Michael Freedman, Attorney at Law: Workers Compensation Need to know information

	Home Newsletter Contact Us

V. RULES DETERMINING COMPENSATION

Since certain fact situations arise repeatedly, the Courts have developed "rules" (and, numerous exceptions to these "rules") to be applied deciding these cases.

What if you are going to work?

It is generally held that an injury sustained while the worker is traveling to or from his place of employment is not compensable. The rule was applied to deny compensation to an employee whose injury occurred when he was stepping across the sidewalk in front of the employer's premises, even though he had walked only seven feet from the employer's building line.

However, there are a number of exceptions to this general rule. If the injury takes place before the hour when work begins, but after the worker has arrived on the employer's premises, that injury may be compensable. The premises include the parking lot of the building where the employer's business is located, even though the employer had no ownership interest or right of control over the parking lot, as long as the employees had unrestricted use of the lot and customarily used it. Traveling on public street on direct route between employer's parking lot and the employer's plant, is compensable. If transportation to or from work is furnished or paid for by the employer, the injury is compensable. When an employee, having identifiable time and place limit on his employment, makes an off-premises journey which would not have been made except for the obligation of employment, the journey may be brought within the course of employment. For example, an employee who is "on call" after regular working hours and is injured while called into work, is entitled to compensation under this exception to the going and coming rule.
What about coffee breaks and lunch periods?

Injuries occurring during lunch or coffee breaks on the employer's premises are compensable.
Social and recreational activities?

Injuries during social and recreational activities sponsored by the employer are compensable if:
1. They occur on the premises during a lunch or recreational period as a regular incident of the employment; or
2. The employer, by expressly or impliedly requiring participation.
I have heard that a special exemption exists for hernias.

That is correct. Unlike other injuries, a hernia may be compensable even though it did not result from an accidental injury but merely from a strain arising out of and in the course of employment. However, the claimant must prove:
1. That the hernia did not exist prior to the injury or strain or if it did, that the pre-existing hernia became so strangulated or aggravated that an immediate operation was necessary, and
2. That the injury or strain was reported to the employer within thirty days after its occurrence.

VI. OCCUPATIONAL DISEASES

In addition to accidental personal injuries, the statute covers certain occupational diseases if the worker is disabled from performing work which is reasonably analogous to his last occupation in which he is injuriously exposed or if he dies as a result of the disease.

1. Who pays the claim?

The employer who is liable for payment of compensation is the one in whose employment the worker was last injuriously exposed to hazards that could have been a contributory cause of the disease. The insurance carrier responsible is the one that covered the risk as of that date.

What makes an occupational disease compensable?

A compensable occupational disease is some ailment, disorder, or illness that is the expectable result of working under conditions naturally inherent in and inseparable from the employment, and is usually slow and insidious in its approach.

VII. DEFENSES

What defenses can be raised by the employer?

No compensation is payable for injury or death caused by the willful intention of the injured employee to injure himself or another, by willful misconduct, or solely by intoxication or drug use.

Since contributory negligence is not a defense to a workers' compensation claim, a worker's misconduct must be more than thoughtless, heedless or inadvertent. To defeat the claim the employer must show that the worker intentionally placed himself in a position where he might expect to be injured.

VIII. COMPENSATION BENEFITS

Compensation benefits are based upon various classifications of disability set forth in Art. 101, Section 36. The amount of compensation is calculated differently for each kind of disability.

The benefits payable are those in effect on the date of the accidental injury.

What are "Temporary Total Disability" benefits?
This disability is the healing period during which the worker is wholly disabled and unable by reason of his injury to work.

Compensation for temporary total disability is two-thirds of the worker's average weekly wage not to exceed 100 percent of the average weekly wage of the State of Maryland.

Temporary total benefits are payable until the date when the worker reaches his maximum improvement or the disability becomes permanent.
What is "Permanent Total Disability"?
This kind of disability has been defined as the incapacity to do work of any kind.

Compensation for permanent total disability is two-thirds of the worker's average weekly wage not to exceed 100 percent of the average weekly wage of the State of Maryland.

Benefits are payable for life, unless the workers' conditions improves so that he is no longer totally disabled.
What is "Permanent Partial Disability"?
Permanent partial disability is that which is partial in character but permanent in quality. There is no necessity to establish an actual wage loss in order to recover compensation for permanent partial disability.
How are benefits figured?
Art. 101, Section 36(3) contains a list of certain members of the body and specifies a number of weeks during which compensation is payable for the total loss of that member. The number of weeks in a given case is calculated by multiplying the total number of weeks by the percentage of loss or loss of use of that member which the worker has sustained as a result of his injury.
How do you figure "Average Weekly Wage"?
The Commission generally determines the amount of average weekly wage on the basis of the worker's earnings for the 13 week period immediately preceding the date of injury.
What if I have had a prior injury?
Where the worker's permanent disability or death is due in part to his accidental injury or occupational disease and in part to a pre-existing disease or infirmity, the employer is required to pay compensation only for the portion attributes solely to the accidental injury or occupational disease. The Commission must apportion the amount of permanent disability by determining how much is due to the pre-existing condition.

