Chadderton v. M.A. Bongivonni, Inc.

ALPERT, Judge. We are called upon to decide whether medical reports, per se, are admissible in a Worker’s Compensation appeal at a de novo trial in the circuit court. Appellant, Gerald L. Chadderton, Jr., appeals from a judgment entered after a jury trial in the Circuit Court for Harford County, on appellant’s workers’ compensation claim appeal, against appellee, M.A. Bongiovanni, Inc., et al. 1 The jury found that he suffered an 85 percent ⁴⁷⁵ permanent industrial disability with 55 percent due to a work-related accidental injury on November 7, 1985, 25 percent due to a pre-existing disability, and 5 percent due to an unrelated disability. On appeal, appellant asks us: I. Whether the trial court committed reversible error when it admitted into evidence medical evaluations over the objection of counsel and without requiring compliance with the Maryland Rules of Evidence?

II

Whether the trial court erred in allowing the Subsequent Injury Fund to call a witness to testify, and to introduce evidence, not disclosed in discovery which had been propounded by a co-party?

III

Whether the trial court abused its discretion in qualifying Jada Marie Beach as an expert witness and in allowing her to so testify? We answer the first question in the affirmative and, therefore, reverse. Facts and Proceedings On November 7, 1985, appellant was driving stakes into the ground with a sledgehammer when the top of the stake splintered and appellant hit his left foot with the sledgehammer. Appellant subsequently lost his balance and fell on his hip, injuring his back.

On April 28, 1992, the Workers’ Compensation Commission (“Commission”) found that appellant was permanently totally disabled, with 50 percent of the disability due to the accidental injury on November 7, 1985, 40 percent due to pre-existing conditions, 2 and 10 percent due to a subsequent disability that was unrelated to the compensable injury. As a result of this decision, appellant received temporary total disability benefits for the period from November 11, 1985, through February 7, 1991. Because, inter alia, he was ⁴⁷⁶ not awarded permanent total disability benefits, on May 15, 1992, appellant filed an appeal in the Circuit Court for Harford County and requested a jury trial. See Labor & EmpLArticle, Md.Ann.Code § 9—745(d) (1991).

The Subsequent Injury Fund filed a cross-appeal. On October 5, 1993, appellant took the deposition of Dr. Jeffrey D. Gaber, M.D. This deposition and two reports allegedly referred to therein are at the crux of this appeal. During the deposition, Dr. Gaber, on his own volition, commented upon the rating prepared by Dr. Laurence Desi, Sr., M.D. (hereinafter the Desi report). 3 This six page “Disability Evaluation and Rating” dated November 27, 1990, was prepared by Dr. Desi and included the following sections: “History of Injury,” “Subjective Complaints,” “Medical History,” “Personal and Social History,” “Employment,” “Examination,” “Discussion,” “Assessment,” and “Summary.” The report noted that, “[bjased upon [appellant’s] history of pre-existing disc derangement with residual symptoms, [the Doctor] estimate[d] a 15% impairment pre-existing the ... injury; and a 36% impairment due to the 1985 injury” and summarized the Doctor’s findings as follows: [[Image here]] The report concluded by noting that appellant “has a total overall impairment to the whole person of 58%.” During ⁴⁷⁷ cross-examination, counsel for appellee asked Dr. Gaber to comment on a medical evaluation by Dr. Mark S. Rosenthal dated February 23, 1990 (hereinafter the Rosenthal report).

This report was in the form of a letter addressed to Ms. Judith Robinson of the Liberty Mutual Insurance Company. In pertinent part, the letter states Mr. Chadderton has a 40% permanent partial disability due to the injury and subsequent surgery on his lumbosacral spine. He also has a 7% permanent partial disability to the right upper extremity because of his brachial plexus palsy. Appellant’s counsel objected on the grounds of hearsay to the line of questioning and moved that the testimony be stricken.

A de novo jury trial was held on October 25 and 26, 1993, during which the deposition was introduced into evidence by appellant. During the trial, appellant raised the issue of his earlier objection to the line of questioning of Dr. Gaber and the two reports. The court overruled the objection in the record. At the opening of the defense’s case, SIF moved to have the Desi report admitted into evidence.

Appellee’s counsel then moved to have the Rosenthal report admitted into evidence. Over strenuous objection by appellant, the trial court ruled that the two reports were admissible into evidence. Additionally, during the trial, an expert witness, Jada Marie Beach, testified with regard to her evaluation of appellant’s work capacity. This appeal from the jury verdict and judgment followed.

