What Benefits Are Available To Me Under Maryland Worker's Compensation Law?

The benefits available to injured worker with a covered claim come under the following broad categories:

• Medical
• Payments while you are unable to work and your condition is improving
• Vocational rehabilitation
• Permanent Disability
• Death benefits

Most injuries do not involve each of the above categories. However, an employee can never be sure of the extent of their injury for days, weeks or even years. Therefore, it is vitally important to file your claim with the Maryland Workers' Compensation Commission in Baltimore in order to protect your right to obtain the benefits that may be necessary to allow you to recover both physically and financially!

Medical

If your claim is covered under Maryland law and you have properly filed it, your employer and their insurer are responsible to pay for the rest of your life any treatment that is:

• Caused by your injury; and
• Is reasonably necessary.

You have the right to choose any physician you want. You do not have to receive treatment from a physician designated by the insurer nor should you (some employees operate under an employment or Union contract which do require an initial visit to a designated facility). The employer or its insurer pays the bills according to a fee schedule. If the physician is located in Maryland the physician may not charge the employee anything in addition to the fee schedule. If the physician is not located in Maryland you may be responsible for any additional charges if the doctor does not accept the fee schedule (this usually does not occur for a doctor located in Virginia or the District of Columbia but can be a problem if you move to a state far away).

Medical treatment includes:

• Physician charges, tests, and hospitalizations;
• Prescriptions (100%); and
• Parking and mileage reimbursements (the rates change each year) for travel to and from your medical provider

Your attorney should submit your bills and reimbursements for payments so that a record will be created as to when and what was submitted should the insurer fail to fulfill its responsibilities (as often happens) and a hearing is required. The Commission may assess penalties if the delay is unreasonable.

Insurers usually will not object to the initial treatment required by the employee if they have accepted the claim. However, if surgery is suggested or treatment extends over more than a few weeks, the insurance company, in a misguided attempt to control the costs of the case, will often exercise their right to have you examined by a physician of their choosing. This is called an IME (although the letters are supposed to stand for "Independent Medical Exam" they really mean "Insurance Medical Exam"). It is important to emphasize that this physician may not treat you, he can only examine you and render an opinion. Frequently, they will render an opinion that the treatment you are requesting is not necessary and/or related to your injury. This will then result in a delay in obtaining the medical care until a Workers' Compensation hearing is held to resolve the matter. Since we win most of those issues before the Commission, it is difficult to reconcile why, except in the most extreme cases, insurers present these roadblocks and delays. Unfortunately, the delays cause unnecessary anguish and hardship to the injured worker. Yet the insurers persist in doing so!

Another tactic insurers use is to assign a nurse to monitor your medical care. Often times they attempt to intrude on your privacy by coming to your home and speaking directly to your doctor. We generally do not allow them the direct access they request unless your medical condition is extremely serious and not likely to be contested. The reason we are careful is that the nurse often interferes with the private trust between you and your doctor, records your comments in written reports that become evidence in your case, and otherwise obtain information that may be used against you by the insurance company!

Your right to quality medical care is clear and absolute. However, you must realize that the worker's compensation insurer is not your insurer. They are the insurer for your employer! They are in the business of limiting the cost of your claim. They are not your friend! They are happy if you recover quickly or if they successfully limit the treatment you receive. Either way they have reduced their costs and increased their profits! Our job is to assist you in receiving the appropriate quality medical care required to maximize your recovery. To do this we draw on our vast experience in compensation related medicine and a large group of medical experts from which we can obtain advice as well as our combined experience in representing thousands of clients in over ten thousand hearings!

Payments While You Are Unable To Work And Your Condition Is Improving

The law provides that compensation during the "healing period" must be paid by the employer or its insurer, at the rate of two-thirds of the injured worker's average weekly wage. This is called "temporary total disability benefits" or "TT". The employee's average weekly wage is usually calculated by totaling the employee's earnings, including overtime, over the thirteen weeks immediately prior to the injury and then dividing by thirteen. However, since there are many exceptions to the rule that could result in a higher average weekly wage, it is very important to discuss the issue of your wages with your attorney. Otherwise, you may loose the right to thousands of dollars of benefits over the life of your claim!

Temporary total benefits are paid as long as you are:

• Unable to return to your normal job; and
• Your employer does not provide another job within your physical limitations; and
• You have not yet reached maximum medical improvement.

