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If you are hired to work in and around another person’s home you may be considered an employee. This can hold true whether you are a nanny, housekeeper, caregiver or lawn maintenance technician. Being a household employee means your employer has a responsibility to you. Some of these responsibilities are obvious while some might not occur to the average person. For example, qualify as an employee for purposes of Worker’s Compensation, should you get injured on the job and unable to return to that position, you may be entitled to vocational rehabilitation that includes job retraining. What household employees should know about workers’ compensation insurance If you qualify as a household employee who earns more than $1,000 in a calendar year, Maryland requires your employer to carry a workers’ compensation insurance policy on you. This means that as a worker in a household, it may feel like a more intimate and informal type of employment, but you have the same entitlements for compensation as a worker in any other industry. And so, you must understand that: If you are injured at work, you can receive compensation for time missed and medical treatment. You have rights regarding what you do and do not disclose to your employer about your injury. Employees who accept benefits often forgo their right to sue the employer. Workers compensation protects employers by protecting their workers from the effects of on-the-job injuries. But, due to certain rules regarding minors – such as the need for work permits and the different standards for payouts in the event of injury or death – it can be more challenging to find work as a household employee if you are under 18. Get the information you need A usual pitfall with household employees is being considered an independent contractor. Should a worker qualify as an independent contractor, rather than employee pursuant to the Maryland Worker’s Compensation Act, that worker would not be covered and be entitled to benefits. If you plan to work in someone’s home or are injured while working at residential property, it’s best to get advice from an experienced worker’s compensation attorney to understand if you are covered and what compensation you may be entitled to.

Eyeing the threat of occupational cancers among firefighters, Gov. Larry Hogan announced on Feb. 6 that he is supporting bills in the state legislature that would allow firefighters to claim workers’ compensation for certain types of cancer. Research has shown that firefighters are exposed nearly every day to toxic chemicals and smoke that can increase the chances of thyroid, kidney and other types of cancer. These cancers can become apparent many years after the firefighter has left the profession. The bill proposed by Hogan would expand coverage for firefighters to kidney, bladder and renal cancer. A history of helping firefighters Maryland has a history of providing benefits for firefighters, paramedics and EMTs because those professionals are exposed to greater risk of accidental injuries and occupational diseases. Due to the nature of the job, firefighters suffer more burns and hernias. They also are exposed to unique exposure to chemicals and smoke that can lead to an occupational disease that is covered under Maryland’s workers’ compensation laws. The International Association of Firefighters says the increased benefits are necessary because of the nature of items firefighters encounter. Homes and businesses are now full of plastics and chemicals that burn faster and cover firefighters in toxic waste. The association says cancer is now the leading cause of death among its members, replacing the asbestos-related deaths of 30 years ago with leukemia, lymphoma or myeloma. Union officials, firefighters and politicians said that expanding workers’ compensation coverage was a shared goal during this legislative session. Stage IV colorectal cancer Hogan mentioned the battle endured by Prince George’s County firefighter Jesse McCulloch, who died in October 2018 after battling colorectal cancer. He was diagnosed with the disease in January 2017 and stayed on the job for more than a year. The cause of the cancer was toxins he was exposed to while fighting fires. He was a firefighter for more than 10 years and is survived by a wife and two daughters. In fact, the Centers for Disease Control and Prevention found higher rates of cancer among firefighters than the general population. Departments in Boston, Seattle, Chicago, New York, San Francisco, Houston and Toronto all report elevated cancer risks among firefighters. If you or a loved one is a firefighter, EMT or paramedic and you have been diagnosed with cancer, you may be able to receive more help than you realized. Contact a qualified, experienced attorney to help guide you through the workers’ compensation process.

