Rice Law Office Blog

Navigating the world of disability insurance claims can be challenging, especially when your disability benefits have been denied or terminated. Whether you're working with an attorney or going it alone, there are four essential documents you must obtain to improve your chances of a successful appeal.

Let's dive into the documents needed for your disability benefits appeal!

1. A Copy of Your Complete Insurance Policy - Many employees only receive a summary of their disability insurance plan, but to appeal a denial or termination effectively, you'll need the entire policy. Here's what you should look for:

• Statute of Limitations: Find out the time frame you have to file a claim or an appeal. Strict rules apply, so understanding and following them is crucial.
• Definition of Disability: Each policy defines disability differently, often comparing it to your job description and earnings. Pay attention to the terms related to your ability to perform the essential duties of your job and any income reduction requirements.
• Coverage Period: Know how long you can be covered under the policy if you're found disabled.
• Short-term disability coverage typically lasts 12-26 weeks before transitioning to long-term disability if applicable. Be aware of any limitations for mental health conditions and the change in eligibility criteria after one to two years.
• Pre-existing Conditions and Date of Eligibility: Check if there are waiting periods before your coverage starts and any exclusions for pre-existing conditions. Some policies may not cover conditions that existed before your employment or insurance under the plan.
• Offsets: Understand the list of offsets the insurance company can use to reduce your benefits, including social security, other insurance policies, or even withdrawals from retirement funds.
• Limitations to Coverage: Be aware of exclusions for work-related injuries or illnesses. There may be exceptions, so know the rules. For instance, if your workers' compensation claim is denied, you might be eligible for short-term disability while you appeal the workers' compensation decision.

2: Your Job Description and Personnel File - When preparing to appeal a denied disability claim, your job description and personnel file are vital. They help demonstrate your inability to perform the essential duties of your job due to your disability.

Here's what you should do:

• Request Your Personnel File: Begin by obtaining copies of your personnel file, which includes details about your employment history, evaluations, and any disciplinary actions.
• Obtain Your Written Job Description: Get a copy of your job description, as it outlines the specific tasks and responsibilities associated with your position. Your attorney will analyze this document to identify essential duties you can no longer perform due to your disability.
• Provide Evidence of Work-Related Struggles: To establish eligibility for disability insurance benefits, you must demonstrate that you struggled at work, failed to meet expectations, or encountered difficulties completing tasks.
• Gather evidence such as performance reviews, work-related emails, and any documentation reflecting these challenges.
• Rely on Medical Evidence: Medical evidence is crucial in supporting your disability claim. Consult your physician, who can review your job description and offer their professional opinion on tasks you can't perform due to your medical condition.
• Highlight Discrepancies: Your attorney will scrutinize the discrepancies between your job requirements and your abilities resulting from your disability. Any tasks in your job description that you can't perform are essential for your appeal.
• Document Missed Work and Productivity Decline: Keep records of missed work days and declining productivity, as this evidence links your disability to work-related issues.

3: Gathering Your Complete Medical Records - One of the most common reasons for denied disability claims is incomplete medical records. You can improve your appeal by obtaining your complete medical records. Here's how:

In New Hampshire, there is coverage for employees who contract COVID-19 at work and there is also limitation of liability on the employer side. What’s more, there is insurance for the benefit of both the employee and employer in the event of exposure.

All this together is good for people and business alike, as it provides a safety net for COVID-19 loss, a means for paying for associated health care and a path back to work that will support the economy.

The primary question regarding workers’ compensation coverage, as related to the contraction of COVID-19, will hinge on whether the employee contracted COVID-19 in and during the course of work. In accordance with the law, and as interpreted and applied by the courts, the burden of proof to establish this necessary causal connection, and thus to establish eligibility for workers’ compensation benefits, is on the employee.

To meet this burden, the law requires that an employee prove more probably than not, “that the injury occurred within the boundaries of time and space created by the terms of employment,” and that it “occurred in the performance of an activity related to employment.” Both prongs of the burden must be met to prevail in a claim for benefits.

At first glance it seems it would be difficult, if not impossible to prove an employee contracted COVID-19 at work. After all, given the widespread incidence of COVID-19 in virtually every New Hampshire county, the risk of infection exists at work, but also in the community and even at home. However, this is not fatal to coverage under our law.

