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What Maryland Employees Should Know About Workers' Compensation Claims
by
Andrew H. Kahn
Francis J. Collins
Leslie A. Pladna
I. INTRODUCTION
Many employees fail to take advantage of their rights under the workers' compensation laws of Maryland because: (1) they do not understand the benefits they are entitled to; (2) they are afraid of employer retaliation if they file a claim; and/or (3) they are concerned about attorney's fees and other costs associated with pursuing their rights. This page will summarize the workers' compensation system and provide you with the basic information you need to understand your rights when you are injured on the job. You should still obtain legal advice before you actually file a claim and before you provide any statements to your employer's claims adjuster.
II. THE HISTORY OF WORKERS' COMPENSATION
A brief understanding of the history of Worker's Compensation helps to put the current system into perspective. Prior to 1914 when Maryland enacted its first Workers' Compensation law, there existed no special relationship between an employer and employee which entitled the employee to any benefits simply because of an injury sustained in the course of employment. Therefore, if an employee simply fell into an open stairwell (because he was not paying attention) and was killed, no benefits would have been due to the surviving widow and children. Unless the surviving family could prove that the employees death was directly caused by the negligence of the employer the family would be left to fend for itself.
In the era before workers' compensation a lot of families were left in desperate straits. Therefore, the Workers' Compensation law was created as a compromise that was intended to benefit society as a whole. The compromise was this: employees would be entitled to medical care and other benefits if they were injured on the job as the result of an accident or occupational disease (even if the employer did nothing to cause the accident) but,
1. The workers' compensation claim would be the employee's only remedy against the employer. The employee could not sue the employer even if the employer were grossly negligent in causing the injury, and
2. The benefits which could be received would be strictly limited to the amounts set forth in the Workers' Compensation law. The law was not intended to provide the employee with a full recovery and it clearly does not do so.
III. THE PARTS OF THE WORKERS' COMPENSATION SYSTEM - WHO DOES WHAT?
1. The Workers' Compensation Commissioners
Nine workers' compensation commissioners are appointed by the Governor to preside over the adjudication of workers' compensation claims. The commissioners hear cases in Baltimore City and at various sites throughout the State. When disputes arise as a result of the filing of a claim, a workers' compensation commissioner hears evidence at an administrative hearing and then issues an order requiring the employer and/or its insurance carrier to make the payments which the commissioner deems appropriate. The orders of the commissioners may be appealed to the Circuit Court by either the employee or the employer and its insurer.
2. Employers and Insurers
All employers are required by statute to carry workers' compensation insurance for their employees unless they prove to the Workers' Compensation Commission that they have sufficient funds to act as a self-insured employer. Many of the larger employers and local governments are self-insured. Therefore, their claims are handled internally by a risk management office and members of the local government's legal department. Sometimes independent claims adjusting firms are hired by large employers to help handle their claims.
The Uninsured Employers Fund has also been established to plug the gap and pay benefits when an employer violates the law and fails to obtain insurance. Stiff penalties are applied to employers who fail to obtain proper insurance.
3. Medical Care Providers
Physicians who treat an employee for an injury sustained in an accident covered by the Workers' Compensation law are regulated by the law. They can only charge fees which are in compliance with the statutorily set Workers' Compensation fee schedule, regardless of their normal charges.
Many large employers have their own, on staff, physicians and medical departments or groups of physicians with whom they have contractual relationships. These medical staffs are hired to keep track of employee injuries and to provide medical care at a reduced cost to the employer. Employers often try to persuade or coerce their employees to obtain medical care from the employer's in-house or handpicked medical staff. While the employer does have a right to monitor your care and have you examined with regard to your fitness for duty, the employer does not have the right to dictate who will provide your actual medical treatment. You are entitled to receive reasonable and necessary medical care from any physician you choose. Often a physician who does not have any established relationship with your employer will have a more objective view of your injury and will be able to treat you more effectively.
If a dispute arises regarding what is reasonable and necessary care, this dispute can be settled in a hearing before the Workers' Compensation Commission.
