Appendix — Dillard v. Industrial Comm'n of Va.

Supreme Court brief1974

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

Civil Action No. 537-71-R ,

JOHN R. DILLARD, individually, and on behalf of all

other persons similarly situated, COMPLAINANT

INDUSTRIAL COMMISSION OF VIRGINIA, THOMAS M. MILLER,

Chairman, Industrial Commission of Virginia, M. Ep-

WARD EVANS, THOMAS P. HaRwoon, JR., Commissioners

of the Industrial Commission of Virginia, and AETNA

CASUALTY AND SURETY COMPANY, DEFENDANTS

COMPLAINT

1. This is an action for a temporary restraining order,

a preliminary and permanent injunction, and damages

authorized by 42 U.S.C. § 1983 to redress the depriva-

tion, under color of state law, statute, ordinance, regu-

lation, custom or usage, of rights, privileges and immuni-

ties secured by the Constitution of the United States.

The rights, privileges and immunities for which redress

is sought are those secured by the Due Process Clause

of the Fourteenth Amendment to the Constitution of the

United States. This is also an action for a declaratory _

judgment pursuant to 28 U.S.C. §§ 2201 and 2202, to

declare the rights established by the aforementioned con-

stitutional provision.

2. Jurisdiction is conferred on this Court by 28 U.S.C.

§ 1343(3) and (4), providing for original jurisdiction

of this Court in suits authorized by 42 U.S.C. § 1983;

jurisdiction is further conferred on this Court by 28

U.S.C. §§ 2201 and 2202 relating to declaratory judg-

ments, and by 28 U.S.C. §§ 2281 and 2284 providing

for a three-judge district court.

8. Plaintiff respectfully requests that a three-judge dis-

‘

trict court be converied pursuant to 28 U.S.C. § 2281, for

the reason that he seeks an injunction to restrain the

defendants, officers of the State of Virginia and their

agents, from the enforcement, operation and execution of

a statewide regulation by reason of its repugnance to the

Constitution of the United States.

4. Plaintiff John R. Dillard is a citizen of the United

States and a resident of the State of Virginia. Plaintiff's

sole income had been forty dollars and eighty cents

($40.80) per week paid by defendant, Aetna Casualty

and Surety Company, pursuant to an award of Work-

men’s Compensation by the defendant, Industrial Com-

mission of Virginia.

5. Plaintiff brings this action on his own behalf and on

behalf of all other persons similarly situated pursuant

to Rule 283 (a), (b) (2) of the Federal Rules of Civil

Procedure. The class which plaintiff represents is all

persons similarly situated who are recipients of Work-

men’s Compensation pursuant to the Virginia Workmen’s

Compensation Act (Title 65, Code of Virginia, as amend-

ed) and who are, therefore, subject to having their bene-

fits terminated prior to a hearing before the Industrial

Commission of Virginia. The members of the class on

behalf of whom plaintiff sues are so numerous as to make

joinder impracticable. There are questions of law or fact

common to all members of the class, since plaintiff chal-

lenges the validity of a rule or regulation which is al-

leged to be applied uniformly to all members of the class

on grounds available to all members of the class; to wit,

the Due Process Clause of the Fourteenth Amendment to

the Constitution of the United States. The claims of the

plaintiff are typical of the claims of the members of the

class. The plaintiff will fairly and adequately protect

the interest of the members of the class.

6. Defendant Thomas M. Miller is the chairman of the

Industrial Commission of Virginia. Defendants M. Ed-

ward Evans, and Thomas P. Harwood, Jr., are the other

members of said Commission. The Defendant, Industrial

Commission of Virginia, is empowered, under Section

65.1-18 of the Code of Virginia, as amended, to make

—L CC EEE

rules for carrying out the purposes of the Virginia Work-

men’s Compensation Act, including the Rule herein com-

plained of.

7. Defendant, Aetna Casualty and Surety Company, is

a Connecticut corporation whose registered agent is Rich-

ard L. Williams, 1400 Ross Building, Richmond, Virginia

23219, and which under the Act (Section 65.1-111 and

65.1-113) was the insurance company obligated to pay

workmen’s compensation to the plaintiff, John R. Dillard.

8. The defendant, Aetna Casualty and Surety Company,

paid the plaintiff, John R. Dillard, pursuant to the pro-

visions of the Act until such defendant made an Appli-

cation For Hearing under Rule 13 of the Rules of the

Industrial Commission of Virginia and discontinued pay-

ing workmen’s compensation to the plaintiff.

9. Plaintiff, John R. Dillard, on March 15, 1971, had an

accident arising out of and in the course of his employ-

ment. The defendant, Industrial Commission of Virginia

approved, on April 7, 1971, a memorandum of agreement

entered into on March 30, 1971, “for the payment of

compensation under the Workmen’s Compensation Act”

and awarded compensation of forty dollars and eighty

cents ($40.80) per week, during incapacity, beginning

March 23, 1971. (Copy of which is attached as Exhibit

I.)

10. On June 3, 1971, the defendant Aetna Casualty and

Surety Company, filed an Application for Hearing, pur-

suant to Rule 13 of the Rules of the Industrial Commis-

sion of Virginia and, pursuant to the said Rule discon-

tinued plaintiff, John R. Dillard’s compensation. (Copy

attached as Exhibit II.)

11. On July 16, 1971, a hearing was held on defendant,

Aetna Casualty and Surety Company’s application.

12. On August 25, 1971, defendant Commissioner M.

Edward Evans wrote an opinion finding plaintiff, John

R. Dillard, still unable to return to work, and awarded

him all accrued compensation back to June 3, 1971, and

directed that compensation be resumed under the out-

standing award. (Copy attached as Exhibit III.)

18. On September 16, 1971, the defendant Aetna Casu-

alty and Surety Company, made another Application for

Hearing pursuant to Rule 13 of the Rules of the Indus-

trial Commission of Virginia, and discontinued plaintiff

John R. Dillard’s Workmen’s Compensation. (Copy at-

tached as Exhibit IV.)

14. Plaintiff John R. Dillard’s sole source of income for

himself and his wife has been, since his accident on

March 15, 1971, the workmen’s compensation. The dis-

continuance of the compensation has caused the Plaintiff

John R. Dillard and his wife extreme and irreparable

hardship and suffering, in that plaintiff has been unable

to purchase the minimum necessities of life.

15. Rule 13 of the Rules of the Industrial Commission

of Virginia violates plaintiff’s, and the class he repre-

sents, rights to Due Process guaranteed by the Four-

teenth Amendment to the Constitution of the United

States, in that said Rule allows workmen’s compensation

to be discontinued on the grounds of a change of condi-

tion prior to the holding of an evidentiary hearing as

required by the guarantees of Procedural due process of

the Constitution of the United States.

WHEREFORE, Plaintiff, on behalf of himself and all

others similarly situated, respectfully prays that this

Court:

1. Issue a temporary restraining order directing the

defendants to resume paying the plaintiff compensation

under his outstanding award.

2. Assume jurisdiction of this cause, convene a three-

judge district court to determine this controversy pur-

suant to 28 U.S.C. §§ 2281 and 2284 and set this cause

down for hearing.

3. Enter a declaratory judgment pursuant to 28

U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil

Procedure, declaring that Rule 13 of the Rules of the

Industrial Commission of Virginia violates and is repug-

nant to the Due Process Clause of the Fourteenth

Amendment to the Constitution of the United States.

4. Enter a preliminary injunction pending the final

determination of this matter, and thereafter, a perma-

nent injunction prohibiting, restraining and enjoining

defendants, their successors in office, agents and employ-

ees from enforcing, applying or implementing the afore-

said Rule.

5. Grant plaintiff his costs herein and any additional

or alternative relief as the court may deem to be just

and appropriate.

Respectfully submitted,

/s/ John R. Dillard

JOHN R. DILLARD

THE LEGAL AID SOCIETY

OF ROANOKE VALLEY

702 Shenandoah Avenue, N.W.

Roanoke, Virginia 24016

/s/ Kurt Berggren

KurRT BERGGREN

/s/ John M. Levy

JOHN M. LEvy

Attorneys for Plaintiffs

VERIFICATION

JOHN R. DILLARD, being duly sworn, deposes and

says that he is the named plaintiff in the above and fore-

going Complaint and that the facts alleged therein are

true to the best of his knowledge and belief.

/s/ John R. Dillard

JOHN R. DILLARD

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EXHIBIT III

VIRGINIA

IN THE INDUSTRIAL COMMISSION

JOHN R. DILLARD, CLAIMANT

Vv.

ROANOKE MILLS, INCORPORATED, EMPLOYER

AETNA CASUALTY & SURETY COMPANY, , INSURER

Claim No. 169-570

[Aug. 25, 1971]

Claimant appeared in person.

John M. Levy, Attorney at Law, The

Legal Aid Society of Roanoke Valley,

P. O. Box 479, Roanoke, Virginia

24003, for the Claimant.

Kime, Jolly & Clemens (G. O. Clemens)

Attorneys at Law, 430 Clay Street,

East, Salem, Virginia 24153, for the

Defendants.

Virginia, on July 16, 1971.

Opinion by EVANS, Commissioner.

Hearing before EVANS, Commissioner, at Roanoke,

John R. Dillard sustained a right inguinal hernia as

a result of an accident arising out of and during the

course of his employment with Roanoke Mills, Incorpo-

rated, on March 15, 1971. The hernia was surgically re-

paired and compensation paid under an award of the

Commission through June 2, 1971. At that time the em-

ployer applied for a hearing wherein it seeks to terminate

payment under the award on the grounds that the em-

ployee had been discharged by the ateneing physician as

able to return to work.

In support of its application the employer submitted

into the evidence a report of Dr. W. L. Sibley, Sr., Roa-

noke, Virginia, dated May 19, 1971. The report is as

follows:

“Mr. Dillard was operated on by me about two

months ago for repair of a right inguinal hernia.

Almost ever since the operation he has complained

of pain and swelling in the area of the operation,

but, as far as I can tell from looking at him and

examining him, I find nothing abnormal with the

operative area.

“He contends that his pain is so severe that he can’t

work and requires prescriptions to relieve the pain.

I can’t say that he doesn’t have pain, but I do not

know why he has it.

“He has requested two more weeks in order to see

if the pain will disappear, which he says he has. I

have granted him this much time off. I will see him

again in about two weeks. As far as I can tell from

physical examination, he appeared to be recovered.”

The employee was again examined by Dr. Sibley on

June 2, 1971. At that time the examination disclosed

slight swelling at the site of the operation but this was

deemed to be usual following surgery. However, claim-

ant was complaining of severe pain. Dr. Sibley did not

express an opinion as to whether or not the employee

should return to work.

Claimant placed himself under the care of Dr. C. F.

Matthews, Martinsville, Virginia. Under date of July 14,

1971, this physician reported that he had been treating

the employee for pain in the right groin; that the right

groin was indurated and swollen and that’ the patient

was still disabled for work.

The parties at issue requested permission to have the

employee examined by a physician mutually chosen by

them for the purpose of obtainifig his opinion as to the

employee’s continuing disability. This examination was

made on August 12, 1971, by Dr. Robert L. A. Keeley,

Roanoke, Virginia. Pertinent portions of the report are

as follows: !

“Examination reveals a transverse incision in the

right inguinal region, with tenderness in the fascia

beneath the incision. The femoral artery pulse is ex-

cellent. There is no evidence of a recurrence, either

lying down or standing up or when the patient

coughs or strains or is relaxed. The fascia overlying

the cord is exquisitely tender according to the pa-

tient. There is no appreciable edema in the scrotum

or in the right testicle. Patient states that when he

sits down this discomfort is relieved. I find no evi-

dence of anything other than an over sensitive thick-

ened fascia beneath the subcutaneous tissue where

the hernia repair was performed: Ordinarily, most

patients who have had a hernia repair are quite

comfortable and ready to go back to work after 8

weeks, and in this respect this patient is unusual.

In my past experience, I have had an occasional pa-

tient who complained of tenderness in the wound for

an extended period of time, which finally subsided.

I believe the choices open to us in this patient are:

1) to allow an additional month for tenderness to

subside, 2) offer him reoperation with excision of

the right testicle and cord, or 3) Number 1 followed

‘by number 2.

“The patient gives the appearance of being properly

motivated and most males who are willing to give

up a cord and testicle in order to get more comfort-

able and get back to work would seem to be properly

motivated.”

The evidence fails to preponderate in proving that this

employee had sufficiently recovered from the effects of his

industrial injury to enable him to return to work as al-

leged in the application. Accordingly, the relief sought

must be denied.

AWARD

Compensation payments shall be resumed under the

outstanding award as of June 3, 1971, and continue

thereunder until such time as subsequent conditions jus-

tify a modification.

All accrued compensation shall be paid upon receipt

of this award and future payments made each week

thereafter as they accrue.

