Maryland Police officers are provided additional benefits under Workers Compensation Statutes and case law
Maryland police officers are provided numerous benefits in addition to those provided for the ordinary employee. Maryland workers compensation laws provide extended benefits, and rightfully so, under the public safety rules which include increased permanency payments, presumptions of law, coverage for secondary employment jobs, and coverage while using patrol vehicle while off duty.
Higher Permanency rates and Settlement Value for Maryland Police Officers
2nd Tier Permanency Rates
Police are provided 2nd tier permanency rates in cases that would ordinarily be paid out at first tier rates because they are defined as public safety employees under Md. Labor & Employment § 9-628. Second tier rates are ordinarily paid on awards by the Workers Compensation Commission of greater than or equal to 75 weeks. First tier awards are paid out for any award under 75 weeks. In the event a Maryland police officer receives an award by the Commission of less than 75 weeks the police officer will still be paid at the second tier rate. The tier rates vary depending on the year of the injury but are determined by the employees wages as well as the state average weekly wage.
First tier payments are to be paid at 1/3 of the employees average weekly wage. The 1/3 must not exceed the rate set by statutory code. Some Examples:
Second tier payments are to be paid at 2/3 of the employees average weekly wage but must not exceed 1/3 of the state average weekly wage. Some Examples:
Police Officers, and all public safety employees, can usually look past the first tier rates as vary rarely will these amount apply to their workers compensation awards. The only instances in which public safety employees will receive first tier rates is if their average weekly wage was low enough to indicate first tier money.
An example comparing a public safety employee award to non public safety award can provide aid in understanding how the tier system would apply in a real life scenario.
Injured worker A was hurt while working as a landscaper. He was earning $1,000 a week. In 2016 he twisted his knee in a hole and received 6 weeks of physical therapy. He seen by the insurance company doctor and provided a rating of 5% to his leg. He was seen by the Claimants doctor and received a 20% to the leg.
Injured worker B was hurt while working as a patrol officer. He was earning $1,000 a week. In 2016 he twisted his knee chasing a suspect in the street. He also received 6 weeks of physical therapy, was rated and received a 5% by the insurance doctor and a 20% by the Claimants doctor.
Both A and B attended a workers compensation hearing and were both awarded a 15% which calculates to be 45 weeks of payment.
A will be paid for 45 weeks at $172 equaling an award of $7,740
B will also be paid for 45 weeks but at second tier rate for 2016 of $343. Equaling $15,435.
Settlement Value in Police Officers Workers Compensation Cases
In some cases Police Officers may enjoy a higher settlement amount than the ordinary injured Maryland worker. This is directly related to the public safety tier payment system. If a police officer is expected to receive an award of less than 75 weeks then he will be able to use the public safety permanency rates to negotiate a higher settlement than a non public safety employee would receive.
Settlement value of the Police Officers’ case may not be affected by the higher tier payments in the event that the expected award would be 75 weeks or more. At 75 weeks or more all injured employees receive second tier payment rates as long as their average weekly wage is high enough.
Presumptions of law enjoyed by Police Officers
In addition to the increased permanency awards Police Officers, as public safety employees, are provided presumptions of law regarding certain occupational diseases namely heart disease and hypertension. The statutory language in §9-503 states police officers is “presumed to be suffering from an occupational disease that was suffered in the line of duty and is compensable under this title if: (i.) the police officer…is suffering from heart disease or hypertension AND (ii.) the heart disease or hypertension results in partial or total disability.
WHAT THE PRESUMPTION MEANS: In the ordinary workers compensation case, or general civil lawsuit, the party seeking benefits has the burden of production and persuasion. Otherwise said, the party seeking something must prove their case with evidence and argument. When a legal presumption exists the burden on the person seeking benefits is almost completely removed. It is assumed that Police Officers who have developed heart disease or hypertension developed the disease because of their job. With the presumption at play the Officer would have to prove they have hypertension or heart disease, and they were a police officer.
WHAT THE PRESUMPTION DOES NOT MEAN: Police Officers will not effortlessly be awarded workers compensation benefits if they develop hypertension or heart disease. Even though there is a presumption, the Employer or Insurer have the right to rebut the presumption. If a proper rebuttal is provided then the Officer should choose to put on further evidence of support of his case because at any given time the Commissioner (workers comp judge) may be persuaded to rule in favor of the insurance company.
