Haleck v. Scanlan

The present matter arises on a motion to dismiss the appeal filed by appellant-employer following a decision of the Workmen’s Compensation Board awarding benefits to appellee-claimant. Appellant appealed under the provisions of 3 A.S.C. 2101, part of the Administrative Procedure Act of American Samoa. However, subsection 2101(b) specifically provides that “. .. judicial review may not be sought [999] under this subchapter of any proceedings for which ... the law specifically provides other adequate means of judicial review.” The American Samoa Workmen’s Compensation Act specifically provides a procedure to review a decision of the Workmen’s Compensation Board. 24 A.S.C. 459 provides in part that “(i)f not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings, brought . . . against the commissioner, and instituted in the High Court of American Samoa.” (Italics ours.) It follows by legislative fiat that the general appeal provisions of the Administrative Procedure Act above referred are inapplicable, and that the only permissible review in Workmen’s Compensation matters is by injunction. The document filed by appellant is not, and cannot be interpreted as an injunction action in the trial division of the High Court. Appellant’s contention that 24 A.S.C. 459 and 460 are fatally ambiguous, is without merit. The file reflects the filing of a document on May 29,1975, entitled “Petition for Reconsideration.” An order denying same was filed by the Commission June 19,1975. 24 A.S.C. 458 provides a thirty day period from the date the compensation order is filed in the office of the commissioner in which proceedings for the suspension or setting aside of such order may be instituted. It is unnecessary to rule whether a “Petition for Reconsideration” tolls the statutory period above-referred. Under the most generous time frame encompassed in the filing of documents herein, no authorized proceedings under 24 A.S.C. 459 were filed under any statutory period. The compensation order is final. No sum or sums of any kind have been paid under the commission award, and no stay was ever granted appellant. Appellant claims that appellee has no standing before this court. Because of appellant’s choice of procedure by [1000] filing a general type of appeal, any party in interest is qualified to make the present motion. IT IS ORDERED, ADJUDGED and DECREED that the motion to dismiss appeal is granted. Fees and cost are prayed for, alleging the appeal to be “frivolous.” The following applies only to this contention. 24 A.S.C. 449 provides that “If the court having jurisdiction . . . determines that the proceedings . . . have been ... continued without reasonable ground, the costs of such proceedings shall be assessed against the party who has instituted or continued such proceedings.” Costs do not include fees and/or penalties inferentially. However, Rule 63, Rules of the High Court, provides that “if the Court shall determine that an appeal is frivolous ... reasonable attorney’s fees.” The following is cogent: 1. Date of death was April 17, 1974. The exact timé employer gained knowledge of the injury is not stated; however, the police report dated the same day shows that the employer was contacted and acknowledged that decedent was driving employer’s truck for bread delivery. The records show that at no time did employer controvert entitlement. He did not comply with 24 A.S.C. 464; hence, a right to compensation was established before May 2, 1974. 2. Notice of claim was filed and receipted for by employer September' 27, 1974. Late filing does not excuse non-compliance with 24 A.S.C. 464. 3. Three of the five continuances were granted because employer’s attorney was either “off-island” or failed to appear without explanation. Affidavits are conflicting, but the sixth continuance to February 13,1975 from February 11th was made by the Commissioner without notice. On February 13,1975, employer’s counsel was notified person [1001] ally, appeared at the hearing, objected to same, and left for other “commitments.” He did not claim that he had to be in another court that morning. He elected on his own motion to leave a hearing which in his presence was ordered to proceed. Because of the failure to controvert, only one problem remained, i.e., the factual question of the extent, if any, of the dependency of Ma’amu Westerlund. His departure without examining the witnesses there available on the subject was, in this court’s opinion, inexcusably daring and capricious. 4. A “Petition for Reconsideration” was made and denied. Another six weeks had elapsed and appellant had full reason to know at that time that judicial review was his only last resort. 5. There was no valid reason and/or explanation why the clear provisions of 24 A.S.C. 459 were not followed. Refusing to utilize an unambiguous section (24 A.S.C. 459) proscribing the exact and only method of Judicial Review because of an alleged inadequate wording in a section (24 A.S.C. 460) pertaining only to Enforcement Proceedings is completely unconscionable. Under the American Samoa Code, the “appeal” was, on its face, fatally defective when filed. It served only to forestall claimants for another three months. For all reasons above, the selection of the abortive “appeal,” the background of the litigation indicating the time-consuming procedures utilized, and the fact that no one has ever denied the rights to compensation, all combine to qualify this appeal as frivolous. IT IS FURTHER ORDERED, ADJUDGED and DECREED that appellants pay to appellees the sum of $575.00 fees and costs reasonably incurred in combating the appeal, under Rule 63 of the Rules of the High Court of American Samoa.