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Workers' Compensation Blog

Jury Got It Right For Montgomery County Correctional Officer

Thursday, May 12, 2016

Attorney Charles Schultz of Berman, Sobin, Gross, Feldman & Darby, LLP was successful in overturning a decision of the Maryland Workers’ Compensation Commission which had found that a career correctional officer did not sustain an occupational disease of Hypertension as a result of his employment. The Commission denied the injured worker’s claim for benefits because he suffered from numerous other health conditions which could have been a factor in his development of Hypertension. After a two (2) day jury trial, the jury returned a verdict in favor of the officer, who had worked for Montgomery County for just two (2) years prior to being diagnosed with Hypertension (he had worked as a correctional officer for 11 years prior to that in a different jurisdiction), finding that his condition was caused by his employment.

Hypertension for Correctional Officers

For many correctional officers in Maryland, it is presumed that Hypertension is caused by the stresses and strains inherent in the job – a law that makes perfect sense to those who understand the daily challenges of a correctional officer. Correctional officers are in the position of having to protect inmates from harming themselves, other inmates, or the officers themselves, and often times when they are greatly outnumbered by the inmates. This stressful environment can contribute to the development of Hypertension – which has been recognized by Maryland’s Legislature by including correctional officers in the heart and lung law.

What This Means for the Officer

The court victory means that the officer will now receive payment for all future medical treatment and any past medical bills resulting from his Hypertension, payment at two thirds of his wages tax free for any time he has missed from work as a result of his condition, and payment for the permanent disability he now has due to his condition.

If you know someone who is a corrections officer and is suffering with job-related hypertension, please have them contact Ken Berman at 301-670-7030.

By Ken Berman

Hard Fought Court Victory For Widow of Deceased Firefighter

Wednesday, April 06, 2016

Attorney Ken Berman has secured death benefits for the widow of a deceased fire fighter in a three (3) day jury trial. The Maryland Workers’ Compensation Commission had found that the Claimant, a fire fighter who was not diagnosed with multiple myeloma until 23 years after last running a call, did not sustain a compensable occupational disease. The Commission denied the widow’s claim for the death of her husband due to the long gap between the fire fighter’s exposure (1989) and the diagnosis of the disease (2012), as well as the fire fighter’s family history of cancer.

Occupational Diseases for Fire Fighters

After three days of testimony, including Mr. Berman subpoenaing the former assistant chief of the department to testify as to exposures fire fighters encounter and past lack of safety measures, the Jury returned a verdict overturning the Commission and in favor of the Claimant- finding that his occupational disease of multiple myeloma was indeed related to the fire fighter’s exposures in the department.

What This Means for The Family

The court victory means that the widow will now receive death benefits, payment for the funeral expenses, and payment for all past medical bills and other expenses.

By Ken Berman

Recent Victory In Workers’ Comp Case For Firefighters

Monday, February 08, 2016

Two recent rulings from the Maryland Workers’ Compensation Commission provided an award of compensation to a fire fighter who was diagnosed with kidney cancer and another fire fighter who was diagnosed with thyroid cancer. The Commission awarded benefits to the fire fighter notwithstanding that the Fire Department attempted to argue that the fire fighter with kidney cancer had smoked for twenty (20) years and had other “risk factors”. In the case of the fire fighter who developed thyroid cancer the County argued that there was no scientific evidence to support a relationship between fire-fighting and thyroid cancer.

Job Hazards for Firefighters

We countered the defense with evidence, testimony and many articles showing that there is clear scientific evidence that toxic chemicals and smoke that fire fighters encounter in the everyday performance of his/her job causes kidney, thyroid and many other cancers (neither kidney cancer nor thyroid cancers are “presumption” cancers under the law). As a result of this finding, the fire fighters will not only receive benefits but will also be covered for any problems they may have, including lost time, mileage reimbursement, medications, etc., for the rest of his/her life. This coverage even extends even after they retire and/or leave the Fire Department.

What To Do Following a Diagnosis

If you have had a finding, either by your private physician or on annual examination, of a cancerous condition, high blood pressure (hypertension), heart disease, hearing loss, tinnitus (ringing in the ear), PTSD or other such problems, please contact us and we will file the appropriate forms. We have handled more cancer, hypertension, heart disease, lung disease and all workers compensation cases than any other firm in the state of Maryland.

By Ken Berman

Correctional Officers And Hypertension: Protect Your Rights

Tuesday, September 29, 2015

Being a correctional officer is one of the most dangerous and stressful jobs in the world. Think about what these women and men do every day. They walk through prison gates; the doors are locked BEHIND them, and are asked to protect us from the most dangerous criminals in Maryland. They are not carrying firearms and are wearing very little protection. Correctional officers know the risk and despite that, show up every day for work and protect the public. In turn, the State of Maryland does not provide them with as many workers’ compensation protections as they could.Correctional officers are on the front lines of public safety in Maryland. They stand side by side with police and fire to provide safety to the public. Yet the law does not afford them the same protections as police and fire. In Maryland, and throughout the country, the law recognizes that police officers and firefighters have a higher risk of developing hypertension and heart disease. This is a direct result of the high stress nature of being a police officer and firefighter. The law presumes that if a police officer or firefighter develops hypertension, it’s presumed to have been caused by the stress of their job. This is backed up by research. The presumption itself is vital because the workers’ compensation insurance company has the burden to prove that the hypertension was caused by something other than the stress of the job. In other workers’ compensation cases, the burden is on the injured worker to prove the injuries were caused by the accident or the in the case of an occupation disease, the disease was caused by the nature of the employment.

