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Workers' Compensation Blog

Ken Berman Expands Law as to PTSD for Fire Fighters

Friday, September 23, 2016

Post Traumatic Stress Disorder is a huge issue among first responders and can quickly develop into a serious and life threatening condition. Studies show that Post Traumatic Stress Disorder can lead to dangerous and suicidal thoughts among those who suffer from it. A study published by the Journal of Affective Disorders in 2015 found that “Fire Fighters report an alarmingly high career prevalence of suicidal thoughts and behaviors.” More than half of those study participants reported encountering suicidal thoughts at one or more points during their career.

PTSD and Workers’ Compensation Claims

For many years, Post Traumatic Stress Disorder was not recognized as a compensable workers’ compensation claim. In the 1980s and 1990s Berman, Sobin, Gross, Feldman & Darby LLP persuaded the Workers’ Compensation Commission to begin to recognize Post Traumatic Stress Disorder as compensable. It was normally limited, however, to instances of specific horrific incidents occurring.

Active and Retired Fire Fighters Who Suffer from PTSD

For decades Ken Berman has represented fire fighters and first responders who have suffered from PTSD. In two recent cases, Mr. Berman convinced the Commission that fire fighters and first responders can suffer from PTSD from every day stresses and strains and that coverage for PTSD should not just be limited to problems arising from one specific event. Mr. Berman argued that the day to day stresses and strains, cumulative in nature, were equally, if not more, harmful and devastating and should be covered under the law. The Commission, based upon the above arguments, along with appropriate testimony and medical records, agreed. In both cases the fire department argued that such day to day traumatic events are “just part of the job” of a public safety employee. Mr. Berman turned that defense on its head and argued that this was precisely the point. If it is a part of the job and intertwined with it then it should be covered.

The two new decisions are important given that studies show that anywhere between 7% and 37% of fire fighters suffer from PTSD and that the likelihood of suffering from PTSD increases with the number of traumatic situations an individual is exposed to.

Getting Help for PTSD

If you believe you are suffering from Post Traumatic Stress Disorder, or know someone that might be, seek immediate help from a qualified medical professional. If you are worried about a co-worker, talk to them about your concerns. Providing a supportive environment built on mutual experiences can prove to be extremely beneficial to your fellow fire fighters. If you have any questions on any of the above or wish to discuss any matter, in a confidential environment, please feel free to contact Berman, Sobin, Gross and Darby at 1-800-827-COMP(2667).

Key Differences in the Vocational Rehabilitation Process in Maryland and the District of Columbia

Friday, September 23, 2016

VOCATIONAL BENEFITS

The Workers’ Compensation Statutes in both the State of Maryland and the District of Columbia offer a benefit to injured workers called Vocational Rehabilitation, often called “Voc Rehab” for short. Vocational Rehabilitation arises in a workers’ compensation case when the injured worker’s medical treatment is complete, or near complete, and he/she is given restrictions from his/her doctor that prevent him/her from physically performing the work he/she was able to perform before the accidental work injury. During the Voc Rehab process, the injured worker receives assistance from a licensed vocational expert so that they can, together, strive towards getting the injured worker back to full-time work with another employer and within the injured workers’ permanent physical limitations. The injured worker receives pay from the workers’ compensation insurance company while he/she is applying for jobs, taking classes, or going through retraining.

One scenario in which an injured worker would be able to receive Voc Rehab benefits would be, for example, if the injured worker was employed as a security officer at the time of the work injury, and had work requirements of standing for 6 hours a day, and lifting up to 50lbs. Yet, because of his permanent back and right ankle work injuries he is now only able to stand for only 2 hours a day, and lift up to 20lbs. The injured worker in that example would be entitled to receive Voc Rehab benefits in both the District and in Maryland. By contrast, if that same security officer was released to full-duty work, and had no permanent limitations on his ability to lift or stand, then he would not be entitled to Vocational Rehabilitation and would be expected to return back to his pre-injury work, even if it was now physically harder to do that job and his work activities caused him some physical discomfort.

