Esteps Electrical & Petroleum Co. v. Sager

ROBERT M. BELL, Judge. Rudi L. Sager, appellee, filed two hernia claims with the Workmen’s Compensation Commission. The first, claim # A-946620 (case one), filed by appellee pro se on September 10, 1984, alleged that he sustained a hernia on the job on August 29, 1984. The claim form indicated a consideration date 1 of October 8, 1984.

The second, # A-948852, (case two), filed by appellee’s counsel on September 20, 1984, alleged a hernia injury occurring on August 23, 1984. The consideration date with respect to that claim was October 26, 1984. Esteps Electrical and Petroleum Company, appellant, did not file any issues in connection with case two and, al ⁶⁵² though issues were mailed on October 5, 1984 in connection with case one they were not received by the Commission until October 9, 1984, the day after the consideration date. 2 The Commission, in both cases, passed an order on November 21, 1984, without a hearing and “based on the evidence in the record”. By those orders, appellee was awarded temporary total disability in each case.

By Motion for Reconsideration filed in each case on December 6, 1984, appellant timely moved for rehearing pursuant to Md.Code Ann. art. 101 .§ 56(e). 3 ⁶⁵³ Concerning case one appellant acknowledged that appellee’s claim was received by its insurance carrier on October 4, 1984, that issues were prepared and mailed on October 5, 1984, and that the issues were not received by the Commission until October 9, 1984. Nevertheless, it urged the vacation of the Commission’s November 21, 1984 award and the scheduling of a hearing on compensability because: The employer has a sincere and meritorious defense to this claim and desire [sic] only an opportunity to be heard consistent with due process. This administrative body is designed to bring about a fair and equitable outcome consistent with administrative efficiency. However, the former purpose is clearly superior to the latter goal—and such is the legislative intent.

As it does here, appellant argued in its motion in case two that it never received notice from the claimant or anyone else until November 28, 1984, when it received, from the Commission, the employee claim form along with the Commission’s award. Because of this failure of notice, as it did in case one, appellant sought the vacation of the Commission award and a hearing on the issue of compensability. Appellant did not file with its Motion for Reconsideration any proposed issues to be considered by the Commission. ⁶⁵⁴ Appellant’s motions were denied by order dated January 3, 1985, whereupon appellant appealed to the Circuit Court for Prince George’s County. Appellant’s appeal petitions raised grounds additional to those raised in the motions for rehearing.

First, it complained that the Commission improperly denied its motions. In case one appellant represented that it “never received direct notice from the claimant of his alleged injury as required in Art. 101 § 36(5)” 4 and that the claimant did not sign the certification on the claim form. In case two it more specifically alleged that appellee “... never gave the required notice as specified in art. 101 § 36(5)” and questioned the “... claim’s authenticity in signature by claimant”. Finally appellant alleged, in both petitions, that the two claims were duplicitous in nature.

Appellee moved, in each case, to dismiss employer’s and insurer’s appeal. The motions were substantially the same. He contended before the Circuit Court, as he does here, That inasmuch as the issues of accidental injury, causation and/or notice were never raised in a timely manner or heard before the Workmen’s Compensation Commis ⁶⁵⁵ sion, they cannot now be raised on appeal for the first time. The motions were heard by different judges and both were granted, but for different reasons.

In case two, which was heard first, the trial court ruled: ... I conclude that the employer-insurer was notified properly, that there were no factual issues before the Commission, that [sic] only factual issues may be appealed to this court. In any event, the motion for reconsideration, when filed timely, I conclude on the law even that the Commission acted within their discretionary powers and, accordingly, I will grant the motion to dismiss. 5 On the other hand, the trial court in case one, by Memorandum and Order, concluded: This court finds no exceptional circumstances which would justify a waiver or suspension of the Commission’s Rules and Regulations. Obviously, neither did the Commission.

Thus in light of the Accardi rule, 6 as adopted in Maryland, through the case of Hopkins v. Maryland Inmate Grievance Commission, 40 Md.App. 329 [ 391 A.2d 1213 ] (1978), this court can find no reason to continue with proceedings in this appeal. This is particularly so because the scope of review on appeal “is limited to the issues raised and decided, explicitly or implicitly by the Commission”. Altman v. Safeway Stores, 52 Md.App. 564, 566-567 [ 451 A.2d 156 ] (1982). As stated previously, the only issues before the Commission are those filed by the claimant and this Court finds no error on the part of the Commission for its decision based on the evidence before it. ⁶⁵⁶ Appellant appealed from the judgments thus entered, and those appeals were consolidated in this Court.