An employee may recover from an illness under workers’ compensation even if the cause of contraction is unknown and the risk of illness is not distinct to work, as long as the employee can show the illness results from a “risk greater than that to which the general public is exposed.” This is referred to as the increase risk test.

The New Hampshire Association for Justice (NHAJ) is presenting a seminar on “Workplace Wrongs and the Claims They Spawn”,  on June 11, 2020, at the Puritan Conference Center in Manchester, NH. 

New Hampshire Attorney, Anne Rice is honored to join her colleagues at this gathering and will present information regarding the latest developments in “Workplace Issues Involving Medical Marijuana“. This session will review the changes concerning medical marijuana in the workplace and New Hampshire law.

Medical marijuana is now legal in New Hampshire and as of 2017 New Hampshire has decriminalized marijuana use for first or second offense possession of under 3/4 of an ounce. 

In 2002, June was declared National Homeownership Month by President George W. Bush, building upon the focus given to home ownership by the Clinton Administration beginning in 1995. The pride in homeownership here in the US, however, runs deeper than the last two decades. The ability to own your own home, if you work hard, is central to the American Dream. President Clinton began his campaign to extend homeownership in the US month 20 years ago—as we hit the halfway point in this year’s National Homeownership Month what is the state of progress in building American home ownership?

Today, homeownership in the US sits at the lowest rate since 1989. The homeownership rate fell to 63.8% in the first quarter of 2015, and has declined steadily since peaking at 69.2% in 2005. Much of the decline can be attributed to fallout from the 2008 financial crisis, and the housing bubble which helped drive the financial collapse. Americans have been cautious since then, and many families are only now recovering enough to consider buying a home.

There are, however, reasons to think that homeownership is poised to make a comeback. There are nearly 2 million more renter households than there were this time last year, and eventually, some of these renters are likely to become homeowners. Renting is often the first step towards homeownership. Vacancy rates for both rental apartments and owner occupied homes also fell from last year.

Progress has been slow, and while a huge turnaround is not likely around the corner, the future for American home owners should be bright. When President Bush first established National Homeownership Month in 2002 he said “where homeownership flourishes, neighborhoods are more stable, residents are more civic-minded, schools are better, and crime rates decline.” This is still true today.

Today, female workers earn more than 20 cents less on every dollar of income as compared to male counterparts performing similar work. This pay gap has proven persistent despite previous policy efforts to bring gender equity to the pay scale. But, recent legislative action in California and Ohio as well as at the federal level has the potential to close the pay gap between men and women in the U.S. workforce.

The U.S. already has federal legislation, the Equal Pay Act, in place to prevent against gender based wage discrimination. While the Equal Pay Act does provide protections for workers seeking equal wages, many feel that we need to go further given the continued gap. The pending Paycheck Fairness Act could be passed this year, and would strengthen protections provided under the Equal Pay Act.

Ohio currently has a bill pending, House Bill 330, which would provide these types of protections. If passed, state and local governments would be required to determine the value of comparable work across job categories. The law in Ohio would also require companies receiving state contracts or receiving state funds to meet an even higher standard along with providing protections for employees against retaliation for discussing or sharing salary information.

California’s new Fair Pay Act may be the most expansive fair pay law in the country, and has the potential to set a new standard for other states considering this type of action. Women across the country want be paid at the same rate for the same work as their male peers, and employees and employers alike should be aware of their obligations when it comes to gender equal pay.

 Photo courtesy of Flickr user Seattle Municipal Archives under a Creative Commons Attribution 2.0 Generic License.

New Hampshire is currently considering legislation that would expand the “drug court” system, which proponents say are more effective in reducing crime and fighting addiction. The drug courts offer an alternative to incarceration for high-risk drug offenders by providing a program with treatment, accountability, and supervision.

Tina Nadeau, chief justice of the New Hampshire superior courts, has come out as a strong and vocal advocate for the drug court system. Judge Nadeau has pointed towards evidence that drug courts reduce crime and save money by providing an alternative to expensive incarceration. The issue is particularly pressing given the current opioid epidemic facing the state.

New Hampshire currently has six drug courts, but is looking to increase this number to eleven. In 2007, Texas enacted a drug court system that led to reductions in parole violations and crime rates while saving the state billions in prison costs. Judge Nadeau cited the example, and said “if Texas can do it, we can do it.”

