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Workers' Compensation Blog

Maryland's Highest Court Delivers Victory for Fire Fighter's Widow

Tuesday, September 15, 2020

In a case of first impression, Ken Berman was successful in representing a widow of a fire fighter in a landmark decision before the Court of Appeals, the highest court in Maryland.

Two years before the fire fighter's untimely death due to work-related heart disease, he had settled his workers' compensation claims against his Employer. Notably, his widow was not involved in the fire fighter's settlement. After his passing, his widow rightfully filed a death benefits claim to receive the compensation afforded to dependents of covered employees under the Maryland Workers' Compensation Act. The Employer contested the claim on the grounds that the late fire fighter had not only settled his own claims but had also settled any potential for death benefits by the widow or any of his family. The Workers' Compensation Commission incorrectly ruled in favor of the Employer and denied the widow's death benefits claim.

Mr. Berman appealed the Commission's decision and argued that the fire fighter's right to compensation for his work-related occupational disease was separate and distinct from any right to benefits his widow or family had to compensation for his death caused by the occupational disease. In other words, the fire fighter's compensation benefits were in one "bucket", which belonged to him, but his widow and family's compensation benefits were in a totally separate “bucket" that belonged to them. Although the Circuit Court upheld the Commission's ruling, Mr. Berman took the matter up to the appellate courts. The Court of Appeals ultimately agreed with Mr. Berman, reversed the decision of the Commission and circuit court, and ruled that the widow was not bound by the terms of the fire fighter's earlier settlement with his Employer and that she and her family were independently entitled to receive death benefits as compensation for the death of her late husband as the result of heart disease.

This Court of Appeals' decision will have a tremendous benefit to injured workers and their families across Maryland as it confirms that the longstanding legal principle -- that a person who is not a party to a contract is not bound to its terms -- also applies to workers' compensation settlement contracts.

If you are a dependent of a loved one who recently died due to work related injuries, you may be entitled to compensation under the Workers' Compensation Act. Contact our team of attorneys who specialize in fighting for employees injured while on the job and protecting the rights of the employee and their families.

Should There be a Presumptive Law to Protect Essential Workers Who Develop COVID-19?

Friday, July 17, 2020

Maryland’s Essential employees have spent the last several months going to work wondering if they will get sick and inadvertently pass COVID-19 to their family and friends. In many cases, they are forced to take off work for weeks at a time because of possible COVID-19 exposure. Too often this leaves their families in financial ruin. While many essential workers have contracted COVID-19 and recovered, some have had tough recoveries and a few have unfortunately, died. This has led to many questions about how the workers’ compensation system should handle those deemed essential workers who contract COVID-19.

The burden of proving that an illness was contracted at work falls on the injured worker. This is difficult with a virus like COVID-19 because people can have exposures not just at work, but at the grocery store, and in every other aspect of their daily life. In Maryland there are several presumptive laws to protect injured workers who are at a greater risk for developing certain diseases like fire fighters who develop cancer from work exposures. The question is whether or not there should be a similar type of presumption for those Marylanders who are on the front lines and develop COVID-19.

Presumptive laws work by shifting the burden of proof so that in the case of COVID-19, if a specially deemed essential workers gets the virus, we would start with the presumption that they contracted the virus at work and then the burden of proof would go to the Employer and Insurance company to prove that the worker did not get the virus at work.

Several states have already chosen to pass emergency legislation to create an automatic presumption for exposed first responders and healthcare workers. For example, Minnesota enacted an emergency bill that states “[a first responder or healthcare worker] who contracts COVID-19 is presumed to have an occupational disease arising out of and in the course of employment.” Similarly, Kentucky passed an executive order stating “it shall be presumed that removal of [a first responder or healthcare worker] from work by a physician is due to occupational exposure to COVID-19."

We will likely have to wait until the next legislative session in 2021 to see if Maryland adopts something similar to Minnesota and Kentucky.

Attorney Brian Rollyson

Brian Rollyson
brollyson@bsgfdlaw.com

On the Hot Seat; What In-Person Hearings Look Like for Injured Workers’ During COVID19

Monday, June 15, 2020

Beginning on June 8, 2020, the Maryland Workers' Compensation Commission reinstituted In-Person hearings at all hearing sites. For many who recall attending hearings in the past, all the cases scheduled on a docket would arrive for a 9:30 a.m. start time. The Commissioner would take the bench, call the docket and then the cases would be called one at a time until the docket was concluded. Following CDC guidelines, and taking into consideration the health and well-being of injured workers, Employers, Attorneys, Commissioners, and Staff, that process has now changed. Currently, cases are being scheduled at 20-minute intervals throughout the day, in order to limit risks of exposure, allowing only one case into the hearing room at a time.

When attending an in-person hearing, several safety measures have been put into place.1 First, you will not be permitted to enter the hearing site more than 5 minutes prior to your scheduled hearing. Second, all parties are required to wear a face mask while in the hearing site, to include when presenting your case or testifying. Upon being admitted into the building, security personal will ask you to clean your hands with the provided hand sanitizer. You will then be asked a series of questions regarding symptoms or potential exposure to COVID-19. Upon completing the questionnaire, you will be admitted into the hearing room.

