Delaware Case Law Update: Roos Foods v. Magdalena Guardado, 153 A.2d 114 (Del. 2016) Termination of Temporary Total Disability Benefits for Undocumented Workers

/in /by Delaware Case Law Update: Roos Foods v. Magdalena Guardado, 153 A.2d 114 (Del. 2016) Termination of Temporary Total Disability Benefits for Undocumented Workers

In Delaware, an employer seeking to terminate a claimant’s temporary total disability benefits has the initial burden to demonstrate the claimant is no longer physically unable to work at any capacity.  The burden then shifts to the claimant to prove if they are a displaced worker.  A worker can be prima facie or actually displaced.  Prima facie displacement is based upon a variety of factors including physical impairment as well as the worker’s age, education, and work background.  Actual displacement deals with a reasonable but unsuccessful job search, which is attributed to the work injury.  To rebut a displaced worker finding, the employer must demonstrate job availability for the claimant in the open labor market.

The problem with cases involving undocumented workers is how an employer proves job availability for a claimant who cannot legally be employed.  In Roos Foods v. Guardado, 152 A.3d 114, 122 (Del. 2016), the Supreme Court of Delaware considered an employer’s appeal of a decision of the Industrial Accident Board (“Board”) as affirmed by the Delaware Superior Court.  The employer, Roos Foods, had filed a petition with the Board to terminate Ms. Guardado’s total disability benefits on the ground that the worker was no longer disabled and could return to work.  The Board denied the petition, finding that Ms. Guardado was prima facie displaced based solely on her status as an undocumented worker and further finding that the employer had not demonstrated there was work available for Ms. Guardado within her capabilities.  On appeal, the Delaware Superior Court affirmed the Board’s decision.  The employer then appealed to the state’s Supreme Court.

The Supreme Court of Delaware found held that a claimant’s undocumented worker status does not automatically make them a displaced worker but should be considered in the context of actual displacement.  The Court acknowledged the reality that there are undocumented workers in Delaware and indicated employers can use “reliable market evidence” to demonstrate such job availability.  The Court remanded the matter to the Industrial Accident Board.

Upon remand, the employer retained Dr. Desmond Toohey, Assistant Professor of Economics at the University of Delaware, who prepared a report on jobs that exist for undocumented workers in Delaware.  Dr. Toohey estimated there to be 28,000 undocumented workers in Delaware, 80% of which are employed.  He identified the occupations and industries employing such workers and estimated the number of workers in these fields.  Dr. Toohey then compared the jobs identified in the employer’s Labor Market Survey to the number of undocumented workers in the corresponding occupations and industries.  He concluded there were thousands of undocumented workers employed in Delaware in the types of occupations and industries identified in the Labor Market Survey.

The Board still found the claimant to be a prima facie displaced worker based upon her education, experience, and work restrictions but opined that the employer’s Labor Market Survey rebutted her prima facie displacement.  The Board held that Dr. Toohey’s testimony and report met the “reliable market evidence” standard.  The employer’s Termination Petition was granted.  The claimant appealed.

In an unreported decision, which was later affirmed by the Delaware Supreme Court, the Superior Court affirmed the Board’s decision (2018 WL 776422).  The Court explained the burden on the employer is to demonstrate: first, the availability of jobs for the claimant; and second, such jobs are within the categories of occupations and industries employing undocumented workers in Delaware.[1]  The Court found the employer’s Labor Market Survey met the first element and Dr. Toohey’s testimony met the second.

This ruling provides some level of clarity as to what may be required of employers to meet the Delaware Supreme Court’s “reliable market evidence” standard and how to terminate total disability benefits for undocumented workers.  Based upon the current case law, employers should strongly consider retaining an expert in labor and economics to provide evidence on the types of jobs and industries in which undocumented workers are employed in Delaware, as well as a medical opinion on work capabilities and a vocational specialist to generate a Labor Market Survey.

[1] Guardado v. Roos Foods, Inc. 2018 WL 776422 (Del. Super. 2018).

For more information about this article, please contact Robert Hunt at 302.594.9780 or rhunt@fandpnet.com.

F&P Workers’ Comp Team Spotlight – Tony D. Villeral and James M. White

/in /by F&P Workers’ Comp Team Spotlight – Tony D. Villeral and James M. White

Tony D. Villeral joined Franklin & Prokopik as an associate attorney in April of 2016.  He focuses his practice in both Maryland and D.C. workers’ compensation defense.

