Blog

When a Maryland employee gets a work-related injury or disease, he or she is eligible for Workers’ Compensation. When the worker is found to be temporarily totally disabled, he or she receives wage replacement benefits equal to two-thirds of average weekly wage. (The statute caps the weekly benefit at the statewide average weekly wage and applies a different formula for average weekly wages under $50.00.) At our law firm, we advocate for correct and fair calculation of this figure for our Workers’ Compensation clients. Important Maryland case On March 1, the Court of Special Appeals of Maryland issued an opinion about calculating average weekly wage. Richard Beavers Construction, Inc. v. Wagstaff concerns a construction worker who was severely injured when he fell through a roof at the worksite after six weeks on the job. He had been hired for full-time work as a lift operator, but had not worked full time in his first six weeks because of bad weather. The employer had instructed him not to work in rain or snow. The issue became whether his average weekly wage should be based on the first six weeks of work, all of which were less than full time, or whether it should instead be calculated based on what a full-time wage would have been without missing work. These figures were $317.38 and $758.00, respectively. Reasonable interpretation The court said that when it interprets a Workers’ Compensation statute or regulation, it looks at its plain or ordinary meaning. However, if the words are not “sufficiently clear,” it should be interpreted to “carry out the law's general purpose.” The Workers’ Compensation Act is “remedial” and uncertainty in meaning should be resolved in favor of the worker. The court found that average weekly wage also includes a “projection of what an employee would have gone on to earn” but for the injury — that it looks at “loss of earning capacity.” The court ultimately found that the Maryland Workers’ Compensation Commission’s decision, after a hearing, that granted benefits based on a full-time average weekly wage of $758.00, was “a reasonable approximation of what he would normally earn in his position.” (A lower court had also affirmed that decision.) When the issue of average weekly wage is before the Commission at a hearing, it is free to determine the appropriate time period on which to base the calculation, the court said, and the Commission had made no legal error.

Obviously, pain is a major component of many work injuries and occupational diseases. Pain can significantly affect an injured or ill worker’s ability to engage in work tasks. Pain can be a legitimate part of the reason for a permanent partial or complete disability. Credibility of pain In Maryland Workers’ Compensation claims, too often because pain is subjective and not measurable on any scan or lab test, injured workers’ valid complaints of severe pain are not given adequate consideration. When an injured worker reports that serious pain from work injury or illness is unbearable or intrusive, his or her credibility may be outrageously or unnecessarily called into question by an employer or insurance company. No one questions that catastrophic work injury or illness like a crushed limb or asbestos-caused mesothelioma cancer causes severe pain. However, for a range of less severe, but equally legitimate, work-related harm, serious pain can result and limit the worker. Pain is real to the patient even though it cannot be physically measured. Reports of pain are not just automatically “in the worker’s head.” Unless there is a valid reason to discount a report of pain, the worker should be given the benefit of the doubt and his or her credibility respected. Full range of pain treatments In an interesting new article in an insurance-industry publication, the author consults two pain experts about cutting-edge pain-treatment methods in injured workers, recognizing the concern of opioid-addiction potential from some treatment and the need for new approaches. Some of the points made: Pain is not just physical, but is also a “negative sensory and emotional experience.” The psychological component should also be addressed. Chronic, on-going pain deserves a unique approach since it causes “fear and stress” in addition to the pain sensation. Pain should be immediately part of the treatment plan in and of itself, not looked at as an afterthought down the road. Reports of pain should be treated with respect. There are behavioral approaches to help with pain short of clinical psychological intervention. Classes, video instruction and online resources can help teach management techniques. In addition to medication, other treatment should be considered like occupational and physical therapy, relaxation, acupuncture, massage, exercise and chiropractic intervention. Newer, active behavioral approaches include ways to “self-soothe” like “mindfulness training, acceptance and commitment therapy, and chronic pain self-management.” We support a range of methods for pain relief and management for our injured clients. In that regard, we also advocate for appropriate coverage of the cost of the full range of appropriate pain treatments for our workers’ compensation clients.

