Workers Compensation A to Z
Any employee injured on the job, is entitled to workers' compensation benefits regardless of whether the accident is the fault of the employer or the fault of the employee, unless the employee is guilty of gross misconduct.
Every employer in the State of Maryland is required to purchase workers' compensation insurance. Any claims for workers' compensation is against the insurance company your employer has named. All workers' compensation benefits are paid by that insurance company and as long as there is insurance, the employer is not responsible for any payments. Other than a workers' compensation claim, no claim is actually filed against your employer, although he is notified that a claim has been filed with the Workers' Compensation Commission. Your employer has workers' compensation insurance in order to protect you if you are injured on the job.
The Workers' Compensation System
Under Maryland Workers' Compensation law unless the employer intentionally hurts you, you have no right to sue the employer. The reason for this is that back in the early 1900's prior to workers' compensation law, an employee could sue his employer if the employer was negligent, however, those suits would typically take years and in the meantime the employee would receive no benefits.
Also, if the employer could prove that the employee was contributory negligent or assumed the risk, then the employee would not be able to sue the employer and the employee would receive no benefits. As a compromise between labor, the employers, employees and the government the workers' compensation system was set up so that an employee could recover workers' compensation benefits quickly even if the employee was contributory negligent or assumed the risk and even if the employee could not prove that the employer was negligent.
However, in exchange for these rights the employee had to give up the rights to sue the employer. The government passed a law agreeing that the employees would give up the rights of lawsuits against the employers in exchange for the workers' compensation system and that is why today employees cannot sue their employers.
Types of Workers' Compensation Claims
Workers Compensation claims consist of two types of injuries, accidental personal injuries and occupational diseases.
Accidental Personal Injury
Accidental personal injury is defined as "an accidental injury that arises out of and in the course of employment." Md. LABOR AND EMPLOYMENT Code Ann. § 9-101(b) (1).
Based upon the above definition, there are three elements to an accidental personal injury: 1) accidental injury 2) arises out of the employment, and 3) in the course of the employment. Harris v. Board of Education of Howard County, 375 Md. 21, 825 A.2d 365 (2003).
With regard to the first element, accidental injury, for years, the Court of Appeals required an unusual activity in order to be a compensable claim. Slacum v. Jolley, 153 Md. 343, 138 A. 244 (1927).
This particular element was eliminated in the case of Harris v. Board of Education of Howard County. Under the plain language of the statute, what must be accidental is the injury and not the activity giving rise to the injury. The Court of Appeals stated in the Harris opinion: "consequently what must be unexpected, unintended, or unusual is the resulting injury and not the activity of which the injury arises". Id.
In addition to the requirement of an accidental injury, there are two other elements in order to sustain an accidental personal injury and those elements include, arising out of the employment and the second element is in the course of the employment. "Arises out of" refers to the causal connection between the employment and the injury. An injury arises out of employment when it results from some obligation, condition, or incident of employment.
Montgomery County v. Wade, 345 Md. 1, 9-10, 690 A.2d 990, 994 (1996). The phrase " 'arises out of' requires, not that the performance of an employment-related task be the direct or physical cause of the injury, but, more broadly, that the injury be incidental to the employment, such that it was by reason of the employment that the employee was exposed to the risk resulting in the injury." Mulready v. University Research Corp., 360 Md. 51, 57, 756 A.2d 575, 578 (2000). Livering v. Richardson's Restaurant, 374 Md. 566, 823 A 2d 687 (2003).
Maryland has adopted the positional-risk test to determine whether an injury arose out of employment. See Mulready, 360 Md. at 66, 756 A.2d at 583; Wade, 345 Md. at 11, 690 A.2d at 994; Knoche, 282 Md. at 455-57, 385 A.2d at 1183-84.
In Mulready, in the context of a traveling employee, we noted that '[u]under the positional-risk test, 'an injury arises out of employment if it would not have occurred if the employee's job had not required him to be in the place where he was injured.'' 360 Md. at 59, 756 A.2d at 579. "An injury arises "in the course of employment" when it occurs: (1) within the period of employment, (2) at a place where the employee reasonably may be in the performance of his duties, and (3) while he is fulfilling those duties or engaged in doing something incident thereto.
Pertinent inquiries include: When did the period of employment begin? When did it end? When was its continuity broken? How far did the employee, during the period of employment, place himself outside the employment? Thus, "in the course of employment" refers to the "place, time and circumstances under which the accident resulting in the injury or death occurs." Id.
An occupational disease is an ailment, disorder, or illness which is the result of work under conditions naturally inherent in the employment and which is ordinarily slow and insidious in its origin. What this means is if you work under the same conditions for a long period of time or do the same type of activity over and over again over a long period of time and this eventually causes the body to wear out or causes some disease to occur and if this is very common in the type of work that you do, then these are considered occupational diseases and are a compensable injury covered by workers' compensation.
