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Workers' Compensation Blog

Death Benefits for the Dependents of Public Safety Members Where the Occupational Disease was the Cause of Death in Labor & Employment §9-503 Cases

Wednesday, May 01, 2019
  • I. Determining Dependency

    • a. Who may be dependent and when the determination is made.

      In general, a dependency determination is established through proof of financial support to the individual seeking the determination. The determination is made both on the date of disablement and the date of death2. If an individual is not dependent on the date of disablement, but becomes dependent as of the time of death, the individual is not dependent. The one exception exists where a child who was not yet born at the time of the initial disability but is born thereafter, out of a marriage existing at the beginning of the disability, and is dependent at the time of death.3 Assuming the child meets the other requirements for dependency, discussed in detail below, the child would be eligible for dependency benefits. The surviving spouse is not entitled to dependency benefits if 1) the surviving spouse deserts the covered employee for more than 1 year before the time of the date of disablement; 2) the surviving spouse deserts the covered employee at any time after the time of the occurrence of the date of disablement; or 3) the surviving spouse and the covered employee (i) were married after the time of the occurrence of the disablement and (ii) do not have any dependent children.4

    • b. Total v. Partial Dependency

      Once the determination is made, there must be a finding of total or partial dependency.5 Total dependency exists when the individual relies entirely on the earnings of the deceased. Temporary gratuitous assistance or minor considerations from others do not prevent a determination of full dependency.6 A legal or moral obligation to provide support in the absence of actual support does not create dependency.7 A finding of total dependency does not require destitution; the receipt of financial assistance from other sources which do not substantially affect or modify their status does not disqualify an individual from a finding of total dependency.8 Dependency determinations must be made on the particular facts of each case, including the relative contribution by the individual to the household income and consideration of the dependent's standard of living.9

    1. This article applies to claims where the employer/insurer has not made an election under Labor & Employment §9-683.6.
    2. Labor & Employment §9-679.
    3. Labor & Employment §9-680(c).
    4. Labor & Employment §9-680(b).
    5. Despite no case law being directly on point, the logic from the collective “death benefit statutes” indicates that the type of dependency determined on the date of disablement cannot be improved later in time, i.e., if partial dependency is determined on the date of disablement, even if the individual is totally dependent on the decedent at the time of death, the dependent would only be entitled to partial dependency benefits. See Clifford B. Sobin, Maryland Workers' Compensation (2018-2019 ed.)
    6. Larkin v. Smith, 183 Md. 274 (1944).
    7. Havre De Grace Fireworks Co. v. Howe, 206 Md. 158 (1955).
    8. Superior Builder, Inc. v. Brown, 208 Md. 539 (1956).
    9. Martin v. Beverage Capital Corp., 353 Md. 388 (1999).
  • II. Benefits Paid

    Total dependency benefits are paid to a wholly dependent spouse so long as the individual remains wholly dependent.10 A second determination of total dependency is made once $45,000 has been paid by the employer/insurer. If the spouse becomes wholly self-supporting before $45,000 is paid then the spouse will continue to receive benefits until the $45,000 is paid. If the surviving spouse remarries thereafter, payment stops even if the $45,000 has not been paid unless the surviving spouse does not have dependent children, in which case the spouse is entitled to receive payments for 2 years from the date of remarriage.11 Totally dependent children receive benefits so long as they remain totally dependent. The benefits shall continue to $45,000 even if partially or wholly self-supporting. Totally dependent minor children are eligible for benefits until age 18 unless they remain totally dependent and incapable of self-support due to physical, mental, or other sufficient reason determined by the Workers' Compensation Commission. Benefits shall continue for up to 5 years after age 18 if they attend school full time with an educational or vocational program accredited or approved by the State Department of Education. Benefits for wholly dependent individuals that are not a spouse or a child are capped at $45,000.

