General Motors Corp. v. Bark

MOYLAN, Judge. “Even fleas have little fleas, On their backs to bite ’em; And those fleas have littler fleas, And so ad infinitum.” So it is even with judicial review. The Workers’ Compensation Commission made an award of temporary total disability to the claimant/appellee, Harry T. Bark. Judge Robert I.H. Hammerman in the Circuit Court for Baltimore City looked over the shoulder of the Commission and reversed its award. A three-judge in banc panel of the circuit court then looked over Judge Hammerman’s shoulder and reversed his decision.

We now look over the shoulder of the three-judge in banc panel and reverse its decision. The Court of Appeals, of course, has it within its discretion to look over our shoulder and reverse us. In Banc Review At every level reached on this escalator of judicial review, it is necessary to identify the appropriate standard of review. As we look down one stage to the decision of the in banc panel, identifying the standard is easy.

The in banc panel was enjoined to examine the decision of Judge Hammerman exactly as we would be constrained, to examine it, had the appeal been taken directly to us. ⁷¹ An appeal to an in banc panel is an alternative avenue of appellate review. The forum may be different, but the restraints upon the process are the same. Neither the in banc panel nor we may relevantly ask whether we would have reached the same decision as that reached by the circuit court. Neither it nor we have any independent or de novo fact-finding responsibility or prerogative.

As to fact finding, we should both be concerned only with whether Judge Hammerman was legally in error. Montgomery County v. McNeece, 311 Md. 194, 198 , 533 A.2d 671 (1987); Washabaugh v. Washabaugh, 285 Md. 393, 396-399 , 404 A.2d 1027 (1979); State Roads Commission v. Smith, 224 Md. 537, 540 , 168 A.2d 705 (1961). The in banc panel held that he was; we hold that he was not. That difference between the decision of the in banc panel and our own is the result of our different views as to the proper standard of review that Judge Hammerman should have employed, in the first instance, in handling the appeal from the Workers’ Compensation Commission.

Attention turns, therefore, to the appropriate scope and standard of review when an appeal is taken from the Commission to the circuit court. It is a subject not totally free of difficulty. An appeal of this type is an interesting, and in many ways very unusual, specimen to be examined. Review of Administrative Agency Decisions Generally 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. Section 10-215(f). Ordinarily, no additional evidence will be introduced upon the merits. Section 10-215(e).

Ordinarily, the ⁷² role of the reviewing trial court with respect to an agency’s fact finding is austerely limited. As Chief Judge Hammond pointed out in Insurance Commissioner v. National Bureau of Casualty Underwriters, 248 Md. 292, 309-310 , 236 A.2d 282 (1967): “Whichever of the recognized tests the court uses— substantiality of the evidence on the record as a whole, clearly erroneous, fairly debatable or against the weight or preponderance of the evidence on the entire record — its appraisal or evaluation must be of the agency’s fact-finding results and not an independent original estimate of or decision on the evidence. The required process is difficult to precisely articulate but it is plain that it requires restrained and disciplined judicial judgment so as not to interfere with the agency’s factual conclusions under any of the tests, all of which are similar. There are differences but they are slight and under any of the standards the judicial review essentially should be limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.

This need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment.” Judge Powers well summarized the deference that ordinarily will be shown by the reviewing court to the fact finding of the agency in Commissioner, Baltimore City Police Department v. Cason, 34 Md.App. 487, 508 , 368 A.2d 1067 (1977): “A reviewing court may, and should, examine any inference, drawn by an agency, of the existence of a fact not shown by direct proof, to see if that inference reasonably follows from other facts which are shown by direct proof. If it does, even though the agency might reasonably have drawn a different inference, the court has no power to disagree with the fact so inferred. A reviewing court may, and should, examine any conclusion reached by an agency, to see whether reasoning minds could reasonably reach that conclusion from facts in the record before the agency, by direct proof, or by ⁷³ permissible inference. If the conclusion could be so reached, then it is based upon substantial evidence, and the court has no power to reject that conclusion.

