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Sometimes yes and sometimes no.
By this time you have likely heard of the ice bucket challenge and this unprecedented effort to raise awareness of the horrific Amyotrophic Lateral Sclerosis (ALS or Lou Gehrig’s disease). There is no doubt that the amount of awareness and money this challenge has raised is of benefit to our society. You may have seen a group of firefighters, or police officers, or even a veterinarian clinic performing the challenge. The question arises as to whether these employees would be covered under workers’ compensation in the event they were injured while completing the challenge. Maryland law is not clear but tends to favor the employee.
Maryland workers comp law states that if you were in the course of employment, and the task you were performing arises out of your employment, then the claim is compensable under the Maryland workers compensation laws. Here is a list of arguments that are often made to determine if you were injured “arising out of and in the course of employment.”
•Participation was required by your supervisor.
•You were paid while completing the challenge.
•You were urged to participate.
•The video can be used as marketing for the company.
•The task at hand is something that is secondary to your duties at work but you are still expected to complete these tasks on occasion.
Consider the many volunteer Firefighters, EMT, and Paramedics who place their lives directly at risk on a daily basis. It is fairly common for these employees to be injured on the job. Without some special statutory exception they would be left with medical treatment but no financial assistance while out of work because of the work injury. To determine a volunteers ttd rate and average weekly wage Maryland workers comp law provides use of their full time job wages. So, the full time accountant/part-time volunteer firefighter would be paid according to the wages he or she made while working as an accountant even though his work injury was sustained while working as a volunteer firefighter.
As you can see the most seemingly simply calculations can be complicated by a number of factors. To ensure that you are receiving an accurate amount of temporary total disability benefits and all of the benefits afforded to you under Maryland’s workers compensation laws you should contact an experienced attorney.
The short answer is that workmans comp has an attorney looking out for their best interest so you should have an attorney looking out for your best interest.
One of the most common questions that I get is in regards to the necessity of a Maryland workers compensation attorney if “workers comp” is seemingly cooperative. The incentive for “workers comp” or the insurer to pay for everything is to keep the injured worker satisfied so they do not retain an attorney and seek ALL of the workers compensation benefits the law provides. The theory is to keep the injured worker somewhat satisfied and hope that they go away without obtaining full benefits.
In Maryland it is quite difficult for workers compensation Insurers to avoid paying for health benefits if the claim is legitimate and the employee is compliant. Insurers are aware of this so instead of upsetting the injured employee to the point where they “lawyer up,” the work comp adjusters will provide the medical benefits in an attempt to keep the injured worker happy.
There are other benefits that the insurance company does not want you to have and that you will most likely not receive without an attorney. See the benefits page
At some point treatment may come to a standstill. The scenario often arises when the injured worker least expects it. Physical therapy was approved, medications were paid, the shoulder sling or knee brace was paid- then a denial letter is received in the mail by the hurt employee. A great majority of injured Maryland workers seek attorneys when their treatment is denied and for good reason. The Workers Compensation Insurer is obligated by law to provide medical treatment; however they are also entitled to have a second opinion and once obtained the workers comp adjuster can rely on that second opinion to terminate treatment.
The second opinion or Independent Medical Evaluation (IME) provides the workers comp insurer the evidence they need to deny the treatment suggested by the injured workers treating doctor. Most often an IME is obtained when the cost of treatment is rising or the workers compensation adjuster feels as though the expenses are about to increase exponentially. Some typical times a comp insurer will schedule an IME include: when an MRI is ordered, surgery is recommended, injections or pain management are being recommended, or an extensive course of physical therapy is prescribed.
