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Workers' Compensation Blog

Three Problems Caused By Maryland’s Medical Fee Guide For Workers’ Compensation Claims

Monday, June 20, 2011

The Workers’ Compensation Commission regulates the amount a Maryland medical provider can charge for treating work related injuries. The permitted amounts are found in a document entitled, “Guide of Medical and Surgical Fees”. The medical provider may not charge the injured worker an amount in excess of the amount provided in the fee guide.

These rules cause difficulties in three areas:

  1. When the treatment is out of state.

    In that case, Maryland fee guides do not restrict the health care provider from charging whatever they want. Nevertheless, the workers’ compensation insurance company will only pay an amount called for in the fee guide – the injured worker is stuck for the difference. Although the statute permits the Commission to Order a higher payment when special circumstances permit, it almost always declines to do so. Therefore, it is crucial that an injured employee explicitly obtain the agreement of the out of state health care provider to accept the fee schedule before becoming a patient.

  2. When the claim is initially denied.

    If the workers’ compensation insurance company denies a claim, usually if there is a medical insurer, bills will be paid by the medical insurer while a hearing is pending. As a result the claimant may pay a deductible and the health insurer will pay pursuant to its fee schedule. Problems can occur when the claim subsequently becomes compensable. This may result in:

    • payments being yanked from the medical provider by the health insurer; or
    • issues concerning who reimburses the claimant for co-pay expenses (health care provider or workers’ compensation insurer) as well as what happens if the medical insurer has paid more to the health care provider than the fee schedule permits.
  3. Difficulty in finding medical providers.

    Many physicians, especially orthopedic surgeons and neurosurgeons, are refusing to accept patients who rely on workers’ compensation insurers to pay for the medical treatment. This is due to the reduced rates, increased documentation, and uncertainty or delay of payment which is part and parcel to administering a workers’ compensation claim.

Please do not hesitate to contact us at Berman, Sobin, Gross, Feldman & Darby LLP in order to assist you in these matters.

By Clifford B. Sobin, Esq.

Maryland Workers' Compensation – Ten Rules For Speaking To Doctors

Monday, June 13, 2011

Anybody that has watched TV for more than fifteen minutes can recite the Miranda warnings from all the cop shows; I bet you know them … “You have the right to remain silent, anything you say can and will be used against you …” you get the picture. But, what does that have to do with a Workers Compensation (or personal injury) claim? Everything!

Injured folks are constantly talking to doctors and nurses who make notes and then place those notes into your records or on your chart. Sometimes, they even quote what you say. I recently litigated a cancer case where the other side actually brought up that a my client, suffering from leukemia due to a workplace toxic exposure, told a doctor that he was doing “fine” when the doctor asked him how he was!

Everything you say to medical care provider (doctor, nurse, PA, everybody) has the potential of ending up in charts that will be read and scrutinized by lawyers at a later date. Who can forget the antics that Elaine, from the TV show Seinfeld, went through to see her own medical chart and then how she was blackballed by other doctors for looking at it; maybe funny on TV, but very serious in the world of personal injury and workers compensation.

Sometimes, what is just as important as what you say is what you don’t say. If you fall at work and break your leg, but fail to mention that you hit your head, or shoulder when you fell, it gives the other side the chance to argue that you did not actually hurt that body part in the accident.

Here are some rules of thumb for when you speak to all medical providers:

  1. Everything you say might be placed in the medical record so speak carefully
  2. Never lie or exaggerate, but don’t hesitate to tell them that something hurts and the more specific you are the better
  3. Doctors rarely will purposely misdiagnose or change a diagnosis just because they work for one side or the other; however, the employer/insurer’s medical opinion may tilt heavily towards the person paying the bills. Keep this in mind.
  4. Be very friendly to the office staff and doctors. If you are sincere, friendly and honest to everybody they will spend more time with you and listen more carefully to what you are saying.
  5. Some of the tests and questions the doctors send your way are designed to see if you are being truthful. They know a lot more about how things are connected in your body than you and I do, but if you are being completely truthful it is less of a problem.
  6. Not all doctors have good bedside manner or want to engage in small talk, such is life
  7. Write down specific problems, complaints and questions, before you go to the appointment and take them with you. It saves everybody time and you don’t forget to bring up important points
  8. Mention problems with other body parts and let them see if they are related. For example, neck, back and shoulder injuries often result in other body parts having symptoms. These may or may not be related, let the doctors decide
  9. Tell them about any medications you take, even if embarrassing. Not telling them could actually hurt or kill you due to a drug interaction
  10. 10. And finally, never, ever, ever tell them you are “fine” … unless you really are … if you were fine you wouldn’t be talking to a doctor, now would you?

