is controverted by the employer.' (Emphasis supplied.)
Plaintiff urges that he is entitled to receive compensation payments without a formal award. 33 U.S.C.A. § 914(a). He states that Liberty's actions directed at forcing him to take an award or elect to sue the third party were improper because (a) the grounds on which the controversion is based were improper; (b) the Act was not intended to force an employee to give up his right to immediate compensation with the attendant result of perhaps prejudicing his right against the third party tortfeasor, and (c) the time period for controverting the claim had passed.
It should be remembered that an election to sue a third party waives, at least temporarily, the longshoreman's right to receive compensation benefits. His acceptance of a formal award assigns whatever cause of action he has against the third party to his employer or its insurance carrier. 33 U.S.C.A. § 933(b) and (i).
As to whether or not the claim was controverted on proper grounds, defendant has urged the Supreme Court's statement in American Stevedores v. Porello, 1947, 330 U.S. 446, 67 S. Ct. 847, 852, 91 L. Ed. 1011, as controlling. There, in deciding, inter alia, that a longshoreman does not lose his third party action by accepting voluntary compensation benefits, the Court also offered the following gratuitous suggestion:
'American (the longshoreman's employer), in the unusual circumstances of this case, could have protected itself by controverting the employee's right to receive compensation (referring by footnote to 33 U.S.C.A. § 914(d) and (h)). In this way it could probably have forced an award and the consequent assignment of the right of action to itself.'
While the remarks of the Supreme Court could perhaps be considered dicta, they are entitled to great weight, especially in view of the number of opportunities that the Court has had to interpret the Act in question. International Ry. Co. v. Davidson, D.C.W.D.N.Y.1945, 65 F.Supp. 58. That particular statement appears to be the lone authority directly on point,
and while we feel that we are not necessarily bound thereby and do not necessarily agree, we nevertheless feel constrained to follow it. This conclusion would also dispose of point (b), supra, raised by the plaintiff.
However, as far as point (c) is concerned, we are of the opinion that the notice to controvert was untimely. Section 14(d), 33 U.S.C.A. § 914(d) states:
'If the employer controverts the right to compensation he shall file with the deputy commissioner on or before the fourteenth day after he has knowledge of the alleged injury or death, a notice, * * * stating that the right to compensation is controverted * * *.' (Emphasis supplied.)
Admittedly, the controversion in question was filed subsequent to the fourteen day period. Defendant argues that the controversion notice was timely under the language of section 14(c), 33 U.S.C.A. § 914(c) of the Act which reads:
'* * * upon suspension of payment for any cause, the employer shall immediately notify the deputy commissioner * * * that payment of compensation * * * has been suspended * * *.'
Defendant argues that under this provision of the Act, it was not limited by the fourteen day period but rather only to the nebulous standard of immediate notification. Obviously, this cannot be so in the controversion procedure, for to hold so would render section 14(d) meaningless. It is our opinion that payments may be suspended for various reasons, such as the longshoreman's ability to return to work. However, where the carrier controverts a claim, it must follow the procedures relating to time under section 14(d). This Court wishes to point out that the Supreme Court in American Stevedores v. Porello, supra, in recognizing the right to controvert a claim on the grounds in question, referred only to sections 14(d) and (h),
as authority the inference being that section 14(c) would not deal with controversion notices. For these reasons, we conclude that the notice of controversion in the instant case was untimely and therefore improperly filed.
The Court finds difficulty in applying the remedy sought. However, in view of the limited powers that are available to the deputy commissioner in this situation, we hereby declare that the controversion notice filed by the defendants was untimely and that it is null and void. We also direct the defendant, Liberty Mutual Insurance Company, to pay the plaintiff, to the extent of its liability, the compensation benefits due him until such time, as is determined by the deputy commissioner, that the said payments should cease.
Counsel will submit an appropriate order.