I. Appellant contends that the circuit court erred in admitting the Desi and Rosenthal reports because they are inadmissible hearsay. Appellee asserts that this argument is not preserved for our review as appellant “waived any objection to the reports when he failed to challenge portions of the deposition as provided for by the Maryland Rules of Proce ⁴⁷⁸ dure.” 4 In the alternative, appellee also asserts that because Dr. Gaber referred to the two reports in his testimony, the reports are part of the record before the Commission and part of the record submitted to the circuit court. An appeal from the Workers’ Compensation Commission is essentially a de novo trial that may proceed before a judge or a jury. See Labor & Empl.Article, Md.Code Ann. § 9-745 (1991); see also General Motors Corp. v. Bark, 79 Md.App. 68, 78-79 , 555 A.2d 542 (1989).

Although the trial is considered to be de novo, “the decision of the Commission is presumed to be prima facie correct.” § 9-745(b)(l). In the case now before us, appellant objected to the introduction of the Rosenthal and Desi reports. Neither witness (i.e., Dr. Rosenthal or Dr. Desi) testified before the Commission or before the circuit court. Appellant disputes that Dr. Rosenthal’s report was part of the record.

Appellant’s counsel argued that these, reports were not admissible at the de novo trial because there was no opportunity to cross-examine the hearsay declarants. . The Rosenthal report is written on Dr. Rosenthal’s letterhead. It was addressed to Liberty Mutual Insurance Company, one of the parties in this case. This letter states the doctor’s opinion that appellant “has a 40% permanent partial disability due to the injury and subsequent surgery on his lumbosacral spine.

He also has a 7% permanent partial disability to the right upper extremity because of his brachial ⁴⁷⁹ plexus palsy.” This letter contains the notation, “Dictated not read.” The Desi report is written on Dr. Desi’s letterhead. This report states that appellant has “a total overall impairment to the whole person of 58%.” Additionally, the report states that 36% of appellant’s disability was due to the 1985 injury. This report was signed by Dr. Desi. Below, counsel for the SIF brought to the court’s attention Labor & Empl., Md.Code Ann. § 9-745 (1991), which provides in part that “[t]he proceedings in an appeal shall be informal and summary.” In response to appellees’ argument that the hearsay reports by Dr. Rosenthal and Dr. Desi were admissible, the trial judge stated In all my years of presiding over workmen’s comp trials, I am basically unaware of this provision now codified as section 9-745 of the labor article.

No counsel, until yesterday, had ever suggested to me that [a workers’ compensation case] could proceed other than under the normal rules of evidence and the normal formality for litigation in the Circuit Court. If the words informal and summary are to mean anything, it seems to me that you can have a Circuit Court proceeding that proceeds in the same way, the same fashion that it did at the Commission level. At the Commission level the Commission is exempted from the common law rules of evidence. They receive hearsay.

They receive written reports from doctors, which are hearsay. As far as I am aware, they are just laid on the desk of the Commissioner without any further authentication as business records or the like. Nor is there—most of the time the doctor is not there to verify his or her opinion. In admitting the reports, the court noted that, So the question in this case is are these two reports sufficiently reliable type[s] of information that the jury can consider them?

In all probability, if we had the doetor[s] here, [they] would probably qualify them as a business record. I am reasonably sure they were produced in the ⁴⁸⁰ ordinary course of business and kept as such by the doc-torts’] offices. In all probability, if both of these doctors were produced in person, and took the stand, there certainly is a very strong likelihood that on direct examination they would testify in conformity with the written reports they have issued. So that gives some indication to me of their reliability- .

The court then ruled that the reports were admissible because they showed sufficient indicia of reliability. The court cited four cases in support of its ruling: Waddell George’s Creek Coal Co. v. Chisholm, 163 Md. 49 , 161 A. 276 (1932); Savage Manufacturing Co. v. Magne, 154 Md. 46 , 139 A. 570 (1927); Standard Oil Co. v. Mealey, 147 Md. 249 , 127 A. 850 (1925); and Yellow Cab Co. v. Bisasky, 11 Md.App. 491 , 275 A.2d 193 cert. denied, 262 Md. 745 , 751 (1971). At the outset, we note that while the cases cited by the trial court hold that certain reliable hearsay evidence may be admissible in workers’ compensation cases, these decisions are inapposite to the case now before us. See generally, Candella v. Subsequent Injury Fund, 277 Md. 120, 125-26 , 353 A.2d 263 (1976) (explaining that “[although most, if not all, of the cases approving the admissibility of hearsay in workmen’s compensation cases appear to have involved the statement of a deceased employee describing a simple event, we continue to eschew the adoption of a binding rule, preferring to consider each case on its particular facts.”) Moreover, it is now well settled that the worker’s compensation appeal is conducted as a trial “essentially” de novo and we have held that “realistically” there is no difference between an essential trial de novo and a true trial de novo.

