Board of Education v. Spradlin

¹⁶⁰ CHARLES E. MOYLAN, JR., Judge (Retired, Specially Assigned).' When, If Ever, Is the Past Prologue? There is first the administrative appeal; and, then, there is the administrative appeal plus. An appeal to the circuit court from a decision of the Workers’ Compensation Commission is, not invariably but more frequently than not, by way of the administrative appeal plus. The statutory provision for circuit court review offers the appellant not one but two reviewing options.

The first is that of a generic and routine administrative appeal, a familiar process with familiar constraints. “Did the agency fall into legal error?” The “plus” option, by intriguing contrast, is more wide-ranging. It permits revisiting the facts, supplementing the facts, or simply appraising the facts afresh, even in the total absence of any antecedent error. “The decision of the Commission appears to have been impeccably correct; but we nonetheless arrive at a diametrically different result.” Our consideration of this appeal requires an in-depth examination of some of the procedural nuances attendant on that “plus” option. When a proceeding is “essentially,” but not totally, de novo, to what extent, if any, is the past prologue? The Workers’ Compensation Claim The appellee, Joannie M. Spradlin (“the claimant”), filed a claim with the Workers’ Compensation Commission, requesting compensation benefits for injuries sustained by her after being assaulted by a co-employee.

Before the Commission, the appellant employer, the Board of Education for Montgomery County, claimed, inter alia, that the claimant’s own wilful misconduct, in instigating the fight with the co-employee, barred her recovery. It also claimed, as an alternative defense, that the injury to the claimant did not 1) occur in the course of the claimant’s employment or 2) arise out of that employment. Without meaningful elaboration, the Commission ruled against the claimant and denied her claim. ¹⁶¹ The claimant appealed the Commission’s decision to the Circuit Court for Montgomery County. She opted for a de novo trial before Judge William J. Rowan, III, sitting without a jury.

Judge Rowan, as the fact finder, was persuaded that the claimant had “sustained an accidental personal injury in the course of employment” and accordingly reversed the decision of the Commission. On this appeal, Montgomery County poses the question: Once the circuit court determined that the claimant and the employer’s witness were equally credible, should the court have given due weight to the presumption of correctness of the Commission’s decision? (Emphasis supplied). What Was “The Commission’s Decision?” That is not a simple question.

It is a generative question that begets not an answer, but only other questions. Putting aside, for the moment, the intricate problem of what it is that a de novo fact finder may, or must, do with the presumption of antecedent correctness of the Commission’s decision, what actually was “the Commission’s decision?” It was, at the very least, the Commission’s ultimate ruling disallowing the claim, but was it anything more than that? If, in arriving at its “decision” on a claim, the Commission arguably resolved (“decided”) one or a series of factually disputed sub-issues, did each such resolution of an intermediate sub-issue, ipso facto, become a part of'“the Commission’s decision” to which the presumption of correctness applies? Is the Commission’s putative reasoning process inextricably wrapped into “the Commission’s decision?” How finely do we parse the concept of “the Commission’s decision” before we pay it due obeisance?

In terms of what officially was the Commission’s decision in this case, we have only the bare bones. Two issues were before the Commission, only one of which was ultimately decided. It was: ¹⁶² 1. Did the employee sustain an accidental personal injury arising out of and in the course of employment?

On that issue, the Commission answered: The Commission finds on the issues presented that the claimant did not sustain an accidental injury arising out of and in the course of employment as alleged to have occurred on November 22, 2002; and finds that the remaining issue is moot, and the Commission will disallow the claim filed herein. (Emphasis supplied). It is on that spare foundation that Montgomery County constructs an elaborate argument. The Factual Dispute Before the Commission At the June 18, 2008, hearing before the Workers’ Compensation Commission, only two witnesses were called: 1) the claimant and 2) her co-worker and alleged assailant, Angela Harris.

The assault that precipitated the claim in this case occurred on November 22, 2002, at the West Farm Depot of the Montgomery County Board of Education, where both the claimant and Angela Harris were employed. The West Farm Depot provides a kitchen area and a break room for bus attendants before they board the school busses. The claimant and Ms. Harris gave diametrically opposite accounts of a verbal confrontation between them that occurred, initially over the changing of a television channel, in the break room. According to the testimony of the claimant, she was the innocent victim of an unprovoked attack.

She was in the lounge provided by Montgomery County for its bus attendants moments before leaving to go on her bus run. She had, shortly before, been watching channel 7 on the television set; had left the room briefly; and then returned to find that the set had been switched to channel 9. The claimant described what then occurred, both inside the lounge and outside at the bus-boarding area. I had asked my coworker to change the TV because I had been watching channel 7.

She said, yes, she changed it to channel 9. I started to leave, pick up my stuff and I said, ¹⁶³ well, it’s just as well because I have to go on my bus run anyway. She said, I know you’re not talking to me. You come back here if you’re talking to me.

I said, no, if I was talking to you, I’d come and say it to your face. The next thing you know, I’m walking out the door, and I heard her say it again. She had threatened to “F” me up and kept saying I was talking to her, come back and say what I had to say. I walked around the corner.

She followed me outside, came out there. She got up in my face. She pointed her finger at me, and she said, “Now you say what you have to say.” And then after that I said, “No.” There were a lot of people around, and I said, “I have nothing to say to you.” So, she pushed me back this way (indicating). She put her foot in my chest and started punching me, hitting me in the head, pulled my earring completely out of my ear.

And that was basically it. I just put my hands up to defend myself. The claimant promptly reported the incident to her supervisor, Peggy Proctor. She also filed a report with the police.

She was subsequently taken by her bus driver to the Holy Cross Hospital, where she received a chest x-ray and some medication. The only wrinkle pursued by Montgomery County during its cross-examination seemed to go to the question of whether, when the claimant was in the lounge, she was “in the course of her employment.” Q Now, you weren’t actually on the clock when this alleged incident occurred, were you? A No, it was during break time. Angela Harris, the ultimate assailant, testified to a diametrically different version of the conversation that became the apparent casus belli.

I was sitting there watching television. No one was there. She came in. She asked me did I turn the television.

So, I said, -“Yes, I turned the TV.” She said, “Well, I was watching the TV.” So, I said, “Well, you must be a ghost because there was no one in here but me,” and one lady walked out ¹⁶⁴ before she came. She caught [sic] an attitude. She started calling me all kind of names. So, she called me the N word, and I got up and asked her what did she say.

By the time I got up, she ran out the sitting room and went to the front where everybody can see her. So, I asked her what did she say, be a woman and say what she said. And then that’s when she had a water bottle, had a frozen water bottle. She threw her water bottle at me, I caught it, threw it back at her.

She ran up to me and then somebody told me to watch out, and that’s when the fight — altercation appliéd [sic]. Q Based on the fact that she called you the N word, the situation evolved into an altercation? A Yes, it did. Q Did she call you anything other than the N word?

A Yes, she did. Q What else did she call you? A She called me the B word. First, she called me the B word.

