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Workers Compensation laws are designed to compensate an employee or their family members in work related injuries. But too often the benefits due are not paid. Frequently victims are forced to suffer administrative delays and lengthy appeals before obtaining any Workers Compensation benefits. Baltimore Attorney Marc Atas is a highly-skilled attorney based in Baltimore, Maryland who represents individuals throughout Maryland who have been involved in a Workers Compensation claim.
Workers Compensation Frequently Asked Questions
Workers Compensation Attorney Marc J. Atas has compiled a list of the most frequently asked questions. If your question is not answered here, please feel free to contact us the question and we will be happy to answer it.
- What is a Medicare Set Aside in a Maryland Workers Compensation Claim?
In a worker’s compensation claim, normally the insurance company for your employer is responsible for your medical treatment for the rest of your life.
The issue of whether Medicare was going to pay for expenses related to workers compensation cases or third -party liability cases has been out there since 1981. The answer to this question was quickly answered in the workers compensation arena by Medicare with the requirements that Medicare must be considered by all parties in a worker’s compensation case before a case is settled and the medicals are closed.
In response to these issues the Maryland Workers Compensation board has taken the lead by requiring that all full and final settlement agreements that close the medicals take Medicare into consideration by way of a Medicare set aside and failure to do so will result in denial of the settlement approval. The Maryland Workers Compensation Commission requires that all settlements have the following language in the body of the settlement. “Employer and Insurer also agree to reimburse Medicare for any provisional or conditional payments made by Medicare that are ultimately determined to be the responsibility of the employer and insurer, up to the date of approval by the Commission of this agreement.”
- What is a Rating in a Maryland Workers Compensation case?
The Worker’s Compensation commission can make an award for permanent disability as a result of a work-related accident. After you have returned to work and have completed your treatment, then you may be entitled to a permanent disability award. That permanent disability award is determined based upon what both workers compensation attorneys doctor’s says your permanent impairment rating is and also looks at many other factors including permanent wage loss, education, other injuries that you have had, age, experience and your actual complaints.
In order to make determinations of permanent disability, each party to the case including the claimant’s workers compensation attorneys as well as the insurance company adjuster or insurance company lawyer will obtain a permanent impairment rating. The permanent impairment rating is done by a medical doctor or in the case of a mental disability can but it be done by a medical doctor or by a psychologist.
- What happens if the doctor releases me to return to work on light duty in my Maryland Workers Compensation claim?
In Maryland workers compensation claims, there are times when either your treating doctor or a doctor chosen by the insurance company releases you to return to work light duty. Returning to work on light duty is an excellent way to avoid job loss.
- How long does a Maryland Workers Compensation case take?
A Maryland work injury attorney knows there is no time limit as to how long a workers’ compensation case will take. Because the case can stay open for the rest of your life, some case have continued for 20 or 30 years or longer. The general flow of a workers’ compensation case handled by a Maryland work injury attorney is as follows: The claimant treats with the Doctor until the doctor decides claimant is at maximum medical improvement and will not get any better or until the claimant stops treatment on their own. The claimant is paid for all time missed until they go return to work. The timing of these two steps is totally within the control of the doctor and claimant.
Once the claimant has completed treatment, then a a Maryland work injury attorney has to determine whether claimant can return back to the type of work they performed at the time of the accident. If the Maryland work injury attorney determines Claimant can- not return to the type of work they performed at the time of the accident, then claimant will go through the vocational rehabilitation process. A Maryland work injury attorney knows the vocational rehabilitation process timing depends upon how long it takes you to find a job or how long your retraining program is although retraining is limited to two years.
Once your treatment is complete and you are back to work, then a Maryland work injury attorney knows you can move forward to receive your permanent injury award. In order to get the permanent injury award, you need to obtain a rating from a Doctor picked by your lawyer who will hopefully give a favorable rating. Then the insurance company will schedule a rating with an insurance company doctor and then your case will be scheduled for a hearing. This process takes about 3 to 6 months.
Once you have your actual hearing with your Maryland work injury attorney, the decision from the Workers’ Compensation Commission can take as long as 30 days. The Insurance company then has 15 days to pay the order.
- How long do I have in order to file a Maryland Workers Compensation Claim?