COMMON REBUTTAL DEFENSES include the last injurious exposure, the statute of limitations, and causes unrelated to employment.
Last Injurious Exposure is a defense raised by an employer in an attempt to shift the liability for an occupational disease away from the employer and to another employer or source. Under Maryland law benefits are to be paid by the employer for whom the injured worker was working at the time they were last exposed to the hazard. Stress has been determined the hazard causing heart disease in police officers. An example of last injurious exposure at play would be; a retired Police Officer could file a claim within one year from their retirement. If in that year they worked part time for another employer the liability of the heart disease may be shifted to the new employer. If successfully argued the Police department would be excused from liability and the claim against them lost. The officer would still have the option to file a claim against the post retirement employer but a presumption may not be involved.
Statute Of Limitations is one of, if not the most difficult defense to overcome in workers compensation cases. If the claim form for heart disease, hypertension, or any other occupational disease is not filed within 2 years from the date the Officer was disabled, had knowledge he was disabled as a result of working as an Officer. While the Statute of Limiations is difficult to overcome, there are numerous exceptions and waivers that may apply in any particular case. As always it is best to consult an experienced Maryland workers compensation attorney.
Causes Unrelated to Employment are brought up in almost every workers compensation case. Some examples include prior injuries, arthritis, obesity, and age. In heart disease and hypertension cases the unrelated causes may be brought up by the defense in an effort to blame the disease on a preexisting condition. The goal of the defense is to focus on other causes of heart disease and hypertension such as smoking habits, drinking habits, obesity, diet, lack of exercise, or prior medical finding s of high cholesterol and blood pressure.
Police Officers are likely covered under workers comp if off duty but driving their patrol vehicle
If an employer provides an automobile to an employee they are covered under Maryland workers comp laws if involved in an accident driving to work, coming home from work, or using the car for work purposes.
Police Officers enjoy this benefit but are also covered while driving their patrol car for what most would consider strictly personal use. In Montgomery County vs. Wade, 345 Md. 1 (1996) the Court of Appeals, which is Maryland’s highest court, ruled that a County officer was entitled to workers compensation benefits when she was injured in an automobile accident while driving her patrol car to her mothers house.
Pertinent factors in this case were:
- Montgomery County policy is to allow Officers to use the Personal Patrol Vehicle (PPV) for personal gain.
- County policy was that Off duty officers using a PPV must carry a handgun, handcuffs, and department credentials, monitor the radio, respond to calls if no response would reflect unfavorably on the department.
- The County benefits from this program by at the very least providing a visual deterrent to criminal activity.
- The use of the PPV was indeed incidental to her roll as a patrol officer.
- At any given moment she may have had to act in her official capacity.
- Dual purpose doctrine applies in this case because Officer Wade was furthering the departments business purpose while using the PPV on a personal errand.
While each and every workers compensation case is subject to a different fact pattern and different arguments police officers who operate their patrol car for personal use should know they may very well be entitled to workers compensation benefits.
Maryland Police Officers are likely covered by workers compensation when working secondary employment
The Court of Appeals ruling in the Montgomery County vs. Wade case provides solid support for the argument that when an officer works for a secondary employer, commonly referred to as moonlighting, the officer would be covered under the Departments workers compensation policy. Of course there is often room for argument based on the particular facts of any given case, however I am of the opinion that more often than not the police officer would be covered under the departments Workers Comp policy.
Factual analysis in determining whether the departments comp policy would cover the Officer acting as a security guard should begin with whether or not the officer was in anyway furthering the departments purpose. Was there a police presence by the officer working in security- was he in uniform, using patrol car, carrying weapon, mace, monitoring radio or acting as he typically would act while on duty?
Analysis should also consider whether he was permitted by the department to moonlight. Did the Police Officer have to first obtain permission from the department, did he follow the proper protocols, and did he violate any rules? Also of substantial significance is whether or not the department encouraged police officers to work side jobs. If the department encourages their officers to moonlight than they likely are receiving some benefit.