Practice & Procedure Tips for Attorneys

1. General

Initially, a claim must be filed with the Maryland Workers Compensation Commission in Baltimore, Md. Presently, when you file a claim, you will be assigned a claim number that should start with a “B” or a “W.” Once the claim is filed, a notice of employees claim will be generated and mailed to all parties. This notice will have a consideration date on the lower right hand corner. This consideration date is the date that the employer/insurer has to responds to the claim for benefits. Once you have this claim number, you are able to file issues with the Maryland Workers Compensation Commission to generate a hearing notice. The claimant cannot file for a hearing until after the consideration date passes. The employer can file a request for a hearing at any time(and should file contesting issues before the consideration date if they contest the claim) after the claim is filed. Make sure that your appearance is entered in the case or your name may not be on the claim form. Once you receive your hearing notice, it will give you the place and time of the hearing. Make sure to be prompt for your hearing, as most commissioners will expect that you are prepared to start your hearing on time. Pay special attention to your hearing notice when you receive it if you need the services of an interpreter at the hearing. There are strict time deadlines that must be adhered to in requesting an interpreter for your hearing. Should you need the services of an interpreter make sure that you file your request timely. If your client needs an emergency hearing, you can request an expedited hearing for extreme financial hardship or for a medical emergency.

2. Issues to be addressed at the hearing

You should be prepared to discuss all issues that will be raised by you or your opponent. Make sure that you contact your opponent to determine all issues prior to the hearing if you are unsure what issues may be addressed at the hearing.

3. Exhibits for the hearing

Well in advance of the hearing, you should have your exhibits prepared and submitted to the other side. Your exhibits should have a copy of the claim form, the issues that were raised for the hearing, any prior orders from the Commission and all documentation that you wish the Commissioner to consider. Do not attach witness statements to the exhibits as they are not admissible. Your exhibits should contain all pertinent medical documentation to support your claim. You will also want your client to sign a claimants consent to pay attorney fees and costs and submit it the Commissioner with your exhibits. This should be done in all cases where you are seeking monetary compensation from the Commission. If you do not submit this form, there will not be an attorney fee awarded in your case.

4. The contested case

If you filed a case with the Maryland Workers Compensation Commission and the employer/insurer filed contesting issues, your case will be set for a hearing. Be prepared to litigate and prove whatever contested issues were raised by the employer/insurer. Usually a contested case means that the entire case is at issue for whatever reason. Sometimes, the employer will dispute that an injury even occurred, notice of the injury or that the claimant has a disability due to some other reason. In these contested cases, make sure that you have done an extensive interview with your client to make sure that any witnesses are present at the hearing that may be able to help corroborate the facts as to how your client contends the injury occurred. You can be sure that the employer will have witnesses present that will support their version of what did or did not happen on the date of alleged injury. Be prepared to have your case heard toward the end of the docket if your case is contested, as contested cases can take several hours to complete depending upon the number of witnesses that will be offered. Do not expect to get in hearsay evidence at a contested workers compensation hearing.

You should prepare your client for your examination, cross examination from any questions that the commissioner may ask. You should also prepare any of your witnesses for their testimony. You should have your client appear at the hearing early to see what witnesses appear for the employer in anticipation of testimony that may be offered by the employer. It can be helpful for the client to be present when other cases are heard so the client will have a better idea what to exepct in his own hearing.

5. Uncontested cases

These cases usually involve a single issue and/or more than one related issue. These cases have either been accepted by the insurance carrier or contested and adjudicated in the favor of the injured worker. You can expect that these cases can usually be tried in around 10 minutes depending upon the complexity of the issues that will be presented to the Commission.

6. The issues that can be raised by either party
  1. Did the employee sustain an injury causally related to an accident which arose out of and in the course of employment?
  2. Is the disability of the employee causally related to the accidental injury?
  3. Did the employee sustain a compensable hernia within the meaning of the Workers Compensation Act?
  4. Did the employee sustain an occupational disease?
  5. Average weekly wage.
  6. Limitations.
  7. Jurisdiction.
  8. Statutory employment.
  9. Medical expenses.
  10. Vocational rehabilitation.
  11. Attorney fees/costs.
  12. Penalties.
  13. Temporary total disability for an inclusive time period.
  14. Other issues.
  15. Authorization for medical treatment.
  16. Temporary total disability for a specific time period and/or cotinuing.