Often times, the permanent work limitations are given by the treating physician at the time the injured worker is being discharged from his doctor’s care. There is a test called a Functional Capacity Evaluation (FCE) that offers a more detailed analysis as to what the injured worker can and cannot do. The FCE usually takes place at a physical therapy facility, although not all physical therapy facilities perform FCE’s. The FCE typically lasts approximately 4 hours. Upon completion of the FCE, the FCE facility will issue a detailed report stating how much the injured worker can lift, push, pull, and carry, and for how long he can sit, stand, walk, and run. If the FCE evaluator feels the injured worker has permanent work restrictions that keep him or her from returning back to the job they had at the time of the work injury, then vocational rehabilitation will begin.

COMPARING MARYLAND AND THE DISTRICT OF COLUMBIA

There are several key differences in the Voc Rehab process in Maryland and the District of Columbia. For example, in Maryland the Workers’ Compensation Regulations state that the Parties to the Claim may agree on the Vocational Counselor that will be assisting the injured worker with getting back to full-time work within his/her permanent work restrictions. If no agreement is reached, the Commission will pick the Vocational Counselor from a list. In the District of Columbia, however, there is no such provision, and the vocational counselor is typically selected only by the workers’ compensation insurance company, or their attorney. Therefore, from the onset of the Voc Rehab process, injured workers in DC are at a disadvantage. The manner in which the injured worker is scrutinized in Maryland versus the District during the Voc Rehab process is vastly different. In Maryland, Voc Rehab is offered to injured workers typically at three-month increments. If the injured worker in Maryland is “compliant” during those first three months, the Vocational process will be extended for another three months, and another three months, until the Maryland workers’ compensation insurance carrier no longer wishes to offer Voc Rehab to the injured worker, or finds a reason to deem the injured worker as being “non-compliant” with the Voc Rehab process. One example of how noncompliance is alleged is by stating that the injured worker was not applying to enough jobs each week, or was showing up late to their weekly meetings with the Voc Rehab counselor. In the District of Columbia, however, vocational rehabilitation can go on for years without ever having to request or wait for an extension of time from the workers compensation insurance adjuster.

And so, while in Maryland the vocational process is evaluated on a monthly basis by the insurance adjuster, in the District of Columbia, injured workers who are receiving Voc Rehab benefits are often left to their own devices. The Rehab counselors typically do not write detailed monthly reports commenting on everything that was done and not by the injured worker, and so the injured workers’ level of participation during Voc Rehab in DC is not able to be scrutinized or judged as it is in Maryland. However, the same goes for the level of participation of the Voc Rehab counselor. If the counselor is not required to write monthly reports in the District as they are in Maryland, the counselor’s own level of involvement is not recorded. For example, were classes or re-training discussed and offered officially? If so, when? Was the counselor late to meetings as well? These details control the Voc Rehab process in Maryland, and determine the extent to which Voc Rehab will take place, and how much Vocational benefits are offered to the injured worker, whereas in the District of Columbia, those details are often lacking.

In sum, there are benefits and detriments to each jurisdiction’s workers’ compensation laws. There is no perfect system. The best thing for the injured worker to do is to follow the laws and procedures of the jurisdiction in which their injury took place, and to do so with the assistance of an attorney they trust. If additional information is needed as to the Vocational Rehabilitation process, I can be reached at: LPisano@bsgfdlaw.com, or on my direct work line of: 301-740-3304.

Facts About Injuries for Fire Fighters and First Responders

Friday, September 23, 2016

Fire fighters get injured at work more than the general population. If that seems logical to those who perform the job, now there are official numbers to back it up. In 2014 there were 63,350 fire fighter injuries which occurred in the line of duty, a decrease of 3.8% from 2013 when there were nearly 65,880 line of duty fire fighter injuries. While this number, thankfully, is the fewest since 1981, and 2013 represented a 5% drop from the number of injuries to fire fighters in 2012, it is still much higher, proportionately, than for any other occupation. This is especially worrisome when one considers that the number of fires has decreased by 57.1% since 1981.

1 Injury Occurs Every 8 Minutes

Thus, while the number of total injuries for fire fighters has gone down slightly over the last two decades, the number of fires since 1981 has decreased at a much greater rate. The number of injuries remain much higher for first responders than anyone else. It amounts to one fire fighter injury occurring every 8 minutes. In fact, according to the Harvard School of Medicine, putting out a fire has a 100 times higher risk of death than working in a non-emergency situation. Although many people assume that burns and smoke inhalation are the cause of most fire fighter fatalities; heart disease (coronary artery disease) is actually the single most frequent cause of duty-related deaths.

