The Consumer Product Safety Commission has recalled the Slalom Glider children’s slide due to the increased risk of a fall.  Manufactured by Landscape Structures Inc., of Delano, Minn,  CPSC reports that the Slalom Glider is a playground slide that lacks a transition platform on the top and sides of the chute and that children can fall when moving from the ladder to the slide and when descending the chute.  CPSC reports that the recalled product is a distinctive 6-foot high playground slide that is curved in shape and made from molded plastic and have model numbers 156456 and 172627 and were sold in combinations of colors, including red, blue, tan, green, granite and white.    CPSC reports that they have received 16 reports of injuries to children under 8 years old.  

          If your child has been injured or killed as a result of this product or other playground equipment, you should contact a lawyer immediately.  As a Prince George’s County and Southern Maryland law firm handling personal injury cases and litigating and trying cases throughout Prince George’s County and Southern Maryland, Wilson and Parlett is well positioned to help you obtain the justice and compensation your child deserves. 

          On February 9, 2012 the Court of Special Appeals released the opinion in Garrity v. Injured Workers’ Ins. Fund, 1185 SEPT.TERM 2010, 2012 WL 414227 (Md. Ct. Spec. App. Feb. 9, 2012). In Garrity a bailiff for Baltimore City District Court arrived at work and shortly thereafter spilled coffee on his shirt and tie. The Claimant subsequently left the courthouse, without informing a supervisor, and went home to obtain a change of clothes. On the way back to the courthouse the claimant was involved in a head-on collision which resulted in substantial injuries. At the hearing level the Claimant was able to show that the injury arose out of and in the course of employment. However the Claimant lost the appeal at the Circuit Court level. The case was appealed again, but unfortunately for the Claimant, the Court of Special Appeals affirmed the Circuit Court decision. 

          Normally an employee involved in going to or coming from work is not covered under the Worker’s Compensation statute, however, the Claimant in Garrity argued that the special mission exception should apply. A special mission, or special errand is a trip undertaken at the request of the employer for the furtherance of the employer’s business. The Claimant argued that a courthouse policy of work appropriate attire mandated his change of clothes after the coffee spill. The Court of Special Appeals rejected the Claimants argument and stated that the special mission exception required a specific request from the employer, and does not cover situations where a supervisor is unaware of an employee’s activities. This is true even when the trip in question is undertaken for purposes of complying with a known policy. 

          The appellant also argued that the dual purpose doctrine and the personal comfort exception are applicable to the case. In rejecting both arguments the Court of Special Appeals cites the fact that the Claimant was not authorized to leave the premises.

By Ryan P. Richie
Personal Injury Lawyers
Maryland/District of Columbia/Virginia

     In 2011 the Maryland Legislature passed a law making it easier for Plaintiff’s attorneys to counsel their clients as to how to proceed with their case.  The law became effective October 1, 2011, and is codified at Maryland Code Annotated, Courts and Judicial Proceedings Article, Section 10-1101 et seq.  While the law does not cover every case, it still changes the law favorably for personal injury victims and their attorneys and brings Maryland in line with many other modern thinking  jurisdictions. 

     Prior to the law, Plaintiff’s attorneys had difficulty counseling their clients as to how to proceed.  Due to the costs involved in proceeding in certain courts in Maryland, a Plaintiff could spend significant sums of money just to begin litigation of a case only to find out that the Defendant had a limited insurance policy and no assets and thus Plaintiff would have a limited recovery.  Now, if the law applies to the case, Plaintiff’s counsel can find out the Defendant’s insurance policy limits early on and accurately counsel his or her client on how to most expeditiously and cost effectively to proceed.

By Scott G. Sanford
Personal Injury Lawyers
Maryland/District of Columbia/Virginia

     Many individuals who apply for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) benefits fall into an unfortunate cycle of drug use.  Sometimes this is an attempt to deal with physical and psychological symptoms.  Other times it is a response to the Claimant’s depressed financial circumstances.  While use of drugs can often detrimentally affect a claim, it is not a bar to the recovery of Social Security Disability Insurance or Supplemental Security Income benefits.

     When evaluating drug use, the administration looks to determine whether the use of prescription or illegal drugs or alcohol is “material” to the Claimant’s disability.  In other words, the administration must consider whether the Claimant’s condition would still be disabling if not for the use of such substances.  As an example, consider an individual who is unable to work because he is paralyzed from the neck down, but also happens to use marijuana.  While the administrative law judges will not look favorably on the drug use, it is clear that it is irrelevant to the question of whether the person is disabled, and therefore should not adversely affect his claim.

