Uninsured Employers' Fund v. White

NAZARIAN, J. In 2004, Ronald White injured his right ankle during the scope of his employment, and the Workers’ Compensation Commission (the “Commission”) awarded him disability benefits. In 2010, Mr. White began experiencing pain in his lower back and left ankle, and he sought to revise his claim with the Commission to connect those injuries to his earlier right ankle injury. The Commission found that Mr. White’s back injury was causally related to his initial injury, but that his left ankle injury was not. The Uninsured Employers’ Fund 1 (the “Fund”) petitioned the Circuit Court for Anne Arundel County to review the Commission’s decision to extend compensation to Mr. White’s back injury, but not the Commission’s decision to deny compensation for his left ankle injury.

Mr. White did not file a timely cross-petition, but the circuit court nevertheless ⁴¹² allowed him to challenge the Commission’s decision as to his left ankle injury at trial, and the court ultimately reversed the Commission’s decision in that respect. As a prerequisite to any affirmative relief on his left ankle claim, Mr. White was required to file a timely petition (on this posture, a cross-petition) challenging that decision. Because he didn’t, the circuit court did not have the left ankle decision before it, and the court erred in considering it. We reverse the judgment of the circuit court.

L BACKGROUND On January 12, 2004, Mr. White, then a molding inspector for National Mold Specialists, LLC, fractured his right ankle after falling accidentally in the course of inspecting a home. Mr. White applied for workers’ compensation benefits, but because his employer did not maintain workers’ compensation insurance, he also applied to the Fund for payment of any potential award. After holding a hearing on March 7, 2007, the Commission ordered the Fund to pay Mr. White temporary total disability and permanent partial disability. In November 2010, Mr. White began additional treatment on his left ankle and lower back.

His doctor opined that Mr. White’s right ankle injury caused him to favor that ankle, causing compensatory pain in his left ankle and lower back. On December 21, 2010, Mr. White sought to revise his claim with the Commission, and contended that the injuries to his left ankle and back were causally related to his right ankle injury. The Commission considered Mr. White’s claims during a hearing held on March 31, 2011 and, on April 26, 2011, entered an order setting forth two findings: first, that Mr. White’s injury to his left ankle was not causally related to his initial right ankle injury, and, second, that his back injury was causally related to the earlier injury (the “Order”). On May 16, 2011, the Fund petitioned the Circuit Court for Anne Arundel County to review the Commission’s Order.

Pursuant to Maryland Rule 7-204(a), Mr. White filed his intent to participate in the Fund’s petition on June 8, 2011. ⁴¹³ He did not file a cross-petition for judicial review until October 21, 2011. The Fund moved to dismiss Mr. White’s cross-petition on October 27, 2011, arguing that, as the non-appealing party, Mr. White was required to file a cross-petition within ten days of receiving notice of the Fund’s petition and that Mr. White filed his petition more than five months after receiving notice. See Md. Rule 7-203. The circuit court dismissed Mr. White’s cross-petition on November 21, 2011.

On February 5, 2013, the circuit court held a jury trial to review the Commission’s Order. At the start of trial, the court confirmed that Mr. White had failed to file a cross-petition, but the parties disagreed as to the effect of that failure. The Fund argued that Mr. White was precluded from arguing that any portion of the Commission’s decision should be reversed, while Mr. White argued that the de novo nature of the appeal permitted the jury to consider the full scope of the Commission’s decision. The circuit court agreed with Mr. White: [COUNSEL FOR THE FUND]: The issue that this case deals with is much later there was another hearing before the [Commission] and the issue was whether [Mr. White’s] complaints to his back and left foot relate to his accident [on] January 12, 2004.

The Commission found that his left foot complaints were not related and that issue was not appealed. The only issue before you— [COUNSEL FOR MR. WHITE]: Your Honor, I apologize for objecting to her opening, but I have to object. [COUNSEL FOR THE FUND]: The claimant’s cross appeal was not pending was my understanding so then that issue is final. So the only issue would be my appeal and I only appealed as to the— [COUNSEL FOR MR.