Although three issues are presented for our resolution, we need only consider one: 1. Whether the trial court erred in applying an abuse of discretion standard or a substantial evidence standard in determining whether the employer was entitled to appeal the decision of the Workmen’s Compensation Commission and in denying employer de novo review? In addition, appellee has moved to dismiss appellant’s appeal or to strike argument 3 in appellant’s brief. On its part, appellant has moved to strike a portion of appellee’s brief as referring to proceedings and facts outside the record and as being “highly prejudicial to appellants and cannot be rebutted without reference to facts which are outside the record”.

Before addressing the merits, we will dispose of the pending motions. Motion to Dismiss/Motion to Strike The basis of appellee’s motion to dismiss or strike is his contention that appellant failed to include a statement of facts in its brief as required by Md. Rule 1031 c. and that, as to case one, appellant failed to raise before the circuit court the issue that it did not receive a notice of hernia claim. It is correct that appellant’s brief does not contain a statement of facts as required by Md. Rule 1031 c., a fact that appellant concedes. Appellant argues, however, that a sufficient statement of facts is subsumed in its Statement of the Case.

It therefore concludes that the omission should not be fatal to the disposition of the appeals on the merits. Md. Rule 1031 c. 4. provides: The brief of the appellant shall contain in the order here indicated: .... 4. Statement of facts. ⁶⁵⁷ A clear concise statement of the facts material to the determination of the questions presented. If there is any dispute with regard to any of the facts asserted by appellant, on a possibility of such a dispute, the appellant shall so state.

Reference shall be made to the pages of the record or the transcript of the testimony as contained in the record supporting his assertions. Failure to comply with any section of Rule 1031 may result in dismissal of the appeal or any other appropriate order with respect to the case. Md.Rule 1031f. While dismissal may be an appropriate sanction, whether to employ it is a matter left to the exercise of this Court’s discretion.

Ebert v. Ritchey, 54 Md.App. 388, 393 , 458 A.2d 891 (1983), City of Baltimore v. Bowen, 54 Md.App. 375 , 381 n. 3, 458 A.2d 1242 (1983). When the violations are not substantial, 7 a motion to dismiss will be denied. Ebert v. Ritchey, supra, 54 Md.App. at 393, 458 A.2d 891 . In the case sub judice, because appellant’s statement of the case contains those facts material to the resolution of the questions presented on appeal, and further contains citations to the record as required by the rule, we conclude that appellant’s failure to include a statement of facts is not a substantial violation.

Therefore, we deny appellant’s motion. We hasten to add, however, that ommission of a statement of facts is not condoned. We likewise deny appellee’s motion to strike appellant’s third argument. Although appellant did not argue in the circuit court that it never received notice of hernia claim pursuant to Art. 101, § 36(5), its appeal petition clearly presented the issue, which, given the reason for the court’s decision, did not have to be decided.

Turning to appellant’s motion to strike, we conclude that it too should be denied. While it is true that appellee ⁶⁵⁸ did refer to proceedings and matters outside the record it must be noted that appellant raised the issue in the first instance, when on page 11 of its brief, discussing the “minimal impact on the claimant” of de novo review, it asserted: “... during the pendency of these appeals, the Commission’s awards are not stayed and any benefits paid to the claimant will not be recoupable in the event that the Commission’s awards are reversed on appeal.” 8 This assertion prompted appellee’s response, which, in the context of this case, we find justified. The Merits Art. 101 § 56(a) provides, in pertinent part: Any employer, employee, beneficiary or person feeling aggrieved by any decision of the Commission affecting his interest under this article, may have the same reviewed by a proceeding in the nature of an appeal and initiated in the circuit court of the county having jurisdiction ... and the court shall determine whether the Commission has justly considered all the facts concerning the injury, whether it has exceeded the powers granted it by the article, and whether it has misconstrued the law and facts applicable in the case decided____ If the court shall determine that the Commission has acted within its powers and has correctly construed the law and facts, the decision of the Commission shall be confirmed; otherwise it shall be reversed, modified, or remanded to the Commission for further proceedings____ Reference to the express provisions of this section makes evident the legislative “intention that the Commission shall ⁶⁵⁹ make the initial decision on all compensation questions.” Trojan Boat Company v. Bolton, 11 Md.App. 665, 672-73 , 276 A.2d 413 (1971). See Cabell Concrete Block Co. v. Yarborough, 192 Md. 360, 369 , 64 A.2d 292 (1949); Bethlehem Steel Company v. Mayo, 168 Md. 410, 416 , 177 A. 910 (1935); McCulloh & Company v. Restiro, 152 Md. 60, 67 , 136 A. 54 (1927).