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VINIDYIA 4O NOISSINWOD TWIMLSNANI

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

[Title Omitted in Printing]

MoTION To DISMISS

Comes now the defendant, Aetna Casutalty and Surety

Company, and pursuant to the Federal Rules of Civil

Procedure moves this Court to dismiss the complaint on

the following grounds:

I. There is no case or controversy now existing between

Aetna and plaintiff as required by Article III, Section 2

of the Constitution of the United States. Actions taken by

Aetna in admitting the liability renders plaintiff’s claim

moot (Exhibits A & B).

II. Plaintiff alleges rights which can be secured by

existing state laws and procedures. Plaintiff seeks not

political or civil rights, whose loss can never be remedied

but rather the alteration of procedures dealing with

monetary awards; later judgment would make plaintiff

whole.

Further, plaintiff seems to base his case on the con-

clusion that termination of payment is required by Rule

18. The statute and regulations do not by their terms

so require. Thus plaintiff’s alleged deprivation at best

derives from a statutory ambiguity, a matter which

should first be heard in the state courts.

Accordingly, since this does not involve political rights

and plaintiff has not exhausted or tested state remedies,

this Court should abstain until such good faith attempt

is made.

III. This Court lacks jurisdiction over the complaint

by reason of the following:

A. This action is not authorized of 42 USC § 1983 as

the actions complained of do not deprive plaintiff of con-

stitutional rights, privileges or immunities.

B. 28 USC §2281 confers no jurisdiction over private

parties.

C. Since the gravamen of complaint is a postponement

of a monetary award of less than $10,000, the amount

pleaded is insufficient to confer jurisdiction upon this

Court.

IV. Claimant has failed to state a cause of action upon

which relief can be granted.

A. Rule 13 does not condone the termination herein

complained of; rather, it provides a means by which the

carrier can obtain a hearing but, as a precondition, re-

quires the carrier to pay the award to the date of ap-

plication. Any subsequent termination i¢ purely the elec-

tion of the carrier and thus is a private matter between

carrier, employee and employer. Virginia neither requires

nor sanctions the termination; thus there is no depriva-

tion under color of state law.

B. Plaintiff may elect to retain his common law rights

against his employer and avoid any participation in the

contractual scheme. His voluntary election therefore pre-

cludes an action for recovery based on 42 USC §1983.

C. Involved here are contractual rights between pri-

vate parties, the application of which is not a matter for

adjudication by federal courts under § 1983. Since there

are no “public” or “constitutional” rights, privileges or

immunities herein involved, 42 USC §19838 does not

create a cause of action.

V. By failing to join all other insurance companies in

this state which write ‘“Workmen’s Compensation” insur-

ance and all self-insured employers subject to the provi-

sions of the Virginia Workmen’s Compensation Act, plain-

tiff has not met the requirement of Rule 19, Federal

Rules of Civil Procedure.

VI. Plaintiff does not adequately represent the class

that he seeks to protect, nor can he fairly and adequately

protect the interest of the members of the class whose

> 21

major protection is Rule 13. Accordingly, his claim of a

class action does not meet the requirements of Rule 23.

Respectfully submitted,

AETNA CASUALTY AND

SURETY COMPANY

By /s/ [Illegible]

Of Counsel

Willard I. Walker

McGuire, Woods & Battle

1400 Ross Building

Richmond, Virginia 23219

[Certificate of Service Omitted in Printing]

VIRGINIA:

IN THE INDUSTRIAL COMMISSION OF VIRGINIA

EXHIBIT A

JOHN R. DILLARD, CLAIMANT

Vv.

ROANOKE MILLS, INC., EMPLOYER

and

AETNA CASUALTY AND SURETY COMPANY, INSURER

PETITION FOR APPROVAL OF COMPROMISE SETTLEMENT

TO THE HONORABLE COMMISSIONERS OF THE

INDUSTRIAL COMMISSION OF VIRGINIA

Your petitioners, John R. Dillard, by counsel, Roanoke

Mills, Inc., Employer and Aetna Casualty and Surety

Company, Insurer, pursuant to Sections 65.1-45 and 65.1-

93 of the Code of Virginia, 1950 as amended, respectfully

request approval by the Industrial Commission of Vir-

ginia of a compromise settlement as hereinafter set forth

and represents unto the Industrial Commission as follows:

1. John R. Dillard sustained an injury by accident aris-

ing out of an in the course of his employment with Roan-

oke Mills, Inc. on March 15, 1971, which resulted in tem-

porary-total disability of the claimant as is set forth in

the various medical reports filed with the Industrial Com-

mission and findings of the Commission at hearings

prior to this date.

2. Despite medical reports indicating an ability of the

claimant to return to work on several occasions, the claim-

ant has not returned to Roanoke Mills, Inc. since the

date of the accident.

3. Medical reports are now on file with the Industrial

Commission which indicate that there is no organic prob-

lem or psyciatric problem with Mr. Dillard and he can,

in fact, return to work. Also recent medical reports

are on file with the Industrial Commission which indi-

cate that there is an organic problem with Mr. Dillard

and he. can not, in fact, return to work.

4. The employee, John R. Dillard, maintains that he

is still unable to work as a result of injuries received in

the accident of March 15, 1971. The employer and in-

surer believe that he is able to return to work as of this

date.

5. Up through July 21, 1972, the claimant has received

in weekly benefits the sum of TWO THOUSAND FOUR

HUNDRED EIGHTEEN AND 86/100 DOLLARS ($2,-

418.86) and in medical payments the amount of NINE

HUNDERD TWENTY THREE AND 64/100 DOLLARS

($923.64).

6. Notwithstanding the foregoing disagreements, your

petitioners have now reached a compromise agreement

with full knowledge and understanding of the herein-

stated facts and the general medical situation of the

claimant by the terms of which compromise agreement

the insurer would pay to the claimant, John R. Dillard,

the additional sum of FOUR THOUSAND TWO HUN-

DRED FORTY-THREE AND 20/100 ($4,243.20) rep-

resenting 102 weeks of benefits, payable as a lump sum,

the employer and insurer to be released and forever dis-

charged from any and all liability for any further com-

pensation or medical expenses that are now due or may

hereafter become due as a result of any claim arising

from the accident and the injury to the claimant which

occurred on March 15, 1971.

Respectfully submitted,

JOHN R. DILLARD

ROANOKE MILLS, INC.

and

AETNA CASUALTY AND SURETY COMPANY 5

Of Counsel

McGuire, Woops & BATTLE

1400 Ross Building

Richmond, Virginia 23219

EXHIBIT B

VIRGINIA: Aug. 8, 1972

IN THE INDUSTRIAL COMMISSION OF VIRGINIA

JOHN R. DILLARD, CLAIMANT

Vv.

ROANOKE MILLs, INC., EMPLOYER

and

AETNA CASUALTY AND SURETY COMPANY, INSURER

I.C. #169-570

ORDER

This day came the parties hereto and filed their peti-

tion for approval of compromise agreement whereby the

employer and insurer will pay to John R. Dillard as a

lump sum, the amount of FOUR THOUSAND TWO

HUNDRED FORTY THREE AND 20/100 ($4,243.20)

in consideration of the employer and insurer being for-

ever released and discharged by the claimant from any

compensation or medical payments that may be now due

or hereafter become due by reason of the accident which

occurred to the claimant on March 15, 1971.

Upon consideration whereof from statements made in

the petition and by the parties in person and through

counsel and the medical reports filed herein, the Com-

mission being of the opinion that the best interest of the

claimant would be served by approving the compromise

settlement as set forth in the said petition,

IT IS ORDERED that the said agreement be and the

same hereby is approved and it is FURTHER ORDERED

that from the sum of FOUR THOUSAND TWO HUN-

DRED FORTY THREE AND 20/100 ($4,243.20) noth-

ing is to be paid to John Levy, attorney for the claimant

for legal services rendered and that the balance in the

sum of $4,243.20 be paid to John R. Dillard, claimant,

as a lump sum.

IT IS FURTHER ORDERED that upon payment of

the sum of FOUR THOUSAND TWO HUNDRED

FORTY THREE AND 20/100 ($4,243.20), the said

Roanoke Mills, Inc. and the Aetna Casualty and Surety

Company shall be released and forever discharged from

any and all liability upon them by reason of the injury

to claimant which occurred on March 15, 1971.

ENTER: August 7, 1972

/s/ THOMAS P. HARWOOD, JR.

Commissioner

We ask for this:

/3/ JOHN R. DILLARD

John R. Dillard

/s/ ELIZABETH DILLARD

Witness

ROANOKE MILLS, INC.

and

AETNA CASUALTY AND SURETY COMPANY

By /s/ [Illegible]

Of counsel

By /s/ JOHN LEVY

John M. Levy,

Counsel for John R. Dillard

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

[Title Omitted in Printing]

MOTION TO DISMISS

Now come the defendants, Industrial Commission of

Virginia, Thomas M. Miller, Chairman, M. Edward

Evans and Thomas P. Harwood, Jr., Commissioners, by

counsel, and move the Court for the entry of an order

dismissing the complaint, pursuant to Rule 12(b) (6),

Fed. R. Civ. P., for failure to state a claim on which

relief could be granted. In support of said motion, de-

fendants say as follows:

1) Plaintiff alleges that Rule 13 of the Rules of the

Industrial Commission of Virginia, promulgated pursu-

ant to §65.1-18 of the Code of Virginia (1950), as

amended, is violative of due process rights because it

allows workmen’s compensation benefits to be terminated

by the insurer prior to the holding of an evidentiary

hearing, and he asks that defendants be enjoined from

enforcing said Rule. Rule 18 provides, in pertinent part,

as follows:

“All applications for hearing by employer or in-

surance carrier under § 65-95 [now § 65.1-99] shall

show the date through which compensation benefits

have been paid. No application shall be considered

by the Commission until all compensation under the

outstanding award has been paid to the date such

application is filed with the Commission. Except,

that in any case in which the employee has actually

returned to work or has refused employment (§ 65-60

[now § 65.1-63]), medical attention (§ 65-85 [now

§ 65.1-88]), or medical examination, or as of a date

fourteen days prior to the date the application is

filed, whichever is later. In such cases the applica-

tion will be considered and determined as of the date

of return to work, or refusal, or as of a date four-

teen days prior to the date the application is filed,

whichever is later.”

Defendants point out that the operation of Rule 13 in-

ures to the employee’s benefit, not to his detriment, since

in the absence of Rule 13 (the relief requested by plain-

tiff) the insurer would be permitted to cut off benefits

unilaterally at any time, regardless of when it filed its

application, whereas Rule 13 requires that payments be

continued up to the date of filing the application for hear-

ing or said application will not be considered. As the

Supreme Court of Virginia noted in Parker v. Manchester

Board & Paper Co., Inc., 201 Va. 328, 111 S.E.2d 453

(1959) :

“More than thirty years ago when it was found

by the Commission that some employers were arbi-

trarily disregarding the effect of outstanding awards

and terminating payments direct by such awards, a

Rule—the same now before us—was promulgated

providing that compensation be paid to the date ap-

plication was made for a proper termination under

§ 65-95 (then § 1887(47)) [now §65.1-99]. The

Rule has since been continually in force.”

Thus it appears that what the plaintiff really seeks

is not the abolition of Rule 18, but its extension to re-

quire that compensation be paid up to the date of the

hearing—in other words, the promulgation of a Rule

13(a). This goal must be achieved through the legisla-

tive process of the General Assembly or the Industrial

Commission.

2) Regardless of any need for reform of the Virginia

workmen’s compensation procedures in order to better

provide for indigent claimants, no federal question is

presented by any shortcoming of the existing system.

Workmen’s compensation, although regulated by a statu-

tory framework, is a substitute for the common-law tort

action and is participated in voluntarily by plaintiff and

all others similarly situated. Sections 65.1-23 and 65.1-

26 of the Code of Virginia detail the method by which an

employee may exempt himself from the provisions of the

Workmen’s Compensation Act, and § 65.1-44 specifically

provides that any employee so exempt has the right to

proceed at common law. One who chooses to participate,

therefore, in a program which provides him with a better

rerhedy than he would otherwise have had cannot com-

plain that due process requires that he be entitled to the

best of all possible remedies, or one which would do more

for him than the one provided. In short, if plaintiff

chose to be covered by workmen’s compensation, he must

take the system as he finds it.

3) Unlike Goldberg v. Kelly, 397 U.S. 253, 91 S.Ct

1011 (1970), no state fund is involved in the payments

to recipients of workmen’s compensation. Payments come

from insurance carriers or firms which act as self-in-

surers. These carriers, as private parties, should not be

held to the same balancing-or-interests criteria as were

state and local governments in Goldberg v.. Kelly, supra,

since they have no opportunity to recoup benefits wrong-

fully paid.

