Workers’ Compensation (Continued from page 29) CLAIMANT/APPELLANT
v. EMPLOYER & INSURER/APPELLEES
* * * * * *
to Grant Request of Claimant for On the Record Appeal, states the following: FACTS
1. The Claimant/Appellant filed a workers’ compensation claim received by the Maryland Workers’ Compensation Commission (hereinafter referred to as Commission) on (DATE) and an Order was issued by the Commission on (DATE) finding this claim compensable. 2. The Claimant (Appellant) believed that he was entitled to additional benefits and a hearing was held on (DATE) to determine if the Claimant (Appellant) was entitled to such benefits; as a result of that hearing, the Commission denied those benefits. 3. The Claimant (Appellant) filed a timely appeal on (DATE) and the Employer and Insurer (Appellee) filed a timely response on (DATE). Neither side requested this trial be held with aide of a jury. Moreover, all of the requirements regarding venue, jurisdiction, etc. as contained in L&E Article §9-737 through §9-745 and the Rules under Maryland Rules §7-201 through §7-206 have been complied with.
APPELLATE PROCEDURE Maryland has established a procedure for appeals of administrative agency decisions including State and County agency deci-
sions. The rules for said appeals to circuit courts are contained in the Maryland Rules §7-201 et seq. As noted by the Court of Special Appeals in General Motors Corporation v. Bark, 79 Md. App. 68, 555 A.2d 542 (1989): “Ordinarily, an appeal will be decided by the circuit court judge without a jury. Ordinarily, no additional evidence will be introduced upon the merits. Ordinarily, the role of the reviewing trial court with respect to an agency’s fact finding is austerely limited.”
However, under the appellate procedures as provided under L&E Article, §9-745(d) provides for a jury trial. QUESTION
The question before the court today is when the Claimant/Appellant, as in this case, requests that the matter be determined “on the record” and not de novo and the Employer and Insurer/Appellee have not requested a jury trial, should the appeal be held on the record or de novo?
ARGUMENT
1. As noted by Gilbert & Humphreys in the Maryland Workers’ Compensation Handbook (1993) at Section 17.4: “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.”
2. The most recent case discussing the dichotomy between an on the record appeal and trial de novo is S.B. Thomas, Inc. v. Thomp- son, 114 Md. App. 357, 689 A.2d 1301 (1997). That case is similar to this case in that there was an issue before the Commission of the causal relationship between a subsequent problem and the original accident. However, in that case the Claimant prevailed at the Commission. The court then discusses the differences between a de novo appeal and a trial on the record. In that case, the Appellant (in Thomas, the Employer and Insurer), chose an essentially de novo trial (at page 1304). Accordingly, Appellant’s wish was granted and the trial was held de novo. 3. It should be noted that L&E Article, §9-745(d), which provides for a jury trial states “[o]n 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.” The common practice is that all jury trials are trials de novo.
4. However, §9-745(e) does not create a presumption that the case will be tried “in accordance with the practice in civil cases.” As noted in Thomas, this is the section of the statute which grants an on the record appeal. It should be reiterated that on the record appeals are utilized in all other administrative appeals in Maryland. It should also be noted that the Maryland Rules, as contained at Rules §7-201 et seq., are silent on this issue. 5. As in the Thomas case, where neither party requested a jury trial, the court should give preference to the Appellant’s selection of either a de novo or on the record appeal. It is noted that the Rules are silent (unlike jury trials which either party can select) as to which party selects a de novo or on the record appeal. As the Appellant has the burden of proof, the court should recognize, as in Thomas, the Appellant’s selection. Accordingly, as neither party has requested review by a jury and the Appellant seeks review on the record, such request should be
granted.
________________________________ Jack J. Schmerling, Esquire 7429 Baltimore Annapolis Boulevard Glen Burnie, Maryland 21061 (410) 787-0022
Attorney for Claimant/Appellant* 30 Trial Reporter Winter 2001
IN THE CIRCUIT COURT FOR
ANNE ARUNDEL COUNTY
******************************************************************************* MEMORANDUM OF LAW
NOW COMES the Claimant/Appellant, by and through his attorney, Jack J. Schmerling, Esquire, and in support of the Motion
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