May Is National Moving Month – Don’t Get Scammed!

May is National Moving Month – the busiest time of the year for people changing residences.  It’s also a busy time of the year for unlicensed movers and scammers.  For tips on how to spot con-artists and avoid scams, check out this video by the American Moving and Storage Association (AMSA).

 

 
If you have been scammed by an unscrupulous moving company, contact the Lawyer Referral Service of the New Hampshire Bar Association for a referral to a licensed and insured attorney who represents consumers.  Call (603) 229-0002 or request an online referral.

 
 

Workers’ Comp Overview

What Is Workers’ Compensation?

Workers’ compensation is a system created by a statute (RSA chapter 281-A) that requires employers to provide certain benefits for workers who are injured during the course of their employment. Each state has its own workers’ compensation laws. Federal employees, railroad workers, and maritime, longshoremen, and harbor workers are covered by federal workers’ compensation laws which are not discussed in this pamphlet.

Usually, an employer buys workers’ compensation coverage from an insurance company. Some employers may choose to be “self-insured” but must seek approval from the New Hampshire Department of Labor to do so. Self-insured employers generally hire an insurance company or a similar company to administer claims. With few exceptions, any employer who hires one or more employees must make workers’ compensation available. An employer who fails to provide workers’ compensation coverage for employees may be subject to fines and criminal penalties.

Who is Covered By Workers’ Compensation?

Workers’ compensation coverage is available once you begin your employment. Almost all employees are covered by workers’ compensation laws. Some categories of workers, such as independent contractors, are not considered employees. However, you may still be entitled to workers’ compensation benefits from an employer even though you are called an independent contractor. The Department of Labor will examine the substance of the relationship between you and your employer. If you are paid by the hour for a regular work day, you are more likely to be treated as an employee eligible for workers’ compensation benefits. On the other hand, if you perform a single type of service for many persons and supply your own tools and equipment to perform it on your own schedule, you are more likely to be viewed as an independent contractor. Nothing, however, prevents independent contractors from purchasing their own workers’ compensation insurance to cover themselves.

What Is Covered By Workers’ Compensation?

Workers’ compensation covers physical injuries which arise out of, and in the course of, your employment, and in some circumstances, mental health and stress disorders. For example, you are entitled to compensation for traumatic injuries such as burns, cuts, sprains, or fractures which result from an event at work, or nerve and joint problems which may result from repetitive motion. You also are entitled to compensation for occupational diseases, for example, from long term exposure to certain hazardous conditions, such as hearing losses caused by noise exposure or lung disorders caused by exposure to chemicals. The workers’ compensation law allows compensation for mental health and stress disorders so long as the disorder is caused by the worker’s employment, is not due to good faith evaluation, discipline, termination or similar actions by the employer, and results in physical symptoms.

Workers’ compensation does not cover disabilities which solely are the result of the natural aging process or which are due to non-work related causes. Workers’ compensation benefits do cover pre-existing conditions to the extent the condition is aggravated by your employment. You may not recover for injuries that result from your own willful misconduct or from intoxication, or in some instances, from participation in athletic/recreation activities.

If you have any doubt as to whether you have a work related injury, you should notify your employer and contact the New Hampshire Department of Labor, Workers’ Compensation Division, (603) 271-3176. You may also wish to speak with a lawyer who accepts workers’ compensation cases.

What Are My Workers’ Compensation Benefits?

A primary workers’ compensation benefit is payment for all reasonable medical services required by the work injury. This might include payment for hospital and surgical services, doctor visits, physical therapy, chiropractic treatment, prescription medications, glasses, artificial limbs and all other medical expenses which are necessary because of your injury. Unless a claim is denied, there is no time limit or dollar limit imposed by law.

Workers’ compensation disability payments are based on your average weekly wage before the injury. Your average weekly wage is calculated from your gross earnings during the 26 to 52 week period prior to the injury (whatever period shows the highest average). If you have not yet worked a full 26 weeks, your average weekly wage may be based upon your actual wages, the wages payable under your employment agreement, or by the earnings of employees in similar positions. Weekly disability benefits stop once you return to your pre-injury earning capacity.

