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BLACKWELL CONSTR. CO. v. GARRELL

December 15, 1972

BLACKWELL CONSTRUCTION CO. and Employers Mutual Liability Insurance Company of Wisconsin, Plaintiffs,
v.
Jack GARRELL, Deputy Commissioner, U.S. Department of Labor, Bureau of Employees' Compensation, District of Columbia Compensation District, Defendant, and Mathilda Foux and Robert Wayne Foux, Intervenors


Parker, District Judge.


The opinion of the court was delivered by: PARKER

PARKER, District Judge.

 Plaintiffs Blackwell Construction Company and Employers Mutual Liability Insurance Company of Wisconsin initiated this action under the Longshoremen's and Harbor Workers' Compensation Act, Title 33, U.S.Code, Section 921 (1927), as made applicable to the District of Columbia by Title 36, D.C.Code, Section 501 (1967). They sought to enjoin enforcement of a Compensation Order and Award of Death Benefits entered in Case No. 30222f by the defendant, Jack Garrell, Deputy Commissioner, U.S. Department of Labor, Bureau of Employees' Compensation, District of Columbia Compensation District, in favor of the intervenor-defendants, Mathilda Foux and Robert Wayne Foux.

 The matter was heard on motions for summary judgment filed by the three parties. The Court, having considered the memoranda of points and authorities, the oral argument of counsel and it appearing that the significant material facts have been stipulated to by counsel, enters the following findings of fact and conclusions of law:

 Findings of Fact

 1. This is a review of an administrative determination made by the defendant, Deputy Commissioner of the Bureau of Employees' Compensation. In the proceeding before the Bureau, Case No. 30222f, the parties waived a formal hearing and stipulated to the following:

 a. On August 28, 1968, Wilbur D. Foux sustained an accidental injury arising out of and in the course of his employment with Blackwell Construction Company which resulted in his death on the same date. At that time the liability of Blackwell for workmen's compensation benefits was insured by Employers Mutual Liability Insurance Company.

 b. The death of the employee was compensable under the Longshoremen's and Harbor Workers' Compensation Act as made applicable to the District of Columbia. Blackwell had actual notice of the injury and death of its employee on August 28, 1968.

 c. On October 30, 1968, a claim for workmen's compensation death benefits was filed with the defendant Deputy Commissioner by one, Veronica Foux who represented herself to be the widow of Wilbur D. Foux. Blackwell and Employers Mutual proceeded to pay compensation to Veronica Foux from August 29, 1968 to May 23, 1969, at which time the latter stopped payments because the claimant had failed to submit evidence of her alleged marriage to Wilbur D. Foux. Employers' Mutual filed appropriate notice with the Bureau of Employees' Compensation of such termination of payments.

 d. Thereafter, Blackwell and Employers Mutual were made aware of the existence of the claim of the intervenor-defendants, Mathilda Foux as the widow and Robert Wayne Foux as the minor child of the deceased employee. Notice of their claim was sent to Blackwell by Jerome L. Cohen, in a letter dated August 15, 1969. Blackwell sent a copy of that letter to Employers Mutual on August 19, 1969.

 e. On November 17, 1969, Employers Mutual wrote to the intervenor-defendants' attorney advising him that a claim should be filed with the Bureau of Employees' Compensation. An appropriate claim, together with supporting documents, was filed on December 16, 1969.

 f. Blackwell and Employers Mutual controverted the claims of the intervenor-defendants on the ground that they were not filed with the Bureau within one year from the date of death of the deceased employee.

 g. Mathilda Foux is the lawful surviving widow of the deceased employee, was married to him on April 10, 1944, and was living apart from him at the time of his death for justifiable cause or by reason of his desertion. Robert Wayne Foux is the natural child of the deceased ...


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