Disclaimer: This manual has been prepared by Salvatore Zambri of Regan Zambri & Long, PLLC for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Internet subscribers and online readers should not act or rely upon this information without seeking professional counsel. Do not send us confidential information until you speak with one of our lawyers and get authorization to send that confidential information to us.

TABLE OF CONTENTS

I.         Introduction

II.        Initial Measures to Secure Benefits

III.       Jurisdiction

IV.       Notice of Injury

V.        Filing of Claim

VI.       Accidental Injury

VII.      Arising Out of and In the Course of Employment

VIII.     Amount of Compensation

IX.       Permanent Disability Compensation

X.        Medical Treatment

XI.       Third Party Claims

XII.      Commonly Asked Questions From Injured Employees

I. Introduction

This handout is designed for union employees, managers and agents to use as a quick reference tool. It is not designed to be a source of advice. The attorneys at the law firm of Regan Zambri & Long encourage all union members to contact our office at any time with any questions whatsoever regarding workers' compensation law. Of course, as always, we will promptly respond to your inquiries free of charge.

The handout begins by outlining the initial steps an injured employee should take to effectively and expeditiously secure the benefits to which he or she is entitled. It then focuses on several issues, including where a case can been litigated, the medical treatment and amount of compensation an injured employee is entitled to, the kinds of injuries that are compensable and the potential of bringing third party claims. Throughout the handout, we highlight important differences in the District of Columbia, Maryland and Virginia in their interpretations of the law, and how those distinctions affect injured employees.

Workers' compensation laws often change. Therefore, it is important not to rely exclusively on this handout, or any other, in determining your rights. As explained above, you should meet with our lawyers whenever the need arises. Our doors are always open to you and we would welcome the opportunity to help you or someone you know.

II. INITIAL MEASURES TO SECURE BENEFITS

If you are injured on the job, you should take the followings steps to protect your rights under the law:

1. Immediately notify your supervisor of your injury and the fact that the injury was caused by the performance of your job.

2. Immediately seek medical attention.

3. If you are injured in the District of Columbia or Maryland, do not get forced into seeking medical treatment from a physician of your employer's choice. In those jurisdictions, you have the right to choose your own doctor.

4. If you are injured in Virginia, expect to receive a list of three physicians from your employer after you notify your employer of your injury. You are required to receive treatment from one of those doctors. If no list is provided to you after you have given notice to your employer of your work-injury, you may visit a physician of your choice.

5. If you are forced to miss work because of your injury, obtain a disability statement from your physician as soon as possible.

6. File the appropriate written claim forms with all appropriate Offices of Workers' Compensation as soon as possible. Check with our lawyers to be sure all forms have been properly and timely filed. If they are not filed properly and in a timely fashion, you will be barred from any monetary recovery.

7. Do not give a recorded statement to an insurance representative or your employer without first consulting with one of our lawyers.

8. Do not cash or deposit into your account any workers' compensation checks without first consulting with one of our lawyers. Cashing or depositing a check from the insurance company could jeopardize your future entitlement to benefits.

9. Learn from one of our lawyers, free of charge, what your rights are under the law. Even if you are being paid workers' compensation benefits, we advise you to check with us to be sure you are getting all the benefits to which you are entitled.

III. JURISDICTION

"Jurisdiction" is a legal term of art. In order to obtain an award for benefits from a particular Office of Workers' Compensation, an injured employee must prove that the Office has "jurisdiction" over the case. Simply put, he must show that the particular Office has the power to decide his case.

1. District of Columbia:

Essentially, there are two (2) ways to bring a case before the District of Columbia Office of Workers' Compensation. First, if the injury occurred after March 6, 1991 and in the District, jurisdiction is proper. Otherwise, jurisdiction is proper if the injured employee's employment was "principally localized" in the District during the thirteen weeks leading up to the date of his injury. If the injured employee had not worked a full thirteen weeks before his injury, place of hire and residence are important factors in determining jurisdiction.

2. Maryland:

Of all three jurisdictions, the requirements in Maryland are most liberal. Like the District, if the injury occurred in Maryland, the case can be brought in Maryland. Furthermore, even if the accident occurred outside of the state, jurisdiction is proper if the employer has a place of business in Maryland.

3. Virginia:

Jurisdiction is proper when the accident occurred in the Commonwealth. It is also proper when the accident occurred outside of Virginia if the employee was hired in Virginia, the employer has a place of business in Virginia and the employee was not hired to do work exclusively outside of the Virginia.

Note: Generally, the District of Columbia affords greater benefits to injured employees than Virginia or Maryland. Accordingly, the opportunity to bring a claim in the District must be explored. Also, proper care should be taken to insure that an injured employee's rights are protected in all jurisdictions. Although an injured employee is usually entitled to greater benefits in the District, it should be noted that claims are adjudicated much more quickly in Virginia and Maryland.