A reviewing court may, and should, examine facts found by an agency, to see if there was evidence to support each fact found. If there was evidence of the fact in the record before the agency, no matter how conflicting, or how questionable the credibility of the source of the evidence, the court has no power to substitute its assessment of credibility for that made by the agency, and by doing so, reject the fact.” De Novo Review in Workers’ Compensation Cases By way of dramatic contrast, an appeal to the circuit court from a decision of the Workers’ Compensation Commission is totally different. The Workmen’s Compensation Act, now codified as Maryland Code, Article 101, was first made part of the statutory law of Maryland by Chapter 800 of the Acts of 1914. Section 55 of the initial act, authorizing review in the circuit court of “any decision of the Commission” by “a proceeding in the nature of an appeal,” was in its essential features indistinguishable from the present Section 56, governing “Appeals.” In pertinent part, Section 56 provides: “Any employer, employee, beneficiary or person feeling aggrieved by any decision of the Commission affecting his interests under this article, may have the same reviewed by a proceeding in the nature of an appeal and initiated in the circuit court.” (Emphasis supplied).

Upon such review, the responsibility of the circuit court is, in effect, twofold. Section 56 provides initially: “[T]he 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.” Thus far, the review contemplated seems to comprehend a review upon the record (or upon “[sjtipulations” or “a ⁷⁴ statement in lieu of a record”) of the proceedings before the Commission. As such, it would not differ from the ordinary 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.

Then, by way of significant departure from the administrative agency norm, Section 56 (just as did the original Section 55) goes on to provide a vastly broader recourse for the appellant in a Workers’ Compensation case: “Upon the hearing of such an appeal the court shall, upon motion of either party filed with the clerk of the court according to the practice in civil cases, submit to a jury any question of fact involved in such case.” There is thus provided, in major measure, 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. 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. “Although the statute does not use the term, those directions would seem to contemplate a trial which essentially is de novo." Richardson v. Home Mutual, 235 Md. 252, 255 , 201 A.2d 340 (1964). 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. Schiller v. B. & O. R.R. Co., 137 Md. 235 , 112 A. 272 (1920); Maryland Bureau of Mines v. Powers, 258 Md. 379 , 265 A.2d 860 (1970); Turner v. State, Public Defender, 61 Md.App. 393 , 486 A.2d 804 (1985).

An Apparent Inconsistency: Freedom From Error vs. De Novo Fact Finding There remains, however, a nagging problem of reconciling de novo fact finding, as that phenomenon is now understood, with the seemingly inconsistent provision of Section 56 that immediately precedes it: ⁷⁵ “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.” There would seem to be a dilemma created if the Commission, within its fact-finding prerogative, legitimately found facts pointing in one direction but the de novo or supervening fact finder, with equal legitimacy, found facts pointing in the opposite direction. What would happen if the circuit court concluded that the decision of the Commission was in every respect free from error (arguably requiring its affirmance) but the circuit court, in the course of its de novo fact finding, nonetheless reached a different conclusion? Does a different de novo result necessarily imply error on the part of the Commission? Hardly.

If the de novo court found a particular witness highly creditable, that would not establish that the Commission had been in error or had “misconstrued the facts” in finding that same witness less creditable. If the de novo court gave a particular bit of testimony or other evidence great weight, that would not establish that the Commission had been in error or had “misconstrued the facts” in giving it less weight. Regrettably, the case law has not yet even addressed, let alone attempted to reconcile, these apparently contradictory directions in Section 56(a). There are two possible ways out of the dilemma.

The first is suggested by R.P. Gilbert and R.L. Humphreys, Maryland Workers’ Compensation Handbook (1988), 312-314. That authority recognizes the fundamentally different natures of the two appeal modalities provided: “The practice is that appeals are presented to trial courts in one of two fashions: (1) the submission of the case to the judge on the basis of the record made before the Commission; or (2) a de novo evidentiary hearing before the court sitting with or without a jury.” (Footnote omitted). ⁷⁶ Under that dichotomy, it is the first of these appeal modes that requires the circuit judge to determine under Section 56: 1) “whether the Commission has justly considered all of the facts concerning the injury,” 2) “whether it has exceeded the powers granted it by the article,” and 3) “whether it has misconstrued the law and the facts applicable in the case decided” and then directs him to affirm “the decision of the Commission” if he determines “that the Commission has acted within its powers and has correctly construed the law and facts.” Thus far, there is nothing of a de novo nature involved. Thus far, a review by the circuit court of the record before the Commission would suffice. 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 embarks upon its de novo fact-finding mission, it is totally unconcerned with whether the Commission “correctly construed the law and facts” or not. Another possible reconciliation of the apparently inconsistent provisions may lie in the semantic probability that the statutory language of 1914, still unchanged, reflects a time when our understanding of the range of legitimate fact finding had not reached its present level of sophistication. There appears to have been an intellectual arrogance or conceit on the part of earlier reviewing authorities that if they, by way of supervening or de novo fact finding, came to a different conclusion than that reached by the initial fact finder, that necessarily implied that the initial fact finder had ipso facto been wrong or had thereby “misconstrued the facts.” If that be the case, it is an unfortunate conceit. Since both the initial fact finder and the supervening fact finder enjoy the same prerogative independently to assess credibility and independently to weigh evidence, they may with equal validity reach different conclusions even upon the ⁷⁷ same record.

