March 25, 2014

Maryland Lawmakers Consider Expanding Workers' Comp Claims

Maryland State House.jpgBills that would make it easier for the members of several public service occupations to qualify for workers' compensation are making the rounds in Annapolis. Paid emergency medical service providers and Allegany County correctional officers and state correctional officers would receive a presumption that certain cancers, lung or heart disease or hypertension from which they suffer stemmed from their jobs. And, Maryland state correctional officers would receive a presumption of compensability that heart disease or hypertension that is more severe than the individual's prior condition and that results in partial or total disability or death is compensable under worker's comp.

Presumptions can have a significant impact on a workers' compensation claim, making it easier to prove that injuries are compensable under workers' compensation laws. A presumption allows a court to assume that a fact is true unless there is more evidence provided which disproves the presumption. For example, if a child is born of two people who are married and living together, then the presumption is that the husband is the child's father. Under a presumption in workers' compensation, it is assumed that certain diseases or injuries are the result of the employees' work and, as a result, additional evidence in the filing of a claim for workers' compensation is not needed.

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January 30, 2014

Firefighter Can Recover Workers' Comp Benefits for Injuries Stemming from Travel from Work-Related Activity to Work Site

Firefigher in fiery doorway.jpgIt's a fact of modern life that people are always "coming and going." "Going and coming" is a concept in workers' compensation that means that workers cannot recover for the injuries they suffer when they are on the way to work or on their way home. The rule is based on the idea that compensation in such situations is not warranted because getting to work is the employee's responsibility and does not involve advancing the employer's interests.

Maryland's top court recently determined that the rule doesn't apply to a worker traveling from a work-related activity to a work site with his employer's knowledge and approval.

The decision means that a Montgomery County firefighter can receive workers' compensation benefits for the injuries he suffered in a vehicle crash while traveling from an employer-encouraged physical training session to his fire station to pick up his work-related mail and office correspondence.

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December 6, 2013

Court: Temporary Total Disability Payments Must Stop When Worker Achieves Maximum Medical Improvement

Ice.jpgMaximum medical improvement is an important concept in workers' compensation cases. Maximum medical improvement (MMI) occurs when an injured employee has reached the maximum benefit that can be obtained from medical care. At that point, a doctor can evaluate any lingering impairment to determine the extent of the permanent injury to the employee's body.

An injured worker's recent attempt to change longstanding workers' compensation laws to allow her to continue to receive temporary total disability benefits after achieving MMI has been rejected by Maryland's Court of Special Appeals.

Phuonglan Ngo fell on ice while working as a pharmacist at a CVS store in Hyattsville, Maryland. She suffered an injury to her back as a result of the slip and fall. Ngo began receiving temporary total disability (TTD) payments through CVS's insurer, American International South Insurance Company the day after her fall. Temporary total disability is a disability that is 100 percent in extent but temporary in duration. TTD is one of four categories of disability benefits.

Ngo started medical treatment shortly after the accident and eventually saw a neurosurgeon. The doctor believed that she might benefit from surgery to repair the fracture. When the insurer found out that Ngo had refused surgery, it stopped making TTD payments.

Ngo filed issues with the Maryland Workers' Compensation Commission (Commission) and asked the Commission to order vocational rehabilitation and to reinstate temporary total disability payments. After a hearing, the commission found that Ngo had reached MMI and it refused to reinstate her TTD payments but did authorize a 60-day vocational rehabilitation program for job placement. The Commission also determined that Ngo should be paid compensation for vocational rehabilitation benefits at the TTD rate during the period of vocational rehabilitation

One of the doctors who examined Ngo determined that she was unable to return to work full-time; but, that she was capable of working four hours a day, providing that her job was sedentary. The doctor also determined that she had reached MMI as of the day she decided against the surgery.

Ngo then asked the Circuit Court for Prince George's County to review the Commission's decision. At trial, Ngo testified that she had applied for 50 jobs that met the criteria suggested by the doctor and that after, having applied for 50 jobs, she was still unemployed. The jury found that Ngo had reached MMI, that she was temporarily and totally disabled from performing any work for several months after the on-the-job accident and that she continued to be temporarily and totally disabled until she found a job. However, the court set aside the jury's finding that she was "temporarily and totally disabled . . . continuing until she finds a job." The court also vacated the Commission's order. Ngo appealed.

The appeals court observed that Ngo contended that Maryland case law supported her position that temporary total disability payments could continue even after a worker reaches maximum medical improvement, so long as the claimant remains wholly disabled. Reaching back into Maryland case law, Ngo cited a 1940 case, relying upon language that said that a period of temporary total disability is "the healing period or the time during which the workman is wholly disabled and unable by reason of his injury to work. It is, therefore, a separate and unitary period of compensation, and as such is distinguished from a permanent partial disability."

