Introduction to Workers Compensation. Bar Association of Montgomery County Workers Compensation Section. March 12, 2015

Transcription

1 Introduction to Workers Compensation Bar Association of Montgomery County Workers Compensation Section March 12, 2015 Presented by: Will Inman, Section Co-Chair Meiselman, Salzer, Inman & Kaminow, P.C Jeff Stickle, Section Co-Chair Office of the County Attorney, Montgomery County Ken Berman Berman, Sobin, Gross, Feldman & Darby LLP Perry Choren Berman, Sobin, Gross, Feldman & Darby LLP Wendy Karpel Office of the County Attorney, Montgomery County

2 I. An overview of Workers Compensation in Maryland. A. The Purposes of the Act. The Workers Compensation Act in Maryland is codified at Md. Code, Labor & Employment et seq. The Commission further has the power to promulgate regulations, found at COMAR Chapter 14, Subtitle 09. It was enacted in 1914 to provide relief to injured workers in hazardous occupations who previously were barred from recovery by statutory defenses to negligence or otherwise. The Act provides certain compensation benefits to workers who suffered injuries or illnesses arising out of and in the course of their employment regardless of fault. Benefits include disability benefits, medical expenses, vocational rehabilitation, death benefits, and compensation for permanent disability resulting from the accident. The Act is a remedial one and in order to enact its benevolent purposes, it is to be liberally construed in favor of the Claimant. The Act protects employees from retaliation, including discharge, as a result of filing a claim. Employers are required under the Act to carry workers compensation insurance, ensuring that injured workers will receive their benefits. The Act also establishes the Uninsured Employers Fund to protect employees of uninsured employers. The Act also benefits employers by providing some certainty by limiting their exposure, in that all benefits are derived from specific listed schedules. Additionally, employers benefit by being granted tort immunity for workplace accidents. Workers compensation is the exclusive remedy against an employer for on the job accidents in Maryland. LE Beyond the employer and insurer, the public derives a benefit from the Act in that the burden for caring for disabled workers is borne by employers and their insurers, not the taxpayers. B. The Role of the Commission. The Workers Compensation Commission is an independent state agency consisting of a Chairman and 9 Commissioners. They are appointed by the Governor with consent of the Senate to 12 year terms.

3 The commission is not affiliated with any employer or insurance company and acts independently and impartially. The powers granted to the Commission include: o Conducting a full, fair, and impartial hearing; o Taking action to avoid unnecessary delay in the disposition of the proceedings; o Maintaining order; o Administering oaths and affirmations; o Issuing subpoenas for witnesses and the production of evidence; o Ruling upon offers of proof and receive relevant and material evidence; o Considering and ruling upon motions and requests; o Examining witnesses and calling witnesses as necessary to ensure a full and complete record; o Limiting repetitious testimony and reasonably limiting the time for presentations; o Granting a continuance of a hearing; o Issuing orders as are necessary to secure procedural simplicity and administrative fairness and to eliminate unjustifiable expense and delay; o Conducting the hearing in a manner suited to ascertain the facts and safeguard the rights of the parties to the hearing; and o Imposing appropriate sanctions for the failure to abide by this chapter or any lawful order of the Commissioner. (COMAR ) The Commission s interpretation of statute is given considerable weight. When a dispute arises, the Commission conducts hearings where testimony is taken and evidence presented, and then issues written decisions.

4 II. Who is covered? A. Jurisdiction. Generally speaking, if an injury occurs in Maryland, jurisdiction is proper in Maryland. LE There is an exception for incidental employees, working in Maryland only intermittently or temporarily and the contract for hire is from another state where insurance coverage exists, where jurisdiction is proper, and the injury is similarly compensable, and where the employee and employer are non-resident to Maryland. Coverage may exist for an injury outside the state if the outside work was incidental and the employee is primarily employed in Maryland, a number of factors will be considered including the amount of time worked in each jurisdiction. No jurisdiction exists for a person who works wholly outside of the state, regardless of their residence, unless they are employed internationally on a contract for employment formed in Maryland. B. Who is a covered employee? An individual, including a minor, is presumed to be a covered employee while in the service of an employer under an express or implied contract of apprenticeship or hire. LE Casual Employees, i.e., those not hired for regular employment, are not covered employees. LE The nature, duration, and frequency of the work will be considered, as well as the relation of the work to the employers business and the terms of the contract itself. Independent contractors are not covered employees if they work independently and free of control and supervision of the employer as to how the work is performed. Undocumented workers are covered by the Act. However, they may be ineligible for certain benefits which would be inherently illegal to provide, such as vocational rehabilitation. Certain occupations are specifically addressed by statute as to under what circumstances the employee will be covered by the Act, see LE thru These include farmers, volunteer firemen, domestic workers, and others.

