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Workers' Compensation Blog

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

Average Weekly Wage Determinations After Stine v. Montgomery County, MD and Richard Beavers Construction, Inc. v. Wagstaff

Tuesday, April 30, 2019

In the vast majority of workers' compensation claims, the issue of Average Weekly Wage is not contested or litigated and, often, the employer/insurer's counsel does not even submit a wage statement as part of their exhibit packet. In most cases this is not a problem; however, in some situations it can mean the difference of thousands of dollars in indemnity benefits to your client. Blind reliance on the Employer/Insurer's fourteen (14) week wage statement can result in injustices for injured workers. For this reason, it is important to know what tools we, as claimant's attorneys, have at our disposal to ensure a proper and fair calculation of a client's Average Weekly Wage. Two recent 2018 cases from the Court of Special Appeals highlight these opportunities: Richard Beavers Construction, Inc. v. Wagstaff, 236 Md.App. 1 (2018) and Stine v. Montgomery County, MD, 237 Md.App. 374 (2018).

The Basics: L&E 9-602(a) and COMAR 14.09.03.06

Before delving into Wagstaff and Stine, let us briefly review the language from the Workers' Compensation Act dealing with Average Weekly Wage. Md. Code Ann., Lab. & Empl. Sec. 9-602(a) states:

  1. Except as otherwise provided in this section, the average weekly wage of a covered employee shall be computed by determining the average of the weekly wages of the covered employee:

    • (i) when the covered employee is working full time; and
    • (ii) at the time of:
      1. the accidental personal injury; or
      2. the last injurious exposure of the covered employee to the hazards of an occupational disease.
  2. For purposes of a computation under paragraph (1) of this subsection, wages shall include:

    • (i) tips; and
    • (ii) the reasonable value of housing, lodging, meals, rent, and other similar advantages that the covered employee received from the employer.
  3. If a covered employee establishes that, because of the age and experience of the covered employee at the time of the accidental personal injury or last injurious exposure to the hazards of the occupational disease, the wages of the covered employee could be expected to increase under normal circumstances, the expected increase may be taken into account when computing the average weekly wage of the covered employee under paragraph (1) of this subsection.

Pursuant to its regulatory powers, the Workers' Compensation Commission (hereinafter "the Commission") enacted COMAR 14.09.03.06 in order to streamline the process of determining the Average Weekly Wage for a claim. This regulation has resulted in the "Fourteen (14) Week Wage Statement" that all workers' compensation practitioners have become familiar with. However, it is important to note (and is of particular relevance to the Court of Special Appeals' decision in Stine) that this regulation only places a requirement on the employer/insurer to file the wage statement "as soon as practicable". It does not create any sort of presumption and definitely does not limit the Commission's discretion under the statute to find a different Average Weekly Wage than proffered by the Employer/Insurer. COMAR 14.09.03.06 states, in pertinent part:

  • A. Preliminary Determination. For the purpose of making an initial award of compensation before a hearing in the matter, the Commission shall determine the claimant's average weekly wage from gross wages, including overtime, reported by the claimant on the employee's claim form.
  • B. Filing of Wage Statement. As soon as practicable, the employer/insurer shall file a wage statement containing the following information:
    1. The average wage earned by the claimant during the 14 weeks before the accident, excluding the time between the end of the last pay period and the date of injury, provided that periods of involuntary layoff or involuntary authorized absences are not included in the 14 weeks;
    2. Those weeks the claimant actually worked during the 14 weeks before the accident;
  • Determination at First Hearing.
    1. Calculation of the average weekly wage shall be adjudicated and determined at the first hearing before the Commission.
    2. All parties shall be prepared to produce evidence from which the Commission can determine an accurate average weekly wage at the first hearing.

As gleaned by Subsection A and C (2), as well as appellate case law, this regulation in no way binds the Commission to utilize only the employer/insurer's fourteen (14) week wage statement. Although the Employer/Insurer will often argue that calculation of AWW using only the fourteen (14) weeks is mandatory, the language of the statute, as well as the Regulation itself, suggests otherwise. Moreover, a regulation cannot be read to conflict with, let alone override a statute - (e.g. see Dep't. of Soc. Servs. v. Russell, 159 Md. App. 594, 611 (2004) wherein the Court of Special Appeals stated: "[w]here the language of a statute differs from relevant language in a departmental regulation, the statutory language must control." (emphasis added). For these reasons alone, the fourteen (14) week wage statement provision in the COMAR Regulations does not bind the parties or the Commission to a particular average weekly wage.

