Getting injured is no fun at all, and when you get injured on the job, there are often many hurdles to overcome. Founding partner Cliff Sobin wrote a two-volume treatise to help attorneys navigate Workers’ Compensation claims. This treatise is crafted for attorneys to use when representing injured workers, and Cliff wanted to put together in a much more brief and casual format for injured workers to use. Please find this downloadable PDF available to all titled; “What Really Happens in a Maryland Workers’ Compensation Case.” We hope that you find this information helpful, and as always please feel free to contact us with questions.
Death Benefits for the Dependents of Public Safety Members Where the Occupational Disease was the Cause of Death in Labor & Employment §9-503 Cases
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
- This article applies to claims where the employer/insurer has not made an election under Labor & Employment §9-683.6.
- Labor & Employment §9-679.
- Labor & Employment §9-680(c).
- Labor & Employment §9-680(b).
- 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.)
- Larkin v. Smith, 183 Md. 274 (1944).
- Havre De Grace Fireworks Co. v. Howe, 206 Md. 158 (1955).
- Superior Builder, Inc. v. Brown, 208 Md. 539 (1956).
- 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.
- Labor & Employment §9-681.
- Labor & Employment §9-681(f).
- Labor & Employment §9-682.
Average Weekly Wage Determinations After Stine v. Montgomery County, MD and Richard Beavers Construction, Inc. v. Wagstaff
In the vast majority of workers' compensation claims, the issue of Average Weekly Wage is not contested or litigated and, often, the employer/insurer's counsel does not even submit a wage statement as part of their exhibit packet. In most cases this is not a problem; however, in some situations it can mean the difference of thousands of dollars in indemnity benefits to your client. Blind reliance on the Employer/Insurer's fourteen (14) week wage statement can result in injustices for injured workers. For this reason, it is important to know what tools we, as claimant's attorneys, have at our disposal to ensure a proper and fair calculation of a client's Average Weekly Wage. Two recent 2018 cases from the Court of Special Appeals highlight these opportunities: Richard Beavers Construction, Inc. v. Wagstaff, 236 Md.App. 1 (2018) and Stine v. Montgomery County, MD, 237 Md.App. 374 (2018).
The Basics: L&E 9-602(a) and COMAR 14.09.03.06
Before delving into Wagstaff and Stine, let us briefly review the language from the Workers' Compensation Act dealing with Average Weekly Wage. Md. Code Ann., Lab. & Empl. Sec. 9-602(a) states:
Except as otherwise provided in this section, the average weekly wage of a covered employee shall be computed by determining the average of the weekly wages of the covered employee:
- (i) when the covered employee is working full time; and
- (ii) at the time of:
- the accidental personal injury; or
- the last injurious exposure of the covered employee to the hazards of an occupational disease.
For purposes of a computation under paragraph (1) of this subsection, wages shall include:
- (i) tips; and
- (ii) the reasonable value of housing, lodging, meals, rent, and other similar advantages that the covered employee received from the employer.
If a covered employee establishes that, because of the age and experience of the covered employee at the time of the accidental personal injury or last injurious exposure to the hazards of the occupational disease, the wages of the covered employee could be expected to increase under normal circumstances, the expected increase may be taken into account when computing the average weekly wage of the covered employee under paragraph (1) of this subsection.
Pursuant to its regulatory powers, the Workers' Compensation Commission (hereinafter "the Commission") enacted COMAR 14.09.03.06 in order to streamline the process of determining the Average Weekly Wage for a claim. This regulation has resulted in the "Fourteen (14) Week Wage Statement" that all workers' compensation practitioners have become familiar with. However, it is important to note (and is of particular relevance to the Court of Special Appeals' decision in Stine) that this regulation only places a requirement on the employer/insurer to file the wage statement "as soon as practicable". It does not create any sort of presumption and definitely does not limit the Commission's discretion under the statute to find a different Average Weekly Wage than proffered by the Employer/Insurer. COMAR 14.09.03.06 states, in pertinent part:
- A. Preliminary Determination. For the purpose of making an initial award of compensation before a hearing in the matter, the Commission shall determine the claimant's average weekly wage from gross wages, including overtime, reported by the claimant on the employee's claim form.
- B. Filing of Wage Statement. As soon as practicable, the employer/insurer shall file a wage statement containing the following information:
- The average wage earned by the claimant during the 14 weeks before the accident, excluding the time between the end of the last pay period and the date of injury, provided that periods of involuntary layoff or involuntary authorized absences are not included in the 14 weeks;
- Those weeks the claimant actually worked during the 14 weeks before the accident;
- Determination at First Hearing.