IV. NOTICE OF INJURY

The District of Columbia, Maryland and Virginia require injured employees to notify their employers of their on-the-job injuries. If notice is not proper and timely, the injured employee's claim is barred.

1. District of Columbia:

An injured employee must give notice of his injury and the fact that it is work-related within thirty (30) days of the date of the injury. Although oral notice is acceptable, written notice is always preferred given that employer representatives may deny receiving oral notice from the injured employee.

2. Maryland:

An injured employee must notify his employer that his injury was sustained within the course and scope of his employment within ten (10) days of the accident. Oral notice is acceptable but, again, written notice is preferred. Although failure to give timely notice is not always fatal in Maryland, it should not be avoided.

3. Virginia:

Employees who are injured on the job must give written notice to their employers within thirty (30) days of their accidents. Oral notice is not sufficient; although failure to provide written notice is not always fatal if it could be shown that oral notice was given or that the employer otherwise had actual notice of the work-accident.

Note: All on-the-job injuries should be immediately reported to employers in written form despite the projected severity of the injury.

V. FILING OF CLAIM

An injured employee must file his claim with the appropriate Office of Workers' Compensation within a specific period of time or else his case will be lost forever.

1. District of Columbia:

A claim must be filed within one (1) year of the date the injured employee knew or should have known of the relatedness between his job and his injury. More simply put, the claim must be filed within one (1) year of the date of the work injury. There are several exceptions to this rule, however. The one (1) year period does not begin to run until the employer files its "First Report of Injury" with the Office of Workers' Compensation. Also, the case law suggests that a claim is timely when a treating physician sends copies of medical records to the Office of Workers' Compensation within one (1) year of the date of the injury. Furthermore, if the employer, through its workers' compensation insurance carrier, voluntary pays benefits to the injured employee, the one (1) year period does not begin to run until the date of the final payment of benefits. Nevertheless, a proper claim form should be filed as soon as possible after a work injury.

2. Maryland:

An injured employee's claim for benefits must be filed with the Maryland Workers' Compensation Commission in Baltimore within two (2) years of the date of the work injury. As in the District, this period does not begin to run until the employer files its report of injury with the Commission.

3. Virginia:

A claim must be filed with the Industrial Commission of Virginia within two (2) years of the date of the employee's work injury.

Note: Injured employees should be careful to file claim forms in all jurisdictions where benefits may be sought. Filing in one jurisdiction does not constitute sufficient filing in a separate jurisdiction. Also, in some jurisdiction, like the District, written notices of injury are distinct from claim forms. Both must be filed in order to protect an injured employee's rights. In addition, there are other statutes of limitations that may apply to an injured employee's case. If they are not satisfied, the case will likewise be lost.

VI. ACCIDENTAL INJURY

In order to have a compensable claim, the employee's injury must be an "accidental injury." This phrase of art is defined differently in each jurisdiction.

1. District of Columbia:

An "accidental injury" is simply an injury that occurs during the course and scope of an employee's job. An unusual exertion is not required.

2. Maryland:

An "accidental injury" is simply an injury that occurs during the course and scope of an employee's job. An unusual exertion is not required.

3. Virginia:

An accidental injury in Virginia occurs when an identifiable accident causes a "sudden mechanical change" in the body. Under the present law, it is difficult, if not impossible, to obtain compensation for cumulative injury claims.

Note: Employers and insurance adjustors like to obtain written and/or recorded statements from injured employees soon after their accidents. Often, these statements are used to show that the employee's injury does not qualify as an "accidental injury." Therefore, it is critical that no such statements be given without first consulting with one of our attorneys.

VII. ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT

An accidental injury must "arise out of and in the course of " an employee's employment to be compensable. This phrase of art is also interpreted differently in each jurisdiction. This issue is litigated mostly in cases where employees are injured on their way to or coming home from work.

1. District of Columbia

Generally, an employee will not be compensated for injuries that occur while he is on his way to or coming home from work. The injury must take place during the employee's "work hours." However, even if an employee is not "on the clock," he may be compensated if his injury occurred while he was preparing to begin work or just finished his job. This exception is usually applied when an employee is injured on the premises or during a paid lunch break.

2. Maryland:

As in the District, the general rule is that employees are not compensated for injuries that occur on the way to or coming home from work. However, if the injury occurs on the job premises and after the job is completed, the claim is compensable if the employee was acting "in furtherance of the employer's business." The trend is to find the injuries compensable. Accordingly, an injured employee should always contact an attorney if his claim is denied on this basis.