4. Vocational Rehabilitation Counselors
If an employee is injured so severely that he or she is, or ultimately becomes, permanently disabled from their regular occupation, they may be entitled to assistance with job placement and/or retraining for another career. Vocational counselors are hired (usually by the employer) to prepare recommendations for the employee's placement in a new career or retraining in preparation for such placement. Vocational counselors who work for employers have an inherent conflict of interest. While they may have a sincere desire to help the employee obtain new employment, the employer (who is paying their fee) wants to make sure that the employee's return to work is accomplished at the least possible cost.
If the employee wants vocational help from someone other than the counselor hired by the employer they can contact the Division of Rehabilitation Services of the Maryland State Department of Education or hire a vocational counselor of their own.
5. Attorneys
Employers and Insurers are represented by experienced claims adjustors and attorneys who are hired for the purpose of limiting the funds which the Employer and Insurer must pay as the result of work related injuries suffered by employees. The Workers' Compensation laws are complicated and the legal representatives of the employer and insurer know what they are doing. Employees need experienced legal counsel to understand their full rights and to protect their entitlement to benefits.
An employee's attorney will investigate your claim for you, identify necessary witnesses, complete all claim forms, help you secure proper medical care and vocational assistance, negotiate with the employer and insurer, and represent you in all hearings before the Workers' Compensation Commission and the Courts.
Unlike the typical attorney-client relationship, your relationship with your workers' compensation attorney is strictly controlled by statute. You will not be billed for hourly charges or a contingent fee based upon the amount of your recovery. Rather, the amount of the fee which your attorney is allowed to charge is set by the Workers' Compensation Commission and is paid directly by the Employer and Insurer from the proceeds of your claim. If you do not win your claim no fee will be charged. Attorneys' fees range generally between 10% and 20% of the amount of the benefit obtained depending upon the type of benefit and the amount of the payment.
IV. WHAT TYPES OF INJURIES AND DISEASES ARE COVERED?
An employee is usually entitled to receive Workers' Compensation benefits when he is injured on the job as the result of an accident or occupational disease.
1. What does "On the Job" mean?
Being "on the job" normally means being on the premises of your employer or on an assignment during your actual hours of work. If you are injured on your way to or from work, your injury will not be covered unless you are on an errand or assignment for your employer. You may be covered on the employer's parking lot, or while picking up lunch for your boss or fellow employees.
2. What is an Accident?
Not every injury that happens at work is covered by Workers' Compensation. The injury must be caused by an accident or occupational disease. An accident is a sudden or unexpected event, usually traumatic in nature, which causes an injury. For example, if you are lifting a box of groceries in the normal fashion and your back fractures, you are not entitled to any benefits under the Workers' Compensation laws. However, if the box you were lifting slipped from your hands and you twisted your back trying to catch it, you would be entitled to full benefits. A recent court decision relaxed this requierment but employers and insurers are lobbying the legislature to a return to a narrow definition of the term "accident".
3. Occupational Disease
Many employees believe that a work related injury or disease is not covered by the Workers' Compensation laws of Maryland unless the injury arose from a "slip, twist or fall" or some other traumatic accident or event. The Court of Appeals changed this rile. Moreover a number of disabling conditions frequently encountered by employees may be the source of compensation benefits even though the disability arose gradually, without trauma and as a result of performing the normal duties of the job. Such disabling conditions are called occupational diseases.
a) What is an Occupational Disease?
An occupational disease is a disease which causes death or disability, and which actually results from hazards which are characteristic of and constitute an inherent part of a particular job.
Perhaps the clearest way to explain what constitutes an occupational disease is to provide an example of something which is not an occupational disease:
Example: While you are working as a cashier in your store, one of your fellow employees, who has the measles, walks up to you and sneezes in your face. You contract a severe case of atypical measles which progresses to encephalitis and permanent brain damage. All your physicians agree that the disease arose on the job.