Tony is a 2005 graduate of Chapman University in Orange, California.  He received a Bachelor of Science in Business Finance Management.  While attending college he also played soccer.  During college, Tony began his career in the insurance industry and interned with Liberty Mutual as a claims adjuster.  After graduating, he began working as a premium auditor for Liberty Mutual, a position which he held through 2007 when he was accepted into law school.

Tony attended law school at Howard University School of Law from 2007 through 2010.  During his summers in law school, Tony worked for Travelers Insurance, focusing primarily on workers’ compensation defense for both Maryland and Virginia.  After a brief period teaching middle school math and social studies in Baltimore City, Tony accepted an attorney position with Travelers.

Tony continued working for Travelers until January 2013, when he was hired by a large workers’ compensation defense firm located in Baltimore City. While employed with this firm, Tony’s practice was focused primarily in workers’ compensation defense in both Maryland and Washington D. C.  Since joining Franklin & Prokopik in 2016, Tony has enjoyed notable defense successes resulting in his being nominated to the 2018-2019 Rising Stars section of the Super Lawyers.

When Tony is not working, you can find him playing soccer or exploring the culinary arts.  He also enjoys all varieties of puzzles.

James M. White joined Franklin & Prokopik as a paralegal in February 2018.  His work is focused in the area of workers’ compensation defense.

James is a graduate of the Rochester Institute of Technology.  He graduated in 2003 with a Bachelor of the Arts in Industrial Design.  Upon graduating, James worked in the field of graphic design until the end of 2009 when he was recruited by a friend to work in a small law firm in Baltimore City.  The firm’s practice was focused primarily in the representation of children that were in the custody of the Department of Social Services in Baltimore City.  James found this work both challenging and rewarding.  In 2013, James began working for a law firm whose practice was in the area of collections. The firm primarily represented large creditors and lenders.  James was assigned to the Internal Auditor & Compliance Group and was tasked with ensuring that the firm was in compliance with a variety of regulations while pursuing their collection efforts. He continued working with this firm until 2015.

In 2015, James was hired as a paralegal with a small law firm in Harford County that focused primarily in the area of family law. While working for this firm, James was responsible for the preparation and management of case files in anticipation of litigation in the Circuit Court for Harford County.

With such a diverse background in both work history and education, James brings with him an approach to problem solving, creative thinking, and defense preparation that truly makes him an asset to our firm. While working for Franklin & Prokopik, James has familiarized himself in both Maryland and D.C. workers’ compensation defense.

James has several hobbies to fill his time while he is not at work.  Hailing from a small town outside of Boston, Massachusetts, he is a huge fan of both the Patriots and the Red Sox.  The Baltimore Ravens are his second favorite team.  He also plays guitar is his down time, and is a part-time Uber driver, which allows him the opportunity to meet interesting people and learn the roads of Maryland.

Evaluating a Claimant’s Job Search in Delaware

/in /by Evaluating a Claimant’s Job Search in Delaware

A common scenario in workers’ compensation involves litigation to terminate total disability benefits once a claimant is released to work but still has physical restrictions. In Delaware, the initial burden is on the employer to demonstrate the claimant is “medically employable” (i.e., physically capable of working). If so proven, the claimant may respond by showing they are a prima facie displaced worker or actually displaced because of his or her work-related injury. The employer may rebut the claimant by showing job availability in the open labor market survey. This discussion will focus on how a claimant may demonstrate he or she is actually displaced through a job search.

For example, John Smith worked as a plumber until his injury. The claimant is no longer employed by the insured nor capable of returning to his pre-injury employer. However, he has been released by the defense expert and treating physician to light duty with no repetitive lifting. The employer files a Termination Petition to end total disability benefits and obtains a Labor Market Survey showing job availability within the claimant’s background and physical restrictions. The claimant is in his mid-forties, a high school graduate with some college experience, and of sound mind. He applies for 20 jobs after his doctor released him to modified duty but does not receive a single job offer. Mr. Smith also contacted the employers listed on the Labor Market Survey, applied to the jobs that remained open, but did not receive an offer. Is he actually a displaced worker due to his injury, and thus, entitled to ongoing total disability benefits?

The answer (as it usually is with attorneys) is: it depends. Delaware places a duty on a claimant who is no longer totally disabled to make reasonable efforts to secure employment within his/her physical restrictions. The Industrial Accident Board (the “Board”) has defined this search to be a diligent, good faith effort to locate suitable employment. The claimant’s job search need not be perfect but merely reasonable. Reasonable has been referred to as obvious, commonsensical attempts to locate work.