If you are totally disabled because of a work related injury, the law provides that you are entitled to a weekly tax-free payment equal to 60% of your average weekly wage, up to a maximum set by law. There is also a minimum benefit amount set by law. If you are totally disabled and remain so, there is no time limit to your benefits.

If you are partially disabled–that is, you are capable of performing some work, but not able to earn as much as you used to–your benefits will ordinarily be 60% of the difference between your prior average weekly wage and what you are able to earn currently. If you are partially disabled, you may not collect more than 262 weeks of workers’ compensation disability benefits. The 262 week limit includes any prior weeks of total disability payments.

If an injury has caused a permanent loss of function to a body part listed in the law, you may also be eligible for a permanent impairment award. The amount of such an award depends upon the part of your body affected, your percentage of loss of function, and the amount of your average weekly wage. Your loss of function must be determined by a physician in accordance with guidelines prepared by the American Medical Association.

In most cases, once you have recovered you are entitled to return to your former job, but that is subject to limits on the size of the employer and how long you were disabled.

If you are unable to return to your prior employment, or the job skills you may have are not transferable to other employment, you are also entitled to vocational rehabilitation assistance. Ordinarily, the employer or employer’s insurance carrier will assign a vocational rehabilitation counselor to assist you with locating and applying for suitable jobs. If you cannot find employment within your qualifications and medical restrictions, you may be entitled to retraining. The objective is to approximate your pre-injury wage. Benefits can be suspended for failure to cooperate with vocational rehabilitation efforts.

In the event of a work-related death, workers’ compensation coverage provides $10,000 in burial expenses, and weekly benefits for a spouse and dependents. Such benefits are ordinarily payable until the surviving spouse remarries, or in the case of dependent children, up to twenty-five years of age as long as the dependent child is enrolled as a full–time student in an accredited educational institution.

What Should I Do If I Have A Work Related Injury?

Your two most important responsibilities are to obtain appropriate medical care and to report the injury promptly to your employer. Your employer should have forms available which you should complete to describe the injury and how it occurred. Even without a form, tell your employer, preferably in writing, as soon as you know you have been hurt at work. If you fail to notify your employer within two years of the time when the injury occurs (or when you become aware of the medical condition caused by the injury), your claim will be barred. There is also a three-year time limit to begin claiming benefits. To recover workers’ compensation benefits, you do not have to prove that your employer did anything wrong, but you do have to show that the injury was related to your employment.

Once your employer knows of a work-related injury, your employer must file a report of the injury with the New Hampshire Department of Labor and the employer’s workers’ compensation insurance carrier. Failure to complete such a report will subject the employer to a fine by the Department of Labor.

Once notified of the injury, your employer’s insurance carrier or employer has twenty-one days to either begin paying you benefits or to deny your claim. If your claim is denied, or if there is a dispute about any benefit in an accepted claim, you have the right to request a hearing before the New Hampshire Department of Labor to determine the matter. There is an 18-month deadline from the date of a denial in which to request a hearing. Hearings are usually scheduled within six weeks of the request. All medical evidence and submissions you wish to have considered must be exchanged with the opposing party no later than five working days before the hearing; and non-medical evidence and submissions must be exchanged no later than two working days before the hearing. Whoever loses the hearing decision has the right to an appeal before a three member Compensation Appeals Board panel. You must request an appeal within thirty days of the unfavorable hearing decision.

What Are Some of My Rights and Obligations?

You are generally entitled to choose your own physician or medical care provider. If your employer or its workers’ compensation insurance carrier has obtained approval from the Department of Labor to operate a managed care network, then you must choose from an approved list.

You have a right to retain legal counsel. Your lawyer is required to file a letter with the Department of Labor indicating that you are represented by the lawyer. Attorneys’ fees are generally limited by the Department to no more than 20 percent of any benefits which you recover through the aid of the lawyer’s services, but for successful appeals and for certain types of disputes your attorney’s fee is paid directly by the employer or its insurer. If you need help finding a lawyer, the Lawyer Referral Service of the New Hampshire Bar Association can assist you. Call (603) 229-0002 for more information.

