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Workers' Compensation Blog

10 things you need to know about IMEs (Independent Medical Evaluations)

Monday, September 19, 2016

The insurance company has the right to send you to a doctor of their choice for a medical opinion. This doctor is not going to provide you with any treatment or become your doctor, but rather only give an opinion. Here are 10 things you need to know:

  1. The IME is for the benefit of the insurance company, not you.
  2. The doctor is not required to keep anything you say in confidence; everything you tell him/her, or fail to tell him, will be contained in his report.
  3. Contrary to the letter you receive from the insurance company, you are not required to bring any test results or medical records with you. It is the insurance company’s responsibility to provide their doctor with the reports they want him to review.
  4. The IME doctor and his staff will watch how you walk, move, whether you bend down to tie your shoes or pick up a piece of paper you might have dropped, or how you remove a piece of clothing, and they will compare it to the complaints you tell them about during the exam and what is contained in your medical records, so be consistent. And never lie or exaggerate, but rather be specific about what pain you feel or limitations you experience.
  5. You should tell the doctor about any other accidents you were involved in, whether they happened before or after the work-related injury. Failing to inform the doctor of a prior accident hurts your credibility and makes it look like you are hiding information.
  6. Do not miss your appointment or arrive late. This could result in the insurance company terminating benefits, such as your lost wages, and the Workers’ Compensation Commission could order you to pay for the missed appointment.
  7. The doctor does not have the right to perform any invasive tests on you, such as x-rays, injections or EMG/nerve conduction studies.
  8. A female should never be alone in the examination room with a male doctor, so typically the doctor will have a member of his staff in the room during the examination for your safety.
  9. The examination will likely be very short (a few minutes), so it’s important that you be as comprehensive as possible about the complaints you have.
  10. The day of the IME is typically when insurance companies hire a private investigator to video tape you in hopes of “catching you” doing something that is inconsistent with what you tell the doctor or which reveals that you are capable to working. You should be consistent at all times and with all doctors.

 

What Are Your Medical Treatment Rights Under Maryland Workers' Compensation Law

Monday, September 19, 2016

By Clifford B. Sobin, Esq.

 

The easy answer is that you have the right to medical treatment reasonably related to your injury on the job. Furthermore, once accepted by the workers' compensation insurance carrier, you do not have to pay deductible or co-pay if the medical provider is in Maryland (see my next blog article for out of state treatment issues). Your Treatment rights include payment of:

  • Hospital bills
  • Prescriptions
  • Doctor bills
  • Physical Therapy bills
  • Mileage reimbursements for travel to health care providers
  • Medically necessary equipment

However, there is also a hard truth. You have the right to claim treatment, but the insurance company may object, delay or ignore your request. Unfortunately, the solution often requires a hearing before the Maryland Workers' Compensation Commission. At the hearing, your testimony and medical reports from your doctors are presented for a Commissioner's consideration.

How can this be you might ask? It is because the injured worker always has the burden to prove the treatment requested is:

  1. related to the injury on the job; and
  2. reasonably likely to be beneficial.

Therefore your right to medical care under a Workers' Compensation claim is not as extensive as when you make an insurance claim with a medical insurance provider. In that instance, you and/or your employer has paid an insurance premium that entitles you to payments for medical care. Workers' compensation settings are adversarial, your right to payment flows from your injury, not a contract. Nevertheless, the medical protection that flows from an accepted Workers' Compensation claim may be crucial to your recovery and your financial wellbeing.

Do You Need An Attorney For Your Maryland Workers’ Compensation Claim?

Monday, September 19, 2016
 

If You have been injured at work and have been dealing with the insurance company’s adjuster without any problems (for now), should you still hire a lawyer?

The short answer is YES.

Insurance company adjusters often formulate their questions in a way that encourages people to reveal more information than is needed or required. They will then use that information against you later on. For example, an adjuster may ask if you’ve ever had any prior injuries, prompting you to tell them about every medical condition or injury you’ve ever sustained, instead of limiting it to the body part that you just injured. They may also take recorded statements and focus on areas that will assist with defending against your claim. In addition:

  • The insurance company adjusters have access to the lawyers at their company, who provide them with the most recent court decisions and advise them about the law. Shouldn’t you also have a lawyer to advise you?
  • Your employer, who pays premiums to the insurance company, also has access to the lawyers at the insurance company who can advise them about the law. If your employer has a lawyer, shouldn’t you?
  • It does not cost you anything up front to have a lawyer for a Maryland Workers’ Compensation case. Your attorney will only be paid out of any compensation you are awarded in your case and only with the permission of the Maryland Workers' Compensation Commission. Your lawyer cannot separately bill you or charge you for their time. Your attorney will not receive a fee if you do not receive compensation.