Examples of occupational diseases are:
- carpal tunnel
- heart disease
You cannot be fired for filing a workers' compensation claim. Maryland Law provides that it is actually a criminal offense to fire someone for filing a workers' compensation claim, subject to one year in jail and One Thousand Dollar ($1,000.00) fine. However, if an employer needs to replace you because your job is essential and they need someone to do the work, they do have the right to replace you and that may result in your job being not available when you return back to work. If you can prove that they fired you specifically for filing the claim only, then you may have a right to file criminal charges, as well as a possible civil suit. If they do replace you, you may be eligible for vocational rehabilitation.
Avoiding Job Loss
In order to avoid job loss it is essential that you keep your employer up to date on your treatment status and your return to work status. Frequent contact with your employer is the key. If your employer never hears from you, they may assume you are not coming back to work and look for someone else. Remember that your employer hired you for a reason. The reason is because they need you. When you are out, the need still remains and the work still needs to be done. Keep this in mind and try to go back to work as soon as it is physically possible. The longer you are out of work the more likely it is that you will be replaced.
Workers' Compensation Insurance
While you are unable to work, the workers' compensation insurance company is responsible to pay two-thirds of your average weekly wage for every day you miss from work with a doctor's excuse, except you do not get paid for the first three days until you have missed two weeks of work.
These payments are called temporary total benefits and are paid until the time when you have reached maximum medical improvement which means that they are paid until such time as the doctor says that your condition is now permanent and you will not get any better and no further treatment will help you.
Your average weekly wage is calculated by adding the last 14 weeks of gross pay together and then dividing by fourteen and this produces your average pay over that period. Workers compensation then pays you two thirds of that number. If you have missed time from work for other reasons during those previous weeks than this will affect the amount you are paid while you are off. If you worked more hours around the time of the accident but less hours for other weeks this will affect the average.
The workers' compensation insurance company is responsible to pay for your medical treatment for the rest of your life, as long as the medical treatment is related to the work related accident. If you reach a full and final settlement agreement with the insurance company, then those medical expenses could be closed. Most workers' compensation cases stay open and can only be closed at the request of the employee. Under the Maryland Workers' Compensation law the employee has the right to choose whatever doctor he would like to see, as long as the doctor is willing to accept payments under the Maryland Workers' Compensation fee schedule.
In addition the employer has the right to have the injured employee seen by one of their doctors in order to determine if the treatment that the injured worker is receiving is necessary and reasonable, however, they have no right to demand that you treat with the doctor chosen by the employer. It is not unusual for the insurance company to try and limit the amount of treatment you receive or refuse to authorize a visit to a doctor of your choice. Most doctors' offices will not see you without a prior authorization from the insurance company.
Doctors fear they will not get paid unless there is an authorization. While this is not required by law, doctors do not want to have to go to court in order to be paid. If I handle your workers compensation case, I have a list of doctors that do not require a pre authorization before they will see you. Even after you receive a permanent injury award you still have a right to go back to the doctor for additional treatment.
Job Placement or Vocational Rehabilitation
If as a result of the injuries received at work you are no longer able to do the type of work you were doing before, then the workers' compensation insurance company must pay to provide either job placement or vocational rehabilitation to retrain you for a new type of work. Under Maryland law if the insurance company finds you work or trains you for a new job, they must provide suitable gainful employment which is defined as work providing wages as close to as possible as to what you were making before, taking into consideration your injuries, your education, your work experiences and any other relevant factors.
You will not automatically receive vocational rehabilitation and/or retraining if you are unable to return back to the type of work I was doing before. The Maryland Workers' Compensation Commission favors job placement over vocational rehabilitation. Vocational rehabilitation is only provided as a last resort when other employment is not obtainable at a suitable wage. All efforts are exhausted in order to find work either with the old employer or a new employer before providing any kind of vocational rehabilitation, including training or schooling.
When you are unable to return back to the type of work you were doing before the work related accident, the insurance company will assign a vocational rehabilitation counselor to assist you in your job search. You and your lawyer do have input on who will be your counselor. Once a counselor is chosen, you will meet with the counselor. In theory, your counselor is an expert on what types of jobs are available for people with your physical limitations, education, work experience, transferable skills, and age. They also know the availability of such jobs in your area as well as how much they pay. These counselors can be extremely helpful in guiding you in the right direction. Too often, employees continue to look at jobs that they once were able to do but can no longer physically do.
The vocational counselor is an excellent resource to lead you in a new career direction that you may not have thought of on your own. It is not the job of the counselor or your former employer or the insurance company to provide you with a new job or give you a job, but only assist you in your search. While participating in your search, you will continue to receive temporary total benefits. In fact you are being paid by the insurance company to look for work and you must make it your full time job to do so.