Then she called me the N word. [1] . That’s when she vacated the sitting room and went to the front so everybody can see her. So that’s when I asked her what did she call me, be a woman and say what she said. On cross-examination, Ms. Harris acknowledged having kicked the claimant.

Q Did you kick Ms. Spradlin in the chest? • A Yes. The reason why I kicked her in the chest was because I had an injury myself. An entertainment center fell on me at Kmart, and I was in pain, too. I had my back turned.

When she threw the water bottle, I threw it back at her, turned my back to ask what is wrong with this lady, is she crazy or something. Somebody told me to watch out. The only thing I could do was kick her. ¹⁶⁵ In brief argument before the Commission, Montgomery County urged two unrelated propositions, either one of which might have sufficed to defeat the claim. It argued that the claimant was guilty of wilful misconduct in uttering the words that instigated the fight, thereby barring her recovery. 2 It also argued, at equal length and with equal vigor, that the injury did not arise either “in the course of’ or “out of’ the employment. [S]he didn’t have a car, and she couldn’t go home and she was sitting in the break room just because she had nothing else to do.

Her employer did not require her to be in the break room. Her employer did not [incur] a benefit as a result of her being in the break room. And as a result of that, I do not believe that, based on the facts provided today, this incident arose out of and in the course of employment. The unilluminating conclusory finding of the Commission did not state on which defense theory, if either, it was relying.

If anything, the conclusion that “the claimant did not sustain an accidental injury arising out of and in the course of ¹⁶⁶ employment,” with no reference to the affirmative defense of wilful misconduct as a bar to recovery, would seem to tilt away from wilful misconduct as the probable basis for the decision. 3 We may, however, be reading more into the lines than the author ever intended. Whatever the unsaid reason for the decision, the decision itself was clear. The claim was disallowed. A Choice of Appellate Strategies Aggrieved at the Commission’s decision, the claimant decided to appeal it to the circuit court.

At that point, she found spread before her at least a modest smorgasbord of appellate selections. In S.B. Thomas, Inc. v. Thompson, 114 Md.App. 357, 364 , 689 A.2d 1301 (1997), we noted the plurality of available appellate strategies. There are, of course, two alternative modalities that an appeal from the Workers’ Compensation Commission may follow. See also Applied Industrial Technologies v. Ludemann, 148 Md.App. 272, 282 , 811 A.2d 845 (2002).

R.P. Gilbert and R.L. Humphrey, Maryland Workers’ Compensation Handbook (2d ed. 1993), § 17.4, p. 342, similarly observed: 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 Commis ¹⁶⁷ sion; or (2) a de novo evidentiary hearing before the court sitting with or without a jury. (Emphasis supplied). Option # 1: An Unadorned Administrative Appeal From the first enactment of the Workmen’s Compensation Act by Chapter 800 of the Acts of 1914, Maryland has provided two different strategies of appeal to the circuit court from a decision of the Workers’ Compensation Commission, formerly known as the Workmen’s Compensation Commission and before that as the State Industrial Accident Commission. The first of the available appellate modalities, essentially unchanged since 1914, is now spelled out by Maryland Code, Labor and Employment Article, § 9-745(c) and (e).

It is in every respect a routine administrative appeal. It is an appeal to the judge alone, and, even then, only in his capacity of a legal referee and not in the capacity of a fact finder. As with appeals from other administrative agencies, the judge reviews the record of the proceeding before the Commission and decides, purely as a matter of law, whether the Commission acted properly. Subsection (c), entitled “Determination by court,” spells out: (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.

Subsection (e) then clearly makes the ultimate disposition of the appeal turn on the determination of whether the Commission, as a matter of law, acted correctly or incorrectly. (e) Disposition. — {1) If the court determines that the Commission acted within its powers and correctly construed ¹⁶⁸ 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. The reference in subsection (c) to whether the Commission “misconstrued the law” is free of ambiguity.

The reference to whether the Commission “misconstrued the ... facts,” on the other hand, does, or once did, present a potential semantic snare. 4 As legal science has developed, however, it ¹⁶⁹ should now be clear that that reference is only to the issue of whether the Commission’s fact-finding was, as a matter of law, clearly erroneous because not supported by legally sufficient evidence. It is our firm and well-considered opinion that “misconstruing the facts” means fact-finding that is clearly erroneous and does not mean simply finding a version of the facts that happens to be different from the one found de novo by a reviewing court. 5 As subsection (c) expressly provides, the question of whether the Commission “misconstrued the .. . facts” calls for a “Determination by Court” and does not depend upon the random chance of whether a de novo jury happened to reach a different conclusion from that reached by the Commission. In Thomas v. Thompson, 114 Md.App. at 364 , 689 A.2d 1301 , we discussed how this modality of appeal from the decision of the Commission is indistinguishable from a routine administrative appeal. [This type of appeal] 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.

(Emphasis supplied). General Motors v. Bark, 79 Md.App. at 73-74, 555 A.2d 542 , similarly characterized this particular mode of appellate review: Thus far, the review contemplated seems to comprehend a review upon the record (or upon “[stipulations” or “a statement in lieu of a record”) of the proceedings before the Commission. As such, it would not differ from the ord/i- ¹⁷⁰ nary,. appeal from an administrative agency. The circuit court, in routinely appellate fashion, would scrutinize the action of the Commission for legal error, including the question of evidentiary insufficiency.

(Emphasis supplied). In that opinion, we had earlier, 79 Md.App. at 71-72 , 555 A.2d 542 , pointed out a series of limitations that ordinarily attend such an administrative appeal. Ordinarily, under the “judicial review” provisions of the Administrative Procedure Act, Maryland Code, State Government Article, § 10-215(g)(3)(v), the circuit court scrutinizes a decision of an administrative agency only for legal error. With respect to fact finding, the court may reverse or modify an agency’s decision only if the “finding, conclusion, or decision of the agency ... is unsupported by competent, material, and substantial evidence in light of the entire record as submitted.” 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. (Emphasis supplied). This type of appeal from the Commission to the circuit court is sometimes referred to, by the caselaw and the academic commentators alike, as an appeal “on the record of the Commission.” See Gilbert and Humphrey, op. cit. at 342.

It is certainly a true characterization. On such an appeal, no new evidence is taken nor is any fresh fact-finding engaged in. The determination of whether the decision of the Commission was free from error will entail only an examination of the record of the proceedings before the Commission. We nonetheless suggest that a cautionary red flag be raised whenevér the words “on the record” are used.

The phrase “on the record” can be a bit tricky because the very different appellate modality of de novo fact-finding, substantively the very antithesis of an appeal on the record, can in one of its evidentiary modalities also be said to be “on the record.” One ¹⁷¹ of the permissible ways in which a judge or a jury may engage in de novo fact-finding is to read or have read to them the evidentiary record before the Commission. The de novo fact finder, be it judge or jury and with or without supplemental argument, is then free to reach its own fact-finding conclusion on the basis of that record. In a purely evidentiary sense, such de 'novo fact-finding might, therefore, be said to be “on the record.” That is not what is meant, however, by the term of art “an appeal on the record.” “On the record,” in its formal sense as denoting a type of appeal, means a review of the proceedings before the Commission, as a matter of law. By contrast, “on the record,” in its lesser or evidentiary sense, refers simply to one, among many, of the sources of evidence for de novo fact-finding.

