Charles Freeland & Sons, Inc. v. Couplin

Decision Date07 November 1956
Docket NumberNo. 7,7
Citation211 Md. 160,126 A.2d 606
CourtMaryland Court of Appeals
PartiesCHARLES FREELAND & SONS, Inc., Employer and State Accident Fund, Insurer, v. Genevieve COUPLIN, Claimant, Widow of Ernest R. Couplin, Deceased.

Philip T. McCusker, Baltimore, Sp. Atty. for State Accident Fund (C. Ferdinand Sybert, Atty. Gen., Ernest N. Cory, Jr., Laurel, and U. Theodore Hayes, Sp. Attys. for State Accident Fund, Baltimore, on the brief), for appellants.

Paul Berman, Baltimore (William M. Travers, Sigmund Levin and Theodore B. Berman, Baltimore, and Turnbull & Brewster, Towson, on the brief), for appellee.

Before BRUNE, C. J., COLLINS, WILLIAM L. HENDERSON and HAMMOND, JJ., and GEORGE HENDERSON, Special Judge.

GEORGE HENDERSON, Special Judge.

Genevieve Couplin, the Appellee (claimant) had filed with the State Industrial Accident Commission a claim for compensation because of the death of her husband while allegedly in the employ of Charles Freeland and Sons, Inc. (Freeland). Her claim was refused by the Commission, but an appeal by her to the Circuit Court for Baltimore County has resulted in a judgment in her favor.

Freeland, and his insurer, the State Accident Fund, have taken an appeal to this Court, basing it on two grounds. The first deals with the proceedings before the Commission. It is claimed that claimant allowed the time to expire before she took an appeal from the Commission to the Circuit Court for Baltimore County, and that the action of the Commission in reopening her claim after the expiration of such appeal period gave her no right to appeal from the second refusal to allow her claim after the matter had been reopened. As a second ground for reversal it is claimed that under all the testimony it was conclusively shown Ernest M. Couplin, claimant's husband, was an independent contractor and not an employee; that therefore Defendant's prayer for a directed verdict should have been granted in the circuit court, and the case taken from the jury.

This case has been a long drawn out one. Ernest M. Couplin was killed in a logging accident on February 7, 1952, while cutting Freeland's timber. The claim was filed with the Commission about a month later, and a hearing was held on May 19, 1952. It was not until June 16, 1953, that the order of the Commission was filed dismissing the claim because it found Couplin was an independent contractor, and not an employee. The next day an appeal was taken, but through inadvertence this was filed in the Superior Court of Baltimore City. When the error was discovered this appeal was dismissed; but it had then become too late to appeal to the Circuit Court for Baltimore County, which was the County where claimant lived.

On August 21, 1953, claimant petitioned the Commission to reopen the case on the ground of newly discovered evidence. As a result of this petition testimony was taken before the Commission on November 24, 1953. It was not until September 29, 1954, that the Commission took any action, and it then passed an order reopening the case but reaffirming its previous decision rejecting her claim. From this decision an appeal was taken in due time to the Circuit Court for Baltimore County, where a jury rendered a verdict in favor of claimant on December 8, 1955.

At the time of the argument in this Court counsel for appellants called attention to Rule 12 of the Rules of Procedure before the State Industrial Accident Commission. This reads as follows:

'Rule No. 12. Applications for a rehearing shall be in writing stating the reasons therefor and must be filed within thirty days from the date of the decision. No rehearing shall be granted except upon the grounds of error or newly discovered evidence.'

This rule was not offered in evidence or passed upon in the Circuit Court, and will not be considered here.

Therefore it must be decided whether the Commission had the power to reopen the case more than fifteen months after its original decision refusing to allow the claim, and thereby make it possible for claimant to appeal from the second rejection of her claim more than fifteen months after she had lost the right to appeal from the Commission's first rejection.

An appeal from a decision of the Commission is authorized by Section 57 of Article 101 of the Code. It is provided that this must be taken 'within thirty days following the rendition of the decision appealed from.' Since the appeal from the first decision was ineffective it follows that claimant could not have taken the second appeal unless the Commission had revived a right of appeal by reopening the case and reaffirming its first decision.