3. Virginia:

Virginia does not generally compensate injured employees when their accidents happen on route to or coming home from work. However, if the employee is performing a task for the employer, the claim is deemed compensable. Additionally, if the job places the employee at risk for a particular injury, the claim is compensable even though the injury occurs outside the official work hours.

Note: The law in this area is largely dictated by case law rather than statute. Accordingly, the law is continually evolving and must be examined routinely.

VIII. AMOUNT OF COMPENSATION

Essentially, there are two (2) types of benefits an injured employee is entitled to receive. They are medical benefits and indemnity benefits. This section deals with the issue of indemnity benefits, which are the benefits that the injured employee receives in his pocket. During an injured employee's period of disability, he is entitled to his compensation rate of pay, which varies among jurisdictions. Medical treatment and benefits are discussed in section X.

1. District of Columbia:

Compensation is paid to an injured employee at the rate of two-thirds (2/3) of his gross average weekly wage. The applicable time frame in which the average weekly wage is calculated is the fifty-two (52) week period leading up to the date of the employee's injury. There are minimum and maximum rates of compensation that fluctuate from year to year. These rates of pay are higher than what is afforded in both Maryland and Virginia. No compensation is allowed for the first three (3) days an injured employee is off of work unless he is off of work for more than fourteen (14) days. If off more than fourteen (14) days, the injured employee is entitled to compensation from the date the disability began.

2. Maryland:

Compensation is paid to an injured employee at the rate of two-thirds (2/3) of his gross average weekly wage. The applicable time frame in which the average weekly wage is calculated is the thirteen (13) week period leading up to the date of the employee's injury. Because the minimum and maximum rates of compensation are not as favorable in Maryland versus the District, it is important to evaluate whether or not a claim can be brought in the District. As in the District, the first three (3) days an injured employee misses from work are not automatically compensable. After fourteen (14) days off the job, the injured employee is compensated for the initial three (3) days he was unable to work.

3. Virginia:

Compensation for wage loss in the Commonwealth of Virginia is based upon two-thirds (2/3) of the injured employee's gross average weekly wage during the fifty-two (52) weeks leading up to the date of his injury. The minimum compensation rate for injuries that occur in 1997 is $124.00 and the maximum rate is $496.00. On July 1st of this year, the minimum and maximum rates will be changed to $128.25 and $513.00, respectively. In Virginia, the first seven (7) days missed from work are not compensable unless the injured employee is off work for more than twenty-one (21) days.

Note: Pay stubs should always be retained. Should an employee become injured on the job, the pay stubs would be used to verify the employer's calculation of the employee's applicable average weekly wage.

IX. PERMANENT DISABILITY COMPENSATION

If an employee suffers a work injury which renders him permanently disabled, he may be entitled to additional, and often significant, benefits. The amount of compensation for permanent injuries depends on the body part injured, the degree of permanent disability and the employee's applicable compensation rate.

1. District of Columbia:

If an employee suffers an injury to his head, neck, back or internal organs, the amount of compensation is based on the wage loss attributable to the injury. If he suffers injury to another part of his anatomy, often referred to as a "scheduled injury," the amount of compensation is dictated by statute. The applicable statute considers the body part injured, the degree of disability, and the employee's compensation rate.

2. Maryland:

Compensation for permanent injuries in Maryland is dictated by statute and depends upon the body part injured, the degree of permanent disability, and the employee's compensation rate. In cases involving the head, neck, back and internal organs, wage loss is only one factor in determining the amount of compensation.

3. Virginia:

The amount of compensation for permanent disabilities in Virginia is calculated much as it is in the District of Columbia. However, the amount of compensation for "scheduled injuries" is generally much lower in Virginia as compared to the District.

Note: Often, employees return to their previous employment on a full duty basis after suffering serious and debilitating injuries. If an injured employee returns to work, does not suffer a wage loss, but has a permanent disability, he may be entitled to additional benefits. Employers and insurance companies will not volunteer this information to employees. Accordingly, it is important to speak with one of our lawyer to be sure you receive all the benefits to which you are entitled.

X. MEDICAL TREATMENT

Where an injured employee can seek medical treatment and the kind of treatment he can receive depends on which jurisdiction governs the case.

1. District of Columbia:

An injured employee may seek treatment from a physician or facility of his choice so long as the doctor is licensed to practice in the District of Columbia, Maryland, or Virginia. He is not required to seek treatment from a physician of the employer's choice. If an injured employee requires emergency room care, he may seek follow-up treatment from a physician of his choice, even if the hospital refers the employee to a specific physician. Once a "physician-patient" relationship develops between the treating physician and the injured employee, the employee may not seek further treatment from another facility or physician without prior approval from the Office of Workers' Compensation or the insurance carrier, unless the treating physician specifically refers the injured employee to the other facility or doctor.