The amount paid is subject to a maximum rate which is based on the average weekly wage of all employees in Maryland for the year that you were injured. The payments are tax free!

The principle of temporary total benefits is best explained by imagining an employee who has lost an arm in an accident on the job. While the employee is recovering from the injury, whether it takes six months or six years, the employee is entitled to TT benefits. However, once the employee has returned to work, or reached maximum medical improvement (the stump has healed to the point that it will not get any better and the doctor just needs to see the employee every few months), the insurer may stop paying TT benefits even though the employee has not returned to work!

Some employers will pay full salary benefits instead of TT. This is fine as long as:

• You are not using your sick leave;
• You are not lulled into forgetting to file a Workers' Compensation claim form;
• ; You have not worked a lot of overtime in the three months before you were injured.

Other employers will pay two thirds of your benefits as TT and the remaining one third of your normal salary in some form of disability pay. Vigilance is required to make sure that your employer's payroll department does not inappropriately withhold taxes in these instances.

There are times that an employee has not yet reached maximum medical improvement but can return to a lighter duty job or to the same job for a reduced amount of hours per week. In these instances, the employee is entitled to temporary partial benefits (TP). The employee may receive 50% of the difference between the employee's average weekly wage before the injury and what it is while on restricted duty. This is capped at 50% of the maximum TT rate for the year of the injury. Many times claimants fail to make a claim for TP benefits when they return to a light duty full time job, but are not eligible for overtime. However, it is important to remember that TP benefits are only payable if the employee's medical condition is still improving.

As you can imagine, insurance companies attempt to reduced the amount of temporary benefits they pay on a claim. Their tactics may include the following:

• Use of investigators and videotape to try to prove that employees are able to do more than they tell their physicians;
• Use of medical exams by doctors pre-selected by insurers to provide opinions that may support stopping TT benefits;
• Use of nurses or vocational counselors to intrude on your relationship with your doctor and to gain information from you directly which can be used against you; and
• Arbitrary refusal to pay benefits (perhaps to coerce settlements on terms favorable to the insurance company).

We are familiar with all of the tactics used by the insurers. There are certain patterns of behavior and history of prior conduct which often provide us advance knowledge of when these tactics will be used and give us an opportunity to defend against them before any damage is done!

Vocational Rehabilitation

The law provides that if your injury deprives you of the physical ability to continue with your employment then you are entitled to vocational rehabilitation. The employer/insurer have the responsibility to do whatever is "reasonable to provide suitable employment". While vocational rehabilitation is continuing, the employee will receive benefits at the temporary total disability rate. What this means is the source of much argument and litigation!

It is devastating to an employee when he or she looses the physical ability to continue to do their job. Although it may be impossible to return an employee to their pre-injury wage immediately, the focus of rehabilitation should be to provide a job with dignity and the potential for future growth. This may require schooling, on the job training and counseling in addition to job placement activities.

Unfortunately, all too often, insurance companies and their hired vocational counselors view the process as "us vs. them"! They attempt to shortcut the process by only providing short periods of job placement assistance in jobs with low wages and no hope of future advancement. From the insurance company's perspective, they may be just as happy if the injured employee becomes angry or un-cooperative. Then they will attempt to obtain a cheap settlement or will seek to portray the employee as lazy or dishonest at a hearing!

We, at BS&G, believe that this is one of the most significant aspects of a Workers' Compensation claim! Through the use of:

• The Commission rules to influence the selection of rehabilitation counselors;
• Ground rules for the counselors which includes no visits to the employee's home or his doctor (except in certain limited circumstances);
• Extensive experience and knowledge of the history of conduct by the various vocational companies and the counselors;
• A thorough knowledge of the law; and
• A deep understanding of how the individual Workers' Compensation Commissioners each view the vocational process

We often achieve tremendous results for our clients. Since the potential benefits available include up to two years of college tuition plus two thirds of your average weekly wage paid while you are in school, many of our clients have been able to progress to careers with opportunities much greater than they had before the injury! At a minimum we insist that our clients are treated with respect and are not railroaded into jobs that are not appropriate for their age, education, talents, transferable skills and physical restrictions.

Permanent Disability Benefits

If an injury results in any permanent physical problems, no matter how slight, the employee is eligible for permanent disability benefits.

