at that time made no exception whatsoever, we agree with the Director that the administrative law judge should have awarded claimant reimbursement for these medical ex- penses and Order. Accordingly, the board vacates that portion of the ad- ministrative law judge’s Supplemental Decision and Order wherein he found National Van Lines and Transport In- demnity Company responsible for payment of benefits un- der the Act. The Board also modifies the administrative law judge’s Supplemental Decision and Order to provide that claimant is to be reimbursed for those medical ex- penses which he detailed at the hearing. The remainder of the administrative law judge’s Supplemental Decision and Order is affirmed. /s/ Jutrus Miuer Julius Miller, Member Smitru, Chairman, Concurring: While I agree fully with my colleague’s opinion and re- sult in this appeal, I must point out that I express no opin- 40a ion on the Board’s original determination of jurisdiction on the facts of this case. Riley v. National Van Lines, Inc., 1 BBS 449, BRB No. 74-155 (May 6, 1975). I agree with my colleague that since the issue of jurisdiction has pre- viously been fully argued and determined by this Board, the Board should not permit the issue to be relitigated. /s/ Samue. J. SmitH Samuel J. Smith, Chairman Dated this 23rd day of January, 1978 4la APPENDIX E U.S. DEPARTMENT OF LABOR Benerits Review Boarp Washington, D.C. 20210 James A. Riuey, III, Claimant-Petitioner v. Eureka Van anv Storace Company and Maryuanp CasuaLtty CoMPANY and NationaL Van Lrvzgs, Inc. and Transport InpemNity Company, Employers/Carriers-Respondents Dreector, Orrice or Workers’ CoMPENSATION Programs, Unirep States DepartTMENT or Lasor, Petitioner Vv. Eureka Van ANp Storace Company and Maryann Casualty CoMPANY and NationaL Van Lings, Inc. and Transport INDEMNITY COMPANY Employers/Carriers-Respondents BRB Nos. 74-155 and 74-155A 42a DECISION Filed as Part of the Record May 6, 1975 Appeals from Decision and Order of John I. Nevin, Ad- ministrative Law Judge, United States Department of Labor. Walter W. Pitsenberger (Gelb and Pitsenberger), Wash- ington, D.C., for claimant. M. S. Mazzuchi, Washington, D. C., for employer, Eureka Van and Storage Company and carrier, Maryland Casuaity Company. Leo A. Roth, Jr., Washington, D. C., for employer, Na- tional Van Lines and carrier, Transport Indemnity Company. Joshua T. Gillelan, II, (William J. Kilberg, Solicitor of Labor; Marshall H. Harris, Associate Solicitor), Washington, D. C., for Director, Office of Workers’ Compensation Programs, United States Department of Labor. Before: Washington, Chairperson, Hartman and Miller, Members. Washington, Chairperson: These appeals by the claimant and by the Director, Office of Workers’ Compensation Programs, seek review and re- versal of a decision and order (73-DCWOC-86) of Adminis- trative Law Judge John I. Nevin. The claimant was denied compensation for permanent total disability. The claim in question was filed pursuant to provisions of the Long- shoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq., as made applicable to employment in the District of Columbia by the District of Columbia’s Compensation Act, 36 D.C. Code § 501 et seg. (hereafter referred to as the Act). 43a The claimant was employed as a truck driver by Eureka Van and Storage Company (hereafter, Eureka). On Janu- ary 7, 1966, in the course of his employment, he was in- volved in an accident at Grand Island, New York. He sus- tained fractures of the fourth and fifth cervical vertebrae with complete transection of the spinal cord. As a result of this injury, the claimant is a quadriplegic, confined to a wheelchair. | At the time of the accident, Eureka was a Delaware cor- poration with its principal place of business in Fairfax County, Virginia. Eureka also maintained an office in the District of Columbia for telephone answering services. As a local carrier, Eureka operated in the Washington, D. C., commercial zone, which embraced Northern Virginia, sub- urban Maryland and the District of Columbia. As an agent of National Van Lines, Inc. (hereafter, National), Eureka was authorized to move shipments in interstate commerce, using the motor carrier license number issued to National by the Interstate Commerce Commission. Pursuant to the “Sales, Service and Hauling Agreement” in effect between the companies, all Eureka vehicles displayed National colors and emblems. While all Eureka vehicles were regis- tered in Virginia, at least some were registered in other states as well and carried license plates of both Virginia and other states. The claimant’s accident occurred while he was operating a van for his employer, Eureka, as agent for National. The shipments he carried were recorded on a National trip manifest. On this trip, shipments were picked up in Vir- ginia, the District of Columbia and Maryland for delivery in