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Rice Law Office Blog

This blog reviews important legal issues including: personal injury, employee compensation, workers compensation, discrimination and wrongful termination.

Know Your Third Party Employment Rights: A Cautionary Tale for Employees and Employers

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As one employer recently found out, neither "primary" nor "secondary" employers may retaliate or discriminate based on FMLA protected conduct in a joint employment setting.

A recent fourth U. S. Circuit Court of Appeals decision addressing primary and secondary employer responsibilities under the Family and Medical Leave Act (FMLA) brings into question: Who's really responsible for the proper implementation of these important employee rights in the setting of joint employment?

In the case of Quintana v. City of Alexandria, No. 16-1630 (4th Cir., June 6, 2017), The fourth US Circuit Court of Appeals reversed the lower court's decision on summary judgement and found that the plaintiff, had provided strong evidence that the city of Alexandria, Virginia was her primary employer despite the fact that it had engaged a third-party administrator and staffing company to administer the payroll for her position.

 

Facts of the Case

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Worker's Compensation Laws: What happens if I'm hurt at work and my doctor gives me a note to return with restrictions? Does my employer have to take me back?

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We get this question all the time, because although New Hampshire law requires employers (with 5 or more employees) to provide injured workers with temporary alternative duty and an 18 month right to reinstatement, this is no guarantee that the employer will take the employee with restrictions back.

In fact, employers often refuse to provide work to injured employees who want to return but who require accommodations due to restrictions associated with the injury.  If this happens to you, there is help available.  An attorney experienced in both worker’s compensation and employment law can help injured employees traverse the rocky road of reinstatement by combining these two areas of law to maximize recovery and job protection.

 

ALTERNATIVE WORK OPPORTUNITIES & TEMPORARY ALTERNATIVE DUTY

Under New Hampshire worker’s compensation law, all employers with five or more employees are required to develop alternative work opportunities for injured workers.  This temporary alternative duty (TAD) is aimed at transitioning employees back to work during their period of recovery after a work injury.

 

RIGHT TO REINSTATEMENT FOR 18 MONTHS

Employers (with five or more employees) are also obligated to offer reinstatement to their  injured employees for up to 18 months from the date of injury.  The employee must request a return to the former position and establish that he or she is not disabled from performing the duties of the position with reasonable accommodation. 

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What workers’ compensation benefits am I entitled to if I get injured at work?

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Employees who suffer an injury at work may be eligible for additional coverage and workers' compensation benefits.  It’s important to be informed right from the start to get the greatest protection possible.

 

Worker’s compensation benefits include:

Wage replacement benefitsPayment for medical bills Job protections Payments for permanent injuries

 

In addition, some cases end up settling for what is called a lump sum settlement.  This is only entered into when both sides agree and it usually involves a final payment with an agreement to end the right to many of the benefits. 

The process for making a claim begins when the employee files a first report of injury to give notice to their employer of the fact that an injury took place at work. This notice then triggers a claim being filed with the Worker's Compensation insurance company who will then review the claim and make a determination as to whether they will cover the claim or not. 

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Personal Injury Blog Part 3: When can personal injury claims be combined with a claim for workers' compensation?

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When an employee gets hurt during and in the course of work, it is usually true that the "exclusive remedy" for the worker’s losses comes from the workers' compensation laws and the workers' compensation insurance company. However, that isn't entirely true. While the employee’s exclusive remedy against the employer comes from workers' compensation (assuming the employer carries workers' compensation insurance), the employee may also obtain damages or benefits from another person who is not the employer and who is responsible for the damages suffered. This is what's known as a "third-party claim."

 

Workers’ Compensation As The “Exclusive Remedy” for Injuries At Work.

Usually, if an employee gets hurt at work, the employee can make a claim for workers' compensation, but the employee cannot file a lawsuit against the employer. This is generally thought of as a good thing, because it means that employees who are hurt at work typically do not have to file a lawsuit with the time and cost that entails in order to get benefits.  Lawsuits are tough, and in order to get paid under a personal injury claim, the injured person has to prove that someone else was negligent and responsible for the injury. That’s a problem for two reasons.

