Articles Posted in Workers Compensation

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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 conclude 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 failing 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?

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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 claim 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 the application of Maryland’s workers’ compensation law. It is hard to argue with this logic.

You can read the opinion here.

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

The Plaintiff in this Baltimore City 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.

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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.

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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 regarding 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 case’s facts 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.

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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).

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A new Maryland workers’ compensation 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’ compensation 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).

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The Maryland Retailers Association got a $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 a 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.