This is Legal Talk Maryland, hosted by the Maryland Law Firm of Kahn, Smith & Collins, the only legal podcast focused on the issues affecting ordinary people in the State of Maryland. Kahn, Smith & Collins, representing people and labor organizations in the State of Maryland for twenty years, and found on the web at kahnsmith.com.
Andy: Welcome to episode 25 of Legal Talk Maryland. I’m Andy Spicer of Razegroup.com, and I’m joined today by the newest associate here at Kahn, Smith, & Collins, Todd Schuler. And Todd focuses his practice on the employment side of the world, worker’s comp insurance, and also in personal injury cases, right Todd?
Todd: That’s accurate, primarily worker’s compensation and personal injury.
Andy: So you’ve been here at Kahn, Smith, & Collins for almost a year now, I guess.
Todd: Just about a year now. I’ve been working in worker’s comp and personal injury for my entire career, which really only spans a decade, but I’ve been with the firm about a year now.
Andy: We’re going to talk about legislative issues today, as it relates to worker’s compensation. You have an interesting background to have a conversation about legislative topics because you’ve had a bit of a political career, as well as a legal one, right?
Todd: I did. I served in the House of Delegates for four years and I now am the Legislative Co-Chair of the Maryland Association for Justice which is a group of plaintiff’s and worker’s comp-oriented attorneys that essentially advocate on behalf of injured workers and people who suffer injuries from negligence in the Legislature. I’m able to keep myself in the realm a bit, to play in the politics a bit further, even though my formal political career is at an end.
Andy: We did a couple of podcasts on worker’s comp a year or so ago, and we decided to revisit it today again because clearly the landscape changes a bit in terms of what’s going on with the law around worker’s compensation. And also we’re going to probably touch on one or two of the issues we touched on before with respect to hearing loss and maybe a couple of other things because obviously you’ve got a different practice and a different perspective. It’s a really important part of the work that you guys are doing here. We’ll probably hit those again.
Today we’re going to focus on the legislative aspect. Give us an overview of what you think the state of the world is with respect to worker’s comp. How are things going? Have there been any recent developments or things that people would be interested in?
Todd: The biggest hot-button topic, the biggest battleground if you will in the balance between the worker’s comp claimants side versus the worker’s comp employer side is a decision that came out over the summer called the Sanchez decision. The Sanchez decision essentially stood for the proposition that where you have a worker’s comp claim on appeal, previous to Sanchez it was understood that you could bring no other issues before the Worker’s Compensation Commission. Since Sanchez — Sanchez essentially interpreted the law differently to say that while a claim is up on appeal you can bring any of a number of issues before the Worker’s Compensation Commission.
For our side’s benefit this is very beneficial because you have a means to adjudicate matters while things are on appeal. A portion of your worker’s comp claim could be on appeal for eighteen months. Prior to Sanchez, you couldn’t bring any other issues before the Worker’s Compensation Commission. There might be something medically that wasn’t being paid for or your time off of work wasn’t being addressed, and you’d have to wait until the appeal was cleared until you acted.
Since Sanchez, that’s no longer interpreted to be the case and the question really for this legislative session is will either side attempt to manipulate Sanchez or to codify some elements of Sanchez. The prevailing knowledge now, although it’s a very fluid situation, is they’re going to wait for the Court of Appeals to do whatever the Court of Appeals is going to do and then the losing party probably will revisit it next session. There’s a possibility that it will end up being dealt with this legislative session.
Andy: Can you talk us through the process a bit? When a worker’s comp claim ends up on appeal, what has happened? From the employee’s point of view what’s happened up until that point and what does the fact that it’s on appeal mean to them in terms of getting compensation, or medical bills paid? Paint a scenario for us on how this develops.
Todd: Any dispute between an injured worker and the insurance company that pays their benefits can be brought before the Worker’s Compensation Commission and adjudicated at that level. This could be the final disposition of the permanent disability. This could be three weeks of back pay. This could be authorization for an MRI, anything, any dispute that arises between an injured worker and the insurance company responsible to pay their benefits.
Either party that is aggrieved by the decision of the Worker’s Compensation Commission can appeal to the Circuit Court for the proper county. Let’s just leave it there. During the appeal process, the benefits have to be paid, so very often you’ll reach a situation where a permanent disability award is appealed by the employer. By the time we get to the appeal, in the circuit court the award has been paid off.
Andy: I guess the question I have is from an employee’s point of view. When an appeal gets filed, if I understood what you said correctly, they’re going to continue to get — you mentioned an MRI, so a dispute over payment for an MRI. If there is a dispute over that, it doesn’t mean the employee can’t get the MRI.
Todd: Correct, once the decision of the commission in favor of the employee has come down, the insurance company has to pay the benefit regardless of whether or not they take the appeal. I went down that road to say sometimes it’s already taken care of by the time we get to the appeal. It doesn’t make any sense to go forward with the circuit court appeal because the benefits have already been paid.
Sometimes however the very collection of that small MRI has implications for the entire claim, so even though the MRI has been paid the employer might still want a decision from the circuit court overturning the Worker’s Compensation Commission because of the potential implications of just a simple MRI.