4) Virginia’s statutory framework does not authorize

the termination of benefits as alleged mA plaintiff, it per-

mits only the initiation of a procedure by which benefits

may ultimately be terminated. Should plaintiff be dissat-

isfied with the temporary cessation of benefits pending an

administrative hearing, he is entitled by the provisions of

§ 65.1-100 to reduce his award to judgment in an ap-

propriate court of record and compel the resumption of

benefits. It should be noted that in such a case the court

has no discretion and must enter judgment against the

employer or his insurer. Parrigen v. Long, 145 Va. 6387,

134 S.E. 562 (———) ; Richmond Cedar Works v. Harper,

129 Va. 481, 106 S.E. 516 (——). Finally, any ques-

tions whether the Virginia statutory scheme permits the

type of termination alleged by plaintiff should properly

be first determined by Virginia courts rather than by

this Court.

INDUSTRIAL COMMISSION OF

VIRGINIA

THoMAS M. MILLER

M. EDWARD EVANS

THomas P. HARWOOD, JR.

By: /s/ VANN H. LEFCOE

Counsel

Andrew P. Miller

Attorney General of Virginia

Vann H. Lefcoe

Assistant Attorney General

Anthony F. Troy

Assistant Attorney General

Supreme Court, Building

Richmond, Virginia

[Certificate of Service Omitted in Printing]

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

| Title Omitted in Printing]

INTERROGATORIES TO DEFENDANTS INDUSTRIAL COMMIS-

SION OF VIRGINIA, THOMAS M. MILLER, M. EDWARD

EVANS and THOMAS P. HARWOOD, JR.

Plaintiff requests that Defendants, Industrial Commis-

mission of Virginia, Thomas M. Miller, M. Edward Evans

and Thomas P. Harwood, Jr. answer under oath the

following interrogatories within thirty days. One answer

to each said interrogatory, if agreed upon by all said De-

fendants, will be sufficient for all said Defendants.

1. State the total number of employees in the State of

Virginia covered by the provisions of the Virginia Work-

men’s Compensation “Act, for each one of the following

years: 1967, 1968, 1969, 1970 and 1971.

2. State the total number of employers in the State of

Virginia covered by the provisions of the Virginia Work-

men’s Compensation Act, for each one of the following

years: 1967, 1968, 1969, 1970 and 1971.

8. State the number of employees in the State of Vir-

ginia who are recorded as having filed a notice of exemp-

tion pursuant to Sections 65.1-28, 65.1-25 and 65.1-26

of the Code of Virginia, as amended. Also state the num-

ber of said notices filed in each one of the following years:

1967, 1968, 1969, 1970 and 1971.

4, State the number of employers in the State of Vir-

ginia who are self-insurers, under Section 65.1-108 of

the Code of Virginia, as amended; and state the number

of employees of each of such employers.

5. State the number of memoranda of agreements, pur-

suant to Sections 65.1-45 and 65.1-93 of the Code of

Virginia, as amended, which have been approved by the

Industrial Commission of Virginia in each one of the

following years: 1967, 1968, 1969, 1970 and 1971.

6. State the number of memoranda of agreement, pur-

suant to Sections 65.1-45 and 65.1-93 of the Code of Vir-

ginia as amended, which were not approved by the In-

dustrial Commission of Virginia in each one of the fol-

lowing years: 1967, 1968, 1969, 1970 and_1971.

7. State the number of hearings held pursuant to Sec-

tion 65.1-94 of the Code of Virginia, as amended, for

each one of the following years: 1967, 1968, 1969, 1970

and 1971, in the following categories:

(a.) On a failure to reach an agreement in regard to”

compensation.

(b.) On a disagreement as to the continuance of any

weekly payments under an agreement.

8. For the hearings set out in the answers to Inter-

rogatory Number 7(a) and (b), state for each one of

the following years: 1967, 1968, 1969, 1970 and 1971:

(a.) The average length of time between the appli-

cation for such a hearing and the notification

of the parties of the decision by the Commis-

sion.

(b.) The greatest length of time and the shortest

length of time between the application for such

a hearing and the notification of the parties of

the decision by the Commission.

9. State the number of rehearings on award, pursu-

ant to Section 65.1-97 of the Code of Virginia, as amend-

ed, which were held in each of the following years: 1967,

1968, 1969, 1970 and 1971.

10. For the rehearings set out in the answers to In-

terrogatory Number 9, state for each one of the five

years:

(a.) The average length of time between the appli-

cation for review and the hearing or review of

the evidence by the Commission.

(b.) The greatest length of time and the shortest

length of time between the application for re-

view and the hearing or review of the evidence

by the Commission.

(c.) The average length of time between the hearing

or review of the evidence and the decision of the

Commission.

(d.) The greatest length of time and the shortest

length of time between the hearing or review of

the evidence and the decision of the Commis-

sion.

(e.) The number of decisions which changed the

award.

11. State whether or under what conditions, an award

is continued to be paid if an application for review is

made pursuant to Section 65.1-97 of the Code of Vir-

ginia, as amended.

12. State the number of reviews of awards which were

held by the Commission pursuant to Section 65.1-99 of the

Code of Virginia as amended, for each one of the follow-

ing years: 1967, 1968, 1969, 1970 and 1971.

13. For the reviews set out in the answers to Inter-

rogatory Number 12, state for each one of the five years

the number of such reviews which were initiated upon:

(a.) Motion of the Commission.

(b.) Application of the employee who had been in-

jured.

(c.) Application of the employer, including his in-

surer.

14. For the reviews set out in the answers to Inter-

rogatory Number 12, state for each one of the five years:

(a.) The average length of time between the data of

the motion or application and the date the hear-

ing or review was completed.

(b.) The greatest length of time and the shortest

length of time between the date of the motion

or application and the date the hearing or review

was completed.

(c.) The average length of time between the comple-

tion of the hearing or review and the notification

of the parties of the decision.

(d.) The greatest length of time and the shortest

length of time between the completion of the

hearing or review and the notification of the par-

ties of the decision.

15. For the reviews set out in the answers to Inter-

rogatory Number 12, state for each one of the five

years the number of decisions in which the award was:

(a.) Ended.

(b.) Diminished.

(c.) Increased.

16. State the number of judgments on agreements or

awards, under Section 65.1-100 of the Code of Virginia,

as amended, which were obtained in each one of the

following years: 1967, 1968, 1969, 1970 and 1971.

17. State the number of employers and employees who

have voluntarily elected to be bound by the Virginia

Workmen’s Compensation Act, for each one of the fol-

lowing years: 1967, 1968, 1969, 1970 and 1971.

18. Describe in detail the procedures by which the ap-

proval or disapproval of the defendant Commission is

given to the policies of insurance pursuant to Section

65.1-113 of the Code of Virginia, as amended.

Respectfully submitted,

/s/ John Levy

JOHN M. LEvy

10 S. 10th Street

Richmond, Virginia 23219

Kurt Berggren

702 Shenandoah Avenue,

N.W.

Roanoke, Virginia 24016

Attorneys for Plaintiff

[Certificate of Service Omitted in Printing]

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

[Title Omitted in Printing]

ANSWER

Aetna Casualty and Surety Company (“Aetna”) for

its answer, states the following:

1. Defendant denies the conclusionary allegations of

Paragraphs 1 and 2 in that Aetna does not believe that

a cause of action is created by Section 1983 and that

the other provisions do not, therefore, establish juris-

diction of this Court.

2. Paragraph 3 does not require a response.

3. Aetna does not have sufficient facts to enable it to

form a belief as to the truth or accuracy of the allega-

tions contained in Paragraph 4 except that it does admit

that plaintiff has been receiving $40.80 per week from

defendant.

4. Defendant denies all conclusionary allegations in

Paragraph 5 including the allegations that there are

common questions of law affecting all members of the

alleged class, that plaintiff’s claims are typical of the

alleged class claims and that plaintiff will fairly and

accurately represent the interests of the members of the

alleged class.

5. Defendant admits the allegations in Paragraphs 6,

7, 8, 9, 10, 11, 12 and 18.

6. Defendant does not have sufficient facts or informa-

tion to enable it to form belief as to the truth or accu-

racy of the allegations of Paragraph 14.

7. Defendants denies the allegations of Paragraph 15.

WHEREAS, having fully answered the Complaint

herein, defendant Aetna Casualty and Surety Company

moves the Court to dismiss the Complaint herein with

costs to be taxed against plaintiff.

Respectfully submitted,

AETNA CASUALTY AND

SURETY COMPANY

By /s/ [Illegible]

Of Counsel

Willard I. Walker

J. Robert Brame, III

McGuire, Woods & Battle

1400 Ross Building

Richmond, Virginia 23219

[Certificate of Service Omitted in Printing]

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

| Title Omitted in Printing]

ANSWERS TO INTERROGATORIES

Now come the defendants, Industrial Commission of

Virginia et als, and for answers to the Interrogatories

served by the plaintiff herein say as follows:

1) Unknown. There are no records available to the

Commission from which such information could be com-

piled.

2) 1967-60,263

1968-64,082

~ 1969-66,030

1970-69,908

1971-75,919

3) Approximately 900 per year.

4) 125-Corporate self-insurers

10-School Boards

13-Cities

23-State Agencies

Approximately 140,000 employees, exclusive of

School boards, Cities and State Agencies.

5) 1967-19,030

1968-19,288

1969-20,303

1970-21,017

1971-21,264

6) No specific figures are available but answers may

be derived from defendants’ business records which are

maintained at the offices of the Industrial Commission

of Virginia, Blanton Building, Richmond, Virginia. In

accordance with Rule 33(c), Fed.R.Civ.P., counsel for

plaintiff will be afforded a reasonable opportunity to ex-

amine, audit or inspect these records and to make copies,

compilations, abstracts or summaries.

7) (a) 1967-1020

1968-1200

1969-1320

1970-1532

1971-1542

(b) 1967- 680

1968- 800

1969- 880

1970-1020

1971-1028

8) (a) Approximately three months.

(b) Approximately one month to eight months.

9) 1968-118

1969-140

1970-136 t

1971-133

10) Approximately: (a) One month.

(b) Two weeks to two months.

(d) One day to thirty days.

(e) 5%.

11) Awards are occasionally continued voluntarily dur-

ing an application for review where only the specific rat-

ing of disability is in issue.

12) Same Answer 7(b).

13) (a) Three a year.

(b) 1967-408 (Employers & insurers)

1968-480

1969-528

1970-612

1971-616

1968-320

1969-352

1970-408

1971-410

14) See Answer 6.

15) See Answer 6.

16) Unknown. Approximately thirty (80) decisions

are certified each year. No information is available on

number of judgments obtained.

17) Employers—same as Answer 2.

Employees—same as Answer 1.

18) Standard workmen’s compensation insurance pol-

icies are approved by the State Corporation Commission,

which approval is accepted prima facie by defendants.

INDUSTRIAL COMMISSION OF

VIRGINIA

Thomas M. Miller

M. Edward Evans

Thomas P. Harwood, Jr.

By: /s/ Thomas M. Miller

Commissioner

[Jurat and Certificate of Service Omitted in Printing]

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

[Title Omitted in Printing]

ANSWER

Now come the defendants Industrial Commission of

Virginia, Thomas M. Miller, M. Edward Evans and

Thomas P. Harwood, Jr., Commissioner, by counsel and

for answer to the bill of complaint filed herein say as

follows:

1) The allegations contained in paragraphs 1, 2 and 3

of the bill of complaint state conclusions of law which

do not require an answer.

2) Defendants are without knowledge sufficient to

form a belief as to the truth of the allegations contained

in paragraph 4 except that defendants admit that plain-

tiff has been awarded the sum of $40.80 per week as

workman’s compensation by defendant Commission to

be paid by defendant Aetna.

3) The allegations contained in paragraph 5 of the

complaint state conclusions of law which do not require

an answer.

4) The allegations contained in paragraphs 6 through

13 of the complaint are admitted.

5) Defendants are without information sufficient to

form a belief as to the truth of the allegations contained

in paragraph 14.

6) The allegations contained in paragraph 15 of the

complaint state conclusions of law which do not require

an afiswer.

7) Defendants reaffirm and incorporate herein the de-

fenses heretofore raised in their Motion to Dismiss pre-

viously filed in this case on November 10, 1971.

Wherefore, defendants pray that the bill of complaint

be dismissed and they be permitted to go hence with their

costs.

INDUSTRIAL COMMISSION OF

VIRGINIA

Thomas M. Miller

M. Edward Evans

Thomas P. Harwood, Jr.

By /s/ Anthony F. Troy

Counsel

Andrew P. Miller

Attorney General

Anthony F. Troy

Vann H. Lefcoe

Assistant Attorneys General

Supreme Court-Library Building

Richmond, Virginia 23219

[Certificate of Service Omitted in Printing]

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

[Title Omitted in Printing]

STIPULATIONS OF FACTS

It is hereby stipulated and agreed by and between the

plaintiff and the defendants, through their respective

attorneys, that the following facts are not in issue in

the above-style action:

1. John R. Dillard is a citizen of the United States

and a resident of Virginia. On March 15, 1971, John

R. Dillard had an accident arising out of and in the

course of his employment. .