    Partial dependency benefits are paid where there are no wholly dependent individuals; or if the partial dependent is a spouse whose status changed from wholly to partially dependent after the death of the decedent.12 Partial dependency benefits are paid as long as the individual is partially dependent, not to exceed $75,000. The $75,000 cap applies to all claims filed after September 1, 2007.

    The weekly rate of compensation for both partial and total dependency is the maximum rate of two-thirds of the average weekly wage of the decedent, not to exceed two-thirds of the state average weekly wage. Where multiple dependents exist, each dependent receives a percentage of the total dollar amount proportionally representative to the decedent's average weekly wage.

  • III. Applying Labor & Employment §9-503(e)(2) to Dependency Benefits.

    The application of the §9-503 offset provision is applied to total dependency benefits just as it would against the workers' compensation benefits received by a living claimant under any §9-503 claim. The combined dollar amount of retirement or pension benefits and workers' compensation benefits cannot exceed the wages earned at the time of retirement. In practice however, the application is more complicated in the partial dependency context. First, regardless of the type of dependency, the practitioner must be cognizant of the election made by the decedent for retirement benefits. Given that the offset provision is temporally sensitive, if the decedent elected not to provide any retirement benefits to his/her spouse after death, then no offset would apply to the dependency benefits because no funds are being received by the dependent to activate the offset. However, if a surviving spouse received 50% of decedent's pension, that amount must be annualized and subtracted from the decedent's average weekly wage to determine the dollar amount of the weekly benefit to be paid.

    For partial dependency benefits, the author takes the position that where an offset is present, and is not a total offset, the maximum benefit of $75,000 must still be paid in full so long as the individual remains partially dependent for the time period required to receive the total amount. The offset of benefits would simply prolong the time it will take for the dependent to receive the total amount as the weekly rate of compensation would be reduced by the offset. For example, if the weekly dependency rate is $1,000 without an offset, thereby taking 75 weeks for the entire partial dependency award to be paid out, once a $500 pension offset is applied per §9-503, the weekly reduction would cause the award to take 150 weeks to pay out entirely, however, the $75,000 would still be paid.

  1. Labor & Employment §9-681.
  2. Labor & Employment §9-681(f).
  3. Labor & Employment §9-682.

Advice for the Apprehensive Injured Worker

Wednesday, September 05, 2018

A few times a week I get a call from an injured worker who is considering filing a workers’ compensation claim but is concerned about the repercussions that may take place after filing.

While it is understandable, and in certain circumstances a very real concern that an employer may retaliate against an injured worker after a claim is filed, if you are injured on the job it is important to understand what rights you may be giving up if you let your concerns influence you to not file a workers’ compensation claim. You may be giving up more by deciding not to file a claim than you would even in the worst case scenario for employer retaliation: termination. (Maryland is an “at-will” employment state, meaning an employer can fire an employee for any non-illegal reason. However it is against Maryland law to fire an employee for filing a workers’ compensation claim).

By failing to file a claim you may be giving up compensation at 2/3s of your pre-taxed wages for the period of time you are unable to work while you recover from your work injury. For municipal workers, this benefit can often be paid at 100% of your wages. Often times this means exhausting your hard earned personal, vacation and/or sick leave when your employer or its insurer is the legally responsible for paying your wages for each day missed. This benefit becomes especially important if you are separated from your employment. Whether you are separated from employment or not, you are still entitled to compensation if you cannot do your job and your doctor agrees that you must be out of work.

Perhaps most importantly, Maryland law requires the Employer/Insurer to pay for all of medical treatment necessitated by your work injury. Maryland is unique in that you have the right to seek treatment with a doctor of your choice. And most important of all, there is no time limitation on your ability to seek treatment as a result of a work injury. (The right to fight for treatment never expires once a claim has been timely filed and accepted, however, there are no guarantees your employer or their insurer will authorize the treatment you wish to have – a good reason to consult with a legal professional). If you fail to timely file a claim with the Workers’ Compensation Commission, often times the insurance adjuster will take longer to authorize treatment or refuse to authorize your care altogether as there is no real motivation to do so. By successfully filing a claim, you’re guaranteeing at least the right to fight for your employer to pay for your lifetime medical care.

