# Appendix — Dillard v. Industrial Comm'n of Va. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0284%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 416 U.S. 783 ## Text 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 v. 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 8 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.) 9 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. 10 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. 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OL-1-.—¢ ‘ON WO 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. a 13 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- 14 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 15 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. 16 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. “AL. LISIHXA : PICITTA *H UNOL *our ‘STITWA eyouvOYy 290° ‘saouospaddo jouossed suoi2rshyd jo naw us 9190349920 eo sysodas jorpay “("OA 40 9P0> ‘17-1°S9$) PIey 9q [fA Buysoay 04) asaya Ayuno> 40 Ay 943 40 921440 5449/5 243 30 pawiojgo aq sow 40 ysanbas wo wojssimWOy jo1ysnpuy 94; Aq ponss: oq jjM Sessaujm 405 SOUCdGnS ‘ $1 tL 6 “4deg jo hop U39T 14) poubss 00n2 “VA *DIONVOU Tel xog "0 wa : Sseuppy cmos :qub2yddy 40 eunyoubss , 7 6 PISS yo hop aa LT 248 ybnosys 420m sad 09° On JO 9302 943 30 piod 4s0j SOM UOI}OSUadWO> “tL/S2/P Perep preme TO k - URTM souepi0co;e ut pue AeTeey “ug Aq peuTT}No sv jUuSUeeT} TeOTpem jo Tesnyey © :@6uny> 40 aanjyou 2303s ‘uo1y!puo> us @BuDY> D UO pasog si UO1yD>;ddO 4) p : LeEndOensae, Olabeees wo1jipuos ui abuoy> (¥) (ie aspasig jouo10dn229 (in ee Asnfuy joquapioay 03 anp “——-¢, uo yj0aqg (£) ie eee aspasig jouo0dn220 (7) i Aanfuy jouuapizy (1) 740 Spunos6 943 uo o1uy6sy, 40 Uo}ssiWWOD joUysnpU] 94) 84040q BuysD04 © Sysanbas yuDr>jddo oy) $ powsoe ways 060% pun “6 *— SOM 0} UUNZey 4O 940q TLS! “ote ‘wobag Aiiqosig 940g ———O——rtt cml! ~ vrurey Teumauy 3uaTY :@sDesig jouo1j0dN290 40 Asnfuy yo sanyo, ee (9484S) . \ (Avene) 40 A413) pesuns2Q suepIory 8104, 02044 ° We + i a ean = Horas 2OM AAPM eOpIOAY —TT-~6L THE , juopi22y 40 910g reas ad sete’ - Aa eile | ~ “ONT ‘STIIW DIONVOU — oe “fy . \ 7; " we T “GavTod °u NHOr — eee \ OLS-69T °N “Md a ont ‘ er ad ONIMy aud 4d NOILVOIIdd¥ “ jVe WA EZ o1u611, ‘puowy>ry ae ¥6LL X99 “Od VINIDYIA 4O NOISSINWOD TWIMLSNANI 19 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. 20 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] 22 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. 23 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 By Of Counsel McGuire, Woops & BATTLE 1400 Ross Building Richmond, Virginia 23219 24 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 25 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 26 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- 27 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 28 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 29 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] 80 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- $1 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. 32 (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. 33 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] 34 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 35 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] 36 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. 37 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. (c) One week. (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 (c) 1967-272 (Employees) 1968-320 1969-352 1970-408 1971-410 14) See Answer 6. 38 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] 39 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. 40 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] 4l 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 42 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 48 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] 44 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 45 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 46 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, v. 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 47 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. 48 204, 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. 49 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. 50 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, (c) it must show the date through which compensation 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. 51 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. 52 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 53 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 55 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 56 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 ~~ 57 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION Civil Action No. 537-71-R JOHN R. DILLARD v. 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 58 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. 59 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 60 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. 61 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. 63 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 64 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 65 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 66 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 v. 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. 67 SUPREME COURT OF THE UNITED STATES JOHN R. DILLARD, ETC. v. 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. 68 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 69 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 70 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 71 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 72 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 73 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 Re ‘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 [Jurat and Certificate of Se ervice Omitted in Printing] j)BHxXa aA i SHB OD OE, lees, mae S o4°q ey T7o7 ©4900 t > =~ ~~ — P8I075, d/N g Dee ter whilst é a : ee PWNAGE TG ad —_— PS 4q 04 ustoms pue poqTiosqns yieee eTUTsat, ‘puouyoty T6LL xOG S9OTIIO 480g UTUTIITA JO UOTSSTMMIOD TUTIysnpuT ¢ . s.mok £14 f1ap : *sefyjouoq TeuoTyTppe jo yuouted roy uotTssTumog Tetaysnpur ou} 0} UoT,eOTTdde oye 07 pacne ue OF quensand pred sq uoryesuoduos yotyA soy Aep 4SeT oy} wWoly syquoM oATONZ APY NOZ *UTeTO Inof ayeUTWIe, JOU seop 4T Butusrg *esvoteat ve YOU s~ wroy poyouyyr syy *oyep 07 squewfed .mo jo pure AyTTTGQesTp favaodviey snok Jo vor eurmas04 uy BuTApeTNowjoye WO YORA JO yUowszeEYS posrTDy poyorzyze oyy VaAngor pue Wits oseoTg : rn. % “ast : wort ~~ FG"GG $ Jo 2422 By} 30 06627 t 3 spred i [eyz07, *LIVSSOOOU. 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Sosscr Eee S«AOMMSUT tyxravay zo Loarans sakojdurg « a EB Be eee f 2 SPePeetA. for CZTET STuUTHATA ’puceptTy SQ00ATS SUA. most ergne- ONUOAY IW TIId LOS . seers eae «© GatoTrrs cesc02s:: MMPTITA OFTTFA “At - GWOTZENCD VORSS TED Te pag eT s bs yueUlrely) 178 pjay aq [IM suey y *Q3SSIAACAV SAWLUVd ALL OL SWCTTTFA OFTTF +34 ZLET “YT TH2zdv aananoY 40 8148 ONIYZV3SH JO JDILON VIZES VINIDUYIA ‘GNOWHDIN V6Li XOB 'O'd VINISUIA AO NOISSINNOD TIIYLSNAN] ‘ON S.NSINAYD NOILVSN3dWOD S.NSWXYOM JO IN3SWLYvd3a0 68t-97¢ ‘ON A114 ‘91 eS Syma fe We exa0 (*hanfar we 7 ipl aes Rh os 7 81q) INOge a2uepuodsass02 i ea (b5 Pe ; HE & “ON HLA “D"] OF 42/24) NYY sy ‘ hex:) Hs 77 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 78 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] 79 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. 81 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. 82 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 83 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 $ _.. : 85 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 e 86 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, v. 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 87 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. 88 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0284%3A01. Public record. Not legal advice.