The language of COMAR 14.09.03.06 has the potential to lead to confusion as is evident by the Circuit Court's original decision in Stine. For example, the Circuit Court found, after reviewing this same COMAR provision, that "there's only one way to determine it; it is you look at the 14 weeks before the accident, and then it talks about a couple other things, but that's where I believe that the COMAR and the Commission was restricted to find." As set out below, this mistaken interpretation was reversed by the Court of Special Appeals.

The Facts - Stine

On March 26, 2016, Mr. Stine, who was a volunteer emergency medical technician (EMT) for Montgomery County, MD fell while stepping off of his assigned ambulance and injured his right foot and ankle. He was transported to the Emergency Department where he was diagnosed with a fracture, was splinted, and subsequently discharged. He underwent surgery on the ankle approximately a month later and was out of work for a couple months.

As a volunteer for a "fire or rescue company," Mr. Stine's Average Weekly Wage was governed by Lab. & Employ. Art. 9-602(g) , which directs the Commission to look to his wages earned by "other employment." In addition to volunteering as an EMT for the County, Mr. Stine worked part-time for LifeStar Response as a private EMT during the school year (he was also a college student) and full-time during his summer breaks. Consequently, for the purposes of Sec. 9-602(g), his LifeStar wages counted as the wages earned from "other employment".

Sec. 9-602(g) states: "(g)(1) Subject to paragraph (2) of this subsection, for the purpose of computing the average weekly wage of an individual who is a covered employee under § 9-234 of this title, the wages of the covered employee shall be:

  • (i) for a covered employee who received a salary or wages from other employment at the time of the accidental personal injury or last injurious exposure, the salary or wages from the other employment; or
  • (ii) for a covered employee who did not receive a salary or wages from other employment at the time of the accidental personal injury or last injurious exposure:
    1. if the covered employee derived income from a source other than salary or wages at the time of the accidental personal injury or last injurious exposure, an amount that allows the maximum compensation under this title;
    2. if the covered employee was not engaged in a business enterprise at the time of the accidental personal injury or last injurious exposure, the weekly income last received by the covered employee when engaged in a business enterprise; or
    3. if the covered employee had never been engaged in a business enterprise at the time of the accidental personal injury or last injurious exposure, an amount that allows the minimum compensation under this title."

As previously mentioned, Mr. Stine was also a full-time college student working on a nursing degree, which is why he could only work part-time for LifeStar during the school year. As a result, his weekly wages earned during the school year were less than what he earned during the summer- e.g. his fourteen (14) week earnings prior to the March 26, 2016 were not representative of what he earned over the full year.

After a hearing before the Commission in July 2016 on the issue of Average Weekly Wage, the Commission found Mr. Stine's Average Weekly Wage to be Sixty-Four Dollars and Sixty-Five Cents ($64.65), which was the gross weekly average of the wages earned by Mr. Stine for the fourteen (14) weeks preceding his March 26, 2016 work-injury when he worked only part-time for LifeStar. Mr. Stine thereafter took a de novo appeal to the Circuit Court for Montgomery County to present evidence on two alternative theories: (1) that the Commission should have utilized a fairer fifty-two (52) week time period to determine his average weekly wage based off his yearly earnings rather than just when he was working part-time; or (2) that because of his age and experience, Sec. 9-602(a)(3) allowed for a finding of an Average Weekly Wage consistent with Mr. Stine's anticipated wages since his wages with LifeStar Response were "expected to increase under normal circumstances."

The Circuit Court Proceedings

Mr. Stine requested a de novo petition for judicial review and a jury trial before the Circuit Court for Montgomery County. A de novo review permits a party to present more, less, or the same amount of evidence than was presented before the Commission. See Bd. of Educ. for Montgomery Cty. v. Spradlin, 161 Md. App. 155, 193, 867 A.2d 370, 393 (2005). To this end, Mr. Stine presented two separate and additional types of evidence, each in support of his two alternative theories.