This is particularly true since the standard of review of the decision of the Workmen’s Compensation Commission shall be by way of trial de novo. Maryland Bureau of Mines v. Powers, 258 Md. 379, 382 , 265 A.2d 860 (1970); Abell v. Goetze, Inc., 245 Md. 433, 437 , 226 A.2d 253 (1967); Richardson v. Home Mutual Life Insurance Company, 235 Md. 252, 255 , 201 A.2d 340 (1964); Glidden-Durkee (SCM) Corp. v. Mobay Chemical Corp., 61 Md.App. 583, 596-97 , 487 A.2d 1196 (1985); Eygpt Farms, Inc. v. Lepley, 49 Md.App. 171, 176 , 430 A.2d 122 (1981); Montgomery Ward & Company v. Bell, 46 Md.App. 37, 41 , 415 A.2d 636 (1980). And because the parties are free to adduce evidence additional to that produced before the Commission, Glidden-Durkee, supra, it is necessary that the issues on which such evidence is permitted have been passed upon by the Commission. Miller v. McGraw Company, 184 Md. 529, 542-43 , 42 A.2d 237 (1945); Meyler v. Mayor of Baltimore, 179 Md. 211, 219 , 17 A.2d 762 (1941).

Thus, on an appeal from an order of the Workmen’s Compensation Commission, a circuit court “is jurisdictionally limited to a review of the issues raised and decided, by the Commission explicitly or implicitly, and to such relevant matters on which there was evidence before the Commission”. Altman v. Safeway Stores, Inc., 52 Md.App. 564, 566 , 451 A.2d 156 (1982). See Saylor v. Black & Decker Mfg. Co., 258 Md. 605, 610-11 , 267 A.2d 81 (1970); Pressman v. Accident Fund, 246 Md. 406, 415-16 , 228 A.2d 443 (1967); Richardson v. Home Mutual, supra, 235 Md. at 255 , 201 A.2d 340 ; Trojan Boat Company v. Bolton, supra, 11 Md.App. at 670 , 276 A.2d 413 . “However, the rule that no issue of fact can be submitted on appeal where the record does not show that the question involved was ⁶⁶⁰ 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.” Cabell Con.

Blk. Co. v. Yarborough, supra, 192 Md. at 369 , 64 A.2d 292 . And when the Commission has decided a case on the issues raised by only one party, so long as there is no attempt to bypass deliberately the Commission, an appeal on a de novo basis by the party who did not file issues will lie as to the issues thus decided. Oxford Cabinet Company v. Parks, 179 Md. 680, 683-84 , 22 A.2d 481 (1941).

Cf. Hathcock v. Loftin, 179 Md. 676, 678 , 22 A.2d 479 (1941) (a claimant who, after filing a claim with the Commission, refused to present evidence to support it before the Commission is not entitled to present evidence on appeal.) See also Roadway Express, Inc. v. Gray, 40 Md.App. 66, 72 , 389 A.2d 407 (1978) (an employer’s claim of meritorious defenses "... are, however, matters of defense which were available to the employer had he exercised his right to raise issues prior to the consideration date, or his right to request a hearing, or his right to appeal and have the case heard de novo____”) (emphasis added). Oxford Cabinet Company v. Parks, supra, is directly apposite to the case sub judice. There, the State Industrial Accident Commission, predecessor of the Commission, in its notice of a claim filed, advised the employer that it would, in the absence of a request for a hearing or adjournment granted by the Commission by a specified date, make an award, on the consideration date, based upon the evidence in the file.

Although it received adequate notice, the employer neither appeared before the Commission nor requested a hearing and the Commission passed an award granting benefits to the claimant. The employer, simultaneously, appealed to the circuit court and filed, with the Commission, a petition to reopen. The petition to reopen was denied “[p]robably on the grounds that when the appeal was entered, [the Commission] had no jurisdiction.” ⁶⁶¹ Id. 179 Md. at 682, 22 A.2d 481