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Workers' Compensation Blog

The DC Workers’ Compensation Litigation Process

Tuesday, July 31, 2018

Whenever I tell clients about the workers compensation litigation process in DC, they get a blank look on their face. What do you mean it takes two to three months to get a hearing date? What do you mean the insurance company can file an appeal if I win my case?

The unfortunate truth is that the litigation process in DC workers’ compensation cases can go on seemingly forever. This is one of the many reasons why it’s best to talk to an attorney from the onset. The time to hire an attorney is not when you are already in crisis mode and would have benefit from a hearing moths prior. Attorneys are able to do many beneficial things for their clients, but one thing they cannot do is speed up the DC litigation process, as that process is controlled solely and entirely by the DC Legislature and the courts.

In DC workers' compensation cases, the litigation process begins at an Informal Conference. This level is, more or less, a mediation where nothing is recorded, the parties are not under oath and the only witness is the injured worker. Either party is able to appeal from the written decision received following an Informal Conference. Those appeals go to a DC Formal Hearing in which an Administrative Law Judge (ALJ) presides over the hearing. A formal hearing is much more complex than an informal conference. Each side to the case can present witnesses, the witnesses are under oath, the proceedings are recorded, and the rules of evidence apply. There is also almost always formal discovery conducted by both sides of the case. The discovery process can include written requests for information (such as interrogatories or request for production of documents) or verbal request (such as depositions of doctors or the injured worker).

It takes several months to receive a written decision from both the DC Formal Hearing Judge. But, the process does not stop there. After the Formal Hearing, either party can, yet again, file an appeal if they are not happy with the ALJ’s decision. This appeal is done by written legal Memoranda only, and does not involve an actual hearing. The legal memoranda are prepared by the attorneys and filed with the Compensation Review Board (CRB). If the CRB feels that there was an error of law, or that the ALJ’s decision was not based upon ‘substantial evidence,’ then the case will be sent back down to the ALJ for another Formal Hearing to get the case re-heard. If the CRB agrees with the ALJ, then the case will not be sent back down to the ALJ, and the ALJ’s decision will be final unless, of course, another appeal is filed.

If either party to the case is not happy with the decision of the CRB, the case can be appealed for a fourth and final time to the DC Court of Appeals. This time, legal Briefs are filed by the attorneys and argued before the Chief Judge and several other Court of Appeals Judges. The written decision of the DC Court of Appeals is truly final. The DC Court of Appeals can either affirm (agree with) the ALJ, or, the Court of Appeals can reverse (disagree with) the ALJ’s decision and send the case back down to the Formal Hearing level with instructions for the judge. If that occurs, the process can, more or less, start over again.

I hope that this blog shows you just how important it is to have an attorney representing you and your interests in your DC workers’ compensation case.The process can not only be lengthy, but can also be fairly complex. If you are looking for more details on the litigation process, please do not hesitate to reach me at lpisano@bsgfdaw.com or (301) 740-3304.

Where Do I File My Workers’ Compensation Claim – Maryland or D.C.?

Monday, July 09, 2018

It is sometimes very obvious where an injured workers should file his workers’ compensation claim following an on-the-job injury.For example, if the injured worker lives in the District of Columbia, and has always worked for his employer in the District, and gets injured in the District, then the claim for workers’ compensation benefits naturally should be filed in the District.

However, the situation becomes a bit more complicated when the injured worker does not get injured in the state where he normally works, or when the injured worker performs work for the employer in more than one state.In this blog, I will give a few different scenarios that tend to occur, in order to figure out where your workers’ compensation claim should be filed.

Scenario #1: The injured worker regularly works in Maryland, but happens to travel to the District of Columbia for work, and happens to be injured while performing that work for the employer in the District.

In the first scenario, under 32-1503 of the District of Columbia Workers’ Compensation Act, the District will not have jurisdiction over this claim.Having only “casual, occasional, or incidental” employment in the District is not enough.The workers’ compensation claim in that scenario should be filed in Maryland.