An example of an invalid job search is in Rhonda Ayers-Sanders v. Chimes International, LTD, No. 1377829 (Del. I.A.B. Nov. 8, 2012). The claimant was restricted to light duty with a ten pound lighting restriction. She applied to some of the jobs listed in the employer’s Labor Market Survey, contacted some of the listed employers, applied for positions with six employers not included on the survey, attended a job fair, posted her resume online within two weeks of the hearing. Claimant also signed up for a vocational workshop with the Delaware Department of Labor. She did not receive any job offers.

The Board did not find the claimant’s job search reasonable. The vocational specialist refuted the claimant’s testimony that she applied to or contacted the employers listed in the Labor Market Survey. The jobs the claimant sought out on her own were found to be outside her expertise, physical limitations, and geographic location. The Board also placed weight on the claimant not starting her job search until months after her doctor released her to work and having only attended the job fair within a short time of the hearing.

A valid job search was detailed in Jacki Poore v. Howell F. Wallace, No. 1337349 (Del. I.A.B. Jan. 8, 2012). The claimant had been released to light duty in June 2012. She began looking for work in July 2012 and kept a diary of her applications and responses from the potential employers. In the six months leadings up to the hearing, the claimant applied to 29 jobs on her own but did not receive an offer or request to interview. Her job search was primarily through internet job search engines (i.e.. Indeed and Monster) and local newspaper classified postings. She attended vocational rehabilitation with the Department of Labor and was scheduled to undergo training for administrative and computer skills. The claimant cycled back to employers in her log closer to the hearing to inquire if there were new openings. None of the jobs she applied for were beyond her physical limitations.

In evaluating a claimant’s job search, the Industrial Accident Board will evaluate a number of factors. The most prominent appears to be if the claimant’s job search was for positions that are within her background and physical restrictions. An application for a job that is far outside one’s experience and does not meet the posted requirements has been rejected by the Board. Another important factor is when the claimant searched for jobs. The Board’s findings indicate it considers if the search was done in a realistic attempt to obtain employment or merely in anticipation of litigation. It is also important that the employer’s vocational specialist be made aware of the claimant’s job search and follow-up with the employers identified in the Labor Market Survey. The ability of a vocation specialist to refute a claimant’s argument that he or she applied for and were denied a position, or applied for a different job that was beyond his or her capabilities, cannot be overstated. Overall, this inquiry will be fact specific and not rubber stamped.

For more information about this article, please contact Robert S. Hunt, Jr. at 302.594.9780 or rhunt@fandpnet.com.

Compensability of Weather-Related Injuries in Virginia

/in /by Compensability of Weather-Related Injuries in Virginia

In Virginia, injuries from heat or cold exposure may be compensable if the claimant was exposed to conditions beyond what is typically encountered by other workers doing the same type of work. One example of this is when a claimant is exposed to artificially excessive heat or cold. See Byrd v. Stonega Coke, Etc., Co., 182 Va. 212, 28 S.E.2d 725 (1944) (employee’s death after being exposed to the heat from an oven that was 10-12 degrees higher than normal on a very hot day was a compensable injury), and Southern Express v. Green, 257 Va. 181, 509 S.E.2d 836 (1999) (employee’s frostbite from staying in a cooler for four hours was compensable).

Virginia courts have found a claimant who suffers from heatstroke while working outside may be entitled to workers’ compensation benefits. The determining factor is whether the type of work in which the claimant was engaged also contributed to the heatstroke. For example, the Court of Appeals of Virginia found a claimant working as a traffic flagger sustained a compensable injury where the heat on a June day, combined with his working conditions, caused his heatstroke. Kjellstrom & Lee, Inc. v. Saunders, 42 Va. App. 673, 594 S.E.2d 281 (2004). The Court found the claimant was not simply exposed to the same heat as the general public but was exposed to that heat while “working in the open, in the sun, on asphalt and concrete, with no relief afforded by employer.” Further, the injured worker was not free to leave his post and did not have access to water.

