Virginia Workers Compensation attorney

Duels Over Dual Employment: What happens when I am injured at work, but I have two jobs?

by David Snyder | March 19th, 2018

As recently as 2016, over 7.5 million Americans held multiple jobs in order to make ends meet. An on-the-job injury can cause a huge disruption to a person’s life, but an on-the-job injury for a person working for multiple employers can be particularly devastating.

When you are injured on the job, there are certain benefits that your employer’s workers’ compensation insurance company must provide to you under the laws of either Maryland, the District of Columbia or Virginia. Despite the fact that each jurisdiction has its own wrinkles through the laws, these benefits are largely the same. As a brief aside, I hesitate to use the word “benefits,” because that makes it sound like you are gaining something by getting money from the insurance company when you are injured. In fact, what these payments ensure is that you are not losing your livelihood, your ability to put food on your table or your ability to keep a roof over your head. Because the laws of each jurisdiction refer to this money as “benefits,” however, I will use it here.

What are wage replacement benefits?

In my years of handling workers’ compensation cases, I can tell you that one of the most important types of benefits, aside from medical care and treatment designed to get you better and back to work, are the wage replacement benefits you are entitled to receive while you recover from your injuries and are unable to work. These are known as temporary total disability benefits.

When an injury at work causes you to not be able to work and you lose your regular stream of income, it can have a devastating effect on both your life as well as the lives of your family members for whom you must also provide. Because of this, making sure that my clients are receiving their full temporary total disability benefits in a timely fashion is always my number one priority when I am first hired by a new client. I have had the great fortune to develop some tools for making sure that this happens sooner rather than later so that my clients’ lives are disrupted as little as possible by their work injuries. Insurance companies, however, are not always willing to pay these benefits in full or on time, which means that we sometimes must go to court to fight for our clients’ rights to their benefits.

But what if I’m working 2 jobs? A fight over temporary total disability benefits for one of my clients recently gave me the opportunity to change the law for the better not just for that particular client, but also for all injured workers in the District of Columbia.

For a little more background, in the District of Columbia, injured workers are entitled to “stack” their wages for purposes of the calculation of workers’ compensation benefits. This means that injured workers who are working at two or more jobs at the time of their injuries are entitled to be paid based upon lost wages from both jobs. Unfortunately, this is a key area of the law where Maryland and Virginia are lacking. In Maryland, injured workers cannot stack their wages at all. So, if you are injured while working at your part-time job and miss time from a much more lucrative full-time job, the state of Maryland has determined that you are out of luck and just have to deal with the very limited income replacement benefits. See why I hate to use the word “benefits”? In Virginia, injured workers can only stack their wages if their second job is similar to the job at which they are injured, but not otherwise. Again, this is hardly a “benefit” to someone who works two different types of jobs to provide for themselves or their family.

How We Changed the Law in D.C. to Help Injured Workers

Back to our story. My client in this particular case was working two jobs at the time she was injured. She was working in the District of Columbia for the employer where she injured her shoulder, and she also had a part-time job working for a different employer. When she was originally injured, her employer was still able to provide her with modified work so that she could continue earning an income. Her part-time employer, however, could not provide work within the physical restrictions that her doctor imposed on her. Actually, her doctor restricted her from working at her part-time job because he was concerned that she would overexert her injured shoulder. As such, her employer correctly began to pay her wage loss benefits based upon the partial loss in her total stacked wages that she sustained.

However, at a certain point in time, my client then injured her other shoulder and the originally injured shoulder got worse while she was in physical therapy. At that point in time, her employer was no longer able to provide modified work for her. When that happened, her employer should have begun paying her full temporary total disability benefits based upon the wages she was now losing from both of her jobs. The insurance company disagreed, and we had to go to a hearing. We won that hearing and the employer was ordered to pay my client based upon her lost wages from both jobs.

The employer was not satisfied and appealed to the Compensation Review Board (the highest level of appellate review within the D.C. Department of Employment Services). The Compensation Review Board agreed with the administrative law judge and we won again. The employer was still not satisfied and appealed one last time to the District of Columbia Court of Appeals. The District of Columbia Court of Appeals is the highest court in the District of Columbia and therefore, what the Court says is final. In July of this year, the Court of Appeals issued a decision that would affect all injured workers in the District of Columbia for the better.

First of all, we won, which was awesome for my client (and, of course, was the right decision in my opinion). The Court noted that the issue in our case was one of first impression; somehow the Court had never had the opportunity to rule on this issue. That, in and of itself, is pretty exciting to me because it’s an opportunity for me to affect a great change in the law to the benefit of many people, both now and in the future.