WHITE]: The petition is for all of the issues that were brought before the Commission!;] it is a de novo appeal. All of the issues that were decided by the Commission are going to be decided by the jury today. The ⁴¹⁴ petitioner does not get to pick and [choose] which issue that the jury gets to hear today, even if her cross appeal was denied, we ... timely filed a notice of an intent to participate and as this is a de novo appeal, all of the issues [are] on the table today for Mr. White to argue. THE COURT: ...

Is [Mr. White] going to rely on the fact that you took an appeal, in other words, can he sit back and not file an appeal if he is satisfied with the fact that you took one? [COUNSEL FOR THE FUND]: No.... If you are unhappy with the result, you have to file an appeal. If you don’t, you are accepting the results. [COUNSEL FOR MR. WHITE]: Your Honor, it would be just irreparable and reversible error if this Court allows the [Fund] to proceed on one issue and not on another, that is a de novo appeal and the case law is very clear.

The only thing that the cross petition does is that ... if the [Fund] were to withdraw the appeal before trial, Mr. White would have no ability to proceed with trial. THE COURT: I mean it seems like you are saying there would be an absolute obligation on their part to have filed an appeal if they wanted to litigate that issue, is that correct? [COUNSEL FOR THE FUND]: There is. THE COURT: Do you have a case that would say that? [COUNSEL FOR THE FUND]: Not off the top of my head. [COUNSEL FOR MR. WHITE]: ... [T]he case law is very clear on that matter, Your Honor, I don’t know the name of the case on the top of my head but the cross appeal does not introduce any additional issues to the jury, it cannot because as you suggested, it is a de novo appeal.

De novo means exactly what it says it means. ⁴¹⁵ And the cross petition simply would allow the [Fund] in this particular case to withdraw their appeal for today and in the event that had occurred, Mr. White would not have been able to force them to participate since we did not timely file a cross petition. But now that we are here, the [Fund] cannot pick and choose the issues that are going to be decided for the order, but all of the issues in the order were— [COUNSEL FOR THE FUND]: I don’t think that is accurate. If ... that is true, then I would have to prove even the issues that were favorable to me and add those to the lists of questions for the jury, even though I am only appealing on one issue. I am asking them to overturn part of the decision, not the whole decision. [COUNSEL FOR MR.

WHITE]: That is the risk inherent in appealing, Your Honor. The [Fund] cannot pick and [choose] the issues on appeals. It simply wouldn’t be a de novo appeal. THE COURT: Okay.

All right, well I am going to rule in favor of the claimant on this. Based on my understanding of what it means to take a de novo appeal. And not having case law on point on either side, I am going to rule in favor of [Mr. White]. Okay.

Following a de novo trial on both issues, the jury affirmed the Order with respect to Mr. White’s back injury (finding that it was causally related to his initial right ankle injury) and reversed with respect to his left ankle injury (also finding a causal relationship). The Fund appeals.

II

DISCUSSION The Fund presents two questions on appeal: 1. Did the circuit court err by allowing Mr. White to challenge the Commission’s [Order] after his cross-petition for judicial review was dismissed? 2. Did the circuit court err by failing to set forth the proper burden of persuasion in its instructions to the jury? ⁴¹⁶ As we explain, Mr. White’s failure to file a timely cross-petition precluded him from challenging the Commission’s Order as to the causal relationship between his left ankle injury and his initial right ankle injury. The circuit court therefore erred in permitting him to raise such a challenge. 2 Petitions for judicial review of Commission orders are authorized by Md.Code (1991, 2008 Repl.Vol.), § 9-737 of the Labor & Employment Article (“LE”), under which “ ‘[a]n employer, covered employee, dependent of a covered employee, or any other interested person aggrieved by a decision of the Commission ... may appeal from the decision of the Commission provided the appeal is filed within 30 days after the date of the mailing of the Commission’s order.’ ” Darby v. Marley Cooling Tower Co., 190 Md.App. 736, 741 , 989 A.2d 1221 (2010) (quoting LE § 9-737). 3 Once the Fund petitioned the circuit court to review the Commission’s decision, Rule 7-203(b) provided Mr. White an opportunity to file a cross-petition: If one party files a timely petition [for judicial appeal], any other person may file a petition within ten days after the date the agency mailed notice of the filing of the first petition, or within the period set forth in section (a),[ 4 ] whichever is later.