WHERE the Injuries Occur

A look behind the numbers nationwide in 2014 show that forty three percent (43%) of fire fighter injuries occur at or on the fire grounds, while seventeen percent (17%) occur during other on-duty activities. Six percent (6%) arise from responding to or returning from an incident, while eleven percent (11%) happened during training activities. Finally, twenty three percent (23%) occurred at non-fire emergency incidents. The highest rate of injuries (per 100 fire fighters) were, perhaps not surprisingly, among departments that protected populations of one million citizens or more and the fewest were to fire fighters that protected populations of fewer than 25,000.

Exposure To More Than Burns and Scars

In addition to injuries, NFPA estimates that in 2013 (the last calendar year for which reportable numbers exist) there were 7,100 exposures nationwide to infectious disease (such as hepatitis, meningitis, HIV) and 17,400 exposures to hazardous conditions (asbestos, radioactive materials, chemicals, etc.)

Public Safety Workers’ Compensation Claim Rates

The national numbers are mirrored in the State of Maryland. Out of all the workers’ compensation claims filed in the State of Maryland, a disproportionate number have been for public safety employees.

2015 2014 2013
# of Claims 23,711 24,211 23,241
# FF Claims 754 (3.2%) 799 (3.3%) 769 (3.3%)

If you know of fire fighter, first responder, or EMS worker who has been injured on the job have them call me for a confidential consultation.

Increased Deliveries Equals Increased Injuries for Delivery Drivers

Friday, September 23, 2016

Is it just me, or does it seem like there are simply not enough hours in the day anymore? More often than not, I’m trying to accomplish multiple things at a time in order to get through the never-ending ‘to-do’ list that I have created for myself each day. That, coupled with easy access to online shopping from my smartphone makes home delivery a very common and necessary feature in daily life. One study indicated that ‘mobile’ shopping is projected to grow from a mere $3 billion in 2010 to $31 billion by 2017.

Increased Injuries for Courier Workers

Given this, it isn’t surprising that courier workers are experiencing ever increasing demands in their jobs. Increased volume as well as stricter time constraints on delivery schedules have resulted in more injuries to courier workers over the years. And while these injuries occur on a more frequent basis, the typical courier worker continues to work through their injury hoping it will resolve itself. In the best of circumstances, the nagging knee pain or back twinge will eventually go away. However, in worst-case scenarios, those injuries that were initially minor in nature can turn into debilitating, career-ending injuries.

Who to Call...and When...

Time and time again, I receive calls from injured workers who have had long standing injuries that they have reported to the company, only to learn later, and sometimes when it is too late, that these injuries are not covered under workers’ compensation. This should not be happening! Merely reporting your work injury at the job is not enough.

We can help to make sure your rights are protected. Contact Gretchen Rogers today (301-740-3303) to learn what you rights are.

Benefits for Burns, Scars & Disfigurements

Friday, September 23, 2016

Maryland Workers’ Compensation law requires the Employer/Insurer of a worker who is burned, scarred or disfigured while performing his/her job to pay to that worker, compensation benefits. This includes, and is especially relevant to, fire fighters.

A fire fighter who is burned, disfigured or scarred while either fighting a fire or performing any other aspect of his job has the right to receive $343.00 per week (the 2016 rate) up to a maximum of 156 weeks for any such disfigurement, burn or scar. As in many other requirements of the Workers’ Compensation law, fault is not a factor, however the employee has 2 years to file such a claim after the disfigurement or scarring occurs.

If you have been burned or incurred any scarring in the last 2 years contact us immediately to process the claim and obtain the benefits that are rightfully yours.

Conclusion

The laws governing workers’ compensation are complex. However, the system is designed to benefit an injured worker. An attorney can only charge if recovery is made. If you have a question regarding anything in the outlines, or any other questions, please feel free to contact us at Berman Sobin Gross, Feldman & Darby. Our telephone number is (301) 670-7030 and our toll free number is (800) 827-COMP.

Injuries During Physical Training: What Is and Is Not Compensable

Friday, September 23, 2016

There has been some confusion recently as to whether injuries sustained while performing “required” physical training are covered under workers’ compensation. The answer almost always is "yes", provided certain conditions are met.