Compensation for permanent disability is the last main benefit available to those who are successful in filing a workers’ compensation claim. Often times the money received for an individual’s permanent disability does not truly compensate him/her for the affect their injury has had on their life - especially with more serious injuries. However, some compensation is certainly better than receiving no compensation at all. By failing to file a claim, you forgo this right altogether. Some other important benefits to filing a claim are medical mileage reimbursement, vocational rehabilitation and temporary partial disability – to name a few.

You work hard at your job every day, giving up precious time with your family to help further your companies’ goals. If you get hurt while on the job you owe it to yourself to protect both you and your family by filing a claim. You should not have to pay out of your own pocket for medical treatment, struggle to make your bills because you are incapable of earning wages, or worse yet be forced to suffer from a life altering disability without receiving any assistance to get you back on your feet.

So if you get hurt on the job – protect yourself and your family by filing your claim. And if you’re concerned about the potential repercussions of doing so, consult with legal counsel to make sure you understand not just what problems may arise if you do file your claim, but what problems may arise if you don’t.

Call attorney Charles Schultz, Esq. today at 410-769-5400.

Don't Forget The Mileage

Friday, June 15, 2018

The workers’ compensation process is not always a quick one, and in most cases, it is a slow and steady uphill battle. Oftentimes, it can take several months after you sustain a work injury before any workers’ compensation benefits kick in.  For this reason, it is important to stay organized from the beginning and to know exactly what benefits are available to you that can help offset some of the financial strain you may experience as a result of your work injury. One important benefit that can easily slip through the cracks is mileage and transportation reimbursement.

If your workers’ compensation claim is found to be compensable by the Workers’ Compensation Commission, in addition to benefits for medical treatment and for time you may miss from work as a result of your injury, you are also entitled to reimbursement for the reasonable cost of your transportation to and from treatment appointments.In some special cases, your employer may even provide treatment-related transportation for you through a transportation service.

What type(s) of transportation benefits are covered?

Under Maryland Workers’ Compensation law, an employer is responsible for the cost of transportation to and from medical appointments if the appointments are a result of the claimant’s work injury. This includes transportation to doctor’s visits or other appointments, including appointments or evaluations scheduled by the employer. Also, with the proper documentation, you are entitled to reimbursement for mileage, cab/Uber/Lyft fare, public transportation, parking, tolls, etc. (just to name a few). The most common type of transportation benefit we see however, comes in the form of mileage reimbursement.

What type(s) of benefits are NOT covered?

The law does not allow transportation reimbursement for appointments besides those related to your work-injury, trips to the pharmacy, or reimbursement for any gas used to travel to your appointments (even if related to your injury).

How is mileage reimbursement calculated?

Each year, the Commission sets the mileage reimbursement rate which is used to calculate reimbursement payments per mile traveled.The most recent mileage reimbursement rates are as follows:

  • 2018 - .545
  • 2017 - .535
  • 2016 - .54

For a list of the yearly mileage reimbursement rate dating back to 1980, click here.

To calculate your total mileage reimbursement, multiply the mileage reimbursement rate for that year by the total number of miles traveled.For example, if your doctor’s office is five (5) miles from your home, and you had a doctor’s appointment on January 1, 2018, multiply the mileage reimbursement rate by the total number of miles traveled to and from the appointment:

  • [.545 x 10 = $5.45]

In summary, mileage reimbursement is an important benefit of filing a workers’ compensation claim and can provide some relief from the financial burden of a work-related injury. It is extremely important that you document your travel accurately and submit mileage forms and supporting documentation to your attorney regularly. An easy way to keep track of your mileage is by using the Medical Travel Expense Form which can be found in the Document Center on our website.

If you have any questions related to mileage reimbursement or filing a workers’ compensation claim, do not hesitate to contact Kenrick Roberts today at 301-670-6552 or kroberts@bsgfdlaw.com.

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