Id. Mr. White did not file a timely cross-petition, and the effect of this failure rests at the heart of this appeal. The Fund ⁴¹⁷ contends that, without a cross-petition, the circuit court was powerless to review the portions of the Commission’s decision adverse to Mr. White. Mr. White counters that because the circuit court reviewed the Commission’s decision de novo, it was required to consider every issue raised in the Commission proceeding.

The Fund responds that Mr. White charts the boundaries of a de novo review in this context too broadly. The parties’ disagreement hinges on their differing interpretations of Darby, 190 Md.App. 736 , 989 A.2d 1221 . Mr. White argues that our holding in that case — that a non-appealing party in an appeal to the circuit court from a Commission decision could not raise its own issues without filing a cross-appeal — was limited to circumstances in which the party appealing from the Commission decision voluntarily dismissed its appeal before proceeding to trial. The Fund argues that Mr. White’s interpretation would render a party’s failure to file a cross-appeal inconsequential, save for when the appealing party dismisses its appeal, and instead believes that our holding in Darby is applicable here.

We agree with the Fund. In Darby , the Commission ordered an employer, Marley Cooling Tower Co., to pay the future medical expenses of its former employee, James M. Darby, arising from a work-related injury, but denied Mr. Darby’s claim for temporary total disability benefits (“TTD”). Id. at 739 , 989 A.2d 1221 . Marley petitioned the circuit court to review the Commission’s order as to future medical expenses.

But Mr. Darby died while the appeal was pending, eliminating the possibility of future medical expenses, and Marley voluntarily dismissed its appeal. Id. at 739-40 , 989 A.2d 1221 . Although neither Mr. Darby nor the personal representative of his estate (his son, ⁴¹⁸ James F. Darby 5 ) filed a cross-petition, Mr. Darby moved for reconsideration of Marley’s dismissal, arguing that he was entitled to challenge the Commission’s order denying TTD. Id. at 740 , 989 A.2d 1221 .

The court denied the motion and Mr. Darby appealed. On appeal, he argued that “he had an absolute right to have [his] issues heard [in the circuit court] without the necessity of filing a cross-appeal” because “Marley’s petition, directed to its aggrievement over liability for medical expenses, brought before the circuit court, without any cross-appeal by Darby, the Commission’s rejection of compensation for Darby for TTD, over which Marley was not aggrieved.” Id. at 741-42 , 989 A.2d 1221 (internal quotation marks omitted). In support, Mr. Darby relied on Griggs v. C & H Mechanical Corp., 169 Md.App. 556 , 905 A.2d 402 (2006), where we stated “that ‘the de novo nature of the action means that the circuit court must consider all of the issues that were raised in the Commission proceedings.’ ” Darby, 190 Md.App. at 741 , 989 A.2d 1221 (quoting Griggs, 169 Md.App. at 564 , 905 A.2d 402 ). Despite this seemingly helpful language, we concluded that Griggs did not apply.

Id. at 743, 989 A.2d 1221 (“[Mr. Darby’s] argument illustrates the unfortunately too common fallacy of failing to limit the language in a judicial opinion, in this instance, Griggs , to the context in which that language was employed.”). An overview of Griggs illustrates why that case, and specifically the language on which Mr. Darby relied (and, as we explain, Mr. White), does not address the necessity of a cross-appeal here. In Griggs , an employee sought workers’ compensation from his employer, C & H Mechanical (“C & H”). Before the Commission, C & H argued that Mr. Griggs’s claim had been filed outside the applicable two-year limitations period, but the Commission did not address this