Levasseur, William R.

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 25Number 3 Spring, 1995 Article 61995Commentary: Does the Workers' CompensationSystem of Maryland Favor the Injured Worker?: YesWilliam R. LevasseurFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Workers' Compensation Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationLevasseur, William R. (1995) "Commentary: Does the Workers' Compensation System of Maryland Favor the Injured Worker?: Yes,"University of Baltimore Law Forum: Vol. 25 : No. 3 , Article 6.Available at: http://scholarworks.law.ubalt.edu/lf/vol25/iss3/6DOES THE WORKERS' COMPENSATION SYSTEM William R. Levasseur YES The Maryland Workers' Compensation Ad is not unique in its design of a benefit delivery system favoring the injured worker. Those who are "covered employ-ees"2 benefit further from a statute which is to be "liberally construed."3 Over the years, legislation favorable to the injured employee has improved the benefit structure to allow, for example, unlimited benefits as to time or dollar value in permanent total, temporary total and death claims, and unrestricted selection of medical care providers. Furthermore, the Maryland appellate courts have re-peatedly mandated that the Act is to be "liberally construed .. .in favor of the claimant,"4 invoking lan-guage such as "social legislation,"5 and "benevo-lence."6 Recently, it was reported that the National Council on Compensation Insurance (NCCI) conducted a study which revealed the heavy involvement oflawyers in our system.7 In addition, the study found that on the medical side, there was an increase in surgical procedures and questioned whether doctors may be performing too many surgeries. On the benefit side, the study found that permanent partial disability payments now account for most of the money flowing through the Maryland system. Though the NCCI report appeared to be critical of the Maryland system, it noted a reduced backlog, use of a successful new computer imaging system, streamlined Commission operations, and the success of the three-tier permanent partial disability benefit system. History Practitioners working within the Maryland work-ers' compensation system know that the law governing workers' compensation has been repeatedly changed by the Legislature, creating a hodge-podge of add-ons, deletions, amendments, and other alterations, making it extremely difficult to locate a particular passage or clause. In 1987, through the efforts of the Governor's office, the Workers' Compensation Act was substan-tially revised. Unfortunately, technical language was simply introduced into the existing law, giving rise to a continuation of confusion. Further changes were im-plementedin 1988,andin 1991, the Workers' Compen-sation Act was completely revised and recodified under the Labor and Employment Article.8 Throughoutthe 1991 annotations, a revisers' note states that the recodification is for clarification and procedure and does not affect the substance oflaw. In other words, the form and language of the law was changed to make sense out of chaos. For many of us, these changes created a logistics problem because long entrenched former references were no longer applica-ble, and the numerical and lettering designations of the long standing sections of the Act had been removed.9 Vocational Rehabilitation F or many years, the Workers' Compensation Act contained provisions for providing vocational rehabil-itation to injured workers whose disabilities prevented them from returning to the work for which they were previously qualified. 1O In 1987, 1988, and 1989, the vocational rehabilitation sections were reorganized and the Act was substantially amended, allowing the pro-cess to be better defined and administered. Previously, (continued on page 32) Aboutthe Author: William R. Levasseur, University of Baltimore's Alumnus of the Year in 1989, concentrates his practice on the defense of claims involving workers' compensation and employer liability in Maryland, the District of Columbia, and Federal Longshore. He is a partner in the firm of Howell, Gately, Whitney & Carter, and has written and lectured extensively on workers' compensation issues. temporary total benefits for vocational rehabilitation were provided only if a claimant was undergoing autho-rized "training:" Even though "training" was never defined, it was rarely or poorly utilized in view of its narrow scope. Under the new amendments, the law defined vocational rehabilitation and its services, II as well as "suitable, gainful employment,"12 and provided that claimants could receive benefits as if on temporary total while receiving "services."13 This benefit change should be considered significant because it gives both parties incentive to use the system for the claimant's successful return to work. The new law also required registration for vocation-al rehabilitation providers. 14 If the provider did not register, it could not charge or be paid for its services. 15 Clearly, this redefining and expansion of vocational rehabilitation has helped claimants in a previously unde-fined and underutilized process, and has helped to re-establish covered employees in the workplace while continuing benefits under certain circumstances. The Three-Tier Plan In 1987, when the Legislature substantially revised the benefit system, it created a fourth level of benefits which segregated minor disabilities from those consid-ered more serious and disabling. 