The Aftermath of Zakwieia and Reger — The Court of Special Appeals Finds LE §9-610 Offset Does Not Apply to Ordinary Disability Benefits for a Different Injury

In the past year there has been a flurry of litigation in Maryland regarding what exactly a “similar benefit” is, and when an offset is warranted under Labor and Employment § 9-610. We first had Zakwieia in early 2017, holding that a similar benefit is “whether the benefits provide a similar wage loss benefit to a workers’ compensation award, not whether the benefits accrue from a similar injury.” Zakwieia v. Baltimore Co. Bd. Of Educ., 231 Md. App. 644, 654 (2017). Just six months later …

Continue Reading

It’s Possible to Avoid Total Industrial Findings When Claimants Have a High Impairment Rating

Recent Board Panel decisions are providing guidance for employers to successfully avoid a total industrial finding when addressing Loss of Wage Earning Capacity. Indeed, there does not appear to be any basis under the law for an administrative law judge to find a total industrial disability. In Town of Fenton, Case Nos. G0501597, 90502069, G0087246, 2015 WL 7067972, at *6 (N.Y. Work. Comp. Bd. Nov. 5, 2015), the Board Panel noted “that the claimant’s request for a 100 percent loss of wage earning capacity …

Continue Reading

To Pay or Not to Pay While Investigating a Claim

New York State Workers’ Compensation law §21-a allows an employer/carrier to pay lost wage benefits or prescribed medicine for up to one year without admitting liability and without prejudice to the right to controvert the claim. The purpose of this section of the law is to provide workers lost wage benefits and payment of prescription medicine while the employer/carrier continues to investigate the compensability of the claim.

However, § 21-a is only available when payments for lost wages or payments for prescribed medicine (prescribed medication …

Continue Reading

Live Outside of New York? The Medical Treatment Guidelines Still Apply

In a recent Board Panel Decision, In the Matter of Hospice Inc., 2017 NY Wrk Comp 59513410, the Board found that the Medical Treatment Guidelines apply to any treatment provided to any claimant, regardless of where the claimant lives or where the treatment is provided, for treatment to the neck, mid and low back, shoulder, knee, carpal tunnel, and non-acute pain. Notably, the Board held that the applicability of the Medical Treatment Guidelines is not limited to treatment rendered to New York State residents …

Continue Reading

Fruit of the Poisonous IME: Avoiding IME Preclusion

Independent medical examinations are often the only evidence a carrier can rely on when litigating medical issues. As much as avoiding a situation where an IME is precluded for not complying with the strict requirements of Section 137 is ideal, from time to time it happens, and it is best to have a plan for moving forward. If the medical issue is ongoing, such as degree of disability or need for further treatment, the best thing to do is to schedule another IME as soon …

Continue Reading

The Law Is Fickle – Maryland Court of Appeals Clarifies Zakwieia, the Phrase “Similar Benefits,” and its Effect on Disability Offsets

Recently, the Court of Special Appeals of Maryland (CSA) held that the phrase “similar benefits,” found within LE §9-610, examined whether an employee’s ordinary disability benefits provided a similar wage loss benefit to the employee’s workers’ compensation benefits. Zakwieia v. Baltimore County, Board of Education, 231 Md. App. 644 (2017). The practice of law is fast-paced and waits for no one. In Reger v. Washington County Board of Education, et al., 2017 WL 3317892 (publication pending), the Maryland Court of Appeals (COA) has …

Continue Reading

Get Ready: New Maryland Workers’ Compensation Laws Set to Take Effect on October 1, 2017

The date for your new workers’ compensation laws to take effect is now upon us. The Maryland legislature passed several workers’ compensation bills in early 2017 that will be taking effect on October 1, 2017.

The law that will likely have the greatest effect on claims handling in Maryland is the requirement that medical providers submit their bills for payment within one year from the later date of: (1) the date of service; (2) the date the claim was accepted as compensable by the employer/insurer; …

Continue Reading

Stressing the Reasonable Objective — Missouri Supreme Court Provides Clarity on When Mental Injuries Will be Compensable

The Missouri Supreme Court recently acted to provide clear parameters for when an employee will be entitled to recover for stress-related psychiatric disorders.

Linda Mantia worked for the Missouri Department of Transportation for over 20 years providing traffic control and assistance at motor vehicle accident scenes on Missouri highways. Mantia responded to accident scenes as often as four times per week, including serious accidents involving fatalities. Mantia was diagnosed with depression in February 2008 and filed a workers’ compensation claim for mental injuries in October …

Continue Reading

Holocker Widens the Interstate: A New Workers’ Compensation Decision Sets Forth Employer Defenses to Terminate Temporary Total Disability Benefits

A recent Workers’ Compensation decision has outlined employer defenses to terminate temporary total disability (TTD) benefits prior to a maximum medical improvement (MMI) finding.

In Holocker v. Ill. Workers’ Comp. Comm’n, 2017 IL App (3d) 160363WC (June 16, 2017), the Appellate Court affirmed that termination of temporary total disability benefits was proper despite the petitioner’s ongoing causally related treatment. The court also affirmed that termination of benefits due to the petitioner’s discharge for cause was proper because the petitioner’s restrictions had no effect on …

Continue Reading

The Essentials: Proposed New York 2018 Schedule Loss Guidelines

On September 1, 2017, the New York Workers’ Compensation Board issued draft guidelines and regulatory changes for 2018. The guidelines are intended to revamp the schedule process to align with modern medical practices. The drafts of both the guidelines and regulations appear to include possible errors, omissions, and ambiguities.

Click here for a brief overview of the new proposed SLU process and for an idea of what to expect if the new guidelines are adopted.…

Continue Reading