Workers’ Compensation Edited by P. Matthew Darby
P. Matthew Darby is a partner in the firm of Albertini & Darby, LLP, of Baltimore and received his J.D. from the University of Maryland School of Law. Mr. Darby is a member of MTLA’s President’s Club as a Founder and serves as a member of the Membership Committee. His practice concentrates in the representation of injured workers in Maryland’s Workers’ Compensation Claims, Longshore and Harbor Workers’ Claims, Federal Employers’ Liability Act Claims and general liability claims before various state and federal courts.
Forcing an On-The-Record Appeal
as an Appellant in a Worker’s Compensation Claim by Jack J. Schmerling
Jack Schmerling is a graduate of California Western School of Law, a member of MTLA and its President’s Club since 1988, a member of the Workers’ Compensation Section of MTLA, a board member of the Brain Injury Association of Maryland since 1988, and a sole practitioner in
Glen Bumie with a practice focusing on Workers’ Com- pensation, personal injury, and social security disability.
For the last several legislative ses- sions, the Maryland Trial Lawyers Association has introduced legislation to allow for the introduction of medi- cal records in lieu of live expert testimony in Workers’ Compensation Appeals.
This legislation has been
loosely modeled after the procedures set forth in Cts. & Jud. Proc. Art. §10-104, which applies in District Court cases. We have all been confronted with ap- peals that are difficult to pursue as a practical matter due to the costs asso- ciated with presenting expert medical testimony. Employers and Insurers of- ten use their advantage in resources to
force settlements or to discourage ap- peals. While the Maryland Trial Lawyers Association continues to pro- mote a resolution of this problem legislatively, it is interesting to note that under certain limited circumstances there may be another way to address the issue. You have lost a hearing before the
Maryland Workers’ Compensation Commission and have filed an appeal in the Circuit Court. Your client does not have the funds to pay for live or videotaped expert testimony in the Cir- cuit Court; surveillance or other information subsequent to the hearing will be introduced in the Circuit Court; or the Commission was clearly errone- ous in its ruling. Why not try to compel an “on the record” appeal? Far fetched? Maybe not. Before two separate Circuit Court
Judges in Anne Arundel County I have filed and successfully argued, over op- position from opposing counsel, motions to compel the Court to order a trial on the record. This means that the only evidence to be introduced at trial is the transcript, medical evidence,
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28 Trial Reporter Winter 2001
and other documentation submitted at the time of the Commission hearing. No other evidence, including testimony from your client nor additional new evidence, can be introduced. In this circumstance, you simply introduce the transcript, all of the records previously submitted before the Commission, and prepared legal argument which I have presented simultaneously both orally and in writing. This can only be done in cases in which you are the Appellant and in which no jury demand has been made by either party.
I would also
strongly recommend against doing any discovery as defense counsel will argue that you have put them through unnec- essary work and are, in some way, harassing or prejudicing them by forc- ing them to respond to meaningless discovery. I have, in these cases though, responded to the Employer and Insurer’s discovery. Below is the Motion and Memoran- dum of Law utilized in these cases. As a tip, be sure to carefully review the S.B. Thomas, Inc. vs. Thompson case cited in the Memorandum as well as the other citations.
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