5 An injured employee of a subcontractor may be protected as a statutory employee of a contractor, even if there is no direct relationship between the employee and the contractor. LE This is important when the subcontractor is uninsured; in this case the contractor takes on the burden of employer and takes on the obligations of the direct employer.

6 III. What is covered by the Act? A. Accidental Injuries. The act provides for compensation for accidental personal injury sustained by the covered employee LE accidental personal injury is defined as an accidental injury that arises out of and in the course of employment; an injury caused by a willful or negligent act of a third person directed against a covered employee in the course of the employment of the covered employee; or a disease or infection that naturally results from an accidental injury that arises out of and in the course of employment, including: an occupational disease; and frostbite or sunstroke caused by a weather condition. LE An employer is liable to provide compensation regardless of fault as to a cause of the accidental personal injury. B. Occupational Diseases. Compensation is to be provided for occupational disease, which is defined as a disease contracted by a covered employee as the result of and in the course of employment; and that causes the covered employee to become temporarily or permanently, partially or totally incapacitated.: LE To be compensable, the Claimant must not only suffer the disease, but a disablement as a result of the disease from performing the work of the covered employee in the last occupation in which the covered employee was injuriously exposed to the hazards of the occupational disease. LE In the case of multiple prior employers, the employer where the last injurious exposure occurred will be the liable employer, even if the disease is as a result of cumulative exposure at prior employments. LE In the case of specifically listed public safety officials (police, firefighters) certain occupational diseases are presumed to be causally related to the occupations and it is the burden of the employer to overcome this presumption. For example, hypertension and heart disease in firefighters and police officers is presumed to be related to their jobs; certain cancers and lung disease are presumed to be related to firefighting. LE

7 C. Occupational Deafness. An employee may be eligible for benefits as a result of loss of hearing (measured at certain frequencies). LE The exposure must be for at least 90 days. D. Hernias. Hernias are compensable if the employee can prove that the hernia is not pre-existing, or that the pre-existing hernia was so aggravated by the work that surgery is required. LE E. Causation. To be compensable, an injury or illness must be causally related to the accident or exposure, or it must be a natural consequence of that injury. Causal relationship must be demonstrated by medical evidence stating a reasonable degree of medical probability. Pre-existing conditions that are aggravated by the accidental injury are compensable, although payment for permanent disability or death arising from that accident or illness may be apportioned between the causally related and pre-existing portions, with the employer only being liable for the causally related portion. LE

8 IV. Notice and Limitations A. Notice Requirements. Notice of the happening of an accident must be given, in writing or orally, to the employer within 10 days of the accidental injury. LE Notice of death arising from accidental injury must be given within 30 days. LE Notice of an occupational disease must be given within 1 year of when the employee knew or should have known that the employee has an occupational disease, or 1 year from death from the occupational disease. LE Failure to give notice in a timely manner will bar the claim. LE & However, this may be waived by affirmative conduct by the employer (for example, payment for benefits for an occupational disease), if the employee has sufficient reason for failure to provide notice, or if the employer was not prejudiced by the delay. LE B. Limitations on Workers Compensation Actions. Claims generally must be filed within 2 years of the injury. LE Limitations on accidental injuries may be tolled by fraud or other actions on the part of the employer which amount to an estoppel. LE Claim for death from accidental injury must be filed within 18 months of death. LE Claims for occupational disease (or death arising from occupational disease) must be filed within 2 years of the disablement, or from the date on which the employee or the dependents of the employee first had actual knowledge that the disablement was caused by the employment. LE In occupational disease claims, limitations may be waived if the employer fails to raise the defense before the Commission makes any award or decision, pays compensation for the disability or death resulting from the occupational disease; or by its affirmative conduct leads the covered employee or other claimant to reasonably believe that the requirement of filing a claim has been waived. LE

