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Workers' Compensation Blog

Thank You To Our Wonderful Clients!

Friday, September 23, 2016

At Berman, Sobin, Gross, Feldman & Darby LLP we love happy clients! Recently, we received two testimonials from happy clients who shared their experience with our fans and followers on Facebook.

We truly appreciate all of our clients and want to thank Rick Hoffman and Augie Pierson for taking the time to share their experiences with our firm and for being our clients.

Rick Hoffman – President of Local 734 Baltimore Firefighters

Augie Pierson

I injured myself at work – why did my employer’s insurance deny my claim?

Friday, September 23, 2016

Simply getting injured at work doesn’t guarantee you any benefits or rights under the law, unless you file an accepted claim with the Workers’ Compensation Commission. Many injured workers only file paperwork with their employer or employer’s insurance company without ever realizing that this is NOT the same thing as a workers’ compensation claim. When you proceed in this manner, it is a private transaction between you and your employer’s insurance. Unfortunately, in countless instances, the insurance company will deny medical coverage and disability payments leaving the injured worker on their own without any help and without any options.

Secure Your Rights and Benefits

However, when you file a claim with the Workers’ Compensation Commission, not only do you secure all the rights and benefits guaranteed under the law , but you also secure the right to present your case to a Commissioner who has the authority to order your employer’s insurance to pay for treatment and disability payments, even when they initially denied it. The Workers’ Compensation Commission was established specifically to litigate injured worker claims and to ensure compliance with the workers’ compensation laws of Maryland. Nevertheless, you MUST first file a claim with the Commission in order to secure jurisdiction for your work-injury.

Get Help...Contact Matt

If you have any questions regarding your status under the law, please contact Attorney Matthew Engler for a free consultation.

Observing Memorial Day

Friday, September 23, 2016

As this weekend approaches and millions of people prepare to kick-off the summer by celebrating Memorial Day weekend, let’s take a moment to remember the true meaning behind this holiday. The true meaning of Memorial Day is about remembrance. It’s about remembering and honoring the brave soldiers that answered the call to defend our country and that have made the ultimate sacrifice for our liberties and for our freedoms. From the Army, Navy, Air Force, Marines, and Coast Guard, these men and women have made the ultimate sacrifice to this great nation and have provided a blanket of freedom that allows us to sustain a free society. Memorial Day should reflect on the heroes of generations past, and those whose daily work is honorable and heroic. It’s a day to remind us of the true cost of freedom and the human price of such great sacrifice. We ask you to honor all those who have gallantly served our nation to provide the freedoms that we will all share together during this weekend’s holiday.

Berman, Sobin, Gross, Feldman and Darby LLP takes great pride serving military veterans who continue to give back to our community. Whether it be working in public safety from law enforcement, fire and rescue, and corrections by keeping us safe, to the communications workers, bus operators, nurses, teachers and so many others who make an impact on our day to day lives. We appreciate the service of those who serve our community with distinction and honor. Therefore, we take this opportunity to thank all military personnel who continue to fight for our freedoms and to honor those brave men and women that have lost their lives defending our great nation.

We would ask that you also take time to remember and honor those that have sacrificed. In the year 2000, Congress passed The National Moment of Remembrance Act as a way of honoring America’s fallen heroes. This Act designated 3:00 p.m. on Memorial Day as a moment of remembrance. Please take a minute on Monday, May 30 at exactly 3:00 p.m. to reflect and honor those men and women that have made the ultimate sacrifice for our country.

We wish you all a healthy and safe holiday weekend.

Police Officers and Duty Belts – How Back Injuries Can Be Prevented

Friday, September 23, 2016

Think of all the dangers police officers face. They are punched, shot at, struck by cars during traffic stops, injured while restraining combative suspects, and in collisions while in a vehicle pursuit. These are just a few of the perils they encounter. Often though, the injuries which occur while police officers are in the daily grind of the job are the most common.

One of the main culprits of low back and hip injuries is the duty belt. Low back and hip injuries/conditions caused by wearing a duty belt are some of the most underreported types of injuries suffered by police officers. Police are required to carry the following items on their duty belt: radio, gun with a gun light, two extra magazines, two pairs of handcuffs, pepper spray, baton, small flashlight, large light, glove case, tourniquet kit and a Taser. All told, a police officer could be carrying anywhere between 20 and 24 pounds on their duty belt. All that weight pushing right down on their low back and hips during an entire work shift causes long term affects.

