Rose v. State

Moore, J., delivered the opinion of the Court. In this workmen’s compensation case, a jury in the Circuit Court for Anne Arundel County returned negative answers to the following “Issues” presented to them by the trial judge (Childs, J.) for determination: 1. Did the claimant, James H. Rose, sustain an accidental injury to his lumbrosacral spine arising out of and in the course of his employment on the night of April 21st-22nd, 1972? 2. Was claimant, James H. Rose, disabled as a result of an accidental personal injury arising out of and in the course of his employment on the night of April 21st-22nd, 1972?

The Workmen’s Compensation Commission, from whose award the employer and insurer appealed to the Circuit Court, had made affirmative findings upon substantially the same issues. It also found that appellant had waived compensation for temporary total disability and had accepted sick leave wages in lieu thereof from April 22 to September 2, 1972. The Commission further found that the Clifton T. Perkins State Hospital, employer, and State Accident Fund, insurer, were liable for the employee’s medical bill at Maryland General Hospital in the amount of $2,109.75 and ordered payment or reimbursement in that ³⁶⁰ sum. The Commission’s award was subject to “further determination as to whether the claimant sustained any permanent disability; subject to the provisions of the Workmen’s Compensation Law of Maryland.” On this appeal, Mr. Rose contends that the jury’s determination — which in effect reversed the finding of accidental injury on the part of the Commission 1 — should be set aside.

His challenge is two-pronged: (a) that the trial court erred in denying his motion for a directed verdict at the close of the evidence; and (b) that reversible error was committed by the admission into evidence of three photographs taken by the hospital photographer at Clifton T. Perkins State Hospital. We find no error and affirm. I On the date of the alleged accident, April 22, 1972, the appellant was 43 and had been employed as a security guard at Clifton T. Perkins State Hospital for almost ten years. At about 1:45 a.m. on April 22, while he was making a security check on one of the wards, a patient requested him to close a window.

As shown by the testimony and photographs, there are iron bars inside the windows, which are casement-type, not sash-type, with upper and lower sections which must be pushed to open and pulled to close. In his “report of injury,” appellant wrote: “When closing window and the position my body was in [sic] I had severe pain in my back.” A co-worker, Ronald Lee Lynch, testified that Mr. Rose was “yanking” on the upper section, made a “moaning noise” and said he had hurt himself. Appellant’s wife testified that when he returned home Friday morning he was in pain. She applied heat to his back and attempted to reach the family doctor, George Groleau, M.D. Mr. Rose was unable to get out of bed on Sunday evening when he was next scheduled to work, she said.

Dr. Groleau, who saw him on a house call on April 24, 1972, was “fairly certain he had a disc.” Medication for pain ³⁶¹ was prescribed and the patient was advised to see Dr. R. K. Thompson, a neurological surgeon, if the medicine afforded no relief. Dr. Thompson examined him, as an in-patient, on April 26, 1972 and found a lumbar disc derangement for which surgery was performed on May 8, 1972, at Maryland General Hospital. Mr. Rose did not return to his employment until September 2,1972. Dr. Thompson was subpoenaed below by both sides. 2 He testified that he had first seen Mr. Rose on February 10, 1972, two months before the accident, when appellant related a history of having first hurt his back two years before, “while working at the Clifton T. Perkins State Hospital while closing a window in 1970.” 3 Exercises were prescribed for Rose by Dr. Thompson in February, 1972 but because “he had been doing [them] incorrectly and hadn’t come back at the end of the month when he was supposed to, . . . [and] his pain was more severe and that he had a complaint of weakness in his legs and for this reason [emphasis added], we put him in the hospital on April the 26th, 1972.” Although Dr. Thompson did complete a medical report for the Workmen’s Compensation Commission on February 22, 1973 in which the entry for “date of accident or onset of disease” was listed as April 21, 1972, he testified that he was not aware, at the time he admitted appellant to Maryland General Hospital, of the “second injury,” of which he became informed only at the time of filing the Commission report, i.e., February, 1973, and had “admitted [Rose] on the basis of his symptoms getting worse.” Dr. Thompson also read from the records of Maryland General Hospital, where appellant underwent surgery on May 8, 1972 for removal of the ruptured disc.

These records confirmed the patient’s two-year history of pain and referred to the April, 1972 incident as “an acute exacerbation ³⁶² of pain.” The appellant himself testified that he did experience pain when he closed a window, on his job at the Hospital, in 1970 and also felt pain again from closing a window which was “stuck,” on April 21, 1972, the date of the “accident” in question. II On the basis of the evidence, and inferences properly deducible therefrom, appellant claims that the question of whether his injury and disability was of accidental origin was one of law for the court and that the court erroneously denied his motion for a directed verdict. In support of the motion, counsel urged upon the trial court: “They [employer-insurer] have to prove the Commission was wrong and I have to prove nothing because all the presumptions that go with the Workmen’s Compensation Commission follow in my favor. The presumption of correctness of the award is in my favor.” The quoted language represents a misstatement of the law, a misunderstanding of the meaning of Art. 101, § 56 (c), upon which appellant relies: “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.” This section, as the Court of Appeals observed in Stewart & Co. v. Howell, 136 Md. 423 , 110 A. 899 (1920), simply places the burden of proof upon the party taking the appeal, irrespective of whether appellant is the claimant or the employer and insurer.

The appeal provisions of our Workmen’s Compensation statute contemplate a trial which is essentially de novo. Richardson v. Home Mutual, 235 Md. 252 , 201 A. 2d 340 (1964); Smith v. State Roads Commission, 240 Md. 525 , 214 A. 2d 792 (1965). This, however, does not mean that the party attacking the Commission’s finding ³⁶³ must adduce additional evidence at the de novo proceeding, whether before a jury or the court; nor, indeed, that he must present even as much evidence. As Judge Adkins wrote in Stewart & Co. v. Howell, supra: “In other words it establishes no new rule when the plaintiff happens to be the party appealing, as the burden was always upon the plaintiff to prove his case.

But it shifts the burden from, the plaintiff to the defendant where the defendant loses before the Commission and desires to appeal from its decision, requiring the defendant in such a case to satisfy the jury by a preponderance of testimony that the plaintiff is not entitled to the award made by the Commission.” (Emphasis added.) Thus the party who appeals an award of the Commission has the “burden of persuasion” or in Wigmore’s phrase, 4 “the risk of nonpersuasion” — the same burden that attends parties having the affirmative of an issue in civil cases generally. Dent v. Cahill, 18 Md. App. 117 , 305 A. 2d 233 (1973). As Judge Collins stated for the Court of Appeals in the leading case of Greenwalt v. Brauns Bldg. Specialties Corp., 203 Md. 313 , 100 A. 2d 804 (1953): “This burden of proof provision means nothing more than that, if the mind of the trier of facts is in equal balance on the evidence in the record,