In regards to his first theory -of utilizing the entire fifty-two (52) weeks rather than just the fourteen (14) weeks prior to his injury- Mr. Stine presented evidence of his yearly wages, via his 2015 W-2 Form. It showed his wages earned throughout the year, both when working full-time in the summer months and part-time in the school year. We argued that since he was injured in March, during the school year, his fourteen (14) week average weekly wage was not an accurate representation of his earning capacity at the time of the injury. On the contrary, a broader fifty-two (52) week period would have led to a more accurate calculation of his average wages. Alternatively, if the Court were to account for only his wages when "working full time" during the summer, it would be more in compliance with the explicit language of Sec. 9-602(a)(1).

With regard to his second theory - because of his age and experience his average weekly wage should be what he was expected to earn in the future - Mr. Stine retained a vocational expert. The testimony proffered was what his average weekly wage was "expected to increase" to upon completion of his nursing degree or while working as a full-time EMT, pursuant to Sec. 9-602 (a)(3).

Prior to trial, Montgomery County moved in limine to exclude the vocational expert on the grounds that Sec. 9-602(a)(3) was not applicable as Sec. 9-602(g) exclusively governed this case. The Circuit Court granted this motion. Next, the County moved to strike Mr. Stine's jury demand arguing that the issue of average weekly wage was a legal question alone. The Circuit Court also granted this motion finding that the Commission was "restricted to find" the average weekly wage was only based upon the fourteen (14) week period prescribed in COMAR. In the alternative, the Circuit Court also stated that, even if COMAR permitted other evidence, the Commission did not abuse its discretion in ignoring it. Mr. Stine thereafter took an appeal to the Court of Special Appeals. After the Circuit Court's judgment, but prior to oral argument, the Court of Special Appeals handed down the Wagstaff decision touching upon the same average weekly wage issue.

The Wagstaff Decision

In its Stine decision, the Court of Special Appeals had the opportunity to revisit and expand on its recent decision in Richard Beavers Construction, Inc. v. Wagstaff, 236 Md.App. 1 (2018), which was issued after the Circuit Court's judgment in Stine, but before oral arguments. Both cases involved situations which exemplified why, in some instances, an employer/insurer's wage statement does not result in a just or accurate average weekly wage calculation for an injured worker and why claimant's counsel has to be vigilant in exploring all possibilities.

Wagstaff concerned an injured worker who was injured six weeks into his employment. Although he had been hired to work forty (40) hour week, during the first six weeks of his employment he never worked a full forty hours as inclement weather prevented a full work week. The employer submitted a six-week wage statement which calculated his average weekly wage based upon those six shortened weeks. The claimant countered that his average weekly wage should be based upon what his wages would have been for a full forty (40) hour week for which he was hired to work. The claimant prevailed before the Commission and in the circuit court on summary judgment.

The employer/insurer thereafter appealed to the Court of Special Appeals arguing that both the Commission and the circuit court erred in ignoring, what the employer/insurer believed to be, the "plain reading" of Labor & Employ. Sec. 9-602(a)(1) and COMAR 14.09.03.06. In their incorrect reading, the employer/insurer argued that the average weekly wage could only be determined based upon "wages actually earned." The Wagstaff Court stoutly refused to go along with the employer/insurer's interpretation and, in refuting this analysis, highlighted the benevolent purposes of the Workers' Compensation Act:

"Little imagination is needed to think of scenarios in which an inflexible requirement tying an injured employee's compensation to pre-accident earnings would subvert the goal of compensating employees for lost earning capacity. Suppose that, immediately after an employee's first day of full-time work, an event such as a natural or manmade disaster shut down the place of employment for a few weeks, in which the new employee received no pay; then, immediately upon the employee's return, the employee became disabled in a workplace injury. In such a scenario, an average of actual earnings during the weeks before the injury would not accurately represent what the employee normally would earn from that employer under the contract that was existing at the time of the injury. This unfortunate employee would certainly suffer financial hardship if the employee's compensation were strictly computed by dividing the actual gross earnings by the number of weeks since being hired. In many situations involving recently-hired employees, the rule proposed by RBCI and its insurer would violate the principle that the Act should be construed "to afford substantial, and not merely nominal, relief[.]" Merrill v. State Military Dep't, 152 Md. at 478, 136 A. 897."
Wagstaff, 236 Md. App. 1, 20, 180 A.3d 211, 222–23 (2018)