  • If an injured worker works more than 1 job and can’t work at their second job because of a work injury from their first job, they are entitled to compensation for those lost wages from the second job, too.

In response to the employer’s argument that the Court would somehow create confusion and a conflict of legal principles if we prevailed, the Court of Appeals stated, “A legal paradox is not created by this decision. It is permissible to have two separate awards attributable to one injury because there are two separate jobs—and earnings—being affected by one injury. One injury can impact a person’s concurrent earnings differently because of differing job responsibilities—the examples are infinite.” Basically, the Court implicitly recognized that people do work different jobs that can both be impacted by a work injury, but also that people who are working two different jobs may have vastly differing job responsibilities at each job. As noted above, I think this is the most logical approach of the three local jurisdictions. Virginia and Maryland simply are not grounded in the realities of modern employment and are doing their citizens who sustain work injuries a massive disservice by failing to require that they be compensated for lost wages at both jobs.

  • Employers have to show that alternate jobs don’t just actually exist, but that the injured worker could actually likely get that job.

The Court also delved a bit more into the evidentiary burdens of both injured workers and their employers at hearings. The Court reviewed more well-settled case laws that allowed an employer to escape liability for payment of temporary total disability benefits if a job might be available within an injured worker’s physical restrictions from his or her doctor. The Court, however, went one step further in this case and stated that an employer “must establish job availability in fact,” meaning that the employer “must prove that there are jobs reasonably available in the community for which the intervenor is able to compete and which she could realistically and likely secure.” Essentially, the Court prohibited what used to be the normal practice of employers/insurers and their defense attorneys coming into court and stating that a job would be available without providing any more evidence than that mere statement.

  • Defense doctors who work for insurance companies can’t be the only evidence used to show that an injured worker could work.

Similarly, the Court prohibited employers from relying solely upon an opinion from a doctor selected and paid by the employer and insurance company to render an opinion about an injured worker’s ability to work. The Court noted that, logically, all a doctor’s opinion may (or may not) do is establish that an injured worker could work in some way, but it does not establish that a job is actually available. That makes sense to me because, unless the injured worker worked in that doctor’s office (and we would then be discussing conflicts of interest), how could the doctor ever know the business dealings and job availabilities at the employer’s place of business? Inexplicably, judges had previously allowed the defense attorneys to get away with this. Fortunately, the Court of Appeals saw through that charade in this case and clarified the law, making life much better for injured workers. My colleagues and I have already been able to apply this new requirement to the benefit of our clients in hearings.

  • Just because an injured worker suffers a second new injury doesn’t mean the employer is off the hook for paying wage replacement benefits.

Finally, the Court found that my client’s subsequent injury to her other shoulder did not affect her rights to ongoing temporary total disability benefits. The Court focused on the definition of “disability,” which means an injury that causes a loss of wages. Although she had a new injury, her disability (i.e. her inability to work in a full-duty capacity) was unaffected by the second injury. This was specifically stated by her doctor, who indicated that her physical restrictions were still in place and unchanged by the new injury to the other shoulder. This was an important new development in the law because previously employers and insurers would rely upon the mere happening of a new injury to terminate any and all present and future benefits for our injured clients, again putting them into a predicament.

A ChasenBoscolo Victory for Injured Workers in the Maryland Court of Appeals

Even more astounding, in the same week that the D.C. Court of Appeals decided in this case that a subsequent injury did not necessarily impact an injured worker’s rights to ongoing wage loss benefits, the Court of Appeals of Maryland (which is the highest court in the state, just like the D.C. Court of Appeals) issued an opinion in another case of ours dealing with a similar issue. In that case, my colleague’s client had sustained a very serious injury to his back that caused him to have a permanent disability. Years later, he was involved in a minor altercation that, for a brief period of time, made his back hurt more. The employer and insurance company jumped all over that new incident to deny our client’s benefits. After a long and drawn out fight at the Maryland Workers’ Compensation Commission, the Circuit Court for Anne Arundel County, the Court of Special Appeals of Maryland, and ultimately the Court of Appeals of Maryland, found that our client’s subsequent minor injury had no impact on his disability as a result of his work-related injury.

All of the points of law held or clarified by the D.C. Court of Appeals and Court of Appeals of Maryland in these two cases represent important victories for the rights of injured workers. As a lawyer, I am incredibly proud of the work we do here at ChasenBoscolo to protect not just our clients, but also all injured workers, whether it be through litigating their cases in front of commissioners, administrative law judges or juries, or through our appellate advocacy to change the law for the better.

