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Quick Maryland Workers’ Compensation Facts

Accidental Injury Requirements

Workers’ compensation benefits are payable for the disability or death resulting from an accidental personal injury arising out of and in the scope of the employment.

  1. Injury – The Claimant must show through medical documentation that he/she has suffered an injury.  It is possible to have an accidental occurrence without an injury being suffered.
  2. Arising Out Of – An injury must result from the nature, conditions, obligations or incidents of the employment in order to “arise out of” the employment.
  3. In The Course Of – “In the course of” refers to the time and place of the accident and the circumstances under which it occurs.  The issue turns on whether the injury occurred within the period of employment at a place where the Employee reasonably may be in the course of his duties and while he is fulfilling those duties or engaged in doing something incident thereto

Exceptions To Otherwise Compensable Accidental Injury

  1. Deviation by Intoxication – The Act precludes compensation to Employees or their dependents whenever injury or death is solely caused by the Employee’s intoxication from alcohol or drugs.  The Employee may still receive payment of medical benefits, only but no indemnity benefits, if the intoxication was the sole cause of the accident.
  2. Coming and Going Rule – Injuries sustained while an Employee is traveling to or from the workplace ordinarily are not compensable.  This is the “Coming and Going Rule” in Maryland.  One exception is when the Employer provides transportation or reimburses the Employee for expenses incidental to work-related travel, then the accident and injuries involving that vehicle may be compensable.  However, the Employer must be under an obligation, either express or implied, to provide the transportation and/or expense reimbursement in order for the exception to apply.  In addition, an injury which arises while the Claimant is using an automobile supplied by the Employer without permission, or for a personal deviation which is forbidden or never contemplated by the Employer, is not compensable.

Occupational Disease Claim

An occupational disease is some ailment, disorder, or illness, which is the expected result of working under conditions naturally inherent in the employment and inseparable from it.

  • Occupational diseases occur gradually over time.
  • In order to successfully defend an occupational disease claim, the Employer/Insurer should to obtain personnel records because such records could provide documentation of an employee’s long-standing medical complaints, thereby invoking the limitations defense. Personnel records will also help disclose whether the employee has suffered a “disablement” as a result of the disease.
  • Under Maryland law, a “disablement” is the event of becoming partially or totally incapacitated because of an occupational disease from performing the work in the last occupation in which the employee was injuriously exposed to the hazards of the disease. Practically, loss of time from work usually constitutes a disablement.  However, if the employee is performing the same job as his lost occupation, but due to his occupational disease he is unable to perform the job as well as he did previously, he is entitled to compensation, even though he may have sustained no loss of wages.

Defenses

There is still no compensation for injury or death caused by the willful intention of the injured employee to injure himself or herself or another, by willful misconduct, or solely by intoxication or drug use.

  1. Willfulness: The worker’s conduct must be more than thoughtless, heedless, or inadvertent.  The Employer/Insurer must show that the worker intentionally placed himself or herself if a position where he or she might expect to be injured.
  2. Intoxication or Drug Use: The defense is not available in cases where a physician prescribed the drug.  If the primary cause (but not the sole cause) of the injury was intoxication or drug use, then the employee is entitled to payment of medical expenses, but no other benefits (no TT, no PPD, no Voc Rehab).

Compensable Hernia

There is a statutory presumption that a hernia is sustained in the course of employment unless there was preexisting hernia.  The hernia is still compensable if it is an aggravation of a preexisting hernia if the hernia has become so aggravated that an immediate operation is needed.

Payment Of Temporary Total Benefits

  1. Employee gets paid 2/3 of AWW, not to exceed the State AWW. If the AWWW is less than $50/week gross, than you must pay claimant his/her AWW as the comp rate
  2. If the Employee is off for 14 days or less, the Employee should not receive payment until 3 calendar days after the first date of the disability.
  3. If the Employee was not paid wages on the date of the injury, the date of the injury will count as one of the 3 days in the waiting period.
  4. If the disability lasts more than 14 days, compensation will begin from the date of the disability.
  5. TTD may be terminated if the Employee applies for unemployment benefits. One requirement of the unemployment benefits application is that the Employee affirms under oath that he/she is physically capable to work.