Ngo argued that the rule should be that even though the healing period had ended because she reached MMI, she could still receive temporary total disability payments if she remained wholly disabled and unable, by reason of injury, to work.

The appeals court disagreed, explaining that to read the case the way Ngo did would blur the distinction between permanent disability - either partial or total - and temporary disability.

In Ngo's case, the court said the language supported the employer/insurer's position over the meaning of the word "temporary." An injury cannot be considered "temporary" once the healing period has ended, i.e., once the injured worker is as far restored as the permanent character of the injuries will permit. Once the healing period has expired, to obtain further workers' compensation benefits, the worker is required to apply for either permanent partial disability or permanent total disability.

The court also noted that, contrary to Ngo's contention, the test of whether a claimant's disability is permanent is not whether the claimant is able to convince an employer to hire her. Instead, the court said, the test for permanent partial disability is whether, at the time a claimant reaches maximum medical improvement, there exists a job for which a reasonable stable market exists. If, due to her work-related injury, Ngo cannot perform services for which a reasonable stable market exists, but has reached MMI, she would be eligible for permanent total disability payments.

As a result, the appeals court affirmed the trial court and concluded that a claimant cannot receive temporary total disability after he or she has reached MMI.

Baltimore, Maryland-based Belsky, Weinberg & Horowitz has represented consumers in workers' compensation cases for many years. Call our attorneys at 410-234-0100 or email us for a free consultation.

October 8, 2013

Workers' Comp Claims Involving Obesity Could Increase

Fat Shadow.jpgWorkers' comp claims involving obesity could increase because of a recent ruling by the American Medical Association (AMA). The AMA declared in June that obesity is a disease.

The California Workers' Compensation Institute (CWCI) has already published a report indicating that the number of work injury claims involving obesity could increase sharply as a result of the ruling.

Obesity, according to CWCI, may become more common "as a compensable consequence of injury, just as sleep disorders, sexual dysfunction and psychological disorders became common workers' compensation 'add-ons' prior to passage of workers' comp reforms in 2012."

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July 1, 2013

Court Rejects Employer's Theory for Payment Credit in Workers' Comp Awards That Are Increased on Appeal

When a worker in Maryland suffers an accidental injury that results in a permanent partial disability, his or her award is expressed by a number of dollars per week for a fixed number of weeks. But, how is the employer to be credited for what has been paid when the award is increased or decreased on appeal - that's the question recently answered by Maryland's Court of Special Appeals.

Andrew Swedo injured his right shoulder and left leg in a fall from a ladder on November 2002. He worked for W.R. Grace. The Workers' Compensation Commission found that Swedo had a 70 percent permanent partial disability under "other cases," industrial loss of use of the body, 40 percent of which was attributable to the injury at W.R. Grace. This computed to a total of $46,800 ($234 x 200 weeks).

However, Swedo filed a petition for judicial review in the Circuit Court for Baltimore County in which he claimed the award was low. The jury agreed, increasing the 40 percent finding to 50 percent. The change increased the award to $525 a week for a period of 333 weeks. It took 148 weeks before the trial court action was concluded and the Commission passed a new order. During that time, Swedo received $34,632 ($234 x $148). The higher percentage of disability would have entitled Swedo to $525 per week for 333 weeks or $174,825.

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June 18, 2013

Preexisting Condition Does Not Disqualify Baltimore City Employees Seeking Line-of-Duty Disability

Advil on desk.jpgA Baltimore City employee is not precluded from qualifying for line-of-duty disability if he or she has a preexisting medical or physical condition that contributes to his or her disability, according to a recent decision by Maryland's top court.

Sylvester Dorsey, a school police officer in Baltimore City, was injured in a violent altercation with a student's parent in August 2007. Dorsey's back was injured as a result. Although he returned to light work duty a few weeks later, he was unable, however, to return to full work duty. The City of Baltimore terminated his employment on January 17, 2009. Dorsey then filed an application for line-of-duty disability retirement with the Employment Retirement System of the City of Baltimore (ERS).

Baltimore City Code, Article 22, lays out the eligibility requirements for certain employees of the city of Baltimore to receive line-of-duty disability retirement benefits. That section requires a claimant seeking benefits to prove that he or she sustained at least a "50% anatomical loss of the use of any 1 or at least a 25% or more anatomical loss of each of 2 or more" enumerated body parts. The loss of use must be "the direct result of bodily injury through an accident independent of all other causes and independent of any preexisting physical or medical conditions, job-related or otherwise, occurring while in the actual performance of duty with the City at a definite time and place, without willful negligence on the part of the member."

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May 21, 2013

Worker's Firing Does Not Bar Workers' Compensation Benefits

Forklift Operator.jpgAn employee's firing does not bar workers' compensation benefits if the claimant's evidence demonstrates that his or her disability caused the subsequent inability to find work, the Court of Special Appeals has ruled. The court's ruling stems from a lawsuit involving an injured worker receiving benefits who was fired after his assertion that he had not worked for a business he owned on the side was contradicted by video surveillance.

