Choice of Jurisdiction in a Workers’ Compensation Claim
Apr 25, 2019 | David Snyder
In Maryland, we are fortunate to have multiple, major metropolitan areas within a short distance of each other. Because of the unique nature and location of the District of Columbia, there are many Maryland residents who work in either Washington, DC or Virginia and there are many employees of Maryland companies who reside in either of these other two jurisdictions. This often leads to situations in the workers’ compensation context where the laws of two or more jurisdictions may apply and an injured worker may be able to choose where to file a workers’ compensation claim. Despite the close geographic proximity of Maryland, DC and Virginia, the three workers’ compensation systems have significant differences which must be understood when attorneys are advising their clients of the most beneficial jurisdiction for filing a claim. This article focuses on determining the possible jurisdictions for filing a claim and determining which is the best for a client, based upon some of the differences in the laws of Maryland, DC and Virginia.
I. Jurisdiction and Barring of a Claim
As attorneys, we have an obligation to advise our clients and potential clients on the best course of action in their case. In a workers’ compensation claim, this should start with assessing the different jurisdictions where to a claim could be filed and then proceed to an evaluation of the possible benefits or drawbacks of each. This analysis must start with an understanding of the bases for jurisdiction under Maryland, DC or Virginia law. Because each jurisdiction has its own workers’ compensation laws and each was drafted independently from the other at different points in time during the last century, the jurisdictional rules vary. In addition, it is important to note that the filing of a claim in one jurisdiction may forever bar the filing of that claim in another jurisdiction in the future.
A. Bases for Jurisdiction
Maryland provides that an injured worker is covered under the Maryland Workers’ Compensation Act if he is either injured within the state of Maryland; injured while working outside of the state on an incidental, casual or occasional basis as long as he is regularly employed within the state; or is injured while working outside of the United States as long as the contract for hire was made in Maryland for work to be performed wholly outside of the United States.1 Although the Maryland Act provides that an injured worker is covered while working within the state of Maryland, this general rule does not apply if the employment in Maryland was temporary or intermittent, the injured worker and employer are not Maryland residents, the contract for hire was not entered into in Maryland, the employer has provided workers’ compensation coverage in another jurisdiction and the other jurisdiction both recognizes the extraterritorial provisions of the Maryland Act and has its own similar exemptions.2 In one of the few cases to actually parse out this last provision of the Act, the Court of Appeals of Maryland determined that a Virginia resident working for a Virginia employer in Maryland on a temporary basis was covered by Maryland’s Act because Virginia had no reciprocal provision (i.e. Virginia would have covered a Maryland resident working for a Maryland employer and injured under similar circumstances).3
Although the District of Columbia states the bases for jurisdiction in its Act, these bases have been, in large part, elaborated upon and expanded by the case law. Nonetheless, the starting point of any workers’ compensation analysis should always be with the text of the Act itself. The District of Columbia Workers’ Compensation Act provides jurisdiction when the injured worker was injured in the District of Columbia as long as they performed work for the employer in the District of Columbia4, or if the injury occurs outside of the District of Columbia but the injured worker’s employment was “principally localized” in the District of Columbia.5 It is this second provision, specifically the definition of the terms “principally localized,” that has led to the most significant litigation.
For injuries occurring outside of the District of Columbia, the DC Court of Appeals applies a three-pronged test that considers: 1) The place(s) of the employer’s business office(s) or facility(ies) at which or from which the employee performs the principal service(s) for which he was hired; 2) If there is no such office or facility at which the employee works, the employee’s residence, the place where the contract is made and the place of performance; or
3) If neither (1) nor (2) is applicable, the employee’s base of operations.6 The Court, in Hughes, did not announce a bright-line percentage rule for determining where principal service(s) were preformed and certain caveats apply. However, the Court ultimately determined that Mr. Hughes, who was a mechanic for the Washington Metropolitan Area Transit Authority who spent 60-70% of his time in Virginia, was not entitled to claim compensation in Washington, DC under these criteria. In a subsequent case involving a player for the Washington Capitals, the Court found that a professional hockey player’s employment was principally localized in the District of Columbia based upon the fact that “the Capitals’ business is locally oriented and its relationship to the District no mere matter of convenience: its principal purpose, as the ALJ found, is to play hockey games, more of which it plays in the District than in any other jurisdiction.”7 The case law is still in flux and at least one case is pending before the District of Columbia Court of Appeals for additional clarification as to when injuries occurring outside of the District can fall under its jurisdiction.
