Keystone Masonry Corp. v. Hernandez

SHARER, J. The issue in this workers’ compensation case, involving the death of a worker, is dependency. Appellants, the deceased’s employer, Keystone Masonry Corporation, and its insurer, Montgomery Mutual Insurance Company, 1 seek review of a judgment of the Circuit Court for Prince George’s County, entered pursuant to a jury verdict, finding that the deceased’s three minor children were wholly dependent upon him for ⁵⁰⁰ support when he died, and were thereby entitled to death benefits pursuant to Md. Ann.Code (1999 Rep. Vol.), Labor and Employment Article § 9-681(g). One question is presented for our review, which, restated, is: Was the evidence sufficient to support the jury’s verdict that the deceased’s three children were wholly dependent upon him at the time of his death?

We answer the question “yes” and shall affirm. FACTUAL and PROCEDURAL BACKGROUND At the time Elvis Rudis Hernandez, a eitizen of El Salvador, arrived in the United States on March 16, 1999, he was the father of two children, Katherine Nataly, born August 5, 1996, and Kevin Alexis, born April 21,1998. After his death, a third child, Elvis Rudis (called “Rudito” by his family), was born on June 29,1999. The parties stipulated that Hernandez was the father of all three children.

The children remained in El Salvador with their mothers, Iselda Salmerón (the mother of Katherine) and Glenda Romero (the mother Kevin and Rudito) while Hernandez worked in this country. 2 Hernandez found work as a laborer at Keystone Masonry Corporation, located in Beltsville, Maryland. He began his employment on March 30, 1999, just two weeks after arriving in the U.S. On May 24, 1999, while in the employ of Keystone, Hernandez was killed when a wall collapsed on him. Workers’ Compensation Commission Proceedings On February 9, 2000, a claim for death benefits was filed on behalf of the three children, pursuant to Lab. & Empl. § 9-501(a)(2). Keystone contested only whether the children were wholly dependent upon their father at the time of his death. 3 ⁵⁰¹ To support their claim of dependency, appellees point out that Hernandez sent funds to them from his earnings at Keystone through an informal courier system commonly used by El Salvadoran immigrants.

A hearing was held before the Commission on April 29, 2002. Oscar Romero Florez, a courier who traveled to El Salvador on a relatively regular basis to deliver money (and other items) from U.S. workers to their families there, testified that he had taken a total of $750 in U.S. currency to El Salvador for the Hernandez children on two separate occasions. Florez told the Commission that, each time, he delivered $75 to Salmerón and $250 to Romero. Florez testified that his first trip on Hernandez’ behalf was in March 1999, before Hernandez began working for appellant, and the second was on May 24, 1999, coincidentally the date of Hernandez’ death.

Hernandez’ father, Fredis Hernandez, who also resided and worked in the U.S., testified that his son sent money to El Salvador, which was delivered to his (the elder Hernandez’) wife. He conceded that he never personally witnessed Florez deliver the funds, as he and his son remained in this country. Fredis Hernandez testified that Iselda Salmerón and Katherine lived with family in San Salvador, and that Glenda Romero, then pregnant with Rudito, and Kevin lived in a small home on the Hernandez property in El Salvador. On May 17, 2003, the Commission ruled that the Hernandez children, in El Salvador, were not dependent upon their father and denied their claim for death benefits.

The children petitioned for judicial review and requested a jury trial. Circuit Court Proceedings At trial on May 14, 2003, appellees presented the testimony of Dr. Manuel Orozco, Fredis Hernandez, Oscar Florez, and Dorothea Hernandez (the deceased’s mother). Because the sole issue before us is sufficiency of the evidence, we shall review the testimony of each witness. ⁵⁰² Manuel Orozco Dr. Orozco is affiliated with the Inter-American Dialogue and Center for Policy Analysis, a research institute that analyzes economic, political, and social issues in Latin America. He was qualified as an expert on the subjects of family remittances and the economy of El Salvador.

Dr. Orozco, who himself travels frequently to Central America, testified about a method commonly used by immigrant workers to send money from this country to El Salvador: The process that takes place is basically two-fold. You either send the money through an existing institution like Western Union, for example, or sometimes you use informal mechanisms like you look for a friend, a family person or more common an interpreter that does the business of taking the money for you, and sometimes these are called travelers. They travel sometimes twice a month back to these countries, and they carry with them sometimes $20,000 or something like that in cash and then they deliver it in the home country. The relative receives the money and they send it for basically to cover basic needs, food, clothing, housing and sometimes other elements.