Permanency

The issue of permanency arises after the Claimant has reached maximum medial improvement.  At that time, one of the parties files issues on nature and extent to a particular part of the body.  Both sides obtain medical examinations, and the medical examiner provides a permanency rating based on the AMA guidelines.  The permanency percentage represents the percentage of the maximum number of weeks to which the Claimant is entitled for the scheduled or non-scheduled member.

The Commission uses the ratings as guide but also considers the testimony of the Claimant when making its ruling on permanency.

  1. Scheduled Members

For purposes of calculating permanency benefits, the Maryland statute divides the body into two categories, scheduled and non-scheduled members.  Scheduled members are assigned a specific value, measured in weeks of compensation.  The number of weeks of compensation assigned to each member represents the maximum award of compensation that may be awarded if the loss of the member is total.

Under current Maryland Law, the following weeks of compensation may be awarded for permanent disability o scheduled members:

    1. A thumb – 100 weeks.
    2. A 1st finger (index finger) – 40 weeks.
    3. A 2nd finger – 35 weeks.
    4. A 3rd finger – 30 weeks.
    5. A 4th finger (little finger) – 25 weeks.
    6. Great toe – 40 weeks.
    7. Other toes – 10 weeks.
    8. A hand (from fingers to wrist included) – 250 weeks.
    9. An arm (does not include shoulder – shoulder is other cases) – 300 weeks.
    10. A foot (from toes to ankle included) – 250 weeks.
    11. A leg (above ankle, below hip) – 300 weeks.
    12. An eye – 250 weeks.
    13. Total loss of hearing, one ear – 125.
    14. Total loss of hearing, both ears – 250 weeks.
    15. Perforated nasal septum – 20 weeks
    16. Disfigurement – up to 156 weeks.

*Loss of more than one phalanx of a digit of a hand or foot shall be the same as the compensation for the entire digit.

*Loss of the first phalanx of a digit shall be 50% of the compensation for loss of the entire digit.

*Compensation for loss of or loss of use of two or more digits or one or more phalanxes of two or more digits of a hand or foot may be apportioned to the loss of hand or foot caused by the loss or loss of use of the digits or phalanxes; but may not exceed the loss of use of a hand or foot.

*Partial loss is a percentage of total loss; in determining percentage, consideration may not be given to effect of correcting one ear.

  1. Neck, Back, Shoulders – “Other Cases”

Non-scheduled members, or those without specifically assigned weekly amounts (head, neck, back, shoulder) are treated under the “other cases” portion of the statute, and are given a maximum of 500 weeks of compensation.  The “other cases” injuries are referred to as “body as a whole” injuries.  Injuries to the back, neck, shoulder, and chest fall under “other cases” provision.  There are special rules for deafness, blindness, and hernias.

  1. Death Benefits

An accidental injury or OD that results in death is compensable.  A deceased Employee’s dependents may receive payment of benefits for the period of dependency.  The Commission makes a determination of the total “family average weekly wage” and then determines what percentage of the deceased claimant’s contribution to the family number and each of the claimed dependent’s wages to that family income.  Each dependent’s percentage of the deceased claimant’s compensation is the percentage of the decedent’s compensation weekly rate each receives.  Dependent children get 100% of the decedents weekly compensation rate if no other dependents, up to their 18th birthday; or until they are 23 if the remain dependent are full time students at school accredited or approved by the State Department of Education. Fully dependent spouses or others receive up to 144 months of these benefits, but a minimum of 5 years if the decedent was approaching 70. For all other dependents who are neither spouse nor dependent child, the Maximum payment of death benefits for dependents is $65,000.

  1. The Amount of Weekly Permanency Compensation
    1. Permanent Partial Disability
        • 1st Tier – Less than 75 weeks (less than 15% to the body): 1/3 of AWW, not to exceed $187.00 as of 1/1/19. *

Exception:  fingers, thumb, and big toe are paid at 2nd Tier (2/3 AWW not to exceed 1/3 of the State AWW), even if under 75 weeks.