Several media sources are reporting that early on the Monday morning of March 4, a forklift accident caused an employee fatality at a scrap-metal recycling center near Hagerstown, Maryland, citing the Washington County Sheriff. Apparently, a forklift was moving a vehicle when it slipped off the forklift, fatally crushing the 51-year-old worker. According to Herald-Mail Media, the death has been ruled an accident in this case. The sheriff also said that wind did not contribute to the incident. Unfortunately, forklifts are heavy, potentially dangerous pieces of large equipment used in many kinds of workplaces in which heavy items must be lifted or moved. To keep employees safe, proper safety practices and governmental safety laws must be followed. Anyone operating or around a forklift must be thoroughly trained to operate it safely or to work safely in the vicinity. Employee remedies for forklift injuries A Maryland worker injured in a forklift accident should apply for Workers’ Compensation benefits. Normally, Workers’ Compensation is the exclusive remedy for a work injury, regardless of fault, so the employee could not also sue the employer directly. (The exception to this is that if the employer intentionally injured the worker or does not carry proper Workers’ Compensation coverage as required by law, then the employee could sue the employer in lieu of filing a Workers’ Compensation claim.) In addition to Workers’ Compensation, the employee could also potentially sue any third party that may have also been negligent in causing the injury. For example, was the forklift or any component or part defectively designed or manufactured? Did any outside company provide inadequate or improper repair or maintenance services on the forklift? There may also be a 3rd party action against the person operating the forklift, with any recovery subject to the Workers’Compensation Insurer’s Lien. In the case of death from such an accident, the surviving dependants of the worker should file as soon as possible for Workers’ Compensation death benefits and explore whether a wrongful death suit against a third party might be appropriate.

An issue that arises in Maryland Workers’ Compensation is whether there is adequate medical evidence in the record to support a claim. In a new, unpublished opinion, the Court of Special Appeals of Maryland sheds light on “minimum evidence” required to link medical treatment back to earlier covered injury. Substantial evidence Board of Education of Montgomery County, Maryland v. Darlene M. Hamilton looks at whether a woman who had a work-related back injury in 1991 adequately linked medical expenses from treatment years later to that previous injury. If her evidence were sufficient, Workers’ Compensation would cover those medical bills 24 years after the original injury, which had been the basis for a valid Workers’ Compensation claim. Hamilton was a cosmetology teacher who, while giving instruction in 1991, fell off an unstable stool, injuring her back. In her original claim, the injury caused a permanent partial disability of 35 percent loss of body use, with five percent linked to pre-existing condition. Nine years later, she had spinal fusion surgery for the injury. Ten years after that, her treating orthopedic doctor wrote in Hamilton’s chart that she had spinal degeneration “related to original injury/surgery with her back.” She had medical appointments and an MRI five years later in 2015 and 2016. Medical expert testimony The employer challenged coverage of the 2015 and 2016 medical bills, saying that Hamilton had not proven by substantial evidence a link between that treatment and the original injury because she should have provided testimony by a medical expert. The court disagrees, saying that the doctor’s notes in which he said the later degeneration was related to the original injury were sufficient. The question of whether medical testimony was required must be determined case by case, looking at the level of medical complication. The court explains that in four circumstances, the medical question will “almost always” be complicated enough to require expert testimony. One of those situations was present here: “significant passage of time between the initial injury and the onset of the trauma requiring treatment.” Because of this, expert testimony was required. Significantly, the court says, “documentary evidence is accepted, and perhaps preferred” for this purpose, rather than live testimony. The medical notes directly linking the early injury with the much later medical treatment were sufficient evidence, so the employer must pay the medical bills. This was a fair interpretation of the law. It must be noted by the Reader that an Unpublished Opinion is not binding on a lower court but may be persuasive authority.

