Matt Darby Wins Big For Fire Fighters and Government Employees

M.Darby- 029Clifford B. Sobin, Esq.

Eight years ago, almost to the day, I attended hearings at the Maryland Legislature related to some newly proposed laws that would help people claiming Workers’ Compensation benefits. My firm for more than two decades has worked with Unions throughout Maryland to help people that have been injured on the job; with their claims and with enacting new laws. That day, Matt Darby was there as well. He was a principle partner in a firm that had the same mission as ours. Once the meetings were over he was kind enough to drive me to my car.

We got to talking and realized that both of our firms had similar cultures and similar values. The light bulb went off. Why not merge? Almost three years later we did.

Now, as further proof of the validity of that vision, only two months after my partner, Ken Berman, scored a huge victory in the Court of Appeals for fire fighters, now Matt Darby has done the same in the Court of Special Appeals.

Facts

The case involved one of our clients who suffered from coronary heart disease. Matt succeeded in convincing the Maryland Workers’ Compensation Commission that our client’s condition was compensable and that he had a 25% percent industrial disability as a result. The Commission awarded him more than $33,000 dollars.

However, there was a problem. Baltimore County argued he was not entitled to the money because he was receiving a retirement benefit that paid more than the Workers’ Compensation award. Therefore, to use a tired legal expression; the award was “set-off” by the retirement benefit. In theory they had a point – but in practice they did not. The County argued that the money our client received in a lump sum five years before the Commission hearing, as part of the DROP program, should be included in the “set-off” calculations.

Matt said no!

Argument

He argued that the law required looking week by week to see what retirement benefits were actually paid for that week and compare it to what was owed under the Commission award for that week; then calculate the “Set-off” separately for each week. Matt won before the Commission. He won before the Circuit Court. And now he has won in front of the Court of Special Appeals.

Not only did the win benefit our client, but it will help all fire fighters, police officers and any other employee of a county, municipality or the state. If you would like to read the case it is located at:

http://www.mdcourts.gov/opinions/cosa/2014/2053s12.pdf.

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Fire Fighters in Maryland Have a Great Day in the Court of Appeals

  • Berman.K- 021Clifford B. Sobin, Esq.

It is nice to be able to toot the horn of somebody you respect greatly. It is even nicer when that person is your partner. Yesterday, the Court of Appeals unanimously found in favor of a Maryland fire fighter injured in a car accident while on the way to his station to check the mail.

Ken Berman briefed and argued the case in front of seven Judges. I will get to the facts in a minute, but first I want to highlight Ken’s dogged determination. The injury occurred on October 28, 2010.  Then:

1)      The Workers’ Compensation Commission ruled against the fire fighter in 2011

2)      A Circuit Court Judge ruled against the fire fighter in 2012

3)      A Court of Specials Appeals panel ruled 2-1 against the fire fighter in 2013

But, Ken remained resolved. I remember well our discussions at that point. He felt strongly that his client had been wrongly denied. So, once again, with pen to paper (or in this case keyboard to screen) he wrote what is called a petition for certiorari. That is a request to the Court of Appeals to consider a further appeal. They do not have to do it. They only accept a limited number of cases every year. But, in this instance they agreed to hear Mr. Roberts’ appeal. Ken wrote convincingly that the issue was one of importance to fire fighters and employees in general in the State of Maryland.

Today, the Court of Appeals found in Ken’s client’s favor.

What Happened

Mr. Roberts was, and still is, a fire fighter in Montgomery County, but the circumstances of this case are applicable to any fire fighter working in any jurisdiction in Maryland. For that matter, the Court opinion benefits any employee in Maryland. Now, let’s run through the facts:

·         Mr. Roberts had an accident on the job that caused injuries that restricted him from regular duty.  Therefore the County required him to work temporarily at a location where he could do light duty (headquarters in his case)

·         As a fire fighter, he is required to maintain a certain standard of physical fitness.  Therefore, he normally started his day, with the encouragement of his employer, working out at an exercise facility around 7:00 a.m.

·         The County paid Mr. Roberts for a work day beginning at 7:00 a.m. despite the fact that he often did not arrive at the light duty facility until 9:00 a.m. after working out.

·         Mr. Roberts decided, on the day he suffered his new injury that was the subject of his appeal, to first stop at his regular duty station to pick up County internal mail that was routed to him at the fire station.

·         Mr. Roberts was in a motorcycle accident while on the way from the exercise facility to his regular duty station to pick up the mail.

