HAMLIN, Circuit Judge.
Appellant (plaintiff below) appeals from a judgment of the District Court of the Territory of Alaska, Third Judicial Division, dismissing, with prejudice, his amended complaint. The complaint prayed for a writ of attachment as security for the payment of compensation alleged to be due, and for judgment against the defendants in the sum of $4,000.00. The allegations of the complaint may be summarized as follows.
It is alleged that while plaintiff was employed by defendant Swires as a carpenter on July 30, 1956, he received an injury arising out of and in the course of his employment; that he has been totally disabled thereby; and that pursuant to the provisions of the Workmen’s Compensation Act of Alaska, he has become entitled to receive compensation for temporary disability to be paid periodically and promptly in like manner as wages.
The complaint further alleges that the co-defendant, Employers’ Mutual Casualty Company, is a foreign corporation doing business in the Territory of Alaska as an insurance company and that said company is the insurer of defendant Swires pursuant to the provisions of the Alaska Workmen’s Compensation Act, and that therefore defendants are jointly liable for all claims for compensation and other charges pursuant to the provisions of said Act.
The complaint further alleges that the Alaska Industrial Board, under the pro
visions of the Workmen’s Compensation Act, made an award in which it found that the appellant had suffered an industrial accident compensable under the provisions of said Act and was entitled to compensation for temporary total disability in the sum of $1,300.00 for the period from July 31, 1956 to October 31, 1956; and that the Board continued the application of the parties for the determination of further disability compensation, with further testimony and hearings to be heard at Anchorage. The defendants, it is alleged, have, with the exception of said $1,300.00, refused to pay further temporary compensation to the plaintiff.
The prayer of the complaint then is for the issuance of a writ of attachment upon the property of the defendants as security for the payment of compensation to him and for judgment against the defendants for temporary compensation in the sum of $4,000.00 with interest from the date of the accident at eight per cent per annum.
The defendant Swires and his insurance carrier, Employers’ Mutual Casualty Company, moved to dismiss the amended complaint, with prejudice, upon the ground that the Alaska Workmen’s Compensation Act provided an exclusive remedy for an injured employee; that the Alaska Industrial Board under said Act had the original jurisdiction of plaintiff’s claim; and that the District Court lacked jurisdiction.
It appears that appellant originally filed his action in the District Court on November 20, 1956. The defendants made a motion to dismiss, which was granted. The appellant, however, was permitted to amend, and filed his amended complaint upon March 14, 1957. A second motion to dismiss (with prejudice) was filed by the defendants, and it is from the order granting this motion to dismiss the amended complaint with prejudice that this appeal is taken.
The Workmen’s Compensation Act of Alaska, A.C.L.A.1949, as amended, Sections 43-3-1 to 43-3-39, is a comprehensive law providing for the payment of compensation to all injured employees. Pertinent provisions of the Act are set out in the margin.
It provides for the appointment of the Alaska Industrial Board to carry out the
provisions of the Act, and sets out the procedure to be followed by employer and •employee where employees have suffered injuries in the course of their employment.
It provides that every employer shall insure and keep insured his liability thereunder in some insurance company duly authorized to transact the business of workmen’s compensation insurance (§ 43-3-18).
It provides (§ 43-3-10)
that the right to compensation for an injury and the remedy therefor granted by the Act shall be in lieu of all rights and remedies as to such injury “now existing either at •common law or otherwise” and that no rights or remedies except those provided for in the Act shall accrue to employees ■entitled to compensation under the Act while it is in effect. There is a proviso, however, in this section that if an employer fails to secure the payment of • compensation as required by the Act by insuring with an authorized insurance carrier, then any injured employee may, “at his * * * option, elect to claim compensation under this Act or to maintain an action for damages on account of such injury * * and, that in such an action the employer shall not have the benefit of such defenses as contributory negligence, assumption of risk, or that the accident was caused by a fellow servant.
Section 43-3-22
of the Act provides that an award by the Board shall be conclusive as to all questions of fact, but that either party within 30 days of such award, if the award is not in accordance with law, may bring proceedings against the Industrial Board to suspend or set aside in whole or in part such order or award. Such proceeding shall be instituted in the United States District Court for the district in which the injury occurred.
The Act provides in § 43-3-3
that “all compensation allowed hereunder for
temporary disability shall be paid periodically and promptly in like manner as wages,” and that interest at eight per cent per annum runs from the due date until paid. It further provides that for a failure to pay any installment of compensation within 20 days after it becomes due there shall be paid by the employer an additional sum of ten per cent of the compensation then due.
