Archive for July, 2010
Friday, July 23rd, 2010
The unexpected news shocks you and fills you with fear for your future. Your longtime employer is firing you. Your boss tells you he is “laying you off,” but is that true? How come no one else in your department is being laid off? You suspect that your employer is actually firing you because you recently applied for Family and Medical Leave Act (FMLA) benefits.
Your boss ushers you into his office and drops a lengthy contract in front of you titled “Severance Agreement.” “We appreciate your service,” the boss states warmly. “Just sign this Agreement and we will pay you four (4) weeks severance.” You don’t know when you will next see a paycheck. It’s tempting to take the money being offered you. But what might you be giving up?
If your employer asks you to sign a severance agreement when terminating your employment, you should always review and discuss the agreement before you sign it with an employment attorney who represents employees. Typically, an employee who signs a severance agreement releases his or her employer, fully and finally, from liability for all claims the employee may have had against the employer, in exchange for whatever severance benefits the employer offers to pay. The employee in the example above might have a winning FMLA retaliation claim. Winning the FMLA claim may entitle the employee to recover his lost wages, liquidated damages equivalent to his lost wages, and reasonable attorney’s fees. If the employee signs the severance agreement and accepts the four (4) weeks of severance pay, however, he has probably given up his right to pursue any claim against his employer.
Know your rights. More often than not, generosity does not motivate an employer to pay severance benefits. Employers generally pay severance benefits in order to prevent their employees from bringing claims against them. Your employer’s lawyer probably drafted the severance agreement that your employer hands you to sign, to make sure the agreement achieves all the employer’s objectives. So, why not get your own lawyer when faced with a severance agreement? Make sure that you are not giving up your right to pursue valuable claims against your employer in exchange for a few weeks’ pay.
Friday, July 23rd, 2010
You fall down and injure your hand at work. You report the work injury to your employer, as you know you must. You expect that your employer will file the necessary report with the New Hampshire Department of Labor. Weeks pass, however, and your employer fails to file any claim. You politely remind your employer several times to file the claim, and your employer assures you that it will, but nothing happens. What should you do?
When your employer fails to notify the New Hampshire Department of Labor of your injury as it should, you must complete and file the required form yourself in order to preserve all rights that you may have to workers’ compensation benefits. You may obtain the required form (Form 8aWCA, Notice of Accidental Injury or Occupational Disease) from the State of New Hampshire website.
No action will be taken on your claim until the Form 8aWCA is filed, so do not dally. New Hampshire law requires your employer to file the required form with the New Hampshire Department of Labor within five (5) days of receiving notice of the injury. If you give your employer notice of a work injury, and your employer fails to give notice to the New Hampshire Department of Labor within five (5) days, you might gently remind your employer of its obligations. But if your employer continues to drag its feet, file the form yourself, or seek assistance from a New Hampshire attorney who represents employees with workers’ compensation claims. The responsibility to pursue all the workers’ compensation benefits to which you may be entitled ultimately rests with you.
Friday, July 23rd, 2010
Employees who suffer a permanent loss of use of a body part as a result of a work-related injury are also entitled to receive a permanent impairment award. The amount of the permanent impairment award is determined by the following calculation: (the percentage impairment as determined by a doctor) X (the employee’s compensation rate) X (a statutorily determined number of weeks depending on the body part). An employee who lump sum settles his case is not entitled to any further permanent impairment compensation associated with the claim being settled.
An employee whose injury renders him incapable of returning to his occupation may also be entitled to vocational rehabilitation benefits. An employee receiving vocational rehabilitation benefits works with a vocational rehabilitation counselor in an effort to find employment. The employee may also receive education or retraining. Once an employee lump sum settles his case, however, the employee’s entitlement to vocational rehabilitation benefits ceases.
The last benefit available to an injured employee is medical benefits. The carrier must pay for reasonable medical services associated with the employee’s work-related injury for so long as the employee requires such services. The carrier’s obligation to pay for such medical services survives the lump sum settlement. In fact, if the employee is represented by legal counsel, the attorney generally must agree to continue to represent the employee in connection with any medical bills that the carrier may dispute in the future.
