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Workers' Compensation Blog

Covid-19 Cases On The Rise; Jury Trials Suspended, Workers' Compensation Hearings Still Up and Running

Monday, November 23, 2020

As predicted, but earlier than expected, the third wave of the pandemic is upon us. Many states, cities, and municipalities are taking action and this includes the State of Maryland Court System. Last week, Chief Judge Mary Ellen Barbera ordered that all Maryland courts take a step back to phase 3 protocols. We had only entered phase 4 in the beginning of October when modified in-person jury trials commenced in some jurisdictions. This newest order states that in-person jury trials will be suspended, once again, throughout the state until January 4, 2021.

These restrictions apply to both civil and criminal trials. If a jury trial was scheduled to begin during this time it will now be converted to a virtual status hearing. Non-jury cases will continue virtually on the Zoom for Government platform. It is best to look to your county for specific case matters on non-jury trials and hearings. For example, in Montgomery County's District Court hearings regarding the failure to pay rent, minor traffic violations, civil small claims and parking ticket hearings are all suspended.

Other matters, however, such as bail bonds and civil protective orders will still be heard. There will be delays in notification of continuances due to the last minute nature of this closure, therefore it is best to check-in with the court several days in advance of any scheduled court appearances as many have been continued, while others have remained in-person and online. Workers' Compensation hearings at local hearing sites are still operational with options for virtual hearings and continued Covid-19 protocols in place.

Attorney Julie Mirman

Written by Julie Mirman, an Associate Attorney with Berman, Sobin, Gross, Feldman & Darby, specializing in medical treatment coverage under workers' compensation.
Julie Mirman
jmirman@bsgfdlaw.com

Should There be a Presumptive Law to Protect Essential Workers Who Develop COVID-19?

Friday, July 17, 2020

Maryland’s Essential employees have spent the last several months going to work wondering if they will get sick and inadvertently pass COVID-19 to their family and friends. In many cases, they are forced to take off work for weeks at a time because of possible COVID-19 exposure. Too often this leaves their families in financial ruin. While many essential workers have contracted COVID-19 and recovered, some have had tough recoveries and a few have unfortunately, died. This has led to many questions about how the workers’ compensation system should handle those deemed essential workers who contract COVID-19.

The burden of proving that an illness was contracted at work falls on the injured worker. This is difficult with a virus like COVID-19 because people can have exposures not just at work, but at the grocery store, and in every other aspect of their daily life. In Maryland there are several presumptive laws to protect injured workers who are at a greater risk for developing certain diseases like fire fighters who develop cancer from work exposures. The question is whether or not there should be a similar type of presumption for those Marylanders who are on the front lines and develop COVID-19.

Presumptive laws work by shifting the burden of proof so that in the case of COVID-19, if a specially deemed essential workers gets the virus, we would start with the presumption that they contracted the virus at work and then the burden of proof would go to the Employer and Insurance company to prove that the worker did not get the virus at work.

Several states have already chosen to pass emergency legislation to create an automatic presumption for exposed first responders and healthcare workers. For example, Minnesota enacted an emergency bill that states “[a first responder or healthcare worker] who contracts COVID-19 is presumed to have an occupational disease arising out of and in the course of employment.” Similarly, Kentucky passed an executive order stating “it shall be presumed that removal of [a first responder or healthcare worker] from work by a physician is due to occupational exposure to COVID-19."

We will likely have to wait until the next legislative session in 2021 to see if Maryland adopts something similar to Minnesota and Kentucky.

Attorney Brian Rollyson

Brian Rollyson
brollyson@bsgfdlaw.com

On the Hot Seat; What In-Person Hearings Look Like for Injured Workers’ During COVID19

Monday, June 15, 2020

Beginning on June 8, 2020, the Maryland Workers' Compensation Commission reinstituted In-Person hearings at all hearing sites. For many who recall attending hearings in the past, all the cases scheduled on a docket would arrive for a 9:30 a.m. start time. The Commissioner would take the bench, call the docket and then the cases would be called one at a time until the docket was concluded. Following CDC guidelines, and taking into consideration the health and well-being of injured workers, Employers, Attorneys, Commissioners, and Staff, that process has now changed. Currently, cases are being scheduled at 20-minute intervals throughout the day, in order to limit risks of exposure, allowing only one case into the hearing room at a time.