You are not entitled to any Workers' Compensation benefits as a result of the above described disease, even if it clearly arose on the job. Exposure to the germ filled sneeze could have just as easily happened to a butcher, a baker, or candlestick maker, etc. as a cashier. Nothing about the measles is characteristic of or an inherent risk of working as a cashier.
It should be noted that claims for occupational diseases can be filed even after the employee retires as long as the claim is filed within two years of the date when the employee has actual knowledge of the occupational nature of the disease. (The employee must have also given the employer notice of the disease within one year of his date of disability.)
b) Recognized Occupational Diseases That May Apply to Union Members
1. Hernias
If you sustain a hernia on the job, it is compensable even if it was not caused by an accident. For example, if you sustain a hernia from lifting a box of groceries in the normal fashion without any "slip, twist or fail" the injury is still covered by Workers' Compensation benefits.
2. Carpal Tunnel Syndrome
The constant stress on the wrist and hand caused by repetitive use of the hand in a flexed position (such as when using a keyboard, operating a cash register, scanning groceries or cutting meat) may cause the tendons which run through the carpal tunnel in the wrist to become inflamed and swell. This, in turn, puts pressure on the sensory and motor nerves which run through the narrow carpal tunnel into the hand. The victim of this condition develops severe pain in his or her hand and/or eventually loss of feeling and strength in the hand and fingers. Surgery is often required to open the trans-carpal ligament and free up the inflammed nerves. Surgery helps but seldom results in a complete cure. Carpal tunnel syndrome often results in the end of a career involving continued repetitive hand usage.
There are a number of causes of carpal tunnel syndrome which are not job related. Hypothyroidism, connective tissue diseases such as arthritis, diabetes, high blood pressure, hormonal imbalances and direct trauma to the hand or wrist are often cited by employers as the cause of an employee's carpal tunnel syndrome. Careful medical documentation is necessary to prove that the substantial contributing cause of your carpal tunnel syndrome is the nature of your repetitive job duties. If you detect the start of symptoms in your hands you should seek legal advice promptly so that medical evidence can be assembled before erroneous or misleading information begins appearing in your medical records.
V. WHAT BENEFITS AM I ENTITLED TO?
If your injury is compensable under the Workers' Compensation laws, you will be entitled to receive the following benefits:
Medical Costs:
All reasonable and necessary medical care which you may need for the treatment of your injury for the rest of your life.
Temporary Total Disability Benefits:
While you are disabled from work and still recovering from your injury, you are entitled to receive 2/3 of your salary up to a maximum that changes for every year. This payment is tax free. Your employer may choose to pay your regular salary instead of temporary total benefits. If you receive your regular salary, you are still entitled to a partial tax credit.
Permanent Partial Disability Benefits:
When you have finished recuperating(often referred to as reaching "maximum medical improvement"), you will be entitled to benefits to compensate you for any permanent disability which might remain. The amount of the benefits depends on the part of your body which is injured, the extent of the injury, your average weekly wage at the time of injury and the year in which you are injured.
Because of two plateaus, benefits can nearly double depending on a mere 1% difference. For example, for anaccident in 2000 an award of 14% of the back can result in payments of up to $7,980.00. On the other hand, 15% will pay $15,825.00. Similarly, 49% of the back will pay $51,695.00 while 50% will pay $157,842.00. Therefore, in order to maximize the benefits payable to you, it is important to take these plateaus into consideration when presenting your case to the Commission.
Permanent Total Disability Benefits:
Up to $740.00 per week for life with an inflation adjustment up to 5% per year.
Vocational Rehabilitation Benefits:
Reimbursement of tuition and retraining expenses for up to 2 years and continuation of an amount equivalent to your temporary total wage benefits during the period of placement assistance and/or retraining.
Death Benefits:
Weekly payments of up to $740.00 per week for dependents during the period they remain dependent.