Scenario #2: The injured worker and the employer are both residents of Maryland, but the injured worker was assigned to do work for the employer in the District of Columbia for an extended period of time (weeks and months) and was injured in the District.

In the second scenario, the claim may be able to be filed in either Maryland OR in DC, with one caveat.The DC Worker’s Compensation Statute says that, if both the injured worker and the employer are not residents of the District, and the contract for hire was entered into in another State (like Maryland) then even though the injured worker had performed work for the Employer for an extended period of time in the District, and was injured in the District, the injured worker MAY be able to file a claim for workers’ compensation benefits in the District, but only if, the employer has workers’ compensation coverage in the District.So, in that second scenario, if the employer had insurance cover in the District, the claim for workers’ compensation benefits can be filed in EITHER Maryland or the District.If the employer does not have workers’ compensation coverage in the District, then the claim would have to be filed in the State of Maryland.

Scenario #3: The injured worker is hurt in the State of Maryland while performing work for a District of Columbia Employer and normally works in the District of Columbia.

Under 9-203 of Maryland Workers’ Compensation Statute, Maryland shares the same principal as the District such that “casual, occasional, or incidental” work in Maryland, when the employment is located and performed primarily in another jurisdiction (like DC), will not be enough to enable the injured employee to file a workers’ compensation claim in Maryland.

Scenario #4: The injured worker performs work for the employer in Maryland, DC and Virginia, but gets injured in DC, but both he and his employer are residents of Maryland.

This last scenario occurs often with transit drivers.In this scenario, the injured worker is not an incidental, casual or occasional employee of the District, but rather, has worked for the employer in the District on a regular basis for years.In this fourth scenario, because both the injured worker and the employer are both residents of Maryland (with, for example, the employee picking up his bus to begin his bus route at the Maryland headquarters) the injured worker would be able to file his workers’ compensation claim in both Maryland AND the District of Columbia, if and only if, the employee can prove that he is not an incident employee in the District.If the injured worker can testify that works as much or (better yet) more often in the District than he does in Maryland or Virginia, and again, is hurt in the District, then his claim for workers’ compensation benefits could be filed in the District.However, if the evidence shows that the employee works only a small percentage of the time in District, and works primarily in Maryland and Virginia, then the District of Columbia would not accept his workers’ compensation claim and the State of Maryland would be his only option.

If any additional information is needed, I can be reached by email:lpisano@bsgfdlaw.com, or on my direct office number: (301) 740-3304

 

Don't Forget The Mileage

Friday, June 15, 2018

The workers’ compensation process is not always a quick one, and in most cases, it is a slow and steady uphill battle.  Oftentimes, it can take several months after you sustain a work injury before any workers’ compensation benefits kick in.  For this reason, it is important to stay organized from the beginning and to know exactly what benefits are available to you that can help offset some of the financial strain you may experience as a result of your work injury. One important benefit that can easily slip through the cracks is mileage and transportation reimbursement.

If your workers’ compensation claim is found to be compensable by the Workers’ Compensation Commission, in addition to benefits for medical treatment and for time you may miss from work as a result of your injury, you are also entitled to reimbursement for the reasonable cost of your transportation to and from treatment appointments.In some special cases, your employer may even provide treatment-related transportation for you through a transportation service.

What type(s) of transportation benefits are covered?

Under Maryland Workers’ Compensation law, an employer is responsible for the cost of transportation to and from medical appointments if the appointments are a result of the claimant’s work injury. This includes transportation to doctor’s visits or other appointments, including appointments or evaluations scheduled by the employer.  Also, with the proper documentation, you are entitled to reimbursement for mileage, cab/Uber/Lyft fare, public transportation, parking, tolls, etc. (just to name a few).  The most common type of transportation benefit we see however, comes in the form of mileage reimbursement.

What type(s) of benefits are NOT covered?

The law does not allow transportation reimbursement for appointments besides those related to your work-injury, trips to the pharmacy, or reimbursement for any gas used to travel to your appointments (even if related to your injury).