Virginia has jurisdiction over an “injury by accident” or an occupational disease occurring within the Commonwealth.8 In addition, injuries occurring outside of the Commonwealth are covered under the Virginia Workers’ Compensation Act if the contract for employment was made in Virginia and the employer’s place of business is in Virginia, as long as the contract for employment was not expressly for work performed entirely outside of Virginia.9 The Virginia Workers’ Compensation Commission and courts have attempted to administratively and judicially restrict what constitutes an “injury by accident” in recent years and have held that the “actual risk” test is applicable in determining whether an injury arose out of and in the course of employment; the “actual risk” test holds that an injury is compensable if the employment subjected the injured worker to the particular danger that brought about the injury.10
B. Exclusivity of Making a Claim
Of the three local jurisdictions, only the District of Columbia law holds that a claim cannot be filed in DC if an injured worker has made a claim and received compensation for the same injury elsewhere. Specifically, the DC Workers’ Compensation Act states that, “No employee shall receive compensation under this chapter and at any time receive compensation under the workers’ compensation law of any other state for the same injury or death.”11 This means that an injured worker cannot have lawfully received benefits under the laws of another jurisdiction, whether it be Maryland, Virginia or elsewhere and later file and maintain a claim in the District of Columbia.12 In no scenario, however, is the employer permitted to select a forum for a claim which is binding on the injured employee.13
Although the Court of Appeals in Springer held that an injured worker did not have to file a claim and receive benefits under the laws of another jurisdiction, Maryland presents an interesting scenario. In Maryland, a self-insured employer or an insurance company cannot pay an injured worker’s benefits until a claim has been filed by the injured worker.14 Therefore, unless an injured worker has both filed a claim in Maryland and been paid benefits, Maryland has not exercised jurisdiction and a claim can still be filed and maintained in the District of Columbia. By contrast, Virginia is a voluntary payment jurisdiction, meaning that a self-insured employer or insurance company can pay benefits without an order; if the injured worker receives a check for and cashes the check for those benefits, then they are forever barred from maintaining a claim in the District of Columbia.
II. Differences in Average Weekly Wage and Compensation Rates
When determining the best jurisdiction in which to file a claim, especially for an injured worker who holds multiple jobs or is a high wage-earner, it is of the utmost importance to ensure your client receives adequate compensation while recovering from his or her injuries. Unfortunately, a work injury that results in an extended period of disability is invariably going to set an injured worker and her family back financially, so it is our duty to mitigate that setback as much as possible.
A. Maximum Compensation Rates
Because each jurisdiction employs its own manner of calculating an injured worker’s average weekly wage and determines its own maximum compensation rate applicable for any injured worker within the jurisdiction, it is important to be aware of the general method of calculating average weekly wage/compensation rate as well as the maximum rates, particularly when representing a high wage-earner. This article will not address the intricacies of the various methods of average weekly wage calculation in each jurisdiction (although I would be happy to discuss them ad nauseum), but will provide the basics. Maryland, the District of Columbia and Virginia each employ their own calculation methods for determining an injured worker’s average weekly wage and resulting compensation rate (i.e. the rate at which disability benefits are paid under the law). Being aware of these numbers is important when advising clients as to the potential benefits available to them under the law as well as the value of their case, thereby allowing the client to make an educated choice as to the proper jurisdiction for a claim.
Maryland generally considers the wages earned during the 14 weeks immediately preceding the work injury.15 Maryland determines the maximum compensation rate on an annual basis, based upon the State Average Weekly Wage and publishes these figures.16 In 2019, the maximum compensation rate for temporary total disability benefits is $1,116.00 per week.17 This rate is scaled down for permanent partial disability benefits based upon the different “tiers” employed by Maryland for calculation of permanent partial disability benefits.18
DC considers the wages earned during the 26 weeks immediately preceding the work injury.19 The District of Columbia also determines the maximum compensation rate on an annual basis, also based upon the Average Weekly Wage of all non-governmental (either DC or federal) employees in the District and publishes these figures.20 In 2019, the maximum compensation for any type of compensation benefits is $1,521.74 per week.21
Virginia considers the wages earned during the 52 weeks immediately preceding the work injury.22 Virginia also determines the maximum compensation rate on an annual basis, in July, also based upon the wages of all employees except for those employed by the United States government and publishes these figures.23 From July 1, 2018 until June 30, 2019, the maximum compensation rate for any type of compensation benefits is $1,082.00.24
B. Wage Stacking
In the District of Columbia, injured workers are entitled to “stack” their wages for purposes of the calculation of workers’ compensation benefits.25 This means that injured workers who are working at two or more jobs at the time of their injury are entitled to be paid based upon lost wages from both jobs. The law makes no distinction in terms of how much injured workers are entitled to be paid depending on which of their two jobs they were performing when injured. In other words, even if someone is injured while working at a job that pays $100.00 per week and the injury prevents him from also working at his job that pays $1,000.00 per week, he can still “stack” his wages.