2. The Industrial Commission of Virginia, on April 7,

1971, approved a memorandum of agreement entered into

March 30, 1971 for the payment of compensation under

the Workmen’s Compensation Act and awarded John R.

Dillard forty dollars and eighty cents ($40.80) per week,

during his incapacity, beginning on March 23, 1971.

8. Aetna Casualty and Surety Company on June 3,

1971, filed an application for Hearing, pursuant to Sec-

tion 65.1-99 of the Code of Virginia, as amended, and

Rule 13 of the Rules of the Industrial Commission of

Virginia.

4. John R. Dillard’s compensation under the Memo-

randum of Agreement entered into on March 30, 1971,

was discontinued by Aetna Casualty and Surety Company

immediately after the Application for Hearing was filed

on June 3, 1971.

5. On July 16, 1971, a hearing was held by the In-

dustrial Commission of Virginia on Aetna Casualty and

Surety Company’s Application to determine whether there

had been a change in John R. Dillard’s condition which

would enable him to return to work.

6. On August 25, 1971, Commissioner M. Edward

Evans found that John R. Dillard was still unable to

return to work, awarded him all accrued compensation

back to June 3, 1971 and directed that compensation be

resumed under the outstanding award.

7. On September 16, 1971, Aetna Casualty and Surety

Company filed an Application for Hearing pursuant to

Section 65.1-99, of the Code of Virginia, as amended, and

Rule 13 of the Industrial Commission of Virginia.

8. John R. Dillard’s compensation under the Memoran-

dum of Agreement and Opinion of Commissioner M. Ed-

ward Evans, was discontinued by Aetna Casualty and

Surety Company immediately after the Application for

Hearing was filed on September 16, 1971.

9. The defendants named as Commissioners of the In-

dustrial Commission of Virginia have the authority to

establish and alter the Rules of the Industrial Commis-

sion of Virginia.

/s/ [Illegible} 3/ 9/72

Attorney for Plaintiff Date

/s/ (Mllegible} 3/10/72

Attorney for Defendants, Date

/s/ [Ilegible] 3/14/72

Attorney for Defendant Date

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

[Title Omitted in Printing]

MOTION FOR SUMMARY JUDGMENT

Now come the defendants, Industrial Commission of

Virginia et als, and move the Court for the entry of an

order awarding them summary judgment pursuant to

Rule 56, Fed.R.Civ.P, In support of said motion, defend-

ants say as follows:

1) On March 21, 1972, the defendant Industrial Com-

mission amended its Rule 18 as shown in the underlined

language on the attached certified copy of the Commission’s

minutes (Exhibit C). The aforesaid amendment became

effective on April 1, 1972.

2) The effect of the amendment to Rule 13 is to require

that an ex parte inquiry be held by the Commission to de-

termine whether probable cause exists for a change in the

award before any benefits may be temporarily suspended

pending a full hearing. Defendants submit that amended

Rule 18 guarantees due process of law to claimants under

the Virginia workmen’s compensation laws, and that the

instant case should be dismissed.

INDUSTRIAL COMMISSION OF

VIRGINIA

Thomas M. Miller

M. Edward Evans

Thomas P. Harwood, Jr.

By: /s/ Vann H. Lefcoe

Counsel

Andrew P. Miller

Attorney General

Vann H. Lefcoe

Anthony F. Troy

Assistant Attorneys General

Supreme Court Building

Richmond, Virginia 23219

[Certificate of Service Omitted in Printing]

EXHIBIT C

MINUTES OF THE MEETING OF

THE INDUSTRIAL COMMISSION OF VIRGINIA

March 21, 1972

Present: Thomas P. Harwood, Jr., Chairman

M. E. Evans, Commissioner

Thomas M. Miller, Commissioner

It is ordered that Rule 13, Rules of the Industrial Com-

mission, as heretofore amended, be, and it is hereby fur-

ther amended, effective April 1, 1972, to read as follows:

Rule 13. Applications for Review on Ground of

Change in Condition.—Applications for review under

§ 65.1-99 of the Act must be in writing and state the

ground relied upon for relief. Reviews of awards on

the ground of a change in condition shall be deter-

mined as of the date of the filing of the application

in the offices of the Commission, except as provided

in paragraphs two and three hereof.

All applications for hearing by an employer or

insurer under § 65.1-99 shall show the date through

which compensation benefits have been paid. No ap-

plication shall be considered by the Commission until

all compensation under the outstanding award has

been paid to the date such application is filed with

the Commission. Except, that in any case in which

the employee has actually returned to work or has

-refused employment (§ 65.1-63), medical attention

($ 65.1-88), or medical examination (§ 65.1-91),

compensation may be terminated as of the date the

employee returned to work or refused employment,

medical attention or medical examination, or as of

a date fourteen days prior to the date the applica-

tion is filed, whichever is later. In such cases the

application will be considered and determined as of

the date of return to work, or refusal, or as of a date

fourteen days prior to the date the application is filed,

whichever is later. All applications by an employer

or insurer shall be under oath and shall not be

deemed filed and benefits shall not be suspended until

the supporting evidence which constitutes a legal

basis for changing the existing award shall have

been reviewed by the Commission, or such of its

employees as may be designated for that purpose,

and a determination made that probable cause exists

to believe that a change in condition has occurred.

All applications for hearing by an employee on the

ground of further work incapacity shall be consid-

ered and determined as of the date incapacity for

work actually begins, or as of a date fourteen days

prior to the date the application is filed, whichever

is later.

INDUSTRIAL COMMISSION OF

VIRGINIA

/s/ Thomas P. Harwood, Jr.

Chairman

Attest: /s/ Helen G. Cooper

Secretary

CERTIFIED—March 30, 1972

[SEAL] INDUSTRIAL COMMISSION OF VIRGINIA

/s/ Helen G. Cooper

HELEN G. COOPER

Secretary of Commission

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

Civil Action No. 537-71-R

[Filed, Jul. 17, 1972, Clerk,

U. S. Dist. Court, Richmond, Va.]

JOHN R. DILLARD, etc., PLAINTIFF,

INDUSTRIAL COMMISSION OF VIRGINIA, THOMAS M. MILLER,

Chairman, Industrial Commission of Virginia, M. ED-

WARD EVANS, THOMAS P. HARWOOD, JR., Commissioners

of the Industrial Commission of Virginia, and AETNA

CASUALTY AND SURETY COMPANY, DEFENDANTS

OPINION

Plaintiff brings this action on behalf of himself and

all other persons similarly situated, challenging the con-

stitutionality of a Rule of the Industrial Commission of

Virginia (Commission). He asserts the Commission ap-

proved a memorandum of agreement entered into between

Aetna Casualty & Surety Company (Aetna), insurance

carrier for Roanoke Mills, Incorporated, and himself, for

the payment of a weekly sum beginning March 23, 1971,

and to continue during his incapacity, with medical bene-

fits. Thereafter, Aetna filed a petition with the Com-

mission asserting a change of condition and ceased pay-

ment on and after the date of the filing of the petition.

It subsequently resumed payment.

The limited issue before the Court is whether Rule 13

of the Rules of the Commission violates plaintiff’s [and

the class he purports to represent] rights to due process

guaranteed by the Fourteenth Amendment to the Con-

stitution of the United States. Plaintiff asserts that the

Rule permits the termination of the payment of benefits

by an employer or insurer, on the ground of a change

in the condition of the employee, prior to a full hearing

on the merits by the Commission.

The Virginia Workmen’s Compensation Act, Title 65.1

of the Code of Virginia, 1950, as amended, Volume 9,

was enacted in 1968, Chapter 660 Acts of Assembly of

1968, to take effect October 1, 1968. It was a rewrite and

revision of former Title 65. The first Workmen’s Com-

pensation Act of Virginia was adopted by the Legisla-

ture in 1918, Acts of Assembly of 1918, Chapter 400,

page 640. It was modeled after and followed the Act

adopted by the State of Indiana.

Pursuant to the Act, compensation is paid for all work-

men coming within the provisions of the Act if injured

during the course of their employment. The Act pro-

vides a system where employer and employee may escape

personal injury litigation, and provides for the payment

of compensation under fixed rules. It was a substitute

of more certain and broader remedies for the previously

existing inadequate common law rights and remedies,

regardless of fault or negligence. The doctrines of con-

tributory negligence, assumption of risk, fellow servant,

and similar defenses, which frequently defeated recov-

eries and occupied the time of litigants and the courts,

were abolished. The advantages are shared by the em-

ployer and employee. Damages resulting from an ac-

cident are treated as a part of the expense of operating

the business. The Act, in effect, read into every contract

of employment, within the provisions of the Act, the obli-

gation of the employer to pay the employee for injuries.

It provided an exclusive remedy in the field of industrial

accidents, leaving the common law remedies to those

incidents not covered by the Act..

A proceeding under the Act is not one for damages

for a wrong done, but to obtain compensation for a loss

sustained by reason of injury and disability. The em-

ployer’s liability is not based upon tort, the rules of the

common law for tort actions do not apply, and the rules

of evidence are “so laxly” enforced that an award may

be made on hearsay evidence alone if credible and not

contradicted. Glassco v. Glassco, 195 Va. 239, 77 S.E.2d

848; Burlington Mills Corporation v. Hagood, 177 Va.

204, 18 S.E.2d 291; Humphries v. Bowley Brothers Co.,

146 Va. 91, 185 S.E. 890.

Workmen’s Compensation benefits are not mandatory

for the employee. By notice he may exempt himself from

the terms of the Act and retain his common law rights.

No such right exists for the employer. Virgimia Code

65.1-23, etc.

The Commission, operating within the general legisla-

tive framework, and having both regulatory and judi-

cial functions, is charged with the administration of the

Act. When an employee is injured, he may enter into a

“Memorandum of Agreement” with his employer or the

employer’s insurance carrier, stipulating the right to com-

pensation, the average weekly wages, the amount of com-

pensation, and the period of payment. The memorandum

is then submitted to the Industrial Commission for ap-

proval. This was the procedure followed in the case at

bar. If an agreement is not approved, or if the parties

have not been able to agree, the matter is heard and de-

termined by the Commission. Enforcement of the award

is not with the Commission, but vested in a court of rec-

ord of Virginia. Virginia Code Section 65.1-100.'

A review of an award may be had upon motion of

the Commission or of any party in interest “on the

ground of a change in condition.” Virginia Code Sec-

tion 65.1-99. Upon such review, the Commission may in-

crease or decrease the compensation previously awarded, —

but no such review “shall affect such award as regards

any money paid.” Virginia Code 65.1-99.

Prior to the enactment of Rule 13 of the Commis-

sion, there was no provision in the Act or Rules to pre-

vent an employer or insurer from ceasing payment of

benefits at any time, asserting a change in condition, and

either petitioning for an amendment or correction of the

1 Section 65.1-100 provides that any interested party may file in a

court of record a copy of the memorandum of agreement approved

by the Commission, or its order or decision, or its award, and the

court shall render judgment in accordance therewith and notify

the parties. Such judgment has the same effect as any other judg-

ment rendered in that court. Such is the way for enforcement.

award, or waiting for the employee to proceed with

action.*

To prevent the insurer or employer from following

such procedure, the Commission, utilizing the authority

granted by the Act—Virginia Code Title 65.1-17—enacted

Rule 138, recently amended, which provides:

Applications for Review on Ground of Change in

Condition.—Applications for review under § 65.1-99

of the Act must be in writing and state the ground

relied upon for relief. Reviews of awards on the

ground of a change in condition shall be determined

as of the date of the filing of the application in the

offices of the Commission, except as provided in

paragraphs two and three hereof.

All applications for hearing by an employer or

insurer under § 65.1-99 shall show the date through

which compensation benefits have been paid. No

application shall be considered by the Commission

until all compensation under the outstanding award

has been paid to the date such application is filed

with the Commission. Except, that in any case in

which the employee has actually returned to work

or has refused employment (§ 65.1-63), medical at-

tention (§ 65,1-88), or medical examination (§ 65.1-

91), compensation may be terminated as of the date

the employee returned to work or refused employ-

ment, medical attention or medical examination, or

as of a date fourteen days prior to the date the

application is filed, whichever is later. In such cases

the application will be considered and determined

as of the date of return to work, or refusal, or as

of a date fourteen days prior to the date the ap-

plication is filed, whichever is later. All applications

by an employer or insurer shall be under oath and

shall not be deemed filed and benefits shall not be

suspended until the supporting evidence which con-

2 In such event the employee could petition the Commission for an

amendment of the award as provided in § 65.1-99, or proceed with

enforcement of his existing award under the provisions of Vir-

ginia Code § 65.1-100.

stitutes a legal basis for changing the existing award

shall have been reviewed by the Commission, or such

of its employees as may be designated for that pur-

pose, and a determination made that probable cause

exists to believe that a change in condition has

occurred,

All applications. for hearing by an employee on

the ground of further work incapacity shall be con-

sidered and determined as of the date incapacity for

work actually begins, or as of a date fourteen days

prior to the date the application is filed, whichever

is later.