Social Security Disability Offset:
If you obtain Social Security Disability benefits and then obtain workers' compensation benefits your workers' compensation benefits will act as a partial offset to your Social Security benefits. The combination of workers' compensation benefits and Social Security benefits can not exceed 80% of the employee's income. The Social Security benefits will be reduced to reach this level.
VI. SHOULD I FILE A CLAIM?
Any worker that is injured in an accident on the job or develops an occupations disease must file a claim with the Worker's Compensation Commission in order to receive benefits and protect his or her rights.
Retaliation
If an employer fires an employee solely for filing a Workers' Compensation claim, the employer has committed a criminal offense punishable by up to 1 year in prison. Therefore, if you have been injured on the job, you should not hesitate to make a claim for the benefits to which you are entitled.
Filing the Claim in Time
If a Workers' Compensation claim is not filed with the Workers' Compensation Commission of Maryland on the proper form within 60 days of your injury all rights may be lost. As long as the employer is not prejudiced by the late filing of a claim, the claim may usually be filed up to 2 years after the date of injury or the diagnosis of an occupational disease. Simply notifying your employer of your injury does not protect your rights. The claim must be filed with the Workers Compensation Commission on a specific form entitled "Employee's Claim."
VII. WHAT SHOULD I EXPECT AFTER MY CLAIM HAS BEEN FILED?
Compensability and Temporary Benefit Procedures
After you or your attorney have sent your claim form to the Workers' Compensation Commission the Commission will reproduce the claim onto a blue form entitled "Notice of Employee's Claim" and send it to your employer and the employer's insurer. The blue form will have an assigned claim number and, a "consideration date" located at the bottom of the form. This date is 21 days after your claim was processed by the Commission.
If your Employer challenges your right to compensation it must file an "contesting issues" form with the Workers' Compensation Commission before the consideration date. If it does not file challenging issues before the consideration date you will receive an award of compensation from the Commission instructing the Employer and Insurer to begin paying the benefits to which you may be entitled at that time.
Once it has been determined that you are entitled to receive benefits under the workers' compensation act (either by agreement or through an order of the Commission following a hearing) you will obtain reasonable and necessary medical care through physicians of your choice. Your employer may have you examined periodically to determine whether or not you are fit for regular duty and whether or not your medical care is reasonable and necessary. If a dispute arises regarding your fitness for duty or your medical care it can be resolved in a hearing before the Workers' Compensation Commission.
Your employer is entitled receive copies of all medical records related to your treatment and is also entitled to obtain a signed medical release from you which allows them to secure medical records from other physicians who have treated you in the past.
While you are recuperating from your injury and disabled from work you will receive temporary total benefits at 2/3 of your salary. If your employer has a light duty position available for you (which complies with your physical limitations) you can be compelled to return to this light duty work even though you have not reached full recovery.
Permanent Partial Disability Benefit Procedures
Once you have reached maximum medical improvement you may be entitled to permanent partial or permanent total disability benefits depending on the extent of residual problems, if any, which remain after completion of your treatment. If permanent physical problems seem to exist (i.e. a stiff knee, a sore back, a painful shoulder, a missing finger tip, etc.) your attorney will have you evaluated by an independent physician who will prepare a report which sets out your level of disability, in percentage terms, according to an evaluation procedure specified in the Workers' Compensation statute. Your attorney will then file an issue form which specifies the parts of the body with regard to which a permanent disability is claimed. Your employer will then have the right to send you to a physician of their own choice to obtain a disability evaluation of their own. Typically, a significant difference exists between the employer's evaluation report and the one obtained by the employee. Your attorney may be able to reach an agreement with the employer as to the proper level of disability. For instance, your physician may report a 30% disability to your knee, the employer's physician may report a 10% disability, and you may agree to split the difference at 20%. If this occurs your attorney will file a stipulation with the Commission and your benefits will be paid on the basis of the stipulation without need for a hearing.
If you and your employer are unable to agree on a stipulation, then a hearing will be scheduled before the Commission. It usually takes 3 to 8 months from the date issues are filed for a permanency hearing to occur.
