Cogley v. Schnaper & Koren Const. Co.

• Decision Date: 04 February 1972
• Docket Number: No. 398,398
• Citation: 14 Md.App. 322,286 A.2d 819
• Parties: Robert COGLEY v. SCHNAPER & KOREN CONSTRUCTION CO. et al.
• Court: Court of Special Appeals of Maryland

Page 322

14 Md.App. 322

286 A.2d 819

Robert COGLEY v. SCHNAPER & KOREN CONSTRUCTION CO. et al.

No. 398.

Court of Special Appeals of Maryland.

Feb. 4, 1972.

Charles E. Chlan, Baltimore, on brief, for appellant.

Charles R. Goldsborough, Jr., Asst. Sp. Atty., Baltimore, with whom were Francis B. Burch, Atty. Gen., and I. Howard Holzer, Sp. Atty., Baltimore, on brief, for appellees.

Argued before ANDERSON, MOYLAN and GILBERT, JJ.

GILBERT, Judge.

The issue presented in this appeal is whether or not an award of the Workmen's Compensation Commission may be collaterally attacked in a court of law.

A workman, Robert Oscar Boothe (Boothe) filed a claim with the Workmen's Compensation Commission against the appellant, Robert Cogley (Cogley), alleging that the claimant had sustained an accidental personal injury arising out of and in the course of his employment on the 14th of August, 1967. Cogley filed an employer's report, and the Commission issued an award for temporary benefits in favor of Boothe and against Cogley, a non-insured employer. Inasmuch as Cogley was a subcontractor for Schnaper & Koren Construction Company, Boothe filed a second compensation claim against the appellee, Schnaper & Koren Construction Company as his statutory employer under the provisions of Article 101, § 62. That section provides:

' § 62. Employees of subcontractor may claim against contractor.

When any person as a principal contractor, undertakes to execute any work which is a part of his trade, business or occupation which he has contracted to perform and contracts with any other person as subcontractor, for the execution by or under the subcontractor, of the whole or any part of the work undertaken by the principal contractor, the principal contractor shall be liable to pay to any workman employed in the execution of the work any compensation under this article which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal contractor, then, in the application of this article, reference to the principal contractor shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed.

'Where the principal contractor is liable to pay compensation under this section, he shall be entitled to indemnity from any employer, who would have been liable to pay compensation to the employee independently of this section, and shall have a cause of action therefor against such employer.

'Nothing in this section shall be construed as preventing a workman from recovering compensation under this article from the subcontractor instead of from the contractor.

'Whenever an employee of a subcontractor files a claim under this article against the principal contractor, the principal contractor shall have the right to join the subcontractor or any intermediate contractors as defendant or codefendant in the case.'

A hearing was conducted before the Commission on October 10, 1967, and by its 'Award of Compensation' dated January 25, 1968 the Commission found both Cogley and the appellees to be 'jointly and severally liable for the payment of compensation resulting in this case; * * *' and awarded to Boothe temporary total disability for the period beginning August 15, 1967 through November 7, 1967. As the result of another hearing before the Commission on October 6, 1970, that agency found that Boothe was entitled to additional temporary total disability and that he had sustained a '50% industrial loss of use of his body as a result of the injury to his back which makes a total of 250 weeks of compensation due for permanent partial disability and in accordance with Section 36, Sub-section 4 of Article 101 the claimant has a serious disability and is therefore entitled to 333 weeks of compensation at the rate of $40.00 per week.' Payment to Boothe by Cogley and appellee was accordingly ordered on October 27, 1970. No appeal was noted from that decision.

