Dent v. Cahill, 609

• Decision Date: 06 June 1973
• Docket Number: No. 609,609
• Citation: 305 A.2d 233,18 Md.App. 117
• Parties: George E. DENT, Jr., et al. v. Mildred E. CAHILL.
• Court: Court of Special Appeals of Maryland

Page 117

18 Md.App. 117

305 A.2d 233

George E. DENT, Jr., et al. v. Mildred E. CAHILL.

No. 609.

Court of Special Appeals of Maryland.

June 6, 1973.

Hugh E. Donovan, with whom were Donahue and Ehrmantraut, Rockville, on the brief, for appellant.

James P. Salmon, Upper Marlboro, with whom were Kevin J. McCarthy and Sasscer, Clagett, Channing & Bucher, Upper Marlboro, on the brief, for appellee Mildred E. Cahill.

William H. Kable, Sp. Asst. Atty. Gen., with whom was Francis B. Burch, Atty. Gen. on the brief, for Subsequent Injury Fund.

Argued before MOYLAN, POWERS and GILBERT, JJ.

GILBERT, Judge.

This appeal presents two questions for our review, scilicet, the burden of proof thrust upon a party appealing to a trial court from a decision of the Workmen's Compensation Commission, and the purpose of the Subsequent Injury Fund.

The appellee, Mildred E. Cahill, on January 4, 1971, slipped on some ice on a parking lot while she was walking to the office where she was employed. The accident occurred on the property of Mrs. Cahill's employer, George E. Dent, Jr. (Dent), appellant. The appellee was admitted to Providence Hospital where she remained for a period of over one month. A claim was filed in the Workmen's Compensation Commission (Commission) by the appellee, and Dent interpleaded the Subsequent Injury Fund (Fund). A hearing was held on April 18, 1972 before the Commission. The record of that hearing discloses that Mrs. Cahill had sustained previous injuries and that she suffered from a pre-existing disease styled osteoporosis. ¹ Mrs. Cahill told the Commission how the accident of January 4, 1971 had occurred. She described in some detail the nature of her complaints and her physical condition and compared her state of health after the time of the accident to what it was prior to that date.

Medical reports of Drs. Wallace, Fowler, Cobey, and Mendelsohn were received into evidence. Dr. Wallace's report said that Mrs. Cahill 'is totally and permanently disabled,' but did not allocate a percentage to either the pre-existing condition or to the injury resulting from the accident of January 4, 1971. Dr. Fowler's latest report stated, 'It is my feeling at this time that (Mrs. Cahill) does have a permanent partial disability related to an aggravation of a preexisting condition which is equal to fifteen percent of the body.' Dr. Cobey's report said in part, '. . . Mrs. Cahill is 100% disabled . . ., thirty five percent is due to the additional injury to (January 4, 1971). ² The medical report of Dr. Mendelsohn, who examined Mrs. Cahill at the request of the Fund, narrated in pertinent part, '. . . I feel that 50% of her permanent disability is related to the fall with the resulting spinal injury and the other 50% relates to the osteoporosis with recurrent injury she has had in that regard.'

The Commission passed a 'Supplemental Award of Compensation' dated April 27, 1972, in which it determined, inter alia, that Mrs. Cahill 'had a prior permanent impairment of a back condition and a bone disease . . . that . . . was a hindrance to (her) employment'; that the subsequent accidental injury of January 4, 1971, combined with the previous permanent impairment, resulted in 'a permanent disability exceeding 50% of the body as a whole'; and that Mrs. Cahill's 'permanent disability is substantially greater by reason of the combined effects of the previous permanent impairment and the subsequent injury than that which would have resulted from the subsequent injury alone.' The Commission found 'that 60% of the disability is reasonably attributable to the . . . accidental injury, and 40% thereof is due to a pre-existing condition.' Thereupon the Commission ordered Dent to pay Mrs. Cahill compensation for permanent total disability at the rate of $66.67 per week, beginning May 31, 1971, ³ and not to exceed $27,000.00. The Fund was ordered to pay Mrs. Cahill compensation at the rate of $66.67 per week, commencing at the end of the payments ordered to be paid by Dent, and not to exceed $18,000.00. Thus, Mrs. Cahill was awarded permanent total disability payable at the rate of $66.67 per week, not to exceed $45,000.00.

