For whatever reason, many injured workers harbor the mistaken belief that, once they begin receiving workers’ compensation disability benefits, they will receive them forever. This is not the case. There are several ways disability benefits may terminate. First, there is a 5-year cap on temporary partial disability benefits–the type of benefits that injured employees may receive if they have a light duty work capacity or if they are working a job that pays less than what they earned at the job in which they were injured. No such cap exists on temporary total disability benefits–the type of benefits injured employees receive if their injury renders them completely unable to work any job for which they are suited. Temporary total benefits may be suspended if a carrier schedules an employee for a medical examination and the employee fails to attend it. Such benefits may also be terminated through an RSA 281-A:48 petition filed by the carrier with the Department of Labor. When a carrier files such a petition, the Department of Labor holds a hearing attended by the employee and a carrier representative, usually an attorney. The carrier bears the burden to prove at the hearing that the employee has work capacity and that benefits should be discontinued. Benefits stop immediately if the Department finds that the carrier has met this burden.

Due to the risk of benefits being terminated, it makes sense under appropriate circumstances for employees to explore lump sum settling their claims. Disability benefits stop when the Department approves a lump sum settlement, but the employee can walk away with a sum of money to help to compensate for their injury and allow them to move on with life.

We can assist in negotiating a lump sum settlement and assessing your workers’ compensation rights. Benjamin King at Douglas, Leonard & Garvey, P.C. is experienced in representing employees in workers’ compensation matters. Call us at 1-800-240-1988 or fill out our online Contact form.

When you treat with your doctor for a work-related injury, make sure your doctor completes the New Hampshire Workers’ Compensation Medical Form! The Workers’ Compensation Medical Form is a New Hampshire Department of Labor form that asks the doctor to describe the employee’s injury, state whether the injury is work-related, and state what restrictions the injury imposes on the employee’s physical functioning. The form further requires the doctor to state whether the employee can work or whether the injury has disabled the employee from working.

Your doctor must complete the Workers’ Compensation Medical Form in order for you to receive the benefits that you should. You will not receive any workers’ compensation benefits without a form from your doctor certifying that the doctor believes you have suffered a work injury. You will not receive disability benefits without forms from your doctor stating the time periods during which your injury disabled you from work.

Even in cases where it is clear that an employee has suffered a disabling work-related injury, the doctor sometimes forgets to complete the New Hampshire Workers’ Compensation Medical Form. This omission can disqualify injured employees from receiving the benefits they should. If you are an injured employee, make sure your doctor completes the form so your entitlement to benefits is not jeopardized. If you have a work-related injury, give us a call at 1-800-240-1988 or fill out on online contact form to see if we can be of assistance.

If you have suffered a work-related injury, you may be entitled to permanent impairment compensation under New Hampshire statutory law, and you may pursue your permanent impairment award years after the injury occurred.

Most rights that New Hampshire workers’ compensation law confers on injured employees have expiration dates.  This is true of most rights under the law.  If you do not act to preserve your right within a specified time period, you lose the right.

The permanent impairment award is the rare exception.  Three (3) events must transpire for an injured employee to qualify for a permanent impairment award.  First, the injured employee must reach maximum medical improvement with respect to his work-related injury. Second, the work injury must have caused the injured employee to suffer a permanent loss of use of the function of a body part.  Third, a doctor must evaluate the percentage loss of use according to the methods prescribed by a publication of the American Medical Association called the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition.  Notably, New Hampshire Department of Labor regulations require that the carrier pay the doctor’s bill for evaluating the extent of impairment, if the employee has reached maximum medical improvement and has not previously undergone any medical evaluation for permanency.

The amount of the permanent impairment award is determined by this mathematical formula:  (Percentage loss of use as determined by the doctor) X (a certain number of weeks of disability benefits, which number depends on the affected body part) X (the injured employee’s compensation rate at the time of injury, which rate is equivalent to 60% of the employee’s average weekly wage).

The Department of Labor must approve any permanent impairment award.  If the workers’ compensation carrier disputes the extent of the award owing, or disputes whether any award is owing at all, the employee may request a hearing before the Department of Labor to resolve the dispute.  The carrier will be represented by an attorney through this process, so the employee should be represented as well.

Unsurprisingly, carriers do not bend over backwards to inform injured employees of their potential rights to permanent impairment compensation.  But, unlike most other rights under the law, there is no expiration date on the right to this compensation.  If you have suffered a work injury that may have had some permanent impact on you, and you have not received a permanent impairment award, you should consult an experienced workers’ compensation attorney such as Benjamin King, Esquire, at Douglas, Leonard & Garvey, P.C. to discuss pursuing the compensation to which you may be entitled.