If this power to reopen exists, it is by virtue of Section 53 of Article 101, the relevant part of which reads as follows:

'53. The powers and jurisdiction of the Commission over each case shall be continuing, and it may, from time to time, make such modifications or changes with respect to former findings or orders with respect thereto as in its opinion may be justified; provided, however, that no modification or change of any final award of compensation shall be made by the Commission unless application therefor shall be made to the Commission within three years next following the last final award of compensation, but no award shall be considered a final award under this section unless it shall have been so designated on the award by the Commission.'

That the Commission does have such power to reopen has been decided in the affirmative by this Court. Three of the cases apparently relied upon by appellants decide only that an appeal from an unfavorable decision must be taken within thirty days. But none of these three cases, Holland Mfg. Co. v. Thomas, 136 Md. 77, 110 A. 209; Miller v. Bethlehem Steel Co., 160 Md. 657, 154 A. 555; Howell v. Bethlehem-Sparrows Pt. Shipyard, 190 Md. 704, 59 A.2d 680, had to do with the matter of reopening. They were decided under now Section 57 of the Act, which deals with appeals, and not with the right to reopen under Section 53.

The right of the Commission to reopen has been considered by this Court in a number of cases. Bethlehem Shipbuilding Corp. v. Simmons, 143 Md. 506, 122 A. 678 decided in 1923, was an early case in which an appeal was allowed from a decision of the Commission refusing to reopen a case. But this case is not in point here, as it was an application based on what is now Section 42 of the Act giving special power to the Commission to reopen 'If aggravation, diminution or termination of disability takes place * * *.'

Nor is Gold Dust Corp. v. Zabawa, 159 Md. 664, 152 A. 500, controlling, as in that case the Commission had refused to reopen a case in which the claimants claim had twice been denied. This Court held there could be no appeal from this refusal to reopen, and distinguished the Simmons case where the appeal had been allowed because it was as to new conditions of aggravation under now Section 42.

But Stevenson v. Hill, 170 Md. 676, 185 A. 551, is a precedent to sustain the action of the Commission in reopening this present case. There the Commission had awarded compensation at a certain rate to the widow. Months later she requested the matter be reopened in order to permit her to show the earnings of the deceased had been at a greater rate than the Commission had originally decided. The Commission did reopen; this order was held improper by the circuit court, but this Court held a reopening was within the powers of the Commission under Section 54 (now Sec. 53 quoted above). In Dyson v. Pen Mar. Co., Inc., 195 Md. 107, 73 A.2d 4, Stevenson v. Hill, supra was referred to as authority that the Commission has the power to reopen a case for reconsideration of a question previously decided, although none of the parties has a right to require that a case be reopened or to appeal from a refusal to comply with such a demand.

Saf-T-Cab Service v. Terry, 167 Md. 46, 172 A. 608, is referred to in the Stevenson opinion. In this earlier case the Commission had reopened the claim within 30 days of its first decision in order to bring in Saf-T-Cab as a joint employer of claimant. From the Commission's second decision, rendered four months after the first decision, affirming its earlier finding that Saf-T-Cab was not an employer, the claimant appealed. Both in the circuit court and in the Court of Appeals Saf-T-Cab urged that the time for appeal had expired because not taken within thirty days of the first decision. This Court affirmed the lower court in a brief opinion to the effect that under Section 54 (now 53) the Commission had authority to rescind its earlier decision, to reopen, and to make a final decision from which an appeal could be taken.

The case of Kelly-Springfield Co. v. Roland, 197 Md. 354, 79 A.2d 153, 154, is certainly an authority to sustain the action of the Commission here. In that case claimant had been awarded temporary compensation for a disability which the Commission found was compensable because the result of an occupational disease. No appeal was taken by the employer from such decision of the Commission rendered on July 10, 1947. On September 18, 1948, claimant requested a hearing before the Commission on the two issues: (1) Is claimant permanently disabled, and (2) the percentage of permanent disability. The matter was referred to the Medical Board, whereupon employer raised the question whether claimant 'was 'disabled to any extent by reason of suffering from an occupational disease claimed to have been incurred in the course of his employment." And all the testimony was that the asthma, from which plaintiff was undoubtedly suffering, had never been known to occur as a result of the occupation in which claimant had been engaged. This issue and the testimony offered by the employer to support it had been objected to by claimant's counsel. Both the Medical Board and the Commission found the disability was the result of an occupational disease. This finding was...

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