Imagine this for a minute. You get up in the morning and put your clothes on for work. Maybe you wear a suit, maybe you have a uniform, but you probably do not have 22 pounds hanging from your belt. So instead of your normal leather belt, it is instead filled with 22 pounds of weight. Or maybe you hang a bag of potatoes from your belt? Or 2 large bowling balls? Or maybe 5 reams of paper? And imagine if that was part of your daily ‘uniform’. You wear it driving to work, walking to get your morning coffee and sitting at your desk. Common sense tells us that our back would be sore at the end of the day. We have all had sore backs from carrying mulch, shoveling snow, carrying our kids or grandkids for long stretches, and moving friends and families.

Police officers have to wear 22 pounds or more around their waist during every hour of every shift. They wear them sitting in the patrol car, pursuing suspects, on foot patrol, during roll call, filling out reports, sitting in court for hours at a time waiting for a case to be called and eating lunch/dinner/breakfast. All day, every day, 22 pounds or more of downward pressure on your hips and lumbar spine. Not to mention the discomfort of sitting in a patrol car with a seat belt and the bolsters on both sides of the seats producing pressure on the belt pushing it up into the back.

But there are some techniques police departments and police officers can utilize to lessen the discomfort and delay the onset of injuries. For departments, the number one way to prevent or lessen back injuries from duty belts is to just do away with them all together. Switching to tactical vests or harnesses can do more to prevent back injuries than anything else. Unfortunately, few patrol officers are issued tactical vests. It is common sense that wearing a backpack is a heck of a lot more comfortable than wearing a fanny pack. Also, departments can provide nylon belts instead of leather belts. Nylon belts are lighter and more flexible than leather belts. But these cost money, and in an era of shrinking municipal budgets, they are unfortunately an unlikely fix.

Sadly, it is up to police to protect themselves. When seated in a patrol car, change posture often, take breaks when possible, stand up and walk around, alter the driver’s seat with a lumbar pillow to provide more support. When on foot patrol, take the opportunity to stretch. If, however, a police officer is experiencing back pain, it is unlikely to get better by ignoring the problem. Back and hip injuries caused by wearing duty belts are consistently underreported.

When these back and hip injuries do happen, it’s vital that police report these injuries to supervisors and seek medical attention. The wrong response is to ignore it and hope it gets better. Finally once the injury has been reported and documented by a doctor, police must file a workers’ compensation claim to ensure their medical rights are protected for the rest of their lives.

Our police, who risk their lives every day to protect our communities and our families, should be provided every piece of equipment to make their increasingly difficult and dangerous jobs safer. After all, many of these brave men and women are going home to their own families, and should not have to be living in constant back pain because local governments are not prioritizing the health and safety of our first responders.

Please contact Jason Shultz at 410-769-5400 or jshultz@bsgfdlaw.com to protect your medical rights.

Berman, Sobin, Gross, Feldman & Darby Team Secure Significant Benefits for Local Firefighter

Friday, September 23, 2016

Ken Berman and Berman, Sobin, Gross Feldman & Darby, LLP were able to secure benefits from three different insurance carriers for a single injury to a fire fighter who was involved in a devastating collision between a tractor trailer and a fire engine. While the law is clear that a Claimant cannot receive compensation twice for the same injury, Ken used his many years of experience and knowledge in handling both workers’ compensation claims and negligence claims for fire fighters to maximize the injured fire fighter’s recovery. The team at BSGF&D explored several complicated recovery scenarios to reduce the workers’ compensation lien and increase benefits from motor vehicle and other insurance.

Helping to Protect Injured Fire Fighters

The injury occurred when several Fire Fighters were in the process of returning to the station when they were suddenly struck by a tractor trailer causing the fire truck to overturn. As a result, the fire fighter’s arm was amputated and surgery was required to reattach it.