As of 1/1/2015-$168.00

As of 1/1/2016-$172.00

As of 1/1/2016-$176.00

As of 1/1/2018-$183.00

As of 1/1/2019-$187.00

As of 1/1/2020-$181.00

        • 2nd Tier – 75 weeks-249 weeks (15%-49.9%): 2/3 of AWW, not to exceed 1/3 of the state average weekly wage (As of 1/1/2020 $360.00 maximum).
        • Serious Disability – 250 weeks or more: 2/3 of AWW, not to exceed 75% of State AWW. The worker is entitled to an additional 1/3 of the number of weeks awarded for permanency (2020-75% of $1080.00 or $810.00).
        • Permanent Total: Incapacity to do work of any kind.  2/3 of AWW, not to exceed 100% of the State AWW (2020 $1080.00).
    2.  Temporary Partial Disability
        • When Claimant not at MMI but can return part-time making less than the AWW, is entitled to payment of temporary partial, calculated by taking 50% of the difference between the AWW and clamant’s current weekly gross wages, capped at 50% of the state AWW (in 2020, not to exceed 50% of $1080.00, or $540.00/wk).
    3. Apportionment
        • When an Employee’s permanent disability or death is due in part to a preexisting disease or condition and in part to a later-incurred accidental injury or occupational disease, the Employer is required to pay compensation/benefits for the later injury or disease. The Commission need not make a determination as to apportionment unless the combination of the preexisting condition and the disability arising from the later accidental injury or OD creates a greater disability than would have occurred without the preexisting condition.  The preexisting condition does not have to be work-related.  Apportionment also applies where there is an aggravation of a preexisting condition.  IME doctor must address the apportionment issue in his/her rating.
        • Subsequent Injury Fund: The Subsequent Injury Fund becomes involved with apportionment when the combined effects of the preexisting impairment(s) and the subsequent accidental injury exceed 50% of the whole body. The preexisting impairment must constitute more than 25% of the body as a whole.
    4. Post-Hearing Payment
        • Payment must be made in accordance with any award of the Commission within 15 days of the Order of the Commission.
        • An appeal does not act as a stay of payment of the Commission’s Order.
    5. Increase of Award on Appeal: Credit for Compensation Paid
        • When an award for permanent partial disability is increased on judicial review, the employer/insurer is entitled to a credit for PPD paid; If the increase occurs whether as a mere reopening at the Commission level, then the Employer/Insurer receive a credit for the prior weeks of PPD paid; See Section 9-633 of the Labor and Employment Code Ann.; Ametek Inc. v. O’Connor, 364 Md. 143 (2001).  The current settled state of the law in Maryland is if the original permanency order is appealed and the jury or judge changes that award to the higher tier, the entire award is paid at the higher tier, and the employer/insurer receives a credit for dollars paid on the original award.

Worsening

The Claimant has 5 years from the date of the last payment (e.g. the date of the check of the last payment) of compensation (PPD, TT or TP) to file issues on worsening of condition. The party raising issues must provide medical evidence, often in the form or a new IME, which indicates the percentage which the Claimant has improved or worsened. If not properly raised within 5 years from the date of the last indemnity payment, it is time-barred and all additional future indemnity benefits are barred.  Medicals remain open unless previously settled.

Settlement Vs. Stipulation

A claim may be resolved in two ways. Practically any aspect of a claim is subject to Stipulation by all parties.  They provide certainty as to the outcome of issues.  A Stipulation Agreement must be approved by the Commission.  A stipulated award of permanency is subject to reopening for worsening of the condition or additional medical treatment/TTD.

A Settlement agreement on the other hand, concludes a claim with finality.  It precludes reopening for worsening of condition, medical treatment, vocational rehabilitation, or TTD.  There are strict rules for the format of a Settlement Agreement, and all Agreements must be approved by the Commission. Also, Medicare’s interest must be protected and may require CMS review if the amounts and/or claimant’s Medicare status requires review under CMS review protocols.