One of the published decisions on this point involved a client who was working two jobs at the time that she was injured.26 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.27 When she was originally injured, her employer was still able to provide her with modified work so that she could continue earning an income.28 Her part-time employer, however, could not provide work within the physical restrictions that her doctor imposed on her.29 Actually, her doctor restricted her from working at her part-time job because he was concerned that she would over-exert her injured shoulder.30 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.31 However, at a certain point in time, the client then injured her other shoulder and the originally-injured shoulder got worse while she was in physical therapy.32 At that point in time, her employer was no longer able to provide modified work for her.33 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 employer and their insurance company disagreed, and we had to go to a hearing before the Office of Hearings and Adjudication.
The District of Columbia Court of Appeals heard this matter of first impression following an appeal to the Compensation Review Board.34 In response to the employer’s argument that the Court would somehow create confusion and a conflict of legal principles if it found the client was entitled to total disability benefits for both jobs, 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.”35 Basically, the court implicitly recognized not only that people work different jobs that can 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.
Unfortunately, this is a key area of the law where Maryland and Virginia are lacking. In Maryland, injured workers cannot stack their wages. So, if someone is injured while working at her part-time job and misses time from a much more lucrative full-time job, the state of Maryland has determined that they are out of luck and just has to deal with the very limited income replacement benefits to which she would be entitled at her part-time job. Virginia has essentially a “middle ground” law between DC and Maryland. In Virginia, injured workers can only stack their wages if their second job is similar to the job at which they are injured.36 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.
III. Permanent Partial Disability Benefits
All of the jurisdictions permit injured workers to receive temporary total disability benefits during the period of their recovery (with certain limitations in Virginia) when they have a total loss of earning capacity or wages, temporary partial disability benefits during the period of their recovery when they have a partial loss of earning capacity or wages and permanent total disability benefits (with certain limitations) if they are unable to ever work in any gainful employment. These benefits are largely the same in all three jurisdictions. The most significant differences in computation and availability of benefits appear in the area of permanent partial disability (“PPD”) benefits. Because attorneys and clients are often focused on the end-game of a case and because the vast majority of injured workers do return to work in some capacity, the type and amount of permanent partial disability benefits are also an appropriate consideration.
DC permits two types of PPD benefits: those involving wage loss and those to a “scheduled member” (defined as an arm, hand, finger, leg, foot, toe, eye, ear or vision or hearing).37 An injured worker is entitled to compensation for total or partial loss of a “scheduled member” after reaching maximum medical improvement if there is some impairment to that part of the body.38 PPD benefits can be paid for permanent disability to a scheduled member even if the injury itself is nonscheduled (i.e. to the head, neck or back) because the situs of the disability that controls, not the situs of the injury.39 Permanent partial disability is determined, in large part, based upon the opinion of a medical expert in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment as well as the “Maryland five factors” of pain, atrophy, weakness, loss of function and loss of endurance.40 In other cases, wherein the injured worker has injured a non-scheduled part of the body, the injured worker is entitled to compensation based upon permanent loss of earning capacity.41 This is calculated either: at the time the injured worker returns to work or achieves maximum medical improvement and is the greater of the difference between the pre-injury average weekly wage and the wages of the new job at the time of the injury; or, the difference between the wages of the new job at the time the injured worker returns to work and the wages the injured worker would have been earning at that time had they continued to work in the pre-injury employment.42 One final important note is that, unlike in Maryland and Virginia, an injured worker can not receive PPD schedule loss benefits and thereafter receive temporary total disability benefits, absent extraordinary circumstances (e.g. an amputation).43
In Maryland, an injured worker is similarly entitled to PPD as of the time of reaching maximum medical improvement if they have some permanent impairment.44 Similar to DC, Maryland also differentiates in some regard between scheduled and non-scheduled disabilities, with the scheduled members being the same as those in DC and also including the nasal septum.45 Maryland, unlike DC, also allows for a physician to rate the non-scheduled body parts and permits an award of permanent partial disability benefits regardless of wage loss (though loss of industrial use is considered under this portion of the Act).46 As in DC, Maryland considers the medical impairment as rated by a physician using the American Medical Association Guides and the “Maryland five factors” as outlined supra.47
In Virginia, an injured worker is also entitled to PPD, but only for a scheduled member injury.48 Unlike DC and Maryland, neither a physician nor the Commission is required to use the American Medical Association Guides to evaluate the permanent impairment, because an impairment does not need to be determined by any set of guidelines, tables or other measuring tools.49 In addition, Virginia does not recognize the use of the “Maryland five factors,” though it seems possible they could be implicitly or explicitly considered in line with the above standard.50
Clients and potential clients often have jurisdictional choices to make following a work injury. By being knowledgeable about the differences in employees’ right to compensation in Virginia, Maryland and DC, you can better advise them about what you believe is the most beneficial jurisdiction. My colleagues and I are always happy to lend an ear or some advice as well.