Medical Treatment, Benefits, and More

Berman, Sobin, Gross, Feldman & Darby, LLP ensured that the Claimant’s medical treatment was entirely paid for through workers’ compensation and that the fire fighter continued to receive weekly benefits. Ken successfully argued that the Claimant’s fringe benefits (housing at the fire station, clothing allowance through his full time employer, etc.) were included in determining the Claimant’s average weekly wage thereby increasing his weekly compensation benefits. The Workers’ Compensation Commission agreed and allotted the fire fighter higher weekly payments.

Going The Extra Mile for Injured Fire Fighters

After securing the maximum amount of workers’ compensation benefits, Ken went after the Defendant tractor trailer’s driver policy of insurance. Although there were eight other parties making a claim on the defendant/tractor trailer’s insurance, Mr. Berman was not satisfied to simply accept his client’s pro rata share of that policy. Extensive investigation revealed that the fire truck in the Claimant was riding carried an additional “underinsured motorist” policy which provided additional benefits to the injured Claimant. By structuring the recovery from the Defendant tractor trailer tortfeasor, and coordinating the recovery from the underinsured motorist carrier of the fire truck, Ken was able to maximize the recovery to the injured worker from 3 separate sources.

Workers' Compensation Case Experience Matters

After all of the above, Ken and the injured fire fighter then returned to the Maryland Workers’ Compensation Commission to obtain additional permanency benefits. The Claimant was paid at the highest rate allowable under the law and he will continue to receive benefits for years to come, as well as having full coverage for any future medical needs or treatment.

Experience matters. Ken Berman and Berman, Sobin, Gross, Feldman & Darby, LLP’s extensive knowledge of not only workers’ compensation law but also the complicated subrogation and insurance laws applying to workers’ compensation and motor vehicle accidents, made those laws work for the injured worker, thereby insuring the Claimant the maximum recovery, coverage, and protection.

I was told I have lifetime medical coverage, under workers' compensation, but they are denying my claim!

Friday, September 23, 2016

The Law. Many injured workers remember that towards the end of their case, when they settled, received a lump sum award, or weekly payments for a set period of time for their workers’ compensation claim, they were told that there right to medical treatment was left open for the duration of their life. However, of course, this comes with a caveat; according to the Workers’ Compensation Law of Maryland, injured workers are entitled to medical treatment with no time limitation, unless stipulated otherwise, for the body part that was injured at the time of the accident as long as the requested medical treatment is reasonable and necessary and is casually related to the original accidental injury.

What does this really mean? For continued medical treatment the injured worker must prove that their current need for medical treatment is still related to the original claim. Thus, the insurance company may not approve any treatment without a doctor’s letter stating that the current need for treatment is still related to the original claim. In my practice, clients often call me after two (2) - five (5) years of feeling fine and now have an onset of the same symptoms they felt several years ago from their accidental injury or disabling occupational disease. Injured workers are often frustrated that their employer’s insurance company will not automatically approve a visit or treatment. This is compounded when the injured worker finds out that before treatment is approved, the employer’s insurance company is allowed to send them to the insurance company’s own “independent” medical evaluation, which often times will state that the current need for treatment is no longer related to the claim. When there has been a large gap in time from the last date of treatment until the present need for treatment usually an injured worker must participate in a hearing to request the Commission to order the treatment or visit. Scheduling of these hearings can take several months.

What should I do? First the insurance company needs evidence through medical reports that the new symptoms are related to the original injury. Then the insurer will need to verify that the requested treatment is reasonable and necessary. Finally they will investigate to ensure there was no intervening event or accident that might have caused the onset of new symptoms. The best way to get your treatment as quickly as possible is to visit your doctor and ask them to write a letter that describes what treatment has been recommended, why the treatment is recommended and whether or not it relates back to the original Workers’ Compensation claim make sure all of your providers have your workers’ compensation insurance claim number and send reports and bills directly to the insurance company to ensure time is not lost in updating the workers’ compensation insurance file. In addition, verify that your attorney also has all of the appropriate recent medical reports, thereby supporting the effective and expeditious advocacy on your behalf. If Berman, Sobin, Gross, Feldman & Darby LLC was the law firm you used for the original claim we will continue to fight to get the medical treatment you need.