Upon entering the hearing room, you will notice that the furniture has been rearranged to comply with social distancing recommendations. All exhibits will be submitted electronically to the Commission in advance of the hearings. Many of the hearing rooms are arranged with the Commissioner seated at the bench, as normal, a chair located in the center of the room for the Injured Worker, and tables on each side of the room for the attorneys. As an Injured Worker, this arrangement may seem a little uncomfortable as you will be seated in the center of the room or, as one of my clients referred to it, in the proverbial "Hot Seat." It is important to remember that this is purely to comply with recommended distancing guidelines and nothing else about the presentation of the case has changed. The Injured Worker will be sworn in and the case will proceed in the same fashion as in the past. Some may also find comfort in knowing that your case will be the only case in the room at the time, as opposed to the past when you may be testifying in front of an audience of other Injured Workers and attorneys awaiting their cases to be called. At the conclusion of your case, the Commission will ask you to promptly leave the building to allow the next case to get started on time. Again, the Commissioner will issue a written decision in 1-2 weeks following the hearing.

Despite the fact that in-person hearings have resumed, the Commission is still designating one Commissioner, per day, to conduct video hearings. If you are not comfortable with attending an in-person hearing, you have the option to request a video hearing instead. In order to do so, you would simply need to contact your attorney and let them know your preference so they can make the appropriate request and attempt to get all parties to agree, which isn't possible in all cases. Despite the changes to the scheduling and format of the Commission, the substance presented at these hearings is no different than in the past. While it has certainly been a challenging year, the above changes have been implemented to minimize any delay experienced by injured workers. Additionally, these processes have been implemented to ensure everyone is able to have their matters decided in a format that they are comfortable with, while also maintaining a sense of safety.

Attorney Carl Rach

Carl Rach
crach@bsgfdlaw.com

Hearings on the Horizon!

Tuesday, May 19, 2020

Covid-19 has changed the way we communicate as a community and a culture. This is also true for businesses and governments; these entities have had to quickly adapt into the age of virtual communications. When the pandemic hit, the Workers’ Compensation Commission was in the process of dramatically upgrading their online portal, and in just a short few weeks, the Commission had to pivot from that undertaking and all regular functions to create a system for virtual hearings, and revamp safety procedures for when they return to live hearings, which may happen as early as June 8, 2020.

New Protocols To Be Aware Of For Live Hearings coming in June:

Preparation: Exhibits are submitted electronically, to the Commission, 3 days prior to the scheduled hearing date. Therefore, attorneys may ask clients to electronically sign necessary documents in advance to comply with social distancing requirements. In addition, to comply with the physical distancing protocols at the hearing site, it is best that all hearing preparation be done over the telephone or via video calls prior to the hearing date.

  • Schedule: Hearings will be staggered in twenty-minute slots to accommodate social distancing and only the participants of the scheduled hearing will be permitted in the courtroom at that time.

  • Who: Only parties, injured workers, witnesses and attorneys will be permitted into the hearing sites, therefore if someone is accompanying you to the hearing they will probably have to wait outside or in your vehicle.

  • Where: All hearing sites will be open for live hearings. Any person entering the hearing site will be required to wear a mask and practice social distancing protocols, including between attorneys and their clients.

What If I am Not Comfortable Attending A Hearing In-Person?

The Commission has adopted a liberal policy for granting continuances due to illness or other hardships. The Commission will also offer the possibility of virtual hearings. While it is wonderful that the opportunity exists to participate in a virtual hearing, the process is not appropriate for every case, and can only happen if all parties give consent. It is best to talk to your attorney if you are interested in having a virtual hearing on your case.

What To Consider Before Requesting A Virtual Hearing:

  • Consensus: All parties in the case must agree to perform the hearing virtually. This means that even if the injured worker and their attorney want to have a virtual hearing, it won’t be done virtually unless the Employer and Insurance company representatives also agree.

  • Technology: A good internet connection and a computer with a video camera is required. In some cases, audio can be done through a telephone, but all participants must also have live video. To run the programs successfully all participants must have the latest versions of either Google Chrome or Microsoft Edge and the only platform the Commission is allowing for hearings is Microsoft Teams. It is best to download the Teams App prior to hearing day, rather than accessing it through the web.

  • Process: If your case is approved for a virtual hearing, all participants will receive an email invite from the court reporter, which will include the date and time the hearing is scheduled and an email link to the video hearing.

Whichever platform you choose, it is comforting to know that the Workers’ Compensation Commission is working hard to adapt and provide safe access for those in need. However, in our new normal, remember that it is important to be prepared, be flexible and to check for possible updates and changes.

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

Great News; The Ban On Medical Treatment Has Lifted!

