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WORKERS’ COMPENSATION

Background

 

The purpose of the Maryland Workers’ Compensation Act is to protect employees, employers and the general public. The Act gives an injured worker (and dependents) a no-fault remedy against the employer to receive certain compensation for accidental injuries arising out of and in the course of employment. In exchange, the employer is protected by having tort immunity and limited liability. However, if the injury or death resulted from the deliberate intention of the employer, the worker (and dependents) have the right to take compensation benefits under the Act or sue the employer in a tort action.

 

Injuries Covered

 

The Act covers disability or death resulting from an accidental personal injury sustained by the employee that arises out of and in the course of employment. The accident must have been unexpected, unintended or unusual. An injury “arises out of” employment when it is apparent to a reasonable person that there was a connection between the injury and the performed work. “In the course of employment” refers to the time, place, and circumstances under which an injury occurred.

 

Occupational Diseases

 

A broad description of diseases that occur due to long term exposure to something in the employment. An occupation disease is a condition that may reasonably be attributed to either: (1) the nature of the employment in which the hazards of the disease exists; or (2) if the disease is one that is known to be caused by exposure to biological, chemical or physical agents that the employee was exposed to as part of the employment. In addition, the worker must have a disablement or suffered death as a result of the disease and a relevant pre-existing condition is considered.

 

Average Weekly Wage (AWW)

 

All compensation for disability or death is calculated on the basis of the worker’s average weekly wage, which includes not only salary and wages but tips, room and board, overtime and similar advantages received from the employee. The AWW does not include fringe benefits, such as employee contributions to pension plans. A volunteer worker is not entitled to compensable benefits, only non-income-based benefits (medical expenses).

 

The AWW is determined for the 14-week period immediately preceding the date of injury, not including weeks of involuntary layoffs or absences and not including the week of hire and the week the injury occurred. The Commission may deviate from the 14-week period. For occupational disease, the average weekly wage is determined as of the date of the employee’s last injurious exposure to the hazards of the disease.

 

In the case of an employee with two jobs, the AWW is determined by the earnings only in the job where the injury took place. However, if injured employee worked 20 hours or less, the AWW for a serious disability or permanent total disability benefit is to be calculated on the higher paying job; the Subsequent Injury Fund will reimburse the employer for amounts paid in the excess of what would have been paid if the employee had not had other employment. The AWW of an injured sole proprietor is based upon the net profit of the business after deducting expenses.

Compensability

 

 

Temporary total disability (TT)

 

TT is the healing period during which the worker is wholly disabled and unable by reason of the injury to work. A worker is still entitled to TT even if the worker has voluntarily retired or has become incarcerated. TT is 2/3 the AWW, not to exceed 100% of the state AWW for the year when the injury occurred. Before terminating TT, the employer must send written notice to the worker unless the worker has actually returned to work or the claimant’s own treating physician has stated that the worker has reached maximum medical improvement. Also, worker compensation benefits are non-taxable.

Permanent total disability (PT)

 

PT is the incapacity to do work of any kind. The loss of use of both arms, eyes, feet, hands or a combination of any of the two creates a rebuttable presumption of PT. Unless the worker improves, PT is paid for life. The claimant is entitled to two-thirds of AWW not to exceed the state AWW of the year of the injury plus a cost-of-living adjustment.

Temporary partial disability

 

If the worker has not reached the point of maximum medical improvement but has returned to part-time work, he or she is entitled to half the difference between his or her AWW before the accident and his or her wage-earning capacity in the same or other employment, not to exceed half the state AWW of the year of the injury.

Permanent partial disability (PP)

 

PP is defined as being partial in character, but permanent is quality. If an injured worker has a claim for PP benefits, it is strongly advised to speak to an experienced workers’ compensation attorney not affiliated with the employer or the insurance carrier.

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For Tier 2, in determining whether the employee has a sufficient number of weeks to qualify for the Tier 2 compensation rate, all of the weeks for the various permanent disabilities from the injury shall be added together.

 

Any disability to the thumb, fingers, or big toe is compensated at the Tier 2 rate even though the award is less than 75 weeks.

 

Public safety employees who are entitled to be paid at this rate for any disability regardless of the area of the body involved or the number of weeks of compensation.

 

The AWW or state AWW used in the rate of compensation is based on the year in which the injury occurred.

 

Serious disabilityIf a worker sustains an injury to a scheduled member and/or “other cases” injury of such severity that the worker is entitled to compensation for 250 weeks or more (Tier 3) for that injury, the worker is then entitled to compensation for an addition one-third the number of weeks.

