Workers Compensation

New IME Guideline in Workers Compensation Cases?

In our practice handling serious car accident cases, we regularly spar with insurance companies over the conditions for “independent” medical exams where an insurance company hires a doctor – usually a doctor they have paid hundreds of thousands of dollars to over the years – to testify for them. Some of these doctors take incredibly bizarre and illogical paths to concluding that the plaintiff was not really hurt or, if the injuries are extreme, that the plaintiff has made a full recovery or that the injuries were not caused by the accident. If you are a lawyer regularly handling serious car accident cases, you know what I’m talking about. If you are not, please trust me: this is a ridiculous racket that gives justice a black eye.

It looks like the insurance companies in Maryland workers’ compensation cases want to end run any battles over anything and everything related to independent medical exams. They have proposed a new Code of Maryland Regulation (COMAR), regulation 14.09.01.20, that would pretty much give defense lawyers carte blanche to both schedule and compel plaintiffs claimants IMEs at will with potential stiff penalties for the failure to appear.

Take a look at these regulations. They begin with an insult. “Either party may schedule an independent medical examination.” Gee, thanks for the equanimity but when does the plaintiff schedule an IME in a workers’ compensation case?

It goes on from there. The regulations are vague, which I think is deliberate. It does not detail with any specificity what is required of the injured worker when attending the “independent” medical examination and it imposes draconian penalties for missed IMEs, without setting for what would constitute good cause. In short, this proposed regulation is a train wreck.

Do you agree? Comments may be sent to Amy S. Lackington, Administrator, Workers’ Compensation Commission, 10 E. Baltimore Street, Baltimore, MD 21202, or call 410-864-5300, or email to alackington@wcc.state.md.us , or fax to 410-864-5301. Comments will be accepted through June 4, 2012. Final action on the proposal will be considered by the Workers’ Compensation Commission during a public meeting to be held on June 28, 2012, at 10 E. Baltimore Street office.
Our firm rarely handles workers’ compensation cases. We handle them usually as a courtesy for our third party injury cases. But I think this regulation impacts our car and truck accident practice because it puts the terms and conditions of independent medical exams on a very slippery slope.

New Workers Comp Appellate Opinion

The Maryland Court of Special Appeals decided a worker’s compensation case today involving former Redskins punter Tom Tupa. The case addresses the issue of where a comp claims arises for a player who played in Maryland at FedEx field but practiced in Virginia. Plaintiff was injured practicing before a game in Maryland but his contract had a forum selection clause that required all comp claims to be brought in Virginia.

The court found that parties cannot contract to avoid application of Maryland’s workers’
compensation law. It is hard to argue with this logic.

You can read the opinion here.

New Maryland Workers’ Compensation Opinion

The Maryland Court of Appeals issued a 5-2 decision this morning in a workers’ compensation case, WalMart v. Holmes.

The Plaintiff in this case sought to collect permanent partial disability benefits under the Maryland Workers’ Compensation Act on behalf of his wife, who died of causes unrelated to her work injury. Plaintiff testified he needed their combined income with his wife’s disability benefits in order to meet their living expenses. The Maryland Workers’ Compensation Commission found that Mr. Holmes did not present evidence to show that his decedent wife had “a legal obligation to support” him at the time of her death and, accordingly, her claim for permanent partial benefits did not transfer to him.

The issue in this case involved claims where the surviving spouse seeks permanent disability benefits according to the Maryland Workers’ Compensation Act. The court, in an opinion by Judge Greene, found that the surviving spouse must either show dependency or evidence of a legal obligation of support that was owed to the surviving spouse by the decedent.

Judge Adkins and Chief Judge Bell disagree, arguing that the court is looking through the wrong analytical looking glass. Instead of focusing on a spouse’s duty to provide support, the majority hones in on the surviving spouse’s right to receive support. Accordingly, the majority ignores Maryland law’s authority to enforce spousal support by criminalizing the willful failure to provide support. Under the dissent’s view, the claim should go to the trier of fact and that, if uncontroverted, Plaintiff’s testimony that he needed the disability payments should be enough.

You can read the full opinion here.

Maryland Appellate Court: New Workers Comp Opinion

In Darby v. Marley Cooling, the Maryland Court of Special Appeals considered the question of whether an employee that prevailed before the Maryland Workers’ Compensation Commission may file an “intent to participate” in a Circuit Court appeal and raise objection to the rest of the Commission’s decision or whether the employee is required to file a cross appeal.

This does not sound like a particularly serious workplace accident case although the Plaintiff was struck on the head by a 24′ by 12″ by 6″ aluminum board used as a temporary work surface, which was dropped by a co-worker. He did not have significant head injuries and returned to work on the day of the accident. Plaintiff had tenderness at the C2 through C7 vertebra. Plaintiff took a trapezius bilateral test that was positive for pain, and x-rays showed a straightening and loss of the anterior cervical lordosis (a finding that is often insignificant).