Injuries from weather exposure are not compensable if the employee was in no greater danger of injury than the general public. For example, in Robinette v. Kayo Oil Co., 210 Va. 376, 171 S.E.2d 172 (1969), the Supreme Court of Virginia held the claimant’s death from pneumonia caused by cold and rain exposure was not compensable. The Court reasoned the claimant’s death was not compensable because there was nothing to distinguish his activities from any other workers who were required to do outside work in all kinds of weather. Id. In other words, the weather alone, and not the weather combined with the conditions of the employment, caused the claimant’s injury. See also Imperial Trash Service v. Dotson, 18 Va. App. 600, 445 S.E.2d 716 (1994) (noting that “it was not the heat alone that caused Dotson’s heatstroke and death.”)

Taking steps to protect employees from overexposure in inclement weather will reduce the likelihood that employees suffer a compensable work injury. Therefore, it is important that employers permit employees to take breaks and have access to appropriate accommodations when working in extreme heat or cold.

For more information about this article, please contact Ciara W. Malone at 571.612.5937 or cmalone@fandpnet.com.

Maryland Court of Special Appeals Considers Average Weekly Wage: Richard Beavers Construction, Inc. v. Wagstaff, 236 Md.App. 1 (2018)

/in /by Maryland Court of Special Appeals Considers Average Weekly Wage: Richard Beavers Construction, Inc. v. Wagstaff, 236 Md.App. 1 (2018)

In Richard Beavers Construction, Inc., et al. v. Dexter Wagstaff, the Court of Special Appeals issued an opinion that may affect the calculation of a claimant’s Average Weekly Wage (AWW) in some limited circumstances. The claimant, Dexter Wagstaff, was hired just six weeks before his accidental injury. He was hired as a full-time employee and expected to work 40 hours per week. Unfortunately, during the first six weeks of his employment, Mr. Wagstaff only worked an average of 16.75 hours per week as a result of inclement weather. The issue before the Court concerned the proper determination of AWW in this situation.

At a hearing before the Maryland Workers’ Compensation Commission, the employer and insurer asserted that the AWW calculation should be based upon the average of Mr. Wagstaff’s actual earnings for the six weeks that he had actually worked. Mr. Wagstaff argued his AWW calculation should instead be based upon an expected 40-hour work week. The Commission agreed with Mr. Wagstaff and calculated his AWW based upon a 40-hour work week. The employer and insurer appealed to the Circuit Court for Talbot County, where the Commission’s decision was upheld. The employer and insurer again appealed to the Court of Special Appeals and asserted that both the decisions of the Commission and the Circuit Court were incorrect as a matter of law.

On Appeal, the employer and insurer relied on a “plain reading” of two provisions concerning the determination of AWW, Labor & Employment §9-602 and COMAR 14.09.03.06, and again asserted that Mr. Wagstaff’s AWW should be calculated from his actual earnings in the weeks preceding the accidental injury. Mr. Wagstaff argued that the AWW calculation used by the Commission was correct and accounted for an expected increase in his salary when working conditions were more favorable. To support his argument, Mr. Wagstaff relied upon Labor & Employment §9-602(a)(3). This section provides that if a covered employee establishes that, because of the age and experience of the employee at the time of the accidental injury, the wages of the covered employee could be expected to increase under normal circumstances, the expected increase may be considered when computing the AWW.

While the Court found a flaw in Mr. Wagstaff’s argument, pointing out that his expected increase in earnings had nothing to do with his age or experience as the statute requires, the Court did ultimately side with the claimant. Upon review of the two provisions addressing the determination of the AWW, the Court concluded the Commission may consider other evidence in addition to a 14-week wage statement when calculating the AWW.

In reaching its decision to uphold the Commission and the Circuit Court’s findings, the Court of Special Appeals considered that the employer hired Mr. Wagstaff for the stated purpose of working “full time” (meaning 40 hours a week) and Mr. Wagstaff suffered a disabling injury only a short period of time after being hired. The Court also noted that Mr. Wagstaff had worked substantially less than 40 hours per week prior to his injury and there were other circumstances calling into question whether the actual hours worked during that period accurately represented Mr. Wagstaff’s normal working hours.

Wagstaff demonstrates that, when there is a question as to the calculation of AWW, it may be beneficial for the parties to attempt to reach an agreement as to the amount of the AWW in advance of the first hearing.

For more information about this article, please contact Christopher J. Smith at 410.230.3069 or csmith@fandpnet.com.