·         The County refused to accept the new injury as part of his old Workers’ Compensation case or as part of a new one. They argued he was not working when he suffered the injury. The legal term they used was that he was excluded because of the “going and coming” rule. That is legal jargon for saying Mr. Roberts was commuting to work.

·         Ken argued that the proper legal concept was to use the “but for Positional test.” In other words, but for Mr. Roberts’ employment, he would not have been where he was when the motorcycle accident occurred. Since he was traveling from one employment location to another, and along the way stopping for employer mail that he needed to see to benefit the employer/employee relationship, Mr. Roberts had the right to file a new Workers’ Compensation claim for his injury.

The Court of Appeals found Ken’s argument so persuasive that all of the judges signed onto the Opinion.

Why is the Roberts victory important? Because it locks in an evolving concept of law that looks at the reason an employee is where they are when they are injured. It is especially important to employees injured, and on light duty.  Frequently, they have to work their light duty assignments in locations different from their normal reporting station, but they have to keep up with what is happening on the regular duty job as well. If they do not, they may run afoul of new rules, not become aware of new procedures, and in general lose contact with what they used to do making transition back from light duty all the more difficult.

When I asked ken how he felt about the victory and to what he attributed it to, he answered:

It was a group effort of the entire firm – from writing the brief, developing the strategy, and preparing me to argue by peppering me with difficult questions – they all made me better.  It is a testament to our team approach. As for Mr. Roberts, I felt strongly he had been wronged. I can’t stand when one of my clients gets less than he or she deserves. It is deeply satisfying to me when I can change a wrong.”

Mr. Roberts when he first heard the news, responded, “I appreciate it. You’ve been there every day for me since day one.”

Today’s result reflects a great job by Ken, and a great day for fire fighters. You can read the opinion at http://www.mdcourts.gov/opinions/coa/2014/39a13.pdf.

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Hearing Loss and Tinnitis Claims – Maryland Workers’ Compensation Law

By Clifford B. Sobin, Esq.

bigstock-Conceptual-image-about-human-e-33072527

Occupational Deafness claims under Maryland Workers Compensation generally involve two different medical problems.  The first is actual inability to hear sounds.  This is referred to as hearing loss.  The second often shows up as “ringing in the ears” and frequently is caused by tinnitus. Despite the fact that they both impact your ability to hear and understand what other say, they are treated differently by Maryland law.

This blog entry is part of a three part series.

  • This blog post discusses hearing loss.
  • My next blog will cover tinnitus.
  • The third in this series will talk be about money you may receive if your case is found compensable and the importance of filing a claim due to the potential future expense of hearing aids.

How Much Hearing Loss Do You need to File a Claim?

Unfortunately, not all hearing loss that you may have is covered.  Typically, occupational hearing loss first appears at the higher frequencies. If your employer provides hearing tests, as is the case with many fire fighters, the records will include a chart that summarizes the testing results.  The same is the case if you go to your private physician.

Usually, if you have hearing loss it will first show up at the higher frequencies; between 4,000 and 6,000 hertz. Although that type of loss is annoying because it means you have difficulty hearing high pitched sounds and perhaps voices on the telephone – it is not covered under Maryland Worker’s Compensation law. Only frequency loss in the 500 to 3,000 range is covered. And then, only if the average is more than 25 decibels of loss and your age was less than fifty when you were last exposed to noise (your hearing tests will show the loss at 500, 1000, 2000, and 3000 herz).

If you were older than fifty when last exposed to loud noise on your job, the average goes up by one half decibel for each year.  Therefore, if your last exposure was at age 54, you need more than an average of 27 decibels of loss.

Which Employer Pays?

Generally, the last employer you worked for when last exposed to loud noise is responsible for paying your hearing loss claim if you worked there for at least ninety days. However, that employer has the right to try to lay off some of the responsibility to pay you if they can prove your prior employers caused some of your hearing loss. But that is their problem, not yours.

However, if you worked for more than one employer at the same time of your last noise exposure, and you were exposed to loud noise while working for both, then things get a little bit more complicated. Frequently, both employers will be added to your Workers’ Compensation claim and both will share the responsibility to pay you.

How Long Do You have To File a Hearing Loss Claim?

The easy answer is two years, but two years from what? To be on the safe side you should seek legal advice as soon as you think you are suffering from hearing loss. It is a simple matter for your attorney to review your medical records and determine if it is time to consider filing a claim.  I usually ask my clients to forward me their last hearing test and then I tell them in a quick telephone call if they should move forward.  If you are curious for yourself, I invite you to contact me. There is no charge for me reviewing the records.

