Appeal of a workers compensation decision

Maryland workers compensation appeals are costly and complicated.Issues include deciding whether you want a judge or jury and whether the case is to be tried denovo or on the record.

9-745. Conduct of appeal proceedings  (a) In general. — The proceedings in an appeal shall: (1) be informal and summary; and    (2) provide each party a full opportunity to be heard. (b) Presumption and burden of proof. — In each court proceeding under this title:    (1) the decision of the Commission is presumed to be prima facie correct; and    (2) the party challenging the decision has the burden of proof. (c) Determination by court. — The court shall determine whether the Commission:    (1) justly considered all of the facts about the accidental personal injury, occupational disease, or compensable hernia;    (2) exceeded the powers granted to it under this title; or    (3) misconstrued the law and facts applicable in the case decided. (d) Request for jury trial. — On a motion of any party filed with the clerk of the court in accordance with the practice in civil cases, the court shall submit to a jury any question of fact involved in the case. (e) Disposition. —    (1) If the court determines that the Commission acted within its powers and correctly construed the law and facts, the court shall confirm the decision of the Commission.    (2) If the court determines that the Commission did not act within its powers or did not correctly construe the law and facts, the court shall reverse or modify the decision or remand the case to the Commission for further proceedings.

Appeal of a workers compensation decision

In S.B. THOMAS, INC., et al.,v Dennis A. THOMPSON 114 Md. App. 357,689 A.2d 1301 (1997)

The employer and the insurer appealed to the Circuit Court for Frederick County. The Court of Special appeals explained: “There are, of course, two alternative modalities that an appeal from the Workers’ Compensation Commission may follow. One is pursuant to Labor and Employment Art. § 9-745(e), which replicates the routine appeal process from administrative agency decisions generally. According to that modality, the circuit court reviews the Commission’s action on the record and determines whether the Commission 1) acted within its power and 2) correctly construed the law and facts.The other and more unusual modality is that spelled out by § 9-745(d), which provides for what is essentially a trial de novo. Holman v. Kelly Catering, 334 Md. 480, 484, 639 A.2d 701 (1994); Smith v. State Roads Commission, 240 Md. 525, 533, 214 A.2d 792 (1965); Richardson v. Home Mutual, 235 Md. 252, 255, 201 A.2d 340 (1964); General Motors Corp. v. Bark, 79 Md.App. 68, 74, 555 A.2d 542 (1989). R.P. Gilbert and R.L. Humphreys, Maryland Workers’ Compensation Handbook (1988), 312-314, discusses the fundamentally different natures of the two appeal modes:

The practice is that appeals are presented to trial courts in one of two fashions: (1) the submission of the case to the judge on the basis of the record made before the Commission; or (2) a de novo evidentiary hearing before the court sitting with or without a jury. (Footnote omitted).

In this case, the appellants chose the avenue of an essentially de novo trial rather than that of an appeal on the record. In General Motors Corp. v. Bark, 79 Md.App. at 76, 555 A.2d 542, we discussed the difference between those fundamentally dissimilar forms of review:

Under that dichotomy, it is the first of these appeal modes that requires the circuit judge to determine under Section [9-745(e) ]:

1) whether the Commission has “justly considered all of the facts concerning the injury,”

2) whether it has “exceeded the powers granted it by the [title],” and

3) whether it has “misconstrued the law and the facts applicable in the case decided”

and then directs him to affirm “the decision of the Commission” if he determines “that the Commission has acted within its powers and has correctly construed the law and facts.” Thus far, there is nothing of a de novo nature involved. Thus far, a review by the circuit court of the record before the Commission would suffice. The statutory direction to affirm an error-free 1305*1305 Commission decision would not apply, however, to the alternative appeal mode of de novo trial. Indeed, once the circuit court embarks upon its de novo fact-finding mission, it is totally unconcerned with whether the Commission “correctly construed the law and facts” or not.

When the form of appellate review invoked at the circuit court level is that of a de novo determination of the facts, § 9-745(b) takes on potentially great significance at such a de novo trial:

(b) Presumption and burden of proof.— In each court proceeding under this title:

(1) the decision of the Commission is presumed to be prima facie correct; and

(2) the party challenging the decision has the burden of proof.

These twin provisions—the opportunity for a de novo factual determination at the circuit court level coupled with the presumption of correctness of the Commission’s finding— have been part of the law since the Workmen’s Compensation Act was first enacted by Chapter 800 of the Acts of 1914. Their interaction over the decades has given rise to the description of the review procedure as something that is “an essential trial de novo.” It was in General Motors Corp. v. Bark, 79 Md.App. at 79-81, 555 A.2d 542, that we undertook for the first time to explore the significance of the qualifier “essential” and to ask, “What is the difference between an essential trial de novo and a true trial de novo?”

After pointing out that “[a] true trial de novo, of course, puts all parties back at `square one’ to begin again just as if the adjudication appealed from had never occurred,” General Motors Corp. v. Bark noted that one difference between a true trial de novo and an essential trial de novo is that in the latter, one does not treat the adjudication appealed from as if it had never occurred. It is, rather, the case that the presumptively correct outcome of that adjudication is admissible as an item of evidence and is the proper subject of a jury instruction. Holman v. Kelly Catering, 334 Md. 480, 639 A.2d 701 (1994). It is an evidentiary fact that may well tip the scales of persuasion.

Aside from that difference, the even more significant potential difference is that sometimes there is a drastic shift in the allocation of the burdens of proof—both of production and of persuasion. If, of course, the claimant loses before the Commission and then appeals to the circuit court the provision, as a practical matter, is largely meaningless. The claimant has the burden of producing a prima facie case before the trial court, lest he suffer a directed verdict against him, just as he, as the original proponent, had that same burden before the Commission…. The claimant has, moreover, the same burden to persuade the trial court by a preponderance of the evidence that his claim is just as he had to persuade the Commission in the first instance.79 Md.App. at 79-80, 555 A.2d 542.

It is, as in the case now before us, when the claimant wins before the Commission and the original defendant takes the appeal to the circuit court that the difference becomes dramatic:

It is then that the allocation of burdens switches. In such a case, the decision of the Commission is, ipso facto, the claimant’s prima facie case and the claimant runs no risk of suffering a directed verdict from the insufficiency of his evidence before the circuit court. Indeed, the successful claimant, as the non-moving party on appeal, has no burden of production. The qualifying language also gives the successful claimant below the edge—the tie-breaker—if the mind of the fact finder (judge or jury) is in a state of even balance. The tie goes to the winner below.

79 Md.App. at 80, 555 A.2d 542.

This phenomenon of shifting burdens was first discussed over seventy-five years ago in Stewart & Co. v. Howell, 136 Md. 423, 433-34, 110 A. 899 (1920), by the first Judge Adkins:

[I]t simply puts the burden of proof upon the party taking the appeal, whether he be plaintiff or defendant. In other words it establishes no new rule when the plaintiff happens to be the party appealing, as the burden was always upon the plaintiff to 1306*1306 prove his case. But it shifts the burden from the plaintiff to the defendant where the defendant loses before the Commission and desires to appeal from its decision, requiring the defendant in such a case to satisfy the jury by a preponderance of testimony that the plaintiff is not entitled to the award made by the Commission.




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