Disfigurement

 

An award for disfigurement or mutilation may cover a maximum of 156 weeks; however, such an award may not be made in addition to an award for disability for the same area of the body.

Death Benefits

 

    If a worker dies as a result of an accidental injury or occupational disease, the death creates separate and distinct compensable event. The decedent’s dependents are entitled to recover, as of the date of death, the death benefits. The worker’s death must occur within seven years of the injury; this limitation does not include death from an occupation disease.

 

    A dependent is defined as one who relies in whole or in part upon a worker for the reasonable necessities of life or to maintain his or her standard of living. Whether the dependent was capable of supporting himself or herself without the earnings of the worker is immaterial.

 

    The law provides that questions of dependency shall be determined in accordance with the facts existing at the time of the accidental injury or the date of disablement from an occupation disease and at the time of worker’s death. Dependency is very fact specific and an attorney should be consulted if a person believes he our she is entitled to death benefits.

 

    If a widow or widower remarries and there are no dependent children at the time of remarriage, he or she is entitled to only two years of compensation thereafter. However, if there are dependent children of the decedent worker the children are entitled to continue receiving benefits despite the remarriage.

 

In the event of the death of a dependent, his or her rights to compensation unpaid at the time of death survives to the surviving dependents.

 

Funeral expenses. If there are dependents of the decedent, the employer’s liability for payment of funeral expenses is limited to $7,000.00. if there are no dependents, the employer must pay the entire amount of funeral expenses. No funeral expenses are payable unless death occurs within seven years of the injury or occupational disease.

 

Notice and Statue of Limitation

 

For an accidental injury or death, notice must be given in writing or orally within 10 days on said accidental injury and 30 days after the death of employee.

 

Unless the employer or the employer’s supervisor has actual knowledge, written notice within one yar after the employee knows or has reason to believe he or she is suffering from an occupational disease and within one year after death resulting from exposure to the occupational disease.

 

Failure to give the required notice bars a claim for compensation unless the Commission excuses the failure on the ground that notice for some sufficient reason could have been given of that the employer/insurer was not prejudiced by the lack of notice.

 

According to the Commission rules, a claim is considered filed only when a completed and signed claim form, including the signed medical authorization, is received by the commission and date stamped. An electronic submission of a claim form is not considered a filing and does not prevent the running of the limitations period.

 

A claim for compensation in accidental injury cases must be filed at the Commission within 60 days after the date of the accident, unless the Commission excuses the failure on the ground the employer/insurer was not prejudiced by the lack of timely filing. However, failure to file the claim within two years after the date of the accident constitutes a complete bar and may not be waived. The fact the worker was unaware that he or she sustain a compensable disability does not extend the period of limitation.

 

A claim for disability from an occupation disease must be filed within two years (for pulmonary dust disease the statute limitation is three years) from date of disablement or date the worker (or dependents) had actual knowledge that the disablement was caused by his or her employment.

 

A claim for death benefits (including other required forms) resulting from an accidental injury must be filed within eighteen months from date of death.

 

A claim for death benefits from an occupation disease must be filed within two years (for pulmonary dust disease the statute limitation is three years) from date of death.

 

An employer must file an injury report with the Commission within ten days after he or she as notice or knowledge of an accident causing disability for more than three days during the two-year period following the accidental injury. If the employer fails to file a report as required limitations for filing a claim for accidental injury shall not run until the employer file a report.

 

When a disability from an occupation disease occurs, employer must file report with the Commission.  However, failure to file a report does not extend the statute of limitation.

 

Reopening for additional compensation. An application for the Commission to change or modify a previous award must be made within five years from the date of the accident (or the date of disablement in occupational diseases) or the date of the last payment of compensation for temporary or permanent disability is received by the claimant or his or her agent, whichever is later. A petition or request to reopen or modify an award or compensation is not effective unless it alleges a change in disability status and not merely a need for continuing medical treatment.

 

If it is established that a failure to file: (1) an accidental personal injury, (2) a death benefit claim or (3) a reopening for worsening condition because of fraud or circumstance or facts that amount to estoppel, then the claimant (employee or dependent) shall have one-year to file the claim from the date of discovery of the fraud or when the circumstances or facts that created the estoppel ceased. If this situation befalls a claimant, please contact an attorney immediately.

 

Limitation in Third Party Cases

The period of limitations within which the worker may sue a third party is tolled during the two months following the Commission’s first award because the employer/insurer has the exclusive right to sue a third party during those two months.

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