When The Injury Happens Matters

Physical training is considered part of a fire fighter’s job. Therefore injuries sustained during training are compensable provided that the injury is an “ACCIDENTAL INJURY arising out of the course of employment” (Labor & Employ. Art. Md. Ann. Code) “An accidental injury” (and thus a compensable injury) has been interpreted by the courts to mean any injury which occurs at work or is related to work. It includes such things as slips, falls, or burns. This standard of compensability applies not only to injuries sustained at the fire grounds but also traveling to or from a fire, at the fire, being detailed to stations and checking one’s mail at the station, as well as injuries sustained during physical training.

Documenting The Injury

One should always include in the First Report of Injury, Supervisory Report, and in any history given to a doctor any details about the injury. This will prevent problems from arising and decrease the likeliness of the Employer contesting the claim.

Advice for the Apprehensive Injured Worker

Thursday, September 22, 2016

By Charles Schultz, Esq.

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

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 you must understand what rights you may be giving up if you don’t file a workers’ compensation claim. Often times you may be giving up more by deciding not to file a claim than you would be even in the worst case scenario for employer retaliation – termination. (It should be noted that 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). Those who have been lucky enough to avoid the workers’ compensation process understandably may have little to no knowledge of what benefits may be available to them through Maryland’s workers’ compensation laws. The following paragraphs will detail the rights potentially available to injured workers in Maryland who are successful in filing their workers’ compensation claim. (As a quick aside, it is of utmost importance to understand that filling out a report of injury for your employer is NOT filing a claim with the Maryland Workers’ Compensation Commission. If a claim is not properly filed you may be forfeiting your rights. It is important to consult legal counsel to ensure proper filing).

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. 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 – and doing so without tapping into your personally accrued leave time. This benefit becomes especially important if you are separated from your employment. This is because the payment of workers’ compensation leave benefits that you are entitled to while you are unable to work as a result of your work injury has no correlation to your employment itself. Whether you are still employed or have been separated from employment, you are still entitled to compensation if you cannot do your job and your doctor agrees that you must be out of work.

Compensation for time out of work is important – everyone has bills to pay – and the money received for lost time from work can help to make sure you don’t fall behind while you work to get back on the job. However, the best benefit in Maryland’s workers’ compensation law is the payment of medical treatment necessitated by your work injury. Maryland is unique in that you have the right, as an injured worker, 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 accepted, however, there are no guarantees your employer or their insurer will authorize the treatment you wish to have – yet another good reason to consult with a legal professional). If you fail to file a claim with the Workers’ Compensation Commission, often times the insurance adjuster will take longer to authorize treatment as there is no real motivation to do so. Further, if the insurance company decides to deny your treatment you will have no means to force them to pay for the treatment your doctor is recommending. This leaves you with the responsibility of convincing your own insurance company to pay for your treatment, or worse yet, paying for your treatment out of pocket. By successfully filing a claim, you’re guaranteeing at least the right to fight for your employer to pay for the treatment you need to get you better and back to work.

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.

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 an income, or worse yet be forced to suffer from a life altering disability without receiving any assistance from your employer and their insurer 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.

Charles Schultz, Esq.
1301 York Road, Suite 600
Lutherville, MD 21093
(410) 769-5400
www.bermandarby.com

The First Week After Your Maryland Workers’ Compensation Injury

Monday, September 19, 2016

By Clifford Sobin, Esq.

 

What you do during the first week after being injured on the job will set the tone for the rest of your claim. It is the most important time. You must:

  • Report the injury to your employer.
  • Get medical treatment as soon as possible. Don't let several days pass.
  • Give an accurate history of the injury to your medical provider.
  • Don't speak to the insurance company unless you are sure you are not going to get an attorney (a decision that almost always is a bad one).
  • If you want an attorney, choose one who will guide you, educate you, and that you trust. If the conversation is only about money, consider choosing another attorney.
  • File a Workers' Compensation claim.
  • Choose a doctor for follow up care and obtain authorization to go.
  • Decide if you are going to speak to a nurse assigned by the insurance company to your case.

If you make the wrong decisions, you might make it difficult to win your case. The insurance company may deny your claim. What you say or do in the first days after you are injured matters once you are in front of a Commissioner. Even if the insurance company pays benefits in the beginning, when the inevitable disagreement with the insurance company occurs, you will not be in a position to obtain a speedy hearing in front of the Workers' Compensation Commission if a claim was not previously filed appropriately.