How is mileage reimbursement calculated?

Each year, the Commission sets the mileage reimbursement rate which is used to calculate reimbursement payments per mile traveled.The most recent mileage reimbursement rates are as follows:

  • 2018 - .545
  • 2017 - .535
  • 2016 - .54

For a list of the yearly mileage reimbursement rate dating back to 1980, click here.

To calculate your total mileage reimbursement, multiply the mileage reimbursement rate for that year by the total number of miles traveled.For example, if your doctor’s office is five (5) miles from your home, and you had a doctor’s appointment on January 1, 2018, multiply the mileage reimbursement rate by the total number of miles traveled to and from the appointment:

  • [.545 x 10 = $5.45]

In summary, mileage reimbursement is an important benefit of filing a workers’ compensation claim and can provide some relief from the financial burden of a work-related injury. It is extremely important that you document your travel accurately and submit mileage forms and supporting documentation to your attorney regularly.  An easy way to keep track of your mileage is by using the Medical Travel Expense Form which can be found in the Document Center on our website.

If you have any questions related to mileage reimbursement or filing a workers’ compensation claim, do not hesitate to contact Kenrick Roberts today at (301) 670-6552 or kroberts@bsgfdlaw.com.

Report First – ‘Tough It Out’ Later

Wednesday, April 25, 2018

The first thing you must do when you get injured on the job is to notify your supervisor immediately. You do not have to notify your employer in writing, but it makes your claim much easier if you do. Whichever way you choose to notify, make sure you indicate the date and the time of the accident, and every body part that was injured.

Notice should be given even for minor injuries. You don’t have to miss work to report an injury. You can choose to tough it out and keep working after you get hurt but you should document it whether or not you can continue to work.  After reporting it to your supervisor, the next way to document your injury is to go see a doctor to get checked out. Whether you see your primary doctor or go to a clinic you want to make sure someone evaluates your injury so that if your condition gets worse down the road, you have already created a paper trail that will support you getting the treatment you may need later.

You Must Go Beyond Your Internal Claim Number

Once you report the injury, your employer may request that you fill out an incident report and even give you their own internal claim number. However, remember that reporting the injury does not mean that you have done everything to protect yourself. You still have to file a claim with the Maryland Workers’ Compensation Commission to fully make sure you are protected.

Although it’s ideal to notify your employer of a work-place injury as soon as it happens, Maryland law states that an injured worker has ten (10) days to report the injury. The law even provides some exceptions if you report beyond the ten (10) day requirement, but late reporting can give your employer a basis to contest or dispute your claim even though you might have a valid workers’ compensation claim. Therefore, you should report your injury as soon as it happens.

Follow These Steps If You Are Injured On The Job

So if you are injured on the job (even if it’s a minor injury and you do not miss time from work) remember these three easy steps:

  1. Report immediately (preferably in writing);
  2. See a doctor (even your primary care provider); and
  3. Contact the lawyers at Berman, Sobin, Gross, Feldman & Darby to file your claim!

Consequential Injuries May Be Covered Under Original Workers' Compensation Claim

Tuesday, February 06, 2018

Mr. M had a work related left leg injury.  He would go up and down the stairs using only his right leg.  He could only sleep on his right side.  He started using a cane on his right or “good” side to relieve the pressure and provide security against falls due to the imbalance his left leg injury had caused.  Then his left shoulder started causing him pain.  He had trouble buttoning his shirt and reaching for items in the kitchen cabinets.  Just my luck, he thought, now I have gone and done something to my shoulder.  After several months he was sitting with his lawyer discussing his workers’ compensation treatment for his left knee and he mentioned how it feels as if his body is falling apart.  After a few strategic questions from his lawyer and a visit with his doctor it was determined that the shoulder was related to his original workers’ compensation injury to his left leg.  The use of the cane caused additional pressure and strain on his shoulder.  Mr. M was able to have covered workers’ compensation treatment and an additional monetary award due to the shoulder strain.

When Will The Insurance Company Cover My Secondary Injury?

