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Workers' Compensation Blog

The “Going and Coming Rule” in the District of Columbia

Thursday, September 13, 2018

What tends to surprise a lot of our clients is the fact that, in the District of Columbia, injuries sustained by employees while traveling to work or traveling home from work, are not covered by the District of Columbia workers’ compensation statute. The DC workers’ comp statute is codified in Title 32 of the DC Code. In order for an injury to fall within the statute, the injury must “arise out of” the injured worker’s employment.

An injury is said to ‘arise out of’ ones employment if the injury would not have occurred ‘but for’ the fact that an obligation of the employment duties puts the injured worker in a position where he gets injured. An injury is therefore, said to ‘arise out of’ ones employment when it occurs in the course of the employment on account of conditions of the employment which are the immediate cause of the injury.

Therefore, while we must travel via some mode of transportation in order to be able to arrive at our place of employment, or to return home, the traveling itself is not a condition of the actual employment, and is not an obligation of the physical work we do; the traveling and the work are separate and apart from one another.

However, there are instances where an employee’s travel to and from work can be considered to be a part of the employee’s actual work and an obligation of the employee’s employment.When this occurs, injuries sustained by the employee while traveling to and from work would be an exception to the ‘going and coming rule.’ Some factors that the court will consider are the following:

  1. Was the employee paid for his time to travel to and from work?
  2. Was the employee driving a company vehicle to and from work that he parks in his “home garage?” 
  3. Is the employee paid gas money to get to and from work? 

While there is no bright-line rule, the court will consider one or more of the above factors to see if there exists an exception to the “going and coming rule,” allowing the injury sustained while traveling to or from work to fall within the DC workers’ compensation statute.If any additional information is needed, I can be reached by email: lpisano@bsgfdlaw.com, or on my direct work number of: 301-740-3304.

The DC Workers’ Compensation Litigation Process

Tuesday, July 31, 2018

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

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

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

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

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

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

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

Monday, July 09, 2018

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

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

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

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

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

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

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

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

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

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

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

The Importance of Documenting All of Your Injuries

Tuesday, July 18, 2017

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

What’s In The Injury Report Matters

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

Contact Us With Questions

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

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

Friday, July 14, 2017

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

What is the “Consideration Date?”

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

My Employer and Insurer filed Contesting Issues; what next?

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

How can my hearing be scheduled on an emergency basis?

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

If you have any questions or require assistance with your work-related injury or illness, please do not hesitate, contact Matthew Engler, Esq. today at 301-740-3322 or mengler@bsgfdlaw.com.

The 4 Levels of Workers’ Compensation Litigation

Tuesday, March 14, 2017

Whenever I tell clients about the workers’ compensation litigation process in the District of Columbia, they have a blank look on their face. I receive questions such as, “What do you mean it takes 2 months to get a hearing date?” and, “What do you mean the insurance company can file an appeal?” The sad truth is that the workers’ compensation process in DC workers’ compensation cases can go on for what seems to be forever. This is one of the many reasons why it’s best to talk to an attorney from the onset. You do not want to hire an attorney when you are already in crisis mode and could have benefited from a hearing months prior. Although, we are able to many things, one thing attorneys cannot do is speed up the litigation process, as that process is controlled solely and entirely by the Legislature and the courts.

Stages in the Legal Process

In DC workers’ compensation cases, you start off at the Informal Conference level, which is more or less a mediation with no witnesses, except the injured worker, and nothing is recorded. From there, either party can appeal by requesting a Formal Hearing. The name pretty much says it all. It is a much more formal hearing, where both sides to the case can present witnesses and everything is recorded, bust during the formal hearing, rules of evidence also applies, and there can be formal discovery such as depositions. It takes several months to receive written decisions at both of these levels of litigation, but the process does not stop there. After the Formal Hearing, either party can, yet again, file an appeal if they are not happy with the written decision. This appeal is done by written legal Memoranda only and the attorneys take care of it. They are filed with the Compensation Review Board and if the Board feels that there was an error of law, then the case will be sent back down for another Formal Hearing to get the case re-heard. If not, then the Formal Hearing decision is final. If, however, either party to the case is not happy with the decision of the Compensation Review Board, the case can be appealed for a fourth and final time with the DC Court of Appeals. This time, legal briefs are filed by the attorneys and argued in Judiciary Square before the Chief Judge and several others. The written decision of the Chief Judge is final.

Where To Go When You Need Help

The litigation process can be highly time consuming and tedious. I hope this blog shows you just how important it is to have an attorney representing you and your interests as the process is not just long, but also complex. If you are looking for more details on the litigation process, please do not hesitate to reach me at: LPisano@BSGFDLaw.com or 301-740-3304.

Lessons Learned - Don’t Delay in Reporting or Filing a Workers’ Comp Claim

Monday, March 13, 2017

How long does an injured worker have to file a claim under the DC workers’ compensation system? I decided to write a blog about this issue because I had a new client come into my office recently regarding an injury from a year and a half ago, which occurred at her work in the District of Columbia. I asked her why she had not yet filed her workers’ compensation claim.After informing me that she did in fact file a workers’ compensation claim, she proceeded to show me the confirmed claim number from the workers’ compensation insurance company.

The Secret Behind The Delay

What was the problem? The insurance company’s claim number is more like an internal tracking number for them, which works only in their computers, so that they can keep tracking of their cases. It does not mean a claim is on file. The only way an injured worker is truly protected, with lifetime medical rights, is to file an official claim with the DC Office of Workers’ Compensation (OWC).The client was completely shocked, as she had never heard of the OWC.I then told her that you have only one (1) year from the date of the work injury to get the official claim filed. This new client’s shock turned to disappointment and then to anger. I told her that the insurance company is not on her side. In fact, they are on the exact opposite side of her case and that she cannot and should not rely on them, or to give her legal advice or to advise her as to rights she has under Title 32 of the DC Code (the workers’ compensation statute).

Lessons Learned

The lessons to be learned? When you are injured at work you must:

1. Notify your employer immediately

2. Seek medical treatment immediately

3. Contact an attorney for a free consultation.

All’s Well That Ends Well

I was able to salvage this claim because there is an exception in the DC workers’ compensation statute that allows injured workers to file their claims with the DC Office of Workers’ Compensation more than one (1) year from the date of injury. That exception exists if the insurance company did not send the injured worker a form called, “First Report of Injury” via Certified Mail, which they rarely do. Luck was on this client’s side. Had she not been so lucky, she would have lost out on a lot of monetary and treatment-related benefits.

Knowing Your Rights Matters

So, the lessons learned from this blog are: Don’t short change yourself. Know your rights and start filling! If you have any questions about a DC workers’ compensation claim, please contact Lauren Pisano for consultation at LPisano@BSGFDLaw.com or 301-740-3304.

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