Everyone seems to know something about workers compensation benefits – it’s the rare person who knows everything. Here’s a quick refresher on what is covered under Maryland’s Workers Compensation Act: Temporary total disability benefits If an injury results in a disability that prevents an employee from returning to work while the injury heals, then the employee can receive benefits. If the disability lasts 14 days or less, then the payments start three days after the injury. If the disability lasts more than 14 days, then the payments start from the date of the injury. These payments equal 2/3rds of the employee’s average weekly wage at the time of the accident subject to a ceiling. The payments are meant to offset lost income while healing. They end when the employee returns to work in some capacity or when a medical determination is made that the employee has reached maximum medical improvement. If an injured worker has completed medical treatment, but still remains unable to return to the injured worker’s previous employment, the injured worker’s monetary benefits may continue under a job placement program called vocational rehabilitation. Temporary partial disability benefits If an injury results in a disability that only allows an employee to work on a limited or part-time basis, then the employee can receive benefits. The employee receives payment equal to 50 percent of the difference between the employee’s average weekly wage at the time of the accident and the gross weekly wage of the employee while working on the limited or part-time basis subject to a ceiling. Permanent total disability benefits When a worker has been injured to such an extent that he or she cannot work in any useful capacity, then the employee can receive lifetime benefits. In Maryland, the loss of use of any of these constitutes permanent total disability: Both arms Both legs Both hands Both feet Both eyes Any combination of two of arms, hands, feet, eyes or legs. Any other disability that renders the employee unable to work in any useful capacity Payment is a maximum of two-thirds of the employee’s average weekly wage subject to a ceiling. Permanent partial disability benefits If an employee receives an injury that results in some permanent partial impairment to a body part, they can receive benefits. Benefits are paid in accordance with a schedule of injuries set in the Maryland Workers’ Compensation statute as determined by the Workers Compensation Commission. For example, loss of a thumb results in payments for 100 weeks while an injury to the thumb including pain, loss of motion, strength, etc, results in a finding of a percentage loss of the thumb is payable for a number of weeks as a percentage of the 100 weeks. The amount of benefits is determined by the statute and are payable on a weekly basis other than a Full & Final Settlement of the claim which may be paid in a lump sum. Injured workers are also eligible for lifetime medical and hospitalization benefits (including prosthetic devices), wage reimbursement benefits (for time spent being examined by a physician at the request of the employer) and in some cases vocational rehabilitation benefits (including job placement). The calculations and value of a permanently injured body part or medical condition can be complicated to understand to the casual observer. Additionally, obtaining and recognizing the necessary documentation to support a claim for any type of benefit can also be difficult and complicated when insurance carriers are seeking to limit their own costs to a Claim. As a result, it is critical that injured workers find proper representation to ensure they receive coverage and are protected after a work place accident.

Researchers with the Tree Care Industry Association found that in 2017, tree care workers in Maryland were among the most injured in the nation. While there are many reputable tree trimming businesses in Maryland, there are also some fly-by-night businesses that do not offer proper safety protections or the proper insurance. An injury while working for one of these companies means your ability to claim workers compensation benefits could be difficult. Before you hire on with a tree trimming company, find out if they have workers compensation insurance. Be aware: if a prospective employer says you will be hired as an “independent contractor,” that’s a red flag that they are not carrying workers compensation insurance. Maryland does offer a state tree care license for tree trimmers. Having one means the company has met standards of professionalism including education, working with a previously licensed professional and carrying liability and property damage insurance. The state offers a website to search tree trimming businesses to see if they are licensed. Report statistics The report found that fatalities among tree care workers nationally dropped about 16 percent. The association found about 130 incidents with 72 fatalities and 45 serious injuries in 2017. Tree trimmers from California saw the most injuries or deaths with 14. Massachusetts and Maryland were tied for fourth with eight incidents apiece. Most of the incidents involved: Tree felling Electric shock or burn via conductive tool or object Equipment failure Caught under a chipper or rigging Fall from aerial lifts No OSHA rules The Occupational Safety and Health Administration has no rules specifically for the tree-trimming industry. In 1995, OSHA provided safety standards for the logging industry but did not apply them to the tree trimming industry. In 2008, OSHA published an advanced notice of proposed rulemaking, but removed the item from its agenda in 2010 citing insufficient resources, according to TCIA. The issue of tree care standards was back on the agenda in 2015 but moved to “long-term action” in 2017, where it currently languishes. Meanwhile, the Tree Care Industry Association’s Arborist Safety Training Institute offers safety training throughout the U.S. but attendance is not mandatory for either business owners or those who work as tree trimmers. The ASTI offers workshops on aerial lift safety, how to work around electricity, how to correctly operate chippers and chain saws, and how to properly work on th