Many jobs require repetitive motions that continuously or frequently use the same parts of the body to perform the same task. Over time, the affected joint, nerves, ligaments, muscles, tendons and other body parts can wear out or become injured, either permanently or temporarily. These injuries are called repetitive motion injuries or repetitive stress injuries, and one of the most common RMI is carpal tunnel syndrome, called CTS. When CTS is caused by work activities, Workers’ Compensation should cover associated medical bills, lost wages and retraining, if necessary. If there is permanent disability that prevents work, permanent disability benefits would be appropriate. Employers can lessen the risk of CTS by consulting ergonomics specialist to help in the proper design of workstations. CTS is the compression of a nerve that passes through the wrist by swelling of surrounding tendons and ligaments. According to Johns Hopkins Medicine: Symptoms may include severe pain, numbness, weakness, decreased range of motion and clumsiness. Untreated CTS can result in “complete loss of function.” Women are three times more likely to develop CTS. Other risk factors include trauma, diabetes, pregnancy, thyroid disease and arthritis. Medical treatment can include occupational therapy, exercise, pain management, braces and the use of heat or cold Mayo Clinic also cites tingling as an early symptom and obesity as a high risk factor. If less intrusive treatment is not successful, surgery may be necessary, but recovery from surgery can take “several months,” according to Mayo. Occupations and work tasks associated with the potential for workers to develop carpal tunnel include: Keyboard work Assembly Poultry and meat processing Work using vibrating tools or equipment Musicians Cashiers Bakers Agricultural workers Hairdressers Sewers Mechanics Janitors Painters And others Anyone with CTS symptoms should seek medical attention and give notice to his or her employer of the problem as soon as possible. Speak with an attorney about the potential for a Workers’ Compensation claim immediately. Time is of the essence as deadlines may apply throughout the process.

Every state, including Maryland, has established a system of Workers’ Compensation that provides benefits like medical bill coverage and wage replacement to employees with work-related injuries or occupational illnesses. Employers carry insurance or become self-insured to pay these claims to employees when appropriate. Whether the employer or the employee was at fault for an injury is not relevant in Workers’ Compensation. The benefit is available regardless. In exchange for employees being able to rely on this system to cover them when hurt at work, they are not allowed to sue their employers for damages for the same harm. In legal terms, Workers’ Compensation is the “exclusive remedy” for work-related injury and disease. Narrow exceptions Maryland statute provides a couple of very narrow exceptions to Workers’ Compensation being the exclusive remedy: If the employer is required to get Workers’ Compensation insurance and does not, an employee injured while the employee was not insured (or self insured) may either file a Workers’ Compensation claim or file a lawsuit for damages. (In case of death, the employee’s personal representative has this right.) A personal injury or wrongful death suit may also be brought against an employer who caused the harm with “deliberate intent” to do so. Third-party claims While Workers’ Compensation is normally the exclusive remedy as against the employer, but if a third party contributed to the injury or disease, the employee may file a third-party lawsuit against that party. An advantage of a lawsuit like this is that there may be types of damages available that are not under Workers’ Compensation like pain and suffering or property damage. Examples of these kinds of parties and claims: The manufacturer, seller or designer of dangerous or defective work equipment when the equipment’s malfunction or dangerous nature injured the employee The owner of premises used for work activity who knowingly or negligently allowed dangerous conditions to exist on the premises that harmed the employee The negligent or reckless driver of another vehicle that causes an injury accident involving the worker when driving for work purposes A Workers’ Compensation lawyer can help an injured worker assess all potential sources of recovery.

Many Maryland households hire people to work in their homes like babysitters, nannies, cooks, housekeepers, house cleaners and other household workers. These employers may not know that many domestic workers are covered by state workers’ compensation law — and many domestic workers themselves may not know that they have the right to workers’ compensation benefits for injuries that arise out of and in the course of their employment, regardless of who is at fault for the harm. These benefits may include payment of medical bills and for lost wages. Whether a domestic worker is covered by workers’ compensation is a question of state law and the states vary widely on the subject. Maryland domestic workers Maryland statute says that anyone “employed as a domestic worker in a private home” is a covered employee “with respect to a household” if he or she earns cash of at least $1,000 in a calendar quarter within that household. (Historically, in 1996, the quarterly minimum was raised to $750 from $250, followed by an increase to the current threshold of $1,000 in 2007.) If a household worker were a covered employee, the household employer would be required under state law to get workers’ compensation insurance or get permission to be self-insured. With narrow exception related to federal law, if a domestic worker at least 16 years old does not meet the quarterly $1,000 threshold, the household employer and the worker may enter into an agreement that they elect for the person to be covered. For a domestic worker under 16, a parent or guardian may make this election for them. Talk to a lawyer When a domestic worker is injured on the job, he or she should speak with a workers’ compensation attorney about whether workers’ compensation applies to their situation and how to secure those benefits.