In accidental injury cases , the statute of limitations require that the claim must be filed within two years of the date of accident. Unlike an occupational disease, an accidental injury is usually one specific event that took place at a specific time and place and injury is usually noticed immediately or shortly thereafter. Accidental injury claims require an accidental injury, arising out of and in the course of your employment. Ex. I slipped and fell at work and injured my back.
In occupational disease claims employees or dependents of employees who have died have a two year statute of limitations from the date of disablement or 2 years from when the employee or dependent had actual knowledge that the disablement was caused by the employment. An employee who suffers from an occupational disease may recover workers compensation benefits. Occupational diseases are generally caused by long-term exposures at work with a slow and insidious onset. Usually repeated activity at work all day 40 hours per week for several months or years. ex. I type 40 hours a week, 52 weeks a year and now one year after doing so, my doctor tells me I have carpal tunnel syndrome
- CAN I PROTECT MY MARYLAND WORKERS COMPENSATION AWARD FROM A CHILD SUPPORT LIEN?
The answer to this question is both yes and no. You will be able to protect seventy five percent of the permanency award or full and final settlement only. The balance of the award may be subject to a garnishment for a child support arrearage. (arrearage means you are at least 30 days behind in child support payments. Md. Family Law Code Annotated Section 10-121.)
- Can I file a Maryland Workers Compensation claim for injuries that did not happen on the employer’s premises?
There are numerous instances when the Maryland Workers Compensation law allows for workers Compensation claims to be filed even when the injury does not take place on the employer’s premises. See attached blog articles.
- Are Maryland Workers Compensation benefits taxable?
Amounts you receive as workers’ compensation for an occupational disease or accidental injury on the job are not taxable by the state or federal government if they’re paid under the Maryland Workers Compensation law. The exemption also applies to Maryland Workers Compensation death or dependent survivor’s claims as well as temporary total, medical benefits, vocational benefits and your permanent injury award or permanent total award as well as money from the Subsequent injury fund.
- Can I Re-Open My Maryland Workers Compensation Claim Once It Is Settled?
The answer may be yes depending on whether you left your Workers Compensation case open or you closed it. Even if you have closed it, there may be a limited number of situations where you may be able to re-open the settled case. See attached blog articles
- Do the Insurance companies hire private investigators to follow you in a Maryland Workers Compensation claim?
The Insurance companies will occasionally hire a private investigator to follow you if you have filed a worker’s compensation claim. If treatment tends to last longer than expected, if the injured party gives the insurance adjuster a hard time, if the injuries seem exaggerated compared to the type of accident or if the claimant is out of work for longer than expected, then the insurance company may hire a private investigator to follow you.
- How long will my Maryland workers compensation case take?
- Who is entitled to workers’ compensation benefits?
Who is entitled to workers’ compensation benefits?
Any employee injured on the job 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. The employee can file a worker’s compensation claim even if the accident is totally his fault. The Employee does not have to prove the employer or anyone else is at fault.
There are two types of worker’s compensation claims. The first type of worker’s compensation claim is an accidental personal injury claim. For an accidental injury claim the employee needs to be able to prove that a specific time and place at work the employee was injured. The second type of worker’s compensation claim is an occupational disease claim. Occupational disease claims occur when due to repetitive type work over an extended period of time and in certain occupations the employee develops a work-related injury.
In order to file a Maryland workers compensation claim, the State of Maryland must have jurisdiction over the claim. Maryland covers employees that 1) work in Maryland or 2) work regularly in Maryland, but are hurt outside of Maryland on a job that is casual, incidental or occasional or 3) injured while working wholly outside United States under a contract of employment made in Maryland.
In order to file a Maryland workers compensation claim, he claimant must be an employee and not an Independent contractor. An independent contractor is one who contracts to perform a certain work for another according to the contractor’s own means and methods, free from control of his employer in all details connected with the performance of the work, except as to its product or result.
Workers Compensation claims are not covered under Maryland law if they are covered by federal law such as federal employees and longshoreman. Federal employees and longshoreman have their own federal workers compensation system.
- In order to file a Maryland workers compensation claim, employment must be more than casual. Casual employment is found when the work is occasional, incidental, or a usual concomitant of the employer’s business. Add this blog link here Casual Employment Under Maryland Workers Compensation
Maryland recognizes specific classes of employees that might not be considered employees under the regular definition. These employees include distributors of newspapers, farm worker, helper, jockey, juror, miner, minor, prisoners, school aide, vanpool operators, and volunteer fireman.