If you employ a housekeeper, nanny, home health nurse or a gardener, you could be facing a huge gap in your insurance coverage. Maryland requires employers to pay workers compensation insurance. If an employee is injured on the job, whether they are at fault or not, they can file for workers comp and it is the employer’s responsibility to pay. What’s more, those employees are not covered under your homeowner’s policy or any other umbrella policy you might have. The law in Maryland In Maryland, you must provide workers compensation for any person employed as a domestic worker who earns more than $1,000 per quarter, or $77 per week. Workers compensation premiums can cost as little at $800 per year and protect you from medical bills that could run into the hundreds of thousands of dollars or disability payments that could continue through the life of the worker. The definition of what constitutes an employee is broad: In Maryland, the work relationship is determined by the “economic reality” of the situation. If you have an employer-employee relationship, then you can be liable for workers compensation. Other kinds of insurance If you are a renter, you can be as liable as any homeowner if you employ a domestic employee. You, too, need to pay workers compensation. If your employee drives your vehicle, you need to make sure your policy covers the employee as a driver. Similarly, if your employee drives your children in his or her vehicle, you need to make sure the employee’s insurance is sufficient to handle any accident – both because you want to make sure your children’s care is covered in case of an accident, and also because if your employee gets into an accident while working for you, you could be held liable.

On August 30, the Court of Special Appeals of Maryland handed down an opinion in favor of a firefighter who claimed that degenerative knee tearing in his right knee arose out of and in the course of his employment. The court explains in detail what the standards are in Maryland Workers’ Compensation law for establishing an occupational disease that makes the worker eligible for benefits. In Baltimore County v. Quinlan, the court on appeal agreed with the jury in the court below that sufficient evidence showed that the firefighter claimant had sustained an occupational disease of degenerative menisci tears in his right knee making him eligible for Workers’ Compensation benefits under state law. What is an occupational disease under the Act? The law says that a worker is eligible for benefits if he or she gets an occupational disease that is “due to the nature of an employment in which hazards of the occupational disease exist.” The court said that the testimony at trial constituted sufficient evidence tying the claimant’s knee tears to an occupationally related disease. Specifically, testimony established that “repetitive kneeling and squatting” is a “regular part of a paramedic’s job and … a risk factor for developing menisci tears and, in turn, osteoarthritis in the knees.” The employer tried to argue that osteoarthritis and degenerative knee tearing are “a disease of life” common to the population as a whole and not inherent in the claimant’s work as a firefighter and paramedic. The court, however, quoted the Court of Appeals about occupational diseases, defined as “some ailment, disorder, or illness which is the expectable result of working under conditions naturally inherent in the employment and inseparable therefrom, and is ordinarily slow and insidious in its approach.” It went on to say that even the employer’s expert at trial said that EMTs and firefighters are at higher risk for “osteoarthritis and knee problems” because they are among jobs that “require more squatting and kneeling.” In addition, the claimant’s own expert testified that firefighters have these knee tears and arthritis at higher rates than other people. The court concluded that even if claimant’s age and weight contributed, if the condition was due in part to the nature of the job, the jury could conclude that he had an occupational disease under the Act. Anyone who believes that his or her own illness is work related should speak to an attorney about establishing an occupational disease that creates eligibility for Workers’ Compensation.