2. Maryland:

The law in Maryland is liberal. Simply put, an injured employee may seek treatment from any facility or physician he chooses. However, "bouncing around" to different physicians should be avoided. It is always preferable to get a referral from the treating physician before visiting a new doctor. If a referral cannot be obtained, it is prudent to seeks authorization from the insurance adjustor or the Office of Workers' Compensation before going to a new medical provider.

3. Virginia:

After an injured employee reports his work injury to his employer, the employer is required to provide the employee with a list of three physicians. The injured employee must seek treatment from one of the listed physicians. If a list is not provided to the employee within a reasonable time, the employee may seek treatment from a physician or facility of his choice. An injured employee may not change physicians unless he has been specifically referred to a new facility or physician by his treating doctor or if he obtains authorization from the insurance adjustor or Industrial Commission.

Note: Seeking treatment from chiropractors is discouraged. Hearings Examiners tend to give greater weight to the testimony of medical doctors over that of chiropractors. Also, injured employees should be careful to receive treatment from the appropriate medical specialist.

XI. THIRD PARTY CLAIMS

When an employee is injured at work, his exclusive remedy against the employer is a claim for workers' compensation benefits. This is true even if the employer negligently caused the employee's injuries. However, bringing a workers' compensation claim does not necessarily strip the employee of his right to bring a claim against another party (a "third party"), who was at least partially responsible for the employee's injuries. "Third party" claims, which are outside the scope of workers' compensation law, allow for many more kinds of benefits, including compensation for pain and suffering. A seasoned lawyer always investigates the possibility of bringing a "third party" case on behalf of the injured employee. Because the laws regarding such claims differ in the District of Columbia, Maryland and Virginia, it is important to seek advice from one of our lawyers after a work injury.

Note: If the workers' compensation insurance company pays benefits to the injured employee, the carrier has a legal entitlement to reimbursement from the proceeds of the "third party" recovery. This is known as a "lien." However, competent lawyers always attempt to have the insurance company compromise their lien; thus, putting more money into the injured employee's pocket.

XII. COMMONLY ASKED QUESTIONS FROM INJURED EMPLOYEES

Q: What do I do if I can't afford an attorney?

A: All consultations at Regan Zambri & Long are free. Furthermore, an attorneys' fee is only taken if we successfully obtain benefits on your behalf. Therefore, there is absolutely no out-of-pocket cost to the injured employee.

Q: Can I be compensated for my pain and suffering?

A: An injured employee can only file a workers' compensation claim against his employer. Put another way, he may not sue his employer outside of workers' compensation. Unfortunately, workers' compensation law does not allow for pain and suffering compensation. However, experienced lawyers always investigate whether or not a claim can be brought against another person or entity (a "third-party"), outside of workers' compensation, where the employee can be paid for the pain, suffering, inconvenience and frustration caused by his injury.

Q: I was injured at work but I am afraid my employer will fire me if a bring a claim. What should I do?

A: It is unlawful for an employer to fire an employee because he filed a legitimate workers' compensation claim. Workers' compensation law and the Americans with Disabilities Act provide recourse to the injured employee if he is wrongly discharged. Moreover, employers realize that their employees do suffer legitimate injuries on the job and they recognize that the law forbids them to terminate their employees because they bring meritorious claim. Therefore, the vast majority of employers do not attempt retribution.

Q: When should I expect to receive a check?

A: If an injured employee has not received a workers' compensation check within fourteen (14) days of the time he reports his injury to his employer, he should immediately contact one of our lawyers.

Q: If I am receiving workers' compensation benefits, do I need a lawyer?

A: An injured employee should never assume that he is receiving all the benefits to which he is entitled. Even when the employee is receiving weekly wage loss benefits, there may be other significant benefits he is being denied, including medical benefits. Also, employee's are often paid at an incorrect compensation rate. In addition, it is uncommon for an employer to pay an injured employee any compensation whatsoever for his permanent disability. When compensation is voluntarily paid by the employer for the employee's permanent disability, the amount paid is often much less than the employee deserves. Because there are no out-of-pocket costs to the injured employee to retain one of our lawyers, we encourage all injured employees to consult with us.

Q: What if I can't afford medical treatment?

A: An injured employee should seek a doctor as soon as possible after he is injured. The medical bills are the responsibility of the employer's insurance carrier. Also, the employee's health should be given the highest consideration. If treatment is needed, it should be obtained without delay. Any delay could not only affect the employee's well-being, it could seriously prejudice the injured employee's workers' compensation claim.

Disclaimer: This manual has been prepared by Regan Zambri & Long, PLLC for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Internet subscribers and online readers should not act or rely upon this information without seeking professional counsel. Do not send us confidential information until you speak with one of our lawyers and get authorization to send that confidential information to us.

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