- Am I suing my employer when I file for workers’ compensation benefits?
Am I suing my employer when I file for workers’ compensation benefits?
Every employer in the State of Maryland is required to purchase workers’ compensation insurance. Any claim made is to be paid by 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 in order to protect you if you are injured on the job. Bottom line, no you are not suing your employer. Employees are provided by the employer with many benefits as part of their wage package. Some benefits like workers compensation, social security, minimum wage and unemployment are government mandated and others like vacation pay, sick leave, gas card, personal leave, company picnics are volunteered by the employer. Whichever one of these benefits you apply for and receive it is part of your employment benefits. An employee should have no more reservations filing for a work-related injury than for asking for their vacation pay.
When workers compensation was invented in the early 1900’s, the intention was to relieve the employee, employer and government of the hardships created when an employee is injured on the job and to place that burden on the workers compensation insurance company who was paid a premium to insure such a loss. Just like life insurance protects your family in case of untimely death, workers compensation insurance protects all parties in case of untimely injury at work.
In fact, the law specifically provides that you cannot sue the employer and your only remedy most of the time for your injuries no matter how serious is usually workers compensation except under very limited circumstances.
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.
Workers compensation does not however prevent you from suing a negligent third party. Sometimes you may be able to sue a co-employee or your supervisor or another company and or its employees working on the same job.
- Can I be fired for filing a workers’ compensation claim?
Can I be fired for filing a workers’ compensation claim?
The law says an employer can not fire someone for filing a workers compensation claim.In reality, if an employer wants to get rid of you badly enough, he will still fire you and probably get away with it.
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, As far as I know, no states attorney has ever filed charges against an employer for firing an employee for filing a workers compensation claim. When I first started practicing law, i sent a client over to the States attorney to see if they would press charges and the states attorney did not know what he was talking about. I then sent the client back to the states attorney with a copy of the law and they still refused to prosecute.
One employee filed a civil suit against the employer for firing him for filing a workers compensation claim.You would think the appeals court would see the light. The appeals court ruled, 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 they do replace you, you may be eligible for vocational rehabilitation as part of your workers compensation case if you can prove you will never be able to do your old job due to your work related injuries.
Employers get around the criminal law by finding other reasons to fire you after you are injured on the job. If you were fired the day the employer found out you actually filed the claim perhaps someone would prosecute them. The employer is usually smart enough to wait and come up with another excuse.Because the law says firing for filing the claim, an employer firing you because you were injured on the job , but before you file the claim would probably not qualify.
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.
- Who will pay for my medical expenses?
The workers’ compensation insurance company is responsible to pay for all of your medical treatment for the rest of your life, as long as the medical treatment is related to the work related accident.
9-660. Provision of medical services and treatment
(a) In general. — In addition to the compensation provided under this subtitle, if a covered employee has suffered an accidental personal injury, compensable hernia, or occupational disease the employer or its insurer promptly shall provide to the covered employee, as the Commission may require:
(1) medical, surgical, or other attendance or treatment;
(2) hospital and nursing services;
(4) crutches and other apparatus; and
(5) artificial arms, feet, hands, and legs and other prosthetic appliances.
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.
The issue of whether medicare was going to pay for expenses related to workers compensation cases or third party liability cases has been out there since 1981. The answer to this question was quickly answered in the workers compensation arena by medicare with the requirements that medicare must be considered by all parties in a workers compensation case before a case is settled and the medicals are closed.
In response to these issues the Maryland Workers Compensation board has taken the lead by requiring that all full and final settlement agreements that close the medicals take medicare into consideration by way of a medicare set aside and failure to do so will result in denial of the settlement approval.The Maryland Workers Compensation Commission Requires that all settlements have the following language in the body of the settlement. “Employer and Insurer also agree to reimburse Medicare for any provisional or conditional payments made by Medicare that are ultimately determined to be the responsibility of the employer and insurer, up to the date of approval Md. Labor and Employment Code Ann. § 9-660 (Lexis 2009)
- How do I get my lost wages while I am out of 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 doctors 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 before the accident together and then dividing by fourteen and this produces your average pay over that period. Workers compensation then pays you as part of your Maryland Workers Comp benefits two thirds of that number. If you have missed time from work for other reasons during those previous 14 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. Overtime is included as long as it occurred within the 14 weeks. Vacation or sick time for which you were not paid may be excluded from this calculation.
