The opinion of the court was delivered by: LORD, III
JOSEPH S. LORD, III, Chief Judge.
This case arises from an accident on March 17, 1955 in which Benjamin Hill, a longshoreman, was killed while working on board the S.S. "Yaka" in the port of Philadelphia. At the time, he was in the employ of the Ryan Stevedoring Company. American Mutual Casualty Company (insurer) was the compensation carrier for Ryan.
Following the accident, Hill's administratrix, Irene Hill (his wife), brought a third-party action against the owner of the vessel, pursuant to 33 U.S.C. § 933. Recovery was sought under the Pennsylvania Wrongful Death Act, 12 P.S. § 1601 et seq., and the Survival Act, 20 P.S. § 320.601. Insurer properly suspended compensation payments ($35 per week) to Mrs. Hill, for the benefit of her and her children, pending the outcome of this third-party action.
The third-party action resulted in no recovery under the Wrongful Death Act, but Hill's estate received a net of $6,836.20 under the Pennsylvania Survival Act. On September 9, 1959, the insurer reinstated the weekly payments. At that time, accrued payments for the past 234 weeks amounted to $8,190.00. The insurer claimed a set-off in the amount of the estate's net recovery ($6,836.20), basing its claim on Section 933(f) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 933(f). The insurer thus remitted to Hill's wife and children the balance of $1,353.80.
Mrs. Hill promptly requested the Deputy Commissioner to make a determination that the insurer had no right to credit the recovery under the Survival Act against its liability to pay accrued death benefit compensation to her and her children. For some unexplained reason, there was a great delay until the Deputy Commissioner reached a decision. During this delay, Mrs. Hill added a claim for interest on the amount set-off by the insurer ($6,836.20) in 1959, if it was ultimately determined that she was entitled to these accrued compensation payments.
On October 3, 1968 the Deputy Commissioner held that the net recovery of $6,836.20 by the decedent's estate under the Survival Act could not be applied against those payments due as compensation to a decedent's dependents for a death claim under the Longshoremen's and Harbor Workers' Compensation Act, and recommended that the payment of $6,836.20 be made forthwith to the claimant widow after the deduction of a reasonable attorney's fee. There was no mention whatsoever in this recommendation of interest. On November 14, 1968, the employer and its carrier paid the recommended award to Mrs. Hill.
Mrs. Hill then informed the Deputy Commissioner some two months later that she still desired a determination of whether she was entitled to interest on the sum of $6,836.20 which was paid to her. Interest was alleged to be due from 1959, when the third-party action was finally completed, until November 14, 1968 when the insurer actually paid her the accrued payments after the Deputy Commissioner's determination that they could not be set off. On October 5, 1970 the Deputy Commissioner issued an order denying this claim for the payment of interest on the $6,836.20.
We have jurisdiction of both these actions under 33 U.S.C. § 921(b). Essentially, they are cross-appeals based on the same record made by the respective plaintiffs as adversary parties before the Deputy Commissioner in proceedings under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. Therefore, we consolidated these actions for a joint decision on the merits.
The foundation of Ryan's position is that it is entitled to a set-off because of the wording of § 933(f) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 933(f). Though § 933(f) has since been amended, the law as it stood at the time of the incident in question applies. See e.g., Smith v. A.H. Bull Steamship Co., 208 F. Supp. 172, 174 (D. Md. 1962). Section 933(f) provided at that time as follows:
"If the person entitled to compensation or the representative elects to recover damages against such third person * * * the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the secretary determined is payable on account of such injury or death over the amount recovered against such third person." (Emphasis added.)
Ryan's argument is that since Mrs. Hill was "the representative" suing in the Survival Act suit, the statute's language requires that there be a set-off of the recovery in that action against ...