New Hampshire needs to confront its drug abuse problem head on, and this means honestly addressing the problem in ways that will lead to positive results. Rather than jailing drug abusers, we need to help them find treatment—it’s cheaper and more effective. Judge Nadeau’s bold stance in support of drug courts is one we should all support.

New Hampshire is currently in the midst of an opioid epidemic, and the problem can be traced in part to high rates of prescription for opioid painkillers. New Hampshire ranks third in the country in terms of prescription rate for high-dose and long-acting opioid pain relievers according to the Center for Disease Control and Prevention (CDC).

There has been a great deal of effort expended on reducing unnecessary opioid prescriptions across the country and more particularly in NH. This June, Senator Kelly Ayotte co-sponsored a law that would create a “Pain Management Best Practices Inter-Agency Task Force”. At the state level, New Hampshire established a prescription drug monitoring program in 2012 that is still in the implementation process.

Patients can be their best first defense against prescription drug addiction by being informed, asking doctors if there is an alternative to narcotic pain medication and understanding whether the dosing is optional or required. Patients often think they have to take the meds as prescribed, but if they asked, they would find many narcotic prescriptions are only by choice and need not be taken as often or for as long as the bottle says.

New medical studies are showing that the body may actually become acclimated to narcotic medications, leading to increased sensitivity in pain receptors and a greater reliance on medication for pain management. Many studies show that alternate pain management treatments are as effective as opioids without the risk of addiction. Each case is unique, but patients should be proactive in understanding the treatment they are receiving. 

It’s important to listen to your doctor, but if you’re being prescribed high-dose opioids for pain relief you need to be informed and engaged in determining if this is the best course of treatment. Ask about dosage, risks, and alternatives to be sure you are receiving the best care.

As the end of one year wraps up and a new one approaches, employers and employees alike often find themselves setting new goals for the new year. For employers looking to tighten their belts and increase profit, this sometimes means a decision to reduce or reorganize the workforce.  Some employers try to ease the shock (and reduce their risk of lawsuit) by offering employees a severance package in exchange for a release of all claims. These offers can be just the bridge and employee needs to make it to their next job or a Trojan horse offering a shiny package with very little value.

It can be frightening if you're the one caught in this tide of change, but you're not alone. Take a deep breath and consider getting a consultation with an experienced employment attorney- a few hundred dollars could save you thousands in the long run. Here are a few tips to get you started:

The First thing you need to know: Employees in New Hampshire are not automatically entitled to severance in the event of a reduction in force or layoff. 

That said, where employers establish a severance program voluntarily, it may become a right in accordance with the union collective-bargaining agreement or under ERISA, a federal law governing employee benefits. Therefore, if you've been selected for a layoff, you will want to ask your HR representative if the company offers a severance package.

Second, employers rarely offer severance without asking for something in return. 

At the end of 2015, the 12^th Annual Survey of Prescription Drug Management in Workers’ Comp, which tracks pharmacy costs for workers’ compensation, was released. The study showed that drug costs increased more than 6 percent compared to 2014.

This increase in drug costs is thought to be due to the increased price of medication but also due to the dramatic increase in the amount of prescriptions being written, particularly for opioids. In 2012, total spending on opioids in the US was just over $8 billion, and workers’ compensation paid for about 17 percent of that total.

That figure has grown dramatically and New Hampshire has one of the highest per capita rates of opioid prescription in the country. Not surprisingly, NH has one of the highest rates of addiction in the country. Last year more than 300 people died from drug related causes in New Hampshire, with the vast majority of those deaths stemming from opioid abuse.

The opioid epidemic in New Hampshire is very much in the spotlight, and this post will be the first in a series examining prescription drug addiction, strategies for managing prescriptions, and new legal approaches to combatting addiction.

Photo courtesy of Flickr user Chris Potter under a Creative Commons Attribution 2.0 Generic License.

For 2016, there will be no cost-of-living adjustment for Social Security and SSI benefit rates. This means that the government has determined that the cost-of-living has not risen since last year, and benefits will hold steady until the review next year. 

Each year the government assesses cost-of-living around the country through a Consumer Price Index – which measures changes in the price levels of essential goods and services around the country – and then adjusts benefits accordingly. If the cost-of-living goes up, the government must increase Social Security and SSI benefits.

While everyone enjoys seeing an increase in his or her benefits, the good news is that the average cost-of-living has not risen this year. Without an adjustment to cost-of-living, retirement earnings, exempt amounts and the maximum earnings subject to social security tax will also hold steady.