     In contrast, consider an individual who is disabled due to psychological factors such as paranoia and hallucinations, but who exacerbates his problems by use of illegal drugs.  If a Judge determines that the psychological impairment is made disabling by the drug use, they will deny benefits.  This situation is likely to occur in claims of psychological disability under the 12.00 listing series in the Social Security Code, and is specifically discussed under listing 12.09.  There are several ways to approach these issues, and seeking the advice of an attorney who regularly appears before the Social Security Administration is essential to provide a chance of success. 

     One reason that an attorney’s advice is essential in these cases is because even a well meaning Claimant may run afoul of the administration’s policy on drug use. SSR 82-60 indicates that “loss of ability to control [the use of drugs or alcohol] identifies the individual as a drug addict or alcoholic diagnostically.”  This classification often becomes significant to those who have severe physical pain and become addicted to narcotic pain medication.  Under SSR 82-60, use of prescription drugs, in and of itself, should not be considered a bar to disability.  Our firm recently handled a successful appeal of this type of claim where the administrative law judge ruled that the drug use was material to the disability. In that case, we were able to overturn the Judge’s decision by showing that while the claimant may have been overusing drugs, she was doing so at her doctor’s instructions and was able to change her use based on her doctor’s advice.  Even if the Claimant was physiologically addicted to her medications, she did not demonstrate the “loss of control” discussed in SSR 82-60.  Even if there is a loss of control, there must still be a separate determination of whether or not the addiction is material to a finding of disability.

     The strategy of any claim involving drug or alcohol use will vary widely depending on the facts of the claim.  If you believe that your claim may be affected by these issues it is often useful to consult with an attorney about how to proceed. Of course, stopping the use of such substances, where possible, is often the best step you can take in helping to strengthen your claim.

By Ryan P. Richie
Personal Injury Lawyers
Maryland/District of Columbia/Virginia

          A client of the firm injured his low back when he fell down a flight of steps while on the job as a plumber.  He was out of work for a period of time, had treatment, and was returned to his job.  He had a small permanency award by the Maryland Workers’ Compensation Commission.  Later on, his ongoing symptoms worsened to the point where he had a new MRI which showed new findings including a herniated disc at a level that had been shown by prior MRI to be damaged, albeit not as badly.  The findings on the second MRI were bad enough that his doctor took him out of work and recommended low back surgery.  The employer/insurer sent the Claimant to their doctor who said that the new changes seen on the second MRI were not related to the work accident and denied payment of any additional workers’ compensation benefits.  Wilson and Parlett filed issues on behalf of the Claimant before the Workers’ Compensation Commission and won- the Commission found that the findings on the second MRI were indeed related to the work accident and the Commission authorized the time off from work and the surgery.  The employer/insurer, not satisfied with the Commission’s decision, appealed the Commission’s decision to the Circuit Court for Prince George’s County and demanded a jury trial.  After twenty-two minutes of deliberation the jury returned a verdict in favor of the Claimant, affirming the Commission’s decision and finding that the work accident was the cause of the changes on the second MRI and the need for surgery and time off from work.  The case will be remanded to the Commission for further proceedings. 

          This case was very important to the Claimant because, had we lost the appeal, the employer/insurer would not have been required to pay for any more medical treatment, time off from work, or permanency benefits once the Claimant is determined to be at maximum medical improvement.  The Claimant was still out of work and under doctor’s care due to complications from the surgery and had no health insurance. 

          In Maryland, if a client has been injured in an automobile accident as a result of someone else’s negligence while he/she was working, the client may have two claims: a workers’ compensation claim and a third party claim against the negligent person.  Coordinating the recoveries in these two claims in order to maximize a client’s recovery is important.  Maryland law requires that the workers’ compensation carrier is required to be paid back for any monies paid by the workers’ compensation carrier out of any recovery from the negligent party.  In addition, if the negligent party does not have enough insurance coverage for all of the client’s injuries, the client may have an underinsured motorist claim.  If, however, there is not enough money from the negligent party’s insurance to pay back the workers’ compensation carrier’s full lien amount, then the underinsured motorist carrier will get a credit for the amount paid by the workers’ compensation carrier and not paid back. 

Question: Can the Plaintiff’s attorney and the workers’ compensation carrier agree that the workers’ compensation carrier will accept less than its full lien amount as full and final payment of its lien, so as to avoid a credit by the underinsured motorist carrier?

