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Workers' Compensation Blog

What to do if you are Exposed to the Coronavirus at Work

Tuesday, March 31, 2020

If you contract or become exposed to an individual who tests positive for COVID-19, the following actions should be taken:

  • File a First Report of injury immediately documenting as many details as possible about the specific call/exposure with the infected individual(s). This is very important early on since the likelihood of the virus spreading amongst a shift/station/department/garage is inevitable and Employers will try to argue that the exposure could be due to anything but work.
  • While an Employer cannot be forced to file a First Report of Injury, the exposure or potential exposure should be documented. If possible, fill out an Exposure Report if they are not willing to do a First Report of Injury. In addition, at a minimum, notify your supervisor, in writing, of ANY potential exposure, indicating the date, time and place of such potential exposure.
  • When seeking medical treatment, make sure to document that you were exposed at work and provide information as to the date of the exposure, the location of the call/exposure, etc.
  • If you are diagnosed with COVID-19, it will be important to obtain a work note placing you out of work. If possible, the work note should reference something along the lines of, "Out of work for _____days/weeks due to COVID-19 contracted at work."
  • Under no circumstances, should you speak with/provide a statement to anyone from the workers’ compensation carrier. If the workers’ compensation carrier contacts you, you should advise the adjuster that you will not give a statement until you have consulted legal counsel. These cases will undoubtedly be contested due to the mere fact that there will be a significant number of claims filed.
  • Once you are placed out of work due to the virus, if you are not being paid while you are restricted from working, we can file a claim on your behalf with the intent of getting leave covered/reimbursed under workers’ compensation. It is very unlikely that there will be any additional benefits (i.e.: permanency benefits) available under workers’ compensation. However, in the severest of cases if someone dies because of the condition, a death/dependency claim should be filed.
  • Not every exposure will require a claim filed and not every claim filed will meet the legal standard of a covered case. This is an evolving situation and we will continue to push for answers and do everything we can to ensure that you are protected.

This is an evolving situation and we will continue to push for answers and do everything we can to ensure that you are protected.

Workers’ Compensation Commission Hearings & Maryland Courts Update: Covid-19

Monday, March 30, 2020

Maryland is strong in the face of adversity. The videos and messages on social media, the courage and strength of our first responders, health care workers, essential employees, and volunteers and the communities that support them are inspiring and heartwarming during these unprecedented times. New information is released daily in this ever-changing climate of uncertainty and therefore, on Wednesday, Governor Hogan announced an extension of his previous Executive Order, which extends school and non-essential business closure, in an effort to protect the work, sacrifice and progress that has already been accomplished. In addition, to the Governors’ orders, Chief Judge Barbera of the Maryland Court of Appeals also issued an Emergency Administrative Order extension applicable to all Maryland Courts. The courts will remain closed until May 4, 2020.

In concert with these orders the Workers’ Compensation Commission will continue to remain closed to the public. The Commission will continue to hear cases on an emergency basis, only by appointment at the Baltimore or Beltsville hearing sites. The Commission will also continue to rule on settlements and stipulations, submitted in writing. When the Commission resumes public operations on May 4, 2020, they will set cases that were postponed by Executive Order back in on a priority basis and will maintain a morning and afternoon docket. The good news is the insurance companies are up and running, therefore injured workers should continue to receive their medical treatment and medication approvals and temporary total disability payments via check or direct deposit, when eligible. All cases that were scheduled for court dates either in the Circuit Court, if the Workers’ Compensation case is on appeal, or at the Commission will be reset for a date after May 4, 2020. The Workers’ Compensation Commission of Maryland asks for patience and cooperation while they continue to balance the well-being of the community with the needs of injured workers.

Attorney Julie Mirman

Written by Julie Mirman, an Associate Attorney with Berman, Sobin, Gross, Feldman & Darby, specializing in medical treatment coverage under workers' compensation.
Julie Mirman
jmirman@bsgfdlaw.com

Best Practices for Injured Workers’ During Covid-19:

Monday, March 23, 2020

It seems the world has stopped spinning as most people keep to their homes and neighborhoods. As the days tick by it is difficult to determine, where it is okay to go. For injured workers’, recovering from an accident, this question becomes even more difficult to answer since they might still be receiving active treatment. Doctor’s offices and rehab facilities are doing their best to stay open and sanitized, but the CDC is recommending staying home and only going out when it is absolutely necessary. We all want to do our part to flatten the curve. As an injured worker it is challenging to balance the need for medical care with keeping oneself and ones family and community safe from transmission of the virus. While it is always best to check with a treating physician on which treatments to continue and which to hold off from, here are a few tips on how to help yourself while at home:

  • Home Exercise - Now would be a great time to work on those exercises that most physical therapists and doctors have prescribed. Transition a space in your home for exercising and set up a schedule to ensure your diligence in maintaining a consistent routine for your physical fitness. There are also many online videos for stretching and strengthening that you can utilize, which do not require any equipment. Check out YouTube for a wide range of free exercise videos.
  • Rest – Use this time as an opportunity to catch up on that rest and recovery that the doctor ordered. Catch up on those television shows that everyone always talks about or dust off the old board games and spend some quality time with the family.
  • Patience – You might be waiting for a decision on medical coverage or permanency payments or at this point your hearing might have been postponed with no new date set. Currently the Workers’ Compensation hearing sites are closed to the public until at least April 6, 2020, outside of specially set emergency hearings. When the courts resume there may be a backlog causing additional delays and we are limited in options to speed up the process. Please be patient, we are all in this together; Now more than ever, it takes a village.
Attorney Julie Mirman

Written by Julie Mirman, an Associate Attorney with Berman, Sobin, Gross, Feldman & Darby, specializing in medical treatment coverage under workers' compensation.
Julie Mirman
jmirman@bsgfdlaw.com

The Courts Are Closed Due To COVID-19; What About My Workers’ Compensation Case?

Thursday, March 19, 2020

In Maryland, most of the Judiciary systems have shut down or postponed their dockets, or are operational only for exigent circumstances. The Workers' Compensation Commission, while in solidarity with the mission to slow the spread of Covid-19, is also keenly aware of the need to keep certain Workers' Compensation cases moving along. While all scheduled hearings have been postponed through April 3rd, if an emergency hearing was already filed before the closing was announced, those cases will still be heard on a limited scheduled.

Also, all emergency hearings will either take place in the Baltimore or Beltsville Commission sites only. Hearings can still be requested, however we do not yet know when they will take place. In the meantime, our office has been working remotely and using creative ways to keep cases moving with the use of online conferencing and remote mediations. For now, the Commission is continuing to receive settlements and stipulations for approval, and we are working hard to resolve cases to help our clients. We will frequently update our blogs with the most up to date information and advice on how to handle your workers' compensation needs during COVID-19.

HELP - My Attorney Retired, Won the Lottery, Passed Away, Moved to Hawaii; What Should I Do?

Friday, March 06, 2020

I know, it’s hard to believe, but lawyers are only human. We retire, pass away or sometimes even get promoted to judge. For whatever the reason an Attorney is no longer able to represent a client what are the clients’ options? Nobody likes to start over, establishing trust, getting a new representative up to speed and explaining a long case history can be overwhelming. Here are a few suggestions that might make the process less daunting.

The first step is to contact the law firm that your attorney was affiliated with and find out if there is anyone else in the firm that practices this specialty and/or has the capacity to take on your case. You can schedule a meeting with the managing partner of that firm to ascertain the next steps. However, often the firm does not have the capacity to take on more cases or your previous attorney may have been the only specialist in that area of law. If the firm is not able to take you on as a client, then it is wise to request a copy of your file if you will be seeking representation elsewhere.

If your attorney was a private practitioner or there is no other attorney in that practice who can handle your case, then the second step is to ask if the firm could give you a referral. This will help narrow the playing field. Often attorneys have colleagues that are in different practice areas and they might know who could be a good fit and competent to continue with your case. Keep in mind, if you choose to change your attorney because you are seeking different representation, the attorneys themselves may come to an agreement regarding fee sharing if there was work the previous attorney did prior to your change in attorneys. This fee sharing should not affect the client in anyway, it should be a sharing of the fees that one attorney would be entitled to on your case regardless of, which attorney is your representative.

Lastly, if you have exhausted the previous options or just want a fresh set of eyes on your case the third step would be to call your local bar association in the County/City in which you live or the jurisdiction where the case takes place. Most bar associations have a lawyer referral service and can help guide your search.

Attorney Julie Mirman

Written by Julie Mirman, an Associate Attorney with Berman, Sobin, Gross, Feldman & Darby, specializing in medical treatment coverage under workers' compensation.
Julie Mirman
jmirman@bsgfdlaw.com

Can I get treatment for my work injury if I move out of state

Thursday, August 29, 2019

Workers' Compensation is predominantly a state regulated system, therefore, each state has its own set of rules, laws and governing body. When life happens for the injured worker and the need to move out of state arises whether due to financial, health, family or lifestyle changes, it is important that you understand your medical rights before you move out of the state in which you receive your medical benefits.

Injured workers are entitled to medical treatment out of state, however the insurance company is still governed by the medical fee guidelines of the state in which they received the compensation benefit. This is the rule, but it is important to keep in mind that it is up to the providers' discretion whether they choose to accept out of state workers compensation. It can be difficult to find a provider that will allow their medical bills to be paid at the workers' compensation rate of the state in which the benefit is paid. For instance, if you receive workers' compensation benefits from a Maryland claim and the worker moves to Florida, then the insurance company only has to pay medical bills at the Maryland Workers' Compensation fee guide rate. Depending on the state this could work out more favorably for the provider if the state, in which they practice, has less favorable payout rates, but less favorably if the state is more generous to Workers' Compensation medical fees. In addition, some providers out of state will require a set-up fee to accept out of state workers' compensation and the insurance company may only agree to pay this extra fee under some circumstances.