Despite the truism that subterranean connotations may shift without disturbing a single surface syllable, it is still unnerving to be told that a type of appeal that is quintessentially not on the record may be decided on nothing more than a review of the record. Nonetheless, that is true. Our point is simply that the phrase, like nitroglycerine, should be handled with extreme care. In any event, the appeal to the circuit court from the Commission in the case now before us was not of this variety.

Option # 2: An Administrative Appeal Plus The appellate option that was selected by the claimant in this case was what has historically been called an essential trial de novo. In language that is substantively unchanged since the prototype statute of 1914, § 9 — 745(d) provides: (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. (Emphasis supplied). Because it is the “essential trial de novo ” that is before us for examination in this case, it ¹⁷² behooves us to look closely at its various and sometimes perplexing procedural characteristics.

A. The Birth of the Term “Trial De Novo” In Workers’ Compensation Law It is worthy of note that what is now so venerable an institution as the trial de novo in Workers’ Compensation cases was never explicitly referred to in those terms by the statute that created it. Neither § 9-737, authorizing an appeal to the circuit court, nor § 9-745, laying out the ground rules for such an appeal, ever uses the term “de novo.” Credit for the characterization goes to Judge Hammond in Richardson v. Home Mutual Life Ins. Co., 235 Md. 252, 255 , 201 A.2d 340 (1964): Although the statute does not use the term, its directions would seem to contemplate a trial which essentially is de novo. (Emphasis supplied).

As we pointed out in General Motors v. Bark, 79 Md.App. at 74 , 555 A.2d 542 , however, both the practice and its label are now firmly established. With 75 years of extensive case law behind it, however, the plenary availability of trial de novo at the circuit court level is not to be doubted, even if its statutory pedigree is more implicit than explicit. B. A Stark Contrast in Modes of Review The most salient characteristic of the essential trial de novo, or “plus” option, is that it is diametrically different from the routine administrative appeal. General Motors v. Bark, 79 Md.App. at 73 , 555 A.2d 542 (“By way of dramatic contrast, an appeal to the circuit court from a decision of the Workers’ Compensation Commission is totally different. ... [B]y way of significant departure from the administrative agency norm, [§ 9-745(d)] ... goes on to provide a vastly broader recourse for the appellant in a Workers’ Compensation case.”) (Emphasis supplied); Thomas v. Thompson, 114 Md.App. at 364 , ¹⁷³ 689 A.2d 1301 (“The other and more unusual modality is that spelled out by § 9-745(d), which provides for what is essentially a trial de novo.”) (Emphasis supplied).

Whereas the standard administrative appeal probes only the question of legal error, the trial de novo is concerned only with findings of fact. Any language, therefore, about 1) the presumption of correctness of the Commission’s decision or 2) the burden of proofs being upon the party attacking the Commission’s decision is only pertinent when the issue on appeal to the circuit court is one of fact and not of law. Maurice J. Pressman, Workmen’s Compensation in Maryland (1970), points out at § 4-25(1), p. 114: The principle that the decision of the Commission is prima facie correct and the burden of proof is upon the party attacking it does not apply where the question involved is one of law, but only where the question is one of fact. (Emphasis supplied).

Judge Thompson was equally emphatic for this Court in Symons v. R.D. Grier & Sons, 10 Md.App. 498, 500 , 271 A.2d 398 (1970): Appellant argues on appeal that the decision of the Commission is prima facie correct and the burden of proof is upon the party attacking it. While the principle stated is true, it has no application where the question is one of law instead of fact. (Emphasis supplied). The entitlement to fresh, de novo fact-finding is plenary and is not, as we have discussed, dependent in any way on the notion that the Commission’s original fact-finding was in error.

At the de novo trial, the propriety of the Commission’s original fact-finding is a matter of no consequence. In this regard, we observed in General Motors v. Bark, 79 Md.App. at 76 , 555 A.2d 542 : The statutory direction to affirm an error-free Commission decision would not apply, however, to the alternative appeal mode of de novo trial. Indeed, once the circuit court ¹⁷⁴ embarks upon its de novo fact-finding mission, it is totally unconcerned with whether the Commission “correctly construed the law and facts” or not. (Emphasis supplied).

The opportunity for de novo fact-finding is both a broad form of relief and one that is by no means the norm. It was not carved into the granite of Mount Sinai that de novo fact-finding at the circuit court level is the inevitable or even the natural way of reviewing a decision of the Commission. Indeed, as Judge McWilliams pointed out for the Court of Appeals in Smith v. State Roads Commission, 240 Md. 525, 533 , 214 A.2d 792 (1965), only 16 states other than Maryland authorize such de novo fact-finding. See also Abell v. Goetze, Inc., 245 Md. 433, 437 , 226 A.2d 253 (1967).

We offer one bit of Workers’ Compensation Act history simply to illustrate this point. From 1914 through 1939, compensation was available only for accidents attributable to the claimant’s employment. Chapter 465 of the Acts of 1939 then added, for the first time, occupational disease to the list of compensable disabilities. Belschner v. Anchor Post Products, 227 Md. 89, 92-93 , 175 A.2d 419 (1961); Montgomery County Police Dep’t v. Jennings, 49 Md.App. 246, 251-52 , 431 A.2d 721 (1981).

From 1939 through June 1, 1983, however, the broad de novo review of fact-finding that was available in accident cases was not permitted in cases of occupational disease. In Montgomery Ward v. Bell, 46 Md.App. 37, 42-43 , 415 A.2d 636 (1980), Judge Wilner 6 outlined the austerely limited nature of the appeal to the circuit court in such a case. Where the case involves an occupational disease, the court looks only to whether the Commission misconstrued the applicable law. Included within that inquiry, however, is whether there was substantial (or legally sufficient) evi- ¹⁷⁵ deuce to support the Commission’s factual conclusions, that being, in essence, an issue of law rather than of fact. ... [T]he only ground of reversal on the facts, in such a case, is where there is a legal insufficiency of evidence to support the Commission’s factual conclusions.

This has to do with the quantum of evidence before the Commission, however, not with the Commission’s “construction” of that evidence. Conversely, it would seem clear that, in an accidental injury case, the scope of judicial review is broader than merely determining “an erroneous construction of the law or facts.” (Emphasis supplied). See also Maryland Bureau of Mines v. Powers, 258 Md. 379 , 265 A.2d 860 (1970); Big Savage Refractories Corp. v. Geary, 209 Md. 362, 369 , 121 A.2d 212 (1956); Armco Steel Corp. v. Trafton, 35 Md.App. 658, 661-62 , 371 A.2d 1128 (1977). As Judge Bell (now Chief Judge of the Court of Appeals) observed for this Court in Glidden-Durkee v. Mobay Chemical Corp., 61 Md.App. 583, 596-98 , 487 A.2d 1196 (1985), however, that difference in appellate approaches was eliminated by Chapter 521 of the Acts of 1982, effective June 1, 1983, and occupational disease cases now enjoy de novo review as fully as do accident cases.

