The Trial

• Jurisdiction: Maryland

VI. THE TRIAL

A. De Novo Trial

The trial on appeal is essentially de novo and the parties are not confined to evidence submitted before the Commission.⁸⁶

Instead of a de novo trial, the parties may choose to submit the case to the trial judge to be reviewed on the record of the proceedings before the Commission, as in appeals from other administrative agencies.⁸⁷

The appellee may request a de novo trial even though the appellant requested only a review on the record.⁸⁸

1. Sequestering witnesses

The employer or insurer is entitled to designate as its representative any person, including a claims adjuster who will testify in the trial, and this representative may not be excluded.⁸⁹

2. Medical experts

A medical expert is permitted to testify as to the results of an examination made after the Commission's award and before the trial of the appeal.⁹⁰

B. Burden of Prof

The decision of the Commission is regarded as prima facie correct and the burden of proving error on the part of the Commission is upon the appellant.⁹¹

However, if no facts were established at the Commission sufficient to support its decision, it is not prima facie correct as to that particular issue and there is no burden of factual prof on the party attacking the Commission's decision.⁹² Similarly, if the Commission issued an award without a hearing or did not have the minimum evidence necessary to support its decision, there is no presumption of correctness, and on appeal by the employer, the claimant continues to bear the burden of prof as to the essential facts necessary to support the claim.⁹³

The presumption of correctness attaches to the Commission's findings of fact and not to its conclusions of law.⁹⁴

The Commission's decision is admissible in evidence.⁹⁵

1. Preponderance of evidence

Essentially, this burden of prof requires the appellant to prove by a preponderance of the evidence that the Commission's decision was incorrect.⁹⁶ If the mind of the trier of fact is in a state of even balance, the Commission's decision should be affirmed.⁹⁷ The burden of the appellant is by a preponderance of the evidence even if the Workers' Compensation Act uses the term "definite prof."⁹⁸

2. Burden of persuasion

The burden of prof is really a burden of persuasion and does not require the appellant to submit additional evidence beyond what was offered at the Commission.⁹⁹

3. Satisfaction of burden of prof

The appellant may satisfy his or her burden of prof by submitting new evidence or by relying on all or part of the record before the Commission and arguing as to the probative value of the evidence or the witnesses.¹⁰⁰

4. Affirmative defenses

The employer retains the burden of proving an affirmative defense, such as willful misconduct, even if it prevailed on that issue at the Commission and the employee is the appealing party.¹⁰¹

? In presenting argument to the jury, counsel for appellant should do his or her best to minimize the burden of prof, while counsel for appellee should strongly emphasize it.

C. Argument

Since the appellant has the burden of prof, he or she has the right to open and close the arguments to the jury and the presentation of the evidence even though the appellant was in the position of a defendant when the case was before the Commission.¹⁰²

Generally, when the matter is tried before a jury, it is advisable to give a brief history or explanation of the workers' compensation law since the average juror will probably be unfamiliar with workers' compensation appeals.

D. Evidence

Although LAB. & EMPL. § 9-745(a) provides that proceedings on appeal shall be informal and summary, the trial judges apply the usual rules of evidence.¹⁰³

1. Medical reports

Medical reports submitted before the Commission are not admissible at the trial on appeal unless the parties so stipulate.¹⁰⁴

2. Reading testimony to jury

A party is permitted to read to the jury the testimony of his or her own witnesses before the Commission, including the cross-examination, but may not read the testimony of the opposing party's witnesses unless it is otherwise admissible.¹⁰⁵

3. Admissibility of Commission's decision

The admission into evidence of a copy of the Commission's decision is within the discretion of the trial judge, but ordinarily, the judge will simply tell the jury what the Commission decided.¹⁰⁶

4. Necessity and quality of expert testimony

When the issue involves a complicated medical question, such as the causal connection between an earlier injury and subsequent disability, expert testimony is required.¹⁰⁷ There must be a sufficient factual basis to support the expert's testimony, and reliable principles and methodology that are generally accepted must be used to support the expert's conclusions.¹⁰⁸

With regard to the issue of permanent impairment, the opinion of a medical expert must conform to the American Medical Association's "Guides to the Evaluation of Permanent Impairment" and include information about the worker's atrophy, pain, weakness, and loss of endurance, function, and range of motion.¹⁰⁹

5. Necessity of vocational testimony

It is not necessary for a vocational expert to testify in order to establish industrial loss, although such testimony is permitted.¹¹⁰

E. Submitting Case to Jury

1. Issues and instructions

The jury decides the case on issues previously framed by the trial judge.

Before the case is submitted to the jury, the attorneys present to the judge requests for jury instructions covering the applicable legal principles. See on page 291 at the end of this chapter, sample jury instruction forms on the burden of prof...