The opinion of the court was delivered by: HUYETT
This action arises out of a claim for damages by a longshoreman, Chandler W. Sykes, against shipowner, Patrai Shipping Corporation, for injuries sustained by plaintiff aboard defendant's "M/V Patrai" as a result of the alleged negligence of the defendant. Sykes alleges that he was injured on October 19, 1979, while climbing down a ladder from which a rung was missing, and as a result he is now permanently disabled.
Defendant Patrai contends that plaintiff is collaterally estopped from offering evidence of past or continuing disability after October 2, 1981. On October 2, 1981, plaintiff returned to work at the Amstar Pier; on November 13, 1981, while lifting a tank from his bulldozer, plaintiff experienced severe back pain. Plaintiff ceased working after this incident and began to collect worker's compensation. For nearly two years, plaintiff continued to receive worker's compensation on the basis of his "temporary total" disability. On August 5, 1983, plaintiff's counsel received two forms from the U.S. Department of Labor. The first, form LS-206, was a notice of final payment or suspension of payments and compensation which stated that plaintiff's payments were being suspended because his disability status as of November 10, 1982 was "temporary partial" as opposed to "temporary total;" therefore, plaintiff had received an overpayment of compensation benefits and suspension was necessary until the overpayment was recouped. (Defendant's exhibit "P") The second form plaintiff's counsel received on August 5, 1983, form LS-208, stated that plaintiff's disability had been reclassified from "temporary total" to "temporary partial."
An informal conference was held on October 5, 1983 before a representative of the Department of Labor, at which both parties to this action appeared and at which two issues were addressed: the extent of plaintiff's disability and whether the November 13, 1981 incident constituted a "new" injury or an aggravation of an "old" injury. The resulting memorandum issued by the Department of Labor dated October 12, 1983 recommended that the November 13, 1981 injury be considered a new one and that plaintiff continue to receive "temporary partial disability compensation."
Defendant contends that this memorandum, filed by the Department of Labor on October 12, 1983 following the informal conference held on October 5, 1983, constituted rulings by the hearing examiner that collaterally estop plaintiff from relitigating the issues decided at the compensation hearing. Defendant also contends that plaintiff has failed to exhaust the administrative process: "in the case at bar, Sykes has ignored the administrative appellate process and seeks an 'end-run' decision in his favor in the Court, contrary to the requirements of the Act." (Defendant's Brief p. 6.)
Plaintiff, on the other hand, contends that no formal findings were made by the Department of Labor; that the informal conference held on October 5, 1983 was just that, an informal conference, not a formal hearing; and that the memorandum of informal conference was not an agreed upon settlement, award or decision but rather simply a recommendation. Only an Administrative Law Judge, plaintiff states, can conduct a formal hearing and enter awards and orders.
When an employer contests a compensation claim or an employee contests actions taken by the employer in connection with his claim, informal procedures are employed by the Department of Labor to try to resolve the dispute before any formal proceedings are instituted. 20 C.F.R. § 702.261 states in pertinent part:
Where the claimant contests an action by an employer or carrier reducing, suspending, or terminating benefits, including medical care, he should immediately notify the office of the deputy commissioner having jurisdiction, in person or in writing, and set forth the facts pertinent to his complaint.
In turn, the Deputy Commissioner sets in motion an informal process to resolve the conflict. Section 702.311 of Title 20 of the Code of Federal Regulation states in pertinent part:
The deputy commissioner is empowered to resolve disputes with respect to claims in a manner designed to protect the rights of the parties and also to resolve such disputes at the earliest practicable date. This will generally be accomplished by informal discussions by telephone or by conferences . . .
The deputy commissioner or his designee essentially acts as moderator during an informal conference: he "guide[s] the discussion toward the achievement of the purpose of such conference, recommending courses of action where there are disputed issues, and giving the parties the benefit of his experience and ...