The Hearing
Workers' compensation hearings are held before a Commissioner, who serves in the capacity of an administrative law judge. Unlike a more formal court proceeding, medical records and other documents may be placed into evidence without the need for "live" testimony by physicians. Hearings usually last between five minutes and one-half hour. Typically, only the employee testifies. The employee will be asked questions by his attorney (who will have previously prepared him or her to testify) and then cross-examined by the employer's attorney. The Commissioner will listen to the testimony, read the medical records and other documents and prepare a written decision in the form of an order which will be mailed to the employee about 2-4 weeks after the hearing.
Appeals
If either the Employer or the Employee is unhappy with the decision of the Commissioner they can file an appeal to the Circuit Court where a judge or a jury can review the decision of the Commission and overrule it if they believe it is incorrect. If the Commission awards benefits to the Employee, the Employer must pay the benefits to the Employee while the appeal is pending in the Circuit Court. Sometimes all the benefits are paid before the appeal is heard. Further, appeals can be taken to the Court of Special Appeals and then the Court of Appeals if errors of laws are alleged to have been committed at the Circuit Court level.
VIII. RE-OPENING CLAIMS
After you have received an award from the Workers' Compensation Commission and all of the benefits set forth in the award have been paid, your claim is not closed.
Medical Care
As long as you can prove that medical care is reasonable and necessary and required as a result of your work related injury, you can obtain such medical care for the rest of your life. It does not matter if you are retired or no longer working for your employer.
Disability Payments
Wage replacement benefits (i.e. 2/3 of your salary) may be paid if you again become temporarily totally disabled as the result of your original injury. However, if you wish to re-open your case for the payment of additional temporary total benefits you must do so within five years from the last date you received a payment for temporary total or permanent partial disability benefits.
IX. CLAIMS THAT ALSO INVOLVE NEGLIGENT THIRD PARTIES
Employees are sometimes injured when another individual commits a negligent act. For instance you may be involved in a crash caused by a drunk driver while operating your employer's truck. In this case, the employee is entitled to pursue both a workers' compensation claim and a claim against the negligent driver. If workers' compensation benefits are obtained first, they will constitute a lien against the auto claim and must be repaid from the proceeds of the auto claim. The Employer must pay its proportionate share of the attorneys' fees and costs necessary to obtain the settlement or judgment against the negligent driver. Settling your auto claim first will not close out your workers' compensation claim but the net proceeds you receive from your auto claim will act as a credit against future benefits that would otherwise be payable by the Employer. Until the "credits" are used up, no workers' compensation benefits need be paid.
X. SUBROGATION RIGHTS
If your employer or its insurance carrier challenges your right to compensation benefits you may receive wage continuation benefits from your union or an insurance policy while you are waiting for your claim to be resolved. If you do win your worker's compensation claim you may be obligated to pay back the benefits you received from your union or disability insurance policy.
XI. WORKERS' COMPENSATION AND JOB SECURITY
The filing of a Workers' Compensation claim should have no effect, one way or the other, on your job security. Your employer's obligation to preserve your job, if any, is controlled by various federal statutes such as the American's with Disabilities Act, the Family Medical Leave Act and the specific terms of your employment agreement. The Workers' Compensation Commission has no jurisdiction to rule on job security issues. This is a matter for grievance arbitration (in the case of union workers) and the Courts. Broadly speaking, if you remain physically capable of performing the essential duties of your job (or can perform it with reasonable accommodations by the employer) your injury should have no effect on your job status. Though you may obtain a substantial permanent partial disability award because of a painful injury (i.e. 40% of the knee) you are clearly free to continue working in pain as long as you are capable of performing substantially all of your duties.
XII. CONCLUSION
The Workers' Compensation Laws of Maryland do not provide you with complete protection from work related injuries. However, if you understand your rights and obtain competent legal advice the combination of workers' compensation benefits, disability pension benefits, social security benefits and statutes which protect against disability discrimination can usually be woven together to provide reasonable security against the consequences of work related injuries.