16 One motivating factor behind this is important. The benefit structure was created to award higher benefits to the more seriously disabled. In order for that to be accomplished, an offset was needed and benefits were reduced for less serious disabilities. In addition, the Legislature wanted to determine the long-term financial impact and put in place a fiscal tool to develop a statistical measurement. In creating these levels of benefits, the Legislature decided to allow a specified time to statistically analyze l7 and determine whether these changes were of any significance so that needed changes could be made. Medical Evidence Another significant change to the Workers' Com-pensation Act occurred in 1987 when the Legislature attempted to gain some equality in the medical evalua-tion of disabilities. The Legislature attempted to create some urtiformity in the determination of medical impair-ments, and mandated that physicians use the American Medical Association Guide for the Evaluation ofPhys-icallmpairments.18 Unfortunately, this permits physi-cians to further enhance impairment ratings by allowing subjective commentary. 19 The AMA Guide requires physicians to use an objective measuring method for impairments and then allows another level of subjective evaluation based upon factors that are not measured by instruments, and are therefore less reliable. This approach, though somewhat contradictory, obviously allows a positive effect on the evaluation process for claimants. Enhanced Benefits With all that said, it seems inescapable that the many changes noted have been enhancements, and in many cases improvements, to the Workers' Compensation Act -- changes which have enured to the benefit of claimants or, as they are now defined, "covered employ-ees. "20 Covered employees who are injured and sustain serious disabilities are provided a substantial flow of benefits beginning with unlimited medical benefits,21 unlimited temporary total benefits,22 and lifetime bene-fits if permanently and totally disabled.23 In addition, survivors and dependents may be awarded lifetime benefits in the event of a covered employee's employ-ment related death.24 It would appear, however, that the legislative intent behind many of the changes was the redefinition of where the emphasis should be placed for improving the benefit structure for those who are seriously disabled. Those who have less serious disabil-ities are still compensated, but the rates of benefits are lower, and some benefits are substantially reduced from what they would have been previously.25 In a very limited number of disability claims, the Commission is allowed to award "other cases" or "industrial loss" benefits.26 Employer Pays How have these changes affected employers who are responsible by law for the payment of all workers' compensation benefits? Employers continue to be required to carry the brunt of the changes. The Legis-lature, ostensibly reacting to perceived employer abuse, created a number of negative aspects to the Workers' Compensation Act which were put into place to gain prompt compliance to awards. For example, the Leg-islature created penalties for late filings27 and/or late payments for both compensation and medical benefits.28 The Legislature has forced the employer to file certain specified forms, such as issues,29 within a certain time frame or else face the payment of a penalty. 30 Employers are required to provide for unlimited temporary total payments, unlimited permanent total payments, and unlimited medical expenses, in addition to allowing a covered employee to have an unlimited choice of health care providers without any real or significant check or balance in that regard. The employer has also suffered from legislative indifference. The Legislature has consistently turned its back on any attempts by the employer to change the law with regard to injuries where there is significant involve-ment at the time of the injury with alcohol or drugs by a covered employee. Over the past few years, there have been serious attempts to give the Commission more discretion where injuries of death are occasioned by the use of alcohol or drugs. At this time, the law requires that an injury occurring to a covered employee will be covered unless the injury was occasioned "sole-ly" by the use of alcohol or drugs.3) All attempts by employers to eliminate the word "solely," thereby giving the Workers' Compensation Commission discretion to assess the nature of substance use or abuse, seems not to be expected. In view ofthe restricted language, there has not been one reported case involving denial of benefits to a claimant, even where serious alcohol or drug abuse may have been involved. Another costly and unique problem that continues to plague employers is the allowance of a compensable accidental injury where the injury is caused by a willful or negligent act of a third party directed against a covered employee. In such an injury situation, it is not necessary under those circumstances that the injury arise out of the covered employee's employment, as long as it arises during the course of employment.32 These covered events occur, often times where the injury results from personal and domestic dis-putes. Recreational injuries are another source of concern for employers. At the present time, benefits are allowed in most instances forrecreational inj uries,33 even though such injuries may not arise out of and in the course of employment. The Commission and the courts have consistently found that ifthere is some remote connec-tion to the employment, a compensable injury exists.34 There have been several attempts in recent years by the Legislature to define the parameters of such events, all of which have failed. Another area of concern involves average weekly wage calculations.35 By rule, the Com-mission has established an elaborate method for calcu-lating average weekly wage. If a claimant works a full thirteen weeks prior to the accidental injury, then the calculation is usually