By Ken Berman

Maryland Workers’ Compensation Dependency Benefits – The 2011 Legislation

Tuesday, May 17, 2011

As of October 1, 2011, Maryland’s manner of compensating dependents of employees who die due to injuries or diseases sustained as a result of their job has changed! The new law will immediately impact all employees and their dependents other than employees of municipal corporations or counties that have a right to claim their:

  1. Heart Disease
  2. Hypertension
  3. Lung Disease
  4. Lymes Disease; or
  5. Cancer

is presumed to be caused by the job. These presumptions are given to all fire fighters and police officers, some deputy sheriffs and correctional officers, and some employees of the Maryland- National Capital Park and Planning Commission. The excluded employees may be included at a later date if the county or municipal corporation they work for “opt in” to the new statute.

The changes eliminate the distinction that has existed for decades between partially and fully independent individuals. The distinction created windfalls for some and despair for others. Until the new law, a dependent whose spouse was killed in a tragic occupational injury would usually receive benefits:

  1. If she was found fully dependent for life (with some exceptions) at the rate of 2/3 the deceased’s average weekly wage, not to exceed the State average weekly wage, for the rest of her life; or
  2. If she was found partially dependent (with some exceptions) at the rate of 2/3 the deceased’s average weekly wage, not to exceed the State average weekly wage, but only until $75,000.00 is paid out.

It was, and still is for those that remain impacted by it, a terribly unfair law. If the deceased’s spouse was working a part time job at the time of the job related death, the spouse would receive only $75,000 compared to potentially over a million dollars for the spouse who was not working. There was no in between!

Rather than focusing on the amount each individual receives, the new law focuses on the amount of the payment. The intent is that dependency payments reflect the amount of support the decedent provided.

To achieve the new “fairness” the Act introduces the new concept of “family income”. Family income is the total of the average weekly wage (hereinafter referred to as AWW) of the deceased, combined with the AWW of all of the dependents. The AWW of the deceased is based on the deceased’s AWW at the time of the accidental injury of disablement from occupational disease.

Once the family income is calculated, the deceased’s AWW is:

  1. divided by the family income and reduced to a percentage;
  2. the percentage is multiplied by the maximum death benefit which is equivalent to two-thirds of the decedents AWW not to exceed the State AWW;
  3. the total represents the maximum cumulative amount that is paid to all dependents; and
  4. the only exception to this rule is if the decedent’s AWW was $100.00 or less, then the weekly dependency benefit shall be equal to the AWW without any reduction based on the percentage calculation discussed above.

The following example brings clarity to the arcane discussion above. Assume:

  1. Decedent’s AWW = $1200.00
  2. Dependent 1 AWW = $200.00
  3. Dependent 2 AWW = $100.00

Calculations

  1. Total family income is $1500.00 ($1200 +$200 +$100)
  2. Maximum death benefit is $800 (2/3 of decedent AWW of $1200)
  3. Percentage of Decedent’s income to family income is calculated as follows: decedent’s AWW-1200/ family income-1500 = 2/3 or .667 percent
  4. Amount payable to all dependents collectively is $533.34 calculated by multiplying .667 (percentage of decedent’s income to family income) * $800 (maximum death benefit)

The payments are made for a maximum of twelve years retroactive to the date of the death of the decedent unless one of the following occurs:

  1. the dependent’s dependency ceases;
  2. The dependent is a spouse that remarries, in which case the spouse’s benefits cease two years after the marriage;
  3. The dependent(s) are not children of the deceased or the deceased’s spouse, in which case the maximum total payment to that class of dependents is $65,000.00, modified by annual State AWW adjustments beginning January 1, 2012;
  4. The date the deceased would have reached the age of seventy years old if the deceased had not died, in which case dependency benefits cease unless dependency benefits have been paid for less than five years in which case benefits continue until five years of dependency benefits have been paid; or
  5. A child reaches the age of eighteen unless the child continues to attend school on a full-time basis at a school that offers an educational or accredited vocational training program accredited or approved by the State Department of Education, in which case the child can continue to receive dependency benefits until the age of twenty-three; or
  6. A dependent child or spouse remains incapable of self-support (due to mental or physical disabilities that pre-existed the decedent’s death) after their benefits would otherwise be ended, they will continue to receive benefits until their disability ends.