- Calculation of the average weekly wage shall be adjudicated and determined at the first hearing before the Commission.
- All parties shall be prepared to produce evidence from which the Commission can determine an accurate average weekly wage at the first hearing.
As gleaned by Subsection A and C (2), as well as appellate case law, this regulation in no way binds the Commission to utilize only the employer/insurer's fourteen (14) week wage statement. Although the Employer/Insurer will often argue that calculation of AWW using only the fourteen (14) weeks is mandatory, the language of the statute, as well as the Regulation itself, suggests otherwise. Moreover, a regulation cannot be read to conflict with, let alone override a statute - (e.g. see Dep't. of Soc. Servs. v. Russell, 159 Md. App. 594, 611 (2004) wherein the Court of Special Appeals stated: "[w]here the language of a statute differs from relevant language in a departmental regulation, the statutory language must control." (emphasis added). For these reasons alone, the fourteen (14) week wage statement provision in the COMAR Regulations does not bind the parties or the Commission to a particular average weekly wage.
The language of COMAR 14.09.03.06 has the potential to lead to confusion as is evident by the Circuit Court's original decision in Stine. For example, the Circuit Court found, after reviewing this same COMAR provision, that "there's only one way to determine it; it is you look at the 14 weeks before the accident, and then it talks about a couple other things, but that's where I believe that the COMAR and the Commission was restricted to find." As set out below, this mistaken interpretation was reversed by the Court of Special Appeals.
The Facts - Stine
On March 26, 2016, Mr. Stine, who was a volunteer emergency medical technician (EMT) for Montgomery County, MD fell while stepping off of his assigned ambulance and injured his right foot and ankle. He was transported to the Emergency Department where he was diagnosed with a fracture, was splinted, and subsequently discharged. He underwent surgery on the ankle approximately a month later and was out of work for a couple months.
As a volunteer for a "fire or rescue company," Mr. Stine's Average Weekly Wage was governed by Lab. & Employ. Art. 9-602(g) , which directs the Commission to look to his wages earned by "other employment." In addition to volunteering as an EMT for the County, Mr. Stine worked part-time for LifeStar Response as a private EMT during the school year (he was also a college student) and full-time during his summer breaks. Consequently, for the purposes of Sec. 9-602(g), his LifeStar wages counted as the wages earned from "other employment".
Sec. 9-602(g) states: "(g)(1) Subject to paragraph (2) of this subsection, for the purpose of computing the average weekly wage of an individual who is a covered employee under § 9-234 of this title, the wages of the covered employee shall be:
- (i) for a covered employee who received a salary or wages from other employment at the time of the accidental personal injury or last injurious exposure, the salary or wages from the other employment; or
- (ii) for a covered employee who did not receive a salary or wages from other employment at the time of the accidental personal injury or last injurious exposure:
- if the covered employee derived income from a source other than salary or wages at the time of the accidental personal injury or last injurious exposure, an amount that allows the maximum compensation under this title;
- if the covered employee was not engaged in a business enterprise at the time of the accidental personal injury or last injurious exposure, the weekly income last received by the covered employee when engaged in a business enterprise; or
- if the covered employee had never been engaged in a business enterprise at the time of the accidental personal injury or last injurious exposure, an amount that allows the minimum compensation under this title."
As previously mentioned, Mr. Stine was also a full-time college student working on a nursing degree, which is why he could only work part-time for LifeStar during the school year. As a result, his weekly wages earned during the school year were less than what he earned during the summer- e.g. his fourteen (14) week earnings prior to the March 26, 2016 were not representative of what he earned over the full year.
After a hearing before the Commission in July 2016 on the issue of Average Weekly Wage, the Commission found Mr. Stine's Average Weekly Wage to be Sixty-Four Dollars and Sixty-Five Cents ($64.65), which was the gross weekly average of the wages earned by Mr. Stine for the fourteen (14) weeks preceding his March 26, 2016 work-injury when he worked only part-time for LifeStar. Mr. Stine thereafter took a de novo appeal to the Circuit Court for Montgomery County to present evidence on two alternative theories: (1) that the Commission should have utilized a fairer fifty-two (52) week time period to determine his average weekly wage based off his yearly earnings rather than just when he was working part-time; or (2) that because of his age and experience, Sec. 9-602(a)(3) allowed for a finding of an Average Weekly Wage consistent with Mr. Stine's anticipated wages since his wages with LifeStar Response were "expected to increase under normal circumstances."