With the abolition of the Medical Board and, particularly, the deletion of the limitations on review of occupational disease cases, the differentiation heretofore made between occupational disease cases and accidental injury cases no longer exists and cannot be justified,. 61 Md.App. at 597 , 487 A.2d 1196 (emphasis supplied). See also Turner v. Office of the Public Defender, 61 Md.App. 393, 398-401 , 486 A.2d 804 (1985). Our point is that this appellate mode of providing for broad de novo review of contested facts is by no means something to be routinely taken for granted. In this case, the claimant availed herself of the “administrative appeal plus” option of what was essentially a trial de novo before the Circuit Court for Montgomery County. ¹⁷⁶ C. Either Party May Request De Novo Fact-Finding Either party on the appeal to the circuit court may invoke the right to have a factual finding by the Commission determined de novo at the circuit court level.

Section 9-745(d) expressly provides that “the court shall, upon the motion of either party ..., submit to a jury any question of fact involved in such case.” (Emphasis supplied). Pressman, op. cit., points out at § 4-16, p. 168: If the Commission finds for a claimant on some issues, but disallows the claim, the employer and insurer are not precluded, on an appeal by the claimant, from raising the questions decided by the Commission in favor of the claimant, and it is not necessary for the employer and insurer to file a cross-appeal to do so. (Emphasis supplied). Pressman further observes, at § 4-22, p. 171: Even though a party does not appeal, he can raise issues contesting the findings and decision of the Commission in an appeal taken by the other party.

See Richardson v. Home Mutual Life Ins. Co., 235 Md. at 255 , 201 A.2d 340 . We cannot help but note in this regard the spectre of a problem which, to the best of our knowledge, has never yet materialized in the reported cases but nonetheless hovers in the ether. By an unspoken assumption, the party requesting de novo fact-finding has always had the choice of weapons — de novo fact-finding 1) by a jury or 2) by a judge sitting as a jury.

The requesting party has also always had a free hand in deciding whether the de novo fact-finding (by judge or jury) shall be 1) on the basis of the record before the Commission alone (by reading it or having it read to them); 2) by live witnesses and fresh evidence alone; or 3) by a combination of the two. That is fine, so far as it goes; but what if both parties ¹⁷⁷ request de novo fact-finding 7 — on different issues or on the same issue? No problem so far, but what if one requests a de novo trial by a jury and the other requests a de novo trial by the judge without a jury? What if one requests de :novo review on the basis of the record before the Commission and the other requests live witnesses, including additional witnesses?

Mercifully, no such issue is before us in this case, and we can offer only our considered opinion that, when it arises, it will be an interesting question. 8 In this case, it was the claimant alone who invoked de 'novo fact-finding and the claimant alone, therefore, who had the choice of procedural weapons. D. A Threshold Requirement for De Novo Review Before de novo fact-finding may be engaged in at the circuit court level, however, there is a threshold requirement that must be satisfied. Any factual question that is to be the subject of de novo relitigation must first have been a factual issue that was actually decided by the Commission. In Cabell Concrete Block Co. v. Yarborough, 192 Md. 360, 369 , 64 A.2d 292 (1949), the Court of Appeals was very emphatic in this regard.

As the Commission is the original fact-finding body, an issue of fact must originate with the Commission, and ¹⁷⁸ cannot be raised for the first time before the Court on appeal, for in such a case the Court is authorized only to modify or reverse the decision of the Commission upon a finding that it has erred in construing the law or the facts. Bethlehem Steel Co. v. Mayo, 168 Md. 410, 416 , 177 A. 910 . However, the rule that no issue of fact can be submitted on appeal where the record does not show that the question involved was before the Commission does not mean that a formal issue, specifically directed to the question, must be presented first to the Commission, but means merely that there must have been at least evidence before the Commission which would give it the opportunity to pass upon the question. (Emphasis supplied).

See also Richardson v. Home Mutual, 235 Md. at 255 , 201 A.2d 340 ; Jackson v. Bethlehem-Sparrows Point Shipyard, Inc., 189 Md. 583, 589 , 56 A.2d 702 (1948); Benoni v. Bethlehem-Fairfield Shipyard, Inc., 188 Md. 306, 309 , 52 A.2d 613 (1947); Oxford Cabinet Co. v. Parks, 179 Md. 680, 683 , 22 A.2d 481 (1941); Hathcock v. Loftin, 179 Md. 676, 678 , 22 A.2d 479 (1941); Altman v. Safeway Stores, Inc., 52 Md.App. 564, 566-67 , 451 A.2d 156 (1982), aff'd, 296 Md. 486 , 463 A.2d 829 (1983); Trojan Boat Co. v. Bolton, 11 Md.App. 665, 670 , 276 A.2d 413 (1971). General Motors v. Bark, 79 Md.App. at 74 , 555 A.2d 542 , also spoke to this gatehouse requirement. There is ... provided ... the prerogative of a trial de novo at the circuit court level of any or all of the factual issues initially determined by the Commission. (Emphasis supplied).

Pressman, op. cit., at § 4-22, pp. 170-71, also points out: On an appeal from the Commission, the trial is de novo, but only on the questions of fact submitted to the Commission by way of some evidence or by a formal issue. (Emphasis in original). In this case, that threshold requirement was satisfied in that the factual issue for de novo determination — “Did the claimant suffer an accidental injury in the course of and arising out of ¹⁷⁹ her employment?” — was the precise factual issue that had been decided by the Commission. E. Both Judges and Juries May Be De Novo Fact Finders Although § 9-745(d) speaks only of submitting “to a jury any question of fact involved in the case,” it is now well settled that factual issues may just as readily be submitted to a judge, sitting without a jury.

Coastwise Shipbuilding Co. v. Tolson, 132 Md. 203 , 103 A. 478 (1918), was decided just four years after the first enactment of what is now our Workers’ Compensation Law. An employee filed a claim with the State Industrial Accident Commission for an accidental injury, and the Commission made an award to the employee. The employer appealed to the circuit court. Notwithstanding the fact that the statute authorizing the appeal to the circuit court spoke only of submitting “to a jury any question of fact involved in the case,” the factual dispute in Coastunse was submitted to “the Court sitting as a jury.” 132 Md. at 205 , 103 A. 478 .

The fact-finding judge affirmed the Commission, and the Court of Appeals, in turn, affirmed. It analogized the case to Jewel Tea Company v. Weber, 132 Md. 178 , 103 A. 476 (1918), recognizing a de novo jury’s entitlement to decide a disputed fact and held that a de novo fact-finding judge, sitting as a jury, enjoyed exactly the same prerogative. The fact that we were there [in Jewel Tea] dealing with a case which was tried with the aid of a jury, and in the case at bar was tried without the aid of a jury, causes no difference in the principles above announced. It has long been established that, in trying a case before the Court, sitting as a Court and jury, the same rule of law is applicable to the prayers, upon the question of their rejection, as would be if the case were being tried before a jury. 132 Md. at 208, 103 A. 478 (emphasis supplied).