F&P Workers’ Comp Team Spotlight – John K. Archibald and Jamere T. Gainers

/in /by F&P Workers’ Comp Team Spotlight – John K. Archibald and Jamere T. Gainers

John Archibald joined Franklin & Prokopik in 2012. He focuses his practice in workers’ compensation defense, employers’ liability, and commercial law.

John attended Fordham University and graduated in 2007 with a Bachelor of Arts in philosophy. While attending college, John was part of the debate team, where he honed his oral argument skills. He also played intramural tennis and picked up running as a hobby.

After graduating from Fordham, John attended law school at the University of Maryland School of Law. While attending law school, John participated in a legal clinic where he did work for the National Association of the Deaf. His work focused primarily on possible violations of the Americans with Disabilities Act. He found this work extremely rewarding, and also eye-opening. While working for this clinic, John gained first-hand knowledge about the struggles that people with disabilities face with equal access to everyday activities that we take for granted.

After graduating from law school, John served as a law clerk for the District Court of Maryland in Baltimore County from 2010 through 2012. While working in this position, John worked for thirteen different judges, and gained practical experience in a variety of different practice areas including landlord/tenant, domestic violence, criminal law, contract law, and auto torts.

In addition to his case work working for Franklin & Prokopik, John is also a member of the Maryland Defense Counsel Workers’ Compensation Section. John also speaks at seminars on issues involving commercial litigation and employers’ liability. In addition to speaking on these topics, he also writes articles for the Business Law and Workers’ Compensation Newsletters covering new legal developments in these areas of practice.

John is just as active in his personal life as in his professional life. He is a member of his neighborhood Board of Directors for the HOA and is an avid runner (he is looking to participate in the Boston Marathon for the second time next spring). John also enjoys traveling and playing the guitar.

Jamere Gainers joined Franklin & Prokopik as a paralegal in 2016. Her work is focused in the area of workers’ compensation defense.

Prior to joining Franklin & Prokopik, Jamere attended Frostburg University from 2006 through 2010, where she majored in Political Science and Criminal Justice. In her last year, Jamere made the decision to work in the legal field and began an internship with a law firm that specialized in bankruptcy and foreclosure. Jamere displayed an aptitude for legal work and, upon completion of her internship and graduation from college, she was hired by a law firm specializing in representing foster care children in Baltimore City and Montgomery County. Jamere continued to work with this law firm from 2010 through 2016, when she was hired by F&P.

In her free time, Jamere enjoys spending time with her family and cooking. Although she rarely watches television or movies at home, she is an avid fan of going to the movie theater.

Payment of Claimant’s Attorney’s Fees After a Successful Appeal

/in /by Payment of Claimant’s Attorney’s Fees After a Successful Appeal

When an employer and insurer appeals a decision of the Maryland Workers’ Compensation Commission there are several positive outcomes which may result.  One possibility is that a jury or judge reduces the amount of permanent partial disability benefits awarded to a claimant.  Because such benefits remain payable to a claimant while an appeal is pending, the employer and insurer may find they have, in fact, overpaid benefits pursuant to the prior award.  Under Maryland law, such an overpayment becomes a credit against future indemnity benefits.  Assuming the employer and insurer properly held the claimant’s attorney’s fees in escrow during the appeal, the question arises: must these attorney’s fees be released to opposing counsel even though the claimant has already been paid all benefits he or she is due?

The longstanding rule in Maryland is that an employer and insurer must pay legal fees to a claimant’s attorney, even in those instances where a claimant has already been paid all compensation due under a modified award.  In Staley v. Board of Education of Washington County, 308 Md. 42 (1986), the Court of Appeals of Maryland discussed in detail the traditional function of an attorney’s fee petition.  When a claimant’s attorney files a fee petition with the Commission and provides a copy to the employer and insurer, the employer and the insurer must reserve in escrow the requested fees.  This provides protection to the claimant’s attorney in that it effectively creates a lien against the claimant’s compensation for the attorney’s legal fees.  The Court went on to explain that an overpayment to the claimant as the result of an operation of law should not prejudicially effect the attorney’s lien.  In short, an overpayment of benefits to a claimant as the result of a successful appeal by an employer and insurer does not extinguish the claimant’s attorney’s lien and the employer and insurer are not discharged of their responsibility to pay these legal fees.

More recently, in Prince George’s County v. Minor, 227 Md. App. 233 (2016), the Court of Special Appeals of Maryland denied attorney’s fees pursuant to a permanency award.  In that case, the claimant’s attorney failed to file a consent form at the time of the hearing before the Workers’ Compensation Commission and no attorney’s fees were awarded in the Commission’s first award of compensation.  The County paid the claimant’s compensation in full before his attorney was awarded fees and before a lien was established.

