The opinion of the court was delivered by: GANEY
This is an action brought by the plaintiff to obtain judicial review of a compensation order filed by Samuel S. Lowe, Deputy Commissioner, on February 7, 1949, pursuant to the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S.C.A. § 901 et seq., in which the Deputy Commissioner dismissed the application of the plaintiff for review under Section 22 of said Act for injury and disability sustained while in the employ of the defendant, B. H. Sobelman & Company, on or about August 18, 1941.
On August 18, 1941, the plaintiff was injured while in the employ of B. H. Sobelman & Company, and after conferences with the defendant, its insurance carrier, claimant and his attorney, in the office of the Deputy Commissioner, a written Memorandum was filed on June 4, 1943 directed to all parties, stating, inter alia: 'At the said conferences it was recommended that the carrier pay to the plaintiff compensation * * * at the rate of $ 18.00 per week * * * a total of 257 weeks * * *'. Under this recommendation the said period of 257 weeks would have elapsed on July 22, 1946.
No formal application was ever filed and voluntary payments were made to him by draft down to July 15, 1946, which draft the plaintiff collected on September 4, 1946. The carrier also sent the claimant a draft for compensation for the period from July 15, 1946 to July 22, 1946, but both sides agree that since the draft was not signed by the carrier it could not be considered as a payment even though the claimant held on to the draft for a long period of time. On July 21, 1946, six days later than the last payment of compensation, claimant's counsel wrote to the Deputy Commissioner requesting that the case be reopened and he was advised by the Deputy Commissioner that since there was no accompanying evidence of further disability, there was no ground for further consideration of the case and, no further supporting evidence with this application to review, was filed until May 13, 1948.
This case it seems is controlled by Ocean Accident & Guarantee Corp. et al. v. Lawson, 5 Cir., 135 F.2d 865, here as in that case the application to reopen and review was not made within one year, for although in the instant case, the draft was not collected until September 4, 1946, it was in payment of compensation paid to July 15, 1946, which it seems to me should be considered the date of the last payment, as payment under the Act should not be left to the whim of the payee as to when he shall cash or collect the draft and therefore application was not had within Section 922 because the Commissioner is without authority to reopen and review unless done prior to one year after the date of the last payment. Furthermore, as the above mentioned case points out, the review contemplated in Section 922 is to be in conformity with the procedure of Section 919 which is expressly made subject to the provisions of Section 913 and this section requires the filing of a claim within one year from the date of the last payment. Therefore even if we consider the payment as of September 4, 1946, it was nevertheless lacking the filing of a claim, which is a requisite.
Accordingly, the motion to dismiss the complaint ...