NOTE: The underlined portion represents the lan-

guage of the amendment which became

effective April 1, 1972.

Neither the statute, nor the Rule enacted, make any

provision for the employer or insurer to cease payments.

They merely provide that upon a change in condition the

Commission may review any prior award and make a

new award ending, diminishing or increasing the com-

pensation previously awarded. The statute makes no

grant to the Commission to stop an award previously

granted prior to a review by the Commission. Rule 18,

enacted by the Commission, sets forth the procedure to

be followed upon the filing of a petition alleging a

“change in condition.” In effect, it provides the appli-

cation for review (a) must be in writing, under oath,

and state the grounds for relief, (b) the review will be

determined as of the date of the filing of the application,

has been paid, (d) no application will be considered

until compensation has been paid to the date of the filing,

and (e) the application shall not be deemed filed and

benefits shall not be suspended until the supporting evi-

dence which constitutes a legal basis for changing the

existing award has been reviewed by the Commission,

and a determination made that probable cause exists to

believe that a change in condition has occurred. An ex-

ception exists where an employee (a) has returned to

work, or (b) has refused employment, medical attention

or medical examination.

Nowhere in the Rule does it authorize or direct the

employer or insurer to cease payments before a full hear-

ing. It merely provides the Commission will not hear the

petition of the employer or insurer asserting any change

in condition if payments under the award have not

been made up to the date the application is deemed filed,

with an admonition that benefits shall not be suspended

until the supporting evidence submitted with the petition

has been reviewed and it is determined probable cause

exists to believe a change has occurred, and if a finding

of probable cause is made, the application will then be

deemed filed. Here again, it does not authorize or direct

suspension of payments, but merely provides the insurer

or employer may not have a hearing on an alleged change

of condition unless and until the provisions of the Rule

are complied with. The determination of “probable cause”

is to be made from an examination of “supporting evi-

dence which constitutes a legal basis” for changing the

existing award. Nowhere does the Rule say the deter-

mination may be made without notice to the employee

and a chance to be heard. The mere fact such an in-

ference may exist—a determination without notice to the

employee and an opportunity to be heard—does not ren-

der the language objectionable on its face. Lindsey V.

Normet, 405 U.S. 56, 65. The amendment to the Rule is

new and the evidence does not indicate what the Com-

mission will require in the way of supporting evidence

to constitute a legal basis for establishing probable cause

to believe a change in condition has occurred. As point-

ed out above, any payments made prior to the filing of

the petition and prior to the Commission’s authorizing a

change of the award are not recoverable by the em-

ployer or insurer. Virginia Code Section 65. 1-99. To dis-

courage unwarranted applications for cessation of pay-

ments or other abuses, the Act provides that if employer

or insurer bring, prosecute or defend any proceeding

without reasonable grounds, the Commission or court

may assess them with all of the costs, including a rea-

sonable attorney’s fee for any counsel appearing for the

employee. Virginia Code Section 65.1-101.

It must be kept in mind that the award is for a stip-

ulated sum per week “during incapacity.” It is not an

unlimited award. When incapacity ceases, the award

ceases to exist.

Plaintiff’s attack upon the Rule* is that it authorizes

the insurer or employer to cease payments without meet-

ing the requirements of due process. He says it permits

a change in the award without the holding of a full-scale

hearing at which he may be permitted to present evidence

and contest any contentions made by the insurer or em-

ployer. Plaintiff makes no contention that he is denied

the opportunity of a full-scale hearing with the assist-

ance of counsel, when the application for a review is

heard by the Commission.

The average time between the filing of an application

for a review of the award on an alleged change in con-

dition and the full-scale hearing by the Commission is

one month. But even assuming that the Rule does not

provide for notice and a hearing to the employee prior

to termination of the award, and that the Rule is au-

thority for the employer or insurer to terminate pay-

ments, under the facts and circumstances in this case

the State function involved does not constitute a denial

of due process. A full due process hearing is provided

with the right of appeal to the highest court of the State

and any determination favorable to the employee results

in full retroactive payments.

The very nature of due process negates any concept

of inflexible procedure universally applicable to every

imaginable situation. As early as Hagar v. Reclamation

District No. 108, 111 U.S. 701, 707-708, the Court said

“that by due process is meant one which, following the

forms of law, is appropriate to the case, and just to the

parties to be affected.” Numerous definitions have been

given of due process varying from that set forth in Anti-

Fascist Committee v. McGrath, 341 U.S. 123, 162-163,

saying it represents “a profound attitude of fairness be-

tween man and man, and more particularly between the

3,He makes no attack upon the language of the statute, but only

the Rule enacted by the Commission.

eS noe tcc RCA IAD I TOR AE cach

by ipa

individual and government... ,” to saying, aS was

done in Hannah v. Larche, 3683 U.S. 420, 442, that it

“embodies the differing rules of fair play, which through

the years have become associated with differing types

of proceedings. Whether the Constitution requires that

a particular right obtain in a specific proceeding depends

upon a complexity of factors. The nature of the alleged

right involved, the nature of the proceeding, and the

possible burden on that proceeding, are all considera-

tions which must be taken into account.” In Bowles V.

Willingham, 321 U.S. 508, dealing with administrative

action, the Court at page 520 said:

To be sure, that review comes after the order has

been promulgated; and no provision for a stay is

made. But as we have held in Yakus v. United

States, supra, that review satisfies the requirements

of due process. As stated by Mr. Justice Brandeis

for a unanimous Court in Phillips v. Commissioner,

283 U.S. 589, 596-597: “Where only property rights

are involved, mere postponement of the judicial en-

quiry is not a denial of due process, if the oppor-

tunity given for the ultimate judicial determination

of the liability is adequate. Springer V. United

States, 102 U.S. 586, 593; Scottish Union & Na-

tional Ins. Co. v. Bowland, 196 U.S. 611, 631.

As was pointed out in Torres v. New York State De-

partment of Labor, 321 F.Supp. 482 (S.D. N.Y. 1971)*,

at page 437:

The concept of due process does not involve a set

of fixed, unalterable principles. “[C]onsideration of

what procedures due process may require under any

give set of circumstances must begin with a de-

termination of the precise nature of the government

function involved as well as of the public interest

that has been affected by Governmental action.”

Cafeteria & Restaurant Workers Union v. McElroy,

367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230

4 Cert. denied 405 U.S. 949.

eee,

(1961). See Goldberg v. Kelly, supra, 397 U.S. at

263, 90 S.Ct. 1011, at 1018.

The touchstones in the area of procedural due proc-

ess and the test of whether one has been afforded due

process is one of fundamental fairness and reasonable-

ness in the light of the total circumstances. Anti-Fascist

Committee v. McGrath, supra; Whitfield v. Simpson, 312

F.Supp. 889 (E.D. Ill. 1970); Sigma Chi Fraternity Vv.

Regents of University of Colorado, 285 F.Supp. 515 (D.C.

Cal. 1966); Due v. Florida A & M, 323 F.Supp. 296

(D.C. Fla. 1963).

The demands of due process do not require a hearing

at the initial stage or at any particular point or at more

than one point in an administrative proceeding so long

as the request hearing is held before the final order be-

comes effective. Inland Empire Council v. Millis, 325

U.S. 697, 710; Bowles v. Willingham, 321 U.S. 503, 519-

521; Opp Cotton Mills v. Administrator, 312 U.S. 126,

152-153.

The payment of sums awarded under the Workmen’s

Compensation Act is entirely different from payment

of welfare. As was pointed out in Torres v. New York

State Department of Labor, supra, Workmen’s Compen-

sation payments like unemployment compensation differ

from relief in that each are made as a matter of right,

not on a needs basis, but only while the worker is invol-

untarily unemployed. They are based on wages previously

received and are completely unrelated to need. [321 F.

Supp. 437].

This is not a case of “brutal need” or “overpowering

need” which existed in Goldberg v. Kelly, 397 U.S. 254.

The Court pointed out in the Torres case, an employee cut

off from-Workmen’s Compensation “may qualify for wel-

fare payments, if he can show the requisite need. Thus

the worst possible effect of the procedure which plain-

tiffs attack as being lacking in due process would be that

for a period of a few weeks until a hearing is held a

claimant who is finally determined to be eligible for

payments would have to live on his accumulated savings

or, if he had no savings, would have to resort to relief.

iil UPL Sadr cern cine ALIN Se NEA tM RS a aca AN Sel Ai Pol alee

If he is eventually found to be eligible he will receive

retroactively all the payments to which he was entitled.”

Here, unlike in Torres where there was a right to re-

cover back any sums improperly paid, no such right exists

under the Workmen’s Compensation Act. In addition,

the Commission may assess all of the costs, including

a reasonable attorney’s fee for employee’s counsel, against

an insurer or employer who brings any such proceeding

without reasonable grounds.

The award is during incapacity. When incapacity

ceases, the award ceases. Let us suppose there was an

award for the lifetime of the injured. To be sure, due

process does not mean the award could not be termi-

nated upon the death of the employee without a full-scale

hearing. Under the award, when the employee regains

capacity the award terminates. If plaintiff’s conten-

tions are correct, if an employee regains capacity to

return to employment, or even if he obtains other employ-

ment, employer or insurer could not stop payments under

the award until there was notice and an opportunity for

him to be heard. Payments made between the time of his

regaining capacity are not recoverable by the employer

or insurer. As the Court pointed out in Cafeteria Workers

v. McElroy, 367 U.S. 886, 895, due process does not

require a trial-type hearing in every conceivable case

of government impairment of private interest, nor where

an official may have abused his discretion. “It is not

a requirement of due process that there be judicial inquiry

before discretion can be exercised. It is sufficient, where

only property rights are concerned, that there is at some

stage an opportunity for a hearing and a judicial deter-

mination. Ewing v. Mytinger & Casselberry, 339 U.S.

594, 599; Phillips v. Commissioner, 283 U.S. 589, 596-

597; Bowles v. Willingham, 321 U.S. 503, 520; Yakus v.

United States, 321 U.S. 414, 442-443.

Plaintiff attempts to equate Workmen’s Compensation

payments with welfare benefits and affix to each of them

a label of “brutal need.” But, as the Court pointed out in

Richardson v. Belcher, 404 U.S. 78, 83, discrimination

“between two like classes cannot be rationalized by assign-

ing them different labels, but neither can two unlike

classes be made indistinguishable by attaching to them a

common label.” Torres held “brutal need” could not be

equated with Unemployment Compensation. Neither can

it be equated with Workmen’s Compensation.

The situation here is much like that referred to in

Mr. Justice Black’s dissent, joined in by Chief Justice

Burger, in Goldberg [397 U.S. 254, 277] where one party

owing another money ceases payment. The payee has a

right of action agairist payor, but there is no provision

in law that before payor ceases payments, he must give

notice and an evidentiary hearing be held. Here employee

has an award of weekly compensation by agreement be-

tween the parties, approved by the Industrial Commis-

sion, to continue during incapacity. Power of enforce-

ment is not in the Commission. The Commission can

order payment, but cannot enforce it. Enforcement is

with a court of record. Requesting a hearing on an alleged

change of condition, and the fixing of a time for it, do

not invalidate or change the award. Employee can still

proceed with the same action for collection which he would

take if the employer or insurer merely ceased payments

without asserting any change in condition or making a

request for a hearing.

For the reasons hereinabove stated, the complaint and

this action are dismi

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

Civil Action No. 537-71-R

JOHN R. DILLARD

INDUSTRIAL COMMISSION OF VIRGINIA, et al

MERHIGE, J.—Dissenting

Because I conclude that my fellow judges have this

day by their conclusions permitted the continued viola-

tion of constitutional rights of the plaintiff and the class

which he represents, I must respectfully dissent from

their views.

The matter comes before the Court without benefit of

an evidentiary hearing. Nevertheless the pleadings, the

answers to the inteygogatories, the stipulations entered

into between the parties, and the ‘admissions at the bar

of the Court during argument in this cause, in my opinion,

establishes the following:

This is an appropriate class action and the named

planitiff is representative of that class of persons who,

upon sustaining an injury while in the course of their

employment, are recipients of workmen’s compensation

benefits in accordance with the provisions of Virginia’s

Compensation Act, Title 65, Code of Virginia, as amended.

Rule 23 F.R.C.P.