When attending an in-person hearing, several safety measures have been put into place.1 First, you will not be permitted to enter the hearing site more than 5 minutes prior to your scheduled hearing. Second, all parties are required to wear a face mask while in the hearing site, to include when presenting your case or testifying. Upon being admitted into the building, security personal will ask you to clean your hands with the provided hand sanitizer. You will then be asked a series of questions regarding symptoms or potential exposure to COVID-19. Upon completing the questionnaire, you will be admitted into the hearing room.

Upon entering the hearing room, you will notice that the furniture has been rearranged to comply with social distancing recommendations. All exhibits will be submitted electronically to the Commission in advance of the hearings. Many of the hearing rooms are arranged with the Commissioner seated at the bench, as normal, a chair located in the center of the room for the Injured Worker, and tables on each side of the room for the attorneys. As an Injured Worker, this arrangement may seem a little uncomfortable as you will be seated in the center of the room or, as one of my clients referred to it, in the proverbial "Hot Seat." It is important to remember that this is purely to comply with recommended distancing guidelines and nothing else about the presentation of the case has changed. The Injured Worker will be sworn in and the case will proceed in the same fashion as in the past. Some may also find comfort in knowing that your case will be the only case in the room at the time, as opposed to the past when you may be testifying in front of an audience of other Injured Workers and attorneys awaiting their cases to be called. At the conclusion of your case, the Commission will ask you to promptly leave the building to allow the next case to get started on time. Again, the Commissioner will issue a written decision in 1-2 weeks following the hearing.

Despite the fact that in-person hearings have resumed, the Commission is still designating one Commissioner, per day, to conduct video hearings. If you are not comfortable with attending an in-person hearing, you have the option to request a video hearing instead. In order to do so, you would simply need to contact your attorney and let them know your preference so they can make the appropriate request and attempt to get all parties to agree, which isn't possible in all cases. Despite the changes to the scheduling and format of the Commission, the substance presented at these hearings is no different than in the past. While it has certainly been a challenging year, the above changes have been implemented to minimize any delay experienced by injured workers. Additionally, these processes have been implemented to ensure everyone is able to have their matters decided in a format that they are comfortable with, while also maintaining a sense of safety.

Attorney Carl Rach

Carl Rach
crach@bsgfdlaw.com

Hearings on the Horizon!

Tuesday, May 19, 2020

Covid-19 has changed the way we communicate as a community and a culture. This is also true for businesses and governments; these entities have had to quickly adapt into the age of virtual communications. When the pandemic hit, the Workers’ Compensation Commission was in the process of dramatically upgrading their online portal, and in just a short few weeks, the Commission had to pivot from that undertaking and all regular functions to create a system for virtual hearings, and revamp safety procedures for when they return to live hearings, which may happen as early as June 8, 2020.

New Protocols To Be Aware Of For Live Hearings coming in June:

Preparation: Exhibits are submitted electronically, to the Commission, 3 days prior to the scheduled hearing date. Therefore, attorneys may ask clients to electronically sign necessary documents in advance to comply with social distancing requirements. In addition, to comply with the physical distancing protocols at the hearing site, it is best that all hearing preparation be done over the telephone or via video calls prior to the hearing date.

  • Schedule: Hearings will be staggered in twenty-minute slots to accommodate social distancing and only the participants of the scheduled hearing will be permitted in the courtroom at that time.

  • Who: Only parties, injured workers, witnesses and attorneys will be permitted into the hearing sites, therefore if someone is accompanying you to the hearing they will probably have to wait outside or in your vehicle.

  • Where: All hearing sites will be open for live hearings. Any person entering the hearing site will be required to wear a mask and practice social distancing protocols, including between attorneys and their clients.

What If I am Not Comfortable Attending A Hearing In-Person?