New Jersey, Connecticut and New York. The one ship- ment picked up in the District of Columbia had been de- livered in New York City on the day before the accident. Eureka’s workmen’s compensation insurance policy, writ- ten by Maryland Casualty Company (hereafter, Maryland Casualty), provided benefits under Virginia law only, re- 44a gardless of where an injury occurred. A clause of the agreement between Eureka and National provided that the responsibility to furnish workmen’s compensation insur- ance would lie with Eureka. National was notified of the claimant’s accident within | an hour of its occurrence. Eureka, in turn was notified by National shortly thereafter. The claimant’s father, who was President of Eureka, filed an accident report in his son’s behalf with the Virginia Industrial Commission on February 22, 1966. At the same time, with assistance from Maryland Casualty’s agent, he filed a compensation bene- fits claim with that carrier. On March 8, 1966, the claim- ant’s father executed an agreement between his own com- pany, Eureka, and Maryland Casualty, awarding the claim- ant $39.00 a week, based on an average weekly wage of $110.00, until terminated in compliance with the Virginia law. The Virginia Industrial Commission approved this agreement on March 30, 1966. The claimant did not sign the compensation agreement, nor did he sign authorization for anyone to act in his behalf. His father acted for him, apparently without formal permission. However, the claim- ant did accept benefits for four hundred weeks and medi- cal expense payments for two years, the maxima provided by the Virginia statute in effect at that time. A claim was filed by the claimant’s father under New York State’s compensation law for the benefit of the claimant. However, a decision was rendered on August 9, 1966, by the Workmen’s Compensation Board of New York, closing the case, “... without prejudice, due to failure to prosecute.” No subsequent claim has been filed in New York. The claimant personally filed a claim for compensation under the Act, against Eureka, on May 2, 1972. This claim for permanent total disability gave rise to this case. No written claim has ever been filed against National and its carrier, Transport Indemnity Company (hereafter, Trans- 45a port), directly. However, National was invited to appear at the informal hearing before the deputy commissioner. National and Transport were represented by counsel and did participate at the informal hearing and at the formal hearing before the administrative law judge. It is clear that the claimant is asserting a claim against National. The administrative law judge considered two issues in this case. First, is this claim within the jnrisdiction of the Act? Secondly, is the action barred by failure to timely file a claim? The administrative law judge resolved both of these issues against the claimant and “dismissed” the claim because of lack of jurisdiction to apply the Act and because of failure to file within one year of the date of injury. Both the claimant and the Director, Office of Work- ers’ Compensation Programs, appeal this Decision. We proceed first to consider whether the claim asserted here, considering the employment relationship which was in effect at the time of the claimant’s injury, is properly within the jurisdiction of the Act. In a recent decision, adjudicating appeals from an award of death benefits to the survivors of an employee who was killed in the course of his employment in California, the Board reviewed the coverage provision of the Act and its extraterritorial application. Ekar v. International Union of Operating Engineers, 1 BRBS 406, BRB Nos. 74-209, 209A (April 11, 1975). In affirming the award of benefits in that case, we found that the protection of the Act may be extended to a claimant when it is shown that the District of Columbia has sufficient legitimate interest in an employ- ment-related injury or death to permit application of the Act. Sufficient legitimate interest is predicated upon show- ing some substantial contact between the employer-employee relationship and the District of Columbia. The first issue to consider in the instant case, then, is whether or not the District of Columbia has sufficient legitimate interest in Riley’s accident to warrant application of the Act to his claim for compensation for permanent total disability. os Err 46a The record indicates that activities pursuant to the em- ployment relationship between Riley and Eureka were car- ried out in the District of Columbia regularly over a period of years. Eureka’s area of operations as a local carrier was metropolitan Washington, D.C. There is uncontradicted testimony that the claimant entered the. District of Colum- bia in performance of Eureka’s business once or twice a week for five years preceding his accident. During the trip which culminated in