NWCDN MARYLAND WORKERS’ COMPENSATION UPDATE
I. New
Maryland Benefit Rates
Effective January 1, 2009, the following are the maximum benefit rates for Maryland
disability benefits:
State
Average Weekly Wage - $906 (which
represents the cap on temporary total
disability, permanent total disability, and vocational
rehabilitation benefits)
Permanent Disability
Under 75 Weeks - $130/week
Permanent
Disability Between 75-249 Weeks - $302/week
Permanent
Disability for 250 or More Weeks - $680/week
If you
would like benefit rate cards prepared by Franklin & Prokopik detailing
Maryland’s benefit rates from 2004-2009 or to subscribe to F&P’s quarterly
Workers’ Compensation Newsletter, please contact F&P principal, Bert
Randall, at (410)
230-3622 or by email at arandall@fandpnet.com.
II. Vocational
Rehabilitation....Changes on the Way
The Commission has scheduled a public meeting on April 23,
2009 at 1:00PM to solicit comments on the proposed recommendations of its
Vocational Rehabilitation Sub-Committee regarding the vocational rehabilitation
selection process, level of service provided to injured workers and attorneys
fees. The meeting will be held at the
Baltimore City Commission location on 10 East Baltimore Street. Written questions and comments must be
received by the Commission before April 10, 2009. Interested parties can view the proposed
recommendations and instructions for submitting comments by visiting the
Commission website at www.wcc.state.md.us.
III. WC Website – New Features
Several additions to the Online
Services have recently been announced.
In late December, Form A19D - Notice of Issues Withdrawn, was
added to the list of forms the Commission offers from its eNotice service. The Commission encourages all eligible
attorney subscribers to take advantage of eNotice, as it provides the fastest
alerts possible of activity in a claim. For those who are unfamiliar, the
eNotice option allows eligible subscribers to choose to receive some Commission
Notices via email rather than “snail mail.”
A list of the Notices which can currently be received via eNotice, along
with instructions for subscribing to the service can be found on the
Commission’s website.
Also,
beginning January 5, 2009, Form H24R - Issues, cannot be filed by
parties other than the Employer/Insurer prior to a claims
Consideration Date. If said form is
filed by other parties before the Consideration Date, no action will be taken
on those issues. The Employer/Insurer are to file issues using C-40 Form - “Insurer’s Response”
within the statutory response period.
After the Consideration Date, any party may file issues using Form H24R
- Issues.
In response
to suggestions from users, First Report of Injury (FROI) searches have now been
incorporated as an online service.
Attorney subscribers and their proxy designees can now search all FROI
forms filed with the Commission since the 1994 inception of its digital
document system. This search feature can
locate an FROI regardless of whether a claim was filed. This search feature is still in its test
phase and the Commission encourages attorneys and their proxies to try it out
and submit any comments via email to websupport@wcc.state.md.us.
Additionally, “Date of Birth” has been added as a search
element for all claim data searches and WebForm filing. This option can be useful for locating prior
claims where no social security number is available or when a claimants last name may have changed.
Finally,
attorney subscribers may now update their mailing address, telephone number,
email address or other contact information by logging into their accounts and
simply updating their WFMS Online Services User Profile. A paper “Information Change” is no longer
required as the new contact information that the attorney submits online will
now automatically update the database.
Note that this change only applies to attorney subscribers. Other parties such as employers and insurers
must still use the “Request for Change of Address” form located on the Forms
and Instructions page of the Commission website. Another caveat is that subscribed attorneys
who also happen to be Employer Designees are required to update their contact
information in their capacities as Employer Designees by filing a new Form
H23R.
IV. Ridiculous Case Update - Home Security
System Found Medically Necessary.
The
Maryland Court of Special Appeals recently addressed in Carol F. Simmons v.
Comfort Suites Hotel, et al., No. 241, Sept. Term, 2008, the issue of whether a home security system,
as recommended by a neuropsychologist, constitutes “medical treatment” if it
will provide a medical benefit?
Ms. Simmons
was brutally attacked with a baseball bat late one night while working at a
Comfort Suites Hotel location. Ms. Simmons filed a claim with the WCC and the
claim was accepted as compensable by the Employer/ Insurer. Soon thereafter, Ms. Simmons requested that
Comfort Suites provide a home security system due to her fears of a home
intruder and Comfort Suites denied the request.
At a hearing before the Commission, Ms. Simmons submitted a letter from
her neuropsychologist who recommended a home security system based on Ms.
Simmons’ anxiety and fear of additional assaults. Comfort Suites argued that the Workers’
Compensation Act did not cover a home security system because it was not
“medical treatment” pursuant to the Statute.
The Commission, however, ordered that Comfort Suites pay for the
installation and maintenance of a home security system. Comfort Suites appealed
the decision.
Both
parties filed motions for summary judgment in the Circuit Court for Queen
Anne’s County. At a motions hearing, Ms.
Simmons argued that she needed the home security system to help her recover
from her injuries and, thus, the system should be considered “medical
treatment”. Comfort Suites argued that a
home security system was not “medical treatment” as defined by the Act and,
thus, as a matter of law the Claimant’s request should be denied and
dismissed. The Circuit Court agreed with
Comfort Suites and granted their motion for summary judgment, finding that, as
a matter of law, a home security system is not medical treatment pursuant to
9-660. Ms. Simmons appealed to the Court of Special Appeals.
In prior
cases, courts have found that items which are “not intrinsically medical in
nature could constitute medical treatment if there is evidence that the item
conveys a medical benefit.” Thus, the
Court Special Appeals (CSA) in this instance determined that whether an item
provides a medical benefit must be reviewed on a case-by-case basis as it is a question
of fact rather than law. As such,
the CSA found that the Circuit Court erred in granting summary judgement in
favor of Comfort Suites. A jury could
find that a home security system was medically necessary for this particular
claimant. The case was remanded back to
the Circuit Court to be resolved by the trier of fact. While the CSA’s opinion
was very limited, it is still quite damaging to employers/insurers.
At this
point, we do not yet know what the outcome will be regarding the home security
system and whether it is deemed “necessary medical treatment”. The case may
settle or it may end up in front of a jury. Nonetheless, this is a reported
case with controlling language that will clearly be relied on by claimants attorneys in an effort to avoid summary judgment
and to put “medical treatment” requests such as this one before a jury.
Although
the CSA did not affirm the Commission’s decision finding that a home security
system was reasonable medical treatment, it has put it’s faith in a jury to
determine what is and is not “medical treatment” based on the facts of each
particular case. A jury’s sympathy for an injured worker can go far, especially
in a case like Ms. Simmons’. Where will
the line be drawn? Could a built-in pool be deemed “medical treatment” for home
aquatherapy? The fact is, you never know when a jury is left to determine what
constitutes necessary “medical treatment”. Only time will
tell where this CSA finding will take us.
For further inquiries
regarding Maryland law contact Mr. Randall at (410) 230-3622 or at
arandall@fandpnet.com.
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