Andy: I assume that the appeals process doesn’t ever allow the insurer to go back and recover things that were paid pre-appeal from the employee, is that fair?
Todd: That is fair. That’s accurate. Because of that you’re able to work things out at the appeal level sometimes, but sometimes the implications are so big. The beauty of Sanchez now, let’s say you get the MRI approved and the only issue you filed at the worker’s comp level pre-Sanchez, was for an MRI. You get the MRI authorized, it’s on appeal. How do you then go back and get the surgery authorized that the MRI proved was necessary? Pre-Sanchez you couldn’t. As long as that thing is up on appeal the Worker’s Compensation Commission has no jurisdiction to hear the issue of the surgery.
Andy: Everything else almost gets a stay at that point.
Todd: Right.
Andy: So Sanchez does change the landscape on that a lot. That decision came down in the summer?
Todd: In the summer from the Court of Special Appeals and it will still be heard by the Court of Appeals. Typically from a legislative perspective, the Legislature is very resistant to change anything that the Court of Appeals is hearing now. If something is going to be heard at the Court of Appeals, they don’t want to usurp their judgment for the judgment of the Court of Appeals.
The only way anything really happens with Sanchez is if both sides come together and say we like parts of it and we can live with parts of it if we don’t have to eat the whole cake here, and we work out some kind of deal where some issues are allowed to retain jurisdiction at the commission where others would go into a pre-Sanchez posture.
Andy: How do you define the two sides on an issue like that? Who are they typically representing? I guess insurance companies would be one.
Todd: Insurance companies are one side of the equation. They have to pay benefits and there’s an organization called the Maryland Defense Council and they sort of take a look at all of the bills and proffer some as well that will make the practice of worker’s comp better from the perspective of the attorneys that represent these insurance companies.
Our side, the Maryland Association for Justice, is the counterpart that represents the injured workers. More or less we’re a collection of worker’s comp and plaintiff’s lawyers that want to make the practice of worker’s comp and personal injury law smoother from the perspective of our clients and our practitioners.
Andy: Other than Sanchez what else is going on?
Todd: Well, we have a bill that Delegate Feldman from Montgomery County is putting forward for us that fixes a bill from last year. Last year there was a comprehensive bill dealing with death benefits, where an employee dies as a result of a worker’s comp injury. It was a big bill really dealing with the balance of two classes of people: partially dependent individuals and wholly dependent individuals.
The bill passed. Unfortunately when it did there was a piece of language that was copy and pasted from the wrong section and it set up a scenario where some people may be deprived entirely of any money benefits just by accident. All of your money benefits in worker’s comp are based on something called an average weekly wage. The calculator for the average weekly wage in the language of the death benefit statute from last year was based on what’s known as the date of disablement. Some claims are not for accidental injuries on the job. Some are for what are called occupational diseases. And some of those occupational diseases manifest themselves after an individual has retired.
Because of that the date of disablement language that was copy and pasted into last year’s bill is problematic because you have a situation where the average weekly wage is calculated from potentially ten years after a guy ahs retired. To calculate an average weekly wage we take a fourteen-week look back in worker’s compensation. Fourteen weeks isn’t going to do you any good if you’ve been retired for ten years. Your average weekly wage is zero.
Obviously not the intent of the Legislature when they were dealing with this whole other issue in death benefits, but Delegate Feldman has been kind enough to agree to go down and get that fixed, hopefully. I think we probably will have a cooperation of the defense bar as well as the plaintiff’s bar as well as the commission. We’re still ironing out commitments from everybody but everybody agrees that it wasn’t the intent of the Legislature to totally deprive people of any money benefits. It was an accident of the language.
Hopefully, I say hopefully because I’m partially responsible for making sure everything goes smoothly. Hopefully there will be very little that happens other than fixing this language in the Legislature this session. There will be some retread bills. We’ll have to see what the other side puts forward. Obviously, anyone can introduce a worker’s comp bill. Anyone can introduce a bill that either intentionally or accidentally affects worker’s compensation. As the bills are being filed, we monitor them and take a look at them. We see if this is going to hurt us or is this going to help us. We’ll have to see.
Andy: That’s great. In covering the legislative agenda is there anything else you think we need to talk about?
Todd: I hope not. I hope it’s a somewhat quiet session. We’ve had a couple of battles over the last few years and hopefully we’re at a period where maybe not a whole lot of action is taking place down there. We’ll see.
Andy: Sounds good. In the next episode we’re going to cover hearing loss and occupational diseases and you’ll give us your perspective on that and give us a sense of maybe what people are seeing in terms of benefits and things and some of the hurdles for getting those cases resolved, right?
Todd: Sure, absolutely.
Andy: Until next time, thanks Todd.
Todd: Thank you.
As always, none of the content of this program should be considered legal advice. Please seek an attorney for specific legal guidance relating to your individual circumstances. This podcast does not create an attorney/client relationship between Kahn, Smith & Collins, and any individual.
