State News : Maryland

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I.        New Maryland Benefit Rates

a.    Effective January 1, 2017, the following are the maximum benefit rates for Maryland disability benefits:

                                  i.    State Average Weekly Wage - $1,052

                                ii.    Permanent Disability Under 75 Weeks - $176/week

                               iii.    Permanent Disability Between 75-249 Weeks - $351/week

                               iv.    Permanent Disability More than 250 Weeks - $789/week

II.        Regulatory Changes

a.    Responsibility of Insurers

                                  i.    The Commission adopted amendments to Regulation 14.09.12.02B. The purpose of the amendment is to alter the time period from 30 to 45 days within which an insurer must serve a specified notice on an employer and file a copy of the notice with a specified individual if the insurer is canceling or refusing to renew a workers’ compensation insurance policy before its expiration.

III.        Recent Cases in Workers’ Compensation

a.    Ordinary disability retirement benefits and Workers’ Compensation Benefits for partial disability are “similar benefits,’ subject to a statutory offset.

              &nnbsp;                   i.    Zakwieia v. Baltimore County, Board of Edu.,No. 2492 (Feb. 3, 2017).

1.    The Court of Special Appeals in Zakwieia addressed the issue of whether § 9-610 of the Labor & Employment Article entitled the Commission to offset Claimant’s workers’ compensation benefits for partial disability with her ordinary disability retirement benefits.

2.    The crux of this decision rests on the Court’s clarification that the purpose of the statute is to prevent double recovery for injured workers covered by both a disability pension plan and workers’ compensation.. According to the Court, “similar” refers to the nature of the benefit awarded to the employee, not the nature of the underlying injury. Thus, moving forward, workers’ compensation benefits for permanent partial disability benefits will constitute “similar benefits” to ordinary disability benefits, and will be subject to a statutory offset.

b.    Subsequent injuries do not necessarily preclude entitlement to Partial Disability Benefits.

                                  i.    Electric General Corp. v. Labonte,229 Md. App. 187 (2016).

1.    In the case of Electric General Corp. v. Labonte, the Court of Special Appeals determined whether a claimant’s subsequent injury represented an intervening accident that broke the causal connection between the claimant’s work accident and current complaints.

2.    The case provides guidance as to the effect of a subsequent intervening accident on a claimant’s entitlement to additional workers’ compensation disability benefits.Labonte suggests that a claimant’s subsequent injury does not necessarily preclude an employer and insurer from all liability, at least where permanent partial disability benefits are concerned. As a practical matter, however, the Commission may still weigh the severity of the subsequent injury and the nature of the treatment involved when apportioning an award of disability. Moreover, there is still clear authority that there is no further liability for a subsequent injury where temporary total disability benefits are concerned.

c.    The going and coming rule and its exceptions are not applicable to injuries that arise before an employee embarks on any work-related journey.

                                  i.    Prince George’s County, Maryland v. Proctor,228 Md. App. 579 (2016).

1.    The Court of Special Appeals considered whether injuries sustained on a claimant’s own front porch, while he was off-duty, and while he was not performing any police duties, arose out of and in the course of employment. 

2.    This case clarifies that the time, place and circumstances of the accident in relation to the employment are determinative of whether an employee’s injuries arise out of and in the course of employment. Accordingly, whereby where injuries are sustained prior to embarking on any work-related journey, the “going and coming rule” is not what bars the employee’s claim. It remains to be seen, however, whether any exception to that rule might apply for injuries arising before an employee embarks on a work-related journey.   

d.    An injured sole proprietor’s Average Weekly Wage (“AWW”) should be calculated using the net profit, rather than the gross earnings, of a sole proprietorship.

                                  i.    Long v. Injured Workers’ Insurance Fund, et al,225 Md. App. 48 (2016).

1.    The Court of Special Appeals determined whether an injured sole proprietor’s AWW should be based upon the income of the sole proprietorship, after deducting business expenses, or upon the gross profit of the sole proprietorship, without considering business expenses.

2.    This case explains the difficulties in using gross pay for the purposes of determining an injured sole proprietor’s AWW under section 9-277(b) of the Workers’ Compensation Act. The Court notes that failing to factor unreimbursed business expenses into a sole proprietor’s “gross earnings” would result in a windfall and would not be an accurate representation of the injured worker’s actual earnings.

e.    Employers and insurers that pay an award, which does not provide for attorney’s fees, are protected from subsequent claims for such fees.

                                  i.    Prince George’s County v. Minor,227 Md. App. 233 (2016).

1.    The case of Prince George’s County v. Minor dealt with whether employers and insurers are obligated to pay an approved attorney’s fees that are not provided for in an award.

2.    This case emphasizes the principle that the Worker’s Compensation statute and regulations “will only protect those attorneys who protect themselves.” A claim for attorney’s fees by an attorney representing a workers’ compensation Claimant is not a claim against either the Commission or the employer/insurer. Employers and insurers are obligated to pay an approved attorney’s fees only out of compensation awarded to the Claimant where there is an attached lien for such fees, not out of personal funds. Unless, however, there is a failure to respect a lawfully attached lien.

f.     Under the Free Transportation Exception to the “Going and Coming Rule,” injuries sustained during the employee’s commute arise out of and in the course of employment even when the free transportation furnished by the employer is not being used.

                                  i.    State of Maryland v. Okafor,225 Md. App. 279 (2015).

1.    In State of Maryland v. Okafor, the Court of Special Appeals discussed the extension of the free transportation exception to the “Going and Coming Rule” in circumstances involving personal injuries during an employee’s commute to work in a person vehicle.

2.    This case shows that once there is an obligation to provide free transportation, an employee’s workday commences when his or her commute to work begins. Thus, regardless of whether the employee is using the transportation provided, injuries sustained during the employee’s commute arise out of and in the course of employment on the basis of the free transportation exception.