MARYLAND WORKERS’ COMPENSATION

AN OVERVIEW

I. A History of the Workers’ Compensation Act

Prior to the inception of the Workers’ Compensation Act, the recovery of an injured worker was based on the English common law principles of negligence. In other words, in order to make a recovery against your employer for an injury occurring at work, it was necessary for the injured worker to establish that their employer had been negligent in causing their injury. If no negligence was proved against the employer, then no recovery could be made by the injured worker.

Due to the slow speed at which the court system moved, the many defenses available to an employer in defending these claims, (contributory negligence and assumption of risk) and the small recovery that an injured worker would receive (if any) the Workers’ Compensation system came into existence.

Workers’ compensation systems began to develop in Europe in the 1890's and were carefully monitored in this country. In 1902, Maryland set the trend in the United States by establishing an Employers’ and Employees’ Cooperative Insurance Fund. Although not successful and only lasting for two years, this was the beginning of our current compensation system.

II. The Philosophy of the Workers’ Compensation Law

The objective of Workers’ Compensation is to provide compensation to an injured worker based on a known statutory system that guarantees certain rights to injured workers. This philosophy is reflected in numerous appellate decisions which have repeatedly stated that the Workers’ Compensation laws are to be “liberally construed” to effectuate the general purpose of providing workers’ compensation benefits.

III. The Participants in the System

The Commission is comprised of ten Commissioners, one of which is designated by the Governor as Chairman. Each Commissioner is appointed by the Governor subject to the approval by the state senate for a twelve-year term. Every workers’ compensation hearing is heard by a worker’s compensation commissioner who acts as a judge, making the decision in each case over which they preside.

In addition to the Commissioner, the participants at a hearing will include the claimant, the employer and usually an insurer for the employer. Both the claimant and the employer/insurer are ordinarily represented by an attorney. If an employer is uninsured, then a state agency known as the Uninsured Employers Fund will be a party to the hearing, and if so ordered by the Commission, they will make payments to the injured worker in lieu of the employer. Additionally, if an injured worker meets the statutory requirements, another state agency known as the Subsequent Injury Fund may be a party to the case. If ordered by the Commission, the Subsequent Injury Fund will make certain payments for disability that the injured worker had prior to the accident in question.

The Workers’ Compensation Commission is located at 10 E. Baltimore Street, Baltimore, Maryland. This is also the location where hearings are held in Baltimore City. For people who live outside of Baltimore City, the Commission has regional hearing sites throughout the counties of the state.

IV. The Requirement of an Employer-Employee Relationship

Although to many it would seem obvious, an employer-employee relationship must exist in order for an injured employee to be entitled to compensation benefits. For example, the employer may raise the defense that the injured person was not an employee, but rather was an independent contractor or a casual employee. If the employer were correct, then this would defeat the injured workers’ ability to collect compensation benefits. Once the employer-employee relationship has been established, the only remedy an injured worker may pursue against their employer is a workers’ compensation claim, assuming that the employer has a workers’ compensation insurance policy and the injury was not intentional on the part of the employer.

A. Third Party Actions

If the negligence of someone other then the employer ( a third party), causes the injury, then a third party action may be brought against the negligent party. In such a situation an injured worker may recover damages for their pain and suffering, as well as lost wages and disability, in addition to the workers’ compensation benefits received. If such a recovery is made, then by virtue of a statutory lien, the workers’ compensation insurance company which paid benefits on behalf of the injured worker is entitled to reimbursement of their lien for the benefits paid.

V. The Requirement of an Accidental Injury

A. Accidental Injury

i. The Harris Case
Prior to a decision rendered in June 2003 by Maryland’s highest court, “accidental injury” was defined as some type of unusual event, whether it be a slip, twist, fall or some other variation from the normal duties of your job. However, all of this changed with the landmark decision in the case of Harris v. Board of Education of Howard County (filed on June 6, 2003) in which the Court of Appeals changed over 70 years of prior judicial interpretation and eliminated the unusual event component of an accidental injury.

As stated by the Court of Appeals:

We issued a writ of certiorari [a type of review] in this workers' compensation case for the purpose of reconsidering one particular line of this Court's opinions which have held that, for an injury to be covered as an “accidental injury” under the Workers' Compensation Act, the injury must result from “unusual activity.” The“unusual activity” requirement is not supported by the language of the Workers' Compensation Act, is contrary to other opinions by this Court, is a distinct minority view in the nation, and contravenes the liberal purposes of the Workers' Compensation Act. We shall overrule the line of cases which injected the "unusual activity" requirement into the definition of “accidental injury.”