The Circuit Court Proceedings
Mr. Stine requested a de novo petition for judicial review and a jury trial before the Circuit Court for Montgomery County. A de novo review permits a party to present more, less, or the same amount of evidence than was presented before the Commission. See Bd. of Educ. for Montgomery Cty. v. Spradlin, 161 Md. App. 155, 193, 867 A.2d 370, 393 (2005). To this end, Mr. Stine presented two separate and additional types of evidence, each in support of his two alternative theories.
In regards to his first theory -of utilizing the entire fifty-two (52) weeks rather than just the fourteen (14) weeks prior to his injury- Mr. Stine presented evidence of his yearly wages, via his 2015 W-2 Form. It showed his wages earned throughout the year, both when working full-time in the summer months and part-time in the school year. We argued that since he was injured in March, during the school year, his fourteen (14) week average weekly wage was not an accurate representation of his earning capacity at the time of the injury. On the contrary, a broader fifty-two (52) week period would have led to a more accurate calculation of his average wages. Alternatively, if the Court were to account for only his wages when "working full time" during the summer, it would be more in compliance with the explicit language of Sec. 9-602(a)(1).
With regard to his second theory - because of his age and experience his average weekly wage should be what he was expected to earn in the future - Mr. Stine retained a vocational expert. The testimony proffered was what his average weekly wage was "expected to increase" to upon completion of his nursing degree or while working as a full-time EMT, pursuant to Sec. 9-602 (a)(3).
Prior to trial, Montgomery County moved in limine to exclude the vocational expert on the grounds that Sec. 9-602(a)(3) was not applicable as Sec. 9-602(g) exclusively governed this case. The Circuit Court granted this motion. Next, the County moved to strike Mr. Stine's jury demand arguing that the issue of average weekly wage was a legal question alone. The Circuit Court also granted this motion finding that the Commission was "restricted to find" the average weekly wage was only based upon the fourteen (14) week period prescribed in COMAR. In the alternative, the Circuit Court also stated that, even if COMAR permitted other evidence, the Commission did not abuse its discretion in ignoring it. Mr. Stine thereafter took an appeal to the Court of Special Appeals. After the Circuit Court's judgment, but prior to oral argument, the Court of Special Appeals handed down the Wagstaff decision touching upon the same average weekly wage issue.
The Wagstaff Decision
In its Stine decision, the Court of Special Appeals had the opportunity to revisit and expand on its recent decision in Richard Beavers Construction, Inc. v. Wagstaff, 236 Md.App. 1 (2018), which was issued after the Circuit Court's judgment in Stine, but before oral arguments. Both cases involved situations which exemplified why, in some instances, an employer/insurer's wage statement does not result in a just or accurate average weekly wage calculation for an injured worker and why claimant's counsel has to be vigilant in exploring all possibilities.
Wagstaff concerned an injured worker who was injured six weeks into his employment. Although he had been hired to work forty (40) hour week, during the first six weeks of his employment he never worked a full forty hours as inclement weather prevented a full work week. The employer submitted a six-week wage statement which calculated his average weekly wage based upon those six shortened weeks. The claimant countered that his average weekly wage should be based upon what his wages would have been for a full forty (40) hour week for which he was hired to work. The claimant prevailed before the Commission and in the circuit court on summary judgment.
The employer/insurer thereafter appealed to the Court of Special Appeals arguing that both the Commission and the circuit court erred in ignoring, what the employer/insurer believed to be, the "plain reading" of Labor & Employ. Sec. 9-602(a)(1) and COMAR 14.09.03.06. In their incorrect reading, the employer/insurer argued that the average weekly wage could only be determined based upon "wages actually earned." The Wagstaff Court stoutly refused to go along with the employer/insurer's interpretation and, in refuting this analysis, highlighted the benevolent purposes of the Workers' Compensation Act:
"Little imagination is needed to think of scenarios in which an inflexible requirement tying an injured employee's compensation to pre-accident earnings would subvert the goal of compensating employees for lost earning capacity. Suppose that, immediately after an employee's first day of full-time work, an event such as a natural or manmade disaster shut down the place of employment for a few weeks, in which the new employee received no pay; then, immediately upon the employee's return, the employee became disabled in a workplace injury. In such a scenario, an average of actual earnings during the weeks before the injury would not accurately represent what the employee normally would earn from that employer under the contract that was existing at the time of the injury. This unfortunate employee would certainly suffer financial hardship if the employee's compensation were strictly computed by dividing the actual gross earnings by the number of weeks since being hired. In many situations involving recently-hired employees, the rule proposed by RBCI and its insurer would violate the principle that the Act should be construed "to afford substantial, and not merely nominal, relief[.]" Merrill v. State Military Dep't, 152 Md. at 478, 136 A. 897."