Vocational Rehabilitation

Vocational rehabilitation usually does not become an issue until the Claimant is at maximum medical improvement.  The Employer/Insurer must cover the cost of Vocational Rehabilitation where the Employee cannot return to his previous line of work and the Commission approves a plan after the Claimant has been evaluated by a vocational rehabilitation counselor.  The goal of the rehabilitation is to obtain suitable gainful employment for the Claimant.  Suitable gainful employment means employment which restores the Claimant, to the extent possible, to the level of support at the time of the injury, taking into consideration the Employee’s qualifications, interests, pre-injury and future earning capacity, nature and extent of the injury, and the labor market.  An Employee is entitled to receive TTD benefits during the rehabilitation.

Claim Handling

Claim is Filed and Notice of Employee’s Claim is Issued by the Commission

  • First Report of Injury must be filed by the Employer within 10 days after the Employer receives notice of injury from the Claimant. The Employer’s First Report of Injury begins the statute of limitations for the employee to file a claim. Labor & Employment Article § 9-707.  The 14-week wage statement should be filed at the same time.
  • If a First Report of Injury is NOT filed with the Commission, the 2 year statute of limitations for filing a claim does not begin to toll. L & E § 9-708(b)(1)(2).
  • If the claim is denied for any reason by the Employer/Insurer, a C-40 issues form must be filed by the Employer/Insurer before the Consideration Date noted on the Notice of Employee’s Claim. The C-40 MUST include all bases for the denial of the claim. Also, once issue are filed, the Employer must have counsel’s appearance entered within 10 days from the date the issues are filed. (COMAR 14.09.06.2)
    • In all cases, check the AWW as found in the Employee Claim Form and TT Order.  If it is wrong, the Employer/Insurer must file the 14-Week Wage Statement or produce and/or file at the first scheduled hearing in the case. Otherwise the AWW stated in the TT Award will stand.  If the Employer/Insurer accepts the claim, the 14-Week Wage Statement must be filed within 60 days of the TT Award date.  It is a good practice to file the 14-Week Wage Statement in all cases as soon as the claim is received.
  • If issues are not filed timely, the Commission will issue one of two orders:  A “Claim Deferred” Order, used when the Claimant does not allege any lost time.  The Claimant may allege lost time at a later date, if there is medical record to support a TT claim; or (2) a TT Order, which states that TT is a to be paid from a date certain and continue during the continuation of disability.  If the Employer/Insurer wants to challenge the claim, but fails to file issues prior to the consideration date, one of these two Orders will be issued.  Once that occurs, the only way to challenge the claim at that point is to Request Rehearing and/or file an Appeal.

Time Frame for Scheduling Hearings and Continuance Request Limits

  1. AI or OD issues filed by Employer are given priority and will receive a hearing date 45 days from the issue filing date (Also applies to Limitations, jurisdiction and proper employer issues)
  2. PPD, TT and Medical Treatment, are scheduled 62 days from the date issues filed
  3. Continuances:  Request for continuances filed within 20 days of the hearing date will only be granted under exigent circumstances; request for continuances filed more than 20 days from the hearing date will be granted for just cause.
  4. If claimant withdraws issue, claimant cannot refile those same issues for 90 days to avoid Commissioner shopping

Untimely Issues Filed, Unfavorable Award by Commission

  1. A Request for Rehearing may be filed if there is an error of law in an Order by the Commission or if there is new information. The Commission has the discretion to revisit its Order or to deny the Request.  A Request for Rehearing must be filed within 15 days of the Order of Compensable Claim.
  2. An appeal from an Order of the Commission must be filed within 30 days of the Order of Compensable claim or 30 days from the denial of Request for Rehearing. The appeal is filed with the Circuit Court in compliance with the jurisdictional rules of the Circuit Court.