Bark, 79 Md.App. at 79 , 555 A.2d 542 . The de novo circuit court trial may not always be an “instant replay” of the worker’s compensation commission hearing. As the Candella court observed “[w]hile Code (1957, 1964 Repl.Vol.) Art. 101, § 11, provides that the commission is not to be ‘bound by the usual common law or statutory rules of evidence,’ such evidence may be subject to rejection in the ⁴⁸¹ circuit court on a review de novo.” 5 Candella, 277 Md. at 124 , 353 A.2d 263 . Additionally, 100 C.J.S. Workmen’s Compensation § 768(c) is instructive.

It states, in part, that [njotwithstanding a statute provides that the court may exclude or admit evidence taken before the commission, the court, on appeal from the commission, must apply the rules of evidence in accordance with established principles of law, and may consider only evidence properly before it. Accordingly, immaterial, irrelevant, and incompetent evidence, among which objectionable evidence is included such evidence as hearsay, is, ordinarily, inadmissible before the court, board, or commission. Moreover, the fact that the evidence was admitted by the lower tribunal does not, ordinarily, render admissible evidence which is inadmissible under the general rules, such as hearsay evidence, although it has also been held in some jurisdictions that hearsay evidence received by the commission must be admitted to the jury. (footnotes omitted).

The reports at issue here contained medical opinions that were less favorable to appellant than the opinion of appellant’s expert witness, Dr. Gaber. Appellee does not contest the fact that these reports were hearsay. 6 Accordingly, we are faced with the question of whether, in light of the trial court’s view that because the proceedings before the Commission were ⁴⁸² “informal and summary” the circuit court proceeding “proceeds in the same way,” the court erred in ruling that these reports were admissible as evidence because the “two reports [possessed] sufficiently rehable type of information that the jury [ ] consider them [.]” We therefore examine the “reliability” aspect of these reports. As we have found no Maryland case on point, we look to other authorities. In Yates v. Bair Transport, Inc., 249 F.Supp. 681 (1965), the parties sought a pre-trial ruling regarding the admissibility of reports of several doctors who had examined the plaintiff regarding a Workmen’s Compensation case.

Three different reports were sought to be introduced: (1) two separate reports of doctors who examined the plaintiff on behalf of two insurance companies (the Guthrie report 7 and the Richman report respectively) and (2) the report of the plaintiffs treating physician (the Fleck report). 8 In determining which of the reports were admissible, the court first divided them “based on the identity of the party on whose behalf the report was prepared.” Id. at 689 . The court explained that the Guthrie report was prepared “in the ordinary course of business of both doctors” using the standard set forth in White v. Zutell, 263 F.2d 613 (2d Cir.1959). Id. In White , a report made by a specialist was found to have been made as part of the specialist’s business and was found to “bear[ ] its own inherent guaranty of being what it purported] to be.” Yates, 249 F.Supp. at 689 (citing White, 263 F.2d at 615 ).

The Yates court analyzed the reports in light of Palmer v. Hoffman, 318 U.S. 109 , 63 S.Ct. 477 , 87 L.Ed. 645 (1943) 9 and concluded that because appellant asserted that all ⁴⁸³ the doctors’ reports were prepared for litigation, the reports must demonstrate “an added element of trustworthiness which will counterbalance the fact that these reports were prepared in clear anticipation of litigation.” Yates, 249 F.Supp. at 689-90 . The court then opined that a doctor’s report, prepared in the regular course of business, is admissible “when offered by one other than the entrant or one for whom the entrant is then working.” Id. at 690 (quoting Rotondi v. McLellan, 194 F.Supp. 415, 417 (E.D.N.Y.1961)). 10 Accordingly, the court concluded that the Guthrie report was admissible because it was generated at the behest of one of the insurance companies and the appellant sought to introduce it. Id. at 690. The court noted that the Fleck report was not admissible because it was “self-serving with no added degree of trustworthiness,” id. at 691, and that “where, as here, there is no counterbalancing force to the desire to promote the self-interest of the party on whose behalf the report was made, discretion dictates that the objection [to the introduction of the report] be sustained and the [appellant] be required to call [the doctors.]” Id. at 692 (emphasis added).

In other words, the court concluded that “self-serving” reports without any “counterbalancing force” were not admissible and that the doctors had to testify in court. 11 See also 100 C.J.S. Worker’s Compensation § 768(c), supra. ⁴⁸⁴ The rationale behind the trustworthiness requirement of a hearsay exception was explained by the Court of Appeals in Candella, 277 Md. at 123-24 , 353 A.2d 263 , in the following manner: [A]n attending physician may testify as to the medical history related to him by his patient, and may also state his conclusions reached on the strength of that history. The same proposition has been applied ... in workmen’s compensation cases[.] Such testimony is admitted under an exception to the hearsay rule, the underlying rationale being that the patient’s statements to his doctor are apt to be sincere when made with an awareness that the quality and success of the treatment may largely depend on the accuracy of the information provided the physician.