Ratcliffe v. Clarke's Red Barn

ROBERT M. BELL, Judge. Danny R. Ratcliffe, appellant, while employed by Clarke’s Red Barn, appellee, allegedly sustained a work related back injury on October 1, 1982. His claim for Workmen’s Compensation was disallowed by order dated November 3, 1983, the Workmen’s Compensation Commission having found that appellant did not sustain an accidental injury arising out of and in the course of his employment. An appeal from this order was noted in the Circuit Court for Prince George’s County on December 12, 1983.

Appellee’s motion to dismiss the appeal as untimely filed 1 was granted and the appeal was dismissed on February 17, 1984. On May 18, 1984, by Petition for Reopening alleging “newly discovered evidence,” 2 appellant requested the Commission to reopen his claim pursuant to Md.Code Ann. Art. 101, § 40(c). 3 That petition was denied by order dated June ²⁹⁶ 7, 1984. Thereafter, appellant moved for reconsideration and rehearing, submitting as the basis, the same “newly discovered evidence” offered in his prior petition. Over appellee’s opposition to the motion, the Commission, by order dated July 16, 1984, rescinded its June 7th order and ordered the matter set for rehearing. 4 At that hearing, held on August 20, 1984, no testimony was taken; however, significantly, this colloquy occurred: THE COMMISSION: This is a rehearing?

MR. CHASEN: Yes. THE COMMISSION: I don’t remember whose it was. MR.

MEEHAN: The claimant asked for the rehearing. We have a transcript in that file, your Honor. We considered, having just spoken to Mr. Chasen ... THE COMMISSION: All right.

Excuse me. MR. MEEHAN: We just chatted a minute. I had an idea that I would submit on the transcript.

Mr. Chasen has the same idea. THE COMMISSION: All right. Do I have that transcript? MR.

MEEHAN: Do I say that correctly? MR. CHASEN: Yes. Commissioner, I’d like to refresh your recollection about this case if I can for a moment.

THE COMMISSION: All right. MR. CHASEN: Mr. Ratcliffe’s hearing was held on October 24, 1988 and he was represented by Mr. Richard Starkey at that time. You denied accidental injury in the case on November 3rd and Mr. Ratcliffe consulted me on November 21st. ²⁹⁷ THE COMMISSION: All right.

MR. CHASEN: I filed an appeal in this case, I believe on December 8th or 9th and Mr. Meehan made a Motion To Dismiss, and that was granted by the Circuit Court following that. THE COMMISSION: Well, is this the case you mentioned to me where there was some mention that the appeal was not timely affected? I simply said I’d allow you to reopen so you can affect the appeal.

MR. CHASEN: That’s right. THE COMMISSION: I really don’t need a transcript for that. MR.

MEEHAN: I wasn’t present at the hearing. THE COMMISSION: Really wasn’t a hearing. What happened was, I think I ran into Barry, I believe, and you mentioned to me that apparently the case had not been timely filed and I referred to some case, I forget what it was. But anyway I said that if the only issue was a matter of, you know, timeliness I would simply just go ahead and grant the rehearing, affirm the original order and let you take the appeal.

MR. MEEHAN: There is a transcript on file in this case. THE COMMISSION: All right. MR.

MEEHAN: Now, we, of course, on the record are going to object to both granting of the rehearing since the fifteen days for the rehearing request has passed. And since the question of newly discovered evidence is involved we believe there is no newly discovered evidence. You obviously have made a different decision on that and we want to put an objection to the rehearing, granting of the rehearing on the record also. THE COMMISSION: All right.

MR. CHASEN: Commissioner, just in support of the claimants [sic] contention we have submitted with our petition report from Dr. Richard Dobson dated, I believe, November 27, 1983. ²⁹⁸ THE COMMISSION: I won’t treat it as a rehearing. I will have to treat it as a petition to reopen under Section 40-C. MR. CHASEN: Right.

THE COMMISSION: You, nevertheless are going to object. MR. MEEHAN: You leave me no return [sic] Mr. Commissioner. Very well.

THE COMMISSION: I know your position. You may have a very valid one but I just felt, you know, this is a law supposedly social legislation to be liberly [sic] construed. I could have been wrong. I’d like for the claimant to have the right to prove that.

All right. Following this hearing, in an order dated September 21, 1984, the Commission, recited that it had “under its continuing powers and jurisdiction pursuant to the provisions of Section 40(c) of Article 101, granted [appellant’s] Motion for Rehearing” and then affirmed its prior order disallowing appellant’s claim. Appellant noted a timely appeal to the circuit court and appellee moved to dismiss the appeal because inter alia “[t]he September 21, 1984 Order of the Commission was issued only for the purpose of attempting to reinstate the date from which an appeal of the November 3, 1983 Order might be taken, and is inappropriate, illegal, and should be voided.” The court agreed; thus, the appeal was dismissed. On this appeal, appellant, asserting that the reopening of his claim was discretionary with the Commission, challenges the propriety of the circuit court’s dismissal of his appeal.

Relying on Subsequent Injury Fund v. Baker, 40 Md.App. 339 , 392 A.2d 94 (1978); Adkins v. Weisner, 238 Md. 411 , 209 A.2d 255 (1965); Charles Freeland & Sons, Inc. v. Couplin, 211 Md. 160 , 126 A.2d 606 (1956); Hatchcock v. Loftin, 179 Md. 676 , 22 A.2d 479 (1941); Stevenson v. Hill, 170 Md. 676 , 185 A. 551 (1936), he points out that the Commission, under § 40(c), has broad power, as well as continuing jurisdiction to reopen a case for consideration of ²⁹⁹ questions previously decided. He contends that the Commission may base its decision on newly discovered evidence, which evidence need not be presented in any particular form; that is, it need not be presented in the form of testimony. 5 On the other hand, appellee, conceding the breadth of § 40(c), simply contends that it does not empower the Commission to reopen a case solely for the purpose of permitting a claimant to correct his failure to file a timely appeal. In Couplin , the case on which appellant most heavily relies, the Commission denied the claim for benefits filed by the wife of an employee who had been killed in a logging accident. After the time for noting an appeal had expired, her appeal, which had been filed in the wrong court, was dismissed.

The claimant subsequently petitioned to reopen her claim with the Commission on the grounds of “newly