Minor explicitly distinguished itself from Staley and carved out a narrow exemption to the broader rule that attorney’s fees are due to the claimant’s attorney even if it would result in an overpayment.  Specifically, Minor makes clear that, if claimant’s counsel failed to put the employer and insurer on notice of his or her fees by filing a timely request with the Commission, the employer and insurer are not obligated to pay.  Rather, the claimant’s attorney must seek reimbursement of his or her fees from the claimant directly.

In the instance where an employer and insurer successfully overturn a significant permanency award and payment of attorney’s fees would cause a large overpayment, it is worth considering settlement.  As Sims v. First National Bank of Maryland, 42 Md. App. 309 (1979) makes clear, there is no requirement that settlements address only issues that have not already been litigated.  Keeping this in mind, employers and insurer may wish to consider settling the entire claim following a successful appeal, including any issue of attorney’s fees.

For more information about this article, please contact April Kerns  at 410.230.2975 or akerns@fandpnet.com.

Defending Against the High Prescription Prices of Workers’ Compensation Pharmacies Without a Costly Expert

/in /by Defending Against the High Prescription Prices of Workers’ Compensation Pharmacies Without a Costly Expert

Workers’ compensation pharmacies such as the Injured Workers Pharmacy (tagged as the “Patient Advocate Pharmacy”) and Summit Pharmacy base their marketing platform on providing prescription medications to injured workers with quicker than usual delivery times.  In order to do this, such pharmacies may fill prescriptions unauthorized by workers’ compensation carriers.  When a carrier then refuses to pay the entire billed price, pharmacies like IWP and Summit will file an application with the Virginia Workers’ Commission for full reimbursement.  Defending against these applications either requires a contract between the pharmacy and the insurance company or employer, or it requires showing the prices for the pharmaceuticals exceed the prevailing community rate.  Typically, showing the prevailing community rate requires an expensive expert economist.  Such experts can prove to be cost-prohibitive for many claims.

In an unpublished case before the Virginia Workers’ Compensation Commission, Riggleman v. Riggleman, 05 WC UNP 1386610 (2005), an employer successfully defended against IWP’s pharmaceutical prices without using an expert.  To show the standard community rates, the employer compared the costs at five local pharmacies and “additional local pharmacies” with the cost at IWP.  The employer’s evidence showed that IWP’s charges “exceeded the prevailing community rate.”  The Full Commission further found that “in addition to prescription-filling services, the Injured Workers’ Pharmacy provided ancillary services, such as advocacy services in achieving reimbursement and the shifting of risk of non-payment away from the patient.” IWP’s charges “were not only for the filling of prescriptions, but also for these other charges, which are not provided by the Act.”  Therefore, the employer was not responsible for the full payment.  This case has not been appealed or otherwise cited unfavorably.

Riggleman v. Riggleman seems to suggest that there is an opportunity for employers and insurers to defend against a pharmacy provider’s application without the use of a costly expert.  It may simply require the commission of a data-gathering company to contact pharmacies at random within the appropriate community and inquire what an uninsured individual would pay for relevant prescription medications. This process would likely cost a fraction of what an expert economist would charge.  It is not certain, however, what the required number of pharmacies to survey might be.  Such a determination likely depends on how many total pharmacies are available in a given community.

As a side note, the advent of the new Virginia Workers’ Compensation Medical Fee Schedule has standardized most aspects of the cost for medical care.  However, notably absent from the fee schedule is prescription medications.  Therefore, it appears the fight against prescription prices set by workers’ compensation pharmacies will continue for the foreseeable future.

For more information about this article, please contact Ciara Malone at 571.612.5937 or cmalone@fandpnet.com.

Early Investigation of Workers’ Compensation Claims

/in /by Early Investigation of Workers’ Compensation Claims

Workers’ compensation claims often last for years and, absent a settlement agreement, employers and insurers can remain responsible for the payment of causally related medical treatment for a claimant’s lifetime.  Additionally, once attorneys are involved, there are immediate added expenses for representation and the possibility for a quick resolution fades.  The following are steps that claim adjusters can take in the early investigation of workers’ compensation claims which can help aid in a more expeditious resolution.