Your lawyer can assist you with all aspects of your case, including obtaining:

  • Your wages
  • Your medical records
  • Medical treatment approvals

Your attorney will also represent you before the Workers’ Compensation Commission, when a hearing is required. Hearings are somewhat informal, but hidden behind the informality are technicalities that often require the assistance of a lawyer; such as presenting evidence in the proper manner, cross examining witnesses where required, making appropriate objections, and ensuring the evidence meets the burden of proof required to present your case.

In addition, without an attorney you could be missing out on benefits that you don’t even know you are entitled too, such as:

  • Temporary Total Disability Benefits paid based on an accurate average weekly wage
  • Permanent Disability Benefits at the correct level
  • Vocational Rehabilitation
  • Mileage reimbursements
  • Medical treatment

Please feel free to contact us at Berman, Sobin, Gross, Feldman & Darby, LLP, should you have any questions.

 

 

How Long Does It Take For My Maryland Workers’ Compensation Hearing To Be Scheduled?

Monday, September 19, 2016

By Clifford B. Sobin, Esq.

 

The Short answer is – it depends.

Generally, hearings are scheduled within three to four months after they are requested. However, some cases take longer and others less. The following things seem to impact the timing of hearings:

  • Location of the hearing (some locations are inherently busier than others)
  • Number of hearing requests filed within the same time period
  • Last minute cancellation of a full Commission docket due to weather
  • Number of cases that were continued after being scheduled.
  • Priority given to some issues over others
  • Inclusion of the Subsequent Injury Fund or Uninsured Employer’s Fund as a party

As a result, it is impossible to determine with confidence how long it will take for a hearing to be scheduled and the one claimant may wait much longer than another, even if the hearing requests are made on the same day.

There are two exceptions to the three to four month norm for having your hearing scheduled:

  • The first is if the issue only involves vocational rehabilitation. If the appropriate forms are filed, a Workers’ Compensation Commissioner will attempt to mediate the dispute over the phone within 24 hours of the forms being filed. If that is not successful, a hearing will be scheduled within several business days of the failed phone conference. However, the Commission will not any issue other than Vocational Rehabilitation to be heard at the expedited hearing.
  • The second exception is if an emergency hearing is granted. While it is true that an emergency hearing can be requested for any issue, it is equally true that they are infrequently granted. The purpose must be an emergency that far exceeds the fact that the insurance company is refusing to pay. There must be significant demonstrable impact as a result of a delay, beyond what other claimants will normally experience for the same delay, to have a chance of having the request granted. Generally, it is recommended not to ask for an emergency hearing unless there is a high likelihood of it being granted.

 

Medicare and Old Workers’ Compensation Claims

Monday, September 19, 2016

A letter from Medicare is in the mail. The envelope doesn’t look much different from others you have received from Medicare. You open it without thinking or much concern.

What it says shocks you.

Medicare (actually an outfit called MSPRC) is alerting you that it no longer will pay for treatment or wants money back for bills they have paid. Why?

Because you filed a Workers’ Compensation claim more than ten years ago - it makes no sense to you. The Workers’ Compensation claim was for your right leg, the treatment you now need is oxygen for your lungs!

How Could This Happen?

Insurance companies are now required to send Workers’ Compensation claim information to Medicare. If:

  • bills are coded incorrectly by a medical provider
  • a medical report erroneously says the treatment is for a job related injury
  • Medicare makes a mistake; or
  • who knows why

The letter you get may be a:

  • Rights and Responsibilities Letter (RAR) - The letter informs you that Medicare is aware you have filed a Workers' Compensation claim. Sixty-five days later a Conditional Payment Letter is sent to you (see below)
  • Conditional Payment Letter (CPL) – This letter specifies what Medicare has paid that it believes are related to your Workers’ Compensation claim.
  • Conditional Payment Notice (CPN) - This letter tells you what you should do if Medicare has paid bills and wants its money back.
  • Demand Letter (DL) – Medicare tells you that you must repay Medicare for the payments listed in the letter. A Demand letter is issued thirty days or more after the Conditional Payment letter.