In most of the cases that are uncontested, your client will likely be the only witness that testifies. Usually, the employer will provide medical documentation or a private investigator to discredit your client and their claims.

7. Rules of evidence

You may have heard that workers compensation hearings are informal hearings that may be more relaxed that a formal trial. Make sure that your client dresses like they are presenting for a job interview. It is specifically not recommended that the client wear shorts, tee shirts or cutoffs. This type of dress is strongly discouraged and can ultimately affect how the Commissioner might view your case if he/she thinks the client has little or no respect for courtroom demeanor. The Commissioners do understand that your clients have extreme financial distress and are therefore, somewhat relaxed on the dress code. While the Commission may seem informal to some attorneys and claimants, and its procedures are more simple than that of Circuit or District court, the parties should not take the informality lightly. Additionally, as also referenced herein, the type of case that you are trying will also dictate how strict the application of the rules of evidence will be.

8. The Commissioners

As of 1/1/10, there are 10 commissioners that sit and hear the workers compensation hearings. These Commissioners are quite like District Court judges as they hear cases, listen to the evidence, rule on objections and make decisions on cases. These Commissioners rotate to the different hearing sites throughout the state. The Commissioners usually issue a legally binding order to you and your client within a 2-4 week time period. These orders are legally binding and if you are not satisfied with the Commissioner’s findings, you must appeal that decision. All proceedings are taken under oath and are recorded by a court reporter.

9. Parties to be present

In addition to the claimant, and employer/insurer, you will want to make sure that there are no additional parties that should be impled in the case and present of the hearing including another employer, a statutory employer, The Subsequent Injury Fund, The Uninsured Employers Fund, or another insurance carrier. Make sure that you have investigated who the proper parties are and whether you need any additional parties at the hearing.

10. Hearing sites

The hearings are located at regional hearing sites through out the State of Maryland. These regional hearing sites are not located in courthouses. The hearings are held in Baltimore City, Beltsville, Abingdon, LaPlata, Frederick, Cambridge and Cumberland. Many of these hearing sites have multiple courtrooms in each location. Make sure that you check the docket in each location to be sure that you present to the correct courtroom.

11. The docket

The docket will typically be called by the Commissioner hearing the cases around 9:30 a.m. There will generally be 15-20 cases on the Commissioner's docket for each day. Several of the cases set on the Commissioner’s docket will either get continued, fall through or resolve. If you do not already know the opposing attorney in your case, when the docket is called, you should look for that attorney and exchange exhibits with that person at that time of you have not already done so. The best and technically required practice is to exchange the exhibits well in advance of the hearing so that both parties can be properly prepared for the hearing.

12. Preliminary matters

If your case has issues that should be dealt with on a preliminary basis, tell the Commissioner when they call your case. These preliminary matters can be anything from a request for continuance (for a number of reasons) or the case may have settled or resolved in some other way. In any event, preliminary matters usually are handled before any hearings and advising the Commissioner of a preliminary matter saves everyone time. In some cases, the parties can agree on a stipulation or some way for the Commissioner to pass an order without any testimony being taken. If your case involves many witnesses and there are time constraints for you or one of your witnesses, you may want to consider arranging beforehand to have your case heard either early or later in the docket. Most often the Commissioner will make his/her best efforts to accommodate as many people as they can.

13. Trying your case

Once your case is called, the Commissioner will ask the attorneys for some preliminary information. The Commissioner will ask for the average weekly wage and dates of temporary total disability. Make sure that you know the correct average weekly wage and agree with what the defense attorney will represent to the Commissioner in this regard. Make sure that if you do not agree with the average weekly wage, you advise the Commissioner of your position as to what the correct average weekly wage is. This matter may need to be litigated at a later date. Thereafter, the Commissioner will ask for your exhibits. You should hand the exhibits to the court reporter with your claimants consent form to pay attorney fees and the Independent Medical Exam costs and any other costs requested. The Commissioner will ask what the issues for the hearing are and each party should tell the Commissioner what the issues they would like a ruling on. If the case involves complex issues, you may be asked to give some opening remarks or you may ask the Commissioner to permit opening remarks. Otherwise, opening statements are generally not given in these cases.Once a Commissioner understands what issues are necessary for determination, the Commissioner will likely push the hearing in the direction that they want the case to go. The Commissioners have heard many cases such as yours and are very experienced in getting to the issues that need to be adjudicated. In many cases, the claimant’s attorney will be instructed to give a proffer of treatment or even lead their client to help speed up the testimony at the hearing. Some Commissioners will take over the questioning of the claimant, or only ask the claimant a few questions of their own while others will allow you to develop the claim yourself. You must be prepared to anticipate what the Commissioner will do and react accordingly. If the questioning in your case has been taken over by the Commissioner and you do not feel that certain material facts have been revealed to the Commissioner, you must ask the claimant the questions that you feel answers must be given to provide a complete record.