9 Limitations may also be tolled by the failure of the employer to file a First Report of Injury if the employer was properly notified and if the accident or illness causes at least 3 days of disability or death. LE & The Commission retains certain continuing powers and jurisdiction over claims following issuance of an award, including the award of additional disability benefits. However, the Commission may not modify an award unless a modification is applied for within 5 years after the latter of the date of the accident, the date of disablement, or the last compensation payment. LE The limitation period on modifications may also be tolled by fraud or actions which amount to an estoppel. LE What constitutes a proper filing of issues is dictated by COMAR.

10 V. When is a claim compensable and when is it not? A. The going and coming rule. Generally, an accident incurred when traveling to or from work is not compensable. The hazards while traveling are no different from those the public generally are exposed to. Multiple exceptions exist, including: o If the employee is on the premises of the employer heading to or going from work, including parking lots; o While traveling on a public space between the employee s designated parking lot and place of employment; o If the employee is faced with a special hazard peculiar to the employment, i.e., the location of the employment; o Where transportation is paid for or provided by the employer; o If the employee was required to bring their vehicle to work; o If the employee was on a special errand for the employer; o If the purpose of the trip served business and personal purposes (the dual purpose doctrine). If the employee on an otherwise compensable business-related trip deviates from the course of employment an accident during that deviation is not compensable. Even if there has been a deviation, once the employee has returned to his expected route or area, the deviation will not be a defense. B. Idiopathic Conditions. An injury arising from an idiopathic condition personal to the employee is not compensable so long as an incident or hazard peculiar to the employment did not increase the risk. C. Lunch and Coffee Breaks. Injuries during lunch and coffee breaks are generally compensable. The benefit to the employer of providing breaks is generally cited in support of this proposition. The going and coming rule will dictate the compensability of off-site breaks, as well as the length of the break, whether the break was set or fixed by contract, whether the break was paid, whether travel was restricted during the break, and whether there was a deviation.

11 D. Horseplay. Horseplay resulting in an injury will generally bar compensation. However, an injury may still be compensable if the deviation caused was minor or if the horseplay had become accepted in that employment. E. Intoxication. An injury caused solely by intoxication or drug use is not compensable. If an injury is primarily caused by intoxication or drug use, but the hazards of employment contributed to the injury, the claim may be compensable but limited solely to medical benefits. F. Willful Misconduct. Willful misconduct by an employee that places the Claimant in a position where he was likely to be injured is a defense to compensability. The standard is much higher than simple contributory negligence by the employee. G. Traveling Employees. An employee injured while traveling on behalf of an employer may be entitled to compensation benefits if injured while participating in reasonably foreseeable activities incidental to that travel, including dining, bathing, and engaging in certain recreation activities. Activities which amount to a substantial deviation from the reasonably and foreseeable incidents of travel may not be compensable. H. Social Events. Social and recreational events sponsored by an employer are generally compensable if the activity is a regular incident of employment, is required as part of an employee s job, or if the employer derives a benefit from the activity.

12 VI. Benefits A. Medical Benefits. A covered employee is entitled to causally related: o medical, surgical, or other attendance or treatment; o hospital and nursing services; o medicine; o crutches and other apparatus; and o artificial arms, feet, hands, and legs and other prosthetic appliances. LE Medical services and treatment are available for the period required by the nature of the accidental personal injury, compensable hernia, or occupational disease, throughout the claimant s lifetime. There is no limitations defense to medical benefits. Certain expenses providing access to necessities or providing therapeutic relief from an injury may be compensable even if they are not inherently medical in nature. Medical benefits are paid pursuant to a Fee Guide set by regulation. COMAR et seq. Neither an employee nor employer are liable for amounts billed in excess of the amount allowed by the Fee Guide. An employer may be penalized for failure to pay for treatment without good cause. LE B. Indemnity Benefits. Benefits are in large part based off of the employee s average weekly wage (AWW), which is generally the average of the employee s gross income for the 14 weeks preceding the accident or disablement from occupational disease. LE Certain specifically enumerated positions or situations (e.g., volunteer firefighters) may result in a different statutorily-specific calculation of the AWW. LE The AWW only incorporated the wages of the employee at the job where the injury took place, even if the employee has multiple jobs. There are four types of indemnity benefit to which an employee may be entitled: Temporary Total Disability, Temporary Partial Disability, Permanent Partial Disability, and Permanent Total Disability.

