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Workers' Compensation Blog

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.

Facts About Injuries for Fire Fighters and First Responders

Friday, September 23, 2016

Fire fighters get injured at work more than the general population. If that seems logical to those who perform the job, now there are official numbers to back it up. In 2014 there were 63,350 fire fighter injuries which occurred in the line of duty, a decrease of 3.8% from 2013 when there were nearly 65,880 line of duty fire fighter injuries. While this number, thankfully, is the fewest since 1981, and 2013 represented a 5% drop from the number of injuries to fire fighters in 2012, it is still much higher, proportionately, than for any other occupation. This is especially worrisome when one considers that the number of fires has decreased by 57.1% since 1981.

1 Injury Occurs Every 8 Minutes

Thus, while the number of total injuries for fire fighters has gone down slightly over the last two decades, the number of fires since 1981 has decreased at a much greater rate. The number of injuries remain much higher for first responders than anyone else. It amounts to one fire fighter injury occurring every 8 minutes. In fact, according to the Harvard School of Medicine, putting out a fire has a 100 times higher risk of death than working in a non-emergency situation. Although many people assume that burns and smoke inhalation are the cause of most fire fighter fatalities; heart disease (coronary artery disease) is actually the single most frequent cause of duty-related deaths.

WHERE the Injuries Occur

A look behind the numbers nationwide in 2014 show that forty three percent (43%) of fire fighter injuries occur at or on the fire grounds, while seventeen percent (17%) occur during other on-duty activities. Six percent (6%) arise from responding to or returning from an incident, while eleven percent (11%) happened during training activities. Finally, twenty three percent (23%) occurred at non-fire emergency incidents. The highest rate of injuries (per 100 fire fighters) were, perhaps not surprisingly, among departments that protected populations of one million citizens or more and the fewest were to fire fighters that protected populations of fewer than 25,000.

Exposure To More Than Burns and Scars

In addition to injuries, NFPA estimates that in 2013 (the last calendar year for which reportable numbers exist) there were 7,100 exposures nationwide to infectious disease (such as hepatitis, meningitis, HIV) and 17,400 exposures to hazardous conditions (asbestos, radioactive materials, chemicals, etc.)

Public Safety Workers’ Compensation Claim Rates

The national numbers are mirrored in the State of Maryland. Out of all the workers’ compensation claims filed in the State of Maryland, a disproportionate number have been for public safety employees.

2015 2014 2013
# of Claims 23,711 24,211 23,241
# FF Claims 754 (3.2%) 799 (3.3%) 769 (3.3%)

If you know of fire fighter, first responder, or EMS worker who has been injured on the job have them call me for a confidential consultation.

Increased Deliveries Equals Increased Injuries for Delivery Drivers

Friday, September 23, 2016

Is it just me, or does it seem like there are simply not enough hours in the day anymore? More often than not, I’m trying to accomplish multiple things at a time in order to get through the never-ending ‘to-do’ list that I have created for myself each day. That, coupled with easy access to online shopping from my smartphone makes home delivery a very common and necessary feature in daily life. One study indicated that ‘mobile’ shopping is projected to grow from a mere $3 billion in 2010 to $31 billion by 2017.

Increased Injuries for Courier Workers

Given this, it isn’t surprising that courier workers are experiencing ever increasing demands in their jobs. Increased volume as well as stricter time constraints on delivery schedules have resulted in more injuries to courier workers over the years. And while these injuries occur on a more frequent basis, the typical courier worker continues to work through their injury hoping it will resolve itself. In the best of circumstances, the nagging knee pain or back twinge will eventually go away. However, in worst-case scenarios, those injuries that were initially minor in nature can turn into debilitating, career-ending injuries.

Who to Call...and When...

Time and time again, I receive calls from injured workers who have had long standing injuries that they have reported to the company, only to learn later, and sometimes when it is too late, that these injuries are not covered under workers’ compensation. This should not be happening! Merely reporting your work injury at the job is not enough.

We can help to make sure your rights are protected. Contact Gretchen Rogers today (301-740-3303) to learn what you rights are.

Jury Got It Right For Montgomery County Correctional Officer

Friday, September 23, 2016

Attorney Charles Schultz of Berman, Sobin, Gross, Feldman & Darby, LLP was successful in overturning a decision of the Maryland Workers’ Compensation Commission which had found that a career correctional officer did not sustain an occupational disease of Hypertension as a result of his employment. The Commission denied the injured worker’s claim for benefits because he suffered from numerous other health conditions which could have been a factor in his development of Hypertension. After a two (2) day jury trial, the jury returned a verdict in favor of the officer, who had worked for Montgomery County for just two (2) years prior to being diagnosed with Hypertension (he had worked as a correctional officer for 11 years prior to that in a different jurisdiction), finding that his condition was caused by his employment.

Hypertension for Correctional Officers

For many correctional officers in Maryland, it is presumed that Hypertension is caused by the stresses and strains inherent in the job - a law that makes perfect sense to those who understand the daily challenges of a correctional officer. Correctional officers are in the position of having to protect inmates from harming themselves, other inmates, or the officers themselves, and often times when they are greatly outnumbered by the inmates. This stressful environment can contribute to the development of Hypertension - which has been recognized by Maryland’s Legislature by including correctional officers in the heart and lung law.