Chief Judge Bruñe again placed the imprimatur of the Court of Appeals on having a judge as the de novo fact finder in L. & S. Construction Co. v. State Accident Fund, 221 Md. 51, 60 , 155 A.2d 653 (1959), overturned on other grounds by ¹⁸⁰ Whitehead v. Safway Steel Products, Inc., 304 Md. 67 , 497 A.2d 803 (1985). In L. & S. Construction, the Commission had made an award to the claimant and the employer appealed. The appeal, on the disputed question of fact as to which of two parties was the actual employer, was heard by the circuit court judge “sitting without a jury.” 221 Md. at 54 , 155 A.2d 653 . The Court of Appeals agreed that there was a genuine dispute to be resolved by the fact-finding judge.

Though there is no dispute as to the basic facts here, there is a dispute as to the ultimate and decisive inferences to be drawn therefrom. 221 Md. at 60 , 155 A.2d 653 . Judge Bruñe put the general seal of approval on the judge, sitting without a jury, as the de novo fact finder. The instant case was tried before the court without a jury, but disputed questions of fact which would have been for the determination of the jury are to be determined by the judge as questions of fact, not as questions of law. 221 Md. at 60 , 155 A.2d 653 (emphasis supplied). The de novo judge’s fact-finding was supported by the evidence and was, therefore, affirmed.

Judge Marbury was the trier of the facts in this case. We think that the undisputed facts and the inferences reasonably to be drawn therefrom were sufficient to support his finding that L & S was the sole employer of Addison under the rules of law above stated. 221 Md. at 61 , 155 A.2d 653 (emphasis supplied). In Abell v. Albert F. Goetze, Inc., 245 Md. 433 , 226 A.2d 253 (1967), the Commission had initially made an award to the claimant. On a disputed question of fact, the employer took a de novo appeal to the circuit court judge sitting without a jury.

On the evidence before him, the judge reversed the decision of the Commission. The lower court, sitting mthout a jury, found as a fact that appellant “did not receive an injury on the 4th of February in the course of his employment, * * The judge in the court below relied on the testimony of nurse McBride, the stipulation as to Dr. McElwain’s testimony ¹⁸¹ had he been called as a witness, and the fact that on February 29, 1964, appellant filed a written claim with the Commission concerning the previous hand injury without making claim for the alleged knee injury of February 4, 1964. 245 Md. at 436 , 226 A.2d 253 (emphasis supplied). The Court of Appeals fully approved the role of the judge as a fact finder. In the instant case the court below, as the trier of facts, had the opportunity to hear the testimony of the witnesses and observe their demeanor.

That great weight was given to the credibility of the witnesses was obvious from the language employed in the oral opinion of the court. 245 Md. at 438 , 226 A.2d 253 (emphasis supplied). In the last analysis, that judicial fact-finding was not clearly erroneous and was, therefore, affirmed. We certainly cannot say Judge Powers’ finding, that the appellant did not receive an injury on the 4th of February in the course of his employment, was clearly in error and we so hold 245 Md. at 439 , 226 A.2d 253 (emphasis supplied). This Court has regularly recognized the role of the trial judge, sitting without a jury, as a de novo fact finder.

Dent v. Cahill, 18 Md.App. 117, 125 , 305 A.2d 233 (1973) (“Not only may trial courts, on appeal from decisions of the Commission, decide whether the Commission misconstrued the facts, but they may also decide how the facts should have been construed.”); Turner v. Office of the Public Defender, 61 Md.App. 393, 405 , 486 A.2d 804 (1985) (“To reverse a judgment of a court in a non-jury trial we must be convinced that the judge’s factual findings were clearly erroneous.”). In Egypt Farms v. Lepley, 49 Md.App. 171, 176 , 430 A.2d 122 (1981), Judge Wilner, for this Court, analyzed the broad fact-finding prerogative enjoyed by a judge, as well as by a jury, on de novo review of a decision by the Commission. [T]he reviewing court has very broad authority, notwithstanding the prima facie correctness of the administrative decision. This review, said the Court in Maryland Bureau of Mines v. Powers, 258 Md. 379, 382 , 265 A.2d 860 (1970), ¹⁸² “extends both to findings of fact and applicable law” and “provides for a trial which is essentially de novo. ” The court (or jury), in other words, is not so bound by the Commission’s fact findings as is normally the case in administrative appeals, but is free to weigh the evidence (and the inferences from it) and reach entirely opposite conclusions. (Emphasis supplied).

To this unbroken line of authority, General Motors v. Bark, 79 Md.App. at 78 , 555 A.2d 542 , simply added, “Amen.” Upon such trial de novo, it is now well settled that factual issues may be submitted to a judge, sitting without a jury, as readily as to a jury. This is so notwithstanding the fact that Section 56 itself speaks only of “submitting] to a jury any question of fact involved in such case. ” (Emphasis supplied). The academic authorities are in solid accord. Gilbert and Humphreys, op. cit., observes, at § 17.4, p. 342.

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 evidentially hearing before the court sitting with or without a jury. (Emphasis supplied). At § 17.4-2, p. 343, the same authority further notes: What we have said pertaining to trial on appeal on the basis of the record before the Commission is largely true if there is a full jury or nonjury trial on appeal. The only difference is that the case is tried de novo before the judge, if it be heard nonjury, or before the judge and jury in the event a jury trial is requested.

The jury or the judge, as the case may be, is free to interpret the facts as if the Commission had not previously determined them. (Emphasis supplied). Pressman, op. cit., at § 4-9(7), pp. 156-57, implicitly recognized the trial de novo before the court alone, as it contrasted ¹⁸³ certain practices there applicable from practices that apply when the de novo fact finder is a jury. It is not essential to frame issues of fact if a jury trial is waived and the case is tried before the Court sitting as a jury.

Townsend v. Bethlehem-Fairfield Shipyard, 186 Md. 406 , 47 A.2d 365 (1946); Liberty Mut. Ins. Co. v. United States Fid. & Guar. Co., 164 Md. 117 , 164 A. 179 (1933); L. & S. Constr.

Co. v. State Accident Fund, 221 Md. 51 , 155 A.2d 653 (1959). A motion for a directed verdict is not proper in a non-jury appeal under Rule 535, Smith v. State Roads Comm’n, 240 Md. 525 , 214 A.2d 792 (1965). However dubious the rationale behind the judge, sitting without a jury, as an alternative modality for de novo fact-finding, it is now late in the day to doubt the acceptance of a procedure that, albeit perhaps never squarely challenged, has been regularly employed and regularly approved since Coastwise Shipbuilding v. Tolson in 1918. In this case, the claimant selected as the de novo fact finder Judge Rowan, sitting without a jury, and the procedure was not challenged.