Wagstaff, 236 Md. App. 1, 20, 180 A.3d 211, 222–23 (2018)
As a result, the Court held that, in determining a claimant's average weekly wage, the Commission is not confined to only using the actual wages of the injured worker during the weeks preceding the date of injury, but may look to what the claimant would have earned during those same weeks if not for circumstances outside the worker's control such as weather or sickness. Put simply, the employer/insurer's wage statement is not the final word on the average weekly wage of a claim. The Wagstaff opinion reminds us that the employer/insurer's wage statement is just one in several pieces of evidence that may be presented to the Commission and by no means establishes any sort of "presumption." To this point, the Stine Court not only highlighted, but further enhanced this principle.
The Stine Decision
The Stine Court split its opinion by reversing the Circuit Court on its flawed interpretation of the COMAR fourteen (14) week "rule" and remanding the case back for a jury trial (thereby reaffirming that average weekly wage is a factual issue ripe for submission to a jury which the claimant properly requested). This last point has possible implications for de novo requests for jury trials, discussed further below. Despite ruling in favor of the claimant on this issue, the Stine Court also, however, affirmed the Circuit Court's exclusion of Mr. Stine's vocational expert stating that, at least here, Sec. 9-602(a)(3) was not applicable.
First, the Stine Court found that the Circuit Court erred by denying Mr. Stine's request for a jury trial. Once again, on appeal to the Circuit Court, the Claimant had requested a de novo judicial review and jury trial. In addition to his vocational expert, Mr. Stine sought to present his fifty-two (52) week W-2 form as more reliable evidence of his average weekly wage to a jury. As mentioned above, parties on appeal from the Commission may introduce more, less, or the same evidence than at the underlying Commission hearing. By striking his jury trial demand and finding that the issue of the time period used to calculate an average weekly wage (ie. fourteen (14) weeks versus fifty-two (52) weeks) was a legal determination, the Circuit Court denied Mr. Stine the opportunity to do that. The Court of Special Appeals appropriately found this to be a mistake and appropriately reversed this judgment:
"First, we disagree that COMAR 14.09.03.06 compelled the Commission to calculate the average weekly wage from a fourteen-week sample. As we recently clarified in Wagstaff (which was decided after the circuit court's decision), that regulation "does not purport to restrict the Commission in any manner from utilizing a different time period [than fourteen weeks] if the Commission deems it appropriate to do so." 236 Md. App. at 24–25, 180 A.3d 211 (quoting Gross v. Sessinghause & Ostergaard, Inc., 331 Md. 37, 50, 626 A.2d 55 (1993) ). And indeed, the regulation contains nothing requiring the fourteen-week time period in all cases… the regulation does not restrict the determination of average weekly wage to that time period, and allows the Commission to consider other evidence in setting the average weekly wage at a hearing, if one is held. COMAR 14.09.03.06(C); see Wagstaff, 236 Md. App. at 24–25, 180 A.3d 211. (emphasis added)"
Stine v. Montgomery Cty., 237 Md. App. 374, 386–87, 185 A.3d 826, 833–34 (2018).
Moreover, the Court found that this issue is factual in nature and so the Claimant's request for a jury trial must be honored. As such, the issue of whether the fourteen (14) weeks or the fifty-two (52) week periods should be used as a basis for his average weekly wage was remanded back to a jury trial. In a statement that has implications far beyond just the average weekly wage issue, the Stine Court stated:
"Mr. Stine had filed his petition for judicial reviews, then a request for a jury trial, which transformed the procedural posture of the case to an essential trial de novo, which means the Commission's decision was not subject to review by the circuit court."
Id at 388, 835.