Statute of Limitations

  1. For all new claims, look at the date claim was filed.  A workers’ compensation claim must be filed within two years from the date of injury. An occupational disease claim must be filed within two years of the first date of disablement.  A hernia claim must be filed within one year. L & E § 9-709.
  2. For compensable claims in which an Award has been issued for indemnity payment (wages and/or permanency benefits), a five (5) year statute of limitation applies with regard to indemnity payments only. After the passing of five (5) years since the last indemnity payment, the statute of limitations expires and the claimant is no longer eligible for wage or permanency benefits.  Pursuant to new case law, the five year period begins when the Claimant receives his/her last check, not when the check issued.  Absent sending the last check via certified mail, the date claimant receives a check may be difficult to prove.
    • If no indemnity has been paid, the five year period begins from the date of the first Award passed by the Commission (i.e., Claim Deferred Award).

Jurisdiction

A Claimant is a covered Employee if he/she is injured while working in Maryland.  If he is injured outside of Maryland, the Claimant is covered if outside the state on an incidental or occasional basis and regularly employed in Maryland.

  • PRACTICE NOTE:  In all cases, focus on the jurisdiction, since it could be a Maryland, Virginia or D.C. if you operate in any of those jurisdictions.   Although Maryland may be more limiting for the injured Employee because the other two jurisdictions do not have the accidental injury requirement, some attorneys will try to file the claim in Maryland because it has potentially greater permanency benefits than Virginia or D.C.  If the Employee works in Virginia or D.C., and the accident occurred there, or if the employee was injured in Maryland, but was in Maryland for limited purpose, and files a Maryland claim, jurisdiction must be raised as an issue prior to the consideration date, or it is waived.

Statutory Employment

A principal contractor is liable to pay benefits to a covered Employee where the Employee is the Employee of a subcontractor hired by the principal contractor and is injured in the performance of work for which the subcontractor was hired.

Medical Expenses

Issues on medical expenses should be raised where it is determined that the medical treatment received is not causally related to the injury claimed.  Unless it is obvious from the records that the medical treatment is unrelated (e.g. Claim is for hand injury and treatment is to the foot), it is advisable to schedule an IME as soon as possible.  **Insurers are required to provide written notice of the date the payment of medical benefits is to be terminated to the Claimant/Claimant’s attorney and all medical care providers. A form called a “C10” must be filed and may be electronically filed with the Commission.  In addition, a copy of the C10 must be sent to Claimant/Claimant’s Counsel and the medical provider whose treatment is being terminated. Such notice to the health care provider is not required if the treatment was not authorized by the Employer/Insurer, or if any of the Employee’s health care providers have already determined that the Employee has reached MMI.

  • PRACTICE NOTE: The Five Year Rule does not apply to medical expenses and treatment; there is no statute of limitations on the Employee’s application for medical expenses once the compensability of the claim has been established.  The Employer/Insurer may send the Employee for an IME before deciding whether or not the medical treatment will be authorized.

Temporary Total Disability (TTD)

A Claimant becomes entitled to temporary total disability benefits in the amount of 2/3 of the average weekly wage if he is totally disabled due to an accidental injury or occupational disease. Temporary total may be terminated by the Employer/Insurer for good cause, including but not limited to:  notice by treating physician that the Claimant is capable of returning to duty, failure by the Claimant to produce medical documentation authorizing continued time off from work, report from an independent medical examiner that the Claimant is cable of returning to duty.  The Employer/Insurer must provide notice that temporary total benefits are being terminated by filing form C6, and must send notice to the Claimant or if represented to counsel.

  • PRACTICE NOTE:  If the Claimant is released to light duty, and light duty is available, it may be helpful to send the light duty offer to Claimant/Claimant’s counsel in writing detailing the job to be performed.

Investigation and documents Important for Defense of Claim

  1. Personnel File
  2. 14-Week Wage Statement is required for every hearing to establish average weekly wage;
  3. First Report of Injury is important especially in AI cases;
  4. Transcript and tape of recorded statements or copy of written statements;
  5. Claim Form, especially for AI cases.

 

*Prepared by Michael L. Dailey, Esq., Schmidt, Dailey & O’Neill, 1/6/2019, revised 7/31/20.  This is intended to provide general guidance and does not constitute legal advice intended for a particular claim.