IX. DEATH BENEFITS

If a worker dies as a result of an accidental injury or occupational disease, the death is a separate compensable event and his dependents are entitled to recover the death benefits set forth in Art. 101 Section 36(7).

How does the Act define "Dependency"?

A dependent is defined as one who relies in whole or in part upon a worker for the reasonable necessities of life.

To support a finding of dependency there must be a showing that the worker provided actual support to the person. A mere legal or moral obligation to support is not sufficient.

Dependents awarded death benefits have included a worker's:

Parents and step-parents.
Posthumous or illegitimate children.
Woman friend who was not his wife.

X. MEDICAL EXPENSES

The employer has an obligation to pay, for the worker's lifetime, all medical, surgical and nursing expenses required by the injury as well as the cost of prosthetic devices.

Amounts Payable.

The Commission publishes a Medical Fee Schedule pursuant to Art. 101, Section 37(c) and (e), which sets limits on the amount an employer must pay for various types of medical and surgical treatment.

XI. VOCATIONAL REHABILITATION

When is this rehabilitation available?

In addition to paying compensation and medical expenses, the employer is required to pay benefits for vocational rehabilitation if the worker is disabled from performing work for which he was previously qualified and if the Commission approves the rehabilitation program.

The obligation of the employer is to return the worker to "suitable gainful employment," which is defined as that which restores him, to the extent possible, to the level of support at the time of the injury, giving consideration to his qualifications, interests, incentives, pre-injury earnings, future earning capacity, the nature and extent of the injury, and the current and future condition of the labor market.

XII. THIRD PARTY CASES

What if the accident occurs on the job but a third party is responsble?
If a person other than the employer is legally liable for the worker's injury or death, the employer, insurance carrier, Subsequent Injury Fund, and/or the worker of his dependents may maintain a tort action for damages against that third person. If damages are recovered, the employer or insurer and the Subsequent Injury Fund are first reimbursed for any benefit paid under the Workers' Compensation Act and the balance is paid to the worker of his dependents.
How do you decide which to pursue?
First of all you can file a Workers Compensation claim and a third party case. You can not, however, recover twice. If the Compensation carrier pays you benefits they are entitled to that money from your third party recovery. Therefore if you settle a third party case or obtain a final verdict before filing your workers' compensation claim, thereby prejudicing the employer's right to sue the third party for subrogation, your workers' compensation claim is barred.

If the employer has already noted his right of subrogation against a third party, the third party may not settle separately with the employee or the employer; all the parties must agree to the settlement.

XIII. NOTICE AND LIMITATIONS

What are the time limitations for filing?
The time limitations for notifying an employer of an accidental injury, death or occupational disease are as follows:
1. Accidental injury or death:
  Notice in writing or otherwise, within 10 days after the accidental injury and 30 days after death.
2. Occupational disease:
  Written notice within one year after the employee knows or has reason to believe he is suffering from an occupational disease and within one year after death resulting from such disease.
Failure to give the required notice bars a claim for compensation unless the Commission excuses the failure on the ground that notice for some sufficient reason could not have been given or that the employer-insurer was not prejudiced by the lack of notice. Art. 101, Section 26(a) and 38(a). The burden of proving prejudice is upon the employer-insurer. Art. 101, Section 26(a)(2) and 38(a).
Filing claims for accidental injury and death.
A claim for compensation in accidental injury cases must be filed at the Commission within 60 days after the date of the accident, but failure to file the claim may be excused by the Commission on the ground that the employer-insurer has not been prejudiced thereby or for some other sufficient reason. Art. 101, Section 39(a). However, failure to file the claim within two years after the date of the accident constitutes a complete bar. Art. 101, Section 39(a).

An application for death benefits resulting from an accidental injury must be filed at the Commission within 18 months from the date of death.
What about the employer?
Art. 101, Section 38(b) requires that an employer must file a report with the Commission within 10 days after he has notice or knowledge of an accident causing disability for more than three days.
Can you reopen a case?
An application for the Commission to change or modify a previous award of compensation must be made within five years from the last payment of compensation for temporary or permanent disability.

There is no period of limitation for reopening a claim to require the employer to pay medical expenses, since the employer's liability for payment of medical expenses continues for the workers' lifetime.

For any other information please call the Law offices of Michael A. Freedman P.A..