13 Temporary Total Disability (TTD) (LE to 9-622). o An employee who is totally disabled from work by an injury or illness is entitled to TTD benefits. o TTD is provided to compensate the employee during the recovery period. o Whether or not the employee has actually lost time from work is irrelevant; the question is whether the Claimant was wholly disabled from work. An employee who has been terminated or retired, or even incarcerated, may be entitled to benefits if the injury has rendered them wholly incapacitated. o TTD benefits are payable until the employee returns to work, or reaches maximum medical improvement (MMI). o If an employee is able to return to other work, he is not entitled to TTD benefits as he is not wholly disabled by the injury. o Benefits are paid at a rate of 2/3 the employee s AWW, up to the maximum benefit of 2/3 the State AWW for the year of injury. Temporary Partial Disability (TPD) (LE to 9-615). o An employee who is totally but only partially disabled from work by an injury or illness is entitled to TPD benefits. o This may include an employee who is capable of performing outside work but not the job where the injury took place, or who has been able to return to only light duty or part time work and has suffered a reduction in earnings as a result. o TPD benefits are payable so long as the Claimant has suffered a reduction in earnings as a result of the accident, until MMI is obtained. o TPD benefits are calculated by subtracting the wage earned from the AWW and dividing by two. o Even if an employee is partially incapacitated by an injury, no TPD benefits are available if the wage earned exceeds the AWW. Permanent Partial Disability (PPD) (LE to 9-633). o An employee who is permanently and partially disabled by a compensable injury or illness is entitled to PPD benefits.

14 o The amount of benefits is determined by applying the percentage of permanent partial disability to a body part to maximum compensation that body part is entitled to pursuant to the schedule at LE (See Appendix A). Non-scheduled members are entitled to up to 500 weeks of compensation. For example, a leg is worth up to 300 weeks. If the claimant has a 10% PPD to the leg, he is entitled to 30 weeks of compensation. (300 x 10%= 30) A back is not scheduled, so it is worth up to 500 weeks. If the claimant has a 10% PPD, he is entitled to 50 weeks of compensation. (500 x 10%= 50) o A Claimant s PPD for a non-scheduled member ( other cases ) is determined by measuring the employee s industrial loss, which takes into account the nature of the injury, age, experience, occupation, training, and any wage differential. o The amount payable per week is statutory. Benefits of under 75 weeks ( First Tier ) are payable at a lower rate than those payable for 75 to 250 weeks ( Second Tier ). The compensation rates are set yearly based upon the State AWW. For example, in 2015 the First Tier rate is up to $168 per week, while the 2015 Second Tier rate is up to 2/3 the employees AWW, not to exceed $335 per week. The 2015 Rates sheet is at Appendix B. o Public safety officials are paid the Second Tier rate even when awards are under 75 weeks. o Awards for 250 weeks and over are considered serious disability. These awards will be paid at a rate of 2/3 the employee s AWW, not to exceed 75% of the State AWW, which in 2015 is $754. Additionally, the Claimant will be entitled to an additional 1/3 weeks of compensation. For example, if a Claimant has a 50% PPD to the back, he is entitled to 250 weeks of compensation (500 x 50%= 250). This is then multiplied by an additional 1/3, entitling the Claimant to 333 weeks of compensation. o PPD benefits are not payable concurrently with TTD benefits. The Commission will order them payable following the last day of payment of TTD benefits.