When treatment is cut off by the workers compensation insurer there is still a good chance that the injured Maryland employee can receive the treatment necessary by requesting a hearing before the Maryland Workers Compensation Commission. This is done using the Issues form on the Maryland Workers Compensation website. The chances of obtaining the necessary treatment at the hearing are substantially reduced when the injured worker does not have a qualified Maryland workers comp attorney. There must be specific evidence submitted within the injured workers exhibit packet, certain legal arguments bolster the chances of winning the treatment through workers comp, and the insurance company will have their attorney present and armed with a defense. It is important that the injured worker realizes that the insurance attorney most likely spends every day practicing workers compensation law. They will have a significant upper hand at the hearing and the Workers Compensation Commissioner generally rules in their favor when the injured worker is unrepresented.
The best thing an injured worker can do if their treatment is terminated by the workers compensation insurer is to reach out to a experienced and qualified workers compensation attorney. There is no charge to speak with a workers compensation attorney in Maryland so their is no reason not to make the phone call. Free advice is better than going into a hearing unrepresented and without an idea of what will happen.
Where do I find the workers compensation Forms?
The procedural laws for handling a Maryland Workers compensation case can be quite complex and it is generally recommended that the injured worker do his or her best to obtain a qualified Maryland workers compensation attorney. If the injured worker has attempted to obtain counsel and is still unable to do so they may be forced to represent themselves.
It is important for every hurt employee to know that in order to plead almost any issue in a case the injured workers must fill out a form with the workers compensation commission. The most common form is the issues form which gives the employee the opportunity to request a hearing and specify whether it is for lost wages/ temporary total disability, medical treatment, or an increase in permanency. The forms can be found on the Maryland Workers Compensation website by navigating to the forms page.
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A sample of some common Maryland workers compensation forms are listed below. The utmost of caution must be exercised when filling out these forms. A simple click of a button can result in forever ending the claim.
Form Issues H24r is used by the injured worker to request payment of lost wages, permanency, medical treatment. This is probably the most common form used by any Maryland workers compensation attorney however a search of the complete list of forms should be done before filing this because there may be a more specific form available.
Form CO6 Termination of TTD benefits. If you have received this form it is quite possibly time to obtain counsel to represent you in your workmans comp claim. This form is used by the insurance company to advise that your weekly workers comp checks are being terminated. The adjuster may be terminating your benefits because of the result of an IME, or anticipation of the results of an IME, or the work comp adjuster may just think that your case is getting to expensive.
Form H25r Request for action on filed issues. This form can be used if you no longer wish to have a hearing before the workers compensation commission, if the hearing location is not convenient a change of venue can be requested, if you have more than one workers comp case that needs to be heard a set with can be requested, and if you wish to dismiss the claim this form can be used.
Form H28r Is used to request a continuance or postponement of a hearing that has been scheduled before the Maryland workers comp commission. This form should be filled out carefully so that the request for the continuance is justified. Good cause must be shown to get a postponement granted.
Form H31r Change of address.
Form H32 Controversion of Medical Claim. Most often this form is used by medical providers who have treated the hurt worker in order to have outstanding medical bills paid. More often then not the workers compensation insurer will not contest the bill and the physician or facility will eventually receive an Order from the Maryland Workers Compensation Commission granting payment. Occasionally filing this form will result in an objection by the workers comp insurer and employer, or the workers comp defense attorney, and a hearing will be scheduled. It would then be up to the physician or facility to prove that their treatment was related to the claim. This can be quite a difficult task if there are prior orders in the claim indicating that the treatment is not related or if the workers compensation insurer have an IME indicating that the treatment is not related to the workers compensation claim.
Form C3 Claim Amendment and accompanying Medical Authorization- this claim is used to add or remove body parts from the workers comp claim that are being affected by the original injury. Like the original injured body parts, the workers compensation adjuster and workers comp attorney will be entitled to request medical records for that injured body part. There is a medical authorization that must be filled so the the workers compensation insurer can obtain and and all medical records pertaining to the injured body part that has been added to the claim.