Is the American Dream dying for the millions of workers in this country?

by Matt Peffer | January 29th, 2018

As the son of an aircraft mechanic, I remember my dad always telling me, “Work hard for the things you want in this life.” One day I asked him, “What do you want in life?” He told me that he wanted a roof over his family’s head, he wanted my mom to be happy and he wanted his boys to have a life better than he and his dad. I thought that sounded easy enough.

Then one morning in 1986, during my sophomore year of high school, as I was waiting for the bus, the phone rang. I heard my mom shout, “Oh no, what hospital?” She asked me to get my stuff and get in the car. You see, as my left-handed, 47-year-old dad was changing a tire on a plane, the jack broke and the wheel well came down, severing several tendons in his hand. As I went back to see him, I remember thinking, What is this going to look like? What is this going to feel like?

The fact of the matter is, I was scared, and I am still scared today. What happens when someone or something wakes you up from your dreams? That was the day that I learned what it meant to be a father and husband.

The basic premise of workers’ compensation benefits is to provide income replacement and medical care so that injured workers are not left behind while they are recuperating from their injuries. The legislatures in all 50 states have indicated how injured workers’ claims will be handled. In most states, you cannot sue your employer for economic and non-economic damages (pain and suffering), so it is rare that an injured worker can be made whole for all the losses incurred by an injury. With so many workers traveling to work in nearby states, it is increasingly important to know your rights when you get injured, because the insurance companies who are responsible for paying the benefits do.

What should I do if I get hurt on the job?

Step 1: Report what happened and all of your injuries to your employer.

When a worker gets injured, the first thing they should do is notify, preferably in writing, their supervisor or someone in human resources. They need to document not only how the injury happened, but more importantly, all the areas of the body that feel injured. Remember, you’re not a teenager anymore, so your body will respond differently to injury. It is easy to know how and when you sustained injury if it was a witnessed slip and fall or an accident by machine. But what if you work in an occupation where you do a lot of walking, or you work in a loud environment, or you sit at a desk with a headset in your ear for 30 years?

Step 2: See a doctor.

Injury is not so easily identified by you, so seeking the consultation of a physician for your symptoms can protect your dream without intention on your behalf. Many baby boomers and Generation-X workers were raised not to complain or whine about their problems. “Don’t make a big deal out of this,” is what we probably heard when faced with an issue that required us to press on for the sake of others.  Therefore, most injured workers do not go and seek medical care immediately to document their injuries until it becomes obvious to them that their problems are worse than they thought. With nothing legally sophisticated about it, the insurance company now has a defense to your claim. It goes like this: “If they were as injured as they say they are, why didn’t they go to the doctor right away?” So please, go to the doctor right away.

But Matt, maybe you haven’t been keeping up with current events. My employer is one of the millions who doesn’t provide health insurance, and I can’t afford to pay for the visit. In all states, the workers’ compensation laws are designed to provide reasonable, necessary and causally-related medical care and treatment for as long as the injury requires at the expense of the workers’ compensation insurance legally required by your employer to have on your behalf. This is part of your employment package, so take advantage of it for the protection of your future.

Step 3: Get your paystubs and keep track of missed work.

After you give notice of your injuries and seek treatment from a doctor, you need to look at your prior pay for a certain period of time leading up to the accident. This will help you to get a picture of what your income replacement will look like while you are unable to work. Remember, the bill man doesn’t care that you got injured, and your responsibility to pay your personal obligations each month still exists. These benefits are called Temporary Total Disability Benefits.

In no state are temporary total disability benefits paid at 100 percent of your earnings. They are usually paid at two-thirds of your weekly pay, tax-free. Some states allow you to be paid based upon all of the jobs you may have been working at the time of your injury; some do not. Some states allow you to include your overtime worked; some do not. Although I always had the best sports equipment come the first of each basketball and baseball season, I knew it came at the expense of third shift ending and morning overtime for my dad.

It is critical you know what rights you have as you have personal obligations to satisfy based upon your ability to work. In order to receive these benefits, you will need a doctor’s note indicating what treatment is being recommended, a doctor’s note indicating that you are not able to return to your pre-injury job, and an actual medical note that indicates that your inability to work and recommended treatment is reasonable, necessary and causally related to your work accident. Without those things, or help from a lawyer that cares, your American Dream could be in jeopardy.

Recovering From a Work Injury

Has anybody been told by their employer, “Go ahead, take as much time as you need.” I believe there are some of you who have heard this, but for a great majority of workers barely able to make ends meet, that is not the case. Also, do any workers wake up healthy and say, “I hope an injury happens so that the last 22 years of my career are meaningless.” Of course not. Most—if not all—injured people want to get as good as they can get and move forward with their dreams.