Why should an employee lump sum settle? If the employee has a game plan for the future and is not dependent on weekly disability checks, it is often to the employee’s financial benefit to enter a lump sum settlement. Depending on the facts and circumstances of the case, a lump sum settlement may pay an employee a sum equivalent to months or even years of benefits at one time. An employee is never under any obligation to lump sum settle a workers’ compensation claim, however, and in fact the Department of Labor will disapprove any settlement if the Department perceives that the employee is under any pressure to settle the case. Before entering any settlement, employees must carefully consider what they are getting and what they are giving up.
Friday, July 23rd, 2010
Injured employees receiving workers’ compensation benefits often wonder, “Can I settle my case?” The New Hampshire Department of Labor (the State agency that hears workers’ compensation cases and regulates workers’ compensation issues) allows injured employees and workers’ compensation carriers to lump-sum settle claims so long as at least one (1) year has elapsed since the date of injury. The Department of Labor must approve a lump sum settlement.
Whether an employee should settle his case, and whether the settlement will receive Department of Labor approval, depends on several factors.
The Department of Labor is primarily concerned with ensuring that employees settling their cases understand the rights they are giving up by entering the settlement, as well as the rights they are retaining. To ensure that employees are fully cognizant of the consequences of a lump sum settlement, the Department holds a hearing in connection with each lump sum settlement agreement.
Of the four (4) types of benefits available to injured employees through workers’ compensation, an employee gives up rights to three (3) of these benefits by entering a lump sum settlement.
Injured employees disabled from work because of their work-related injuries receive disability benefits in the form of weekly checks in the amount of 60% of their average weekly wage (a sum known as the “compensation rate”). An employee who lump sum settles his case is no longer entitled to receive disability benefits. The carrier must pay disability benefits through the date that the Department of Labor approves the settlement. Then the weekly payments stop.
Friday, July 23rd, 2010
11. You need to ask your doctor to explain the treatment plan you will use at home.
12. You need to make sure you and your doctor agree on exactly what will be done during an upcoming surgery.
13. You need to ask questions or voice any concerns you have.
14. You need to make sure that your primary care doctor is involved with your case.
15. You need to make sure that all health or professionals involved in your care have important health information – don’t assume they know everything they need to know.
16. You need to have a family member or friend with you if you need help speaking up for you.
17. You need to find out why a test or treatment is being recommended or are you better off without it.
18. You need to ask the results of any tests.
19. You need to learn about your condition and treatment options.
20. You need to be involved and informed in order to protect yourself from medical errors.
Friday, July 23rd, 2010
Medical errors are one of the Nation’s leading causes of death and injury. A recent report by the Institute of Medicine estimates that as many as 44,000 to 98,000 people die in U.S. hospitals each year as the result of medical errors. This means that more people die from medical errors than from motor vehicle accidents, breast cancer, or AIDS.
1. You need to take part in every decision about your health care.
2. You need to make sure your doctors have all medications (prescription and over-the counter, including herbal supplements) you are taking.
3. You need to make sure your doctors know about any allergies and adverse reactions to medications.
4. You need to make sure any prescription can be read by the pharmacist.
5. You need to ask questions about any medicine so you understand why they have been prescribed (side effects, safe with other medicines, how to take it and for how long).
6. You need to confirm with the pharmacist your prescription is the medicine that your doctor prescribed.
7. You need to ask if you cannot understand the instructions on the prescription label.
8. You need to ask for written information about the side effects your medicine could cause.
9. You need to choose a hospital that has a great deal of experience with the procedure or surgery you need.
10. You need to ask all healthcare workers who have direct contact with you if they have washed their hands.
Thursday, July 22nd, 2010
A physician running a clinic with approximately 25 employees apparently enjoyed telling dirty jokes and commenting on female body parts during the work day. One of the staff physicians, who was pregnant, did not appreciate the doctor’s continual obsession with breasts, breast feeding, etc. The doctor called himself a shock jock and, therefore, assumed because everyone involved was in the medical profession that somehow the normal requirements for dealing with human anatomy allowed him wider verbal leeway. Not so said a Federal Appeals Court.
On the other hand, a woman who was transferred from an environment within a company where the men were constantly streaming sexual comments and threats at her ended up in a department where the rhetoric was dramatically different and not offensive. Unfortunately, she waited too long to complain about the prior department she worked in and she missed the time limits under the law. The comments she did timely complain about were one employee talking on the phone about “chickies” and a sleepover with a woman. The court held that those comments were too trivial to support a hostile work environment sexual harassment case.
That is why you need to contact employment lawyers who represent employees if you are in an offensive environment. If you are unsure of your rights, feel free to contact us.