  • First, check to see if the Employer’s First Report of Injury has been filed. This will trigger the statute of limitations and will document basic information about the incident, such as time, place, witness and body parts involved.  Note this will not generate a claim or any notice to the injured worker.
  • Consider whether and when to assist the injured worker in filing a Claim Form. This is a fact-specific decision, but the Claim Form can be helpful, especially if there is no dispute as to compensability and if you need subpoena power to investigate possible matches on an Index Report or other evidence of unrelated conditions and injuries.
  • Contact the employer to see if surveillance footage is available for the day and time of an injury. Such footage is more commonplace now with widely available technology, but video often is erased quickly – so act fast to preserve evidence.  If securing a video, make sure it is kept in the ordinary course of business and, if a copy is made, ensure that process is accounted for and documented to avoid any possible questions as to whether the evidence was properly gathered and maintained.
  • Quickly identify any witnesses who may be able to provide a recorded statement, such as coworkers and supervisors. It is best to obtain this information while it is fresh in a witness’ memory.  If an auto accident is involved, obtain any police reports.  Accurate fact-gathering through employment records and witness statements can quickly build a basis to dispute all or part of a claim.  This will also help avoid any change in an injured worker’s description of events, as the version of events as told by witnesses or official documents will help rebut any changes to a story later.
  • Investigate if an injured worker promptly reported his or her alleged incident. He or she has ten days to do so under the Maryland statute (although this rule is generally not strictly enforced).

If the goal of an employer and insurer is to resolve a claim quickly, perhaps through settlement, the above methods of investigation and prompt discussion with an injured worker can be beneficial.  Such investigation will provide necessary information to provide a basic valuation of a claim, assess the likelihood it will be found compensable, and possibly help guide early settlement negotiations.

For more information about this article, please contact John Archibald at 410.230.3064 or jarchibald@fandpnet.com.

F&P Workers’ Comp Spotlights: Barbara Thompson & Barbara Reider

/in /by F&P Workers’ Comp Spotlights: Barbara Thompson & Barbara Reider

Barbara Thompson

Barbara Thompson, who was recently promoted to principal at Franklin & Prokopik (F&P), has a total of 20 years of experience in civil litigation in the field of workers’ compensation defense.  In fact, Barbara’s entire professional career has been focused on workers’ compensation and she brings that wealth of experience and perspective to the cases she handles.

In 1988, Barbara graduated from James Madison University with a Bachelor of Science in Political Science.  She was first introduced to workers’ compensation through an internship program with CIGNA Property & Casualty Company, following which she was hired as a claims adjuster.  Barbara later made the decision to attend law school, and in 1997 graduated, cum laude, from the University of Baltimore School of Law.  After becoming a licensed attorney, Barbara worked primarily as in-house counsel for CIGNA as well as Zurich North America for a combined total of 13 years.  Barbara joined F&P in 2011 and will be celebrating seven years with the firm this month.

During her time at F&P, Barbara has diligently and vigorously litigated countless cases.  Notably, along with F&P Principal David Skomba and Associate Michael Bennett, Barbara defended F&P clients and received a favorable decision from the Court of Appeals in Reger v. Washington County Board of Education, 455 Md. 68 (2017).

Outside of the office, you will most often find Barbara near a barn, ringside at one of her daughter’s horse shows or cheering on her son at a baseball game (always with a camera hanging from her neck).

Barbara A. Reider

Barbara Reider joined Franklin & Prokopik as a paralegal in 2013. Her work is focused in the area of workers’ compensation defense.

Prior to joining Franklin & Prokopik, Barbara worked in the medical field for 15 years. In that time, she was employed as a Certified Medical Assistant, a medical claims processor, and also a phlebotomist. While working in the medical field, Barbara began assisting with the preparation and filing of documentation for her family business, and developed an interest in the legal field. As a result, she decided to make a career change into the legal profession.

In 2013, Barbara received her Associates Degree from the Community College of Baltimore County, where she graduated with honors. While attending school, she continued to work full time, assisting with running her family business and caring for her two children and three dogs. Upon graduating, Barbara was referred to F&P by the director of CCBC’s Legal Studies Department.  During her time at F&P, Barbara has enjoyed working on challenging cases involving the more complex aspects of workers’ compensation law.

Barbara spends most of her free time with her family and is also very active in her church.  Her son recently graduated from high school and is currently serving in the United States Coast Guard as a fireman.  Her daughter is currently being scouted by colleges for her high academic achievements.