For More Information, Contact Attorney Julie Mirman 301-740-3306

Ken Berman Expands Law as to PTSD for Fire Fighters

Friday, September 23, 2016

Post Traumatic Stress Disorder is a huge issue among first responders and can quickly develop into a serious and life threatening condition. Studies show that Post Traumatic Stress Disorder can lead to dangerous and suicidal thoughts among those who suffer from it. A study published by the Journal of Affective Disorders in 2015 found that “Fire Fighters report an alarmingly high career prevalence of suicidal thoughts and behaviors.” More than half of those study participants reported encountering suicidal thoughts at one or more points during their career.

PTSD and Workers’ Compensation Claims

For many years, Post Traumatic Stress Disorder was not recognized as a compensable workers’ compensation claim. In the 1980s and 1990s Berman, Sobin, Gross, Feldman & Darby LLP persuaded the Workers’ Compensation Commission to begin to recognize Post Traumatic Stress Disorder as compensable. It was normally limited, however, to instances of specific horrific incidents occurring.

Active and Retired Fire Fighters Who Suffer from PTSD

For decades Ken Berman has represented fire fighters and first responders who have suffered from PTSD. In two recent cases, Mr. Berman convinced the Commission that fire fighters and first responders can suffer from PTSD from every day stresses and strains and that coverage for PTSD should not just be limited to problems arising from one specific event. Mr. Berman argued that the day to day stresses and strains, cumulative in nature, were equally, if not more, harmful and devastating and should be covered under the law. The Commission, based upon the above arguments, along with appropriate testimony and medical records, agreed. In both cases the fire department argued that such day to day traumatic events are “just part of the job” of a public safety employee. Mr. Berman turned that defense on its head and argued that this was precisely the point. If it is a part of the job and intertwined with it then it should be covered.

The two new decisions are important given that studies show that anywhere between 7% and 37% of fire fighters suffer from PTSD and that the likelihood of suffering from PTSD increases with the number of traumatic situations an individual is exposed to.

Getting Help for PTSD

If you believe you are suffering from Post Traumatic Stress Disorder, or know someone that might be, seek immediate help from a qualified medical professional. If you are worried about a co-worker, talk to them about your concerns. Providing a supportive environment built on mutual experiences can prove to be extremely beneficial to your fellow fire fighters. If you have any questions on any of the above or wish to discuss any matter, in a confidential environment, please feel free to contact Berman, Sobin, Gross and Darby at 1-800-827-COMP(2667).

Key Differences in the Vocational Rehabilitation Process in Maryland and the District of Columbia

Friday, September 23, 2016

VOCATIONAL BENEFITS

The Workers’ Compensation Statutes in both the State of Maryland and the District of Columbia offer a benefit to injured workers called Vocational Rehabilitation, often called “Voc Rehab” for short. Vocational Rehabilitation arises in a workers’ compensation case when the injured worker’s medical treatment is complete, or near complete, and he/she is given restrictions from his/her doctor that prevent him/her from physically performing the work he/she was able to perform before the accidental work injury. During the Voc Rehab process, the injured worker receives assistance from a licensed vocational expert so that they can, together, strive towards getting the injured worker back to full-time work with another employer and within the injured workers’ permanent physical limitations. The injured worker receives pay from the workers’ compensation insurance company while he/she is applying for jobs, taking classes, or going through retraining.

One scenario in which an injured worker would be able to receive Voc Rehab benefits would be, for example, if the injured worker was employed as a security officer at the time of the work injury, and had work requirements of standing for 6 hours a day, and lifting up to 50lbs. Yet, because of his permanent back and right ankle work injuries he is now only able to stand for only 2 hours a day, and lift up to 20lbs. The injured worker in that example would be entitled to receive Voc Rehab benefits in both the District and in Maryland. By contrast, if that same security officer was released to full-duty work, and had no permanent limitations on his ability to lift or stand, then he would not be entitled to Vocational Rehabilitation and would be expected to return back to his pre-injury work, even if it was now physically harder to do that job and his work activities caused him some physical discomfort.