With regards to the Court affirming the Circuit Court's decision to exclude Mr. Stine's vocational expert, the Court held that because Mr. Stine, as a volunteer EMT, fell under Sec. 9-602(g), a special subsection applicable only to volunteer fire fighters, EMTS and paramedics, and this subsection "does not contain any language referring back to the computation method or principles outlined in (a)." Consequently, Mr. Stine's evidence (i.e. expert testimony) that his wages were "expected to increase" due to his anticipated nursing degree and hands-on work experience as an EMT for both LifeStar Response and Montgomery County were not applicable under these circumstances. Importantly, the Court did not indicate that this testimony would not otherwise be relevant if this case had not fallen under subsection (g)'s narrow application to volunteer EMTs. In other words, this opinion does not preclude another claimant from utilizing similar vocational expert evidence under subsection (a)(3).
Conclusion: The Implications of the Stine and Wagstaff Decisions
The most important takeaways from Stine and Wagstaff involve the ability of the Commission to consider any and all kinds of evidence relevant to the issue of average weekly wage. It is not bound to the fourteen (14) week wage statement. The Employer's Wage Statement is just one piece of evidence among many that might be presented. Moreover, even when utilizing the wage statement, it might not accurately represent the claimant's earning capacity if it does not account for days missed due to inclement weather, illness or other situations which preclude an employee firm working full time. Beyond that, the Commission can utilize other time periods, such as a fifty-two (52) week period represented by a tax return or W-2 Form, in determining a more reliable and fair average weekly wage.
The Stine opinion also illuminates one more important principle that goes beyond just the average weekly wage issue and covers any de novo workers' compensation appeal. Put simply, where a party requests a de novo judicial review and a jury trial on any disputed factual issue, the circuit court must proceed with a jury trial on that factual issue.
If I can choose my own doctor can I choose my own pharmacy?
Several times a week we receive calls from clients that they are at their local pharmacy and their prescription was denied. This can often be the pharmacy that will not call the insurance adjuster, the insurance adjuster that does not respond or confusion over the mandatory waiting period to fill narcotic prescriptions. The result is frustration by all parties involved and an onslaught of misinformation ultimately resulting in the delay of much needed prescriptions.
What can I do to avoid this?
To alleviate this stress often clients will choose to use a mail order pharmacy. The mail order pharmacy usually takes the guess work out of why a prescription is denied. The mail order pharmacy is more likely to trouble shoot, call the adjuster directly and even reach out to doctors when a letter of medical necessity is required. Your local pharmacy may be too busy or overwhelmed to make all of these calls on your behalf. The downside is when you are filling opioids or narcotics such as oxycodone or oxycotin there are additional steps that may need to be taken.
With the many restrictions recently put in place to prevent opioid overdoses it may take an extra step or two depending on what medication you are taking. One of these restrictions is the requirement that the physical prescription must be sent to the pharmacy. These restricted medications are not permitted to be e-filed except in limited circumstances or with specific certifications. However, most mail order pharmacies have made it as easy as possible to alleviate the burden on the client. For example, they will provide UPS overnight envelopes to the doctor to overnight the prescription. Also, they recommend you see your doctor a few days before your refill is due and the doctor can post date the prescription, that way by the time the pharmacy receives the prescription it is on the day when the medication can be filled and the pharmacy will overnight the medication with no cost to you.
Can I choose my own pharmacy?
Over the past several years there have been frequent news worthy items regarding pharmaceutical contracts between insurance companies and pharmacies. These contracts allow a specific insurer to provide medications to the insured for less money if the specific pharmacy is used. Often the discount can be as great as 30% less the average wholesale price of the medication. Since the pharmacy is dealing on a very large scale they are able to provide this discount. Depending on the Insurance Company they will allow you to choose your pharmacy, but they will only pay out at the negotiated rate, very similar to doctor's taking the Maryland Workers' Compensation Rate.
While this issue is still being decided in the courts most insurance companies will payout at the charged rate by the pharmacy. It is best to find a mail order pharmacy that serves the Workers' Compensation community exclusively. Often they will forgive the amounts that the insurance company refuses to pay or that the commission will not award and always be aware that the pharmacy is not charging any additional filling fees.
Maryland Workers’ Compensation laws require that medical bills be submitted on HCFA forms. These are standard billing forms used by most insurance companies that have fields for the appropriate and necessary CPT (current procedures terminology) codes. However, some practitioners may not be aware that this is a requirement for workers’ compensation claims or that the bill may be denied if it is not submitted properly on the HCFA form. The adherence to this rule varies between insurance companies, however if your provider is having trouble getting bills paid then the first step should be to ensure that the bills are submitted on HCFA forms. As an easy reference the workers’ compensation website provides a blank downloadable HCFA form.