It is increasingly more difficult to find providers willing to accept out of state workers' compensation, therefore if you are planning a move it may be time to settle your medical claim by agreeing to a medical set-aside account. With a medical set-aside account the money can be used to pay future medical bills, but are not beholden to the rates of the home state.

Attorney Julie Mirman

Written by Julie Mirman, an Associate Attorney with Berman, Sobin, Gross, Feldman & Darby, specializing in medical treatment coverage under workers' compensation.
Julie Mirman
jmirman@bsgfdlaw.com

What Documents Do I Need to File a Death Claim?

Thursday, June 13, 2019

Filing a Claim for Death Benefits

As attorneys working in workers’ compensation law, we tirelessly fight to ensure that injured workers receive the benefits they are entitled to, the medical treatment they need, and can hopefully get back to work. Unfortunately, not every claimant we represent is able to get back to work and some may succumb to their injury or occupational disease and pass away. We acknowledge that this is an extremely difficult time for you and your family, however it is vastly important for you to understand that you could be entitled to death benefits, and accordingly should gather the documents needed to file a successful death claim.

What do I need to file a claim?

To file a successful death claim, it is your responsibility, with the help of your attorney, to gather the needed documents within the allotted period of time. According to Labor and Employment § 9-710, “[i]f a covered employee dies from an accidental personal injury, the dependents of the covered employee or an individual on their behalf shall, within 18 months after the date of death, file with the Commission: (i) a claim application form (C35); (ii) proof of death; (iii) certificates of any physician who attended the covered employee; and (iv) any other proof that the Commission may require by regulation.” It is critical that you act quickly in obtaining these documents so that you may begin the process for filing a claim. For deaths from accidental injuries, the death has to have occurred within 7 years from the underlying accident. For death’s that are related to an occupational disease, the time frame can be longer and so you should contact an attorney as soon as possible to discuss the statute of limitations as it relates to your specific situation.

Are there any other documents I need?

In addition to what you have gathered, there are other documents that need to be collected and procedure you will need to follow to successfully file your claim. While this information is listed on the claim form C35, here are some of the other documents needed when filing a death claim:

When completing the Dependent Claim for Death Benefits the dependent claimant or authorized individual shall submit:

  • An authorization for disclosure of health information signed by the dependent claimant or authorized individual, directing the deceased employee’s health care providers to disclose to the dependent claimant’s attorney, deceased employee’s attorney, the deceased employee’s employer, the employer’s insurer, or any agent thereof, the deceased employee’s medical records…;
  • A certification of funeral expenses, if the dependent claimant is making a claim for funeral benefits…;
  • A certified copy of the certificate of death for the deceased employee; A certified copy of the certificate of death;
  • A certified copy of the certificate of marriage for a surviving spouse;
  • A certified copy of the certificate of birth for the dependent claimant, if the dependent claimant is the surviving child of the deceased employee.

[A detailed explanation of these requirements is provided on the claim form]

Though you may be reading this as a result of an unfortunate, life-changing event, do not hesitate to contact one of the attorneys at Berman, Sobin, Gross, Feldman & Darby if your spouse has recently passed away as a result of his/her work-related injury or occupational disease so that we may assist you in filing your claim. Death claims are an extremely complex subject, and this blog does not cover each and every legal requirement for filing a claim, that’s why it is so important to contact an attorney as soon as possible to look at the specific situation that you and your loved ones are dealing with.

Attorney Robert Hagans

Call or email me with your questions:
Robert Hagans
rhagans@bsgfdlaw.com

What Really Happens in a Maryland Workers’ Compensation Case

Thursday, May 16, 2019

Getting injured is no fun at all, and when you get injured on the job, there are often many hurdles to overcome. Founding partner Cliff Sobin wrote a two-volume treatise to help attorneys navigate Workers’ Compensation claims. This treatise is crafted for attorneys to use when representing injured workers, and Cliff wanted to put together in a much more brief and casual format for injured workers to use. Please find this downloadable PDF available to all titled; “What Really Happens in a Maryland Workers’ Compensation Case.” We hope that you find this information helpful, and as always please feel free to contact us with questions.

Death Benefits for the Dependents of Public Safety Members Where the Occupational Disease was the Cause of Death in Labor & Employment §9-503 Cases

Wednesday, May 01, 2019
  • I. Determining Dependency

    • a. Who may be dependent and when the determination is made.