Aggrieved at the decision of the Commission, Dent and the Fund appealed to the Circuit Court for Prince George's County. At the non-jury trial in the Circuit Court, Mrs. Cahill and Dr. Fowler testified. The other medical reports were submitted with the record made before the Commission. Mrs. Cahill's testimony was substantially the same as that given before the Commission. Dr. Fowler told the trial judge that he felt Mrs. Cahill was less than totally disabled and that he 'estimated the disability that (he) could directly and causally relate to these fractures to be 15 percent of the body as a permanent and partial disability.' The fractures to which the doctor referred were those occurring as a result of the accident of January 4, 1971 when Mrs. Cahill fell and fractured her 9th and 11th dorsal vertabrae.

The trial court then made the following significant comments:

'. . . (I)n an appeal from Workmen's compensation, it is the job of the trier of the facts on such an appeal to decide those issues of fact as to the finding of the Commission, and unless it finds as a matter of law that they are clearly erroneous, the Commission being a specialized agency of the government delegated with the responsibility and the alleged expertise in the field to make such determinations as a result of the evidence produced on behalf of the claimant, the law is well established in Maryland that the findings of the Commission are prima facie evidence as to the facts and their interpretation of those facts. It's the responsibility of the appellant to prove by the preponderance of the evidence that those findings are incorrect.

. . . It is conceded by all counsel that there is no evidence, medical evidence, indicating a 60 percent disability, permanent in nature. . . . The evidence would indicate while (Mrs. Cahill) may have been employed full time (prior to the accident of January 4, 1971), her type of employment factually was restricted. She was restricted in her type of work that she could do. I think she indicated she had problems with the files, that was the heaviest type work she could perform, and she testified that way here today.

'It is rather apparent the Commission in the exercise of its judgment in an allocation of percentage of injury had no medical evidence to support its finding. The medical evidence in the case is non-existing to support 60 percent as a result of the injury, employability evidently being the basis of the Commission's finding that this injury caused 60 percent, and I would not so find if it were my prerogative to evaluate the evidence. I would reverse it.' (Emphasis supplied).

After reciting the various doctors' findings in terms of percentage of disability attributable to the accident, the trial judge then said:

'But fortunately, or unfortunately, this member of the bench has not seen fit to usurp that discretionary prerogative delegated to administrative bodies in a specialty, unless it is clearly erroneous, arbitrary, capricious, amounting to an improper exercise of that delegated responsibility. I do not profess to be an expert as to what employability would make as a contribution to determine percentages of an allocation. I may disagree with it, but I am not convinced by a preponderance of the evidence that I have heard that it is erroneous and not based upon facts which their finding can be sustained by, and neither in this area nor in a zoning area do I intend to substitute my judicial discretion in the evaluation of the determination of facts until I find them to be in the category that it was not based on a preponderance of the evidence.

Therefore, an order shall be prepared in this case to affirm the findings of the Commission. . . . I repeat, I am not certain if I were on the Commision I would agree with it, but I can't determine from the evidence I have here today that it is erroneous, and that the appellant has by a preponderance of the evidence convinced me that the finding of the Commission is improper.'

Dent appealed to this Court and avers that the trial judge was in error when he decided that he did not have the prerogative to review the evidence. Dent further maintains that the trial court employed the wrong standard in determining the burden of proof in an appeal to the trial court from the Workmen's Compensation Commission.

This Court has had reveral occasions recently to speak on the subject of the burden of proof relative to an appeal from a Workmen's Compensation case. See ABC Day Care Center, Inc. v. Browne, 17 Md.App. 470, 302 A.2d 708 (decided April 9, 1973); William J. Burns Int'l Detective Agency, Inc. v. Ferris, 16 Md.App. 568, 299 A.2d 487 (1973); Holbrook v. GM Assembly Division, General Motors Corp., 15 Md.App. 425, 291 A.2d 171 (1972); Carling Brewing Co. v. Belzner, 15 Md.App. 406, 291 A.2d 175 (1972); Yelton v. Higgins, 13 Md.App. 599, 284 A.2d 857 (1971); Loving Helicopters v. Kaufman, 13 Md.App. 418, 283 A.2d 640 (1971); Winters v. Payne, 13 Md.App. 327, 283 A.2d 807 (1971); Uninsured Employers' Fund v. Merritt, 13 Md.App. 73, 281 A.2d 411 (1971). In each of those decisions we have meticulously pointed out that the decision of the Workmen's Compensation Commission is prima facie correct and the burden of proving otherwise is upon the party attacking that decision. We have previously stated, and we reiterate here, that where the evidence is conflicting and gives rise to one of several inferences, the party attacking the decision of the Commission has merely a burden of persuasion and not the burden of providing additional proof.

A clear statement of the law is found in Pressman's Workmen's Compensation in Maryland, § 4-25(2) wherein it is said:

'Even though the decision of the Commission is presumed to be correct and the burden is upon the party...