The named plaintiff sustained an injury which entitled

him to Workmen’s Compensation payments in the amount

of $40.80 per week commencing on March 23, 1971, as

evidenced by a Memorandum of Agreement entered into

between the plaintiff and the defendant insurance com-

pany acting in place of his employer, and approved by

the Industrial Commission of Virginia on March 30,

1971. Within less than three months thereafter these

payments were discontinued by reason of Aetna having

filed an application for hearing before the Industrial

Commission of Virginia, alleging that plaintiff had under-

gone a change in condition and was physically capable

of resuming his employment. Approximately seven weeks

thereafter a finding of the Commission resulted in plain-

tiff receiving the suspended payments and the continuation

of same on a weekly basis. Within less than a month of a

finding by the Commission that Dillard was entitled to

the accrued compensation and a resumption of the directed

compensation, Aetna once again filed an application for

hearing alleging a change of condition, and payments

once again were suspended and remained so until, upon

agreement of Aetna and Dillard, the application for hear-

ing was dismissed and compensation resumed.

The twice accomplished cessation of compensation was

based upon the then existing Rule 18 of the defendant

Commission, promulgated in accordance with § 65.1-18

of the Code of Virginia (1940). The majority has set

out the rule in tote which, as stated by the majority,

was amended effective April 2, 1972, by adding the fol-

lowing sentence:

All applications by an employer or insurer shall be

under oath and shall not be deemed filed and benefits

shall not be suspended until the supporting evidence

which constitutes a legal basis for changing the

existing award shall have been reviewed by the Com-

mission, or such of its employees as may be desig-

nated for that purpose, and a determination made

that probable cause exists to believe that a change

in condition has occurred.

It is this rule which is under constitutional attack as

allegedly violating the due process clause of the Four-

teenth Amendment to the Constitution of the United

States.

My colleagues suggest that the amendment to the rule

was brought about to preclude the cessation of payment

of benefits upon an assertion by an employer of a change

in condition, and they suggest that neither the statutory

*This section permits the Commission to promulgate rules not

inconsistent with Act for carrying out its provisions.

scheme nor the amended rule “Make any provision for

the employer or insurer to cesS¢ payments.” A reading

of the rule clearly shows a coitemplation that the bene-

fits will be suspended upon corPliance with the rule prior

to the workman being given aiY opportunity to be heard

or indeed even be advised that an application by his

employer or insurer had been filed. The Industrial Com-

mission itself, in its motion for summary judgment, de-

scribes the effect of Rule 18 as to “require that an ex

parte inquiry be held by the Commission to determine

whether probable cause exists for a change in the award

before any benefits may be temporarily suspended pend-

ing a full hearing .. .”

Much is stated in the majority opinion as to what

the rule allegedly does not do; the material fact, however,

is that what it does do is to deprive the plaintiff and the

members of his class of a property right without due

process of law.

The Legislature of Virginia intended to make the Act

exclusive in the industrial field, so that in the event of an

accident the rights of all those so engaged would be gov-

erned solely thereby.

As pointed out by the majority, under the Act both

employer and employee surrender former rights and

gain certain advantages. Under the Act there is read

into every contract of employment within the purview

of the Act the obligation of an employer to pay specified

compensation for injury to an employee arising out of his

employment, and for an employee in consideration thereof

to forego certain of his common law remedies.

A provision seldom invoked permits an employee prior

to an accident to give notice of his intention not to be

covered by the Act. The answers to the interrogatories

fail to indicate the total number of covered employees

in the State, but do indicate that approximately 900 em-

ag of a total of 75,919 employers chose to do so in

The Legislature of Virginia has accorded to the Indus-

trial Commission, the promulgators of the rule in ques-

* Feitig v. Chalkley, 185 Va. 96, 38 SB, 2d 73 (1946); F v.

Bell, 192 Va. 518, 65 S.E. 2d 575 (1951). (1946) ; Fauver

tion, the power to enforce the attendance of parties in

interest and witnesses, as well as the production and

examination of books, etc.

While the majority declares the questioned rule not to

be violative of the constitutional right of due process,

they describe the matter as one “wherein one party owing

another money ceases payment. The payee has a right of

action against payor, but there is no provision in law

that before payor ceases payments he must give notice and

an evidentiary hearing be held.” (Majority opinion, p.

16).

If the suggestion be that the Fourteenth Amendment

to the Constitution of the United States does not come

into play by virtue of a lack of State action, even a

perfunctory study of Virginia’s statutory scheme as to

the conduct of the parties in the field of workmen’s com-

pensation produces an inextricable and manifest enmesh-

ment of a State agency to such a significant extent as to

preclude any viable argument to the contra. We do not

deal here solely with individual invasion of individual

rights outside the State’s responsibility under the Four-

teenth Amendment. See Simkins v. Moses H. Cone Mem-

orial Hospital, 323 F.2d 959 (4th Cir. 1963) and cases

cited therein.

We deal here with a statewide regulation enacted by a

state-constituted commission “functioning pursuant to a

statewide policy and performing a state function.” Moody

Vv. Flowers, 387 U.S. 97, 102, 87 S.Ct. 1544, 1548 (1967) ;

Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011 (1970).

It appears to me that the majority puts much too much

stress on the fact that an aggrieved workman ultimately

receives a hearing. While it is quite true that the answers

to the interrogatories indicate that the average time

between the filing of an application for review of the

award on alleged change in condition and the hearing by

the Commission is one month, the same answers indicate

that the time between an application for review and a

hearing on any disagreement as to the continuance of

weekly payments after same has been approvd can run

anywhere from one to eight months.

It is a basic principle of due process that an individual

be given an opportunity for a hearing at a meaningful

time and in a meaningful manner. In addition, the hear-

ing must be appropriate to the nature of the case. See

Armstrong v. Manzo, 380 U.S. 545, 552, 82 S.Ct. 1187,

1191 (1965); Mullone v. Central Hanover Bank & Trust

Co., 389 U.S. 306, 318, 70 S.Ct. 652, 657 (1949). Except

for extraordinary situations where some valid govern-

mental interest is at stake, there is no justification for

the postponement of a hearing until after the event has

transpired. See Boddie v. Connecticut, 401 US. 371,

379 (1970).

I have searched in vain for a mention in the majority

opinion as to what governmental interest is so important

as to outweigh the rights of the plaintiff class to avoid

loss prior to procedural due process, for the extent to

which procedural due process must be afforded is in-

fluenced by the extent to which one may be condemned

to suffer grievous loss. The United States Supreme Court

has consistently stated that in consideration of what pro-

cedures due process may require under any given set of

circumstances, one must begin with a determination of

the precise nature of the government function involved as

well as of the private interest that has been affected by

governmental action. See Goldberg v. Kelly, 397 U.S. 254,

263 (1969). The governmental concern which prompted

the enactment of Virginia’s Workmen’s Compensation

laws has been referred to time and time again by the

Supreme Court of Appeals of Virginia. One of the pri-

mary purposes is to protect the employee so as to provide

compensation to him for the loss of his opportunity to

engage in work when his disability is occasioned by an in-

jury suffered from an accident arising out of and in the

course of his employment. The Act itself is to be liberally

construed in harmony with its humane purposes. See

Burlington Mills Corp. v. Hagood, 177 Va. 204, 13 S.E.

2d 291 (1941); Rust Engineering Co. v. Ramsay, 194

Va. 975, 76 S.E. 2d 195 (1953). Indeed the Legislature

of Virginia was so concerned with the humane purposes

of its Act that even an agreement reached between an

employee and an employer may be approved only when

vi ¢

the Industrial Commission, or any member thereof, is

clearly of the opinion that the best interests of the em-

ployee—will be served thereby. See Virginia Code § 65.1-

93, as amended.

While the majority makes no mention of the precise

nature of the governmental function or interest involved,

it was suggested during argument that the giving of no-

tice and a prior hearing would result in the need for ad-

ditional employees to be retained by the defendant Com-

mission. The answer is simple—such a statement is not

supported by the evidence, and even if it could be the

constitutional requirement of due process was in particu-

lar designed to protect the particular interest of the per-

son whose rights are being affected, and was never in-

tended to promote efficiency or to accommodate all pos-

sible interests. See Goldberg v. Kelly, supra. See also,

Funtes v. Shevin, et al, 40 U.S.L.W. 4692, note 22 (June

12, 1972).

It would seem that, if anything, governmental inter-

ests would be promoted by affording recipients of work-

men’s compensation their pre-termination evidentiary

hearing, or at the very least an opportunity to submit

documentary evidence prior to any cessation of benefits

to which it has been adjudicated by the Commission they

are entitled. The fact that the law of Virginia precludes

any recovery of any payments. made by an employer, to

me simply points up the concern the Legislature had for

the injured employee.

It is suggested that “the worst possible effect of the

instant procedure would be that for a period of a few

weeks until a hearing is held, a claimant who is finally

determined to be eligible for payments would have to live

on his accumulated savings or, if he had no savings,

would have to resort to relief.”* While there is no evi-

dence to support any such supposition, the few weeks re-

ferred to by the majority insofar as the named plaintiff

is concerned stretched into seven before the Commission

made a finding resulting in the resumption of weekly

* This language was adopted by the majority from the language

of the Court in Torres v. New York State Dept. of Labor, 321 F.

Supp. 432, 437.

payments. The very suggestion that a member of the

plaintiff class would have to resort to relief appears to

me to point up that the governmental interest involved

would be better served by the simple practice of giving

notice and affording a hearing prior to cessation of bene-

fits.

Judges need not blind themselves to what they know as

men. I cannot help but believe that the average working

man in Virginia, who has sustained an injury resulting

in a substantial reduction of his weekly income, suffers

a grave and immediate loss. The cessation of delivery of

what may well be the necessities of life to a working man

with a family is seldom preceeded by any degree of for-

mality. Where no valid State interest is involved, a court

of all our institutions ought not be a party, even peripher-

ally, by approving what on its face is manifestly unfair.

It should be constantly kept in mind that the situation to

which the plaintiff class addresses itself only arises subse-

quent to a determination that the particular member of

the plaintiff class has been injured in his work and is

entitled to compensation. I can think of no reason why

notice and a hearing should not be given to the very per-

son whom the Industrial Commission, by its approval of

the original agreement for compensation, has found en-

titled to same under the law. The very thought that the

ex parte proceeding permitted by Rule 13 may result in

a cessation of milk delivery, or electric power, or fuel to

a working man and his family, shocks my conscience.

I have no doubt that this is a case of “brutal need”

similar to that in Goldberg v. Kelly, supra, yet I must

say that the burden of showing such is, in my opinion,

not necessary to find the rule in question violative of the

' Constitution. In Fuentes v. Shevin, supra, Mr. Justice

Stewart succinctly points out that the Court’s conclu-

sions in Goldberg in no way marked a departure from

established principles of procedural due process. Gold-

berg and Sniadach v. Family Finance Corp., 395 U.S.

337, simply re-establish what has always been the law

to the effect that due process requires an opportunity for

a hearing before a deprivation of property takes effect.

While, as Mr. Justice Stewart points out, the primary

issue in Goldberg was the form of hearing demanded by 4

due process before determination of welfare benefits,

hence the importance of welfare was directly relevant

to that question just as in our instant case the relative

weight of the claimant class’ property interest is relevant

to the formal notice and hearing which I believe is re-

quired by due process.

We deal here with established rights. Recipients of

workmen’s compensation are not beneficiaries of a hand-

out. They are entitled to the funds they receive. Indeed

the United States Supreme Court has held unconstitu-

tional a determination by a State to suspend one’s driv-

er’s license prior to notice and hearing. See Bell v. Bur-

son, 402 U.S. 535 (1970).

One further comment on the majority’s suggestion that

the rule is drafted in such a way as to discourage un-

warranted applications for cessation of payments by rea-

son of that portion of the rule which permits the assess- ;

ment of costs and unreasonable attorneys’ fees against F

an employer. That portion of the rule does not come

into effect until costs and attorneys’ fees have been in-

curred by virtue of defending a proceeding “without

reasonable grounds.” It seems to me while the theory

may sound well, as a practical matter it is useless. In

the first place a workmen’s compensation recipient, as

it now stands under the rule, would not even know an _

application had been filed for cessation of his payments =

unless and until that fact occurred, and by that time the™

Commission has already, pursuant to its rule, found prob-

able cause, which I believe can reasonably be interpreted

as reasonable grounds. I can hardly see the threat of

assessment of attorneys’ fees or costs being of any con-

sequence in the instant situation.

I respectfully suggest that my colleagues’ dependence

on Torres v. New York States Dept. of Labor, supra, n.

8, is misplaced, for first, that Court dealt with a pros-

pective loss of government funds, whereas in our instant

case no State funds are involved at all; and, in addition,

the claimant made a weekly report to the State office.