If payments are not made within sixty days of the Demand Letter and Medicare does not agree to modify or waive the demand interest is charged from the date of the Demand Letter.

If no payments are made within 120 days of the Demand Letter, an "Intent to Refer" letter will be mailed to you. Medicare may send the matter to the Department of the Treasury for collection from 120 days to 240 days from the date of the Demand Letter.

You or your attorney can request a “waiver” after a Demand Letter is issued even if the treatment is related to your old Workers’ Compensation claim. To do so:

1) you must not be at fault for the overpayment; and

2) it would cause you financial hardship to repay Medicare .

There also is an appeal process for disputes over more than $130.00.

How to Solve the Problem

The only clear statement that can be made at this time about resolving Medicare/Workers' Compensation disputes is that there is no clarity. However, the first step is to call the Medicare number listed on the form and find out what the problem is. If there is a clear error by Medicare, your phone call may take care of the problem. It is also possible that some documentation from the Workers’ Compensation claim and/or your medical providers will be required. The issues will be more complicated if the new treatment is for the same part of your body that was the subject of your Workers’ Compensation claim. The argument is, for example, that a back strain of ten year ago could not possibly be related to a need for back surgery now. It is possible medical records will be required to support that position, and/or a hearing before the Workers’ Compensation Commission to determine whether the treatment is related. Even then, Medicare may not agree to be bound by a Commission decision.

The Bottom Line

The only sure thing to say about Medicare and Workers’ Compensation claims is that nothing is sure. Rules and procedures change. Simple issues may be resolvable without an attorney, more complex ones, perhaps not.

File a Maryland Worker’s Compensation Claim – Reporting Your Injury is Not Enough!

Monday, September 19, 2016

By Clifford B. Sobin, Esq.

 

You were injured on the job. You reported your injury to your supervisor and your boss filled out a form that you signed. The insurance company gave you a claim number and paid your medical bills. You had no contact with the Maryland Workers’ Compensation Commission. You thought all was well.

You were wrong.

The form you signed was a First Report of Injury that your employer sent to the insurance company. It was not a Maryland Workers’ Compensation claim form. The insurance company filed the First Report of Injury form with the Maryland Workers’ Compensation Commission. Unfortunately, that does not relieve you of the responsibility to file a claim form. Generally, you have two years to file a claim with the Commission (less when a death occurs as a result of an accidental injury). If you fail to file timely, you will not have any right to claim additional Workers’ Compensation benefits should the insurance company refuse to pay them – and they will.

How do you know if a Workers’ Compensation claim was filed? It is simple. Your claim is properly filed if you received a document titled “Notice of Employee’s Claim” in the mail from the Commission. The document must have a six digit claim number on the top right side that is preceded by the letter “B” or “W” (“W” is used when you file on-line). The Commission will only send you the document if you signed the front and the back of a claim form and mailed it to them.

All too often an injured employee’s failure to file a claim is caused by an insurance company that voluntarily approves and pays for medical treatment. This lulls the employee into complacency but trouble rears its ugly head when the employee's condition worsens or if the employee has a new injury. If it has been more than two years from the accident the insurance company’s tone will suddenly change. A friend no longer, the insurance adjuster will usually respond in one way – denied! If an unfortunate worker suffers a new injury on the job, the insurance company may try to defend the claim or limit the benefits payable by arguing that the injuries are related to the old claim that was not filed timely.

There are arguments we can raise to extend the filing period beyond the two year period specified by the law. However, they are very fact specific and will only be successful in a very small percentage of cases. Therefore, whenever you are injured on the job it is vital to ensure that a claim has been filed timely. When in doubt, the easiest way to do that is to contact us. There is no fee for us to check.

Three Problems Caused by Maryland’s Medical Fee Guide for Workers’ Compensation Claims

Friday, September 16, 2016

By Clifford B. Sobin, Esq.