As a result, the Court held that, in determining a claimant's average weekly wage, the Commission is not confined to only using the actual wages of the injured worker during the weeks preceding the date of injury, but may look to what the claimant would have earned during those same weeks if not for circumstances outside the worker's control such as weather or sickness. Put simply, the employer/insurer's wage statement is not the final word on the average weekly wage of a claim. The Wagstaff opinion reminds us that the employer/insurer's wage statement is just one in several pieces of evidence that may be presented to the Commission and by no means establishes any sort of "presumption." To this point, the Stine Court not only highlighted, but further enhanced this principle.

The Stine Decision

The Stine Court split its opinion by reversing the Circuit Court on its flawed interpretation of the COMAR fourteen (14) week "rule" and remanding the case back for a jury trial (thereby reaffirming that average weekly wage is a factual issue ripe for submission to a jury which the claimant properly requested). This last point has possible implications for de novo requests for jury trials, discussed further below. Despite ruling in favor of the claimant on this issue, the Stine Court also, however, affirmed the Circuit Court's exclusion of Mr. Stine's vocational expert stating that, at least here, Sec. 9-602(a)(3) was not applicable.

First, the Stine Court found that the Circuit Court erred by denying Mr. Stine's request for a jury trial. Once again, on appeal to the Circuit Court, the Claimant had requested a de novo judicial review and jury trial. In addition to his vocational expert, Mr. Stine sought to present his fifty-two (52) week W-2 form as more reliable evidence of his average weekly wage to a jury. As mentioned above, parties on appeal from the Commission may introduce more, less, or the same evidence than at the underlying Commission hearing. By striking his jury trial demand and finding that the issue of the time period used to calculate an average weekly wage (ie. fourteen (14) weeks versus fifty-two (52) weeks) was a legal determination, the Circuit Court denied Mr. Stine the opportunity to do that. The Court of Special Appeals appropriately found this to be a mistake and appropriately reversed this judgment:

"First, we disagree that COMAR 14.09.03.06 compelled the Commission to calculate the average weekly wage from a fourteen-week sample. As we recently clarified in Wagstaff (which was decided after the circuit court's decision), that regulation "does not purport to restrict the Commission in any manner from utilizing a different time period [than fourteen weeks] if the Commission deems it appropriate to do so." 236 Md. App. at 24–25, 180 A.3d 211 (quoting Gross v. Sessinghause & Ostergaard, Inc., 331 Md. 37, 50, 626 A.2d 55 (1993) ). And indeed, the regulation contains nothing requiring the fourteen-week time period in all cases… the regulation does not restrict the determination of average weekly wage to that time period, and allows the Commission to consider other evidence in setting the average weekly wage at a hearing, if one is held. COMAR 14.09.03.06(C); see Wagstaff, 236 Md. App. at 24–25, 180 A.3d 211. (emphasis added)"
Stine v. Montgomery Cty., 237 Md. App. 374, 386–87, 185 A.3d 826, 833–34 (2018).

Moreover, the Court found that this issue is factual in nature and so the Claimant's request for a jury trial must be honored. As such, the issue of whether the fourteen (14) weeks or the fifty-two (52) week periods should be used as a basis for his average weekly wage was remanded back to a jury trial. In a statement that has implications far beyond just the average weekly wage issue, the Stine Court stated:

"Mr. Stine had filed his petition for judicial reviews, then a request for a jury trial, which transformed the procedural posture of the case to an essential trial de novo, which means the Commission's decision was not subject to review by the circuit court."
Id at 388, 835.