The Commission has adopted a liberal policy for granting continuances due to illness or other hardships. The Commission will also offer the possibility of virtual hearings. While it is wonderful that the opportunity exists to participate in a virtual hearing, the process is not appropriate for every case, and can only happen if all parties give consent. It is best to talk to your attorney if you are interested in having a virtual hearing on your case.

What To Consider Before Requesting A Virtual Hearing:

  • Consensus: All parties in the case must agree to perform the hearing virtually. This means that even if the injured worker and their attorney want to have a virtual hearing, it won’t be done virtually unless the Employer and Insurance company representatives also agree.

  • Technology: A good internet connection and a computer with a video camera is required. In some cases, audio can be done through a telephone, but all participants must also have live video. To run the programs successfully all participants must have the latest versions of either Google Chrome or Microsoft Edge and the only platform the Commission is allowing for hearings is Microsoft Teams. It is best to download the Teams App prior to hearing day, rather than accessing it through the web.

  • Process: If your case is approved for a virtual hearing, all participants will receive an email invite from the court reporter, which will include the date and time the hearing is scheduled and an email link to the video hearing.

Whichever platform you choose, it is comforting to know that the Workers’ Compensation Commission is working hard to adapt and provide safe access for those in need. However, in our new normal, remember that it is important to be prepared, be flexible and to check for possible updates and changes.

Attorney Julie Mirman

Written by Julie Mirman, an Associate Attorney with Berman, Sobin, Gross, Feldman & Darby, specializing in medical treatment coverage under workers' compensation.
Julie Mirman
jmirman@bsgfdlaw.com

Workers’ Compensation Hearings Update as of April 17, 2020; Covid-19

Monday, April 20, 2020

True to their mission, the Workers’ Compensation Commission (WCC) is continually trying to balance the interests of the injured worker with that of the health and safety of the community at large. Therefore, in response to the recent extension of court closings by Chief Judge Barbera of the Maryland Court of Appeals, the WCC has also announced a postponement of all in-person Commission hearings until June 8, 2020.

The Commission, however, is now in the final stages of establishing the availability of video hearings utilizing the Microsoft Teams virtual platform. All parties involved must agree to continue with the hearing virtually. If all parties do not agree to meet virtually, the hearing will just resume in the normal course, in-person at a later date.

This is a tremendous endeavor by the Commissioners and staff and will go a long way to help get our injured workers the benefits they need and deserve during this difficult time. We applaud the efforts of the Commission as they roll out this new “virtual” court system. There will be glitches along the way, but this will certainly support clearing some of the backlog that continues to accumulate on the hearing dockets.

Attorney Julie Mirman

Written by Julie Mirman, an Associate Attorney with Berman, Sobin, Gross, Feldman & Darby, specializing in medical treatment coverage under workers' compensation.
Julie Mirman
jmirman@bsgfdlaw.com

Workers’ Compensation Hearings and the Maryland Courts Update as of April 15, 2020; Covid-19

Friday, April 17, 2020

Unfortunately, since our last court update, two weeks ago, COVID-19 cases have risen significantly in Maryland. This information reaffirms our states’ decision to social distance and work from home, wherever possible. Our online legal work is bustling between virtual mediations, depositions and motion writing. Thankfully, we have learned to navigate virtually because another extension of court closures were issued for the entire State of Maryland yesterday.

This new order extends court closings until June 8, 2020. The Administrative Judge in Montgomery County issued an order of extension while encouraging parties to seek resolution of cases collaboratively or through mediation. The reality of the situation is that even if the courts open in the beginning of June the courts still will not be fully operational for several months after that.

Therefore, what does this mean for your case? If you are still treating for your condition, many insurance companies are authorizing virtual treatment or office visits, when possible. If you are waiting for a hearing on permanency, some doctor’s have agreed to conduct independent medical exams virtually, but in this new climate it is unclear what weight the Commissioners may give these reports. Now may be a good time to participate in a mediation or agree to a settlement, if appropriate in your case.