      In general, a dependency determination is established through proof of financial support to the individual seeking the determination. The determination is made both on the date of disablement and the date of death2. If an individual is not dependent on the date of disablement, but becomes dependent as of the time of death, the individual is not dependent. The one exception exists where a child who was not yet born at the time of the initial disability but is born thereafter, out of a marriage existing at the beginning of the disability, and is dependent at the time of death.3 Assuming the child meets the other requirements for dependency, discussed in detail below, the child would be eligible for dependency benefits. The surviving spouse is not entitled to dependency benefits if 1) the surviving spouse deserts the covered employee for more than 1 year before the time of the date of disablement; 2) the surviving spouse deserts the covered employee at any time after the time of the occurrence of the date of disablement; or 3) the surviving spouse and the covered employee (i) were married after the time of the occurrence of the disablement and (ii) do not have any dependent children.4

    • b. Total v. Partial Dependency

      Once the determination is made, there must be a finding of total or partial dependency.5 Total dependency exists when the individual relies entirely on the earnings of the deceased. Temporary gratuitous assistance or minor considerations from others do not prevent a determination of full dependency.6 A legal or moral obligation to provide support in the absence of actual support does not create dependency.7 A finding of total dependency does not require destitution; the receipt of financial assistance from other sources which do not substantially affect or modify their status does not disqualify an individual from a finding of total dependency.8 Dependency determinations must be made on the particular facts of each case, including the relative contribution by the individual to the household income and consideration of the dependent's standard of living.9

    1. This article applies to claims where the employer/insurer has not made an election under Labor & Employment §9-683.6.
    2. Labor & Employment §9-679.
    3. Labor & Employment §9-680(c).
    4. Labor & Employment §9-680(b).
    5. Despite no case law being directly on point, the logic from the collective “death benefit statutes” indicates that the type of dependency determined on the date of disablement cannot be improved later in time, i.e., if partial dependency is determined on the date of disablement, even if the individual is totally dependent on the decedent at the time of death, the dependent would only be entitled to partial dependency benefits. See Clifford B. Sobin, Maryland Workers' Compensation (2018-2019 ed.)
    6. Larkin v. Smith, 183 Md. 274 (1944).
    7. Havre De Grace Fireworks Co. v. Howe, 206 Md. 158 (1955).
    8. Superior Builder, Inc. v. Brown, 208 Md. 539 (1956).
    9. Martin v. Beverage Capital Corp., 353 Md. 388 (1999).
  • II. Benefits Paid

    Total dependency benefits are paid to a wholly dependent spouse so long as the individual remains wholly dependent.10 A second determination of total dependency is made once $45,000 has been paid by the employer/insurer. If the spouse becomes wholly self-supporting before $45,000 is paid then the spouse will continue to receive benefits until the $45,000 is paid. If the surviving spouse remarries thereafter, payment stops even if the $45,000 has not been paid unless the surviving spouse does not have dependent children, in which case the spouse is entitled to receive payments for 2 years from the date of remarriage.11 Totally dependent children receive benefits so long as they remain totally dependent. The benefits shall continue to $45,000 even if partially or wholly self-supporting. Totally dependent minor children are eligible for benefits until age 18 unless they remain totally dependent and incapable of self-support due to physical, mental, or other sufficient reason determined by the Workers' Compensation Commission. Benefits shall continue for up to 5 years after age 18 if they attend school full time with an educational or vocational program accredited or approved by the State Department of Education. Benefits for wholly dependent individuals that are not a spouse or a child are capped at $45,000.

    Partial dependency benefits are paid where there are no wholly dependent individuals; or if the partial dependent is a spouse whose status changed from wholly to partially dependent after the death of the decedent.12 Partial dependency benefits are paid as long as the individual is partially dependent, not to exceed $75,000. The $75,000 cap applies to all claims filed after September 1, 2007.

    The weekly rate of compensation for both partial and total dependency is the maximum rate of two-thirds of the average weekly wage of the decedent, not to exceed two-thirds of the state average weekly wage. Where multiple dependents exist, each dependent receives a percentage of the total dollar amount proportionally representative to the decedent's average weekly wage.

  • III. Applying Labor & Employment §9-503(e)(2) to Dependency Benefits.

    The application of the §9-503 offset provision is applied to total dependency benefits just as it would against the workers' compensation benefits received by a living claimant under any §9-503 claim. The combined dollar amount of retirement or pension benefits and workers' compensation benefits cannot exceed the wages earned at the time of retirement. In practice however, the application is more complicated in the partial dependency context. First, regardless of the type of dependency, the practitioner must be cognizant of the election made by the decedent for retirement benefits. Given that the offset provision is temporally sensitive, if the decedent elected not to provide any retirement benefits to his/her spouse after death, then no offset would apply to the dependency benefits because no funds are being received by the dependent to activate the offset. However, if a surviving spouse received 50% of decedent's pension, that amount must be annualized and subtracted from the decedent's average weekly wage to determine the dollar amount of the weekly benefit to be paid.

