Jillian Petrella Testifies about the Parity in Workers’ Comp Recovery Act of 2023 at D.C. Council Hearing
On October 24, 2024, Jillian Petrella, Counsel at Semmes and President of the Association of Compensation Insurance Attorneys, provided testimony at a public hearing held by the Council of the District of Columbia Committee on Executive Administration and Labor. The hearing addressed the Parity in Workers’ Compensation Recovery Act of 2023, a proposed amendment aimed at modifying how workers’ compensation claims are managed across jurisdictions within the District, Maryland, and Virginia.
Drawing on her extensive experience representing both claimants and employers in workers’ compensation matters, Jillian offered critical insights on how the proposed amendment could increase jurisdictional complexities and prolong litigation, thereby undermining the existing framework’s intended purpose of providing timely and appropriate benefits to injured workers.
Below is the complete text of Jillian’s testimony. If you have questions regarding the proposed Parity in Workers’ Compensation Recovery Act of 2023, please contact her at jpetrella@semmes.com or 410.576.4713.
Good Afternoon. My name is Jillian Petrella and I am President of the Association of Compensation Insurance Attorneys. We are District of Columbia workers’ compensation defense attorneys, representing employers and their insurance carriers. I have represented employers and their insurance carriers in workers’ compensation claims filed in D.C. and Maryland for over six years now. Before that, I represented claimants in their D.C. workers’ compensation claims for two years.
This amendment solves no problems and instead creates many future problems, allowing claimants to bounce between jurisdictions cherry-picking which areas of law are best in each jurisdiction to put together their own unique workers’ compensation law, requiring employers to defend one claim in multiple jurisdictions.
Where there are multiple possible jurisdictions for a claimant to file their workers’ compensation claim in, it is already the law of the District that an employer cannot direct, force, or otherwise trick a claimant into a filing a claim in a specific jurisdiction. Under the law as it already existed before the emergency and temporary amendments, a claimant was barred from filing a claim in D.C. after accepting benefits under the laws of another jurisdiction if they knowingly chose to pursue a claim under the laws of that other jurisdiction and knowingly accepted compensation paid under the laws of that other jurisdiction. See, WMATA v. D.C. DOES, 825 A.2d 292 (2003); Springer v. D.C. DOES, 743 A.2d 1213 (1999); Terrazas v. Alpha Omega Craftsmen, Inc. et al, CRB No. 18-136 (January 8, 2019).
Concern has been raised that employers hold workers’ compensation benefits hostage to force claimants to accept benefits under different jurisdictions. It is important to note that employers have an obligation to promptly pay all compensable claims and that there are very steep penalties if they deny a claim in bad faith. If a claim is denied in one jurisdiction when it would have been paid in another jurisdiction, that is because the employer is denying jurisdiction, not the claim. For example, I defended a claim where a claimant went well over a year without benefits (including compensation and medical treatment) because his counsel filed the claim in D.C., despite D.C. not having jurisdiction under 32-1503(a-3). The parties went to a hearing where the Administrative Law Judge ruled that D.C. did not have jurisdiction. The claimant then filed an appeal and the Compensation Review Board agreed that D.C. did not have jurisdiction. It was only then that that claimant finally pursued his claim in Virginia, the only state that had jurisdiction over the injury. The claimants’ bar speaks to the need to ensure claimants get immediate benefits yet they string their claimants along in prolonged litigation in the hopes they can get the claim established in D.C., where the claims are more lucrative.
The language of the amendment is vague and seemingly ignores how the Act defines certain terms used in the amendment. Should this proposed amendment be passed, the confusion would lead to years of litigation while all parties tried to figure out how to make this amendment work within the D.C. workers’ compensation system. The amendment speaks of a credit, or redution, for compensation paid under the laws of another jurisdiction, but does so with no guidance. Is the reduction limited to only the same type of compensation? For example, if temporary total disability was paid at a much higher rate under Maryland or Virginia law, but a Claimant then files in D.C. for permanent partial disability, does an employer get a credit, or reduction, against permanent partial disability for the overpayment of temporary total disability?