A fortiori, they may do so when the witnesses testify afresh at the trial de novo, quite possibly with differences the second time around both in the substance of their testimony and in their demeanors as they testify. Because, moreover, additional evidence may be presented at the trial de novo that had not been before the Commission, the additional evidence may compel a de novo finding that could not reasonably have been reached by the Commission without the benefit of such evidence. Under such circumstances, the Commission clearly could not be held to have “misconstrued the facts” before it. The flaw is in the misperception that every problem has a single correct solution.

In Danz v. Schafer, 47 Md.App. 51 , 422 A.2d 1 (1980), we examined the nature of supervening or de novo fact finding and repudiated the arrogant notion that someone else’s fact finding contrary to our own is necessarily erroneous. It is a conceit on the part of a reviewing institution which is not only condescending but totally unnecessary to the result. In dealing, purely hypothetically, with a standard of review that might be (but ultimately was not) employed by an appellate court where it had the same agreed statement of facts before it as was before the trial court, we observed, at 47 Md.App. at 59 , 422 A.2d 1 : “This Court has considered such an interesting, albeit unusual, possibility. We have put our heads together as fact finders and agreed that if we were looking de novo at the undisputed but ambiguous factual predicate here, we would give greater significance than did Judge DeWaters to the events that occurred after September 30, 1974.

On the basis largely of that hindsight, we would infer that the original intent of Mrs. Winters had been to make a loan. Let it be unmistakably clear, however, that this does not remotely suggest that we think Judge DeWaters was wrong, let alone clearly wrong. It is no more the case that he is wrong and we are right than that we are wrong and he is right. The very nature of the fact-finding process is such that there is a range for ⁷⁸ divergent but equally legitimate conclusions, none of which [is], wrong.

We cannot say, as a matter of law, that our finding of an intention to make a loan is compelled by clear and decisive evidence that permits no other conclusion. We simply aver that in a close case that could reasonably tilt either way, our personal and idiosyncratic tilt is in one direction. We would defend vigorously, however, the legitimate prerogative of others reasonably to tilt in a different direction. If we are at liberty, therefore, to undertake de novo fact finding, we should reverse.” (Footnote omitted) (Emphasis added).

De Novo Trial May Be Before Judge or Jury With or without such reconciliation, however, the broad right of trial de novo is indisputably available and was timely invoked by the appellee here, the General Motors Corporation. 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.” Chief Judge Bruñe dealt with 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), overruled on other grounds by Whitehead v. Safeway Steel Products, Inc., 304 Md. 67 , 497 A.2d 803 (1985): “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____ 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.” (Citations omitted) (Footnote omitted). And see Abell v. Goetze, Inc., 245 Md. 433 , 226 A.2d 253 (1967); Egypt Farms, Inc. v. Lepley, 49 Md.App. 171 , 430 ⁷⁹ A.2d 122 (1981); Turner v. State, Public Defender, 61 Md.App. 393 , 486 A.2d 804 (1985).

The trial de novo in this case was before Judge Hammerman, sitting without a jury. What Is An “Essential” Trial De Novo? The appeal from the Commission to the circuit court is not in the purest sense a trial de novo. “We have held this section [Section 56] provides for a trial which is essentially de novo.” (Emphasis supplied). Maryland Bureau of Mines v. Powers, 258 Md. 379, 382 , 265 A.2d 860 (1970); Smith v. State Roads Comm., 240 Md. 525, 533 , 214 A.2d 792, 796 (1965); Richardson v. Home Mutual, 235 Md. 252, 255 , 201 A.2d 340 (1964).

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"l Realistically, not much. A true trial de novo, of course, puts all parties back at “square one” to begin again just as if the adjudication appealed from had never occurred. Whichever party (in these cases, the claimant) had the burden of production and the burden of persuasion before the Commission would again have those same burdens before the circuit court. In an essential trial de novo, on the other hand, that would not necessarily be the case.

The qualification stems from the provision in Section 56(c): “In all court proceedings under or pursuant to this article, the decision of the Commission shall be prima facie correct and the burden of proof shall be upon the party attacking the same.” If the claimant loses before the Commission and then appeals to the circuit court, the provision, as a practical matter, is largely meaningless. The claimant has the burden of producing a prima facie case