In calculating wages in addition to your salary, the Maryland workers comp commission must also consider housing allowance, lodging allowance, personal use of business vehicle, meals provided by employer, and rent subsidy provided by employer. Fringe benefits such as health insurance, pension benefits, 401K, IRA, lost vacation time are not included in the calculation of average weekly wage. This seems unfair since health and pension benefits could exceed the value of actual wages paid and often result in a lower wage because these benefits are paid in lieu of wages. Tips are included as part of the average weekly wage.
In calculating average weekly wage, periods of involuntary layoff and involuntary authorized absences are not included in the 14 weeks.Average weekly wage calculations should only include the weeks the employee actually worked as well as vacation days paid.If you worked less than 14 weeks because you are a new employee than only the actual weeks worked should count.If your employer laid you off for a week or longer or failed to put you on the schedule for a week or longer those weeks should not count.Bonuses owed or incurred prior to the injury but not paid until after the injury should be considered.
Second jobs income will not be considered as part of your average weekly wage. In addition, if you choose to work your second job, while unable to work the job you were injured on , you will not be eligible for temporary total although you may be eligible for temporary partial. See attached article on what happens to your tt benefits when you are released for light duty and fail to return to work
- Can I choose my own doctor when I am injured on the job?
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.
In the real world, the system works differently.While the employee has a right to treat with the doctor of his choice, that choice is severely limited. First, many of doctors do not want to get involved in litigation and therefore do not want to accept patients with workers compensation claims.Numerous doctors do not like to do the paperwork the insurance companies demand. Few doctors like the delay in payment as the adjusters do not make paying medical bills a priority. The workers compensation law has a fee schedule that many doctors feel is too low so they are not willing to work for the low fees.
In the real world most doctors will not see you unless the insurance company provides an authorization and then timely pays you. Most insurance adjusters want you to go to their doctor so they usually refuse to provide the authorization.Then the only way to get authorization is by court order which can take months.
A few doctors will see you without authorization and are willing to deal with the delays and the litigation. However these doctors work on volume meaning they do alot of workers compensation only and are use to the red tape. These are the doctors that most claimant workers compensation lawyers refer their clients to.
The insurance companies have company clinics that they have contracts with, but they sell themselves to the insurance companies as insurance and employer friendly. These are to be avoided as their main interest is to provide low cost care not high quality care.
- What happens if I cannot return back to my old job because I am physically unable to do the job any longer?
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.
Once you are able to return back to work at a new job in a new field, then the next step in your case will be a permanent injury award.If you return to work in your old job or in a new job in a new field but make the same salary or more than you were making at the time of the accident, you will receive a permanent injury award but it will be less than if you had actual wage loss.If you return to work making less than you were at the time of the accident than your permanent injury award should be higher to make up your wage loss although it will not make up dollar for dollar all that you have lost.
If you are unable to find work because you did not cooperate in the vocational rehabilitation process, your permanent injury award will be minimal. If you find a job and get fired because you did not try very hard your permanent injury award will be minimal.
If you are unable to return back to any substantial gainful employment because of your injuries then you may be entitled to permanent total benefits that could pay you benefits for the rest of your life.
- Will I automatically receive vocational rehabilitation and/or retraining if I am unable to return back to the type of work I was doing before?
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 the accident, 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 the accident, 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 you were 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.
- If I cannot sue my employer because of the injuries that I sustained at work, what benefits, if any, can I receive?
If I cannot sue my employer because of the injuries that I sustained at work, what benefits, if any, can I receive?
Under workers’ compensation law you are entitled to get paid temporary total benefits which is two-thirds of your pay for every day you missed, except you don’t get paid for the first three days unless you miss two weeks. You are entitled to have all treatment paid for the rest of your life as long as the treatment is related to the accident. Finally you are entitled to a permanent injury award, which is a substitute for an award you might have received if you were allowed to sue someone and it is something like, although not equal to a pain and suffering award.
Lifetime Medical benefits
The first of the workers compensation benefits you received is medical treatment. The medical treatment must be causally related to the accident. Medical treatment can include seeing the doctor, going to the hospital, having surgery, physical therapy, medical devices, etc. and you’re entitled get reimbursed for any mileage to and from the doctor. The medical treatment covers you for the rest of your life as long as it’s related to the accident.