Talk to your Attorney regarding your best options and if you or a family member have been afflicted with Covid-19 and feel you were infected with this virus at work please read the previous blog from Ken Berman regarding important steps to follow: http://www.bsgfdlaw.com/workers-compensation-blog/what-to-do-if-you-are-exposed-to-the-coronavirus-at-work.

Attorney Julie Mirman

Written by Julie Mirman, an Associate Attorney with Berman, Sobin, Gross, Feldman & Darby, specializing in medical treatment coverage under workers' compensation.
Julie Mirman
jmirman@bsgfdlaw.com

The Courts Are Closed Due To COVID-19; What About My Workers’ Compensation Case?

Thursday, March 19, 2020

In Maryland, most of the Judiciary systems have shut down or postponed their dockets, or are operational only for exigent circumstances. The Workers' Compensation Commission, while in solidarity with the mission to slow the spread of Covid-19, is also keenly aware of the need to keep certain Workers' Compensation cases moving along. While all scheduled hearings have been postponed through April 3rd, if an emergency hearing was already filed before the closing was announced, those cases will still be heard on a limited scheduled.

Also, all emergency hearings will either take place in the Baltimore or Beltsville Commission sites only. Hearings can still be requested, however we do not yet know when they will take place. In the meantime, our office has been working remotely and using creative ways to keep cases moving with the use of online conferencing and remote mediations. For now, the Commission is continuing to receive settlements and stipulations for approval, and we are working hard to resolve cases to help our clients. We will frequently update our blogs with the most up to date information and advice on how to handle your workers' compensation needs during COVID-19.

HELP - My Attorney Retired, Won the Lottery, Passed Away, Moved to Hawaii; What Should I Do?

Friday, March 06, 2020

I know, it’s hard to believe, but lawyers are only human. We retire, pass away or sometimes even get promoted to judge. For whatever the reason an Attorney is no longer able to represent a client what are the clients’ options? Nobody likes to start over, establishing trust, getting a new representative up to speed and explaining a long case history can be overwhelming. Here are a few suggestions that might make the process less daunting.

The first step is to contact the law firm that your attorney was affiliated with and find out if there is anyone else in the firm that practices this specialty and/or has the capacity to take on your case. You can schedule a meeting with the managing partner of that firm to ascertain the next steps. However, often the firm does not have the capacity to take on more cases or your previous attorney may have been the only specialist in that area of law. If the firm is not able to take you on as a client, then it is wise to request a copy of your file if you will be seeking representation elsewhere.

If your attorney was a private practitioner or there is no other attorney in that practice who can handle your case, then the second step is to ask if the firm could give you a referral. This will help narrow the playing field. Often attorneys have colleagues that are in different practice areas and they might know who could be a good fit and competent to continue with your case. Keep in mind, if you choose to change your attorney because you are seeking different representation, the attorneys themselves may come to an agreement regarding fee sharing if there was work the previous attorney did prior to your change in attorneys. This fee sharing should not affect the client in anyway, it should be a sharing of the fees that one attorney would be entitled to on your case regardless of, which attorney is your representative.

Lastly, if you have exhausted the previous options or just want a fresh set of eyes on your case the third step would be to call your local bar association in the County/City in which you live or the jurisdiction where the case takes place. Most bar associations have a lawyer referral service and can help guide your search.

Attorney Julie Mirman

Written by Julie Mirman, an Associate Attorney with Berman, Sobin, Gross, Feldman & Darby, specializing in medical treatment coverage under workers' compensation.
Julie Mirman
jmirman@bsgfdlaw.com

Can I get treatment for my work injury if I move out of state

Thursday, August 29, 2019

Workers' Compensation is predominantly a state regulated system, therefore, each state has its own set of rules, laws and governing body. When life happens for the injured worker and the need to move out of state arises whether due to financial, health, family or lifestyle changes, it is important that you understand your medical rights before you move out of the state in which you receive your medical benefits.