 

First, not all injuries at work ARE caused by someone else. Often they are just bad luck, or might even be due to the employee’s own mistake.  Under workers’ compensation, these injuries are covered regardless of whose fault it is or if there is any fault.  As long as the injury is work related, it is covered, and that is a tremendous benefit. Second, personal injury cases can take years. In the meantime, the injured person might not be able to work, and the medical bills will continue to stream in.  In a personal injury claim (for an injury that happens outside of work), there is no built in coverage to help pay medical bills or to cover the lost wages that occur while the lawsuit is going on.  If the injured person doesn’t have health insurance, they are in a difficult place, as they can’t force the other person to pay for those bills until they can prove their case and show the other person was at fault. Similarly, lost wages are not paid as they occur, but only after settlement or a favorable judgment in court.  Last but not least, there is no guarantee of job protection for a person who is out of work for an extended time during the pendency of a personal injury law suit. 

As a result, people with serious injuries that occur outside of work have to hope they can prove someone else was liable, but they also have to figure out how to hold on financially while the lawsuit is pending.  This can be a huge stress, as the courts are backed up and this process can take time.

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Workers' Compensation - The clock is ticking if you are injured at work in NH 

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Most employees know that if they are hurt during and in the course of work that they are likely entitled to workers' compensation benefits to help them with their lost wages and medical bills as a result of their personal injury. Few employees are aware, however, of the time limitations for providing a notice of personal injury or filing a workers' compensation claim and the consequences of late filing are huge.

 

Employees who fail to complete a notice of injury or fail to also file a workers' compensation claim within the appropriate time limits might lose out completely in their benefits if they are not careful. 

Here is what you need to know about filing a notice, claim and appeal if you get hurt at work:

 

Notice of injury.  

Claims for workers' compensation injuries begin with something called a "notice of injury."

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2017 Labor Law Training Seminar Offered

The Department of Labor has announced its labor law training seminars. They are open to the public, free and a great way for employers and employees alike to learn about the rights and obligations in the New Hampshire work place. Registration is easy, just follow the link: 

http://www.nh.gov/labor/news-events/events/index.htm

The seminars are offered on different dates and in different locations throughout the State of NH, and for your convenience are listed below. Please note that some sessions are already full, so visit the above link to check availability and to sign up.

 

Session dates and locations:

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US Department of Labor Takes Steps to Extend Overtime Pay Protections

New thresholds for overtime pay have some up in arms, while others are jumping for joy, claiming it's about time!

After 12 years, the United States Department of Labor has taken steps to extend overtime pay protections by updating the regulations defining which white-collar workers are protected by the Fair Labor Standards Act's minimum wage and overtime standards. As of December 1, 2016, any worker engaged in interstate commerce or employed by a business with more than $500,000 in revenues, must either be paid a minimum salary of $47,500 per year or be paid time and a half for any hours worked over 40. Likewise, the total annual compensation requirement for highly compensated employees (HCE) will increase from $100,000 per year to $134,004 per year. Future automatic updates to those thresholds will occur every three years, beginning on January 1, 2020.

The minimum standard salary and compensation levels needed for executive, administrative and professional workers to be exempt had been $455 a week or $23,660 a year. As of December 1st, those weekly salaries will have to be a minimum of $913 a week. The rule does allow for employers to reach this minimum with lower weekly salaries, in some cases, such as non discretionary bonuses.

For those who question whether this new threshold has any fair relation to actual market rates or job descriptions, the DOL has an answer. This salary level and those to follow will be set to the 40th percentile of earnings for a full-time salaried worker in the lowest wage census region. (Currently that region is the south where workers in the 40th percentile earn $913 per week on average and $47,476 for a full year). The rule will require those salary levels be adjusted as necessary every three years.

Critics argue this rule change could lead to disastrous consequences for the economy as employers seeking to avoid the increased costs of salary or overtime will inevitably demote salaried workers to hourly positions and then cut or limit their work week to 40 hours per week. That may be true, but to meet demands of the work, they will likely have to create more jobs to take up the slack.

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Department of Labor Workplace Injury FAQ Part Two


From the New Hampshire Department of Labor official website.

How long is my claim open? 

Medical bills related to your injury remain the responsibility of the carrier as long as treatment is required. There are certain time limits for indemnity benefits depending on the circumstances of the case. See RSA 281-A:31.

How soon does Workers' Compensation start?

Workers' Compensation starts on the fourth day of disability (subject to a three day period). The waiting period is waived if the disability continues for 14 days or longer or if an employee returns to temporary alternative employment within five days.

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Department of Labor Workplace Injury FAQ Part Two

Department of Labor Workplace Injury FAQ Part Two

From the New Hampshire Department of Labor official website.

How long is my claim open? 

Medical bills related to your injury remain the responsibility of the carrier as long as treatment is required. There are certain time limits for indemnity benefits depending on the circumstances of the case. See RSA 281-A:31.