    For partial dependency benefits, the author takes the position that where an offset is present, and is not a total offset, the maximum benefit of $75,000 must still be paid in full so long as the individual remains partially dependent for the time period required to receive the total amount. The offset of benefits would simply prolong the time it will take for the dependent to receive the total amount as the weekly rate of compensation would be reduced by the offset. For example, if the weekly dependency rate is $1,000 without an offset, thereby taking 75 weeks for the entire partial dependency award to be paid out, once a $500 pension offset is applied per §9-503, the weekly reduction would cause the award to take 150 weeks to pay out entirely, however, the $75,000 would still be paid.

  1. Labor & Employment §9-681.
  2. Labor & Employment §9-681(f).
  3. Labor & Employment §9-682.

Average Weekly Wage Determinations After Stine v. Montgomery County, MD and Richard Beavers Construction, Inc. v. Wagstaff

Tuesday, April 30, 2019

In the vast majority of workers' compensation claims, the issue of Average Weekly Wage is not contested or litigated and, often, the employer/insurer's counsel does not even submit a wage statement as part of their exhibit packet. In most cases this is not a problem; however, in some situations it can mean the difference of thousands of dollars in indemnity benefits to your client. Blind reliance on the Employer/Insurer's fourteen (14) week wage statement can result in injustices for injured workers. For this reason, it is important to know what tools we, as claimant's attorneys, have at our disposal to ensure a proper and fair calculation of a client's Average Weekly Wage. Two recent 2018 cases from the Court of Special Appeals highlight these opportunities: Richard Beavers Construction, Inc. v. Wagstaff, 236 Md.App. 1 (2018) and Stine v. Montgomery County, MD, 237 Md.App. 374 (2018).

The Basics: L&E 9-602(a) and COMAR 14.09.03.06

Before delving into Wagstaff and Stine, let us briefly review the language from the Workers' Compensation Act dealing with Average Weekly Wage. Md. Code Ann., Lab. & Empl. Sec. 9-602(a) states:

  1. Except as otherwise provided in this section, the average weekly wage of a covered employee shall be computed by determining the average of the weekly wages of the covered employee:

    • (i) when the covered employee is working full time; and
    • (ii) at the time of:
      1. the accidental personal injury; or
      2. the last injurious exposure of the covered employee to the hazards of an occupational disease.
  2. For purposes of a computation under paragraph (1) of this subsection, wages shall include:

    • (i) tips; and
    • (ii) the reasonable value of housing, lodging, meals, rent, and other similar advantages that the covered employee received from the employer.
  3. If a covered employee establishes that, because of the age and experience of the covered employee at the time of the accidental personal injury or last injurious exposure to the hazards of the occupational disease, the wages of the covered employee could be expected to increase under normal circumstances, the expected increase may be taken into account when computing the average weekly wage of the covered employee under paragraph (1) of this subsection.

Pursuant to its regulatory powers, the Workers' Compensation Commission (hereinafter "the Commission") enacted COMAR 14.09.03.06 in order to streamline the process of determining the Average Weekly Wage for a claim. This regulation has resulted in the "Fourteen (14) Week Wage Statement" that all workers' compensation practitioners have become familiar with. However, it is important to note (and is of particular relevance to the Court of Special Appeals' decision in Stine) that this regulation only places a requirement on the employer/insurer to file the wage statement "as soon as practicable". It does not create any sort of presumption and definitely does not limit the Commission's discretion under the statute to find a different Average Weekly Wage than proffered by the Employer/Insurer. COMAR 14.09.03.06 states, in pertinent part:

  • A. Preliminary Determination. For the purpose of making an initial award of compensation before a hearing in the matter, the Commission shall determine the claimant's average weekly wage from gross wages, including overtime, reported by the claimant on the employee's claim form.
  • B. Filing of Wage Statement. As soon as practicable, the employer/insurer shall file a wage statement containing the following information:
    1. The average wage earned by the claimant during the 14 weeks before the accident, excluding the time between the end of the last pay period and the date of injury, provided that periods of involuntary layoff or involuntary authorized absences are not included in the 14 weeks;
    2. Those weeks the claimant actually worked during the 14 weeks before the accident;
  • Determination at First Hearing.
    1. Calculation of the average weekly wage shall be adjudicated and determined at the first hearing before the Commission.
    2. All parties shall be prepared to produce evidence from which the Commission can determine an accurate average weekly wage at the first hearing.