simple and to the point -- the Commission averages those thirteen weeks. Complica-tions arise where there are missing weeks, partial weeks, vacation days, sick days, job changes, and different employers. A good measure of one's ability to earn would clearly seem to allow the use of the actual total earnings for a thirteen week period divided by thirteen. Instead, by rule, the Commission has decided that in calculating the average weekly wage, they will consider only those weeks during the thirteen week period that the employee actually worked. In fact, this calculation does not truly represent the "average" weekly wage, but rather calculates the wage that is averaged during those weeks in which the claimant actually earned wages commensurate with full-time employment. Keep in mind that all benefits payable to a claimant are tied into the average weekly wage. No matter how itinerant a worker may be, that claimant will obtain the higher benefits even ifthe covered employee only worked one week during a thirteen week period. Conclusion There are many other aspects of the workers' compensation law that point to consistent and inten-tional legal interpretations which invariably favor a covered employee and dependents. Obviously, suchan interpretation in certain claims is not entirely bad or incorrect. There are, however, important questions surrounding such interpretations. Does it make sense? Does it create a substantial financial burden on the average employer? Is it really what was intended? Whether you are aciaimant, an employer, an insurance company, self-insured, or if you have been involved with the workers ' compensation system inmost any capacity for any length of time, it is known that the workers' compen-sation system has always favored the injured employee. That is the way the system is designed. The employer simply pays the freight. Employers have no choice whether to provide coverage. It is a mandatory law. The Mary land legislature passes the laws for gener-ous benefits, the courts generally interpret the Workers' Compensation Act favorably to the claimant's position, and the Workers' Compensation Commission functions under a preamble and case law mandating a liberal construction of the statute. Employers and insurers _ _ _____ . /.5.3/-"';. :iG.:~. ~_,:: .. --~ -----~--have all of that to contend with in addition to paying the bills. Recent changes in the law put teeth in enforcing prompt payment of benefits, and the Commission has implemented rules and procedures, and a highly effi-cient computer system for a better delivery system. Attorneys representing claimants, who complain about the current system, may not want to admit that there is still not a level playing field. Claimants still emerge as the primary beneficiary of a law and a society that favors their entitlement. It is true that some benefit cost controls have been attempted, but that has not inter-fered or impaired the total flow of benefits. ENDNOTES: 1 Md. Code Ann., Labor & Employment § § 9-101-1201 (1991); 1991 Md. Laws ch. 8, § 2. 2 § 9-101(f). 3 Preamble to Act, Acts of 1914, ch. 800. 4 See generally Bethlehem-Fairfield Shipyard, Inc. v. Rosenthal, 185 Md. 416 45 A.2d 79 (1945); Kelly-Springfield Tire Co. v. Daniels, 199 Md. 156,85 A.2d 795 (1952). 5 Lovellette v. Mayor of Baltimore , 297 Md. 271, 465 A.2d 1141 (1983). 6 Farrell Lines, Inc. v. Devlin, 211 Md. 404,127 A.2d 640 (1956). 7 Jane Bowling, State Workers' Comp System Improv-ing, But Delays Persist, The Daily Record, Dec. 19, 1994, at 1. 8 Md. Code Ann., Labor & Employment § § 9-101-1201 (1991); 1991 Md. Laws ch. 8, § 2. 9 The drafters, however, did provide a cross-reference to assist the user which has been particularly helpful. Workers' Compensation Law of Maryland Annotated (The Michie Co. 1994 edition). This is only found in the law book sold at the Workers' Compensation Commis-sion. 10 Md. Ann. Code art. 101, § 8(c) (repealed 1991). 11 Md. Code Ann., Labor & Employment § 9-670 (1991). 12 § 9-670(b). 13 § 9-674(b)(1). 14 § 9-671. 15 § 9-671 (c). 16 See Md. Code Ann., Labor & Employment § 9-628(b) (1994); Md. Ann. Code art. 101, § 36(3)(a)(i) (repealed 1991). 17 A sunset provision was inserted to allow termination of the new class if it was not cost effective. See Md. Code Ann., Labor & Employment § 9-628 (1994). This clause has been extended repeatedly until more statis-tical information is available. 18 See Md. Code Ann., Labor & Employment § 9-721 (1994); Md. Ann. Code art. 101, § 36C (transferred 1991). 19 Section 9-721 provides that the medical evaluation for a permanent impairment shall include an assessment of(1) atrophy, (2) pain, (3) weakness, and (4) loss of endurance, function, and range of motion. 20 Md. Code Ann., Labor & Employment § 9-101(f) (1991). 21 § 9-660. 22 §§ 9-618-622. 23 §§ 9-635-639. 24 § 9-640. 25 There are exceptions, even in the lower category of benefits. For example, fingers or toes are excluded and higher rates apply. § 9-627. 26 § 9-627 0). 27 § 9-713. 28 § 9-664. 29 § 9-713(a)(2). 30 § 9-713(d). 31 §§ 9-506(b)-(c). 32 But see § 9-101 (b)(2) (emphasis added). 33 Turner v. State, 61 Md. App. 393, 486 A.2d 804 (1985). 34 See, e.g., Sica v. Retail Credit Co., 245 Md. 606, 227 A.2d 33 (1967). 35 See Md. Code Ann., Labor & Employment § 9-602 (1991); and COMAR 14.09.07. -------.-.-~-, 

Commentary: Does the Workers\u27 Compensation System of Maryland Favor the Injured Worker?: Yes

bepress Legal Repository

https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1787&amp;context=lf

Commentary: Does the Workers\u27 Compensation System of Maryland Favor the Injured Worker?: Yes

Abstract

Similar works

Full text

Available Versions

University of Baltimore School of Law

bepress Legal Repository