Similar to Mr. M many injured workers’ do not realize that if their secondary injury is causally related to the initial accident then that consequential injury may be compensable.  Consequential injuries are those injuries that occur directly as a result or consequence of an injury to a different body part.  For example, if a compensable knee buckles and causes a fall, which injures a wrist the wrist injury could then be deemed compensable.  It is important to document any of these consequential injuries whether at work or through a medical professional. Your attorney will work with you to gather the necessary medical documentation to prove that the injury is related to the original claim.  Then a hearing in front of the commission may be required to prove causal relationship between the secondary injury and the original injury.

Can I File For a Consequential Injury At Any Time?

Since there are statutes which impose limitations on when claims can be filed for additional injuries it is best to alert your attorney as soon as possible.  However, if the statute of limitations has run on earning additional compensation for the secondary injury it is still important to still talk to your doctor and your attorney about the injury.  Even if you are not entitled to additional money, you could be entitled to coverage for medical expenses and mileage related to your consequential injury.  It is always best to speak with your workers’ compensation attorney as soon as possible.  Many times in my practice clients only reveal the consequential injury after the statute of limitations has run or once it has become unduly burdensome, however if we handled your original claim I will handle your consequential injury even if no additional money can be earned.

The Year In Review At Berman, Sobin, Gross, Feldman & Darby LLP

Wednesday, January 03, 2018

2017 was an exciting year for our firm that included new additions to our staff, well-deserved recognition for a few of our attorneys, and a famous first pitch!

Let’s explore in greater detail some of the key moments from last year at Berman, Sobin, Gross, Feldman & Darby, LLP:

  Attorneys Ken Berman, Matt Darby, Michael Feldman, Craig Meyers, and Ari Laric were selected as Super Lawyers and Rising Stars in 2017 and again in 2018 along with the addition of Charles Schultz in 2018. 
One of our Founding Partners Ken Berman was one of the only attorneys recognized by the Washington Post be the Best Attorneys in the areas of workers’ compensation and motor vehicle negligence cases. 


Ari Laric testified in Annapolis, MD in support of injured workers who are part of the State Retirement System. 
 Charles Schultz spoke at the MWCEA Conference and was also a panelist. 

  Berman, Sobin, Gross, Feldman & Darby LLP expanded its staff with the hiring of Kenrick Roberts and Allyson Bloom
And who could forget…our very own Ken Berman throwing out the first pitch at a Frederick Keys baseball game in July. To our loyal Facebook contingent who voted on the outcome of the pitch…it was a strike  

Jury Verdict In Favor Of Montgomery County Bus Driver

Tuesday, December 19, 2017

School bus drivers spend hours transporting children to and from school in order to ensure that they arrive in a safe and timely manner. After years of performing this vital service for the community, the wear and tear on the bodies of bus drivers can have a profound impact on their ability to do their jobs. Natalie Whittingham, Ken Berman, and their team at Berman, Sobin, Gross, Feldman & Darby, LLC secured workers’ compensation benefits for a decades long school bus driver who developed chronic pain in her tailbone after years of bouncing up and down in an uncomfortable bus driver’s seat. The Maryland Workers’ Compensation Commission had found that the Claimant, who required three surgeries as a result of her tailbone pain, suffered an occupational disease arising out of and in the course of her employment for Montgomery County. The Employer, in an attempt to overturn this Order appealed to the Circuit Court. After an in depth three day long trial before a jury, which included expert testimony by two doctors, medical records, and the testimony of lay witnesses as to the hazards of the Claimant’s employment, the jury came back in favor of the claimant, upholding the Workers’ Compensation Commission. Ken and Natalie were able to defeat the County’s appeal and preserve the rights of the injured worker.