The Workers’ Compensation Commission regulates the amount a Maryland medical provider can charge for treating work related injuries. The permitted amounts are found in a document entitled, “Guide of Medical and Surgical Fees”. The medical provider may not charge the injured worker an amount in excess of the amount provided in the fee guide.

These rules cause difficulties in three areas:

1) When the treatment is out of state. In that case, Maryland fee guides do not restrict the health care provider from charging whatever they want. Nevertheless, the workers’ compensation insurance company will only pay an amount called for in the fee guide – the injured worker is stuck for the difference. Although the statute permits the Commission to Order a higher payment when special circumstances permit, it almost always declines to do so. Therefore, it is crucial that an injured employee explicitly obtain the agreement of the out of state health care provider to accept the fee schedule before becoming a patient.

2) When the claim is initially denied. If the workers’ compensation insurance company denies a claim, usually if there is a medical insurer, bills will be paid by the medical insurer while a hearing is pending. As a result the claimant may pay a deductible and the health insurer will pay pursuant to its fee schedule. Problems can occur when the claim subsequently becomes compensable. This may result in:

  1. payments being yanked from the medical provider by the health insurer; or
  2. issues concerning who reimburses the claimant for co-pay expenses (health care provider or workers’ compensation insurer) as well as what happens if the medical insurer has paid more to the health care provider than the fee schedule permits.

3) Difficulty in finding medical providers. Many physicians, especially orthopedic surgeons and neurosurgeons, are refusing to accept patients who rely on workers’ compensation insurers to pay for the medical treatment. This is due to the reduced rates, increased documentation, and uncertainty or delay of payment which is part and parcel to administering a workers’ compensation claim.

Please do not hesitate to contact us at Berman, Sobin, Gross, Feldman & Darby LLP in order to assist you in these matters

Maryland Workers' Compensation - Working Two Jobs - Injured On One

Friday, September 16, 2016

By Clifford Sobin, Esq.

 

What do you mean – I can’t collect temporary total or partial disability benefits for being hurt on one job if I continue to work my second job? Unfortunately, that is the law in Maryland. In fact, if you do so, you could be subject to criminal prosecution!

 

Let me explain the problem by using the following example:
 
  1. You have two jobs. The first is a fulltime position in an office from which you earn $900.00 a week. The second is a part time job working at a grocery job from which you make $300.00 a week.
  2. You hurt your knee while doing your grocery job and require surgery resulting in an inability to do the grocery job for six months. As a result you are entitled to temporary total disability benefits equivalent to two thirds of your salary - $200.00 per week – during that six month period.
  3. You are still physically able to do your office job.
In a similar scenario the Court of Appeals and the Court of Special Appeals in two separate cases made clear that if the employee continues to work the office job he or she forfeits the right to receive $200.00 a week while the knee heals. This creates an impossible choice for the injured employee – accept the $200.00 and give up the larger salary, or continue to work the office job and create a windfall for the grocery store where they were injured. Either choice will financially devastate the injured employee and discriminates against productive members of our society without any offsetting definable purpose.

 

The impact on the injured employee of the employer/insurer discovering that the injured worker has double dipped so, to speak, can be devastating. Since most temporary total disability checks contain a warning against cashing them if the injured worker is working, the argument is created that doing so is a knowing violation of the law. The sanctions can range from future reductions reducing other payments owed to repayment, including a high level of interest beyond the date of the Commission Order requiring repayment. The potential framework also exists for the employer/insurer to argue that all right to future compensation is denied and for criminal prosecution (although this author would dispute whether cashing the check without other conduct reaches the level of criminal conduct contemplated in the fraudulent representation statute – no Appellate Court has clearly ruled on the subject so the scope of the statute is still unknown as of November 2010).
 
If you think this is unfair feel free to contact your legislative representative. This is a law that cries out for change!

 

Sick Leave Bank Or Temporary Total Disability? An Introduction To How Leave Benefit Options Will Affect Your Workers’ Compensation Case

Tuesday, June 21, 2016

Many of my teacher clients often ask, and understandably so, how will I be paid while I am out of work and recovering from my injury? Because many boards of education in Maryland offer benefits other than what the Workers’ Compensation Act allows – the answer is – “it depends”. Oftentimes, the type of benefit received may be your choice – making it a good time to contact your attorney and make sure you understand the implications of what benefit you choose.