Some workplace injuries are obviously tied to the course of employment: a delivery-person who suffers a back injury while lifting a heavy package; a gym’s personal trainer whose toes are broken when a client drops a weight on them; a restaurant line cook severely burned by a malfunctioning stove, just to name a few. Things are not always as clear as these scenarios suggest, however. It is sometimes difficult to tell when an injury qualifies for workers’ compensation benefits and when it does not. In the course of employment An injury is suffered in the normal course of the person’s employment is usually compensable. Basically, when an injury happens while the person is performing his or her daily job tasks, it’s most likely covered. In the examples given above, each of the injured parties were going through their normal business days and were subsequently injured. On behalf of the employer Some injuries are compensable even if they happen not in the “normal” course of the employee’s job, but still while performing a task on behalf of the employer. We’ll illustrate this premise with an example. An office worker named Jim is hurt in a car accident while out getting coffee for a special client meeting. It isn’t part of his everyday job duties to perform that task, but since these are important clients and the firm wants to make a good impression, they decided to serve coffee and other refreshments. Jim is performing a task on behalf of his employer when his injuries occur, so they will most likely be compensable. Cases like these are fact-specific, though, and require care to accurately represent them for the purpose of obtaining work comp benefits. If you are unsure as to whether your on-the-job injuries are compensable under the workers’ compensation system, consult an experienced attorney in your area.

At our law firm, we advise injured workers throughout Maryland on Workers’ Compensation issues. A new unreported case from the Court of Special Appeals of Maryland illustrates the complexity of the state Workers’ Compensation Act and the importance of having an experienced lawyer involved at all stages of a claim, if possible. The appeals court issued its opinion in Montgomery County, Maryland v. Peter Gang on August 9. (Available on Westlaw at 2018 WL 3801772.) In 2011, Gang received an accidental injury during his work as a correctional officer for the county. In 2012, the Maryland Workers’ Compensation Commission after a hearing awarded Gang 70 weeks of benefits at $157 per week for permanent partial disability. The parties agree that this rate was wrong because Gang should have received the higher rate of a public safety officer. Notably, no one at that time asked for rehearing or appealed the mistake to court. Instead, Gang accepted benefits at the wrong rate and four years later, he filed a “Request for Document Correction.” After the parties attempted some complicated procedural maneuvers, the Commission retroactively amended the original award to the rate of $314 per week, not based on the claimant’s request for a document correction, but instead on its “continuing jurisdiction” under the law. The Circuit Court for Montgomery County affirmed this decision, which the Court of Special Appeals then reversed in the unreported opinion. Claimant missed the proper remedy In essence, the court said that the claimant should have asked for reconsideration or filed an appeal within the time allowed when the Commission issued the 2012 decision with the incorrect rate. The claimant also did not follow correct procedures in trying to request a later modification. The court looked at the scope of the Commission’s power to revise earlier actions, concluding that no other bases would allow the Commission to fix the mistake at this late date: The Commission did not modify the award “based on a legal mistake in light of case law.” The Commission was not acting because of a “statutory revision.” The Commission may have been able to correct the rate in a future award, but not a retroactive one. The law would let the Commission adjust a mistaken rate in appropriate cases for future benefits paid if disability had increased or decreased since the original award. The Commission was not just “correcting a clerical error.” The award was final in 2012. The claimant apparently should have filed a different form and gotten employer consent for a modification request. The Commission’s late correction of the rate “impermissibly extended the five-year time limit … exceeding its statutory authority.” The court concluded that the Commission’s power to fix mistakes in awards is “not unlimited,” and that no state law allowed what it had done, unfortunately for this claimant. Everyone agreed that a mistake had been made, but it was too late. It is not clear from the opinion whether Gang had a lawyer at the time of the original decision. We also do not know if it occurred to him to question whether the rate was incorrect back then. Still, this opinion shows the importance of having legal counsel on board as early as possible. An attorney can review not only decisions that deny claims, but also successful decisions to see if the terms are correctly calculated. If not, the claimant can file an appeal or request for rehearing before any deadlines pass.

