8/29/2017: F&P Principal Named to Best Lawyers in America® 2018 List for Workers’ Compensation

Franklin & Prokopik is pleased to announce that Lynn Fitzpatrick of F&P’s Herndon, VA office, has been named to The Best Lawyers in America® 2018 for Workers’ Compensation.   

Since its inception in 1983, Best Lawyers is based on an annual peer-review survey in which more than 55,000 leading attorneys cast almost 6.7 million votes on the legal abilities of other lawyers in their practice areas.  The Best Lawyers selection process is a rigorous and comprehensive one, involving detailed evaluations of attorneys and Lawyers are not permitted to pay any fee to participate in or be recognized.

Lynn McHale Fitzpatrick is a principal of the law firm of Franklin & Prokopik, where she is resident in the firm’s Virginia office. She concentrates her practice in the area of civil litigation, especially the defense of state workers’ compensation cases.  Lynn is currently a member of the Virginia State Bar, the Virginia Association of Defense Attorneys, and represents Franklin & Prokopik in the National Workers’ Compensation Defense Network. She has lectured extensively on issues of law and procedure involving workers’ compensation issues.

8/25/2017: Deputy Commissioner “Swats” Claim for Accidental Injury in Recent VA Case Victory

Alex Mayfield in the Herndon, Virginia, office recently prevailed at an evidentiary hearing on the denial of a claim before the Virginia Workers’ Compensation Commission. Claimant, appearing pro se, alleged that he sustained an injury to his chest, shoulder, and neck, when he swatted at a fly while working as a test proctor. In addition to lifetime medical benefits, Claimant sought temporary total disability benefits from the date of injury to present and continuing. On behalf of the Employer and Insurer, Alex raised defenses of: (1) no injury by accident arising out of or in the course of employment, (2) claimant not disabled to extent alleged, and (3) claimant failed to provide timely notice of his alleged injuries.

At the evidentiary hearing, Claimant testified that he was seated at his workstation when he observed a flying insect that flew underneath his desktop. After he spotted the insect, he testified that he bent forward at his waist for approximately 15-30 seconds in an attempt to swat the bug away with a piece of paper. As he was straightening up to a seated position, he allegedly felt a burning sensation or spasm in his stomach/chest. Claimant testified on cross-examination that the bug was “not a regular fly” and that he did not want the people undergoing testing to be disturbed. Additionally, he stated that his job duties as a test proctor required him to exterminate pests from the facility, including rats. As to medical treatment, Claimant stated he initially thought the pain would subside, but eventually sought treatment at the emergency room, where he was given muscle relaxers and pain medication.

Although Claimant claimed wage loss related to the alleged work accident, including an inability to work for 8 hours a day due to his pain, he admitted to subsequently working as a shuttle driver and accepting “love offerings” (i.e. donations) through the ministry. Claimant provided minimal medical evidence to the Commission, which included a referral for physical therapy dated February 6, 2016, and a “Patient Visit Information” document from the ER noting a visit on February 19, 2016 for a chest wall and muscle spasm.

Claimant, upon his request for hearing, had the burden of proving the essential elements of his case by a preponderance of the evidence. For a basic accidental injury claim in Virginia, the essential elements include an (1) injury by accident, (2) arising out of claimant’s employment, and (3) in the course of claimant’s employment. Additionally, Claimant must prove the causal relationship of the alleged accident to medical treatment sought and subsequent wage loss.

The Deputy Commissioner weighed the evidence presented at the hearing and ultimately found that the claimant did not meet his burden of proving an injury by accident arising out of his employment because “the simple act of sitting back up in a chair after swatting at a fly” is not a risk associated with Claimant’s employment. In his Opinion, the Deputy Commissioner relied on important authority regarding the “arising out of” prong of an accidental injury claim—“‘[t]he mere happening of an accident at the workplace, not caused by any work related risk or significant work related exertion, is not compensable.’ Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).” If the general public is exposed to the same risk outside of the workplace, then the injury is not likely to be found as compensable under the Act.