The Law of Occupational Disease

The most commonly known work related injuries, or “accidental injuries” occur when an employee is injured in an accident on the job at a particular time and on a particular day. Some examples of accidental injuries include slips, falls and car accidents. However, some work related injuries occur only after many years of the worker repeatedly performing their job duties. The onset may be slow in nature and results from the conditions of the employment. These are known as “occupational diseases”. Examples of an occupational disease could include carpal tunnel syndrome, in this case coccydynia (like the Claimant here suffered), lung cancer and hypertension. Injured workers who suffer occupational diseases may be covered, even where there is some other disorder or condition which contributes to the occupational disease. Here, the Claimant developed the occupational disease of coccydynia after many years of bouncing around in uncomfortable bus driver seats around the same time that she experienced rapid weight loss. The jury found that where the occupation of bus driving was even only a partial cause of the disorder, the claim was covered under the Workers’ Compensation Act.

What To Do If You Think You’ve Suffered An Occupational Disease

The law of occupational diseases is a complex area of the Workers’ Compensation Act and requires an attorney with experience to navigate its intricacies. In order to pursue a claim for disablement caused by an occupational disease, a medical opinion, relating your employment to your disorder is required and a claim must be filed within a certain amount of time of receiving that medical opinion. If you believe that you’ve suffered an occupational disease from repeated exposure to the physical or chemical hazards of your employment, it is imperative that you contact an attorney right away. If you are injured at work, contact Ken Berman, Esq. at (301) 740-3300 or Natalie E. Whittingham, Esq. at (301) 670-6546.

Defending A Firefighter Who Was On Duty For 24 Hours And Injured

Tuesday, October 31, 2017

Fire Fighters work had to protect our communities.They are required to work long hours, sometimes – and in this Claimant’s case – 24-hour shifts, where they are on duty at all times, ready to respond to any emergency call that may come in.  Ken Berman, Nicole Lambdin, and Berman Sobin Gross Feldman and Darby protected the rights of a Fire Fighter who, while on a 24-hour shift injured his knee while stepping away from the fire station to pick up his dinner at the restaurant across the street.  At the time of the injury, the Claimant was on duty and required to stay close to the fire station so he could respond to an emergency call should one come in.  After the Claimant’s injury was found compensable at the Workers’ Compensation Commission, the Employer attempted to reverse the Order by appealing the decision., claiming that since he was going to get dinner, he was no longer “in the course of his employment”.  Ken and Nicole defeated the appeal and preserved the rights of the injured worker.

Protected Under The 'Coming and Going Rule'

While the Employer asserted that the Claimant’s injury was barred by the “coming and going rule,” a general principle that disallows compensation for injuries that happen when an employee is going to or from his/her place of business (although there are many, many exceptions to the “going and coming “rule and one should always check with an attorney to see if their injury is covered), the Circuit Court agreed that this injury did not fall into that category.  Instead, the Court agreed with the Claimant that his injury arose out of and in the course of his employment because the fire fighter, at the time of the injury was on duty, getting paid, and was required to respond to any emergency call that came in.  In fact, the Claimant’s supervisors allowed the fire fighters to leave the fire station to pick up food as long as they remained within a certain perimeter to the station – ensuring they could timely return in case of an emergency.  By demonstrating that the Claimant remained ready and capable to respond to an emergency and that his employers acquiesced to employees leaving the station but remaining with the perimeter, Ken and Nicole established that the Claimant was within his employment at the time of his injury.

Every Case Deserves Special Focus

This case is evidence of how complicated Workers’ Compensation claims can be.  While at first glance this claim could appear to not be compensable because the fire fighter was on a “dinner break”, a more detailed analysis proved that his injury is covered by the Act, and that the Claimant is entitled to both medical and financial benefits.  The attorneys at Berman Sobin Gross Feldman and Darby can help you obtain the benefits and medical coverage that you are entitled to.  If you are injured at work, contact Ken Berman, Esq. at (301) 740-3300 or Nicole Lambdin, Esq. at (410) 769-5400.