The new definition of an “accidental injury” as defined in Labor Article Section 9-101 & 9-501 (See Appendix A ), is an injury that happens “by chance or without design, taking place unexpectedly or unintentionally.” Alternatively stated, “an injury is an accidental injury if it is the result of an “untoward event which the employee neither expected nor intended, referring to the injury itself, not the activity which resulted in the injury”. In other words without all the legal ease, as long as you have an injury at work that is accidental, it should be covered by workers’ compensation (with some limited exception).

Clearly, this is a phenomenal broadening of the workers’ compensation system to the injured worker and the most significant change I have seen in my 22 years of practicing workers’ compensation.

ii Arising Out of and In the Course of

In order for an accident to be an accidental injury, the accidental injury must arise “out of and in the course of” the claimant’s employment. While these terms are often used interchangeably, they are not the same.

a. Out of

An injury arises “out of” the employment when “it results from the nature, conditions, obligations or incidents of the employment”. Therefore, in order for an injury to arise “out of” the employment, the injury must arise from something that is specifically associated with your employment, as opposed to some dangerous condition that you could be exposed to outside of your employment.

b. In the Course of

An injury arises “in the course of employment” when it occurs within the period of employment at a place where the employee reasonably may be in the performance of their duties and while they are fulfilling those duties or engaged in something incident thereto. For example, if you were making a delivery for your employer and detoured from your normal route to pick up your dry cleaning and were injured while making your detour, then you would not be “in the course of your employment.”

B. Deviations from Employment

There are certain circumstances where actions on the part of the injured worker will be considered deliberate and hence a “deviation” from the employment relationship. These situations include:

1. Horseplay.

2. Willful Misconduct.

3. Self-Inflicted Injuries

4. Intoxication (Alcohol or Drugs).

While the burden is on the Employer/Insurer to prove these deviations, and although there is a presumption against intoxication, if any of these deviations are found to exist then the claim for compensation may be denied. However, see LE, Section 9-506, (Appendix B ) for the exceptions dealing with intoxication.

C. Injuries Occurring Outside the Normal Working Environment

The fact that an employee is injured outside of their normal working environment or hours, does not necessarily defeat a workers’ compensation claim. Accordingly the following circumstances may be compensable events:

1. Going to or from work in an Employer owned vehicle or while being reimbursed for gas mileage.

2. Engaging in Employer sponsored recreational events.

3. Traveling as a part of your job.

4. Engaging in a Special Mission.

5. Injury due to proximity to your job.

6. Injury while on your Employer’s premises before work has begun.

7. Personal Comfort.

As these areas frequently involve complicated legal issues, it is important to discuss them with me when they arise.

VI. Occupational Diseases

An occupational disease has been defined as “some ailment, disorder or illness which is the expectable result of working under conditions naturally inherent in the employment and inseparable therefrom, and which is ordinarily slow and insidious in its approach.” Furthermore, in order to establish that you legally have an occupational disease, you must be able to prove the statutory requirements stated in LE, Section 9-502. (See Appendix C ).

Disablement is defined in the statute contained in Appendix C; however to put it simply, disablement is either lost time from work, a restriction in the manner that you do your work, i.e., light duty, or possibly a hindrance to the manner in which you do your job. Regardless of which, you must have disablement in order to legally establish an occupational disease.

The most common example of an occupational disease is carpal tunnel syndrome, which results from the repetitive use of your hands or wrists while performing your job.

In addition to the requirement that you have a disablement, proving an occupational disease is different than an accidental injury, as you must have some type of medical evidence which establishes that your disease was caused by your employment. It is not legally sufficient to merely state that you believe that your disease was caused by your employment, as this will not satisfy your burden of proof.

VII. Exceptions

A. Hernias

A hernia claim differs from other accidental injury claims, as there is no need to prove an accidental injury occurred. Instead you need only prove that the hernia resulted from a strain which arose out of and in the course of your employment and that you did not have a pre-existing hernia.
An exception is made when a pre-existing hernia becomes so strangulated, incarcerated or aggravated at work so that an immediate operation is necessary. (See Appendix D) However, the notice requirements for a hernia are different as more fully discussed in Section VIII (c).