But what if it has been more than two years since you first have had tests showing hearing loss? The simple answer is … it’s complicated. There is an appellate case that said an employee filed his claim too late because he waited more than two years from when he was told by his doctor that he had hearing loss caused by his job and – this is important – the test showed a level of hearing loss that was covered under Maryland law. The bottom line is the following factors matter:

  • When were you advised that you have hearing loss?
  • What were the test results when you were told?
  • Did your physician say it was occupationally related?
  • Has your employment changed since your last test and has your hearing worsened in the new employment?
  • Has it been more than two years since you first have had hearing test that is compensable under Maryland law?

Unfortunately, as you might guess by now, I can’t provide you with a definite answer for you to be sure how long you have to file a claim. To what extent the factors above make a difference is very fact specific. Only an attorney can make an informed decision and provide you with the proper advice customized to you.

 

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Worker’s Compensation Benefits In Bankruptcy

By Clifford Sobin, Esq. and Jeff Sherman, Esq. (Guest Author)Bankuptcy wordcloud

If you are injured on the job, the consequences can be devastating.  Not only do you and your family have to confront the effects of the injury, you also have to deal with the financial impact as well.  Sometimes, the financial consequences due to reduced or delayed payments are devastating.

Your financial concerns may lead you to thinking about filing for bankruptcy. One very important question is whether the workers’ compensation benefits you are receiving are protected from the people and companies (legally known as “creditors”) that you owe.

Fortunately, Maryland law protects certain types of your assets, in whole or in part, when the Bankruptcy Court in Maryland has jurisdiction.  These are called “exemption” laws, because they describe assets that are “exempt” from the reach of creditors outside of bankruptcy, and which cannot be seized within a bankruptcy case.  “Exempt” assets are those which the debtor (in this case you) gets to keep, no matter how much money the debtor may owe, or to whom.

Generally, under Maryland’s exemption laws, an injured worker’s right to receive worker’s compensation benefits is exempt, and cannot be taken by the bankruptcy trustee or be used to pay creditors through bankruptcy.  Not only is the right to receive current benefits exempt from creditors and the trustee, but the right to receive a lump-sum award of benefits is also exempt from the reach of creditors and the trustee (it is best to keep your lump sum settlement in a different account from your other money). There is no dollar limit to this exemption, so the entirety of the worker’s entitlement to benefits is exempt.

But the exemption will only work for you if you make the proper disclosures.

Even though your right to receive worker’s compensation benefits is exempt in its entirety, you are still required to make full disclosure of the existence of those benefits. When a person files bankruptcy, there is a comprehensive set of documents, called Schedules of Assets and Liabilities which the debtor must complete.  The list of assets (Schedule B) must include a disclosure of the debtor’s entitlement to worker’s compensation benefits on a current basis, and any claim for accumulated or unpaid benefits.  The debtor may claim these as exempt in the list of assets claimed to be exempt (Schedule C).   If you don’t list them, you very likely will lose the right to claim the exemption.

While bankruptcy is an extreme remedy designed to deal with extreme situations, you should not fear losing your worker’s compensation benefits if you are compelled to file bankruptcy.  But remember, a debtor (you) must and should always make full and complete disclosure of:

  1. the existence and amount of workers’ compensation benefits you are entitled to; and
  2. potential claims for future workers’ compensation benefits.

We must also caution you that bankruptcy law is an extremely technical area of the law with many traps for the unwary. It also may change as a result of new statutes or new Court rulings.  Therefore, it is imperative that you speak with an attorney concerning the relationship between your workers’ compensation claim and any potential bankruptcy filing by you before doing so. This article is intended for general guidance but should not be relied upon by you.  There is no substitute for legal advice in this matter.  The stakes are too high!

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The First Week After Your Maryland Workers’ Compensation Injury

bigstock-Clock-face-calendar-and-diary-36508396By Clifford Sobin, Esq.

What you do during the first week after being injured on the job will set the tone for the rest of your claim. It is the most important time. You must:

  • Report the injury to your employer.
  • Get medical treatment as soon as possible. Don’t let several days pass.
  • Give an accurate history of the injury to your medical provider.
  • Don’t speak to the insurance company unless you are sure you are not going to get an attorney (a decision that almost always is a bad one).
  • If you want an attorney, choose one who will guide you, educate you, and that you trust. If the conversation is only about money, consider choosing another attorney.
  • File a Workers’ Compensation claim.
  • Choose a doctor for follow up care and obtain authorization to go.
  • Decide if you are going to speak to a nurse assigned by the insurance company to your case.