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.

With the primary less than a year away, and candidates from both parties launching their campaigns, many American are beginning to turn attention towards the 2016 elections. Despite the mass of attention the process will attract, many voters are unaware of their state’s policy towards providing time off to vote.

New Hampshire employers aren’t obligated to give their workers time off to vote, there are options for NH voters. Employees who must either be physically present at work or in transit to or from work during polling hours have the right to vote by absentee ballot.

New Hampshire is one of 20 states without a specific law addressing voting leave from work. Most states do have some policy towards voting leave from work, including the 23 states that mandate paid time off for voting.

Voter turnout in the U.S. has underwhelmed in recent years, and understanding your rights is an important step towards making it to the polls. Democracy works best when citizens engage in the political process, and most of all, vote!

Photo courtesy of Wikimedia user Tom Arthur under a Creative Commons Attribution Share-Alike 2.0 Generic License.

This January the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) released proposed updates for regulations on sex discrimination for federal government contractors and subcontractors. The updated guideline aims to align with changes in the law and the workplace that have taken place since the guidelines were last revised.

The OFCCP hadn’t substantively updated its Sex Discrimination Guidelines since their original adoption in 1970, resulting in a set of guidelines that was confusing and difficult to apply to the modern workplace.

Some of the shortfalls of the old guidelines include: failure to address the full range of discriminatory wage practices; failure to address accommodations for workers affected by pregnancy, childbirth, or related medical conditions; and failure do address sex-based stereotyping related to caregiving.

The OFCCP factsheet addressing the proposed guidelines highlights some of the changes, and indicates the proposed rule would: 

• Clarify that leave for childcare must be available to men on the same terms as it is available to women.
• Confirm that contractors must provide workplace accommodations to women affected by pregnancy, childbirth, and related medical conditions comparable to the accommodations that they provide to other workers similar in their ability or inability to work, such as workers with disabilities or occupational injuries.
• Confirm that contractors must provide equal benefits and equal contributions for male and female employees participating in fringe-benefit plans.
• Clarify that adverse treatment of employees because they do not conform to gender norms and expectations about appearance, attire, and behavior is unlawful sex discrimination.

For the full fact sheet, follow this link. If you have are a contractor or subcontractor of the Federal Government, and have any further questions regarding these changes, you may want to contact an attorney.

From New Hampshire Department of Labor Frequently Asked Questions

What is the main difference between paying a salary vs. by the hour?

An hourly employee is paid for all the time worked including overtime, if applicable. A salaried employee receives a fixed amount of money constituting compensation regardless of the quantity or quality of the work performed or of the number of days and hours over which the work is performed.

What is the minimum wage?

Effective since August 8, 2011 no employee shall be paid at an hourly rate lower than that set forth in the federal minimum wage law, which is currently $7.25 per hour.

This is the final blog in our four part series reviewing the changes technology has brought to the workplace, and employment law.

Many employees answer emails outside of work hours every day, and in some cases, their employers are liable to pay for those hours worked. Most American adults own a smartphone, and even if their employers don’t require it, checking email outside of work can eat up hours of time. For companies that don’t have policies to address how offsite emailing affects wages and hours, this is a significant liability. 

Employers must pay their employees for time that they are required to be on duty at the work premises. The Fair Labor Standards Act also indicates that employers are liable to compensate hourly employees for time that they are “suffered or permitted to work”. The bottom line is that if your employer knows you’ve been emailing for work, event if its only a few minutes, then your time spent is likely compensable. When emailing outside of work pushes you into overtime hours the extra wages due can be significant. See DOL factsheet

Not all employees need to be paid for their time emailing outside of work. Exempt employees are paid are paid a set salary to complete a job regardless of the number of hours it takes. Therefore, answering work emails from home does not affect a salaried employee’s right to pay.

Technology is changing the way we interact with the world, including the way in which we work. This change has helped drive business productivity, but as we’ve noted throughout our series of blogs on the topic, it has also blurred the line between work and personal time. Employment law is still adjusting to the new dynamics created by mass mobile connectivity, and there will be more attention on this issue in the coming years.  