B. Occupational Hearing Loss

Although an occupational hearing loss which develops over a period of time (at least 90 days) is an occupational disease, there is no requirement in these types of cases that the injured worker have any disablement. Nevertheless, the injured worker must establish that the hearing loss they suffered was within the compensable hearing loss range and was caused by exposure to industrial noise at the employer’s premises. (See Appendix E )

VIII. How to File a Workers’ Compensation Claim

The one and only way to file a workers’ compensation claim is by filing an employee’s claim form (See Appendix F) with the Maryland Workers’ Compensation Commission, which is the responsibility of the injured worker. Merely making a claim with an insurance company for compensation benefits does not protect all of the benefits provided in a workers’ compensation claim. For the reasons discussed hereinafter, it is essential that you properly describe an accidental injury or occupational disease when you fill out your employee’s claim form. Therefore, I strongly urge that you contact me prior to the completion of an employee’s claim form. Remember that the insurance company has an attorney protecting their legal interest, and you should have no less.

Within 2-3 weeks of the filing of your claim form, you will receive your copy of the Notice of Employees’ Claim or what I call “the blue form,” because it’s on blue paper. In the upper right-hand column the claim number is listed. This claim number will always be associated with your claim. In the lower right-hand column there will be what’s known as a consideration date. This is not a hearing date, but rather is the date by which your employer or the insurer has to file “issues” if they are going to fight or contest your case. If “issues” are filed then a hearing will be scheduled before the Workers’ Compensation Commission within several months. If no “issues” are filed, then your claim is “accepted” and you are entitled to those benefits discussed in Section X.

IX. Time Limits for Filing Claims and Providing Notice

A. Accidental Injuries

1. Limitations--Pursuant to LE Section 9-709 (a), a covered employee shall file a claim application form with the Commission within 60 days after the date of accident. Furthermore, the failure to file a claim within 60 days bars the claim, unless excused by the Commission. The late filing is excused when the employer has not been prejudiced by the failure to timely file the claim. However, if you fail to file your claim with the Workers’ Compensation Commission within two years from the date of your injury then your claim is completely barred. The fact that you have made a claim with the workers’ compensation insurance carrier for your employer or the fact that you have received medical benefits or monetary compensation, does not extend your time limits for filing a claim with the Commission. If you lose more than three days from an accidental injury and the claim is properly reported to your employer, then the time limit for the filing of the claim does not begin to run until your employer files their first report of injury with the Workers’ Compensation Commission. Nevertheless, you should not rely on the aforementioned exception, but should file your claim with the Commission as soon as possible.

2. Notice--The time limit for filing your claim with the Commission is distinguished from your responsibility to provide notice to your employer when you have an accidental injury. In the case of an accidental injury notice (either oral or written) must be provided within ten days of the accident. In the case of death, notice must be provided within thirty days. Despite these requirements, LE Section 9-706 allows the Commission to excuse the failure to give timely notice for the reasons outlined in the statute. (See Appendix G)

B. Occupational Diseases

1. Limitations--Pursuant to LE Section 9-711(a) if a covered employee suffers a disablement or death, then they or their dependents shall file a claim with the Commission within 2 years, or in the case of pulmonary dust disease, within 3 years after the date:

(i) of disablement or death; or
(ii) when the covered employee or the dependents of the covered employee first had actual knowledge that the disablement was caused by the employment.

2. Notice--Within 1 year of the date the employee (or someone on his/her behalf) knows or has reason to believe that the employee has an occupational disease. If death occurs, within 1 year after the death.

In the case of the time limits for providing notice and for filing a claim with the Commission, there are exceptions and waivers. However, you should not rely on these for determining your time limits for taking action.

C. Hernias

In a hernia claim, notice must be provided to the employer within 30 days after its occurrence. Unlike other notice provisions, failure to provide notice within 30 days in a hernia claim is a complete bar to the claim.

D. Do Not Forget That

1. The filing of a First report of Injury by your employer does not protect your interest but is for the protection of your employer.

2. The fact that a claimant is ignorant of the nature or extent of an injury does not excuse the filing of a timely claim.

X. The Benefits

A. Medical Treatment

When you sustain a compensable injury you have the right to reasonable and necessary medical treatment at the expense of your employer. This right extends for your lifetime, as long as you do not “settle” your claim. In addition to paying for your doctor, the hospital, therapy etc., you are also entitled to be reimbursed for the mileage you incur in traveling to receive your medical care, as well as tolls and parking expenses. Additionally, you are entitled to be reimbursed for prescriptions and other incidental medical supplies (crutches, ace bandages, etc.) you need as a result of your injury. To be reimbursed for these expenses, make sure that you keep your receipts and detailed records of your mileage. (See Appendix H).

Keep in mind that there is a medical fee guide which mandates by law how much a health care provider is paid for their service. The injured worker is not responsible to pay the difference between the bill and the allowance provided for in the fee schedule. For this reason you should not make out of pocket payment for medical services, as you may not be able to recover payments you make in excess of the medical fee schedule.