The Washington Metropolitan Area Transit Authority (WMATA) had appealed a Circuit Court for Prince George's County decision against it in a worker's compensation lawsuit. Robert Washington had been fired for claiming that he was unable to work after an injury to his back while employed as WMATA as a truck operator. However, video surveillance introduced at the Workers' Compensation Commission hearing to determine Washington's continued receipt of temporary total disability payments showed that he was working as a driver for his stretch limousine service two days before the hearing. Washington specifically denied that he had not worked those days. The Commission ruled against Washington, although Washington was later awarded permanent partial disability amounting to 22 percent industrial loss of use of his body because of the injury to his back.

Dissatisfied with the award, Washington asked for judicial review of the Commission's decision. WMATA did not challenge the award; but, before trial, WMATA asked the court to exclude all evidence Washington planned to present concerning his past and current income as the owner of the limousine service and his past or present loss of income resulting from his termination of employment with WMATA.

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May 1, 2013

Maryland Legislature Takes Action on Several Workers' Compensation Bills

Maryland State House.jpgThe General Assembly has taken action on several Workers' Compensation bills in this year's session. Twenty-five bills dealing with Workers' Compensation matters were introduced. The bill calling for Commission decisions to be emailed will become law while another piece of proposed legislation -- that would expand punishment for employers who retaliate against workers who file workers' compensation claims -- has been referred for study. Many other bills probably won't make it out of this year's session.

Senate Bill 65 has been passed into law. The bill will become effective on Oct. 1, 2013. Copies of decisions by the Workers' Compensation Commission can now be sent by electronic means if the party or their attorney consents in writing. Under existing law, the decisions are sent by first-class mail. The Senate passed the bill by a 42-0 vote. The House passed the bill by a 131-0 vote.

Senate Bill 313/House Bill 370 has been passed into law. The bill alters the definition of "public safety employee" to include Anne Arundel County deputy sheriffs so as to establish eligibility for enhanced workers' compensation benefits for a permanent partial disability award. The bill will be applied prospectively. It becomes effective Oct. 1.

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March 4, 2013

Workers' Compensation Bills in the General Assembly

There are several bills dealing with workers' compensation matters in the General Assembly this year. A bill that would allow commission decisions to be emailed and a bill that would expand punishment for employers who retaliate against workers who file workers' compensation claims are making the rounds in Annapolis.

Under Senate Bill 65, copies of decisions by the Workers' Compensation Commission would be sent by electronic means if the party or their attorney consents in writing. Presently, 30 days after a hearing is held, WCC must send a copy by first-class mail. The Senate passed the bill by a 42-0 vote; it's now before the House. If passed into law, the bill would be become effective on October 1, 2013.

Senate Bills 263 deals with awards of attorney's fees and expenses in civil actions. The bill authorizes a court to award reasonable attorney's fees and expenses to a prevailing party in any civil action that has resulted in the enforcement of an important right that is secured by the Maryland Constitution, the Maryland Declaration of Rights, or a State law and affects the public interest. There is a companion bill in the House - HB 0130. If passed into law, the bill would become effective October 1.

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February 1, 2013

How Ratings in Workers' Comp Cases Are Done

Handicap Cracks.jpgMaryland was the first state to put into place workers' compensation laws, passing such a law in the early 1900s. All Maryland employers are covered under workers' compensation insurance or have insurance in place to satisfy such claims. Injured workers seeking workers' compensation benefits have to show that the injury or illness is work-related. In most instances, if you were doing something for the benefit of your employer and you were injured or became ill as a result of that activity, then your injury or illness is work-related and you can receive benefits.

For allowed claims, benefits include medical treatment and expenses, disability payments and vocational rehabilitation.

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November 3, 2012

Doctor's Testimony Ruled Not Scientifically Valid in Workers' Compensation Lawsuit Involving Mold

Mold.jpgOne of the scourges of the modern-day world is mold and the impact of exposure upon our health. In a recent court case, Maryland's Court of Special Appeals decided that a doctor's opinion that exposure to mold led to a raft of problems for workers in a water-damaged building was not scientifically valid under the standard presently used in the Maryland court system.

The lawsuit stemmed from complaints by several employees of the Baltimore Washington Conference of the United Methodist Church (BWCUMC) of an odor emanating from the walls. A maintenance crew investigated and discovered mold. As a result, several workers filed claims against BWCUMC and its insurer, Montgomery Mutual Insurance Company with the Maryland Workers' Compensation Commission. The workers said they suffered from "sick building syndrome" as a result of the exposure. While some of the workers' claims were disallowed, several were awarded partial compensation.