Another reason your workers’ compensation medical bills are not getting paid could be that the bill that was sent to the insurance company was not itemized with the proper CPT codes. The workers’ compensation carrier cannot pay bills that are not properly itemized with these specific codes, similar to the codes that a primary care physician would provide to a private insurance company. In addition, many carriers also require that each office visit note from the billed dates of service are provided with the bill. This requirement is to ensure that the visit was related to a compensable body part or condition. Where the system fails is when the carrier denies payment of the medical bills and does not site to the reason it is denied. Often it is a clear case of one department not providing the proper medical records to the carrier’s billing department. Instead of working together the billing department denies the payment of the bill. To resolve this confusion and to save time our firm often will attach the appropriate medical report when sending in any reimbursement or bill pay request even though the carrier may have previously received the report.
When a medical bill has not been paid, for various reasons, the provider will often send the bill to a collections agency or will seek payment from the claimant. It is important to know that a provider has their own course of action within the workers’ compensation commission to collect on bills for approved medical treatment. This is done through submitting a C51 claim for medical services to the commission. The commission will then issue an order nisi to the carrier requiring payment of the bills. The provider can request penalties, fees and interest if the bill is unpaid for over 45 days and the carrier failed to provide written communication of the denial. In addition, a claimant may notify the collections agency or doctor’s office that under Sec. 9-660, Labor and Employment Article, MD. Ann. Code, medical expenses related to an accepted and related workers’ compensation claim should be directed to the workers’ compensation insurance carrier.
Contact your Attorney
Facilitating payment of medical bills is one of the services we provide to our current and past clients for workers’ compensation cases we have handled. If you have not filed a claim for medical services that you feel are related to a workers’ compensation claim please contact our office as soon as possible so that we may assist you before these bills effect your credit.
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:
- Was the employee paid for his time to travel to and from work?
- Was the employee driving a company vehicle to and from work that he parks in his “home garage?”
- 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: firstname.lastname@example.org, or on my direct work number of: 301-740-3304.
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.
The first thing you must do when you get injured on the job is to notify your supervisor immediately. You do not have to notify your employer in writing, but it makes your claim much easier if you do. Whichever way you choose to notify, make sure you indicate the date and the time of the accident, and every body part that was injured.
Notice should be given even for minor injuries. You don’t have to miss work to report an injury. You can choose to tough it out and keep working after you get hurt but you should document it whether or not you can continue to work. After reporting it to your supervisor, the next way to document your injury is to go see a doctor to get checked out. Whether you see your primary doctor or go to a clinic you want to make sure someone evaluates your injury so that if your condition gets worse down the road, you have already created a paper trail that will support you getting the treatment you may need later.
You Must Go Beyond Your Internal Claim Number
Once you report the injury, your employer may request that you fill out an incident report and even give you their own internal claim number. However, remember that reporting the injury does not mean that you have done everything to protect yourself. You still have to file a claim with the Maryland Workers’ Compensation Commission to fully make sure you are protected.
Although it’s ideal to notify your employer of a work-place injury as soon as it happens, Maryland law states that an injured worker has ten (10) days to report the injury. The law even provides some exceptions if you report beyond the ten (10) day requirement, but late reporting can give your employer a basis to contest or dispute your claim even though you might have a valid workers’ compensation claim. Therefore, you should report your injury as soon as it happens.
Follow These Steps If You Are Injured On The Job
So if you are injured on the job (even if it’s a minor injury and you do not miss time from work) remember these three easy steps:
- Report immediately (preferably in writing);
- See a doctor (even your primary care provider); and
- Contact the lawyers at Berman, Sobin, Gross, Feldman & Darby to file your claim!