B. Disability Benefits

1. Temporary Total Disability Benefits.

When you are in the “healing period” (for more than 3 days) due to your work related injury you are paid at the rate of 2/3 of your average weekly wage, subject to a maximum that increases each year. Your average weekly wage is determined by adding your 13 weeks of pay before the accident, including overtime and dividing that number by 2/3. Once your average weekly wage has been determined, it will never change. Therefore, it is extremely important that you receive the printout showing how your average weekly wage was determined by the insurance company, so as to ensure that you are being paid at the correct rate. This benefit is not taxable income and is not claimed at the end of the year when you file your tax returns. However, if you are out of work less then 14 days, then you are not paid for the first 3 days of lost time. Additionally, you are entitled to this benefit when in the “healing period” regardless of whether you are actually employed and even if you are incarcerated.

2. Temporary Partial Disability Benefits.

In some instances your doctor will allow you to return to work at something less than full time. In such circumstances you are entitled to temporary partial disability benefits. This benefit is calculated by taking 50% of the difference between your average weekly wage and the salary which you are making on your reduced hours. For example, assume your average weekly wage is $300 per week and you return to work at 20 hours per week. You would receive a paycheck of $150 (20 hours) from your employer and $75 from Workers’ Compensation (50% of the difference between your $150 paycheck and your average weekly wage of $300). Once again this benefit is not taxable income.

3. Permanent Partial Disability Benefits.

When an injured worker is discharged from active medical care and assuming that a sufficient period of time has passed from the original accident, then a person who has ongoing complaints may be entitled to an award for permanent partial disability.

In order to receive such an award you must have an evaluation from a medical provider, stating that you have some percentage of impairment as a result of your work related injury. Once this is received, we will request a hearing before the Commission on the issue of the nature and extent of your disability. Sometime prior to the hearing, the employer/insurer will schedule an evaluation with a medical provider of their choice.

An award for your disability is determined by either an agreement between the parties or by a finding made by a Workers’ Compensation Commissioner, after a hearing. Regardless of the method used, a percentage of disability will be decided. The percentage of disability is then applied to a schedule of benefits established by the Maryland legislature. This schedule sets a maximum amount of weeks of compensation for each body part.(See Appendix I) This schedule, your average weekly wage, and the year in which you are injured, will determine how much monetary compensation your percentage of disability equals.

In 2004, an award for 1-74 weeks of compensation is paid at $114 per week, while an award for 75-249 weeks will be paid at a maximum of $247 per week.

If your case proceeds to a hearing before the Commission, it is important to understand that a commissioner is not bound by the ratings of impairment given by the medical providers. A commissioner may find that you have more or less disability than given by the medical providers, or even that you have no disability. This is possible due to the fact that medical providers give their opinion on the basis of the “impairment” to your body and commissioners determine the “disability” which you suffer from that “impairment”. However, the two are not always the same.

i. Disfigurement

If an injured worker has a scar or other disfigurement to their body as a result of a work related injury, then you are eligible to receive up to 156 weeks of compensation for the scar. However, you may not receive an award for permanent partial disability and scarring to the same part of your body. For example, if you have surgery to your knee and have both a scar from the surgery as well as permanent partial disability, you cannot receive an award for both. Rather, you would most likely choose to pursue the claim for disability to your knee as it would result in a higher monetary award. However, if you have permanent partial disability to your knee and a scar to your arm, then you could receive compensation for both. Remember, that the scarring does not have to happen from the accident itself, but could be from surgery as a result of the accident.

4. Permanent Total Disability

Permanent total disability within the Workers’ Compensation Act has been defined to mean the incapacity to do any work of any kind for which a reasonable market exists, and not merely an incapacity to do the work an injured employee was accustomed to doing and qualified to perform. However, this does not mean that an injured worker has to be in a state of total helplessness. If, as a result of their injury, an employee “can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonable stable market for them does not exist”, then an injured worker is deemed to be permanently totally disabled.

When an injured worker is deemed to be permanently totally disabled, they will receive compensation benefits for the rest of their life so long as they remain permanently totally disabled. Additionally, permanent total disability benefits are tied to a cost of living formula which is adjusted each year.

5. Death Benefits

If an injured worker dies within seven years of a compensable injury or occupational disease, then the decedent’s wholly or partially dependent survivors will be entitled to compensation benefits. A dependent is defined as “one who is receiving in whole or part the reasonable necessities of life from a worker at the time of the accident resulting in the death of the worker”. Moreover, a legal or moral obligation to support someone does not establish dependency for workers’ compensation purposes.