With regards to the Court affirming the Circuit Court's decision to exclude Mr. Stine's vocational expert, the Court held that because Mr. Stine, as a volunteer EMT, fell under Sec. 9-602(g), a special subsection applicable only to volunteer fire fighters, EMTS and paramedics, and this subsection "does not contain any language referring back to the computation method or principles outlined in (a)." Consequently, Mr. Stine's evidence (i.e. expert testimony) that his wages were "expected to increase" due to his anticipated nursing degree and hands-on work experience as an EMT for both LifeStar Response and Montgomery County were not applicable under these circumstances. Importantly, the Court did not indicate that this testimony would not otherwise be relevant if this case had not fallen under subsection (g)'s narrow application to volunteer EMTs. In other words, this opinion does not preclude another claimant from utilizing similar vocational expert evidence under subsection (a)(3).

Conclusion: The Implications of the Stine and Wagstaff Decisions

The most important takeaways from Stine and Wagstaff involve the ability of the Commission to consider any and all kinds of evidence relevant to the issue of average weekly wage. It is not bound to the fourteen (14) week wage statement. The Employer's Wage Statement is just one piece of evidence among many that might be presented. Moreover, even when utilizing the wage statement, it might not accurately represent the claimant's earning capacity if it does not account for days missed due to inclement weather, illness or other situations which preclude an employee firm working full time. Beyond that, the Commission can utilize other time periods, such as a fifty-two (52) week period represented by a tax return or W-2 Form, in determining a more reliable and fair average weekly wage.

The Stine opinion also illuminates one more important principle that goes beyond just the average weekly wage issue and covers any de novo workers' compensation appeal. Put simply, where a party requests a de novo judicial review and a jury trial on any disputed factual issue, the circuit court must proceed with a jury trial on that factual issue.

If you have any questions or require assistance with your work-related injury or illness, please do not hesitate, contact Matthew Engler, Esq. today at 301-740-3322 or mengler@bsgfdlaw.com.

Advice for the Apprehensive Injured Worker

Wednesday, September 05, 2018

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

While it is understandable, and in certain circumstances a very real concern that an employer may retaliate against an injured worker after a claim is filed, if you are injured on the job it is important to understand what rights you may be giving up if you let your concerns influence you to not file a workers’ compensation claim. You may be giving up more by deciding not to file a claim than you would even in the worst case scenario for employer retaliation: termination. (Maryland is an “at-will” employment state, meaning an employer can fire an employee for any non-illegal reason. However it is against Maryland law to fire an employee for filing a workers’ compensation claim).

By failing to file a claim you may be giving up compensation at 2/3s of your pre-taxed wages for the period of time you are unable to work while you recover from your work injury. For municipal workers, this benefit can often be paid at 100% of your wages. Often times this means exhausting your hard earned personal, vacation and/or sick leave when your employer or its insurer is the legally responsible for paying your wages for each day missed. This benefit becomes especially important if you are separated from your employment. Whether you are separated from employment or not, you are still entitled to compensation if you cannot do your job and your doctor agrees that you must be out of work.

Perhaps most importantly, Maryland law requires the Employer/Insurer to pay for all of medical treatment necessitated by your work injury. Maryland is unique in that you have the right to seek treatment with a doctor of your choice. And most important of all, there is no time limitation on your ability to seek treatment as a result of a work injury. (The right to fight for treatment never expires once a claim has been timely filed and accepted, however, there are no guarantees your employer or their insurer will authorize the treatment you wish to have – a good reason to consult with a legal professional). If you fail to timely file a claim with the Workers’ Compensation Commission, often times the insurance adjuster will take longer to authorize treatment or refuse to authorize your care altogether as there is no real motivation to do so. By successfully filing a claim, you’re guaranteeing at least the right to fight for your employer to pay for your lifetime medical care.

Compensation for permanent disability is the last main benefit available to those who are successful in filing a workers’ compensation claim. Often times the money received for an individual’s permanent disability does not truly compensate him/her for the affect their injury has had on their life - especially with more serious injuries. However, some compensation is certainly better than receiving no compensation at all. By failing to file a claim, you forgo this right altogether. Some other important benefits to filing a claim are medical mileage reimbursement, vocational rehabilitation and temporary partial disability – to name a few.

You work hard at your job every day, giving up precious time with your family to help further your companies’ goals. If you get hurt while on the job you owe it to yourself to protect both you and your family by filing a claim. You should not have to pay out of your own pocket for medical treatment, struggle to make your bills because you are incapable of earning wages, or worse yet be forced to suffer from a life altering disability without receiving any assistance to get you back on your feet.