What You Do Matters

You should report your injury to your employer immediately after it occurs and at worst not later than the next day. Never wait until Monday to report an injury that occurred on Friday. If your injury was not witnessed by anybody else, you risk it will be assumed you hurt yourself over the weekend and are now lying.

Always get prompt medical treatment and tell the doctor what happened. If for some reason you did not report the injury to your employer but told the emergency room you were injured on the job earlier that day that will usually be enough to win your case if the insurance company contests it. Furthermore, by getting the treatment immediately:

  • You get the care you need when you need it.
  • You protect yourself from the insurer arguing you had a new injury between your job related injury and the medical treatment you are now receiving.

You should not speak to the insurance company without having hiring, or at least meeting with, an attorney. Workers' compensation is an extremely complex area of law. The insurance adjuster is experienced in finding reasons not to accept a claim. You are not experienced with dealing with insurance adjusters looking for reasons not to pay you. Your desire to be helpful to the adjuster may be hurtful to you. Instead, you should have an attorney control all communications with the insurer.

You should also have the assistance of an attorney when your Workers' Compensation claim form is filed. It matters what is written on the form. It matters even more if you have not reported all the details of your injury to the employer or if your doctor did not write down the correct history of the injury you provided. The average weekly wage you write in the claim form matters as well. It is up to the insurance company to dispute whatever you claim. If you state too low a number because you are not clear on the law, will the insurance company correct it? You already know the answer to that.

Your choice of medical provider can have a significant impact on the future of your claim. Some doctors are better than others. Some injuries require specific medical specialties. Your attorney can guide you through this unfamiliar territory.

Frequently, insurance companies assign nurses to manage the medical aspects of compensation claims. They will attempt to contact you, your doctor and be present at your medical appointments. They are often beneficial in catastrophic cases. However, the value of having them versus the risk they present is an issue, especially with less severe injuries. The insurance company will obtain information through their involvement that they may otherwise never know. Also, nurses often pressure health care providers to do things that you might not welcome. That is why most attorneys place stringent ground rules on their involvement. Furthermore, experienced attorneys have a much greater sense of which nurses can be trusted and which nurses cannot. You should never speak to one without the assistance of counsel.

The bottom line is that the first week after an injury is the scariest and most dangerous time for you. The injury is scary because of the pain it is causing you and your fears of how it will impact your future. It is also dangerous because your actions, non-actions, statements, and non-statements may haunt you throughout the rest of your claim.

Medical Treatment Rights Under Maryland Workers’ Compensation Law For Out Of State Treatment

Monday, September 19, 2016

By Clifford B. Sobin, Esq.

 

Last month I discussed medical treatment rights stemming from a compensable Maryland Workers’ Compensation claim. Since medical costs are controlled by the Maryland Workers’ Compensation system, you never have to pay anything for treatment required for injuries sustained as part of your compensable claim – with one catch – the treatment must be in Maryland.

Medical bills of health care providers who provide treatment outside of Maryland are not controlled by the Maryland Workers’ Compensation system. Therefore, in those circumstances you may have to pay a portion of the costs for treatment you need for injuries sustained as part of your compensable claim. The amount you will pay is the difference between what the medical provider charges and the amount the Maryland fee schedule requires employer/insurers to pay.

What should you do?

Most of the time obtaining treatment is not a problem. Since many Workers’ Compensation systems have fee schedules, as does Medicare and private insurance plans, health care providers will often agree to reduce their charge to the Maryland fee schedule rate.

However, you must ask before the treatment starts, not after the bill arrives! Otherwise it may be too late.

It has been my experience, with few exceptions, that out of state health care providers accept the fee schedule. When they refuse, it has also been my experience that the Maryland Workers’ Compensation Commission will not order the employer/insurer to pay more than the fee schedule unless the treatment required is unavailable in Maryland and is clearly required by the claimant this does not mean a new speculative procedure not yet approved in the United States).

An additional problem is presented when an injured worker receives medical treatment outside the Unites States. This is because it is the injured worker’s responsibility to provide employer/insurers all medical reports and bills. The bills must be coded in a certain manner and the reports must be in English. The burden to provide documentation is not an insurmountable stumbling block, but it is a frustrating one that often causes extensive delays when the treatment is not in the United States.

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.

 

 

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