If the injury involves any part of an arm, leg, hearing or vision, the Commission will be most influenced by permanent disability reports provided by physicians. These reports must use the appropriate version of the American medical Association's "Guides To The Evaluation Of Permanent Impairment" and should incorporate the following additional factors:

• Pain;
• Weakness;
• Atrophy;
• Loss of use; and
• Loss of Endurance.
We are sure that it comes at no surprise to you that the evaluating physicians selected by the insurance company often fail to incorporate the five additional factors mandated by Maryland law!

If the injury involves the back, neck, head or more than body part, then the Workers' Compensation Commission will consider the industrial loss the employee has sustained in order to determine permanent disability. This determination takes into account:

• Medical records and permanent disability ratings;
• The Employee's age;
• The employee's education;
• The employee's prior work experience
• The effect of the injury on the employee's ability to earn wages.
The award in an industrial loss case can be greater or less than that which would be reflected by the medical ratings alone.

The amount of money awarded for permanent disability depends on:

• Which body part was injured;
• The percentage award;
• Whether or not the employee was a public safety official;
• The employee's average weekly wage; and
• The amount of weeks awarded.

Each body part is worth a different maximum number of weeks of benefits. You will receive a specified amount of weeks of benefits (in addition to your regular salary and any money paid while you were on TT or vocational rehabilitation) based on the percentage awarded for your injury multiplied by the maximum number of weeks permitted for that body part (hearing loss is calculated differently). For example, a leg is worth 300 weeks (see disability chart). A 20% award would result in a payment of 60 weeks of permanency benefits.

There are four different types off permanency awards:

• First tier (under 75 weeks);
• Second tier (75-249 weeks or public safety officials or awards involving the big toe or any finger);
• Serious disability;
• Permanent Total disability.

Each of these types of awards will be paid at the following rate depending on the year of the injury and the employee's average weekly wage (see chart):

• First tier - one third of your average weekly wage not to exceed $114.00/week (for injuries after 1999);
• Second tier - Two thirds of your average weekly wage not to exceed one third of the state average weekly wage for the year you were injured. The maximum has been increasing each year. For a 2001 injury it is $232.00 per week;
• Serious disability - two thirds of your average weekly wage not to exceed three quarters of the state average weekly wage plus an additional bonus of another one third of the weeks awarded to you. The maximum amount for a 2001 injury is $501.00 per week;
• Permanent total - Two thirds of your average weekly wage not to exceed the state average weekly wage which for 2001 was $668.00. In addition the claimant will receive cost of living increases.

As you can see, the initial determination of average weekly wage may have a large effect on what you ultimately receive for permanent disability! The award will be paid to you weekly beginning the day you stopped receiving benefits for being out of work.

It is vitally important for you to claim permanent disability benefits if you are eligible for them. Not only will you potentially receive many thousands of dollars of tax free money for your injury, but you also will then have the added protection of a legally binding finding that you have sustained permanent injuries from the accident. This is extremely important if you need medical treatment in the future. Without a finding of permanent disability, the employer will surely object to any future medical care if there has been a gap in treatment of several months or years. Furthermore, you may only receive additional monetary benefits for time out of work or a worsening of your permanent condition within five years of the last time you received monetary benefits other than the payment of medical bills or vocational expenses. Therefore, if you fail to claim permanent disability benefits you are significantly shortening the time in which the insurer may be responsible to you should your condition worsen!

Scarring and Disfigurement

If you are not feeling any physical pain, but your injury has left you with a scar you are entitled to an award for that disfigurement. Injuries such as cuts and dog bites often result in such claims. What may seem to be a small inconsequential scar can often result in a thousand dollars or more of benefits.

Death Benefits

Beneficiaries of employees who die as a result of injuries they sustained on the job are entitled to compensation if the employee dies within seven years of the accidental injury (there is no limitation for an occupational disease). The amount the beneficiary receives depends on many factors including:

• The year of the injury:
• The employee's average weekly wage;
• Whether you are considered partially or totally dependent;
• The age of the beneficiary if a child;
• The marital status of the beneficiary at the time of the injury and now.

This is an extremely technical area of the law. Benefits can range from two thirds of the average weekly wage of the deceased (subject to the maximum rate for the year of the injury) to as little as $17,5000 (more if the injury was recent).

If the employee dies of causes unrelated to their injury on the job, the employee's beneficiaries may still be entitled to claim any benefits due to the employee. This includes permanent partial disability benefits that have not yet been awarded!