The Importance of Documenting All of Your Injuries

Tuesday, July 18, 2017

All too often when workers are injured the focus is on the most severe parts of the body hurt. Frequently the minor pains and bruises from other parts of the body are ignored. However, in a workers’ compensation claim it is very important to report every hurt, bruised, or swollen body part no matter how minor it may seem at the time. The human body is interconnected and when you fall, for instance, you may land on your knee, but your hands may have eased the impact, which can cause shoulder and arm pain as well. If you injure your back, the nerve pain and/ or damage can cause problems in your legs. You may not feel any symptoms to those other areas until a day or two later, but these are all parts of your body that could get worse over time and require additional medical treatment. It is important in a workers’ compensation claim to document every part of the body that was affected by the accident no matter how small it may seem. It is more difficult to try and convince a Commissioner or insurance company that another body part was also injured in the same accident if there is no documentation of it within a few days of the accident.

What’s In The Injury Report Matters

This rule is important to remember when filling out your accident report at work, your workers’ compensation claim form, and any forms you are given at every medical office you visit after the accident. In our practice, we frequently read emergency room reports where an injured body part is left out or the wrong body part is documented. We all know hospitals are busy places and not everything is always documented with 100% accuracy, but insurance companies will use this to discredit your injury or the cause of your injury. It is important for you to check that how the accident occurred and that all injuries are clearly described and documented. Make sure to tell the medical professional you are dealing with every ache, pain and/or discomfort that you are feeling as a result of the accident.

Contact Us With Questions

If you have any questions about a new pain or problem that developed after your injury it is always best to contact an attorney. Our attorneys have years of experience and know the right questions to ask to ensure that you receive the full coverage, you are entitled to for your injuries.

Workers’ Compensation Claims Process - How long does it take to get a hearing and what is a “consideration date?

Friday, July 14, 2017

One of the most common questions I receive from clients concerns how long it takes to get a hearing before the Maryland Workers’ Compensation Commission. As with any court or judicial body, the Commission sets its own schedule and the claimants and attorneys appearing before it are subject to that schedule. Generally speaking, however, it is a safe assumption that your hearing will be scheduled within three to four months from the date you file your claim or request a hearing. This can vary based on your hearing venue. For example, hearings are scheduled much quicker in Baltimore or Beltsville (the hearing sites with a higher volume and where hearings are held more frequently), than in La Vale or Cambridge (where hearings are held less frequently based on a lesser volume).

What is the “Consideration Date?”

The claim process begins when you file an “Employee Claim Form” with the Commission. This document asks you basic demographic and injury-specific questions. Once this is submitted, the Commission will send a Notice of Claim to your employer and your employer’s workers’ compensation insurance carrier, referred to as the insurer. On the bottom-right of this Notice of Claim, you will find a “Consideration Date,” which is typically about a month from the date your original Employee Claim Form was filed. Your employer and insurer have until this date to either accept or contest your claim. If they contest the claim, they will file Contesting Issues with the Commission and you will have to wait for a hearing to present the evidence of your work-related injury or illness. You cannot request a hearing on your own behalf until after the “consideration date,” has passed. That’s why it is so important to file your claim as soon as possible.

My Employer and Insurer filed Contesting Issues; what next?

When your employer and insurer file Contesting Issues, they are, in effect, opposing the claim until the Commission can hold a hearing to determine the validity of your claim. As stated above, this will typically be scheduled anywhere between three to four months from the date your claim is initially filed. At this first hearing, you will be called upon to testify and present evidence of your work-related injury or illness, including medical records supporting your claim. After the hearing, the Commissioner will decide whether or not your injury or illness is covered by the workers’ compensation laws of Maryland. However, up until that time, you will not be able to recover any workers’ compensation benefits such as temporary total disability. You may or may not receive medical coverage. For this reason, it is all the more urgent that you consult with an attorney to determine your options and to prepare for this hearing.

How can my hearing be scheduled on an emergency basis?

In some circumstances, you can request the Commission to schedule your hearing sooner based on an “emergency” situation. For example, if you are unable to work on account of your injury or illness and have received collection notices on past-due bills or if you require emergency medical treatment, then the Commission may schedule your hearing sooner, within a matter of weeks rather than months. However, you must submit documents to support the urgency and these requests are not always granted.

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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