As gleaned by Subsection A and C (2), as well as appellate case law, this regulation in no way binds the Commission to utilize only the employer/insurer's fourteen (14) week wage statement. Although the Employer/Insurer will often argue that calculation of AWW using only the fourteen (14) weeks is mandatory, the language of the statute, as well as the Regulation itself, suggests otherwise. Moreover, a regulation cannot be read to conflict with, let alone override a statute - (e.g. see Dep't. of Soc. Servs. v. Russell, 159 Md. App. 594, 611 (2004) wherein the Court of Special Appeals stated: "[w]here the language of a statute differs from relevant language in a departmental regulation, the statutory language must control." (emphasis added). For these reasons alone, the fourteen (14) week wage statement provision in the COMAR Regulations does not bind the parties or the Commission to a particular average weekly wage.

The language of COMAR 14.09.03.06 has the potential to lead to confusion as is evident by the Circuit Court's original decision in Stine. For example, the Circuit Court found, after reviewing this same COMAR provision, that "there's only one way to determine it; it is you look at the 14 weeks before the accident, and then it talks about a couple other things, but that's where I believe that the COMAR and the Commission was restricted to find." As set out below, this mistaken interpretation was reversed by the Court of Special Appeals.

The Facts - Stine

On March 26, 2016, Mr. Stine, who was a volunteer emergency medical technician (EMT) for Montgomery County, MD fell while stepping off of his assigned ambulance and injured his right foot and ankle. He was transported to the Emergency Department where he was diagnosed with a fracture, was splinted, and subsequently discharged. He underwent surgery on the ankle approximately a month later and was out of work for a couple months.

As a volunteer for a "fire or rescue company," Mr. Stine's Average Weekly Wage was governed by Lab. & Employ. Art. 9-602(g) , which directs the Commission to look to his wages earned by "other employment." In addition to volunteering as an EMT for the County, Mr. Stine worked part-time for LifeStar Response as a private EMT during the school year (he was also a college student) and full-time during his summer breaks. Consequently, for the purposes of Sec. 9-602(g), his LifeStar wages counted as the wages earned from "other employment".

Sec. 9-602(g) states: "(g)(1) Subject to paragraph (2) of this subsection, for the purpose of computing the average weekly wage of an individual who is a covered employee under § 9-234 of this title, the wages of the covered employee shall be:

  • (i) for a covered employee who received a salary or wages from other employment at the time of the accidental personal injury or last injurious exposure, the salary or wages from the other employment; or
  • (ii) for a covered employee who did not receive a salary or wages from other employment at the time of the accidental personal injury or last injurious exposure:
    1. if the covered employee derived income from a source other than salary or wages at the time of the accidental personal injury or last injurious exposure, an amount that allows the maximum compensation under this title;
    2. if the covered employee was not engaged in a business enterprise at the time of the accidental personal injury or last injurious exposure, the weekly income last received by the covered employee when engaged in a business enterprise; or
    3. if the covered employee had never been engaged in a business enterprise at the time of the accidental personal injury or last injurious exposure, an amount that allows the minimum compensation under this title."

As previously mentioned, Mr. Stine was also a full-time college student working on a nursing degree, which is why he could only work part-time for LifeStar during the school year. As a result, his weekly wages earned during the school year were less than what he earned during the summer- e.g. his fourteen (14) week earnings prior to the March 26, 2016 were not representative of what he earned over the full year.

After a hearing before the Commission in July 2016 on the issue of Average Weekly Wage, the Commission found Mr. Stine's Average Weekly Wage to be Sixty-Four Dollars and Sixty-Five Cents ($64.65), which was the gross weekly average of the wages earned by Mr. Stine for the fourteen (14) weeks preceding his March 26, 2016 work-injury when he worked only part-time for LifeStar. Mr. Stine thereafter took a de novo appeal to the Circuit Court for Montgomery County to present evidence on two alternative theories: (1) that the Commission should have utilized a fairer fifty-two (52) week time period to determine his average weekly wage based off his yearly earnings rather than just when he was working part-time; or (2) that because of his age and experience, Sec. 9-602(a)(3) allowed for a finding of an Average Weekly Wage consistent with Mr. Stine's anticipated wages since his wages with LifeStar Response were "expected to increase under normal circumstances."

The Circuit Court Proceedings

Mr. Stine requested a de novo petition for judicial review and a jury trial before the Circuit Court for Montgomery County. A de novo review permits a party to present more, less, or the same amount of evidence than was presented before the Commission. See Bd. of Educ. for Montgomery Cty. v. Spradlin, 161 Md. App. 155, 193, 867 A.2d 370, 393 (2005). To this end, Mr. Stine presented two separate and additional types of evidence, each in support of his two alternative theories.