§ 43-3-5
provides that the employee shall have a lien for the full amount of his compensation “upon all of the property in connection with the construction, preservation, maintenance or operation of which the work of such injured * * employee was being performed at the time of the injury * * *.” This section, after providing further details concerning this lien, concludes in the final paragraph as follows:
“The lien for compensation herein provided may be enforced by a suit in equity as in the case of the enforcement of other liens upon real or personal property, at any time within ten months after the cause of action shall arise. Nothing in this section contained shall be deemed to prevent an attachment of property as security for the payment of any compensation as in this Act provided.”
It is the last sentence of this paragraph upon which appellant relied to bring his action in the District Court.
He contends that this last sentence gives him the right to obtain a writ of attachment in the District Court to secure any payments that may become due to him under the provisions of the Workmen’s Compensation Act.
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HAMLIN, Circuit Judge.
Appellant (plaintiff below) appeals from a judgment of the District Court of the Territory of Alaska, Third Judicial Division, dismissing, with prejudice, his amended complaint. The complaint prayed for a writ of attachment as security for the payment of compensation alleged to be due, and for judgment against the defendants in the sum of $4,000.00. The allegations of the complaint may be summarized as follows.
It is alleged that while plaintiff was employed by defendant Swires as a carpenter on July 30, 1956, he received an injury arising out of and in the course of his employment; that he has been totally disabled thereby; and that pursuant to the provisions of the Workmen’s Compensation Act of Alaska, he has become entitled to receive compensation for temporary disability to be paid periodically and promptly in like manner as wages.
The complaint further alleges that the co-defendant, Employers’ Mutual Casualty Company, is a foreign corporation doing business in the Territory of Alaska as an insurance company and that said company is the insurer of defendant Swires pursuant to the provisions of the Alaska Workmen’s Compensation Act, and that therefore defendants are jointly liable for all claims for compensation and other charges pursuant to the provisions of said Act.
The complaint further alleges that the Alaska Industrial Board, under the pro
visions of the Workmen’s Compensation Act, made an award in which it found that the appellant had suffered an industrial accident compensable under the provisions of said Act and was entitled to compensation for temporary total disability in the sum of $1,300.00 for the period from July 31, 1956 to October 31, 1956; and that the Board continued the application of the parties for the determination of further disability compensation, with further testimony and hearings to be heard at Anchorage. The defendants, it is alleged, have, with the exception of said $1,300.00, refused to pay further temporary compensation to the plaintiff.
The prayer of the complaint then is for the issuance of a writ of attachment upon the property of the defendants as security for the payment of compensation to him and for judgment against the defendants for temporary compensation in the sum of $4,000.00 with interest from the date of the accident at eight per cent per annum.
The defendant Swires and his insurance carrier, Employers’ Mutual Casualty Company, moved to dismiss the amended complaint, with prejudice, upon the ground that the Alaska Workmen’s Compensation Act provided an exclusive remedy for an injured employee; that the Alaska Industrial Board under said Act had the original jurisdiction of plaintiff’s claim; and that the District Court lacked jurisdiction.
It appears that appellant originally filed his action in the District Court on November 20, 1956. The defendants made a motion to dismiss, which was granted. The appellant, however, was permitted to amend, and filed his amended complaint upon March 14, 1957. A second motion to dismiss (with prejudice) was filed by the defendants, and it is from the order granting this motion to dismiss the amended complaint with prejudice that this appeal is taken.
The Workmen’s Compensation Act of Alaska, A.C.L.A.1949, as amended, Sections 43-3-1 to 43-3-39, is a comprehensive law providing for the payment of compensation to all injured employees. Pertinent provisions of the Act are set out in the margin.
It provides for the appointment of the Alaska Industrial Board to carry out the
provisions of the Act, and sets out the procedure to be followed by employer and •employee where employees have suffered injuries in the course of their employment.
It provides that every employer shall insure and keep insured his liability thereunder in some insurance company duly authorized to transact the business of workmen’s compensation insurance (§ 43-3-18).