Plaintiff prevailed before the Maryland Workers’ Compensation Commission and the employer appealed to the Baltimore County Circuit Court.

The Court found that Maryland Rule 7-203(b) requires a cross-appeal from Plaintiff for a portion of any administrative agency decision aggrieving a cross-appellant. The fact that Maryland workers’ compensation claims are de novo does not confer interest on the injured worker requiring continuation of proceedings in order to permit challenge to portions of orders by which injured workers were not aggrieved.
You can read the full opinion here.

Maryland Workers’ Comp Rates

New Maryland Workers’ Compensation rates were posted on line today.

New Maryland Workers’ Compensation Opinion

On Thursday, the Maryland Court of Special Appeals decided a workers’ compensation case in Montgomery County, Maryland in Montgomery County v. Willis. This case involves an interpretation of the Maryland Workers’ Compensation Act with respect to when an injured worker can appeal a decision from the Workers’ Compensation Commission denying a request to have the Commission refer the case to the Insurance Fraud Division in the Maryland Insurance Administration, pursuant to Maryland Labor & Employment. Code Ann. § 9-310.2.

The facts of the case deal with an old friend of the Maryland accident lawyer: the subsequent injury. The Claimant was a police officer with the Montgomery County Police Department when she injured her knee at work on July 20, 2001. The Claimant then had another knee injury off the job. The Claimant played it straight and told her employer about both injuries. She got the idea for a workers’ compensation claim from her supervisor and her employer did not contest the claim.

So far, so good. But five years later, the Montgomery County Self-Insured Fund who provided the workers’ comp insurance for the Montgomery County Police, claimed it was not aware of the subsequent injury and requested a hearing for a referral to the Maryland Insurance Fraud Division.

A Maryland Workers’ Compensation Commissioner, R. Karl Aumann, found no fraud. Montgomery County Self-Insured Fund filed a Circuit Court appeal. Montgomery County Judge Robert A. Greenberg found that Commissioner Aumann’s order was not subject to appeal.

The Maryland Court of Special Appeals found that when an employer seeks a fraud review of workers’ compensation benefits based on its belief that an employee wrongfully obtained those benefits, the Commission’s determination is subject to full review in Circuit Court. Accordingly, the Court of Special Appeals reversed and remanded the case to Montgomery County Circuit Court.
I’ll bet you $10 the Circuit Court affirms the Workers’ Compensation Commissioner in this case.

 

Maryland Accident Lawyer Practice Tip: PIP and Workers’ Compensation

Many of our Maryland accident lawyers’ clients were injured in a car accident while on the job. This means the plaintiff has three accident claims under Maryland law: PIP, third party liability, and workers’ compensation.

Generally, a Maryland accident lawyer wants to present the PIP claim before the workers’ compensation claim in Maryland. Other states differ on the right of subrogation of PIP insurance. But Maryland law is clear that the PIP carrier has no right of subrogation against any third-party recovery, according to Maryland Code, Insurance Article §19-507(d). In other words, if the PIP claim is made first, the injury victim does not have to pay back the PIP benefits the victim receives (most attorneys don’t charge for PIP claims). In contrast, the workers’ compensation carrier has subrogation rights (after attorneys’ fees) out of the third-party recovery for the workers’ compensation benefits that it paid to the victim under Maryland Code, Labor and Employment Article §9-902(e) and §9-902 (f).

If a Maryland accident lawyer decides – either out of laziness or just getting it wrong – to put the workers’ compensation claim first, the lawyer might be barred from making a PIP claim. Under Maryland accident law, the PIP carrier receives a setoff for workers’ compensation benefits that the accident victim has received under Maryland Code Insurance Article §19-513(e).

Maryland Workers Comp Bill Nixed in Committee

A new Maryland worker’s compenation bill introduced to the Economic Matters Committee of the Maryland House of Delegates did not make it to the floor. HB 345 would have established workers’ compenation coverage in Maryland for sole proprietors under our workers’ compensation law unless the sole proprietor specifically elects to be exempt from coverage (not unlike specifically waiving PIP coverage).

Maryland Workers Compensation Schedule

Click on the link for Maryland’s monthly and weekly Maryland Workers’ Compensation schedules.

Our lawyers handle Maryland workers compensation cases where there is a significant injury or death with a potentially culpable third party.

IWIF Refund?

The Maryland Retailers Association got $276,268 check from IWIF Workers’ Compensation Insurance. Why is a workers’ compensation insurance company – the largest provider of workers’ compensation insurance in Maryland – paying this retailers association? The payment is group safety dividend check for controlling losses and preventing workplace injuries and accidents in 2007.

Certainly, it is a good idea to reward safe practices in the workplace so this sounds like a good plan.