15 o PPD benefits may survive the death of a claimant, but only if the survivor was dependent on the Claimant at the time of the accident or the Claimant was legally obligated to support the survivor. o A claimant may also be entitled to benefits for disfigurement, up to 156 weeks. This is not based upon a schedule. Disfigurement may not be awarded for the same injury as a disablement. o A Claimant who has previously been awarded PPD benefits may request a modification of the award if the condition has worsened, so long as the request is made within 5 years of the last compensation payment. o If a claimant worsens, the new amount due will take a credit of weeks paid and not dollars. This is relevant when the worsening places the Claimant in a new compensation tier. o PPD awards may be apportioned between related and unrelated causes. An employer will not be liable to pay for the portion of a Claimant s PPD resulting from a pre-existing or otherwise unrelated condition. o Occupational deafness is calculated by measuring the db loss in each ear and applying to the formula at LE S Permanent Total Disability (PTD) (LE to 9-641). o An employee who is permanently and totally disabled from work by an injury is entitled to PTD benefits. o A claimant who is permanently and totally disabled is one who is rendered unable to work of any kind in any meaningful and regular capacity as a result of the injury. o The claimant s education, age, experience, and training will be considered when determining whether a claimant is entitled to PTD. o Benefits are payable at 2/3 the claimant s AWW, not to exceed 100% the State AWW. o PTD benefits are available for life or until the Claimant is no longer totally disabled. o Certain injuries result in a presumption of permanent and total disability, for example, loss of both eyes or both arms. C. Death Benefits (LE to 9-690).

16 If a claimant dies as a result of a compensable injury or illness, his dependents may be entitled to death benefits. Partial and total dependents may be entitled to benefits as per the schedule in the Act. Partial and total dependents are entitled to different benefits. Total dependents are entitled to $45,000, then continued benefits so long as they remain wholly dependent. Partial dependents are entitled to up to $75,000. A person s change in dependency status may affect their entitlement to benefits. Dependent children are entitled to benefits only up to a certain age (18, or 23 if enrolled in school). A deceased employee s funeral benefits may also be paid in accordance with LE D. Vocational Rehabilitation. An employee who is unable, as a result of the injury, to perform the work for which they were previously qualified is entitled to vocational rehabilitation ( VR ) benefits. Vocational rehabilitation services are provided with the goal of finding the claimant suitable gainful employment. A vocational rehabilitation plan will be devised in accordance with the following order of preference (the hierarchy ): o Returning the disabled covered employee to the same job with the same employer; o Modifying the same job with the same employer; o Finding a new job with the same employer; o Finding a job with a new employer; o On the job training; o Formally retraining the disabled covered employee for a period of time designed to lead to suitable gainful employment; and o Self-employment. (COMAR ) VR services may encompass a wide array of services including job placement programs, job search assistance, retaining, funding for equipment, and continuing education including vocational or college programs. A claimant receiving VR service is entitled to benefits which are the functional equivalent of TTD while engaged in VR services.

17 VII. Third Party Practice in Workers Compensation Claims A. The Lien. The Employer and Insurer have a lien against any third party recovery for the amounts paid in a workers compensation claim arising from the same incident. B. Who can be sued? Employers, supervisors, and statutory employers are generally immune from suit, with workers compensation benefits being the exclusive remedy. Co-employees may be sued. Unrelated third parties may be sued. B. How do I sue? The employer and insurer have the exclusive right to bring a subrogation action during the two months after the first award of benefits. If no claim is brought by the employer or insurer during this time, the employee may then bring an action against the third party. As a result, the statute of limitations is expanded for the employee by 2 months for the filing of the third party claim. LE If the employer or insurer bring a claim, the claimant is entitled to any amounts recovered in excess of the lien. If the employee brings suit, the employer and insurer have a lien against any amounts recoverable to the extent that compensation benefits were paid, less costs and reasonable attorney s fees. It is the obligation of the employee to distribute recovered funds as required by LE 9-902(e). After distribution of funds as required, the claimant is entitled to the balance. If the claimant has a net recovery in a third party claim after satisfaction of the lien and any other required distribution, the employer and insurer are entitled to a holiday against future workers compensation benefits in that amount.