Permanent Injury Award
After you have returned to work and have completed your treatment and your condition is now permanent and will never get any better, then you are entitled to a permanent injury award. That award is determined based upon what the doctor says your permanent disability rating is and also looks at factors including permanent wage loss, as well as many other factors, including education, other injuries that you have had, age, experience and your actual complaints.
Typically in order to prepare for a permanent injury hearing, the claimant is sent to a doctor by both the claimant's attorney and the insurance company and then the case is scheduled for a hearing. At a workers' compensation hearing any medical records are automatically admissible without the necessity of bringing the doctor in to testify. Normally, the claimant testifies first and will testify as to what injuries they received, how they received those injuries, what medical treatment they had and what period of time, if any, they were off from work. On a claim for permanency the claimant will testify as to any permanent complaints they have. The insurance company lawyer will then be able to ask the claimant questions regarding any prior injuries they may have had, any treatment that they may need in the future, whether they had any other accidents after the accident. A typical workers' compensation hearing may be as short as five or ten minutes or can last as long as one or two hours.
Permanent injury awards are based upon a percentage of disability to a certain part of the body. For instance, if the Workers' Compensation Commission determines that you have a ten percent disability to your back - that award is worth fifty weeks of benefits at a set amount per week. Each part of the body has a different value (meaning a different amount of weeks) for a total loss of that particular body part and when the Workers' Compensation Commission finds a certain percentage of that body part that translates into a certain amount of weeks. For instance - the back is worth five hundred weeks and if the Commission awards you ten percent disability of the back, that would be ten percent of five hundred which would be fifty weeks.
Each week of benefit is paid out at so much a week. All workers' compensation permanency awards are dated back to the date you last received a check (i.e. a temporary total check). If there has been some period of time since you last received any money in this particular case and the award is back dated to that particular date and started from that date, you will receive in a lump sum weekly benefits from the date you last received benefits up to the date of the award. Any benefits that are due after the date of the award will be paid weekly.
In typical cases where the injuries are relatively minor, most, if not all of the benefits will be paid in a lump sum, since the period of weeks from when you last received a check to the time when you have a hearing, exceeds the amount of weekly benefits awarded so that all of the benefits are due at that point. In cases that are more severe, the claimant typically receives a smaller lump sum and then weekly benefits, because there is usually less of a gap in benefits from the time you last received a check unto the time you received a permanency award.
How does the Workers' Commission determine how much money is paid each week as part of the permanency award?
Permanency awards are divided into four different categories. The first category is seventy-four weeks of benefits or less, which is typically an award of fourteen percent or less and those are paid at the lowest rate per week. The next tier of benefits is any award from seventy-five weeks to two hundred and forty-nine weeks which is typically an award of fifteen percent to forty-nine percent and those awards are paid at the second tier rate. Awards of fifty percent due to the accident and higher are paid at the third tier rate and the highest rate.
Finally, permanent total benefits are paid also at a high rate and are paid for the rest of your life. If you are not able to go back to any type of work, including the type of work you used to do, as well as any other job, then you are permanently and totally disabled and may be entitled to receive workers' compensation benefits for the rest of your life, even it was your intention to retire at the age of sixty-five.
Subsequent Injury Fund
You may be entitled to get paid for conditions that existed prior to a work related accident by a fund called the Subsequent Injury Fund which pays for injuries, diseases or any other conditions that exist prior to injuring yourself at work, as long as these pre-existing disabilities equal at least a twenty-five percent disability to the body and further that as a result of the work related accident you will also receive a disability of at least twenty-five percent disability to the body. If so, not only will you get paid by the workers' compensation insurance company for the injuries due to the accident, but may also get paid for these pre-existing conditions that had nothing to do with the accident, but existed prior to the accident. These are paid for by the Subsequent Injury Fund.
Under Maryland workers' compensation law the employee has the right to hire an attorney of his own choice. An attorney may not charge an up front attorney fee in order to represent someone for a workers' compensation claim. Any attorney fees for a workers' compensation claim are regulated by the Workers' Compensation Commission and are based upon a fee schedule set by the Commission. The attorney fees are based upon a percent of any award that is made in the workers' compensation claim and if there is no award there can be no attorney fee. The employer and the insurance company will have an attorney to represent them in these particular matters.
The Workers' Compensation Commission has Commissioners who are bound by the Maryland Workers' Compensation Law. Workers' Compensation Law is very complicated and is usually a specialized area that only certain attorney's practice in. A person who is injured on the job and goes to a workers' compensation hearing without an attorney will be at an extreme disadvantage since everyone else at the hearing will be an attorney, including the Workers' Compensation Commissioner, as well as the employer's attorney.