In situations where an employer can reasonably anticipate a lawsuit there is a legal obligation to preserve evidence that may be relevant to the case. Failing to do so can have serious consequences. These consequences can range from jurors being instructed to assume missing evidence was unfavorable to the employer, all the way to dismissal of the employer’s entire defense. 

Under what circumstances is an employer expected to preserve evidence? Companies should err on the side of caution, and the following situations are strong signs that a lawsuit might be coming:

• A workplace injury
• A disputed suspension, termination, or demotion
• Notice from an attorney outlining a claim
• A complaint from a state or federal agency

What evidence does the employer have an obligation to preserve? Employers might be required to maintain and or make available such as: 

• Pictures
• Video
• Equipment
• Physical Documents
• Electronically Stored Information (ESI)

Likewise, there is growing attention on an employee’s obligation to maintain evidence in his or her own possession that might be relevant to their lawsuit. This is particularly true when it comes to electronic evidence and or statements that might have been made via social networking.

Both employers and employees need to consult early on with their council regarding the important issue of evidence preservation.

This blog is the third post in a four part series looking at technology and the changing American workplace.

Sir Richard Branson has a policy that allows all Virgin employees to “take off whenever they want for as long as they want.” Several high profile companies and CEOs have championed flexible working conditions—that is to say, a program whereby employees have the opportunity to spend some portion of their time working from home.

The degree of flexibility can vary a great deal. Branson maintains that mobile technology has made it impossible to track how much time employees spend on the job anyway, and that the focus should be on what the employee achieves, not how long they spend working. Virgin’s program was inspired by Netflix, which instituted a similar policy in 2010 with great results.

Today, companies have the option to provide flexible workplace programs that allow employees to work from home with limited disruption to normal office operation. In many cases, periodic work from home can help drive employee productivity and morale. Nearly nine out of ten HR leaders believe these programs improve employee satisfaction, and while many companies have some sort of flexible work program, employers still fear they will be taken advantage of when employees are allowed to work from home.

The reality is that work and personal time are becoming blended, and it’s not a process that can be reversed. As employers demand responsiveness from employees at all times of day (in the office or out), they should also consider ways to empower their workers with more flexible work conditions.

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.

This blog is the second in a four part series examining technology and the changes it has wrought on the American workplace and American employees.

More than two thirds of all HR professionals think that their employees enjoy balanced lives, but nearly half of all employees disagree. Where does this disconnect come from? The 24/7 connectivity facilitated by mobile technology, and the resulting ability to work remotely, have blurred the lines between work and personal time. As a result, employees feel like they’re working more. 

Modern technology and an evolving understanding of work productivity are changing both employees and employers view of work life balance. With near universal access to smart phone technology in the United States, employees are capable of staying connected and productive even while outside of the office. While this enables a greater degree of work flexibility, it can also drive employees to spend large portions of their personal time working. 

How to strike a work life balance in this new environment is a tough question, and unsurprisingly, employers and employees see the challenge differently. While mobile technology can facilitate flexible working schedules, it also means work is never farther than the cell phone in your pocket.

There have undoubtedly been changes in the work-life structure in recent years, and for now, employees and employers look at the current arrangement from distinct perspectives. Many employees spend 10 and 20 hours a week working during “personal time”, and the ability to work flexibly is lagging behind the current reality of work-life balance.

Employees must be paid for work “suffered or permitted” by the employer even if the employer does not specifically authorize the work. If the employer knows or has reason to believe that the employee is continuing to work, the time is considered hours worked. See Regulation 29 CFR 785.11.

Example 1:

A residential care facility pays its nurses an hourly rate. Sometimes the residential care facility is short staffed and the nurses stay beyond their scheduled shift to work on patients’ charts. This results in the nurses working overtime. The director of nursing knows additional time is being worked, but believes no overtime is due because the nurses did not obtain prior authorization to work the additional hours as required by company policy. Is this correct? No. The nurses must be paid time-and-one-half for all FLSA overtime hours worked.

Example #2:

An hourly paid office clerk is working on a skilled nursing home’s quarterly budget reports. Rather than stay late in the office, she takes work home and finishes the work in the evening. She does not record the hours she works at home. The office manager knows the clerk is working at home, but since she does not ask for pay, assumes she is doing it “on her own.” Should the clerk’s time working at home be counted? Yes. The clerk was “suffered and permitted” to work, so her time must be considered hours worked even thought she worked at home and the time was unscheduled. See Regulations 29 CFR 785.12.