In today’s workplaces, virtually all professional, office and administrative workers work on personal computer terminals, laptops or similar technology, usually at a traditional desk. While we think of risky worksites as those involving heavy machinery, work at heights, exposure to chemicals, physical labor or similarly dangerous features, full-time sedentary work has its own inherent health risks. As a new article in The Philadelphia Inquirer reminds us: Sitting is the new smoking. The Inquirer discusses professional research at Drexel University that will be the subject of a 2018 law review article about the future of workers’ compensation claims for injury or disease from sedentary work. As the Inquirer points out, sitting for long periods is associated with increased risk of higher body fat, high cholesterol, heart disease, high blood pressure and cancers. The Mayo Clinic explains further that prolonged sitting can increase a cluster of risks that when they occur together is called metabolic syndrome, involving blood pressure, high blood sugar, abnormal cholesterol and extra fat around the waist. It also points out that the increased chance of heart disease and cancer actually increases the risk of death. Mayo advises that sedentary employees stand or walk during work when possible to offset these health risks, explaining that muscle movement “seems to trigger important processes related to the breakdown of fats and sugars within the body” that “stall” during sitting. The Drexel researchers note that employers can decrease the risks from excessive sitting by giving frequent walking breaks, having meeting participants or people on phone calls stand, providing workstations with exercise components and “incorporating active design” into workplaces. Anyone who suffers from disease or injury potentially associated with sedentary working conditions should speak with an attorney about the possibility that the impairment has arisen out of employment for purposes of a workers’ compensation claim.

Normally, Workers’ Compensation is not available in Maryland when an employee is injured during his or her regular commute to work. This concept is called the going-and-coming rule, based on the idea that a commute is not an action in the course of employment. Rather, a commute is considered a common, ordinary risk all workers who commute take. However, there are exceptions. In September, the Court of Special Appeals of Maryland released an unpublished opinion, Baltimore County v. Morrison, holding said that two exceptions applied in the case of a police officer, James Morrison, who was in a motorcycle accident on his way home from a work training held away from his normal place of employment. On a day he was scheduled to be off work, he instead attended the training at the suggestion of his superior. Morrison was paid for his time at the training. The two exceptions that applied were the special missions exception and the free transportation exception. The special missions exception says that an injury that occurs when the employee is on a special mission or special errand for the employer is covered. To determine if a special mission existed, the court looks at the extent of “inconvenience, hazard, or urgency” of the trip as well as the “trouble and time of making the journey.” Morrison was held to have been on a special mission because: He had never worked at the training site before, showing “lack of regularity in travel.” One leg of the journey was a carpool in a police car, suggesting a degree of onerousness as compared to a usual commute. The day he attended the training he was scheduled to be off, but he went to the training instead at his employer’s request. The free transportation exception says that if an employer provides free transportation for a work commute, the employee is on duty and covered if injured. Morrison’s employer provided mileage reimbursement for any part of the trip that was beyond the usual distance Morrison commuted to work. He did not request reimbursement because the part of the trip he made himself on the motorcycle was not longer than his usual commute, but when the carpool leg of the trip was added on, it made the trip long enough that it would normally have been reimbursable, so the exception applied.

Last month, a veteran 43-year-old Baltimore police detective died after having been shot with his own official police weapon while investigating a triple homicide in the Harlem Park neighborhood. With 18 years of service behind him, the officer is survived by his wife and five children, according to The Baltimore Sun. Death benefits Normally, under Maryland law, dependent survivors of someone whose death arises out of and in the course of employment are eligible for Workers’ Compensation death benefits, including ongoing cash payments and funeral costs. Self-harm In general, Workers’ Compensation benefits are not available if the injury or death was caused by “an intentional, self-inflected accidental personal injury …” Unfortunately, this would mean that death benefits would not be available to survivors if their loved one died by specific intent to commit suicide. The law also provides that in a proceeding on a Workers’ Compensation claim, unless there is “substantial evidence to the contrary,” the analysis begins with a presumption that the injury or disease (or resulting death) was not intentionally caused by the employee him or herself. Investigation still open The Sun reports that in the case of the detective, it has not been determined yet whether the death was self-inflicted, caused by another person or even accidental. Investigators have not named any suspects as of yet. The police commissioner requested that the FBI assume responsibility for the investigation, but the agency’s response is unknown. The newspaper cites the commissioner as saying there was a “violent struggle” before the shooting and that although there is no evidence of suicide, it has not been ruled out. The coroner, however, did name homicide as the cause of death. The deceased officer was apparently about to testify before a grand jury about alleged police corruption. Seek legal advice The community will await the resolution of this tragic case, but in the meantime, anyone in Maryland who is facing a potential question of whether a work-related injury, disease or death was self-inflected in a Workers’ Compensation claim should consult an attorney as soon as possible. These cases are factually specific and potentially complex, so the guidance and efforts of legal counsel can be particularly important.