F. The Multiple Sources for De Novo Fact-Finding In Abell v. Goetze, Inc., 245 Md. at 436-37 , 226 A.2d 253 , Judge Finan made it clear that there is wide latitude in selecting the evidence to be placed before the de novo fact finder. The burden is upon the appellant to overcome the presumption that the decision of the Commission is prima facie correct, and he must do this to the satisfaction of the trier of the facts. This can be done by submitting new evidence, by relying on all or a part of the record before the Commission, by argument as to the probative value of the evidence and by argument as to the credibility of mtnesses. All of those matters are legitimate elements of a trial do novo ¹⁸⁴ which counsel may exercise to the fullest legitimate means to overcome the existing presumption.

(Emphasis supplied). Pressman, op. cit., § 4-28(2) at p. 172, also refers to this variety of evidentiary sources. A party may read to the jury the testimony of any or all witnesses who testified before the Commission, or have them testify in person, or read the testimony of some witnesses and have others appear in person, or rely entirely on the Record. (Emphasis supplied).

In General Motors v. Bark, 79 Md.App. at 81 , 555 A.2d 542 , we also noted the variety of predicates for de novo fact-finding. Relying upon the Commission record alone, relying upon that record as supplemented by live testimony, or relying entirely upon new evidence are all equally legitimate ways of proceeding upon appeal at the circuit court level. (Emphasis supplied). See also Applied Industrial Technologies v. Ludemann, 148 Md.App. at 282 , 811 A.2d 845 (“At trial, the parties may rely on the same or different evidence than was presented to the Commission.”); Keystone Masonry Corp. v. Hernandez, 156 Md.App. 496, 505 , 847 A.2d 493 (2004). 1.

Looking at the Prior Record Alone The party requesting de novo fact-finding at the circuit court may choose to rely exclusively on the testimonial record before the Commission. The presumption that the Commission’s decision was correct will not preclude a party from persuading the de novo fact finder to reach a completely opposite conclusion even on identically the same record. In Williams Construction Co. v. Bohlen, 189 Md. 576, 580 , 56 A.2d 694 (1948), Judge Delaplaine dealt squarely with this issue. It was urged here that the evidence in the trial court was substantially the same as the evidence before the Commission, and that claimant failed to meet the burden cast upon ¹⁸⁵ him by law to prove that the decision of the Commission was incorrect.

The Maryland Workmen’s Compensation Act provides that in all Court proceedings under or pursuant to this Act, the decision of the Commission shall be prima facie correct and the burden of proof shall be upon the party attacking the same. We hold, however, that where the Commission has considered conflicting evidence of essential facts, and has drawn one of two different permissible inferences, there may be imposed upon the patty attacking the decision of the Commission merely a burden of persuasion, and not necessarily a burden of additional proof. He may rely upon identically the same evidence that was presented before the Commission. The provision of the Act placing the burden of proof upon the appellant means only that he must prove in the trial Court what he asserts.

(Emphasis supplied). See Greenwalt v. Brauns Building Specialties Corp., 203 Md. 313, 317 , 100 A.2d 804 (1953) (“At the trial of the case in the Baltimore City Court, the testimony taken before the Commission was read from the record to the jury.”). See also Fenwick Motor Co. v. Fenwick, 258 Md. 134, 140-41 , 265 A.2d 256 (1970); Blake Construction Co. v. Wells, 245 Md. 282, 287 , 225 A.2d 857 (1967); Sica v. Retail Credit Co., 245 Md. 606, 612 , 227 A.2d 33 (1967); Savage Manufacturing Co. v. Magne, 154 Md. 46, 50-53 , 139 A. 570 (1927); Kelly v. Baltimore County, 161 Md.App. 128 , 867 A.2d 355 , 2005 WL 195549 (2005). Indeed, Stewart v. Howell, 136 Md. 423, 433-34 , 110 A. 899 (1920), pointed out that so long as the moving party, with legally sufficient evidence, carries the burden of persuading the de novo fact finder, he may do so with even less evidence than that which had failed to persuade the Commission.

As we understand, Section 56 of the Workmen’s Compensation Law (Code, Art. 101, Sec.56), it does not mean that there must be additional testimony offered on appeal from the Commission; or that even as much testimony need be offered by the pmiy taking the appeal as he produced before ¹⁸⁶ the Commission in order to discharge the burden put upon him by that section. (Emphasis supplied). Given a genuine factual dispute that could legitimately be resolved by different fact finders in different ways, the de novo fact finder could well be persuaded by evidence that had failed utterly to persuade the Commission. Where different inferences might be drawn from precisely the same evidence, the de novo fact finder could legitimately draw one and the de novo fact finder, another.

City of Salisbury v. Parks, 57 Md.App. 295, 298 , 469 A.2d 1275 (1984); City of Salisbury v. McCoy, 47 Md.App. 488, 497 , 424 A.2d 164 (1981). This was precisely the situation before this Court in General Motors v. Bark, 79 Md.App. at 81 , 555 A.2d 542 : In attacking the decision of the Commission and in seeking to overcome its prima facie correctness, General Motors relied primarily on the record made before the Commission. It called one live witness, the claimant himself, whose testimony largely tracked his testimony before the Commission. Even in looking at essentially indistinguishable testimony, however, the Commission, as was its prerogative, gave great credit to the claimant’s testimony, whereas Judge Hammerman, as was his prerogative, gave it little or no credit.

(Emphasis supplied). 2. The Prior Record Through the Lens of Fresh Argument Even where the trial de 'novo proceeds exclusively on the record before the Commission, counsel may argue the evidence afresh and may succeed in being persuasive before the circuit court even if he or she had failed in that regard before the Commission. The very opposite, of course, may also occur. Indeed, between 1931 and 1935 the de novo review of the decision of the Commission was narrowly limited to examining the transcript of the hearing before the Commission and no ¹⁸⁷ additional testimony was allowed.

Although prior to 1981 the de novo review had been as broad as it is today, Chapter 406 of the Acts of 1931 strictly limited the review to an examination of the transcript of proceedings before the Commission. Thomas v. Pennsylvania R.R., 162 Md. 509 , 160 A. 793 (1932); Waddell George’s Creek Coal Co. v. Chisholm, 163 Md. 49, 51-53 , 161 A. 276 (1932); Moller Motor Car Co. v. Unger, 166 Md. 198, 204-05 , 170 A. 777 (1934). Chapter 545 of the Acts of 1935, however, repealed that limitation on the production of de novo evidence. Baltimore City Council v. Perticone, 171 Md. 268, 273 , 188 A. 797 (1937), explained: [Cjhapter 545 of the Acts of 1935, amending and reenacting section 56 of article 101, no longer required the court on appeal to confine its consideration of the case to the record made before the commission, and in this respect restored article 56 to the status it occupied, prior to its amendment by chapter 406 of the Acts of 1931.

The effect of this legislation was to restore to litigants the right on appeal to have some witnesses give oral testimony and introduce the testimony of others by reading from the transcript made before the commission, which right they enjoyed prior to the 1931 amendment. (Emphasis supplied). And see Pressman, op. cit., § 4-23(3), p. 173. 3. Live Witnesses, Old and New There is now no requirement that the de novo fact finder consider the record before the Commission.