So if you get hurt on the job – protect yourself and your family by filing your claim. And if you’re concerned about the potential repercussions of doing so, consult with legal counsel to make sure you understand not just what problems may arise if you do file your claim, but what problems may arise if you don’t.

Call attorney Charles Schultz, Esq. today at 410-769-5400.

Workers’ Compensation Claims Process - How long does it take to get a hearing and what is a “consideration date?

Friday, July 14, 2017

One of the most common questions I receive from clients concerns how long it takes to get a hearing before the Maryland Workers’ Compensation Commission. As with any court or judicial body, the Commission sets its own schedule and the claimants and attorneys appearing before it are subject to that schedule. Generally speaking, however, it is a safe assumption that your hearing will be scheduled within three to four months from the date you file your claim or request a hearing. This can vary based on your hearing venue. For example, hearings are scheduled much quicker in Baltimore or Beltsville (the hearing sites with a higher volume and where hearings are held more frequently), than in La Vale or Cambridge (where hearings are held less frequently based on a lesser volume).

What is the “Consideration Date?”

The claim process begins when you file an “Employee Claim Form” with the Commission. This document asks you basic demographic and injury-specific questions. Once this is submitted, the Commission will send a Notice of Claim to your employer and your employer’s workers’ compensation insurance carrier, referred to as the insurer. On the bottom-right of this Notice of Claim, you will find a “Consideration Date,” which is typically about a month from the date your original Employee Claim Form was filed. Your employer and insurer have until this date to either accept or contest your claim. If they contest the claim, they will file Contesting Issues with the Commission and you will have to wait for a hearing to present the evidence of your work-related injury or illness. You cannot request a hearing on your own behalf until after the “consideration date,” has passed. That’s why it is so important to file your claim as soon as possible.

My Employer and Insurer filed Contesting Issues; what next?

When your employer and insurer file Contesting Issues, they are, in effect, opposing the claim until the Commission can hold a hearing to determine the validity of your claim. As stated above, this will typically be scheduled anywhere between three to four months from the date your claim is initially filed. At this first hearing, you will be called upon to testify and present evidence of your work-related injury or illness, including medical records supporting your claim. After the hearing, the Commissioner will decide whether or not your injury or illness is covered by the workers’ compensation laws of Maryland. However, up until that time, you will not be able to recover any workers’ compensation benefits such as temporary total disability. You may or may not receive medical coverage. For this reason, it is all the more urgent that you consult with an attorney to determine your options and to prepare for this hearing.

How can my hearing be scheduled on an emergency basis?

In some circumstances, you can request the Commission to schedule your hearing sooner based on an “emergency” situation. For example, if you are unable to work on account of your injury or illness and have received collection notices on past-due bills or if you require emergency medical treatment, then the Commission may schedule your hearing sooner, within a matter of weeks rather than months. However, you must submit documents to support the urgency and these requests are not always granted.

If you have any questions or require assistance with your work-related injury or illness, please do not hesitate, contact Matthew Engler, Esq. today at 301-740-3322 or mengler@bsgfdlaw.com.

Workers’ Compensation and FMLA

Tuesday, June 27, 2017

If you find yourself injured on the job, and are required to miss work while you recover, you may be concerned about whether your job will still be waiting for you when you are able to return. Certain employees have federal protections available to them, in addition to their workers’ compensation benefits, which they may not be aware of.

What is FMLA?

Employees who suffer work related accidents may be covered under the Maryland Workers’ Compensation Act. In addition those same employees, who sustain what is known as a “serious health condition”, are entitled to federal protections under the Family Medical Leave Act, or FMLA. The most important safeguards available to injured workers require that employers provide twelve (12) weeks of job-protected unpaid leave and continue to provide group health benefits during that twelve (12) week period. Put another way, FMLA holds your job open for twelve (12) weeks, if you are injured on the job and qualify for FMLA.

How Do I Know if I Qualify for FMLA?