The Court of Special Appeals of Maryland released an unpublished opinion illustrating “estoppel” in the context of a late workers’ compensation claim. Estoppel provides relief when someone is legally harmed by reasonably relying on another person’s behavior or statements. Maryland law provides relief by estoppel for certain late-filed Workers’ Compensation claims. Claim deadlines For an accidental work injury, the employee must file with the Maryland Workers’ Compensation Commission within 60 days of the injury a claim form and a doctor’s report, if applicable. If the employee misses the 60-day deadline, the employee can still file the claim within two years after the injury if the Commission finds no prejudice to the employer or Workers’ Compensation insurer or “another sufficient reason.” If the two-year deadline, called a statute of limitations, is missed, the claim is “completely barred.” However, if the employee missed the deadline because of estoppel or fraud, the employee has a year to file from the day the “facts and circumstances that amount to estoppel ceased to operate” or the day the fraud was discovered. (The law has a separate provision for radiation injury.) Estoppel example In Prince George’s County Board of Education v. Anthony Butler, Butler was a truck driver and warehouseman for the school district. In 2011, he fell and hit his head on cement during a delivery. Another employee helped him complete a public-school Workers’ Compensation injury report form. She said that “everything was taken care of” and that his supervisor would “send it to the workman’s comp office.” Butler said no one told him he needed to fill out anything else. On Butler’s return to work, his supervisor said “everything was taken care of.” Butler said that he relied on these statements. He subsequently had head surgery to repair a broken shunt from the fall. When the bills were not paid, his employer again reassured him that it would be “taken care of.” He eventually sought legal advice when the bills continued unpaid. His lawyer helped him file the claim with the Commission in September 2014, well past the two-year deadline. He asserted the defense of estoppel for filing late based on his reliance on his employer’s statements that everything would be taken care of. The Commission denied the late claim, but on appeal the Circuit Court for Prince George’s County reversed the Commission based on estoppel. In the employer’s appeal, the Court of Special Appeals agreed with the Circuit Court that estoppel should allow Butler’s claim, despite the late filing. The court explained that for estoppel to apply, the claimant must have reasonably relied on the statements of someone who could reasonably be thought to have the authority to speak for the employer. Estoppel prevents the employer from opposing the claim when the worker relied on the conduct in “good faith” and “thereby … changed his position for the worse.” This case illustrates the concept of estoppel, but also shows how complicated Workers’ Compensation law can be. Consult an attorney as early as possible for assistance with your claim, but even if you think it might be too late or that you have missed a deadline, a lawyer can evaluate the situation to see if the law provides relief and provide direction.

Broadly, injuries that occur during a normal commute to work are normally not covered by Maryland Workers’ Compensation, unless a special exception applies. This concept is called the going-and coming rule. The highest court in Maryland, the Court of Appeals, handed down an opinion on May 21 that sheds light on the special mission or errand exception to the rule. In Calvo v. Montgomery County, the high court explained that to be covered by Workers’ Compensation, an injury must arise out of and in the course of employment. Calvo was a bus driver with 20 years’ experience working for the county. On the way to a mandatory Saturday training that happened once per year, she was injured when her vehicle was rear ended during the journey. Saturday was normally her day off and the training was at a location away from her usual place of work. The court found that the injury arose out of her employment because of the positional risk test, which asks whether but-for an employer’s requirement, the worker would not have been injured. Here, but-for the required training, Calvo would not have been in the accident. Whether an injury occurs in the course of employment looks at the time, place and circumstances vis-à-vis the employment. To be covered, a claimant must be performing work duties or “doing something incident to those duties.” The employer asserted that the injury was not covered because of the going-and-coming rule, but Calvo successfully argued that the special mission exception could apply. Under this exception, an injury is covered during a commute or journey when the travel was done at the direction of the employer and “in furtherance of the employer’s business.” Analysis of whether the special mission exception applies is highly dependent on the unique facts of each case. The Court of Appeals agreed with Calvo because: The trip was mandatory. The journey could be found to be irregular or unusual because it was on her day off at a different location than her usual place of reporting for work. The trip could be found onerous because it was on her normal day off. The court admitted that the case was a close one, but that because a reasonable jury could find in favor of Calvo under these facts, the courts below should not have granted summary judgment. The court reversed and sent the case back for trial.