Dr. Orozco told the jury that many immigrants chose to utilize the more informal “traveler” system because wire transfer of funds was more expensive, and because many El Salvadorans do not have access to banks. He also opined that the amount of money sent by Hernandez before his death, $750, would have been sufficient to support three people in El Salvador for one month. Fredis Hernandez Fredis Hernandez testified that he saw his son give money and letters to Florez for delivery to Hernandez’ children in El Salvador. On cross-examination, the elder Hernandez testified that he also sent money by courier to his wife, who was then living in El Salvador. ⁵⁰³ Hernandez acknowledged that Glenda Romero also had family in New York, who may have sent small amounts of money to El Salvador, and, likewise, that Iselda Salmerón had family in Connecticut, who may have sent small amounts of money to her on occasion.

He also testified that his daughter, also working in the U.S., occasionally sent her niece and nephews ten dollars, and that the family received no assistance from El Salvador’s government. Hernandez confirmed that Katherine lived with Iselda Salmerón and Salmeron’s sister at the time of his son’s death. Oscar Romero Florez Florez testified that he had delivered $250 to Dorothea Hernandez on three separate occasions in 1999 while Hernandez was living and working in the U.S. He testified that, in addition to money, he carried letters, clothing, and shoes to El Salvador for the Hernandez children from their father. He specified the dates of his travel as April 19, 1999; May 9, 1999; and May 24,1999.

Fredis Hernandez and Florez both testified at trial that they were not provided with Spanish-English interpreters at the Commission hearing, and had difficulty expressing themselves. Dorothea Hernandez At the time of her son’s death, Dorothea Hernandez was living in El Salvador, although she later came to this country. She testified at trial that she had cared for Kevin while his mother shopped for food, clothing, and medicine, with the money sent to them by Hernandez. She testified that Glenda Romero was not employed and that she was unaware of any other source of income, other than Hernandez’ contributions, for the support of Kevin or his unborn brother.

Mrs. Hernandez confirmed that the courier would deliver the money to her home and that Iselda Salmerón would come there to receive it. She was uncertain whether Iselda Salmerón had a job, or any other source of income. Mrs. Hernandez also testified that Iselda Salmeron’s father told her that Iselda purchased medi ⁵⁰⁴ cine, clothing, shoes, and food with the money sent by Hernandez. The Verdict After brief deliberations, the jury found that all three children were wholly dependent upon their father.

The circuit court entered a judgment and an order on May 14, 2003, remanding the matter to the Commission for further proceedings consistent with the verdict and judgment. A timely appeal followed. STANDARD of REVIEW Our review of this matter is governed by § 9-745 of the Labor and Employment article of the Maryland Code, which states in pertinent part: (b) Presumption and burden of proof.—In each court proceeding under this title: (1) the decision of the Commission is presumed to be prima facie correct; and (2) the party challenging the decision as the burden of proof. Md.Code, Lab. & Empl. § 9-745(b) (1999 Repl.Vol.).

The same section also states, however, that: (d) Request for jury trial.—On a motion of any party filed with the clerk of court in accordance with the practice in civil cases, the court shall submit to a jury any question of fact involved in the case. Lab. & Empl. § 9-745(d). This Court has held that this provision ensures an essentially de novo trial in the circuit court. General Motors Corp. v. Bark, 79 Md.App. 68, 79 , 555 A.2d 542 (1989) (citing Maryland Bureau of Mines v. Powers, 258 Md. 379, 382 , 265 A.2d 860 (1970)).

Accord Livering v. Richardson’s Rest., 374 Md. 566, 573 , 823 A.2d 687 (2003). In so doing, the Court attempted to reconcile the two provisions of § 9-745: If the claimant loses before the Commission and then appeals to the circuit court, [§ 9-745(b) ], as a practical ⁵⁰⁵ matter, is largely meaningless. The claimant has the burden of producing a prima facie case before the trial court, lest he suffer a directed verdict against him, just as he, as the original proponent, had the same burden before the Commission. The only difference is that the record made before the Commission will normally satisfy the claimant/appellant’s burden of production at that circuit court level.

The claimant has, moreover, the same burden to persuade the trial court by a preponderance of the evidence that his claim is just as he had to persuade the Commission in the first instance. General Motors Corp., supra, 79 Md.App. at 79-80 , 555 A.2d 542 . More recently, this Court has stated: A trial that is essentially de novo is unlike the procedure applicable to many other administrative law bodies, where appeal to the circuit court is usually determined on the record made at the agency hearing. General Motors Corp. v. Bark, 79 Md.App. 68, 88-89 , 555 A.2d 542 (1989).