We represent injured Maryland construction workers in their Workers’ Compensation claims and in third-party lawsuits, where appropriate. Last month, the Court of Special Appeals of Maryland decided an unpublished case that sheds light on issues that can arise in construction injury claims involving subcontractor employees. Exclusive remedy The premise of the Workers’ Compensation system is that when an employee injury arises out of and in the course of employment, the exclusive, only legal remedy for the injured worker is a Workers’ Compensation claim, regardless of who was at fault. (The only exceptions in Maryland allowing the employee to sue the employer directly are if the employer failed to carry required Workers’ Compensation insurance or willfully injured the worker.) In other words, if the worker sues the employer for injury based on negligence, the employer would be immune from suit and it would normally be dismissed because the only legal remedy is Workers’ Compensation. Statutory employers In the October 18 decision of Shannon v. KG Industries, LLC, a construction-subcontractor employee was injured while working and awarded Workers’ Compensation benefits through his subcontractor employer’s insurance. He also sued the general contractor that had contracted with the subcontractor, alleging negligent installation of a ladder from which he had fallen. Even though normally Workers’ Compensation is the exclusive remedy for a work injury, sometimes a lawsuit can be filed against a nonemployer third party such as a manufacturer of defective construction equipment that contributed to the injury. For example, a defective engine could explode and burn or maim a worker. In Shannon, the plaintiff alleged in his lawsuit that the primary contractor had contributed to the injury because of negligent installation of the ladder. However, instead of being a valid third-party claim, the court said the case was appropriately dismissed because KG was immune as a “statutory employer.” Maryland law deems the general contractor to be a “statutory employer” of people employed by subcontractors, like Shannon. A statutory employer must pay Workers’ Compensation benefits just as the direct employer, the subcontractor, must do. (If Shannon had filed for Workers’ Compensation against KG Industries, it could have sought reimbursement from the subcontractor.) A statutory employer also receives the same immunity from suit for work injury that the direct subcontractor employer has. Talk to a lawyer about this complex area of law if you are a construction worker injured while employed by a subcontractor.

The short answer to this question is yes, but it depends. We represent clients with a wide variety of mental and physical work-related impairments, including post-traumatic stress disorder, often referred to as PTSD. The disease itself as well as how Maryland Workers’ Compensation law treats it are extremely complex. It is important after work-related trauma not only to get mental health treatment, but also to consult a Workers’ Compensation lawyer with specific PTSD experience. What is PTSD? According to Mayo Clinic, PTSD is a mental health problem “triggered by a terrifying event” experienced either directly by the patient or through observation. Onset may be either within the month after the event or sometimes even years later. Four kinds of symptoms may occur: Intrusive memories, including flashbacks and dreams Avoidance of mental or verbal focus on the event or of things that bring it to mind Negative mood and thoughts, including hopelessness, pessimism, trouble with memory and others Changes in “arousal symptoms,” which are “physical and emotional reactions” like irritability, overwhelming shame, self-destructive behavior, easily reacting with fear and others Tennessee bus driver example State law controls Workers’ Compensation and while certain legal concepts are widely shared among the states, the way mental impairments are handled varies. In September, a Workers’ Compensation panel of the Tennessee Supreme Court looked at a claim for benefits based on a bus driver’s PTSD from observing a shooting in the course of her duties. The Supreme Court affirmed that she was permanently and totally disabled based on her medical expert’s opinion and the claimant’s own testimony. Maryland law and PTSD In Maryland, it is possible that the case could have gone the other way depending on whether violence is considered a risk of being a bus driver. One line of cases looks at PTSD claims in the context of whether it is a compensable occupational disease. State statute says that an occupational disease must be “due to the nature of an employment in which hazards of the occupational disease exist …” For example, in one case, a Maryland court found that PTSD was compensable where the claimant was a paramedic who attended fatal accidents as part of her duties, causing the PTSD. However, in another case, PTSD from coworker harassment was not compensable because harassment is not a “hazard peculiar” to the job of a computer operator.