his accident and injury, the claimant picked up one shipment in the District of Columbia and delivered it in New York City on the day before the accident. Thus, this final trip itself bore a relationship to the District of Columbia. Finally, Eureka’s President, the claimant’s father, admitted that he operated a place of business in the District of Columbia—an office maintained for telephone answering services. In the judgment of this Board, there is substantial con- tact between the employer-employee relationship and the District of Columbia in this case which is sufficient in degree to permit application of the Act to Riley’s claim. We hold that the administrative law judge incorrectly “dismissed” this claim because of lack of jurisdiction to apply the Act. The second issue to be resolved in these appeals concerns timeliness of filing the claim. The administrative law judge found that this claim is barred by Riley’s failure to file it within one year of the date of injury, as prescribed by Section 13(a) of the Act, 33 U.S.C. §913(a). However, Section 30(a) requires the employer to file a report with respect to an injury with the Secretary of Labor and with the deputy commissioner of the district within which the injury occurred, within ten days from the date of the injury; Section 30(f) tolls the statute of limitations in Section 13(a) where the employer or carrier, having notice or knowledge of the injury, fails, neglects or refuses to file the required report. 33 U.S.C. §§ 913(a), 930(a), 930(f). There is no question that the employer had notice of the claimant’s injury within a few hours of its occurrence. 47a Since no report of injury was filed with the Secretary or the deputy commissioner, the statute of limitations did not begin to run against Riley’s claim. Therefore, the claim filed under the Act on May 2, 1972, more than five years after the accident, is timely. Cain v. Fort Lee Officers’ Open Mess, 1 BRBS 372, BRB No. 74-194 (March 31, 1975); Associated Indemnity Corporation v. Shea, 455 F.2d 913 (5th Cir. 1972); Travelers Insurance Company v. Adler, 230 F.Supp. 593 (D.D.C. 1964). Since the administrative law judge failed to apply Sec- tions 30(a) and (f) of the Act in determining whether or not this claim was timely filed, his conclusion that Riley’s claim is barred by the statute of limitations is erroneous. The Board, therefore, remands this case to the admin- istrative law judge for entry of an Order in favor of the claimant against the appropriate parties for compensation for permanent total disability in accordance with the Act. /s/ Ruta V. WasHincTton Ruth V. Washington, Chairperson I Concur: /s/ Jutius MILLter Julius Miller, Member - —ahenh 48a Hartman, Member, dissenting: I respectfully dissent from the majority opinion in this case. Although I would not deny this claim on the issue of timeliness, I cannot agree that the record before this Board permits, let alone requires, reversal of the Decision of the administrative law judge on the issue of jurisdiction. Section 21(b)(3) of the Act, 33 U.S.C. §921(b)(3), and the law as summarized in O’Keeffe v. Smith Associates, 380 U.S. 359 (1965), require the Board to affirm a decision when that decision is supported by substantial evidence, is not irrational, and is in accordance with law. In our recent Decision in Ekar v. International Union of Operating Engineers, 1 BRBS 406, BRB Nos. 74-209, 209A (April 11, 1975), the Board expressed the view that extra- territorial application of the Act is permissible if it can be shown that there are substantial contacts between the District of Columbia and an employer-employee relation- ship, such that the District of Columbia has sufficient legiti- mate interest in that relationship to warrant application of the Act. The Board’s interpretation of the extraterritorial extension provision of the Act was founded principally on analysis of the Supreme Court decision in Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469 (1947). At the time of writing his Decision in the present case, the admin- istrative law judge did not have the benefit of the Board’s guidance as expressed in Ekar, supra. However, he did evaluate the record evidence before him in light of his own analysis of the concepts of “substantial contacts” and “le- gitimate interest of the District of Columbia” as they are discussed in the Cardillo opinion. In denying this claim for compensation for permanent total disability, the adminis- trative law judge found that there is no substantial con- nection between the District of Columbia and the employer- employee relationship in this case, so that substantial 49a interest on the part of the District of Columbia is absent. I believe this Board is bound to accept that conclusion. The Decision of the adm [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1870%3A1. Public record. Not legal advice.