14. Direct examination of your client

You should be prepared to have your client testify to the facts of the accident and the medical treatment received in the case. Since the rules of evidence apply, unless directed to do so by the Commissioner, you are generally not permitted to lead your client in direct examination. Your client will also have to testify to the issues in your case. If your issues are for medical treatment, you should have your client testify regarding the medical treatment that is recommended and if they understand the medical treatment that has been recommended. The claimant should also be prepared to testify about why they want the medical treatment being recommended by the treating physician. If the issues are permanent partial disability, your client will need to testify about their pain and be prepared to explain the frequency, severity and duration of their pain. They must also be prepared to testify about the problems that their injuries have caused them and the effects the injuries have had on their work and their ability to earn wages.

15. Cross examination of your client

Your client should be prepared to respond to the issues that are being raised by the employer/insurer. You need to prepare the client and discuss truthful but appropriate responses to possible lines of inquiries from opposing counsel. The Commissioner will listen attentively to responses concerning medical treatment, past relevant medical conditions, restrictions and disabilities. Since it is likely that the client will never have been through this process, it is important that you prepare him for what he might encounter on cross examination.

16. Closing argument

If you feel that one or more of the issues must be addressed by closing arguments, you may ask permission to make some closing remarks. The closing remarks must be brief and go directly to the issues that you want decided. The Commissioners do not have to permit closing argument and appreciate brief closings when they do permit them.

17. The award

You will receive the award of compensation anywhere within a few days or up to approximately one month after the case was heard. If you client is dissatisfied with the decision, you have the right to appeal the decision.

18. Rehearing Request

Any party who is aggrieved by a decision of the Maryland Workers Compensation Commission may file a request for rehearing within 15 days of the date of the order. The Commission should only grant these requests on newly discovered evidence or error of law.

19. Appeals

In Maryland, a workers’ compensation appeal can be taken in various jurisdictions depending upon the facts of the case. Please refer to Labor and Employment Article 9-737 to 9-750 and Maryland Rules 7-201 through 7-211 for further information about the procedure for completing your appeal. Be sure to file the appeal in the correct jurisdiction and in a timely fashion so that the appeal is not dismissed. When an appeal is filed, the Maryland Workers Compensation Commission only retains jurisdiction on limited issues. The only issues that the Maryland Workers Compensation Commission retains jurisdiction over are continuing medical care and the reinstatement of an existing order for temporary total disability which were terminated by the employer/insurer during the appellate process. In almost all cases, the appeal is not on the record and a new hearing will be necessary to have a decision rendered. The appellate court must determine if the Maryland Workers Compensation Commission was correct or may the reverse the decision. The court may also modify the finding or remand the case to the commission for further proceedings. Any Order from the Maryland Workers Compensation Commission that is under appeal but orders compensation or medical treatment to be paid, must be honored by the carrier and paid pending the appeal.

20. How to handle your workers compensation appeal

When an appeal is taken from a decision from the Maryland Workers Compensation Commission the attorney handling the appeal must make sure to comply with all procedural regulations. Initially, proper pleadings must be filed to either file the appeal or answer your opponents appeal. You are able to see samples of pleadings used in filing the appeal in another section of this site. Different jurisdictions will have different scheduling orders that require certain actions to be taken by each party. If you are the appellant, make sure to request the record from the court reporter and request an extension of time from the Circuit Court to obtain the record if it is not supplied timely. In Circuit Court all the formal rules of evidence apply. Whenever your case involves medical testimony, you will need to have testimony from an expert witness. The expert must be qualified to testify as an expert witness in the field in which you are calling the expert to testify. You should have the expert testify about all areas that must be developed to present a successful claim on behalf of your client. Your expert must be qualified as an expert witness and be prepared to testify about the various medical issues that are in dispute in your case.

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