Tuesday, May 12, 2020

It has been over six weeks since Governor Hogan banned elective and non-urgent medical procedures in the State of Maryland. However, the question which remained was, "Is it elective to have an epidural shot or surgery if I am in a tremendous amount of pain?" Well, no need to answer this question any longer, with Governor Hogan's recent order effective Thursday May 7, 2020, medical practices are now permitted to accept patients in-person for treatment. While the decision about which procedures are appropriate to perform, and which patients should be seen are left to the independent professional judgment of the provider, the Secretary of Health, Robert Neall, issued a directive regarding practice requirements.

The order requires that any healthcare facility that chooses to open must have the appropriate supply of PPE, social distancing requirements must be strictly maintained in all settings where people must wait, and all healthcare workers, patients and others must be screened for COVID-19 symptoms upon arrival for shifts or visits. Even with these requirements it seems many providers are already opening their doors and scheduling those appointments that have been pending since the closures began. Hopefully, those in pain can finally get some relief!

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

Do I have a workers’ compensation case if I get injured while working from home due to COVID-19?

Wednesday, April 22, 2020

We at Berman, Sobin, Gross, Feldman, and Darby are thinking about all our clients during this unprecedented time! A vast majority of the public (including the attorneys and staff at BSGFD) are having to work from home. With so many people trading in their commutes and business attire for teleworking and pajamas, we thought it would be a great time to answer the very important question -- “If I get hurt while working from home, do I have a workers’ compensation case?”

As any good lawyer would tell you, the answer is “it depends!” Luckily, the Court of Special Appeals released an opinion last year (albeit before COVID-19) in Schwan Food Co. v. Frederick, which provides some guidance. The appellate court laid out a three (3) part test to determine if an employee’s home can qualify as a work-place, thereby making such injuries more likely to be covered under the workers’ compensation act:

  1. The quantity and regularity of work performed at home;
  2. The presence of work equipment at home; and
  3. The special circumstances of the employment rendering it necessary, not merely personally convenient, to work at home.

This test has yet to be applied to employees injured while working from home due to COVID-19 and is intended to be very fact specific. In applying these factors, the Workers' Compensation Commission will also consider circumstances such as when, where, and why the injury occurred, and what you were doing at the time of accident.

Getting such injuries covered under workers' compensation can be difficult and it’s highly likely that the insurance companies will be contesting most, if not all, of these cases. Be sure to consult an attorney if you get hurt while working from home, and remember not to give any recorded statements to the worker' compensation adjusters.

In these times more than ever, please try to stay safe, healthy, and happy!

Attorney Julie Mirman

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

Workers’ Compensation Hearings Update as of April 17, 2020; Covid-19

Monday, April 20, 2020

True to their mission, the Workers’ Compensation Commission (WCC) is continually trying to balance the interests of the injured worker with that of the health and safety of the community at large. Therefore, in response to the recent extension of court closings by Chief Judge Barbera of the Maryland Court of Appeals, the WCC has also announced a postponement of all in-person Commission hearings until June 8, 2020.

The Commission, however, is now in the final stages of establishing the availability of video hearings utilizing the Microsoft Teams virtual platform. All parties involved must agree to continue with the hearing virtually. If all parties do not agree to meet virtually, the hearing will just resume in the normal course, in-person at a later date.

This is a tremendous endeavor by the Commissioners and staff and will go a long way to help get our injured workers the benefits they need and deserve during this difficult time. We applaud the efforts of the Commission as they roll out this new “virtual” court system. There will be glitches along the way, but this will certainly support clearing some of the backlog that continues to accumulate on the hearing dockets.

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

Workers’ Compensation Hearings and the Maryland Courts Update as of April 15, 2020; Covid-19

Friday, April 17, 2020

Unfortunately, since our last court update, two weeks ago, COVID-19 cases have risen significantly in Maryland. This information reaffirms our states’ decision to social distance and work from home, wherever possible. Our online legal work is bustling between virtual mediations, depositions and motion writing. Thankfully, we have learned to navigate virtually because another extension of court closures were issued for the entire State of Maryland yesterday.

This new order extends court closings until June 8, 2020. The Administrative Judge in Montgomery County issued an order of extension while encouraging parties to seek resolution of cases collaboratively or through mediation. The reality of the situation is that even if the courts open in the beginning of June the courts still will not be fully operational for several months after that.

Therefore, what does this mean for your case? If you are still treating for your condition, many insurance companies are authorizing virtual treatment or office visits, when possible. If you are waiting for a hearing on permanency, some doctor’s have agreed to conduct independent medical exams virtually, but in this new climate it is unclear what weight the Commissioners may give these reports. Now may be a good time to participate in a mediation or agree to a settlement, if appropriate in your case.

Talk to your Attorney regarding your best options and if you or a family member have been afflicted with Covid-19 and feel you were infected with this virus at work please read the previous blog from Ken Berman regarding important steps to follow: http://www.bsgfdlaw.com/workers-compensation-blog/what-to-do-if-you-are-exposed-to-the-coronavirus-at-work.

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 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

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