Turner v. State, Office of Public Defender, 568

CourtCourt of Special Appeals of Maryland
Citation486 A.2d 804,61 Md.App. 393
Docket NumberNo. 568,568
PartiesRobert C. TURNER v. STATE of Maryland, OFFICE OF the PUBLIC DEFENDER et al. ,
Decision Date01 September 1984

Myles R. Eisenstein, Baltimore, for appellant.

Howard P. Miller, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen. and Richard Teitel, Asst. Atty. Gen., Baltimore, on brief), for appellees.

Argued before GILBERT, C.J., and WILNER and Rosalyn B. BELL, JJ.

GILBERT, Chief Judge.

This case arises from yet another hard fought battle between the "Public Defenders" and the "State's Attorneys." The facts from which this particular litigation ensued occurred on August 19, 1982, on the softball playing field, not in the courtroom where the parties engage in "hardball."

At the time of the incident, Robert C. Turner, a member of the Bar, was employed in the Office of the Public Defender as an attorney. Turner was also a member of the "Public Defenders," a team that played in the "Lawyer's League" of Baltimore.

From the record we learn that in the game Turner, unlike the legendary Flynn, 1 was not left "a-huggin third," 2 but rather fell while "rounding third." As a result of the fall, Turner sustained a dislocated right shoulder, which in turn led him to seek recompense from the Workmen's Compensation Commission. There, Turner homered before the Commission, which found that he had incurred an accidental injury arising out of the course of his employment. The question of permanent partial disability, vel non, was not passed upon by the Commission at that time, but the public defender was ordered to pay Turner's medical bills that were attributable to the injury.

Believing that the Commission misconstrued the law and the facts, the public defender appealed to the Circuit Court for Baltimore City where the matter was tried before Judge Solomon Baylor, sitting without a jury. There Turner struck out; and the public defender scored.

Aggrieved by Judge Baylor's decision, Turner has appealed. He puts two issues to us and asks that we reverse the trial court and reinstate the Commission's award. We shall answer the issues in inverse order to the manner in which they have been posited.


Turner asserts that, "[t]he trial judge committed reversible error in substituting its [sic] judgment for that of the Workmen's Compensation Commission." Turner is flat out wrong.

Md.Ann.Code art. 101, § 56(a) mandates that in all appeals from workmen's compensation decisions the circuit court shall determine

1) whether the Commission exceeded its powers 2) whether the Commission "justly considered all the facts concerning the injury";

3) whether the Commission misconstrued the law and facts.

In all appeals to the circuit court, the decision of the Commission is "prima facie correct and the burden of proof" in establishing otherwise "is on the party attacking" that decision. Md.Ann.Code art. 101, § 56(c).

We have previously explained and we reiterate here that the phrase "prima facie correct and the burden of proof," as used in § 56(c) and applied to accidental injuries, means only the burden of persuasion, i.e., if the mind of the trier is in a state of equipoise as to the evidence, then the decision of the Commission is to be affirmed. Dent v. Cahill, 18 Md.App. 117, 124, 305 A.2d 233, 237 (1973); see also Blake Construction Co. v. Wells, 245 Md. 282, 225 A.2d 857 (1967); M. Pressman, Workmen's Compensation in Maryland § 4-25(2) (1970 & Supp.1980).

We made clear in Dent that the fact finder "may disagree with the Commission's interpretation of the facts and arrive at a different conclusion ...." 18 Md.App. at 127, 305 A.2d at 239. Unlike many other administrative law bodies, such as the Public Service Commission, the Insurance Commission, and zoning boards, where the appeal to circuit court is usually determined on the basis of the record made at the hearing before the agency, workmen's compensation appeals are heard de novo.

Admittedly, the case law with respect to workmen's compensation appeals has heretofore been far from crystalline. Prior to June 1, 1983, different standards of review were employed depending upon whether an accidental injury or an occupational disease was at issue. 3 See Montgomery Ward & Co. v. Bell, 46 Md.App. 37, 41-42, 415 A.2d 636, 638 (1980).

As Judge Wilner pointed out in Montgomery Ward, 46 Md.App. at 42, 415 A.2d at 638, part of the confusion is attributable to a single misstatement 4 in Frank v. Baltimore County, 284 Md. 655, 658, 399 A.2d 250, 252 (1979). There the Court of Appeals said:

"A court, therefore, may reverse a commission ruling only upon a finding that its action was based upon an erroneous construction of the law or facts ...."