How soon does workers' compensation start?

Workers' compensation starts on the fourth day of disability (subject to a three day period). The waiting period is waived if the disability continues for 14 days or longer or if an employee returns to temporary alternative employment within five days.

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Department of Labor Workplace Injury FAQ Part One


From the New Hampshire Department of Labor official website.

Who pays for my prescriptions?

The insurance carrier will reimburse you for any prescriptions relating to your injury. They have 30 days from receipt of the request.

Can I see my own doctor?

This depends on whether or not your carrier is using a managed care program. If they are, you must choose a doctor within the network. If you are not subject to managed care, the choice is yours.

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OSHA Reporting Requirements Update

OSHA Reporting Requirements Update

Beginning on January 1, 2015 the Occupational Safety and Health Administration (OSHA) adopted new reporting requirements for employers under OSHA jurisdiction.  Employers are now required to report any work related fatality or injury resulting admittance to a hospital, amputation, or loss of an eye.

OSHA has received between 200 and 250 injury reports each week since the new requirements came into place.  At this rate, we can expect between 10,000 and 13,000 total reports in 2015.

OSHA has indicated that about 40 percent of these reported incidents result in on site inspections.  In 10 percent of all cases no action is taken, and in the remainder OSHA requested a letter from the employer detailing specifics of the incident and corrective actions taken.

 Not all states have implemented the new reporting requirements. If you have been hurt at work, resulting in hospitalization or time out of work, it is important to seek help from an attorney who will provide you with a free consultation and explain your rights and protections.

Image courtesy of Compliance and Safety under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

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Linking Mental Health and Workers' Compensation

Linking Mental Health and Workers' Compensation

There is growing recognition that mental health plays a large role in workers’ compensation, and that care extending to mental health can help people return to work more quickly. Mental health issues account for nearly a third of all new disability claims in Western countries, and are the leading cause of disability in high-income countries. 

A majority of workers pursuing a workers’ compensation claim will experience depressive symptoms within a year after their injury.  An injury that prevents an employee from going back to work also impacts their family—an injured worker’s family members are three times more likely to be hospitalized in the three months following the work injury.

There are things that you and your employer can do to reduce the risk of a mental health extending your disability.  First, its important to acknowledge that mental health is an important part of the recovery process following a work injury. There should be no stigma for workers seeking treatment if they are suffering from a mental health condition.

Employers can put in place screening processes to identify cases in which an injured worker faces an increased likelihood of a mental health condition, and facilitate access to clinical treatment.  As we understand the impact of mental health care in recovering from a work place injury there is an opportunity to improve the care injured workers receive.

If you have any questions regarding a work related injury that you have suffered you should contact an attorney to understand your rights and protections.  Rice Law Office offers free consultations-- give us a call.

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I Just Got Hurt at Work: What Do I Need to Know?

I Just Got Hurt at Work: What Do I Need to Know?

From New Hampshire Department of Labor Frequently Asked Questions

Can I see my own doctor? 

This depends on whether or not your carrier is using a managed care program. If they are, you must choose a doctor within the network. If you are not subject to managed care, the choice is yours.

Can my employer fire me?

It depends on your case and circumstances. New Hampshire has various laws which may provide job protection for employees based upon injury, illness or disability. If your employer has 5 or more employees they may be required to reinstate you if you are released by your treating physician within 18 months of the date of injury. See RSA 281-A:25-a or New Hampshire Administrative Rule Chapter Lab 504.05 Reinstatement of Employee Sustaining Compensable Injuries.

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Is Your Former Spouse Entitled to a Portion of Your Workers’ Compensation Settlement?

Is Your Former Spouse Entitled to a Portion of Your Workers’ Compensation Settlement?

If you’ve been injured on the job, and especially in cases where there is some level of permanent impairment that limits your ability to work, you need to rely on your workers’ compensation to make ends meet. This compensation is so personal in nature that generally, creditors cannot seek a claim against it as they would a typical asset.

Only claims for medical bills and legal fees associated with the compensated injury may be made against workers’ compensation settlements in New Hampshire. There is another significant exception, however.

Since workers’ compensation is meant to be a safeguard for injured employees AND their dependents, spouses and dependent children are viewed as different from normal creditors in the eyes of the law. Claims for child support, therefore, may be enforced against workers’ compensation awards.