Because the Deputy Commissioner found that Claimant did not prove an injury by accident, he did not make findings related to the other defenses raised. As this case was decided at the evidentiary hearing level, it does not have any precedential value, but it provides an overview of the law regarding the “arising out of” element needed to prove compensability. Many injuries, although they occur at work, are not compensable injuries under the Virginia Workers’ Compensation Act.




8/8/2017: Maryland Unemployment Insurance Law Updates Effective October 2017

Maryland Unemployment Insurance Law Updates

Earlier this year, Governor Hogan signed several bills into law relating to unemployment insurance in the state of Maryland. Each of the following laws is set to go into effect on October 1, 2017.

SB 1169 – Charge of Benefits – Waiver Due to Natural Disaster

 This law authorizes the Secretary of the Department of Labor, Licensing and Regulation (DLLR) to waive a charge of benefits to a claimant if the benefits are paid during a period when a claimant is temporarily unemployed because the employer shut down due to a natural disaster. In order to apply, the Governor must declare a state of emergency due to the natural disaster. If the waiver is applied, it shall only apply until the employer reopens, or four months after the natural disaster, whichever is earlier.

The law is seen as having a potentially significant effect on small businesses in Maryland. Generally, an employer’s state tax rate is based on the employer’s unemployment history. When small businesses are charged for benefits, the unemployment insurance tax rate may fluctuate greatly if the amount of employees seeking benefits increases. A natural disaster that requires many employees of a small business to seek benefits may result in a small business paying the highest possible employer tax rate. The law also cites, as an example, the Ellicott City flood of July 2016, which caused several small businesses to shut down.

HB 139 – Employer Determinations – Process and Appeal Rights

This law was written to clarify that the Lower Appeals Division of the DLLR has initial jurisdiction over appeals of employer account determinations, to codify an existing “review determination” process that occurs prior to an employer filing an appeal, and to extend the appeal process from 15 to 30 days.

 Under the law, an employer must request an internal review (“review determination”) of the Secretary’s initial decision within 30 days. Late requests may be accepted at the Secretary’s discretion. If a review is not made within 60 days, the employer may request a notice from the Secretary that the previous determination shall stand. The employer may then appeal the review determination to the Lower Appeals division within 30 days. The next level of appeal is to the Board of Appeals within another 30 days. Further appeals may then be taken to the circuit court.

 The law is not seen as having a substantial effect on businesses, however, it does give employers additional time to file appeals at all levels, which may be helpful to employers in certain cases.

HB 141 – Eligibility for Benefits – Business Operation Closings

 This bill clarifies a previous law that was written to apply to the closing of a “plant,” which is generally interpreted as a building capable of manufacturing goods in large quantities. The law was rewritten so that members of the public do not incorrectly assume that the exemption only applies to manufacturing businesses. The new law clarifies that the exemption applies to a “business operation.”

 Under the law, when a business operation closes for “inventory, vacation, or another purpose” causing unemployment for a period of 10 weeks or less, the Secretary may exempt employees from the requirement to actively seek work in order to obtain unemployment benefits. This only applies if employees return to work for the employer within 26 weeks, the employer and affected employees jointly request the exemption, and the Secretary determines that the exemption will “promote productivity and economic stability” within Maryland. In effect, the law allows an affected business to maintain its workforce during a temporary closing with the assurance that the workforce will return to work whenever any issues are resolved.

HB135 – Electronic Transmission of Information

This law authorizes employers and individuals to electronically send information or documents, including a request for determination or appeal, to the DLLR. Likewise, the DLLR may send a determination, redetermination, appeals decision, notice, or any other document to employers electronically. The DLLR is also required to adopt regulations for the electronic transmission of information. The law was written to clarify for employers and individuals that they need not transmit documents and filings by direct mail and may instead send them electronically.

If you have any questions regarding this article or Maryland unemployment insurance laws, contact Matthew Kuspa at mkuspa@fandpnet.com.