If you are contemplating a lawsuit, or perhaps just filed one, you have probably heard that the court requires the parties to “mediate” the case.  What is mediation, and is it something you want to take part in?

Mediation is a type of “alternative dispute resolution.”  Simply put, it is a formalized method by which you attempt to settle your lawsuit before going to trial.  It is often confused by lawpersons with arbitration, which is an alternative form of trial judges rather than an actual judge and jury.

How does a mediation work?  Typically the parties agree on a mediator as the first step.  The mediator is typically an attorney or retired judge.  The choice of mediator is very important.  An inexperienced or unmotivated mediator will not be effective in driving the mediation process to a successful resolution.  Experienced trial attorneys will know the right mediator for the case, and will insist on using the right mediator in your case.

Once the mediator is selected, the mediator process typically begins by having all the parties meet and their representatives meet in one room.  The lawyers for the parties typically give a presentation of what they believe the evidence will demonstrate at trial, and try to highlight the strengths of their case, and the weaknesses of the other side’s case.  It is not uncommon for the plaintiff to explain how the defendant’s conduct has personally impacted him or her, and also not uncommon for the mediator to ask questions of both sides to help clarify certain points and potentially to highlight key issues in the case which parties may not have fully appreciated before the medication begins.

At that point, the parties typically separate and go into different rooms.  It is at this point that the plaintiff makes a demand for a certain amount of money (which is typically much higher than what their attorney ahs told them to expect as an end result) and the defendant makes an offer to pay the plaintiff a certain amount (almost always much lower than what they actually expect to pay) of money to dismiss the case.  The mediator then goes back and forth between the rooms in a process of “shuttle diplomacy.”

During each visit with the mediator, the parties discuss the amount of their demand or offer the settle, and the strengths and weaknesses highlighted by the other side.  The goal is to keep reducing the plaintiff’s demand, and increasing the defendant’s offer, until they meet at some point.  If they meet, then the case is settled.  If the defendant is unwilling to pay the lowest amount the plaintiff is willing to accept to settle the case, then the mediation will end and the parties effectively pretend it never happened.

In a successful mediation, the parties decide the outcomes of the case, rather than allowing a third party to do it for them.  If the mediation fails, then the parties simply proceed to trial, and treat the mediation as if it never happened.  The jury never hears about what happened at the mediation.  Everything that happens at the mediation is kept strictly confidential, to encourage the parties to be open and honest about their case and make the best effort possible to resolve it.

Successful mediations depend tremendously on the skill and experience of the parties’ counsel and the mediator.  Picking the right mediator is crucial, but having the right attorney is even more important.  An experienced trial attorney will have the experience to value your case, and to make the most effective use of the mediation process to get the other side to pay the most money they are willing to offer, and not take the risk of undervaluing your case.

Considering that most cases settle before trial, and many of those settle in mediations, it is important to choose the right attorney to handle your case in order to ensure your case is worked to get you the full compensation you deserve.

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.

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.

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.

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.

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.

Did you know that work injuries need not arise from a single traumatic event in order to be compensable under New Hampshire workers’ compensation law?

If you are working as a chef in a restaurant, and you slice your hand while dicing tomatoes, it is clear that you have suffered a work-related injury from a single trauma. But what if the injury occurs as a result of repeated traumas over time, rather than a single trauma? Suppose you dice tomatoes for the restaurant over the course of several years, each day subjecting your shoulder to repetitive movements in order to complete the task, and one day you suffer a sharp pain in your shoulder. You go to a doctor and learn that you have a rotator cuff tear. What caused it?

What caused an injury is a medical question that only a doctor can answer, but a doctor can only render an informed opinion on causation if you–the injured patient–describe for the doctor the activities in which you have engaged that may have affected the injured body part. In the case of the shoulder injury mentioned here, a doctor may very well conclude that the repetitive motions over time dicing the tomatoes ultimately caused the rotator cuff tear. If so, the injury is a compensable work-related injury, just as much as it would be if the shoulder injury occurred as the result of a distinct traumatic event rather than as a result of a series of traumas over time. Under New Hampshire workers’ compensation law, such an injury is called “cumulative trauma.”

While in theory an injury resulting from cumulative trauma is just as compensable in workers’ compensation as an injury resulting from a single traumatic event, in practice employees can face greater challenges obtaining workers’ compensation benefits for a cumulative trauma injury, simply because the cause of the injury is less obvious. If you suspect that you have suffered an injury as a result of repetitive activities that you have performed at work over a period of time, make certain that you describe the activities to your doctor when you seek treatment for the injury. If your doctor determines that the work activities caused or contributed to your injury, make certain that your doctor completes a New Hampshire Workers’ Compensation Medical Form so that you can pursue all the workers’ compensation benefits to which you may be entitled.