That record is simply one possible evidentiary source, among many, as Harvey v. Roche and Son, 148 Md. 363, 366 , 129 A. 359 (1925), made starkly clear. In section 56 of the act, concerning proceedings on appeal, there is no requirement that the transcript of testimony taken before the commission shall be read to the jury; there is no mention of that testimony. The act evidently contemplates that the case may be presented to the court, without a jury, upon the proceedings and testimony taken before the commission. But nothing in it requires that the record of ¹⁸⁸ those proceedings and that testimony be submitted to the jury when a jury trial is had on the facts.

The jury trial provided for would seem to be, not a review of the decision of the commission, but an original trial on the questions of fact submitted, in which the evidence is to be presented as in any other jury trial. (Emphasis supplied). There may be offered before the de novo fact finder not only the live witnesses who had testified before the Commission, but additional, or simply other, witnesses who had not. Frazier v. Leas, 127 Md. 572, 576 , 96 A. 764 (1916), was emphatic on this point.

Trial by jury implies the right of either party to the cause to call mtnesses to support his case. The granting to one a right of trial by jury, and then to deny him the right to introduce witnesses in support of his case would be like the play of “Hamlet” with Hamlet left out. We have never heard of a ease in which this right was denied, and we do not suppose the Legislature intended to introduce such a novel procedure. (Emphasis supplied).

Meyler v. Baltimore City Council, 179 Md. 211, 219 , 17 A.2d 762 (1941), spoke to the same effect. The testimony at a trial on an appeal from the State Industrial Accident Commission is not confined to the testimony taken before the commission, but each side has the right to call its witnesses to support its case. (Emphasis supplied). And see Miller v. James McGraw Co., 184 Md. 529, 542-43 , 42 A.2d 237 (1945); City of Salisbury v. Parks, 57 Md.App. at 298 , 469 A.2d 1275 .

In this case, four witnesses testified before Judge Rowan, whereas only two had testified before the Commission. G. Why the Qualifier “Essentially”? When Judge Hammond, in 1964, first described the procedure of “submit[ting] to a jury any question of fact involved in the case” in terms of a trial de novo, he, quite rightly, qualified the description, stating that “the statute ... would seem to ¹⁸⁹ contemplate a trial which essentially is de novo.” Richardson v. Home Mutual, 235 Md. at 255 , 201 A.2d 340 . Without further elaboration, however, that characterization remained a trifle cryptic.

Cryptic or not, the phrase had legs and was religiously intoned, as what amounted to a standing epithet, over the decades that followed. Smith v. State Roads Commission, 240 Md. 525, 533 , 214 A.2d 792 (1965); Abell v. Goetze, Inc., 245 Md. 433, 437 , 226 A.2d 253 (1967); Maryland Bureau of Mines v. Powers, 258 Md. 379, 382 , 265 A.2d 860 (1970); Holman v. Kelly Catering, 334 Md. 480, 484 , 639 A.2d 701 (1994); Chadderton v. M.A. Bongivonni, Inc., 101 Md.App. 472, 478 , 647 A.2d 137 (1994); American Airlines v. Stokes, 120 Md.App. 350, 353 , 707 A.2d 412 (1998). In General Motors v. Bark in 1989, we finally asked what seems as if it should have been an obvious question all along. The inquiring mind will immediately demand to know the significance of the qualifier “essentially.” What is the difference between an essential trial de novo and a true trial de novo? 79 Md.App. at 79 , 555 A.2d 542 .

A true trial de novo, of course, would.put all parties back at “square one,” to begin again before the circuit court just as if the adjudication appealed from had never occurred. In what is “essentially a trial de novo,” by contrast, that is by no means the case. The past is not erased, but may serve as prologue to the upcoming result in no less than four respects. The decision of the Commission, far from being relegated to the archives, 1) may be offered as substantive evidence before the de novo fact finder; 2) may be the subject of a jury instruction at the de novo trial; 3) may, if necessary, satisfy the burden of initial production at the due, novo trial; and 4) will sometimes shift the allocation of the burdens of proof (both production and persuasion) at the de novo trial.

The reason for these differences between an essential trial de novo and a true trial de novo is to be found in the provisions of § 9-745(b): (b) Presumption and burden of proof. — In each court proceeding under this title: ¹⁹⁰ (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. H. The Limited Function of the De Novo Jury Another characteristic of the essential trial de novo that distinguishes it from a true trial de novo is the nature of the questions submitted to a de novo jury. Just six years after the statutory prototype of the Workers’ Compensation Act first went into effect, Schiller v. Baltimore & Ohio Railroad Co., 137 Md. 235, 242 , 112 A. 272 (1920), framed the issue. [WJe are still left in doubt as to whether the right given to have “any question of fact” submitted to a jury, means simply the right to the ordinary jury trial, or whether it means the right to have special issues submitted. (Emphasis supplied).

The Court of Appeals in Schiller concluded that the de novo jury does not, as might an ordinary jury, render an ultimate verdict but only makes specific findings of fact on specific issues that are carefully framed and submitted to it. It seems clear ... that it is not within the powers of the jury on such an appeal to find a verdict for any amount or to fix the rate or period of compensation or to make any award. It may however find the facts upon which the court determines whether the finding of the commission shall be confirmed, reversed, or modified.... The provision as to the right of either party to have any question of fact submitted to a jury, following the language above quoted, would seem to be intended to protect the constitutional right to a jury trial of the facts involved, but in such a way as to enable the court to apply the law to the facts after they are found by the jury.

Id. The Court of Appeals analogized the practice to the prevailing practice when cases are sent to the circuit court from the Orphans’ Court. ¹⁹¹ For the practical working of such a scheme there does not seem to be any method so appropriate as the submission of issues in a manner analogous to the practice in cases sent from the Orphans’ Court or from courts of equity, where it is desired that a jury shall pass on the facts. 137 Md. at 243, 112 A. 272 (emphasis supplied). See Morris v. Christopher, 255 Md. 372 , 258 A.2d 172 (1969); Arundel Corp. v. Plater, 236 Md. 322 , 203 A.2d 895 (1964); Miller v. James McGraw Co., 184 Md. 529 , 42 A.2d 237 (1945); Bethlehem Shipbuilding Corp. v. Simmons, 143 Md. 506 , 122 A. 678 (1923). The Schiller opinion finally cautioned that the issues submitted should be “ultimate issues” and not issues with respect to “every subordinate fact.” It does not follow that the trial court is bound to submit as an issue every subordinate fact.

That would only cause confusion. The facts submitted as issues should, as far as practicable, be confined to the ultimate issues involved in the finding of the Commission from which the appeal is taken, such as disability, dependency, whether the injury arose out of and in the course of employment, and the like, according to the ultimate fact or facts to be determined. 137 Md. at 244, 112 A. 272 (emphasis supplied). On the other hand, a judge, sitting de novo without a jury, is not confined within the fact-finding format of formal and specific issues. Townsend v. Bethlehem-Fairfield Shipyard, Inc., 186 Md. 406 , 47 A.2d 365 (1946); Liberty Mutual Insurance Co. v. United States Fidelity & Guarantee Co., 164 Md. 117 , 164 A. 179 (1933).

