| I. |
COVERAGE : Return
to Top : Exit Article |
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| A. |
No Fault Benefit For Injuries And Illnesses
Which Arise Out Of And In The Course Of
Employment |
| B. |
Medical Benefits Are Provided For The Work
Injury Or Illness |
| C. |
Disability Compensation Equal To |
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| (1) |
Two-Thirds Of The Loss Of Wages |
| or |
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| (2) |
A Scheduled Benefit, Equal To
Two-Thirds Of The Workers' Wages For A
Fixed Number Of Weeks, e.g., 288 Weeks
For A Loss Of An Arm (57.6 Weeks For A
20% Impairment Rating To The Arm) |
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| II. |
PRELIMINARY
ISSUES :
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| A. |
Jurisdiction |
| B. |
Causation: Arising Out Of And In Course Of
Employment |
| C. |
Timeliness Of Claim |
| D. |
Average Weekly Wage |
| E. |
Causation/Etiology |
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| 1. |
Presumption (36-321) |
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a. Rebutted If Contrary Evidence |
| 2. |
Aggravation Rule |
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a. Argue for Temporary Aggravation |
| 3. |
Occupational Disease - Epidemiology |
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a. Diagnosis / Last Employer Rule |
| 4. |
Look for Car Accident/Family
Dispute/Late Notice |
| 5. |
Look At Health Benefit Forms and
Bills |
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a. Credit for S&A Payments |
| 6. |
Interview Supervisor |
| 7. |
Look for Intervening Cause |
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| F. |
Medical Care |
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| 1. |
Recommend Doctor |
| 2. |
Virginia: Offer Panel Of Three
Doctors |
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| III. |
EXTENT
OF DISABILITY (MOST CASES) : Return
to Top : Exit Article |
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| A. |
Scheduled Disability |
| |
| 1. |
Use IME to Test Rating |
| 2. |
Use IME Selected By DOES to Resolve
Dispute |
| 3. |
Agree to Be Bound By IME Selected By
DOES to Avoid Attorney Fees |
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| B. |
Nonscheduled Partial Disability |
| |
| 1. |
Provide Light Duty Job |
| 2. |
Residual Wage Earning Capacity Based
on Labor Market Survey |
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| C. |
Maryland Uses Combination Of Medical Rating
And Employability |
| D. |
Total Disability |
| |
| 1. |
Not Working (Or Working in
Excruciating Pain or Sheltered
Employment) and No Jobs Available Which
the Claimant Can Perform |
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| E. |
Death Benefits For Dependents |
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| IV. |
SPECIAL
FUND RELIEF (36-340) : Return
to Top : Exit Article |
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| A. |
Pre-Existing Permanent Disability |
| |
| 1. |
Cautious Employer Would Not Hire |
| 2. |
Includes Chronic Condition |
| 3. |
Even If Not Formally Diagnosed |
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| B. |
Substantially Contributes To Disability Or
Death, Or Hastens Same |
| C. |
Limits To 104 Weeks Of Permanent Disability
Compensation |
| D. |
Possibly The First Injury Can't Be With Same
Employer |
| E. |
Essentially Not Available In Virginia |
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| V. |
OTHER
ISSUES :
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| A. |
Retaliation (36-342) |
| |
| 1. |
Animus (Because of Workers'
Compensation Claim) - Can Be Inferred |
| 2. |
Discriminatory Treatment |
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a. Treat Claimant Worse Than Someone
With Personal Injury |
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| B. |
Medical Care |
| |
| 1. |
Free Choice of Doctor |
| 2. |
Change Of Doctor. Only If Employer Or
DOES Approved |
| 3. |
Try To Doctor Steer - Make It Easy |
| 4. |
Employers Right To IME |
| 5. |
Interface: Only One Treating Doctor
At A Time |
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| C. |
Vocational Rehabilitation |
| |
| 1. |
Mandatory And $50 Per Week Payment |
| 2. |
Employee Must Accept |
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| D. |
Modification - Change of Conditions or
Mistake of Fact (36-324) |
| |
| 1. |
Physical, Mental or Economic Change |
| 2. |
Mistake of Fact; If In Interest of
Justice |
| 3. |
May Not Apply to Economic Layoff |
| 4. |
Within 1 Year Of Order Or Last
Payment (3 Years For Non-Schedule
Partial) |
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| E. |
Attorney Fees (36-330) |
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| 1. |
Limited To 20% Of Benefits Obtained |
| 2. |
None Before Claim and Controvert or
30 days |
| 3. |
None If Accept Deputy Commissioner
Recommendation |
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| F. |
Third Party Credit and Lien (36-335) |
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| VI. |
PROCEDURE
FOR MEDICAL EVALUATION & RETURN TO WORK : Return
to Top : Exit Article |
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| A. |
Doctor Sends In Work Restrictions |
| B. |
Foreman Circles On Job Description What
Essential Job Duties Worker Can Not Perform |
| C. |
Send Circled Job Description To Doctor For
Confirmation And Advise Doctor Of ADA Significant
Risk Standard |
| D. |
Evaluate Reasonable Accommodations Which Are
Not Undue Hardship Which Will Allow Worker To
Perform Job Even With Work Restrictions. |
| E. |
Assure That Doctor's Opinion Is Defendable
And That The Essential Job Functions Worker Can
Not Perform Are Not De Minimus |
| F. |
Example: No Bending |
| |
| 1 . |
Mean: |
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No excessive bending;
No bending with back; can bend with knees
Can bend once a day
Can bend to lift anything under 5 pounds |
| 2. |
Reasonable Accommodation: |
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Purchase lift or crane
Put Work on a workbench
Attendant perform lifting
Reassign lifting if not essential job
function
Provide back support so can lift |
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| VII. |
LIGHT
DUTY PROGRAMS : Return
to Top : Exit Article |
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| A. |
They Cannot Per Se Be Limited To Workers'
Compensation Cases. Must Be Available For All
Disabled Employees, Regardless Of Whether
Disability Is Due To A Work Injury Or A Personal
Condition |
| B. |
Use Realistic Wages |
| C. |
Place A Once Year Maximum On Placement In The
Program Or Terminate Health Benefit Coverage
After Six Months |
| D. |
Conversely, You Cannot Have A Blanket Refusal
Of Light Duty Since The Job Restructuring
Accommodation Must Be Considered |
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| XIII. |
SETTLEMENTS
-- POTENTIAL FOR ABUSE : Return
to Top : Exit Article |
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| A. |
Judicial/Equitable Estoppel Of Argued
Position |
| |
| 1. |
Not All Courts Follow, Especially For
Settlements |
| 2. |
May Only Apply To Current Conditions |
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| B. |
Waiver |
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| 1. |
Can't Waiver Prospective Civil Rights
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| 2. |
Doesn't Bind EEOC |
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| C. |
Agreement To Give Up Job And Not Reapply |
| |
| 1. |
Unclear If Enforceable; Arguable
Unconscionable And Against Public Policy |
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| D. |
Recommendation |
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| 1. |
Stipulate Worker Permanently Cannot
Perform Any Job With Employer, Even With
Reasonable Accommodations |
| 2. |
Claimant Agrees To Repay Settlement
If Returns To Work With Employer |
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