If you make the wrong decisions, you might make it difficult to win your case. The insurance company may deny your claim. What you say or do in the first days after you are injured matters once you are in front of a Commissioner.  Even if the insurance company pays benefits in the beginning, when the inevitable disagreement with the insurance company occurs, you will not be in a position to obtain a speedy hearing in front of the Workers’ Compensation Commission if a claim was not previously filed appropriately.

What You Do Matters Continue reading

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How Are Maryland Workers’ Compensation Commissioners Selected?

bigstock-Portrait-of-happy-senior-judge-41940157By Clifford Sobin, Esq.

Workers’ Compensation Commissioners are nominated by the Governor.  The Maryland Senate must then approve the appointment. Their appointment is for twelve years unless a Commissioner leaves office before their term is up. If so, the new replacement Commissioner only serves for the remainder of that term. After a Commissioner’s term expires, the Commissioner must be reappointed by the Governor to serve a new twelve year term.

Commissioners must devote their full time efforts to their job.  Therefore, they may not:

  • Practice law
  • Hold another political position
  • Do any business or other activity that interferes with their ability to serve the citizens of Maryland as a Workers’ Compensation Commissioner

Commissioners are paid the same amount as a District Court Judge except for the Chairman who receives an additional $1500.00

There are a total of nine Commissioners.  Each Commissioner must be a licensed attorney.  There is no requirement that they must have practiced Workers’ Compensation law before their appointment although that is frequently the case.  In fact, many outstanding Commissioners have had experience in other areas; including litigation, the legislative process and advisory or management capacities.

Generally, each Commissioner has scheduled before them approximately twenty cases a day, of which, ten to fifteen are heard in a hearing. Since many of their decisions involve tens of thousands of dollars, they have a significant impact on Maryland’s economy and the plight of injured workers.

At times retired Commissioners will hear cases. This occurs due to retirements, illnesses vacation, etc. Since the Commission Chairman’s priority is to make sure that scheduled cases are heard, retired Commissioners provide an important “reserve” force. The most significant requirements for eligibility for recall are that a retired Commissioner must have served for at least three consecutive years and that the retired Commissioner may not serve more than 120 working days in a calendar year.

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Maryland Workers’ Compensation Book

By Clifford Sobin, Esq.

I apologize if this appears to be shameless promoting of a new book that I just wrote. But, if you were injured at work in Maryland while working for someone other than the Federal Government then this short book is for you.

wcwebsitebookcoverI wrote it for injured workers – not lawyers. It is basic and practical – not complex and nuanced. I hope to replace any fears and uncertainty you may have with knowledge and understanding. I want you to know how long things take, why things happen, and what to expect. It is not a replacement for obtaining legal advice from an attorney, but instead is a supplement to help educate and insulate you from some of the surprises that otherwise may come your way.

I have represented thousands of injured workers in Maryland over more than thirty years. I wrote and continue to update a 1400 page two volume workers’ compensation legal treatise for Maryland lawyers. I taught attorneys Maryland Workers’ Compensation law, testified before the Maryland Legislature on many proposed Workers’ Compensation bills and continue to speak at many Union meetings concerning the “nuts and bolts” of Maryland Worker’s Compensation.

Now, I want to help you. If you want to know:

  • What to do if you need medical treatment as a result of your injury.
  • How much the insurance company will pay you while you are unable to work.
  • What happens if you are physically unable to ever return to the type of work you were doing.
  • How much money you will you receive at the end of your case.
  • The role of an insurance company in a workers’ compensation case.
  • If you should hire an attorney and what will it cost.
  • If you have to go to a doctor chosen by the insurance company for an evaluation and what will happen when you go.
  • If you have to speak to the nurse case manager when she calls or the vocational counselor who keeps telling you what to do.
  • Why is your check late.
  • Why won’t the insurance company approve your treatment right away.
  • Why your medical bills are often not paid timely.
  • If private investigators are used by insurance companies.
  • What happens at a Maryland Workers’ Compensation hearing.
  • How long it takes to get a hearing.
  • How evidence is presented.
  • How long takes to get a decision.
  • Your appellate rights.

Then this book is for you. You can get if for free by downloading a PDF from my law firm’s web site, www.bsgfdlaw.com. Or you can purchase a Kindle version from Amazon at  the following link: KindleEbook.

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How Maryland Workers’ Compensation Law is Made and Changed

By Clifford Sobin, esq.