The workers appealed the commission's decisions. Before trial, the insurer filed a motion asking that the testimony of Dr. Ritchie Shoemaker be excluded because his methodologies and theories on the relationship between exposure to mold and human health effects were not generally accepted in the relevant scientific community. Dr. Shoemaker is board-certified in family practice. His medical group has addressed the medical question of illness as a result of exposure in water-damaged buildings 4700 times since 1998.

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September 18, 2012

Washington Redskins Loses to Former Football Players in Workers' Compensation Decisions

Football player.jpgPro footballers and workers' compensation claims were on the mind of the Court of Appeals in August. The state's top court released two decisions, two days apart, favoring claims made by two former Washington Redskins players.

In Pro-Football, Inc., t/a the Washington Redskins, et al. v. Thomas J. Tupa, Jr., the state's top court ruled that former Washington Redskins punter Tom Tupa can collect workers' compensation benefits in Maryland for a back injury that occurred at FedEx Field during warm-ups before a pre-season game in August 2005.

There were two questions before the court: (1) whether the Maryland Workers' Compensation Commission should have exercised jurisdiction over the claim when the employment agreement contained a clause providing, among other things, that claims for workers' compensation benefits should be governed by Virginia law and that the Virginia Workers' Compensation Commission should have exclusive jurisdiction to resolve such claims and (2) whether injuries occurring while playing and practicing professional football are "accidental injuries" and, as a result, compensable under the Maryland Workers' Compensation Act.

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October 29, 2009

MARYLAND'S COURT OF APPEALS AFFIRMS WORKER'S RIGHT TO BENEFITS DESPITE A DELAY IN NOTIFYING EMPLOYER OF THE INJURY

On October 29, 2009, the Court of Special Appeals ruled, in the case of Este v. ISG Sparrows Point, LLC, that a steel worker's nine-day delay in notifying her employer of an on-the-job knee injury caused no prejudice and therefore, she was entitled to workers' compensation benefits.

At issue in this case is the interpretation of Section 9-704 of the Labor & Employment Article, which requires an employee who suffers a work injury to notify her employer of the injury within ten days. If the required notice, which may be given verbally or in writing, is not given within this proscribed period, the failure to give the notice may be excused and the employee may still have a compensable claim if the employer cannot produce evidence of actual prejudice from the delay in notification.

The Employer, Sparrows Point, claimed that Ms. Estes did not notify it of her injury until 19 days after the injury occurred, when she returned from a previously scheduled vacation. Sparrows Point argued that the nine day delay beyond the ten day requirement cause it prejudice because it could not begin an investigation of the accident or the worker's injuries. The Court disagreed, holding that the employer failed to offer any evidence of harm. The Court pointed to the fact that once the employer did have notice, no investigation was undertaken, nor was the injured worker examined by it's physician until months after the incident, therefore, it was not prejudiced by the delay in notification.

It is important to understand and comply with Maryland's worker's compensation laws. The attorneys at Belsky, Weinberg & Horowitz, L.L.C., understand the law and will work diligently to protect the rights of injured workers. If you have suffered an injury on the job, contact Valerie A. Grove to discuss your case.

July 26, 2009

Workers Compensation Information

When an injury occurs at work, an insurance company may pay your medical bills or lost time without a workers' compensation claim having been filed with the Workers' Compensation Commission. Therefore, the question that is frequently asked, is why should an injured worker file a claim with the Workers' Compensation Commission. The answer to this question lies more in the future then the present.

Under Maryland law, once a claim is filed with the Workers' Compensation Commission (as opposed to the filing of a claim with the insurance company), and it is accepted as compensable, an injured worker has the right to lifetime medical treatment at the expense of the employer/insurer so long as the treatment is reasonable, necessary and related to your accident at work. Furthermore, this right to medical treatment continues even if you stop working for the employer who employed you at the time of the accident or even if you simply retire.

In addition to the right to medical treatment, once you are discharged from medical treatment as a result of your accident, you may be entitled to receive a monetary award for any permanent disability you sustain as a result of your accident.  You may be eligible for this benefit regardless of the fact that you return to the same job that you were performing prior to your injury.

Additionally, even if you have no permanent disability as a result of your injury, but you do have some type of scarring, you are entitled to a monetary award for the permanent scarring.

Most important however, is that to be guaranteed the benefits discussed, an employee's claim form must be filed with the Workers' Compensation Commission within two years from the date of your accident (with some limited exceptions) or you will forever lose your right to claim workers' compensation benefits.

Clearly the process of filing a workers' compensation claim is a complicated legal matter that is substantially easier with the assistance of an attorney who has experience in this area of law.

Accordingly, if you have been injured at work, please contact Mr. Horowitz who has been practicing workers' compensation law since 1982. 

Mr. Horowitz may be reached by telephone at 800-895-5333, 410-234-0100 or via e-mail at jhorowitzesq@aol.com.