Provision was also made for one to be interviewed with

respect to any new information which might affect his

eligibility for unemployment compensation. In our instant

case a claimant is given no opportunity to be heard until

after the fact. The Torres Court, finding an absence of

“brutal need” which it interpreted as the basis for deci-

sion in Goldberg, supra, found that the governmental in-

terest involved in = case outweighed plaintiff’s claim.

While I conclude from Fuentes, supra, that a reliance on

a “brutal need” standard is misplaced, as I have en-

deavored to point out heretofore, the majority, while find-

ing no brutal need situation in our instant case, con-

spicuously refrains from any reference to a superior gov-

ernmental interest, a factor which I deem to be required.

Due process requires both notice and hearing prior to

the deprivation of a right. Any exception can be justified

only by reason of a State interest so strong as to permit

a deviation from the requirement. Such a situation is not

present in the instant case and no rationalization can

make it so. The majority’s actions cannot be justified on

the ground that the members of plaintiff’s class will ulti-

mately receive notice and a hearing, for no court has

ever adopted the general proposition that a wrong may be

done simply because it can be undone.

I respectfully record my dissent.

/s/ Merhige

United States District Judge

Date: July 17, 1972

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

Civil Action No. 537-71-R

JOHN R. DILLARD, ETC., PLAINTIFF

INDUSTRIAL COMMISSION OF VIRGINIA, THOMAS M. MILLER,

Chairman, Industrial Commission of Virginia, M. Eb-

WARD EVANS, THOMAS P. HARWOOD, JR., Commissioners

of the Industrial Commission of Virginia, and AETNA

CASUALTY AND SURETY COMPANY, DEFENDANTS

FINAL ORDER

For the reasons stated in the opinion of the Court this

day filed,

It is ADJUDGED and ORDERED that the complaint

and this action are dismissed.

Let the Clerk send copies of this order and the opin-

ion to counsel of record.

/s/ (IMegible]

United States Circuit Judge

/s/ {Illegible]

United States Circuit Judge

/s/ [Ilegible}

United States District Judge

July 17, 1972.

SUPREME COURT OF THE UNITED STATES

JOHN R. DILLARD, ETC.

INDUSTRIAL COMMISSION OF VIRGINIA ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

No. 72-5411. Decided December 11, 1972

PER CURIAM.

Appellant brought a class actiori to challenge the con-

stitutionality of a state regulation that permitted tem-

porary suspension of his workmen’s compensation pay-

ments without a prior hearing. He appealed an adverse

judgment, but his jurisdictional statement states that

after the decision below “an Order was entered by the

Commission approving a lump-sum settlement of $4,243.20

in full settlement of [his] individual claim for compensa-

tion for his injury which occurred on March 15, 1971.”

In this state of the record, the motion to proceed in

forma pauperis is granted, the judgment vacated and the

case remanded to the United States District Court for

the Eastern District of Virginia to consider whether this

case is moot.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

(Title omitted in printing)

MOTION TO INTERVENE AS PLAINTIFF

1. Willie Williams moves for leave to intervene as a

plaintiff in this action in order to assert his claim under

the complaint and motions heretofore filed by the plaintiff.

2. Applicant, Willie Williams, is a citizen of the United

States, and a resident of. Richmond, Virginia. He is the

sole support of his wife and seven minor children. Appli-

cant and his family’s sole income is $238.00 per month

from Social Security benefits, and, prior to October 10,

1972, $55.92 per week workmen’s compensation benefits ;

and since the termination of said benefits, applicant has

been working part-time.

3. Applicant on or about April 14, 1972 had an acci-

dent arising out of and in the course of his employment.

The defendant, Industrial Commission of Virginia, ap-

proved an award of $55.92 per week, during incapacity,

beginning on April 15, 1972.

4. On or about October 10, 1972, The Travelers Insur-

ance Company, which, upon information and belief, is an

insurer with authorization to transact the -business of

workmen’s compensation insurance in the State of Vir-

ginia, pursuant to Sections 65.1-103 et. seq. of the Code

of Virginia, as amended, sent to Applicant a form stat-

ing that his benefits were being terminated on October

11, 1972. Said form was accompanied by an Agreed State-

ment of Fact form, which was supposed to be signed by

the Applicant.

5. The Applicant did not sign the Agreed Statement of

Fact form, but was not paid any compensation after

October 10, 1972.

Upon information and belief, on or about October 13,

1972, the defendant, Industrial Commission of Virginia, °

reviewed the Application for hearing and made an ex

parte determination that “probable cause exists to believe

that a change in condition has occurred”, pursuant to

Rule 13 of the Rules of the Industrial Commission of

Virginia, as amended.

7. On or about December 2, 1972 the Applicant re-

ceived a Notice of Hearing informing him that a hearing

would be held on December 15, 1972, on the question of a

change in his physical condition.

8. A hearing was held on December 15, 1972, at which

evidence was presented, and further medical evidence was

ordered by the Industrial Commission to be obtained.

9. Since October 10, 1972 the Applicant has received

no workmen’s compensation benefits.

10. The termination of Applicant’s workmen’s compen-

sation benefits has caused and will continue to cause he

and his family extreme and irreparable hardship, suf-

fering and damage.

11. Applicant adopts the allegations in paragraphs

numbered 1 through 2,5 through 6 and 15, and prayers

~.numbered 2 through 5 contained in the complaint filed by

the plaintiff.

12. Applicant is a member of the class of persons

represented by the plaintiff in this suit.

WHEREFORE, applicant moves pursuant to Rules 23

(d) and 24 of the Federal Rules of Civil Procedure for’

leave to intervene as a plaintiff in this action.

Respectfully submitted,

WILLIE WILLIAMS

By /s/ George S. Newman

we GEORGE S. NEWMAN,

Counsel —

NEIGHBORHOOD LEGAL AID SOCIETY, INC.

P.O. Box 417

Richmond, Virginia 23203

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

[Title Omitted in Printing]

PROPOSED COMPLAINT

1. This is an action for a preliminary and permanent

injunction, and damages authorized by 42 U.S.C. § 1983

to redress the deprivation, under color of state law, stat-

ute, ordinance, regulation, custom or usage, of rights,

privileges and immunities secured by the Constitution of

the United States. The rights, privileges and immuni-

ties for which redress is sought are those secured by the

Due Process Clause of the Fourteenth Amendment to the

Constitution of the United States. This is also an action

for a declaratory judgment pursuant to 28 U.S.C. §§ 2201

and 2202, to declare the rights established by the afore-

mentioned constitutional provision.

2. Jurisdiction is conferred on this Court by 28 U.S.C.

$1343 (3) and (4), providing for original jurisdiction

of this Court in suits authorized by 42 U.S.C. § 1983;

jurisdiction is further conferred on this Court by 28

U.S.C. §$ 2201 and 2202 relating to declaratory judg-

ments, and by 28 U.S.C. §§ 2281 and 2284 providing for

a three-judge district court.

8. Applicant, Willie“Williams, is a citizen of the United

States and a resident of Richmond, Virginia.

4. Applicant brings this action on his own behalf and

on behalf of all other persons similarly situated pursuant

to Rule 23 (a) (b) (2) of the Federal Rules of Civil

Procedure. The class which applicant represents is all

persons similarly situated who are or will be recipients

of Workmen’s Compensation pursuant to the Virginia

Workmen’s Compensation Act (Title 65, Code of Virginia,

as amended) and who are or will be, therefore, subject

to having their benefits terminated prior to a hearing

before the Industrial Commission of Virginia. The mem-

bers of the class on behalf of whom applicant sues are

so numerous as to make joinder impracticable. There are

eet

ea P nOe ow

questions of law or fact common to all members of the

class, since applicant challenges the validity of a rule

or regulation which is alleged to be applied uniformly

to all members of the class on grounds available to ail

members of the class; to wit, the Due Process Clause

of the Fourteenth Amendment to the Constitution of the

United States. The claims of the applicant are typical

of the claims of the members of the class. The applicant

will fairly and adequately protect the interest of the mem-

bers of the class. :

5. Defendant Thomas M. Miller is the chairman of the

Industrial Commission of Virginia. Defendants M. Ed-

ward Evans, and Thomas P. Harwood, Jr., are the other

members of said Commission. The Defendant, Industrial

Commission of Virginia, is empowered, under Section

65,.1-18 of the Code of Virginia, as amended, to make

rules for carrying out the purposes of the Virginia Work-

men’s Compensation Act, including the Rule herein com-

plained of.

6. Applicant on or about April 14, 1972 had an ac-

nt arising out of and in the course of his employ-

ent. The defendant, Industrial Commission of Virginia,

pproved an award of $55.92 per week, during incapacity,

beginning on April 15, 1972.

7. On or about October 10, 1972, The Travelers In-

surance Company, which, upon information and belief,

is an insurer with authorization to transact the business

of workmen’s compensation insurance in the State of Vir-

ginia, pursuant to Sections 65.1-103 et. seg. of the Code

of Virginia, as amended, sent to Applicant a form (a

copy of which is attached as Exhibit A) stating that his

benefits were being terminated on October 11, 1972. Said

form was accompanied by an Agreed Statement of Fact

form, which was supposed to be signed by the Applicant.

8. The Applicant did not sign the Agreed Statement

of Fact form, but was not paid any compensation after

October 10, 1972.

9. Upon information and belief, on or about October

13, 1972, the defendant, Industrial Commission of Vir-

ginia, reviewed the Application for hearing (Exhibit A)

and made an ex parte determination that “probable cause

exists to believe that a change in condition has occurred”,

pursuant to Rule 13 of the Rules of the Industrial Com-

mission of Virginia, as amended.

10. On or about December 2, 1972 the Applicant re-

ceived a Notice of Hearing (a copy of which is attached

as Exhibit B), informing him that a hearing would be

held on December 15, 1972, on the question of a change

in his physical condition.

11. A hearing was held on December 15, 1972, at

which evidence was presented, and further medical evi-

dence was ordered by the Industrial Commission to be

obtained.

12. Since October 10, 1972 the Applicant has received

no workmen’s compensation benefits.

18. The termination of Applicant’s workmen’s ccmpen-

sation benefits has caused and will continue to cause he

and his family extreme and irreparable hardship, suffer-

ing and damage.

14. Rule 18 of the Rules of the Industrial Commission

of Virginia, as amended, violates applicant’s, and the class

he represents, rights to Due Process guaranteed by the

ae Amendment to the Constitution of the United

States, in that said Rule allows workmen’s compensation

benefits to be discontinued on the grounds of a change in

condition, without giving the injured worker notice and

the opportunity of having a prior evidentiary hearing.

WHEREFORE, Applicant, on his own behalf, and on

behalf of all others similarly situated, respectfully prays

that this Court:

1. Assume jurisdiction of this cause, convene a three-

judge district court to determine this controversy, and

set this cause down for a hearing.

9 Issue an Order certifying that this is a proper

class action pursuant to Rule 23 of the Federal Rules

of Civil Procedure.

3 Enter a declaratory judgment pursuant to 28 U.S.C.

§ 2201 and Rule 57 of the Federal Rules of Civil Pro-

cedure, declaring that Rule 13 of the Rules of the Indus-

trial Commission of Virginia, as amended, violates and

is repugnant to the Due Process Clause of the Four-

teenth Amendment to the Constitution of the United

States in that said Rule allow: ae

men’s compensation benefits y°, the termination of work-

portunity of a prior evidentie”ithout notice and the op-

4. Enter a preliminary inj*Y hearing. _

determination of this matter, aUnction pending the final

injunction, prohibiting restrair™4 thereafter, a permanent

ants, their successors in office, iN and enjoining defend-

allowing the termination of wcagents and employees from

efits without notice and the oe compensation ben-

dentiary hearing. portunity for a prior evi-

5. Issue an Order directing

insurance carrier, The Trav the defendants to order the

to reinstate the applicant’s woielers Insurance Company,

fits retroactively to October 10"kmen’s compensation bene-

benefits until a decision is rea) 1972, and to continue said

ing finding him ineligible for ched in a due process hear-

6. Grant applicant his costsSuch benefits.

or alternative relief as the CG herein and any additional

and appropriate. Yourt may deem to be just

‘spectfully submitted,

/s/ Wi

Willie Williams

/s/ GEORGE S. NEWMAN ILLIE WILLIAMS

NEIGHBORHOOD LEGAL AI

Society, INC. ID

P.O. Box 417

Richmond, Virginia 2320

643-0218 3

Counsel for Applicant

By: George S. Newman

VERIFIC

SATION

WILLIE WILLIAMS, beir

says that he is the applicant fng duly sworn, deposes and

and foregoing Proposed Corfor intervention in the above

alleged therein are true to thmplaint and that the facts

belief. 1e best of his knowledge and

/s/ W :

Willie Williams

VILLIE WILLIAMS

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

[Title Omitted in Printing]

STATEMENT OF DEFENDANT INDUSTRIAL COMMISSION IN

OPPOSITION TO PETITION FOR INTERVENTION

Now comes the defendant Industrial Commission of

Virginia, by >unsel, and in opposition to the petition for

leave to interne filed herein by Willie Williams says as

follows:

1) Applicant has contended that the named plaintiff,

Dillard, no longer represents the purported class because

his claim has been settled. Applicant’s Memorandum In

Support of Intervention at 3. If this be true, defendant

submits that applicant is no more a proper party or

proper class representative than the plaintiff, since appli-

cant has also received settlement of his claim. See Ex-

hibits A and B attached hereto. Consequently, it seems

unnecessary to add an additional party plaintiff where

resolution of the same issues will be litigated by the

original plaintiff who, if he does represent a class, ade-

quately represents the interests of the applicant. (It may

be noted that plaintiff’s attorney and applicant’s attorney

are members of the same firm. This may explain why

applicant’s certificates of service do not indicate that

counsel for plaintiff has received notice of his applica-

tion. )

2) Applicant has failed to join the Travelers Insurance

Company in his proposed Complaint. Said company is a

necessary party to the relief sought by applicant, since

the payments which the applicant sought to have resumed

were terminated by the company, not by defendant.