Why doesn’t the law provide correctional officers the same protection as police and fire? Think about what correctional officers face every day. The threat of assault is constant; they have to be on high alert from the moment they walk in the prison. Is being surrounded by violent criminals forty hours a week just as stressful as being a police officer and firefighter? And when you think about public safety, people often fail to consider that correctional officers are the last line of defense, and provide just as much safety to the public as police or fire. There have been bills introduced in the last two Legislative sessions to provide Maryland correctional officers the same protections as police and fire and neither has been enacted. Two sessions ago during the testimony before Senate, representatives from the workers’ compensation insurance industry actually testified that correctional officers do not protect the public, and that’s why legislators should vote down the bill!

Some jurisdictions in Maryland do recognized that correctional officers have the same increased risk of hypertension. Both Montgomery and Prince George’s counties treat their correctional officers the same as their police and firefighters. If a Montgomery County or Prince George’s County correctional officer develops hypertension, the law presumes it’s caused by the stress of their employment and they are entitled to workers’ compensation benefits, but if a correctional officer in a State of Maryland facility develops hypertension, they do not have the same protection. How can this be? The worst of the worst are housed in State of Maryland facilities. How can State of Maryland correctional officers not face the same, if not more stress, as a Prince Georges’ or Montgomery County correctional officers?

Despite this inherent unfairness, correctional officers throughout the state STILL have the right to file hypertension claims. Just because they don’t have the presumption does not mean they cannot fight for their rights. We are currently fighting for the rights of correctional officers who have hypertension despite the lack of a presumption bill, and we will continue to do so. If you do have a hypertension and are a correctional officer, make sure you protect your rights by filing a workers’ compensation claim. Don’t wait for the Legislature to protect your rights for you.

By Jason Shultz, Esq.

Matt Darby Wins Big For Fire Fighters And Government Employees

Friday, March 28, 2014

Eight years ago, almost to the day, I attended hearings at the Maryland Legislature related to some newly proposed laws that would help people claiming Workers’ Compensation benefits. My firm for more than two decades has worked with Unions throughout Maryland to help people that have been injured on the job; with their claims and with enacting new laws. That day, Matt Darby was there as well. He was a principle partner in a firm that had the same mission as ours. Once the meetings were over he was kind enough to drive me to my car.

We got to talking and realized that both of our firms had similar cultures and similar values. The light bulb went off. Why not merge? Almost three years later we did.

Now, as further proof of the validity of that vision, only two months after my partner, Ken Berman, scored a huge victory in the Court of Appeals for fire fighters, now Matt Darby has done the same in the Court of Special Appeals.

Facts

The case involved one of our clients who suffered from coronary heart disease. Matt succeeded in convincing the Maryland Workers’ Compensation Commission that our client’s condition was compensable and that he had a 25% percent industrial disability as a result. The Commission awarded him more than $33,000 dollars.

However, there was a problem. Baltimore County argued he was not entitled to the money because he was receiving a retirement benefit that paid more than the Workers’ Compensation award. Therefore, to use a tired legal expression; the award was “set-off” by the retirement benefit. In theory they had a point – but in practice they did not. The County argued that the money our client received in a lump sum five years before the Commission hearing, as part of the DROP program, should be included in the “set-off” calculations.

Matt said no!

Argument

He argued that the law required looking week by week to see what retirement benefits were actually paid for that week and compare it to what was owed under the Commission award for that week; then calculate the “Set-off” separately for each week. Matt won before the Commission. He won before the Circuit Court. And now he has won in front of the Court of Special Appeals.

Not only did the win benefit our client, but it will help all fire fighters, police officers and any other employee of a county, municipality or the state. If you would like to read the case it is located at:

http://www.mdcourts.gov/opinions/cosa/2014/2053s12.pdf.

By Clifford B. Sobin, Esq.

More Cancers Presumed To Be Caused By The Job – Just Not Yet

Wednesday, June 06, 2012

Maryland fire fighters and fire instructors both paid and most volunteers, paramedics, most volunteer rescue squad members and advanced life support unit members, and State Fire Marshals are eligible to claim a presumption under Maryland Workers’ Compensation law that certain cancers are caused by their jobs. Until May 31, 2013, the cancers are:

  • Leukemia
  • Pancreatic Cancer
  • Prostate Cancer
  • Rectal Cancer
  • Throat Cancer

As a result of new laws passed in April of 2012, for Workers’ Compensation claims filed on June 1, 2013, or later, the list of presumptive cancers increases to include:

  • Multiple Myeloma
  • Non-Hodgkin’s Lymphoma
  • Brain Cancer
  • Testicular Cancer
  • Breast Cancer

In addition, the new statute created a framework for further study of the relationship of cancers to specified jobs.

The presumption is only applicable if the employee:

  • has had contact with toxic substances in the line of duty capable of causing the cancer;
  • has completed at least 5 years with the same department (will be 10 years after the effective date of the new statute) in the job, or combination of jobs, that are specified as eligible to receive the presumption
  • that the employee is disabled from serving as a result of the cancer in the job that is eligible for the presumption; and
  • is a volunteer – met a suitable standard of physical examination before becoming a volunteer.

Determination of whether a particular cancer originated as a presumptive cancer often requires a detailed review of the medical records, and deciding when to file a claim involves application of the law to the facts. Therefore, legal representation is strongly suggested to protect your rights.

Please do not hesitate to contact us at Berman, Sobin, Gross, Feldman & Darby LLP (301-670-7030) in order to assist you in these matters.

By Clifford B. Sobin, Esq.

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