What This Means for the Officer

The court victory means that the officer will now receive payment for all future medical treatment and any past medical bills resulting from his Hypertension, payment at two thirds of his wages tax free for any time he has missed from work as a result of his condition, and payment for the permanent disability he now has due to his condition.

If you know someone who is a corrections officer and is suffering with job-related hypertension, please have them contact Ken Berman at (301) 670-7030.

Injuries from Prescription Related Side Effects for Firefighters

Friday, September 23, 2016

Over the years, I have represented thousands of you for claims arising out of work related, as well as non-work related, injuries and/or diseases. Unfortunately, not only have you had to worry about the injuries and the diseases themselves, other concerns have arisen besides the dangers of your profession. Recently, many of the treatments for these problems have been declared dangerous and life threatening.

Side Effects From Xarelto and Other Prescription Meds

For instance many individuals have been prescribed Xarelto as a blood thinner. Xarelto, as you may already know, has been the subject of lawsuits because it has been found that Xarelto can lead to uncontrollable internal bleeding and other serious complications, including heart problems and/or strokes. In addition, for those who have work related or even non-work related problems or diseases, manufacturers of medical devices and IVC, have recalled their products. Inferior Vena Cava Filters (known as “IVCs”) are designed to prevent life threatening pulmonary embolisms. Some of these filter failures have resulted in deaths.

Furthermore, a well-known consequence of hypertension is a loss of potency. The FDA alerted consumers and healthcare providers that a small number of men have lost eyesight after taking Viagra, Cialis or Levitra.

How We Can Help You, Or, Someone You Care About

Berman, Sobin Gross, Feldman, and Darby, LLP has been at the forefront in resolving the cases involving unsafe drugs and medical devices and protecting injured workers, and their families. If you believe you have been harmed by any of these products or by such products as Pinnacle DuPey® Hip Replacements, Taxotere®, or Essure®, please contact me at (301) 670-7030. In the meantime, stay safe.

Hard Fought Court Victory for Widow of Deceased Fire Fighter

Friday, September 23, 2016

Attorney Ken Berman has secured death benefits for the widow of a deceased fire fighter in a three (3) day jury trial. The Maryland Workers’ Compensation Commission had found that the Claimant, a fire fighter who was not diagnosed with multiple myeloma until 23 years after last running a call, did not sustain a compensable occupational disease. The Commission denied the widow’s claim for the death of her husband due to the long gap between the fire fighter’s exposure (1989) and the diagnosis of the disease (2012), as well as the fire fighter’s family history of cancer.

Occupational Diseases for Fire Fighters

After three days of testimony, including Mr. Berman subpoenaing the former assistant chief of the department to testify as to exposures fire fighters encounter and past lack of safety measures, the Jury returned a verdict overturning the Commission and in favor of the Claimant- finding that his occupational disease of multiple myeloma was indeed related to the fire fighter’s exposures in the department.

What This Means for The Family

The court victory means that the widow will now receive death benefits, payment for the funeral expenses, and payment for all past medical bills and other expenses.

Benefits for Burns, Scars & Disfigurements

Friday, September 23, 2016

Maryland Workers’ Compensation law requires the Employer/Insurer of a worker who is burned, scarred or disfigured while performing his/her job to pay to that worker, compensation benefits. This includes, and is especially relevant to, fire fighters.

A fire fighter who is burned, disfigured or scarred while either fighting a fire or performing any other aspect of his job has the right to receive $343.00 per week (the 2016 rate) up to a maximum of 156 weeks for any such disfigurement, burn or scar. As in many other requirements of the Workers’ Compensation law, fault is not a factor, however the employee has 2 years to file such a claim after the disfigurement or scarring occurs.

If you have been burned or incurred any scarring in the last 2 years contact us immediately to process the claim and obtain the benefits that are rightfully yours.

Conclusion

The laws governing workers’ compensation are complex. However, the system is designed to benefit an injured worker. An attorney can only charge if recovery is made. If you have a question regarding anything in the outlines, or any other questions, please feel free to contact us at Berman Sobin Gross, Feldman & Darby. Our telephone number is (301) 670-7030 and our toll free number is (800) 827-COMP.

Injuries During Physical Training: What Is and Is Not Compensable

Friday, September 23, 2016

There has been some confusion recently as to whether injuries sustained while performing “required” physical training are covered under workers’ compensation. The answer almost always is "yes", provided certain conditions are met.

When The Injury Happens Matters

Physical training is considered part of a fire fighter’s job. Therefore injuries sustained during training are compensable provided that the injury is an “ACCIDENTAL INJURY arising out of the course of employment” (Labor & Employ. Art. Md. Ann. Code) “An accidental injury” (and thus a compensable injury) has been interpreted by the courts to mean any injury which occurs at work or is related to work. It includes such things as slips, falls, or burns. This standard of compensability applies not only to injuries sustained at the fire grounds but also traveling to or from a fire, at the fire, being detailed to stations and checking one’s mail at the station, as well as injuries sustained during physical training.

Documenting The Injury

One should always include in the First Report of Injury, Supervisory Report, and in any history given to a doctor any details about the injury. This will prevent problems from arising and decrease the likeliness of the Employer contesting the claim.

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