8/2/2017: A Lifetime to Build and Seconds to Destroy: Treat a Trademark Like a Reputation

Your business is taking off and work is showing results. You have built a reputation over the years and, until now, you have turned a blind eye toward registering a company trademark. Maybe that thought now comes into focus – when your business gathers visibility and suddenly has a reputation to uphold. Countless business disputes result from a business owner’s failure to take care of the little things early on – before they present a real threat. Consider the benefits of registering a trademark and the consequences of not doing so. Like a reputation, your business has likely taken years to build. Its reputation can be altered, perhaps irrevocably, if a competitor registers the trademark first and markets itself under your company’s brand.

What Is a Trademark?

Generally, trademarks are symbols, words or images that indicate where a product is from, as distinguished from a similar product from a competitor.  This helps prevent a competitor from using your company’s rising visibility to their advantage.

What Is Common Law Trademark Protection?

There are two sets of trademark protections: 1) common law rights; and 2) federal rights.

Common law rights are created by mere use of your trademark and its association with a product or service you sell.  Since actual use of the trademark is required to create a common law rights in the trademark, a company often must spend significant time and money marketing and building a brand before those protections are created.

Fortunately, common law protections apply without a company taking any other action aside from using the trademark – no registration of any trademark is necessary. Under common law, your trademark will be protected by use from a competitor within a certain geographic area around your company. Ultimately, if you found a competitor was using your company’s trademark, your company could enforce common law protections on that trademark to the extent your company could show the competitor’s trademark is likely to cause confusion about the source of the product being sold. Upon the showing of such confusion, your company could use the court system to stop the competitor’s use of the trademark.

What Are the Federal Protections and Why Are They Better?

Federal trademark protections are created when you register your trademark with the U.S. Patent and Trademark Office (USPTO).

The only requirement, aside from fees, is that the application be made in good-faith. Specifically, the registrant must show intent to use the mark in connection with the marketing of a product or service.

The ease of filing with the USPTO creates a problem – a third party can file an application for the same trademark you have, possibly creating significant hardship and expense for your company in the future. For instance, if someone else registers the same trademark before you do, that person or company is given advantages if you ever decide you need to sue that party for improper use of “your” brand. Suddenly, your business’ reputation is at risk. If your brand grows and you dispute the rights your competitor has in the trademark, there is a good chance the ensuing disagreement will be more expensive and difficult than if you had simply registered your trademark first.

Filing an application to register your trademark with the USPTO places the whole country on notice of your trademark use. Thus, if someone attempts to register the same trademark later, you are given priority due to the earlier filing date. Accordingly, moving quickly and early will provide you some peace of mind.

Additionally, federal registration provides more benefits than common law trademark protections. Among other perks, federal registration provides: 1) a legal presumption that the registrant has exclusive right to use the mark nationwide in connection with the good and services listed in the registration; 2) significant limitation on competitors’ ability to argue against your ownership of the mark after five years of registration; and 3) a basis to sue a competitor in federal court for trademark infringement.

I Have Already Registered – What Else Can I Do?

The above is only one small piece of a larger intellectual property puzzle, but generally, the above is helpful. Even after you have registered a trademark, there are certainly other problems that can spin out of control if you do not take steps to enforce your rights, but that is best left for a discussion with an attorney to review the specifics of any dispute. You should also review the differences between trademark, patent and copyright protections, all of which an attorney could advise you with regard to the specific intellectual property needs of your business.

As a business owner, you are often not aware of legal protections that may be very helpful in the future. Naturally, you focus on the most pressing issues – putting out fires. The tendency is to concentrate on growing your business. The problem is you must always assume someone is looking to profit from your hard work. Register a trademark before your company grows more lucrative. Think of good fences and neighbors – draw the boundaries now by registering your trademark and limit the parasites later. Without registering, you are stuck with more limited trademark protections.

Hopefully, you never need to litigate trademark issues, but if you do not register, defending your trademark will generally be more expensive and stressful than need be. You care deeply about your company and its future, so take steps now to protect your brand. Do not let a bored millennial down the street register first because you never bothered to do so. It is guaranteed someone will see your business is profitable and try to take advantage. Although you cannot control a competitor’s nefarious efforts, you can take preventive measures such as registering a trademark with the USPTO.

For more information about this article or F&P’s business law practice, please contact Michael J. Lentz at 410.230.1080 or mlentz@fandpnet.com.