Answer: No, the underinsured motorist carrier will still get a credit for the amount that is not paid back to the workers’ compensation carrier.  See Blackburn v. Erie Ins. Group, 185 Md. App. 504 (2009)

Personal Injury Lawyers

Maryland/District of Columbia/Virginia 

          The purpose of the Subsequent Injury Fund (SIF) is to persuade employers to hire individuals with disabilities by limiting the employer’s liability for injuries that occurred prior to the employee’s employment. The employer is protected if the employee suffers an accidental injury or occupational disease that alone may not render the employee disabled, but does cause permanent disability when coupled with his or her prior injuries. Subsequent Injury Fund v. Park, 250 Md. 306 (1968).  In order for a claimant to be eligible for SIF benefits, he or she must have incurred an accidental injury that is compensable for at least 125 weeks, and have previous injures that are also compensable for at least 125 weeks. The combined total overall disability must be more the 50% of the body.  Additionally, the previous impairment must likely be a hindrance to the claimant’s employment, and the combined prior and accidental injuries must be more detrimental to the claimant’s employment than the accidental injury alone.

          The SIF does have limitations that must be overcome. Claimant’s that have prior injuries which become worse after his or her accidental injury, because of reasons unrelated to the accidental injury, will not be compensated for the worsening. Subsequent Injury Fund v. Thomas, 275 Md. 628 (1975). Additionally, a claimant can be found permanently disabled by his or her accidental injury alone. Subsequent Injury Fund v. Compton, 28 Md. App. 526 (1975). Recognizing the potential to implead SIF is important to a claimant’s case, as it prevents unnecessary delays and will help to maximize his or her recovery. A review of the claimant’s prior medical history should be taken at the beginning of the case, especially if the claimant presents with a serious compensable injury.

Personal Injury Lawyers

Maryland/District of Columbia/Virginia 

            Senator Garagiola of Montgomery County, Maryland introduced Senate Bill 413 (crossfiled with House Bill 889) on February 4, 2011. This bill would prohibit an employer/insurer from terminating the payment of temporary total disability benefits before the end of the disability period unless the Workers’ Compensation Commission has ordered a specified termination date. 

Presently, the employer/insurer can terminate a claimant’s temporary total disability benefits for a variety of reasons without the need of an Order from the Worker’s Compensation Commission. Some of these instances include failure on behalf of the claimant to keep a medical appointment without good cause or an excuse slip from a physician, video surveillance of the claimant participating in an activity that is inconsistent with their disability, or most commonly with the support of an independent medical exam, which is conducted by a doctor selected and paid for by the insurance company.

If passed into law, Labor and Employment Article 9-621 would be amended to prevent employers from ending temporary total benefits if the claimant provides valid disability slips and corresponding written medical reports from their treating physician. The employer/insurer would be required to file issues with the Worker’s Compensation Commission to determine if the claimant’s benefits should be terminated. If the employer/insurer is successful, the overpayment will be credited against the claimant’s permanent partial disability award as provided in Labor and Employment Article 9-610.1.

By Ryan P. Richie

Personal Injury Lawyers

Maryland/District of Columbia/Virginia 

     Is a worker injured on the job required to pay their health insurance premiums while on workers’ compensation under D.C. Workers’ Compensation law? 

     No.  Pursuant to the D.C. Code, Annotated, Section , 32-1507 (a-1)(1) and (4), the employer is required to make all payments for an employee’s health insurance premiums, including any payments generally required to be paid by the employee, while the employee is receiving or is eligible to receive workers’ compensation benefits. 

     Many employers do not know this part of the D.C. Workers’ Compensation law.  Many employers continue to require their injured employees to pay either their share of their health insurance premiums, or all of their health insurance premiums.  This is clearly improper under D.C. Workers’ Compensation law.

By Ryan P. Richie

Personal Injury Lawyers

Maryland/District of Columbia/Virginia

     Chief Judge Bell has recently requested an opinion letter on the ability of the Court of Appeals to change the law on contributory negligence in Maryland.  Currently, Maryland, unlike almost all other states, holds that if a driver is even the slightest bit negligent and that negligence contributes to the person’s injury, the person is barred from any recovery.  This means that even if someone is only 1% negligent, that person has no right of recovery.  Due to the harshness and unfairness of this law, most other states have enacted comparative negligence.  Comparative negligence has several different variations, but in its most basic form allows a person who is negligent to still recover a portion of his/her damages; the person’s recovery is reduced by the percent that the person was at fault.

     Most people believe that the Maryland legislature must change the law in Maryland from contributory negligence to comparative negligence.  Chief Judge Bell, however, seems to be looking into whether the Court also has the power to change the law.  Without doing any research, I believe that if the law is based on common law (i.e. law that developed through the court system over time) either the courts or the legislature has the ability to change the law.  If this is the case, then the insurance companies will not be able to hold up the change in the legislature any longer.  Of course, in order for the Court to make the change, a party will have to lose a trial on the issue of contributory negligence and appeal it to the Court of Appeals.