There the Court was articulating the test applicable to the review of occupational disease cases, but Frank dealt with the offset provision in Md.Ann.Code art. 101, § 33(c)-(d) as it applied to a municipal employee who was retired due to an accidental injury. Frank, 284 Md. at 656-57, 399 A.2d at 251-52. It appears that some members of the bar have interpreted Frank as establishing the standard of review to be applied in all accidental injury appeals. That is not the law.

There are, or were, two separate tests applied in appeals from the Commission. If the appeal is from the Commission and the Medical Board, then under Martin Marietta Corp. v. Leius, 237 Md. 217, 219-20, 205 A.2d 792, 793 (1965), the Commission and Medical Board's decision "is not to be reversed by the courts if there was before it evidence legally sufficient to support that determination, even though a contrary finding reasonably could have been made and even if the reviewing court, had the choice been its to make, would have made it." See also Maryland Bureau of Mines v. Powers, 258 Md. 379, 382-83, 265 A.2d 860, 862 (1970). See also Big Savage Ref. Corp. v. Geary, 209 Md. 362, 121 A.2d 212 (1956). A short explanation of the function of the Medical Board's role within the Workmen's Compensation Commission may be found in M. Pressman, Workmen's Compensation in Maryland § 5-4 (1970 & Supp.1980).

Appeals from the Commission in its determinations with respect to accidental injuries, are, as we have previously said, tried de novo. That being the situation, the test applicable to the Commission's findings based on those of the Medical Board is neither controlling nor relevant.

It is unfortunate that the courts have sometimes unwittingly interchanged the two separate and distinct tests. See e.g., Frank v. Baltimore County, 284 Md. 655, 399 A.2d 250 (1979), and this Court's opinion in Zentz v. Peters, 11 Md.App. 1, 272 A.2d 430 (1971). There, in an accidental injury case, we incorrectly applied the occupational disease test. We were wrong and to that extent we overrule Zentz v. Peters, 11 Md.App. at 8, 272 A.2d at 434.

Lest there be any doubt as to what test is to be applied in appeals from the Commission to the courts, we repeat here what Judge Wilner wrote in Montgomery Ward v. Bell, 46 Md.App. 37, 42, 415 A.2d 636, 638 (1980):

"(1) Where the case involves an accidental injury, the court must determine three things: (i) did the Commission justly consider all the facts concerning the injury; (ii) did the Commission exceed its statutory authority; and (iii) did the Commission misconstrue the facts or the law applicable to the case?

(2) Where the case involves an occupational disease, the court looks only to whether the Commission misconstrued the applicable law. Included within that inquiry, however, is whether there was substantial (or legally sufficient) evidence to support the Commission's factual conclusions, that being, in essence, an issue of law rather than of fact. See Burdock v. Kaiser Aluminum, 22 Md.App. 631, cert. den. 272 Md. 738 (1974), and compare ABC Day Care Center v. Browne, 17 Md.App. 470, (1973)."

Thus, we conclude that Judge Baylor was safe in substituting his ruling on the facts for that of the Commission. Dent v. Cahill, 18 Md.App. 117, 305 A.2d 233 (1973).


We rephrase Turner's other issue to read: Did the circuit court on appeal misconstrue the facts and law applicable to the instant matter?

Turner vigorously urges that the standard against which compensable recreational injuries should be measured is Sica v. Retail Credit Co., 245 Md. 606, 227 A.2d 33 (1967). Although Sica provides the proposition of law to be applied to the matter at bar, the factual backdrop in Sica is readily distinguishable from that presented by Turner.

While swimming at an annual picnic sponsored by his employer, Sica suffered a severe injury. The court observed that the annual fete was an express term of Sica's employment. Moreover, the employer encouraged and authorized the establishment of a committee of employees charged with planning and organizing the picnic. Furthermore, the employer paid all of the expenses that the picnic entailed and deducted them as business overhead. Despite the fact that the accident occurred on a non-working day, Sica's accidental injury was determined to have arisen out of and in the course of his employment and it was, therefore, compensable.

A factual pattern remarkably similar to that of Sica is found in Selected Risks Insurance Co. v. Willis, 266 Md. 674, 296 A.2d 424 (1972). 5 Willis drowned at a picnic held by the volunteer fire company in which he was an active member. The facts there showed that the picnics were annual events, " 'organized, sponsored and made to occur' by the fire company, and that the members of the company were expected to attend 'unless they had a reasonable reason not to so attend.' " The chief of the company had asked Willis to assist with preparations on the day of the picnic. Id., 266 Md. at 676, 296 A.2d at 425. Willis's injury was found to have occurred by reason of and in the course of his employment. 6

Judge Oppenheimer, writing for the Court in Sica, stated that there have been many cases in other...

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