Often times, the permanent work limitations are given by the treating physician at the time the injured worker is being discharged from his doctor’s care. There is a test called a Functional Capacity Evaluation (FCE) that offers a more detailed analysis as to what the injured worker can and cannot do. The FCE usually takes place at a physical therapy facility, although not all physical therapy facilities perform FCE’s. The FCE typically lasts approximately 4 hours. Upon completion of the FCE, the FCE facility will issue a detailed report stating how much the injured worker can lift, push, pull, and carry, and for how long he can sit, stand, walk, and run. If the FCE evaluator feels the injured worker has permanent work restrictions that keep him or her from returning back to the job they had at the time of the work injury, then vocational rehabilitation will begin.

COMPARING MARYLAND AND THE DISTRICT OF COLUMBIA

There are several key differences in the Voc Rehab process in Maryland and the District of Columbia. For example, in Maryland the Workers’ Compensation Regulations state that the Parties to the Claim may agree on the Vocational Counselor that will be assisting the injured worker with getting back to full-time work within his/her permanent work restrictions. If no agreement is reached, the Commission will pick the Vocational Counselor from a list. In the District of Columbia, however, there is no such provision, and the vocational counselor is typically selected only by the workers’ compensation insurance company, or their attorney. Therefore, from the onset of the Voc Rehab process, injured workers in DC are at a disadvantage. The manner in which the injured worker is scrutinized in Maryland versus the District during the Voc Rehab process is vastly different. In Maryland, Voc Rehab is offered to injured workers typically at three-month increments. If the injured worker in Maryland is “compliant” during those first three months, the Vocational process will be extended for another three months, and another three months, until the Maryland workers’ compensation insurance carrier no longer wishes to offer Voc Rehab to the injured worker, or finds a reason to deem the injured worker as being “non-compliant” with the Voc Rehab process. One example of how noncompliance is alleged is by stating that the injured worker was not applying to enough jobs each week, or was showing up late to their weekly meetings with the Voc Rehab counselor. In the District of Columbia, however, vocational rehabilitation can go on for years without ever having to request or wait for an extension of time from the workers compensation insurance adjuster.

And so, while in Maryland the vocational process is evaluated on a monthly basis by the insurance adjuster, in the District of Columbia, injured workers who are receiving Voc Rehab benefits are often left to their own devices. The Rehab counselors typically do not write detailed monthly reports commenting on everything that was done and not by the injured worker, and so the injured workers’ level of participation during Voc Rehab in DC is not able to be scrutinized or judged as it is in Maryland. However, the same goes for the level of participation of the Voc Rehab counselor. If the counselor is not required to write monthly reports in the District as they are in Maryland, the counselor’s own level of involvement is not recorded. For example, were classes or re-training discussed and offered officially? If so, when? Was the counselor late to meetings as well? These details control the Voc Rehab process in Maryland, and determine the extent to which Voc Rehab will take place, and how much Vocational benefits are offered to the injured worker, whereas in the District of Columbia, those details are often lacking.

In sum, there are benefits and detriments to each jurisdiction’s workers’ compensation laws. There is no perfect system. The best thing for the injured worker to do is to follow the laws and procedures of the jurisdiction in which their injury took place, and to do so with the assistance of an attorney they trust. If additional information is needed as to the Vocational Rehabilitation process, I can be reached at: LPisano@bsgfdlaw.com, or on my direct work line of: 301-740-3304.

Sick Leave Bank or Temporary Total Disability? An Introduction to How Leave Benefit Options Will Affect Your Workers’ Compensation Case

Friday, September 23, 2016

Many of my teacher clients often ask, and understandably so, how will I be paid while I am out of work and recovering from my injury? Because many boards of education in Maryland offer benefits other than what the Workers’ Compensation Act allows – the answer is - “it depends”. Oftentimes, the type of benefit received may be your choice – making it a good time to contact your attorney and make sure you understand the implications of what benefit you choose.

Maryland Law for Teachers Workers' Comp

Maryland law requires an Employer to pay you at the rate of 2/3s of your salary for the period of time you are recovering from your work related injury (legally known as temporary total disability or “TTD”). For many private sector employees, other than possibly a short or long term disability plan, the 2/3s wage benefit is the only benefit available while out of work. The 2/3s TTD benefit is tax free; however, oftentimes your health insurance is placed on hold, along with your contribution to any pension or other 401k type program while you receive this wage benefit – oftentimes placing you in a precarious position.