Firefighters face exposure to toxic chemicals, substances and gases on a regular basis when they run toward danger on all of our behalves. Maryland law presumes that when they get certain diseases in particular circumstances, Workers’ Compensation benefits will be awarded. Firefighter occupational disease presumptions: Heart and lung conditions The law provides that a paid or volunteer firefighter is “presumed to have an occupational disease … suffered in the line of duty … compensable” by Workers’ Compensation if these diagnoses cause partial or total disability or death: Heart disease Hypertension Lung disease Cancers The same eligibility presumption applies to certain cancer diagnoses in some circumstances: Leukemia, or prostate, throat, non-Hodgkin’s lymphoma, testicular, rectal, multiple myeloma, brain or breast cancer “caused by contact with a toxic substance … encountered in the line of duty” Ten years of fire-fighting service in the department of current service Condition prevents the person from performing his or her normal fire-fighting duties Related matters For the presumption to apply to a diagnosis under either category, a volunteer firefighter, before he or she started duty, must have “met a suitable standard of physical examination.” In some cases, the presumptions may apply even if a firefighter develops a covered illness in retirement. The law also provides that benefits received pursuant to these presumptions are stacked on top of retirement benefits, so both are received (subject to a cap). Otherwise, only one could be received in a period of dual eligibility. In any given claim, the employer, usually a city, municipality or other local government, may choose to oppose the firefighter’s presumption, so legal counsel is important in these cases. Policy behind the presumption The Baltimore Sun recently published an extensive article about the Maryland firefighter presumptions. The piece describes both sides of a debate over this law. Some argue that it is expensive for taxpayers to pay these claims and that in a given case it may not be possible to prove a link the covered cancer or illness to the actual work of firefighting. Some point to conflicting studies. However, the point of a presumption is that when proof is difficult, the law gives the benefit of the doubt to a party for policy reasons. Firefighters put themselves in danger to protect members of our community. This law recognizes that we are going to be on their side when they come down with catastrophic illnesses that could be the result of their brave actions. Maryland is not alone in this choice. According to the Sun, over 30 other states have similar Workers’ Compensation presumptions for firefighters.

A bill has landed on Maryland Gov. Larry Hogan’s desk that would move state correctional officers into a category of public service employees who already get a higher level of Workers’ Compensation benefits in certain situations. As of this April 4 writing, WorkCompCentral reports that HB 205 passed through both houses of the legislature almost unanimously, but the governor has not indicated whether he supports the change. Current public safety employee enhanced benefits Currently, Maryland statute provides that a “p ublic safety employee” like a firefighter, paramedic, police officer and certain others who are given a Workers’ Compensation award of permanent partial disability lasting less than 75 weeks are compensated at a rate of two-thirds of his or her average weekly wage (but not over one-third of the state average weekly wage). By contrast, other kinds of employees with the same awards in the state are paid only one-third of average weekly wage (but not over 16.7 percent of the state average weekly wage). Proposal in the new bill The new bill would add “state correctional officer” to the definition of public safety employee for purposes of this enhanced benefit for claims originating on or after October 1, 2018. (Interestingly, the existing law does include correctional officers in only Prince George’s County and Montgomery County as well as “detention officers” in Anne Arundel County.) The legislative Fiscal and Policy Note attached to the bill says that if signed into law, the bill would “significantly” increase certain state expenditures as a result. The Note also explains that correctional officers have “one of the highest rates of injury and illness … due primarily to confrontations with inmates,” citing the U.S. Bureau of Labor Statistics or BLS. BLS also notes that because inmates must be continually secured, these officers may work overnight hours and weekend or holiday hours. Outcome unknown Gov. Hogan on his official website says that he supports decreasing state spending, but he also touts support of “public safety,” so we will watch to see whether he signs this bill that would benefit hard-working correctional officers.