In regards to his first theory -of utilizing the entire fifty-two (52) weeks rather than just the fourteen (14) weeks prior to his injury- Mr. Stine presented evidence of his yearly wages, via his 2015 W-2 Form. It showed his wages earned throughout the year, both when working full-time in the summer months and part-time in the school year. We argued that since he was injured in March, during the school year, his fourteen (14) week average weekly wage was not an accurate representation of his earning capacity at the time of the injury. On the contrary, a broader fifty-two (52) week period would have led to a more accurate calculation of his average wages. Alternatively, if the Court were to account for only his wages when "working full time" during the summer, it would be more in compliance with the explicit language of Sec. 9-602(a)(1).

With regard to his second theory - because of his age and experience his average weekly wage should be what he was expected to earn in the future - Mr. Stine retained a vocational expert. The testimony proffered was what his average weekly wage was "expected to increase" to upon completion of his nursing degree or while working as a full-time EMT, pursuant to Sec. 9-602 (a)(3).

Prior to trial, Montgomery County moved in limine to exclude the vocational expert on the grounds that Sec. 9-602(a)(3) was not applicable as Sec. 9-602(g) exclusively governed this case. The Circuit Court granted this motion. Next, the County moved to strike Mr. Stine's jury demand arguing that the issue of average weekly wage was a legal question alone. The Circuit Court also granted this motion finding that the Commission was "restricted to find" the average weekly wage was only based upon the fourteen (14) week period prescribed in COMAR. In the alternative, the Circuit Court also stated that, even if COMAR permitted other evidence, the Commission did not abuse its discretion in ignoring it. Mr. Stine thereafter took an appeal to the Court of Special Appeals. After the Circuit Court's judgment, but prior to oral argument, the Court of Special Appeals handed down the Wagstaff decision touching upon the same average weekly wage issue.

The Wagstaff Decision

In its Stine decision, the Court of Special Appeals had the opportunity to revisit and expand on its recent decision in Richard Beavers Construction, Inc. v. Wagstaff, 236 Md.App. 1 (2018), which was issued after the Circuit Court's judgment in Stine, but before oral arguments. Both cases involved situations which exemplified why, in some instances, an employer/insurer's wage statement does not result in a just or accurate average weekly wage calculation for an injured worker and why claimant's counsel has to be vigilant in exploring all possibilities.

Wagstaff concerned an injured worker who was injured six weeks into his employment. Although he had been hired to work forty (40) hour week, during the first six weeks of his employment he never worked a full forty hours as inclement weather prevented a full work week. The employer submitted a six-week wage statement which calculated his average weekly wage based upon those six shortened weeks. The claimant countered that his average weekly wage should be based upon what his wages would have been for a full forty (40) hour week for which he was hired to work. The claimant prevailed before the Commission and in the circuit court on summary judgment.

The employer/insurer thereafter appealed to the Court of Special Appeals arguing that both the Commission and the circuit court erred in ignoring, what the employer/insurer believed to be, the "plain reading" of Labor & Employ. Sec. 9-602(a)(1) and COMAR 14.09.03.06. In their incorrect reading, the employer/insurer argued that the average weekly wage could only be determined based upon "wages actually earned." The Wagstaff Court stoutly refused to go along with the employer/insurer's interpretation and, in refuting this analysis, highlighted the benevolent purposes of the Workers' Compensation Act:

"Little imagination is needed to think of scenarios in which an inflexible requirement tying an injured employee's compensation to pre-accident earnings would subvert the goal of compensating employees for lost earning capacity. Suppose that, immediately after an employee's first day of full-time work, an event such as a natural or manmade disaster shut down the place of employment for a few weeks, in which the new employee received no pay; then, immediately upon the employee's return, the employee became disabled in a workplace injury. In such a scenario, an average of actual earnings during the weeks before the injury would not accurately represent what the employee normally would earn from that employer under the contract that was existing at the time of the injury. This unfortunate employee would certainly suffer financial hardship if the employee's compensation were strictly computed by dividing the actual gross earnings by the number of weeks since being hired. In many situations involving recently-hired employees, the rule proposed by RBCI and its insurer would violate the principle that the Act should be construed "to afford substantial, and not merely nominal, relief[.]" Merrill v. State Military Dep't, 152 Md. at 478, 136 A. 897."
Wagstaff, 236 Md. App. 1, 20, 180 A.3d 211, 222–23 (2018)

As a result, the Court held that, in determining a claimant's average weekly wage, the Commission is not confined to only using the actual wages of the injured worker during the weeks preceding the date of injury, but may look to what the claimant would have earned during those same weeks if not for circumstances outside the worker's control such as weather or sickness. Put simply, the employer/insurer's wage statement is not the final word on the average weekly wage of a claim. The Wagstaff opinion reminds us that the employer/insurer's wage statement is just one in several pieces of evidence that may be presented to the Commission and by no means establishes any sort of "presumption." To this point, the Stine Court not only highlighted, but further enhanced this principle.