At trial, the parties may rely on the same or different evidence than was presented to the Commission. Id. at 81 , 555 A.2d 542 . At the same time, the Commission’s decision is not treated 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.” S.B. Thomas, Inc., 114 Md.App. at 366, 689 A.2d 1301 (citing Holman v. Kelly Catering, Inc., 334 Md. 480, 486-87 , 639 A.2d 701 (1994)). The Court of Appeals long ago described the appellate court’s standard of review of these essentially de novo trials: Talley v. Dept. of Correction, 230 Md. 22, 29 , 185 A.2d 352 (1962).

Applied Indus. Techns. v. Ludemann, 148 Md.App. 272, 282-83 , 811 A.2d 845 (2002). As one author has interpreted the statute, “[t]he jury or the judge, as the case may be, is free to interpret the facts as if the Commission had not previously determined them. If the jury’s mind is in a state of equipoise, then the Commis ⁵⁰⁶ sion’s decision should be affirmed.” Richard P. Gilbert & Robert L. Humphreys, Jr., Maryland Workers’ Compensation Handbook at 314 (1988).

Section 9-750 provides for appeal to this Court “as provided for other civil cases.” Lab. & Empl. § 9-750. Thus: The verdict of a jury on a question of fact is conclusive on appeal. Fowler v. Benton, 245 Md. 540, 545, 226 A.2d 556 , cert. denied, 389 U.S. 851 , 88 S.Ct. 42 , 19 L.Ed.2d 119 (1967). It is not our function to inquire into the weight of the evidence, rather, we determine only whether there was legally sufficient evidence to support the jury verdict.

Temoney v. State, 290 Md. 251, 261-62 , 429 A.2d 1018 (1981); Gray v. Director, Patuxent Inst., 245 Md. 80, 84 , 224 A.2d 879 (1966). Fraidin v. Weitzman, 93 Md.App. 168, 193-94 , 611 A.2d 1046 (1992). This Court has reiterated the test for sufficiency of the evidence: “In any case, civil or criminal, to meet the test of legal sufficiency, evidence (if believed) must either show directly, or support a rational inference of, the fact to be proved.” Starke v. Starke, 134 Md.App. 663, 679 , 761 A.2d 355 (2000) (quoting Edwards v. State, 198 Md. 132, 157-58 , 81 A.2d 631 (1951)). DISCUSSION Appellants make separate arguments with respect to the dependency of each child.

Katherine and Kevin With respect to Kevin and Katherine, appellants assert, “it is clear from the testimony of both Mr. and Mrs. Hernandez [senior], that they gave substantial aid to their son and [that] both of the mothers of his three children also received substantial financial assistance and assistance in kind from their own relatives prior to the time of the claimant’s death.” We agree with appellee’s argument that the evidence presented at trial, and recounted above, is legally sufficient to support the jury’s verdict. ⁵⁰⁷ In support of their argument of insufficiency of the evidence, appellants suggest that the absence of written records of the transactions between Florez and Hernandez was a fatal flaw in claimants’ proof. The record, however, supports a reasonable inference that recordkeeping was not a common practice. Fredis and Dorothea Hernandez and Florez all testified without contradiction 4 as to the amount and frequency of the transactions and the method of delivery. Dr. Orozco testified that the method utilized by Hernandez is common among immigrant workers, and that the funds were often delivered in cash.

It is apparent that the jury judged the witnesses to be credible on this issue. Appellants next argue that the contributions by the senior Hernandez’ and other extended family should limit the chil-drens’ right to benefits to, at most, partial dependency. Whether Mr. and Mrs. Hernandez, or others, provided “substantial aid” that would have made the children less than wholly dependent, as argued by appellants, was a factual determination for the jury to make. Although appellants argue that the record indicates both of the mothers received substantial financial assistance, and assistance in kind, from other family members, there was sufficient evidence presented at trial to support the opposite conclusion.

The jury resolved the factual conflict by determining that the family contributions were insufficient to render the children less than wholly dependent. Fredis Hernandez testified that, while he worked in this country and his wife remained in El Salvador, he sent money to her, and that she could have given some of her own money to support Glenda Romero or Iselda Salmerón. When asked whether Glenda Romero’s family sent her money, he responded “[n]ot exactly to help her. They could have sent her a little bit, but not to help.” As we have noted, Hernandez also testified that he was uncertain whether Iselda Salmeron’s relatives living in Connecticut sent her money, or whether his ⁵⁰⁸ daughter, Maritza, may have sent small sums each month to El