Maryland Law for Teachers Workers’ Comp

Maryland law requires an Employer to pay you at the rate of 2/3s of your salary for the period of time you are recovering from your work related injury (legally known as temporary total disability or “TTD”). For many private sector employees, other than possibly a short or long term disability plan, the 2/3s wage benefit is the only benefit available while out of work. The 2/3s TTD benefit is tax free; however, oftentimes your health insurance is placed on hold, along with your contribution to any pension or other 401k type program while you receive this wage benefit – oftentimes placing you in a precarious position.

Additional Benefits Through Unions

Many teacher unions however, have collectively bargained for additional benefit options for their members. These benefits differ by County. Many boards of education will pay anywhere from 90 days to one year of “disability leave” (also known as “accident leave” or in certain cases “assault leave”) which takes the place of the workers’ compensation act’s 2/3s leave benefit. This benefit pays 100% of wages for the period of time you are recovering from your injury, effectively taking the place of your normal salary. Perhaps most importantly, this allows you to continue to pay for your own health insurance and contribute to your pension, FSA, etc., which many of my clients find to be extremely beneficial – especially if they provide health insurance for their families.

Once the “accident leave” or “disability leave” benefit has run its course, other potential TTD alternatives may be available to you. Personal and sick leave can always be used – however, these are earned leave benefits that should not be wasted on a work related injury if at all possible (if an employer is requiring you to use your own accrued leave to recover from a work injury, consult with your attorney). These are leave benefits you have earned – you are entitled to keep them if you are hurt on the job. Also important to note, even if your employer forced you to use your own personal or sick leave, oftentimes these benefits can be reimbursed at a later date.

Sick Leave Bank

Many school boards also offer “sick leave bank” benefits as another payment option. To be eligible you must contribute a set number of personal leave days to the bank per year to qualify – each County has its own set of rules and regulations to access the “bank”. You must be a member of the bank prior to needing to the days, however, when a work injury takes place this is another option which pays at 100% of your wages and continues the other benefits noted above (e.g. health insurance, etc.).

Additional Options to Review and Discuss

There may be other options aside from those noted above to compensate you when you’re injured on the job. Leave benefits are just one of the benefits you may be entitled to if you are injured on the job. Compensation for permanent problems, retraining and reimbursement for travel expenses are just a few of the other benefits that may be available to you.

Consult with your attorney to be sure you are not leaving money on the table.

By Ken Berman

Observing Memorial Day

Friday, May 27, 2016

As this weekend approaches and millions of people prepare to kick-off the summer by celebrating Memorial Day weekend, let’s take a moment to remember the true meaning behind this holiday. The true meaning of Memorial Day is about remembrance. It’s about remembering and honoring the brave soldiers that answered the call to defend our country and that have made the ultimate sacrifice for our liberties and for our freedoms. From the Army, Navy, Air Force, Marines, and Coast Guard, these men and women have made the ultimate sacrifice to this great nation and have provided a blanket of freedom that allows us to sustain a free society. Memorial Day should reflect on the heroes of generations past, and those whose daily work is honorable and heroic. It’s a day to remind us of the true cost of freedom and the human price of such great sacrifice. We ask you to honor all those who have gallantly served our nation to provide the freedoms that we will all share together during this weekend’s holiday.

Berman, Sobin, Gross, Feldman and Darby LLP takes great pride serving military veterans who continue to give back to our community. Whether it be working in public safety from law enforcement, fire and rescue, and corrections by keeping us safe, to the communications workers, bus operators, nurses, teachers and so many others who make an impact on our day to day lives. We appreciate the service of those who serve our community with distinction and honor. Therefore, we take this opportunity to thank all military personnel who continue to fight for our freedoms and to honor those brave men and women that have lost their lives defending our great nation.

We would ask that you also take time to remember and honor those that have sacrificed.; In the year 2000, Congress passed The National Moment of Remembrance Act as a way of honoring America’s fallen heroes. This Act designated 3:00 p.m. on Memorial Day as a moment of remembrance. Please take a minute on Monday, May 30 at exactly 3:00 p.m. to reflect and honor those men and women that have made the ultimate sacrifice for our country.

We wish you all a healthy and safe holiday weekend.

By Ken Berman

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