The Stine Decision

The Stine Court split its opinion by reversing the Circuit Court on its flawed interpretation of the COMAR fourteen (14) week "rule" and remanding the case back for a jury trial (thereby reaffirming that average weekly wage is a factual issue ripe for submission to a jury which the claimant properly requested). This last point has possible implications for de novo requests for jury trials, discussed further below. Despite ruling in favor of the claimant on this issue, the Stine Court also, however, affirmed the Circuit Court's exclusion of Mr. Stine's vocational expert stating that, at least here, Sec. 9-602(a)(3) was not applicable.

First, the Stine Court found that the Circuit Court erred by denying Mr. Stine's request for a jury trial. Once again, on appeal to the Circuit Court, the Claimant had requested a de novo judicial review and jury trial. In addition to his vocational expert, Mr. Stine sought to present his fifty-two (52) week W-2 form as more reliable evidence of his average weekly wage to a jury. As mentioned above, parties on appeal from the Commission may introduce more, less, or the same evidence than at the underlying Commission hearing. By striking his jury trial demand and finding that the issue of the time period used to calculate an average weekly wage (ie. fourteen (14) weeks versus fifty-two (52) weeks) was a legal determination, the Circuit Court denied Mr. Stine the opportunity to do that. The Court of Special Appeals appropriately found this to be a mistake and appropriately reversed this judgment:

"First, we disagree that COMAR 14.09.03.06 compelled the Commission to calculate the average weekly wage from a fourteen-week sample. As we recently clarified in Wagstaff (which was decided after the circuit court's decision), that regulation "does not purport to restrict the Commission in any manner from utilizing a different time period [than fourteen weeks] if the Commission deems it appropriate to do so." 236 Md. App. at 24–25, 180 A.3d 211 (quoting Gross v. Sessinghause & Ostergaard, Inc., 331 Md. 37, 50, 626 A.2d 55 (1993) ). And indeed, the regulation contains nothing requiring the fourteen-week time period in all cases… the regulation does not restrict the determination of average weekly wage to that time period, and allows the Commission to consider other evidence in setting the average weekly wage at a hearing, if one is held. COMAR 14.09.03.06(C); see Wagstaff, 236 Md. App. at 24–25, 180 A.3d 211. (emphasis added)"
Stine v. Montgomery Cty., 237 Md. App. 374, 386–87, 185 A.3d 826, 833–34 (2018).

Moreover, the Court found that this issue is factual in nature and so the Claimant's request for a jury trial must be honored. As such, the issue of whether the fourteen (14) weeks or the fifty-two (52) week periods should be used as a basis for his average weekly wage was remanded back to a jury trial. In a statement that has implications far beyond just the average weekly wage issue, the Stine Court stated:

"Mr. Stine had filed his petition for judicial reviews, then a request for a jury trial, which transformed the procedural posture of the case to an essential trial de novo, which means the Commission's decision was not subject to review by the circuit court."
Id at 388, 835.

With regards to the Court affirming the Circuit Court's decision to exclude Mr. Stine's vocational expert, the Court held that because Mr. Stine, as a volunteer EMT, fell under Sec. 9-602(g), a special subsection applicable only to volunteer fire fighters, EMTS and paramedics, and this subsection "does not contain any language referring back to the computation method or principles outlined in (a)." Consequently, Mr. Stine's evidence (i.e. expert testimony) that his wages were "expected to increase" due to his anticipated nursing degree and hands-on work experience as an EMT for both LifeStar Response and Montgomery County were not applicable under these circumstances. Importantly, the Court did not indicate that this testimony would not otherwise be relevant if this case had not fallen under subsection (g)'s narrow application to volunteer EMTs. In other words, this opinion does not preclude another claimant from utilizing similar vocational expert evidence under subsection (a)(3).

Conclusion: The Implications of the Stine and Wagstaff Decisions

The most important takeaways from Stine and Wagstaff involve the ability of the Commission to consider any and all kinds of evidence relevant to the issue of average weekly wage. It is not bound to the fourteen (14) week wage statement. The Employer's Wage Statement is just one piece of evidence among many that might be presented. Moreover, even when utilizing the wage statement, it might not accurately represent the claimant's earning capacity if it does not account for days missed due to inclement weather, illness or other situations which preclude an employee firm working full time. Beyond that, the Commission can utilize other time periods, such as a fifty-two (52) week period represented by a tax return or W-2 Form, in determining a more reliable and fair average weekly wage.

The Stine opinion also illuminates one more important principle that goes beyond just the average weekly wage issue and covers any de novo workers' compensation appeal. Put simply, where a party requests a de novo judicial review and a jury trial on any disputed factual issue, the circuit court must proceed with a jury trial on that factual issue.

If you have any questions or require assistance with your work-related injury or illness, please do not hesitate, contact Matthew Engler, Esq. today at 301-740-3322 or mengler@bsgfdlaw.com.

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