School bus drivers spend hours transporting children to and from school in order to ensure that they arrive in a safe and timely manner. After years of
performing this vital service for the community, the wear and tear on the bodies of bus drivers can have a profound impact on their ability to do their
jobs. Natalie Whittingham, Ken Berman, and their team at Berman, Sobin, Gross, Feldman & Darby, LLC secured workers’ compensation benefits for a decades long school bus driver who developed chronic pain in her tailbone after years of bouncing up and
down in an uncomfortable bus driver’s seat. The Maryland Workers’ Compensation Commission had found that the Claimant, who required three surgeries
as a result of her tailbone pain, suffered an occupational disease arising out of and in the course of her employment for Montgomery County. The Employer,
in an attempt to overturn this Order appealed to the Circuit Court. After an in depth three day long trial before a jury, which included expert testimony
by two doctors, medical records, and the testimony of lay witnesses as to the hazards of the Claimant’s employment, the jury came back in favor of
the claimant, upholding the Workers’ Compensation Commission. Ken and Natalie were able to defeat the County’s appeal and preserve the rights of the
The Law of Occupational Disease
The most commonly known work related injuries,
or “accidental injuries” occur when an employee is injured in an accident on the job at a particular time and on a particular day. Some examples of
accidental injuries include slips, falls and car accidents.
However, some work related injuries occur only after many years of the worker repeatedly performing their job duties. The onset may be slow in nature
and results from the conditions of the employment. These are known as “occupational diseases”. Examples of an occupational disease could include carpal
tunnel syndrome, in this case coccydynia (like the Claimant here suffered), lung cancer and hypertension. Injured workers who suffer occupational diseases may be covered, even where there is some other disorder
or condition which contributes to the occupational disease. Here, the Claimant developed the occupational disease of coccydynia after many years of
bouncing around in uncomfortable bus driver seats around the same time that she experienced rapid weight loss. The jury found that where the occupation
of bus driving was even only a partial cause of the disorder, the claim was covered under the Workers’ Compensation Act.
What To Do If You Think You’ve Suffered An Occupational Disease
The law of occupational diseases is a complex area of the Workers’ Compensation Act and requires an attorney with experience to navigate its intricacies. In order to pursue a claim for disablement caused by an occupational disease, a medical opinion, relating your employment to your disorder is required and a claim must be filed within a certain amount of time of receiving that medical opinion. If you believe that you’ve suffered an occupational disease from repeated exposure to the physical or chemical hazards of your employment, it is imperative that you contact an attorney right away. If you are injured at work, contact Ken Berman, Esq. at (301) 740-3300 or Natalie E. Whittingham, Esq. at (301) 670-6546.
Fire Fighters work had to protect our communities.They are required to work long hours, sometimes – and in this Claimant’s case – 24-hour shifts, where they are on duty at all times, ready to respond to any emergency call that may come in. Ken Berman, Nicole Lambdin, and Berman Sobin Gross Feldman and Darby protected the rights of a Fire Fighter who, while on a 24-hour shift injured his knee while stepping away from the fire station to pick up his dinner at the restaurant across the street. At the time of the injury, the Claimant was on duty and required to stay close to the fire station so he could respond to an emergency call should one come in. After the Claimant’s injury was found compensable at the Workers’ Compensation Commission, the Employer attempted to reverse the Order by appealing the decision., claiming that since he was going to get dinner, he was no longer “in the course of his employment”. Ken and Nicole defeated the appeal and preserved the rights of the injured worker.
Protected Under The 'Coming and Going Rule'
While the Employer asserted that the Claimant’s injury was barred by the “coming and going rule,” a general principle that disallows compensation for injuries that happen when an employee is going to or from his/her place of business (although there are many, many exceptions to the “going and coming “rule and one should always check with an attorney to see if their injury is covered), the Circuit Court agreed that this injury did not fall into that category. Instead, the Court agreed with the Claimant that his injury arose out of and in the course of his employment because the fire fighter, at the time of the injury was on duty, getting paid, and was required to respond to any emergency call that came in. In fact, the Claimant’s supervisors allowed the fire fighters to leave the fire station to pick up food as long as they remained within a certain perimeter to the station – ensuring they could timely return in case of an emergency. By demonstrating that the Claimant remained ready and capable to respond to an emergency and that his employers acquiesced to employees leaving the station but remaining with the perimeter, Ken and Nicole established that the Claimant was within his employment at the time of his injury.
Every Case Deserves Special Focus
This case is evidence of how complicated Workers’ Compensation claims can be. While at first glance this claim could appear to not be compensable because the fire fighter was on a “dinner break”, a more detailed analysis proved that his injury is covered by the Act, and that the Claimant is entitled to both medical and financial benefits. The attorneys at Berman Sobin Gross Feldman and Darby can help you obtain the benefits and medical coverage that you are entitled to. If you are injured at work, contact Ken Berman, Esq. at (301) 740-3300 or Nicole Lambdin, Esq. at (410) 769-5400.
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