Three types of laws impact the Workers’ Compensation process. They are:

  1. Statutes,
  2. Regulations, and
  3. Appellate decisions.

In addition, the Workers’ Compensation Commission develops specific policies that guide them but do not bind them.

Statutes

The starting point for workers’ compensation is statutory law. A statute is a written law. If it is not covered by a statute, it cannot be done, no matter how unfair something may seem to you.

Statutes start as “bills”. They are written and voted on by the Maryland Legislature. If both the Maryland House of Delegates and the Maryland Senate approves the “bill” it goes to the Governor. If the Governor signs it, the “bill” becomes law.

Before the legislature votes, testimony is taken from both those in favor of the bill and those against it. This occurs in designated House and Senate Committees and often preliminarily in front of a designated Legislative Oversight Committee.

Lobbyists and special interest groups are heavily involved in the process. As a result, changes often take years.

Regulations

The Workers’ Compensation Commission has the authority to create mandatory regulations. It is the purpose of a regulation to identify and determine precisely how the intent of a statute will be carried out. A regulation cannot create new law. It can only clarify a statute and provide procedures for its implementation.

Before a regulation is enacted, it must be circulated to the general public and hearings are held where anybody may speak in favor or against it. Regulations usually take several months to travel from an idea to reality. As with statutes, lobbyists and special interest groups are heavily involved in the process.

Appellate Law

Appellate law is created by the Court of Special Appeals, which must hear every appeal, and the Court of Appeals which only hears appeals it chooses to be worthy of consideration (almost always only after the Court of Special Appeals has heard the case). Appellate decisions interpret statutes, regulations, the Constitution and other Appellate cases.   The Courts may not create new law (although some criticize them for seemingly doing so), they may only interpret existing law.

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10 things you need to know about IMEs (Independent Medical Evaluations)

The insurance company has the right to send you to a doctor of their choice for a medical opinion.  This doctor is not going to provide you with any treatment or become your doctor, but rather only give an opinion.  Here are 10 things you need to know:

  1. The IME is for the benefit of the insurance company, not you.
  2. The doctor is not required to keep anything you say in confidence; everything you tell him/her, or fail to tell him, will be contained in his report.
  3. Contrary to the letter you receive from the insurance company, you are not required to bring any test results or medical records with you.  It is the insurance company’s responsibility to provide their doctor with the reports they want him to review.
  4. The IME doctor and his staff will watch how you walk, move, whether you bend down to tie your shoes or pick up a piece of paper you might have dropped, or how you remove a piece of clothing, and they will compare it to the complaints you tell them about during the exam and what is contained in your medical records, so be consistent.  And never lie or exaggerate, but rather be specific about what pain you feel or limitations you experience.
  5. You should tell the doctor about any other accidents you were involved in, whether they happened before or after the work-related injury.  Failing to inform the doctor of a prior accident hurts your credibility and makes it look like you are hiding information.
  6. Do not miss your appointment or arrive late.  This could result in the insurance company terminating benefits, such as your lost wages, and the Workers’ Compensation Commission could order you to pay for the missed appointment.
  7. The doctor does not have the right to perform any invasive tests on you, such as xrays, injections or EMG/nerve conduction studies.
  8. A female should never be alone in the examination room with a male doctor, so typically the doctor will have a member of his staff in the room during the examination for your safety.
  9. The examination will likely be very short (a few minutes), so it’s important that you be as comprehensive as possible about the complaints you have.
  10. The day of the IME is typically when insurance companies hire a private investigator to video tape you in hopes of “catching you” doing something that is inconsistent with what you tell the doctor or which reveals that you are capable to working.  You should be consistent at all times and with all doctors.
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Medical Treatment Rights Under Maryland Workers’ Compensation Law For Out Of State Treatment

By Clifford B. Sobin, Esq.

Last month I discussed medical treatment rights stemming from a compensable Maryland Workers’ Compensation claim. Since medical costs are controlled by the Maryland Workers’ Compensation system, you never have to pay anything for treatment required for injuries sustained as part of your compensable claim – with one catch – the treatment must be in Maryland.

Medical bills of health care providers who provide treatment outside of Maryland are not controlled by the Maryland Workers’ Compensation system. Therefore, in those circumstances you may have to pay a portion of the costs for treatment you need for injuries sustained as part of your compensable claim.  The amount you will pay is the difference between what the medical provider charges and the amount the Maryland fee schedule requires employer/insurers to pay.

What should you do? Continue reading

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