Additional Benefits Through Unions

Many teacher unions however, have collectively bargained for additional benefit options for their members. These benefits differ by County. Many boards of education will pay anywhere from 90 days to one year of “disability leave” (also known as “accident leave” or in certain cases “assault leave”) which takes the place of the workers’ compensation act’s 2/3s leave benefit. This benefit pays 100% of wages for the period of time you are recovering from your injury, effectively taking the place of your normal salary. Perhaps most importantly, this allows you to continue to pay for your own health insurance and contribute to your pension, FSA, etc., which many of my clients find to be extremely beneficial – especially if they provide health insurance for their families.

Once the “accident leave” or “disability leave” benefit has run its course, other potential TTD alternatives may be available to you. Personal and sick leave can always be used – however, these are earned leave benefits that should not be wasted on a work related injury if at all possible (if an employer is requiring you to use your own accrued leave to recover from a work injury, consult with your attorney). These are leave benefits you have earned – you are entitled to keep them if you are hurt on the job. Also important to note, even if your employer forced you to use your own personal or sick leave, oftentimes these benefits can be reimbursed at a later date.

Sick Leave Bank

Many school boards also offer “sick leave bank” benefits as another payment option. To be eligible you must contribute a set number of personal leave days to the bank per year to qualify – each County has its own set of rules and regulations to access the “bank”. You must be a member of the bank prior to needing to the days, however, when a work injury takes place this is another option which pays at 100% of your wages and continues the other benefits noted above (e.g. health insurance, etc.).

Additional Options to Review and Discuss

There may be other options aside from those noted above to compensate you when you’re injured on the job. Leave benefits are just one of the benefits you may be entitled to if you are injured on the job. Compensation for permanent problems, retraining and reimbursement for travel expenses are just a few of the other benefits that may be available to you.

Consult with your attorney to be sure you are not leaving money on the table.

Can Teachers Collect Leave Benefits During Summer Break?

Friday, September 23, 2016

The days are now long, morning frost is a thing of the past, and thousands of Maryland’s educators’ are enjoying their summer breaks. What better way to kick off this year’s few months of relaxation (or switching gears for that summer job) than to brush up on your workers’ compensation knowledge?

Workers' Comp Benefits and Summer Break

This time of year, I always hear from a number of my teacher clients who are wondering how the summer break will affect their workers’ compensation benefits. Generally speaking, under the Workers’ Compensation Act, Maryland workers are entitled to 2/3s of their wages (known legally as temporary total disability or “TTD”) during the recovery period after an injury when they are incapable of working. (Most boards of education offer a 100% wage benefit to their employees for a specified time period. This issue and its implications on workers’ compensation benefits will be discussed in greater detail in a future blog).

Boards of Education however, will often refuse payment of TTD during our educators’ summer vacation - making the argument that the injured teacher is a 10 month employee and would not be paid during the summer months if they had not been injured at work.
The law in Maryland, however, makes clear that the having an actual intention to work or the opportunity to work for that matter, is not a requirement to collect TTD. Maryland’s test is loss of earning capacity, or the inability to work, regardless of whether there would be actual wage loss. Maryland’s highest court has held that both retired workers – who may never work again (no intention of working), and incarcerated employees (no opportunity to work), are both entitled to payment of TTD during the period they would be physically unable to perform their job duties.

In short – teachers are entitled to TTD over the summer if they are still recovering from a work injury and can’t physically perform their job duties, regardless of whether or not there are any job duties available to perform.

Pay Plans and Benefit Coverage

Another important factor to consider under these circumstances is whether an individual takes a 10 month pay or chooses to spread out their pay over 12 months. Boards of Education will often argue that if a teacher is compensated on the 12 month plan, they should not be entitled to TTD benefits during summer because they are already being paid and would then be “double dipping”. However, this could not be further from the truth. Even if the pay is spread over 12 months, teachers are still only being paid for 10 months of work and accordingly, are still entitled to summer TTD. Deferring earned income does not preclude TTD benefits during the summer months.

Bring on the heat.

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