On April 2, 1970, five months prior to the Commission's hearing of October 6, 1970, the appellees filed suit against Cogley in the Circuit Court for Baltimore County pursuant to the provisions of Article 101, § 62, supra, claiming $25,000.00. ¹ In their suit they alleged that 'as a result of the award of compensation of the Workmen's Compensation Commission as aforesaid, Schnaper & Koren Construction Co., principal contractor, and State Accident Fund, its insurer, were obligated to pay, are obligated to pay and will continue to be obligated to pay temporary total disability payments, medical, hospitalization and other medical bills.' To appellees' declaration, Cogley filed a general issue plea. On January 12, 1971 the appellees, pursuant to Rule 421, served upon Cogley a request for admission of the genuineness of certain documents, viz., the award of the Commission dated January 25, 1968, and its supplemental award of October 27, 1970. Cogley agreed that the documents were genuine. The matter was then heard before Judge H. Kemp MacDaniel on March 17, 1971. Cogley asserted, through his counsel, that Boothe was a 'part time' employee at the time of his accidental injury and sought to offer evidence to that effect. Cogley further asserted that he was not notified of the hearings before the Commission except that, 'He received notice of the first two things and that is all.' ² After hearing argument of counsel, Judge MacDaniel declined to receive testimony from Cogley for the reason that the decision of the Workmem's Compensation Commission had not been appealed, was, therefore, final, and not subject to collateral attack. We agree with Judge MacDaniel.

Article 101, § 56, provides in pertinent part:

'Any employer, employee, beneficiary or person feeling aggrieved by any decision of the Commission * * *, may have the same reviewed by a proceeding in the nature of an appeal * * *.'

We note, as did the trial judge, that no appeal from the Commission's decision was taken.

In 100 C.J.S. Workmen's Compensation § 657a, it is stated 'Subject to a timely exercise of the rights, if any exist, of review, modification, or reopening the judgment or award, it is conclusive and binding as to all matters adjudicated, and matters which the parties might, by exercising reasonable diligence, have brought forward at the hearing may also be concluded.'

Article 101, § 56, provides a vehicle for review of the decisions of the Workmen's Compensation Commission, but Cogley did not avail himself of the relief authorized by that section. He seemingly was content to abide by the decision of the Commission, until the previously filed suit was pressed against him for reimbursement of the monies that the appellees had been called upon to pay, as well as those sums for which appellees will subsequently be required to pay to the claimant Boothe. It is difficult to understand why Cogley did not appeal the decision of the Commission dated October 27, 1970, a period of time approximately 5 months and 25 days after suit had been filed against him by the appellees, and by which he was placed on clear notice of the relief sought by appellees, and the reasons therefor.

Cogley failed to maintain a direct assault upon Boothe's claim or upon the decision of the Commission, but instead chose, albeit incorrectly, to endeavor to collaterally attack the decision of the Commission.

It has long been held that the courts of this state,

'* * * should not aid in any attempt to circumvent the State Industrial Accident Commission (now the Workmen's Compensation Commission) in order to make the courts the tribunal of first instance and, if such an attempt is shown, the appeal should not be granted.' Oxford Cabinet Co. v. Parks, 179 Md. 680, 683, 22 A.2d 481, 482 (1941).

See also Benoni v. Bethlehem-Fairfield Shipyard, Inc., 188 Md. 306, 52 A.2d 613 (1947); Hathcock v. Loftin, 179

Md. 676, 22 A.2d 479 (1941). Cf. Bethlehem Steel Co. v. Mayo, 168 Md. 410, 177 A. 910 (1935).

Schneider's Workmens' Compensation, Vol. 12, § 2458, states:

'On the expiration of the stated statutory period for requesting a review or for the taking of an appeal, absent fraud, mistake, or want of jurisdiction, an award, not void on its face, becomes final as to all matters of fact and law adjudicated. * * *'

'* * * Whether one is injured in his employment becomes res adjudicata, if there is no appeal from the commission's award. The compensation examiner's order, or the finding and award of the hearing referee, or of the single commissioner, not appealed to the full commission, generally becomes the final award of the commission after the date allowed for appeal or review by the full commission if the parties have been notified of such award when made and the opportunity thus given to file a timely application for review by, or an appeal to the full commission. Such final awards are not subject to collateral attack. An award in a compensation proceeding is, for example, not open to collateral attack in a suit for declaratory relief against the third party tortfeasor and employee. * * *'

'The same is true of an unappealed final award of the Commission on a fact issue, within its jurisdiction, whether decided rightly or wrongly. The award is however conclusive under all the foregoing circumstances only when the...