Workers compensation attorneys in Maryland work on a contingency fee basis. What this means is that they are paid no money up front and must recovery money for the injured worker before they are able to be paid. There is very little gray area when determining the fee for a workers comp lawyer because the fees are addressed in the Labor and Employment Article of Maryland’s Annotated Code. The fees are black letter law with very little room for change at this point in time. Unlike auto accident cases, there are a few different ways a Maryland workers compensation attorney can get paid. Each way requires a fee consent which is a standard form provided by the Maryland Workers Compensation Commission, and the fee must be approved by a Workers Compensation Commissioner.
In Maryland the injured workers attorney can request a fee out of any settlement obtained for the injured worker- his or her client. The fee is calculated using an equation listed in the statutes. Simply put, the most a workers compensation attorney can request to charge (must be approved by the Commissioner) a client is twenty percent (20%) of money recovered plus out of pocket expenses of the attorney. Only in very rare circumstances is an attorney allowed to be paid more than 20%.
Some unique factors about a Maryland workers compensation attorney’s fees is that the percentage gets reduced as the settlement number increases. For example: A $10,000 settlement would yield a $2,000 fee, however a $100,000 settlement would not yield a $20,000 fee. The attorney would be entitled to 20% fee only on a portion of the $100,000 work injury settlement, a 15% fee on another portion of the $100,000 settlement, and a 10% fee on the final portion of the workers comp settlement. It is also important to note that the attorneys fee is capped by Maryland law for every workers compensation case so in 2016 the attorney would get the same fee on a $150,000 settlement as he or she would receive in a $500,000 settlement.
A second way that a Maryland workers compensation attorney can be paid is if the attorney goes to a hearing for the injured worker to recovered lost wages (aka temporary total disability) for the employee. The fee on lost wages is 10% of the wages owed to the injured worker.
The third way a workers compensation attorney in Maryland can be paid is by going to a hearing on permanency or coming to an agreement with the workers compensation defense on the permanency of the claimant. The calculations on this fee are done as they would be done in a settlement.
If a decision is made by the Maryland workers compensation commission and the case is appealed to the Circuit Court then the claimants attorney can request an appeal fee. The appeal fee is typically an additional 1-3%.
In very exceptional circumstances the work injury attorney can request an extra fee. This is not confirmed by the Commission very often but it does happen occasionally. Instances that may justify an increased attorney fee would be repeated appearances at hearings, or lengthy appeals.
Temporary Total Disability (ttd) are the payments an injured worker receives or is entitled to receive when they are at a point of total disability but the disability is for only a temporary basis. To be entitled to these benefits a few requirements must be met.
The first requirement to be entitled to ttd is that the injured worker show the injury arose out of the employment, and that it occurred in the course of employment. In non-legal-jargon this means that the injured worker or claimant must have been injured while performing tasks that are part of his job duties and at the time of the injury he was working. There is indeed an extraordinary amount of case law that qualifies what is considered “working” and what are considered “job duties” however the discussion would go beyond the purpose of this article.
If the employee’s injury arises out of and in the course of employment then the next determination is whether that injured employee is temporarily and totally disabled. To determine this the claimant must obtain an out of work slip from his treating physician. If the doctor indicates that the claimant can work but for limited hours, or the claimant can work but has limitations then the claimant is not totally disabled. If the treating doctor indicates that the claimant will never be able to work again then the injured worker is not temporarily disabled.
If the above two requirements are met then the injured worker is entitled to ttd payments however this right can always be challenged by the workers comp adjuster. The comp adjuster is entitled to obtain their own medical evaluation and does not necessarily have to go along with whatever the treating doctor indicates. If the workman’s comp adjuster desires to obtain an independent medical evaluation then the temporary total disability benefits may not be issued for sometime. When will I receive my benefits than?
After reading this you may believe that you are entitled to ttd and could be wondering why you have not received the check or checks. The reality is that even if you meet all the requirements under Maryland Law you may still need a Workers Compensation Commissioner to issue an order indicating that the workers compensation adjuster is required to make the payment! To get this you will need an attorney!