If you work for a private employer who has at least fifty (50) employees, a federal, state ,or local government, or an elementary or secondary school (regardless of the number of employees), you are eligible for FMLA in addition to workers’ compensation benefits as long as you suffer a “serious health condition” in the course of your employment.

If you do work for a covered employer, you must have worked for that employer for at least twelve (12) months in order to qualify for job protection through FMLA, even if that work is seasonal.

A “serious health condition” includes a work injury where (1) you required an overnight stay in a hospital or medical facility; or (2) you were off work for more than three days and required ongoing medical treatment (such as multiple doctors’ appointments and/or follow up care).

What is the Difference Between FMLA and Workers’ Compensation?

Pay: Workers’ Compensation entitles you to payment of temporary total or partial disability benefits while you are off work and the payment of all reasonable treatment for your compensable work related injury. FMLA, however, is unpaid leave, which ensures that, as long as you return to work within the twelve (12) week period, you are entitled to return to the same or equivalent job. So, if you suffer a “serious health condition” on the job you may be entitled to payment through workers’ compensation, while your job is held open by FMLA.

Medical Expenses and Health Insurance: FMLA requires that covered employers continue to pay health insurance as if you were still working. However, this does not include the medical expenses that you incur as a result of your work related accident. This is not usually a concern since Workers’ Compensation gives you the lifetime right to request payment of any medical treatment which is reasonable, necessary, and related to the on the job accident. In other words, if you injure your knee on the job and require a knee replacement surgery as a result of that accident, you have the right to request that the medical expenses and recovery from that surgery be paid for under Workers’ Compensation. If you catch a cold while out of work for that knee replacement surgery during the twelve (12) week FMLA period, you will still be able to see your primary care physician under your employer provided health insurance and the job will be held open for you.

Navigating how Workers’ Compensation interacts with the Family Medical Leave Act can be complicated. In addition, workers may not realize the rights that they have under the Maryland Workers’ Compensation Act and Federal FMLA. If you are injured on the job and require an extended leave of absence to recover from your injury, please contact Natalie Whittingham.

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

Friday, September 23, 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.

Can Teachers Collect Leave Benefits During Summer Break?

Friday, September 23, 2016

The days are now long, morning frost is a thing of the past, and thousands of Maryland’s educators’ are enjoying their summer breaks. What better way to kick off this year’s few months of relaxation (or switching gears for that summer job) than to brush up on your workers’ compensation knowledge?

Workers' Comp Benefits and Summer Break

This time of year, I always hear from a number of my teacher clients who are wondering how the summer break will affect their workers’ compensation benefits. Generally speaking, under the Workers’ Compensation Act, Maryland workers are entitled to 2/3s of their wages (known legally as temporary total disability or “TTD”) during the recovery period after an injury when they are incapable of working. (Most boards of education offer a 100% wage benefit to their employees for a specified time period. This issue and its implications on workers’ compensation benefits will be discussed in greater detail in a future blog).

Boards of Education however, will often refuse payment of TTD during our educators’ summer vacation - making the argument that the injured teacher is a 10 month employee and would not be paid during the summer months if they had not been injured at work.
The law in Maryland, however, makes clear that the having an actual intention to work or the opportunity to work for that matter, is not a requirement to collect TTD. Maryland’s test is loss of earning capacity, or the inability to work, regardless of whether there would be actual wage loss. Maryland’s highest court has held that both retired workers – who may never work again (no intention of working), and incarcerated employees (no opportunity to work), are both entitled to payment of TTD during the period they would be physically unable to perform their job duties.

In short – teachers are entitled to TTD over the summer if they are still recovering from a work injury and can’t physically perform their job duties, regardless of whether or not there are any job duties available to perform.

Pay Plans and Benefit Coverage

Another important factor to consider under these circumstances is whether an individual takes a 10 month pay or chooses to spread out their pay over 12 months. Boards of Education will often argue that if a teacher is compensated on the 12 month plan, they should not be entitled to TTD benefits during summer because they are already being paid and would then be “double dipping”. However, this could not be further from the truth. Even if the pay is spread over 12 months, teachers are still only being paid for 10 months of work and accordingly, are still entitled to summer TTD. Deferring earned income does not preclude TTD benefits during the summer months.

Bring on the heat.

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