It provides (§ 43-3-10)
that the right to compensation for an injury and the remedy therefor granted by the Act shall be in lieu of all rights and remedies as to such injury “now existing either at •common law or otherwise” and that no rights or remedies except those provided for in the Act shall accrue to employees ■entitled to compensation under the Act while it is in effect. There is a proviso, however, in this section that if an employer fails to secure the payment of • compensation as required by the Act by insuring with an authorized insurance carrier, then any injured employee may, “at his * * * option, elect to claim compensation under this Act or to maintain an action for damages on account of such injury * * and, that in such an action the employer shall not have the benefit of such defenses as contributory negligence, assumption of risk, or that the accident was caused by a fellow servant.
Section 43-3-22
of the Act provides that an award by the Board shall be conclusive as to all questions of fact, but that either party within 30 days of such award, if the award is not in accordance with law, may bring proceedings against the Industrial Board to suspend or set aside in whole or in part such order or award. Such proceeding shall be instituted in the United States District Court for the district in which the injury occurred.
The Act provides in § 43-3-3
that “all compensation allowed hereunder for
temporary disability shall be paid periodically and promptly in like manner as wages,” and that interest at eight per cent per annum runs from the due date until paid. It further provides that for a failure to pay any installment of compensation within 20 days after it becomes due there shall be paid by the employer an additional sum of ten per cent of the compensation then due.
§ 43-3-5
provides that the employee shall have a lien for the full amount of his compensation “upon all of the property in connection with the construction, preservation, maintenance or operation of which the work of such injured * * employee was being performed at the time of the injury * * *.” This section, after providing further details concerning this lien, concludes in the final paragraph as follows:
“The lien for compensation herein provided may be enforced by a suit in equity as in the case of the enforcement of other liens upon real or personal property, at any time within ten months after the cause of action shall arise. Nothing in this section contained shall be deemed to prevent an attachment of property as security for the payment of any compensation as in this Act provided.”
It is the last sentence of this paragraph upon which appellant relied to bring his action in the District Court.
He contends that this last sentence gives him the right to obtain a writ of attachment in the District Court to secure any payments that may become due to him under the provisions of the Workmen’s Compensation Act.
The appellee contends that this sentence refers to the right of action given the employee in § 43-3-10 (see footnote 3) and the right of attachment in such action provided for in § 43-3-26.
The latter section, by its terms, is available to the injured employee only in the event the employer has not complied with the provisions of
the Act by obtaining insurance with an insurance carrier or has not become a self-insurer under the provisions of the Act.
The District Court in granting appel-lee’s motion to dismiss with prejudice agreed with the contention of appellee. We likewise agree.
The whole scheme of the Workmen’s Compensation Act of Alaska, and its express langauge (§ 43-3-10, in footnote 3) indicates that the rights of the employees shall be measured and determined within the framework of the Act and that with the exception
only where the employer has failed to secure insurance
— by an insurance carrier or by
self-insurance
— the
rights of the employee and the employer must be determined by the Alaska Industrial Board.
When, however, there has been a final award of the Board, either party may ask the District Court to suspend or set aside the award in whole or in part. Even in such proceeding the Board’s findings as to all questions of fact “shall be conclusive and binding.”
The sentence relied upon by appellant appears as the last sentence of a long section giving to the injured employee a lien for the full amount of his compensation upon all the property where the injured employee was performing work at the time of the accident. Appellant contends this saving provision creates an independent right to pursue an action in the District Court.
It is more reasonable to believe it was placed there so there would be no question that the lien provided therein would not be a substitute for the attachment provided for in § 43-3-26 (see footnote 7), but was in addition thereto.
To permit an injured employee to make an application for relief before the Board (and the record shows that both appellant and appellee made such an application), and then, before a final award of the Board, to file suit for moneys he claims are due, and for an attachment to secure such moneys, would be to nullify the entire legislative enactment.
Plaintiff complains in his brief of the delays incident to obtaining relief before the Board. Whether or not this is true, it is a matter for the lawmaking body to consider, but it does not justify a pre-ifiature application to the District Court.
We hold the Act does not contemplate such a premature application.
The District Court, in granting the motion of appellee to dismiss with prejudice, also gave judgment to appellees in the sum of $150.00 as attorney fees. Appellant contends this is error. We cannot agree. It is permissible to award attorney fees under § 55-11-51, A.C.L.A.
This has been approved in Libby, McNeill & Libby v. Alaska Industrial Board, 9 Cir., 1951, 191 F.2d 260, certiorari denied 342 U.S. 913, 72 S.Ct. 359, 96 L.Ed. 683, and Reynolds v. Wayde, D.C.1956, 140 F.Supp. 713.
The judgment of the lower court is affirmed.