Even following a divorce, your former spouse may have a right to claim some portion of your workers’ compensation. It’s critical that you let your workers’ compensation attorney know from the outset if you might have any debts or obligations related to a divorce and or child support. The more your attorney knows, the more capable she will be in helping you to obtain and keep your benefits.

Image courtesy of Compliance and Safety under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

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Worker's Compensation: 5 is the Magic Number

The number of employees at a firm significantly alters the rules and regulations governing the way those employees must be treated.  For workers compensation, the number to know is five.  For example, all employers with five or more employees are required to develop temporary alternative work opportunities for their injured employees. This means if an employee is injured on the job and has physical limitations as a result, the employee is entitled to return to work in an accommodated position which takes into account the work injury. If the employer is unable to provide the temporary alternative work then the employee may be entitled to total disability benefits. This makes sense because the employee is capable of working in some capacity and would be back to work if not for the fact that the employer is unable to provide the necessary accommodation. The number five is also relevant when it comes to reinstatement of employees who have suffered a work injury. Employers with five or more employees must reinstate an injured employee back into his or her former position of employment upon request as long as the position still exists, is available and the employee is not disabled from performing the duties of that position with reasonable accommodations. This right to reinstatement extends 18 months from the date of original injury and provides important job protection for injured workers.  There are some exceptions to the right to reinstatement, but for most employees it means that their job must be held open, even if it is temporarily filled by another employee, during the period of absence due to a work injury.  Temporary alternative duty (TAD) provides protection for an employee while the employee is still disabled but able to work in some fashion, while reinstatement provides the opportunity to return to the employee’s original position even if the employee still requires some reasonable accommodation for the employee’s limitations. If you have questions about your right to return to work after a serious work injury, contact Attorney Rice for a free telephone consultation, or visit our website.
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Social Security Benefits and Workers’ Compensation at the Same Time?

Yes, it is possible to be eligible for both workers’ compensation and social security disability benefits. In fact, you may also be entitled to other disability benefits for injuries you’ve suffered at work or in an accident. Injured employees may be eligible for compensation through private disability insurance and/or through employer pension or state retirement disability plans.

Each of these benefit plans may have different eligibility requirements and some of them may take offsets (deductions) if you are receiving benefits under another plan at the same time. Rice Law Office can help with this. Our focus on employment law includes representation in social security, personal injury, workers’ compensation, discrimination and termination cases. Often, employees who are injured at work or elsewhere, become disabled and risk losing their job. The laws which govern these cases can be complicated and it is important to carefully consider your options before ruling out or ruling in any type of claim. The toughest thing about these cases is you don’t know what you don’t know until it is too late and it’s important to call an experienced employment attorney early before your options have been limited by time or lack of information.

At Rice Law office we lend you our experience to even the playing field. With our help, you can take advantage of the benefits you have paid for and earned over the years when you need it the most.

If your hurt, you need to focus on getting better, let us take care of the rest. Call Rice Law Office at 524-5426

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What Kind of Attorney Do I See For My Serious Work Injury?

If I am seriously injured and can’t work, should I see a worker’s compensation attorney, an injury attorney or an employment Attorney?

Here's the Quick Answer:

If you have a serious injury or illness which will result in a period of disability you will want to seek help from someone who can help you with your employment, injury AND worker’s compensation issues because an early, informed and coordinated plan of approach is critical to your full protection. Serious injuries require a global approach.

The Rest of the Story:

Every case is unique and to get everything to which you are entitled you must be sure you have an attorney who understands ALL the benefits you have available and how to best coordinate them to maximize your coverage.

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Teachers Face Unique Issues When Injured at Work

Teachers in New Hampshire face unique issues and challenges when dealing with injuries at work. It’s wise to consult with a union representative or attorney early on to avoid unwitting errors in worker’s compensation which could result in significant loss down the road.

Worker’s compensation is a critically important benefit that provides numerous protections to employees injured on the job.

Worker’s Compensation is the insurance coverage for lost pay, medical bills and other damages caused by a work injury, but it does so much more. It also provides job protection for up to 18 months for temporary disability (as opposed to only 12 weeks under the FMLA which covers some non work related injuries) if an injury results in time out of work.

Further, while it does not provide compensation for pain and suffering, it does provide for a one time payment for certain injuries which are deemed permanent under the law, a benefit which can make the difference in meeting expenses in the case of a lengthy time out of work.

Even more important for some, a claim that is accepted as work related will entitle an employee to state disability retirement regardless of vesting. It essentially accelerates the vesting as of the date of injury. As vital as this benefit is, it has some loop holes and traps for the unwary which can be treacherous.

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