3) As for applicant’s complaint that his insurance car-

rier (Travelers) failed to comply with defendant’s Rule

13 requiring it to pay benefits up to the date of filing

as defined by the said rule, such matters are properly

within the ambit of enforcement by the Industrial Com-

6 eee

mission against the carrier rather than by’this Court

against the Commission.

Defendant Commission repsectfully submits, therefore, -

that the application for intervention should be denied.

INDUSTRIAL COMMISSION OF

VIRGINIA

By: /s/ Vann H. Lefcoe

Andrew P. Miller

Attorney General

Vann H. Lefcoe

Assistant Attorney General

Supreme Court Building

Richmond, Virginia 23219

“ [Certificate of Service Omitted in Printing]

EXHIBIT A

THURMOND, BEAVER & BOSTWICK

ATTORNEYS AT LAW

Suite 495, Seaboard Bldg.

3600 W. Broad St.

Richmond, Virginia 23230

Lanier Thurmond : Telephone

Robert P. Beaver Area Code 703

Edgar I. Bostwick 355-5731

February 7, 1973

George S. Newman, Esquire I. C. No. 246-389

Neighborhood Legal Aid Society, Inc.

10 South 10th Street

Richmond, Virginia 23219

Re: Willie Williams vs. Richmond Guano Company

Our File No. T72-692

Dear Mr. Newman:

' Enclosed are drafts covering the total disability period

from October 11, 1972 to January 18, 1973, which is the

date of Dr. Herman Nachman’s report and the date to

which we agreed to pay total disability. Also enclosed

is a check paying partial disability benefits from Janu-

ary 10, 1973 to February 8, 1973. The partial disability

benefits will be continued so long as Mr. Williams quali-

fies under the terms of the Virginia Workmen’s Compen-

sation Act.

These drafts are submitted with the understanding that

your client will execute the agreed statement of facts

in the space provided. This should be returned so that

it can be submitted to the Industrial Commission to bring

the matter up to date. Please see that Mr. Williams’

signature is witnessed. This form should be returned to

me.

80 «

These drafts and the agreed statement of facts and

supplemental a ment are in accordance with the agree-

ment you and I had to bring this matter to a conclusion.

If, for any reason, you have any questions on this

matter, please be good enough to call me.

Very truly yours,

/s/ Edgar I. Bostwick

Epcar I. BOSTWICK

EIB:kh

Enclosures

ee: Commissioner Thomas M. Miller

ec: Mr. J. J. Boehling, Jr.

EXHIBIT B

* THURMOND, BEAVER & BOSTWICK

ATTORNEYS AT LAW

Suite 495, Seaboard Bldg.

3600 W. Broad St.

Richmond, Virginia 23230

Lanier Thurmond Telephone

Robert P. Beaver _ Area Code 703

Edgar I. Bostwick 355-5731

February 1, 1978

Mr. J. J. Boehling, Jr.

Supervisor, Claim Department

Travelers Insurance Company

3610 West Broad Street

Richmond, Virginia 23230

Re: Willie Williams vs. Richmond Guano Company

146 CB 5124252

Attorney’s File No. T'72-692

Dear Joe:

Mr. George S. Newman, Attorney, and myself have

agreed on a disposition of this case, and under the agree-

ment, the Travelers is to pay total disability benefits to

January 18, 1978, which is the date of Dr. Herman

Nachman’s report of examination.

After that, it is agreed that partial disability benefits

will be paid within the statutory limits or until the claim-

ant is physically able to resume full employment.

Under the evidence presented at the hearing, he stated

that his average wage at the present time was $65.00

per week, and at the time he was employed by the

Richmond Guano Company, his average wage was $93.20

per week, which makes a difference of $28.20, so that he

would be due $16.92 per week under partial disability

benefits.

It appears that it would expedite the matter if you

would send the necessary agreements to Mr. Newman so

that can be executed and submitted to the Commission

and payments can be made accordingly.

Sincerely yours,

/s/ Edgar I. Bostwick

EpGaR I. ROSTWICK

EIB:kh

ec: George S. Newman, Esquire

ec: Commissioner K. S. Wilhoit

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

[Title Omitted in Printing]

SUPPLEMENT TO DEFENDANTS’ STATEMENT

IN OPPOSITION TO INTERVENTION

Now comes the defendant Industrial Commission of

Virginia, by counsel, and asks that the Agreed Statement

of Facts and Supplemental Memorandum of, Agreement

filed herewith be made Exhibit C to their Statement In

Opposition hereinbefore filed.

INDUSTRIAL COMMISSION OF

VIRGINIA, et als.

By: /s/ Vann H. Lefcoe

Counsel

Vann H. Lefcoe

Assistant Attorney General

Supreme Court Building

Richmond, Virginia 23219

[Certificate of Service Omitted in Printing]

Bid

Mid Meat 8 saad haat

COMMONWEALTH OF VIRGINIA

DEPARTMENT OF WORKMEN’S COMPENSATION

INDUSTRIAL COMMISSION OF VIRGINIA

P. O. Box 8794

Richmond, Virginia 23214

WILLIE WILLIAMS, EMPLOYEE

q and 4.0 &

RICHMOND GUANO COMPANY, EMPLOYER

Claim Number 146 CB 5124251

246-389 :

Date of Accident 4-14-72

AGREED STATEMENT OF FACT

It is agreed that the employee (returned to work) on

January 18, 1973, at an average weekly wage of $65.00.

The outstanding award is terminated on the above date

subject to approval by the Industrial Commission. The

employee may reopen the claim pursuant to § 65.1-99.

SEE NOTE BELOW

Date of Agreement 2/12/73

TRAVELERS INs. Co.

Employer or Insurer

By: /s/ [Illegible]

/s/ Willie Williams

Employee

/s/ GEORGE S. NEWMAN

Witness to Employee’s Signature

Total compensation paid $2220.84 at $52.92 per week

from 4-15-72 through 1-17-73. Medical Expense $ _.. :

NOTE: The signing of the above agreement is not a

requirement for payment. This agreement is neither a

receipt for money nor a release of claim. Should further

disability result, the claim can be reopened by written ap-

plication received by the Industrial Commission within

twelve months from the late date for which compensation

was paid; however, at a hearing on the application, com-

pensation cannot begin more than 14 days prior to the

date of filing. .

SUPPLEMENTAL MEMORANDUM OF AGREEMENT

It is agreed that on January 18, 1973, the employee

_............... OR had a change in average weekly wage

of $93.20 to $65.00.

It is further agreed that compensation will be paid

and accepted beginning January 18, 1973, at the rate of

$16.92 per week to continue for so long as partially dis-

abled. (Specifiy number of weeks during disability)

Date of Agreement 2/12/73

TRAVELERS INS. Co.

‘Employer or Insurer

By: /s/ [Tllegible]

/s/ Willie Williams

Employee

/s/ George S. Newman

Witness to Employee’s Signature

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

[ Filed, Mar. 14, 1978, Clerk,

U. S. Dist. Court, Richmond, Va.]

Civil Action No. 537-71-R

JOHN R. DILuarD, individually, and on behalf of all

other persons similarly situated, COMPLAINANT

and

WILLIE WILLIAMS, individually, and on behalf of

all other persons similarly situated,

APPLICANT FOR INTERVENTION,

INDUSTRIAL COMMISSION OF VIRGINIA, THOMAS M. MILLER,

Chairman, Industrial Commission of Virginia, M. Ep-

WARD EVANS, THOMAS P. HARWOOD, JR., Commissioners

of the Industrial Commission of Virginia, DEFENDANTS

ORDER

Upon motion of the defendant Thomas P. Harwood,

Jr., for good cause shown, it is hereby ORDERD that

the said Thomas P. Harwood, Jr., be dismissed as a

party defendant and that Robert P. Joyner, his suc-

cessor in office, be made a party defendant hereto.

Date: Mar. 14, 1973

/s/ [Mlegible]

United States District Judge

ee RSV ETEY NS

na Scone

Varo

No. C/A 537-71-R

= DILLARD

Vv.

. INDUSTRIAL COMMISSION OF VIRGINIA

PER CURIAM:

This matter is presently before the Court pursuant to

the mandate of the Supreme Court of the United States

directing the Court to consider whether this cause has

been rendered moot by reason of the fact that the orig-

inally named plaintiff, Dillard, had, approved by order

of the defendant, Industrial Commission of Virginia, en-

tered into a lump sum settlement of his individual claim

for workmen’s compensation. The respective parties have

briefed the issue and the Court has entertained oral

argument.

While the usual rule is that an actual controversy

must exist at all stages of appellate review, see United

States v. Munsingwear, Inc., 340 U.S. 36 (1950), we

deal in this instance with a class action wherein the

named plaintiff has been found to be an adequate repre-

sentative of the named class. There can be no doubt that

the justiciable issue herein is capable of repetition. See

Rowe v. Wade 41 LW 4213, 4217, January 22, 1973. In

addition, one Willie Williams, individually and on behalf

of all other persons similarly situated, has moved the

Court for leave to intervene as a party plaintiff, which

intervention will be permitted, and his proposed complaint

will be ordered filed. At the bar of the Court, the defend-

ant Industrial Commission of Virginia and Williams by

their respective counsel have stipulated that the issues

involved between the intervening plaintiff and defendant

Industrial Commission are identical to those issues ruled

upon by this Court in its order of July 17, 1972 and all

parties have agreed to rest their case on the pleadings

and briefs which the Court considered in rendering its

opinion of July 17, 1973.

Concluding this action is not moot, an appropriate order

will enter.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

[Filed, Jun. 26, 1978, Clerk,

U. S. Dist. Court, Richmond, Va. ]

Civil Action No. 537-71-R

JOHN R. DILLARD, ind., ete.

Vv.

INDUSTRIAL COMMISSION OF VIRGINIA, ET AL

ORDER

For the reasons assigned in the memorandum this day

filed, and deeming it proper so to do, it is ADJUDGED

and ORDERED:

1. The motion of Willie Williams to intervene herein

as a party plaintiff be, and the same is hereby, granted;

his proposed complaint be, and the same is hereby filed,

and the answer of the defendant Industrial Commission

of Virginia filed to the original complaint be, and the

same is hereby considered where appropriate as its an-

swer to the complaint of the intervenor.

2: This action is declared a class action and the named

plaintiff is representative of the class affected.

3. This cause is not moot and the court’s majority

opinion and dissenting opinion of July 17, 1972 and its

order of the same day be, and the same are hereby, re-

instated, effective this date.

Let the Clerk send copies of this order and the mem-

orandum to counsel of record.

/s/ [Illegible]

United States Circuit Judge

/s/ [Illegible]

United States District Judge

/8/ [Illegible]

United States District Judge

Date: June 26, 1973

SUPREME COURT OF THE UNITED STATES

No. 73-5412

JOHN R. DILLARD and WILLIE WILLIAMS, etc.,

APPELLANTS,

INDUSTRIAL COMMISSION OF VIRGINIA, ET AL.

ON CONSIDERATION of the motion of the appellants

for leave to proceed herein in forma pauperis,

IT IS ORDERED by this Court that the said motion

be, and the same is hereby, granted.

December 17, 1973

SUPREME COURT OF THE UNITED STATES

No. 73-5412

JOHN R. DILLARD and WILLIE WILLIAMS, etc.,

APPELLANTS,

INDUSTRIAL COMMISSION OF VIRGINIA, ET AL.

APPEAL from the United States District Court for

the Eastern District of the Commonwealth of Virginia.

The statement of jurisdiction in this case having been

submitted and considered by the Court, probable juris-

diction is noted and the case is set for oral argument.

December 17, 1973

Wy ou. S. GOVERNMENT PRINTING OFFICE; 1974 530231 150

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