However, medical care and treatment is expensive, and as we see in the news today regarding healthcare reform, this is the most important time for you. Will you be able to have all the physical therapy you need to return to your dream, and will it begin promptly? Will you be able to undergo the MRI or other diagnostic test your doctors need to determine your conditions, and will it be done promptly? Will you be able to undergo the surgery you need to return to your dream, and will it be done promptly? Will your employment be there when you do everything within your power to keep living your dream? As you can see, how quickly this happens determines the lasting effects the injury has on your abilities to live your dreams. This is often the most critical part of your claim. What you are left with are the pieces you will need help with picking up and moving on.

When some of the pieces are missing, most states allow for the workers to receive an award for the permanent affect. This is called a Permanent Partial Disability Award. Many times, the permanent effect is loss of motion, loss of function or loss of the ability to engage in a specific activity. Although each state may place different levels of importance to each, these are the most important in my opinion. These are the essential elements for survival. Without them, you cannot be part of the pack, you cannot be part of the team and you cannot be the productive member of society like you were the day before your injury. When you experience one or more of these losses or an actual loss to a part of your body, you may be entitled to an award. A majority of the states have already predetermined what your arm is worth, or what your leg is worth. Did they ask you? Did they ask you before they reduced what your arm is worth in 1999 in the District of Columbia, for example? You need every available benefit that is left to be able to move on with your dream.

Sometimes, a permanent effect of the injury is your inability to return to the same type of work that you were physically able to do before the accident. If this occurs, you may need the assistance of vocational rehabilitation. This assistance includes basic job hunting instructions like resume building and interview skills. It may include job placement into another transferable area of employment for you. It may include retraining or schooling to compete with others in today’s labor market. Whatever the assistance, remember this is your dream that will be affected. If you return to a job that pays you less than what you were making before you sustained injury, the insurance company may be required to pay permanent wage loss benefits. Most states, like the District of Columbia, allow these benefits to be paid at two-thirds of the difference, and some states, like Maryland, calculate the effect of the permanent wage loss differently. Regardless of the structure, you need to know when and how these benefits help keep your dream alive. Sadly, sometimes, the dream dies on the job.

What about the effects on my family?

In all states, your loved ones, through the workers’ compensation insurance company, have benefits available to help pay for funeral expenses and, in some cases, income replacement for dependent family members. You need to be aware that not all dreams die at the initial workplace accident. Many times, your loved one has a consequence of the initial injury or accident that results in the dream dying. This often requires me to review the medical records and speak to colleagues and other witnesses to determine if there is a causal connection. Don’t be afraid to ask questions to the answers you may need but don’t know. Remember, your loved ones’ dream includes you.

Why I Fight for Injured Workers

In 1993, I graduated from the University of Pittsburgh. I stood there with my mom and brother and realized how lucky I was. No debt and a shiny new political science degree. Then fear set in. What did I do? I had just wasted 4 years of my dad’s hard-earned money with a degree in something I hated. You see, the degree didn’t really require a lot of hard work. It was easy. As the panic subsided, I decided to attend law school. I had no reason at the time except that I hated politics, and the only job interview I had was for selling cutlery door-to-door. So I packed up my car, kissed my girlfriend goodbye (she’s my wife now) and went to law school. I hated everything about it. There were very few people like me, I thought at the time. During my last semester, I took an elective: workers’ compensation. That will be an easy A, I said to myself. It’s just comp. At the conclusion of the 15 weeks, I was exhausted. It was the hardest class I had ever taken in my life.

At discharge from the hospital, my dad’s hand was so damaged that I thought his career was over. He was my idol. How could he curse anymore at all the young mechanics he was trying to help teach in the middle of the hangar? How would our used cars that he could always fix and keep running last? How could he support us, seeing as our private catholic school cost $1,800.00 a year? How was he going to be my dad? He missed two weeks of work, because that is how much a union mechanic got in 1986. He used the green therapy ball and grip strength device while my mom changed his bandages and he continued on.

This year, my dad turned 79 years old. He cannot do much of anything with his left hand now, he cannot walk without a walker as a result of 14-hour shifts standing and walking across miles of hangar for 30 years and he cannot hear as a result of years of making sure loud airplane engines were operating properly for the safety of the public.

So after 20 years of knowing what I know now, I asked him, “Why didn’t you make a claim for your hand?”

He told me, “Because when you’re a parent, you have to make decisions for others, not yourself.”

I told him that I would’ve protected him. We took a sip of our beers and he said, “I have no doubt you would’ve.”