Even within permanent partial disability, does an employer get a credit, or reduction, against different types of permanent partial disability? Take, for example, a claimant who injures their low back in a lifting accident. They undergo treatment and eventually are able to return to work without work restrictions. However, they still have pain in their back and radiating pain into both legs from that back injury. In Maryland, the claimant would be entitled to permanent partial disability for the back, but not the legs. In D.C. the claimant would be entitled to permanent partial disability to the legs but not the back. Can a claimant now get permanent partial disability to the back in Maryland and then turn around and file in D.C. for permanent partial disability to both legs for radiculopathy caused by the back injury? If they can do so, does the employer get a credit/reduction for the permanent partial disability paid under Maryland law for the injury to the back, since it is the same injury, just different body parts? And regarding credit/reduction, is it a weeks credit or a dollar credit?
This amendment also calls into question whether D.C. is no longer recognizing the collateral estoppel nor giving full faith and credit to the rulings of courts in other jurisdictions. If a claimant seeks particular treatment in Maryland and that request for treatment is denied by the Maryland Workers’ Compensation Commission following a full evidentiary hearing, what prevents that claimant from turning around and filing a claim in D.C. and trying again for the same treatment, forcing the employer to relitigate the same issues. The amendment speaks only of compensation, so would it be expected that the provision of medical or other benefits (including vocational rehabilitation) remain governed by the original jurisdiction while entitlement to compensation is governed by D.C. law?
This amendment is titled the Parity in Workers’ Compensation Recovery Act of 2023 yet it has nothing to do with seeking parity. If the concern is parity within the DMV, then D.C. needs to look at how Virginia and Maryland allow for apportionment, such that an employer is only paying for the portion of permanent partial disability caused by their work injury. In D.C., however, the employer must pay for the full permanent partial disability, even that which pre- existed the work injury, and even that which a claimant may have already been paid for in an earlier workers’ compensation claim.
In D.C. an employer must pay benefits based on a claimant’s average weekly wage for all employment held at the time of the injury. So if a claimant is making $300.00 a week with the employer but $1,500.00 a week at a different job as well, the employer must pay benefits as if they had been paying the claimant $1,800.00 a week before the injury. Virginia allows this “wage stacking” only if the multiple jobs the claimant had were similar. Maryland does not allow wage stacking, understanding the insurance premiums are paid based their payroll, not the payroll of some other company the employer may not even know the claimant works for.
As a final example of the lack of parity between the jurisdictions, permanent partial disability is significantly more expensive in D.C. than in Maryland, in just about every single situation. Permanent partial disability in D.C. is paid at 66 2/3% of the average weekly wage, up to the maximum compensation rate. In Maryland, there are three “tiers” of permanent partial disability payment amounts, depending on how many weeks of benefits are awarded to a claimant. Take, for example, a claimant who falls and breaks their arm in 2023. They treat with casting and after some time they are able to return to work full duty with no work restrictions. However, they do still have some symptoms of pain. Let us assume they have an average weekly wage of $1,200.00 and they are awarded a finding of 20% disability to the arm for the work injury. In D.C. they would be awarded $37,440.00 in benefits (46.8 weeks x $800.00). In Maryland, they would be awarded $14,100.00 in benefits (60 weeks x $235.00).
There is no parity between D.C., Maryland, and Virginia and these piecemeal amendments, without considering how they function within the overall scheme of the Act, only worsen the disparity and leave the Courts with an increasingly difficult job trying to make the entire Act work together. If the concern is with parity within the DMV, then D.C. needs to look at the D.C. Workers’ Compensation Act as a whole. Workers’ Compensation is a system, and changing one piece without considering the system as a whole breaks that system and forces claimants, employers, all their counsel, and the Agency tasked with managing the system, to spend years in litigation trying to make sense of disparate provisions that were individually amended at different times.
If parity is the concern, then we should also look to the Public Sector Workers’ Compensation Act, where claimants are forced to navigate the system themselves because they cannot find attorneys who will represent them. As I mentioned in my introduction, I represented claimants in D.C. for two years, at what had been for decades one of the largest, if not the largest, claimant firm in D.C. We did not handle Public Sector claims and there were very few firms that we knew of, fewer than five, that we could refer people to when they called us looking for representation. As I understand it, the number of firms that will represent public sector employees has only continued to shrink.
This bill is nothing more than a money grab in a system that is supposed to be about ensuring injured workers’ get the medical care they need, and lost wages while out of work, until such time as they are able to return to the workforce. This bill, if passed, would lead to years of litigation while all parties try to interpret the sparse language and try to fit it within the existing Act. And employers would now have to retain attorneys in multiple jurisdictions just to handle the same work injury multiple different times in multiple different jurisdictions. This bill should be denied.