Those persons generally considered to be dependents include the surviving spouse, “common law” wife, minor child, illegitimate child, invalid or disabled adult child, parents, grandparents, siblings, stepchildren and stepparents.

The maximum amount of compensation awarded will differ between a person who is deemed wholly dependent as opposed to partially dependent. While the initial award in both situations is $45,000, paid on a weekly basis, this amount ceases when it is completely paid in a partially dependent situation. However, if a wholly dependent individual continues to be totally dependent at the time the $45, 000 is paid out, then the payments will continue so long as they remain wholly dependent.

C. Vocational Rehabilitation Benefits

If an injured worker is unable to return to their job at the time of their accident due to the injuries sustained in a compensation claim, then the employer/insurer must provide vocational rehabilitation benefits.

These benefits include the payment of temporary total disability while receiving “vocational rehabilitation services” as defined in LE Section 9-670(e)(2) (See Appendix J), as well as the services of a vocational rehabilitation counselor to assist you in finding a new job.

Once it is determined that an injured worker is in need of these services, a counselor is assigned to the injured worker who is then interviewed and tested. Thereafter, a recommendation for vocational rehabilitation services is made. Once the recommendation is made, the various parties involved (claimant, claimants’ attorney, vocational rehabilitation counselor and the insurance company adjuster) discuss the recommendation and eventually arrive at an agreed upon vocational rehabilitation plan.

The plan defines the responsibilities of all parties involved in helping the injured worker find a new job. The new job must be “suitable gainful employment.” Suitable gainful employment is defined in LE Section 9-670 (c) (See Appendix J) and means employment, including self employment, that restores the injured worker to the extent possible to their wages at the time of their disabling event. Due to the nature of this definition, what is suitable gainful employment will vary from one injured worker to another, depending on their past employment, degree of injury, medical restriction, education, transferable skills and their geographical location.

In the event that the parties cannot reach a rehabilitation plan by agreement, then a hearing is requested before the Workers’ Compensation Commission, who will make a decision on what type of plan to proceed with, after conducting a hearing with all interested parties.

XI. Hearings, Appeals and Reopening

After a hearing has been held before the Commission, an Order containing the Commissioner’s finding will generally be issued within 30 days. Within 15 days of the date of the Order the insurance company must make payment on the Order. If they fail to do so without “good cause”, then penalties consisting of interest may be assessed against them by the Commission.

Any party to a workers’ compensation hearing may appeal the Order of the Commission to the Circuit Court that has jurisdiction over the appeal. However, if the Commission has ordered the payment of compensation to the claimant, then payment of this compensation must continue, regardless of the filing of an appeal. Regardless of the outcome of the appeal, an injured worker will not have to repay any of this compensation.

The appeal must be filed with the Circuit Court no later than 30 days from the date of the Commission’s order. Any party to the appeal may request that the appeal be heard before a jury. The process of trying an appeal is much more formal then a hearing before the Commission. Medical testimony usually must be produced live by way of your doctor testifying, as opposed to being able to submit a medical report as allowed at the commission.

Once the decision of the Commission becomes final, a reopening for additional lost time or an increase in permanent partial disability may be pursued. However, the petition to reopen must be filed with the Commission within 5 years of the date of the last payment of compensation (which does not include the payment of medical bills) and allege with a basis in fact that the claimant’s condition has worsened. If a petition to reopen is not filed within the 5 years, then the only right which remains is the right to lifetime medical treatment.

XII. The Use of An Attorney

As pointed out previously, the employer or insurer will usually have an attorney to advise and represent them at a hearing. Furthermore, insurance company adjusters, while not attorneys, are nevertheless trained in the law.

As an injured worker trying to navigate a system that you are unfamiliar with, you are at a definite disadvantage if you choose not to be represented by an attorney. If nothing else, a review of this material should leave you with the understanding that the workers’ compensation system is complex and consists of many different laws. Consequently, it is imperative that you are represented by an attorney who is familiar with Maryland Workers’ Compensation.

Remember that an attorney may only charge you a fee if they are successful in recovering you benefits, that attorneys’ fees are set by law, and that the fees are paid from any award that you receive, not out of your pocket.

As always both myself, my partners and the staff at Belsky, Weinberg and Horowitz, stand ready to assist you 24 hours a day with your workers’ compensation claim or any other legal matter with which you may require assistance.

For additional information, contact us for a free consultation with an experienced legal team.