Biography: David M. Snyder practices personal injury law at CHASENBOSCOLO Injury Lawyers. He is licensed to practice law in Maryland and the District of Columbia and intends to be licensed to practice law in Virginia in 2019. He focuses his practice on representing only injured workers in workers’ compensation cases in Maryland, the District of Columbia and before the U.S. Department of Labor in Longshore and Harbor Workers’ Compensation Act/Defense Base Act/Non-Appropriated Funds Instrumentalities Act cases. He also represents his clients in third-party negligence cases arising out of work injuries in these jurisdictions. CHASENBOSCOLO represents injured victims in Maryland, the District of Columbia and Virginia and has offices in Greenbelt, Maryland; Waldorf, Maryland; Falls Church, Virginia; and a new office in Baltimore, Maryland.
1 Md. Code, Lab. & Empl. § 9-203(a).
2 Md. Code, Lab. & Empl. § 9-203(b)(1).
3 Janet’s Cleaning Service v. Roynon, 311 Md. 686, 696 (Md. App. 1988).
4 D.C. Code § 32-1503(a).
6 Hughes v. D.C. Dep’t of Employment Servs., 498 A.2d 567, 569 (D.C.
7 Lincoln Hockey v. D.C. Dep’t of Employment Servs., 997 A.2d 713, 718
8 Va. Code Ann. § 65.2-101.
9 Va. Code Ann. § 65.2-508.
10 The Southland Corp. v. Parson, 338 S.E.2d 162, 163 (D.C. 1985).
11 D.C. Code Ann. § 32-1503(a-1).
12 See, e.g., Springer v. D.C. Dep’t of Employment Servs., 743 A.2d 1213
13 Washington Metro. Area Transit Auth. v. D.C. Dep’t of Employment
Servs., 825 A.2d 292, 296 (D.C. 2003).
14 Code of Md. Regs. 14.09.06.01.
15 Code of Md. Regs. 14.09.06.03.B(1).
16 Maryland Workers’ Compensation Commission, Maryland Workers’ Compensation Rates, https://www.wcc.state.md.us/Adjud_Claims/
Comp_Rates.html (last visited March 14, 2019).
17 Maryland Workers’ Compensation Commission, Maximum Rate of Benefits for Calendar Year 2019, https://www.wcc.state.md.us/PDF/ Rates/2019.pdf (last visited March 14, 2019).
19 D.C. Code Ann. § 32-1511(a)(4).
20 District of Columbia Department of Employment Services, MaximumMinimum Compensation Rate/Supplemental Allowance, https://does.dc.gov/publication/maximum-minimum-compensation-ratesupplemental-allowance. (last visited March 14, 2019).
22 Va. Code Ann. § 65.2-101.1.a.
23 Virginia Workers’ Compensation Commission, Virginia Workers’ Compensation Commission Chronological Compensation Benefits Chart, http://www.vwc.state.va.us/sites/default/files/documents/Rates-MinMax-COLA-Mileage.pdf (last visited March 14, 2019).
25 MCM Parking Co. v. D.C. Dep’t of Employment Servs.¸ 510 A.2d 1041, 1044 (D.C. 1986)
26 See, generally, Providence Hospital v. D.C. Dep’t of Employment Servs., 163 A.3d 115 (D.C. 2017).
27 Id. at 118.
34 Id. at 120.
36 County of Frederick Fire & Rescue v. Dodson, 457 S.E.2d 783 (Va. 1995).
37 See, generally D.C. Code Ann. § 32-1508(3).
38 D.C. Code Ann. § 32-1508(3)(A)-(U).
39 Wash. Metro. Area Transit Auth. v. D.C. Dep’t of Employment Servs., 683
A.2d 470, 474-5 (D.C. 1996).
40 D.C. Code Ann. § 32-1508(3)(U-i).
41 D.C. Code Ann. § 32-1508(3)(V).
43 Cherrydale Heating & Air Conditioning v. D.C. Dep’t of Employment
Servs., 722 A.2d 31, 32 (D.C. 1998).
44 Md. Code Ann., Lab. & Empl. § 9-625.
45 Md. Code Ann., Lab. & Empl. § 9-627(b)-(j).
46 Md. Code Ann., Lab. & Empl. § 9-627(k).
47 Md. Code Ann., Lab. & Empl. § 9-721.
48 Va. Code Ann. § 65.2-503.
49 Choudhary v. Fairfax Co. Pub. Sch., JCN VA00000199617 (July 6, 2016).
50 See, id.