Because the essential de novo trial in the present case was not before a jury but before Judge Rowan alone, it is unnecessary to explore further this differentiating characteristic. I. The Evidentiary Consequences of the Presumption of Correctness The fact that the decision of the Commission on an issue of fact is presumed to have been correct is relevant ¹⁹² evidence at the trial de novo as proof of the very proposition that was so decided by the Commission. In Kelly Catering v. Holman, 96 Md.App. 256, 271 , 624 A.2d 1300 (1993), Judge Alpert reasoned for this Court: It is pellucid that the [Commission’s] resolution of that very issue is both material (because it is of legal consequence to the determination of the issue) and relevant (because it tends to make the existence of a material fact, i. e., Holman’s status as an independent contractor, more probable than it would be -without the evidence; it is, of course, beyond dispute — and therefore rarely stated — that the [Commission] possesses considerable expertise in interpreting and applying the Workers’ Compensation statutes, and accordingly the [Commission’s] finding of a particular fact makes the existence of that fact more probable than had the [Commission] not so found said fact). (Emphasis supplied).

In affirming that aspect of Judge Alpert’s decision, Judge Chasanow further reasoned for the Court of Appeals in Holman v. Kelly Catering, 334 Md. at 486-87 , 639 A.2d 701 : In order to effectuate the legislature’s mandate that the Commission’s “decision ... is presumed to be prima facie correct,” the jury should know what decision is presumed correct and who made that decision. See Kelly Catering, 96 Md.App. at 272 , 624 A.2d at 1308 (“[I]t seems clear enough from the language of § 9-745, inter alia, that the legislature wanted the finder of fact to be aware that the presumption [that Holman is an independent contractor] resulted from the Commission’s decision.”) Alexander v. Montgomery County (writing for the intermediate appellate court, Judge Robert M. Bell reasoned that, “because [the Commission’s decision] is presumed correct, that decision had to be presented to the jury”). In addition, if the jurors are told that the decision is prima facie correct, they obviously will consider it in weighing whether the party challenging the Commission’s decision has met its burden of proof by a preponderance of the evidence. ¹⁹³ (Emphasis supplied). See Alexander v. Montgomery County, 87 Md.App. 275, 286-87 , 589 A.2d 563 (1991).

On the closely related subject of instructing the de novo jury as to the significance of such a presumptively correct decision by the Commission, Judge Alpert further stated: [A] judge has the duty to instruct a jury as to the proceedings of the Commission below, and, of the presumption of correctness accorded to the Commission’s decision. On the other hand, we also hold that the right to a trial de novo is, by our decision today, absolutely preserved. In implementing these two holdings, trial judges, in instructing juries, must carefully avoid suggesting that the Commission’s decision is binding upon the finder of fact. It is not.

The Commission’s decision is merely evidence of a particular fact (or facts) which, as with all evidence, the jury is free to disregard if it finds it to be incredible. 96 Md.App. at 275 , 624 A.2d 1300 (emphasis supplied). The opinion squarely placed its imprimatur on Maryland Civil Pattern Jury Instruction 30:3, which states in pertinent part: This case has been heard and decided by the [Workers’] Compensation Commission. The [employee is] appealing the decision of the Commission. The Commission determined that [Holman is an independent contractor].

This decision is presumed, to be correct. The [employee has] the burden of proving by a preponderance of the evidence that the decision is wrong. In meeting this burden the [employee] may rely on the same, less or more evidence than was presented to the Commission. 96 Md.App. at 274 , 624 A.2d 1300 (emphasis supplied). On that consequence of the presumption of correctness, the Court of Appeals also affirmed, citing a long history of cases approving such a jury instruction and concluding, 334 Md. at 493 , 639 A.2d 701 : Maryland case law demonstrates that the commonly accepted understanding of § 9 — 745(b) is that jury instructions shcmld refer to the fact that the Commission rendered a, ¹⁹⁴ prior decision, and that such a decision is prima facie correct.

(Emphasis supplied). See Coastmse Shipbuilding Co. v. Tolson, 132 Md. 203, 206 , 103 A. 478 (1918); Larkin v. Smith, 183 Md. 274, 278 , 37 A.2d 340 (1944). As to these two evidentiary consequences that distinguish an essential trial de novo from a true trial de novo, this Court observed in Thomas v. Thompson, 114 Md.App. at 366 , 689 A.2d 1301 : [ 0]ne 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.

It is an evidentiary fact that may well tip the scales of persuasion. (Emphasis supplied). As we summed up the evidentiary consequences in American Airlines v. Stokes, 120 Md.App. at 360 , 707 A.2d 412 : On appeal to the circuit court, the prior decision of the Workers’ Compensation Commission is treated as being presumptively correct. One of the procedural incidents of such a presumption is that the fact finder at the circuit court level will be informed of the earlier decision and of its presumptive correctness and will be entitled to give it evidentiary significance.

(Emphasis supplied). See also Applied Industrial Technologies v. Ludemann, 148 Md.App. at 283 , 811 A.2d 845 ; Kelly v. Baltimore County, 161 Md.App. at 138 , 867 A.2d 355 . In this case, there was no problem with respect to jury instructions because there was no jury involved. As evidence, the decision of the Commission and its presumptive correctness were indisputably before Judge Rowan and were expressly acknowledged by him.

While the Court acknowledges that the Maryland Worker’s Compensation Commission found in favor of the Employer, ¹⁹⁵ that finding is a rebuttable presumption. The Court finds that the Claimant has carried the burden of proof by a preponderance of the evidence that the decision by the Maryland Worker’s Compensation Commission was error. (Emphasis supplied). J. The Procedural Consequences of the Presumption of Correctness Just as § 9--745(b)’s presumption that “the decision of the Commission is presumed to be prima facie correct” produces two closely related evidentiary consequences, it also produces two closely related procedural consequences.

As the case moves from the Commission to the circuit court, there may be, although there need not necessarily be, a shift in the allocation of the burdens of proof (both production and persuasion). The claimant, of course, was the original moving party. It was the claimant’s initial burden 1) to produce a legally sufficient case to permit the Commission, as a matter of law, to find in his favor and 2) to persuade the Commission, as a matter of fact, to do so. If it is the claimant who loses before the Commission and who seeks a trial de novo at the circuit court, his burdens before the circuit court remain unchanged from his earlier burdens before the Commission.

He must again produce a legally sufficient case, as a matter of law, even to permit the case to go to the de novo fact finder, lest he suffer a summary judgment or directed verdict against him. American Airlines v. Stokes, 120 Md.App. at 353 , 707 A.2d 412 ; Kelly v. Baltimore County, 161 Md.App. at 135 , 867 A.2d 355 . He must then, as a matter of fact, persuade the de novo fact finder to find in his favor. On the way from the Commission to the circuit court,