Injured workers are entitled to medical treatment out of state, however the insurance company is still governed by the medical fee guidelines of the state in which they received the compensation benefit. This is the rule, but it is important to keep in mind that it is up to the providers' discretion whether they choose to accept out of state workers compensation. It can be difficult to find a provider that will allow their medical bills to be paid at the workers' compensation rate of the state in which the benefit is paid. For instance, if you receive workers' compensation benefits from a Maryland claim and the worker moves to Florida, then the insurance company only has to pay medical bills at the Maryland Workers' Compensation fee guide rate. Depending on the state this could work out more favorably for the provider if the state, in which they practice, has less favorable payout rates, but less favorably if the state is more generous to Workers' Compensation medical fees. In addition, some providers out of state will require a set-up fee to accept out of state workers' compensation and the insurance company may only agree to pay this extra fee under some circumstances.

It is increasingly more difficult to find providers willing to accept out of state workers' compensation, therefore if you are planning a move it may be time to settle your medical claim by agreeing to a medical set-aside account. With a medical set-aside account the money can be used to pay future medical bills, but are not beholden to the rates of the home state.

Attorney Julie Mirman

Written by Julie Mirman, an Associate Attorney with Berman, Sobin, Gross, Feldman & Darby, specializing in medical treatment coverage under workers' compensation.
Julie Mirman
jmirman@bsgfdlaw.com

What Documents Do I Need to File a Death Claim?

Thursday, June 13, 2019

Filing a Claim for Death Benefits

As attorneys working in workers’ compensation law, we tirelessly fight to ensure that injured workers receive the benefits they are entitled to, the medical treatment they need, and can hopefully get back to work. Unfortunately, not every claimant we represent is able to get back to work and some may succumb to their injury or occupational disease and pass away. We acknowledge that this is an extremely difficult time for you and your family, however it is vastly important for you to understand that you could be entitled to death benefits, and accordingly should gather the documents needed to file a successful death claim.

What do I need to file a claim?

To file a successful death claim, it is your responsibility, with the help of your attorney, to gather the needed documents within the allotted period of time. According to Labor and Employment § 9-710, “[i]f a covered employee dies from an accidental personal injury, the dependents of the covered employee or an individual on their behalf shall, within 18 months after the date of death, file with the Commission: (i) a claim application form (C35); (ii) proof of death; (iii) certificates of any physician who attended the covered employee; and (iv) any other proof that the Commission may require by regulation.” It is critical that you act quickly in obtaining these documents so that you may begin the process for filing a claim. For deaths from accidental injuries, the death has to have occurred within 7 years from the underlying accident. For death’s that are related to an occupational disease, the time frame can be longer and so you should contact an attorney as soon as possible to discuss the statute of limitations as it relates to your specific situation.

Are there any other documents I need?

In addition to what you have gathered, there are other documents that need to be collected and procedure you will need to follow to successfully file your claim. While this information is listed on the claim form C35, here are some of the other documents needed when filing a death claim:

When completing the Dependent Claim for Death Benefits the dependent claimant or authorized individual shall submit:

  • An authorization for disclosure of health information signed by the dependent claimant or authorized individual, directing the deceased employee’s health care providers to disclose to the dependent claimant’s attorney, deceased employee’s attorney, the deceased employee’s employer, the employer’s insurer, or any agent thereof, the deceased employee’s medical records…;
  • A certification of funeral expenses, if the dependent claimant is making a claim for funeral benefits…;
  • A certified copy of the certificate of death for the deceased employee; A certified copy of the certificate of death;
  • A certified copy of the certificate of marriage for a surviving spouse;
  • A certified copy of the certificate of birth for the dependent claimant, if the dependent claimant is the surviving child of the deceased employee.

[A detailed explanation of these requirements is provided on the claim form]

Though you may be reading this as a result of an unfortunate, life-changing event, do not hesitate to contact one of the attorneys at Berman, Sobin, Gross, Feldman & Darby if your spouse has recently passed away as a result of his/her work-related injury or occupational disease so that we may assist you in filing your claim. Death claims are an extremely complex subject, and this blog does not cover each and every legal requirement for filing a claim, that’s why it is so important to contact an attorney as soon as possible to look at the specific situation that you and your loved ones are dealing with.

Attorney Robert Hagans

Call or email me with your questions:
Robert Hagans
rhagans@bsgfdlaw.com

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