The Workers’ Compensation Commission determines the amount of benefit each dependent receives

The Workers’ Compensation Commission is granted broad discretion to apportion the amount of benefit each dependent receives when there is more than one dependent. The only guidance provided by the statute is that the determination must be “just and equitable”.

By Clifford B. Sobin, Esq.

Maryland Workers’ Compensation – Working Two Jobs – Injured On One

Saturday, November 27, 2010

What do you mean – I can’t collect temporary total or partial disability benefits for being hurt on one job if I continue to work my second job? Unfortunately, that is the law in Maryland. In fact, if you do so, you could be subject to criminal prosecution!

Let me explain the problem by using the following example:

  1. You have two jobs. The first is a fulltime position in an office from which you earn $900.00 a week. The second is a part time job working at a grocery job from which you make $300.00 a week.
  2. You hurt your knee while doing your grocery job and require surgery resulting in an inability to do the grocery job for six months. As a result you are entitled to temporary total disability benefits equivalent to two thirds of your salary – $200.00 per week – during that six month period.
  3. You are still physically able to do your office job.

In a similar scenario the Court of Appeals and the Court of Special Appeals in two separate cases made clear that if the employee continues to work the office job he or she forfeits the right to receive $200.00 a week while the knee heals. This creates an impossible choice for the injured employee – accept the $200.00 and give up the larger salary, or continue to work the office job and create a windfall for the grocery store where they were injured. Either choice will financially devastate the injured employee and discriminates against productive members of our society without any offsetting definable purpose.

The impact on the injured employee of the employer/insurer discovering that the injured worker has double dipped so, to speak, can be devastating. Since most temporary total disability checks contain a warning against cashing them if the injured worker is working, the argument is created that doing so is a knowing violation of the law. The sanctions can range from future reductions reducing other payments owed to repayment, including a high level of interest beyond the date of the Commission Order requiring repayment. The potential framework also exists for the employer/insurer to argue that all right to future compensation is denied and for criminal prosecution (although this author would dispute whether cashing the check without other conduct reaches the level of criminal conduct contemplated in the fraudulent representation statute – no Appellate Court has clearly ruled on the subject so the scope of the statute is still unknown as of November 2010).

If you think this is unfair feel free to contact your legislative representative. This is a law that cries out for change!

By Clifford B. Sobin, Esq.

Maryland Workers’ Compensation Claims – Reporting Your Claim To The Employer

Thursday, November 11, 2010

If you are injured, how and when you report your injury is often the difference between speedy acceptance of the claim by the insurance company and a long drawn out battle with an uncertain outcome. Most claims are denied because the insurer does not believe it happened on the job or does not believe the mechanism of injury is covered under the law.You can protect yourself by understanding the law and minimizing the danger by being prompt and accurate.

The Insurer Does Not believe It Happened On The Job

This problem usually comes up when the incident causing the injury is not witnessed . The antidote is really common sense. You must act in a manner that minimizes the possibility in the insurance adjuster’s mind that some other non work related incident caused your injury. Therefore to reduce the risk that the insurer will not find you credible you must:

  • Report the incident and injury the same day it occurs to your employer in a manner in which you can prove that you did so and/or the likelihood of your employer denying that you did is reduced(in writing, by email, directly by voice – only as a last resort by a message on an answering machine).
  • Seek medical treatment the same day, or as soon as you can – even from a 24 hour urgent care center if you must, and when you do so make sure you give an accurate history of how you were injured on the job.
  • If you have not already, always report an injury that lingers overnight the next day to your employer.
  • Never allow a weekend, holiday, vacation or sick leave intervene between the incident occurred that injured you and the day you report the incident.

Your Description Of The Incident That Caused Your Injury

Maryland Workers’ Compensation law is clear that an injury is covered if it is the unexpected, unintended, or unusual result of an incident. Therefore you must clearly report:

  • That an incident occurred;
  • When it occurred;
  • How it occurred.

When detailing how it occurred, if you know what caused the injury state it. If you stretched too far while carrying a box, say so. If you slipped make sure to include that fact. The key is to include, if possible, why the mechanism of injury was caused by the incident. This will help defeat any claim that the injury is not related to the incident or that the incident is not one that is covered under the law.

By Clifford Sobin, Esq.

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