Your workers’ compensation benefits may not be claimed by creditors, except for payment of child support, medical expenses for your work injury and the attorney you may retain to pursue your workers’ compensation claim. In addition, workers’ compensation benefits are not subject to either income tax or social security withholding.

Your employer or the employer’s insurance carrier may require you to attend an independent medical examination by a board-certified physician of the employer’s choice. Generally, such exams may be conducted only twice per year and within fifty miles of your home. If you refuse or fail to submit to such an examination, your right to benefits may be suspended until the examination takes place.

You must provide medical authorizations to allow your employer or your employer’s insurance carrier to obtain your medical records for the injury involved in your claim. By statute, your release is strictly limited to medical evidence that is relevant to the occupational injury or illness that underlies your claim, including any past history of complaints or treatment of a similar condition.

You have the right to a hearing anytime your benefits are denied if your request is filed within the 18-month deadline. The employer and the employer’s insurance carrier likewise have the right to request a hearing to reduce or terminate your benefits. If a medical provider states that you are able to work but you have not returned to work, your employer or the employer’s insurance carrier has a right to request a hearing for review of your continuing eligibility to receive payments.

Can I Go Back to My Job?

As long as your employer has five or more employees, you may have the right to return to work in a temporary alternative duty position or a right to full reinstatement.  Temporary alternative duty is both temporary (your employer generally does not have to provide you with a permanent alternative duty position), and transitional (your employer does not have to offer you an alternative duty position if you will never recover your ability to return to your regular duty position). Under certain circumstances, a failure to accept a temporary alternative duty position may result in the termination or reduction of your weekly benefits. There also is a right to reinstatement to your old job, or to a replacement position with your employer if your old position has been filled. There are a number of important requirements. Most significantly: (A) the request for reinstatement must be made within eighteen months from your date of injury, (B) your physician must release you to your regular duty position (possibly with “reasonable accommodations”), and (C) you must not have taken a job elsewhere since your date of injury. Because there are many technical considerations regarding both temporary alternative duty work and the right to reinstatement, it is advisable to contact the Department of Labor or consult with an attorney if you have concerns.

What Does Workers’ Compensation Not Provide?

The workers’ compensation law does not provide any recovery specifically for your pain and suffering, humiliation, embarrassment, loss of opportunities in your life, or the impact of your injury on your family or other people in your life.

Employment benefits (such as health insurance or pension contributions) are not protected under the workers’ compensation statute, and employers have no obligation to maintain or replace them. However, there may be protections under other state laws or federal laws such as the Family Medical Leave Act.

The workers’ compensation law is based on a policy of “trade off”–in exchange for quick payment of limited benefits without having to prove fault, neither you nor your spouse is allowed to sue your employer or a co-employee about a work-related injury. However, if your injury is due to the fault of someone besides your employer or a co-employee, you may also, in addition to collecting workers’ compensation benefits, bring a legal claim against the person who caused your injury. For instance, if you were driving from your place of employment to a construction site and were hit by another driver, you would be entitled to claim both workers’ compensation benefits from your own employer and also sue the driver at fault. If you do recover money from another person for your injuries, you will be required to pay back the amount you received in workers’ compensation benefits necessary to prevent a “double recovery.”

You may also have the right to collect Social Security Disability benefits or private disability insurance benefits in addition to workers’ compensation benefits. However, whether it is in your interests to pursue a claim will depend, among other things, upon your earning history and potential adverse income tax consequences. If you are entitled to Social Security Disability benefits, you may also qualify for Medicare coverage for treatment of conditions that are not related to your workers’ compensation claim.

If you have been denied for Worker’s Compensation, the Lawyer Referral Service (LRS) of the New Hampshire Bar Association can refer you to a competent and insured Worker’s Compensation attorney to assist you.  Call (603) 229-0002 or request a referral online.

Personal Injury Overview

“Personal Injury” is a blanket term to describe any number of legal claims in which a plaintiff (the party who sues/brings a legal action) files a civil lawsuit against a defendant (the opposing party/respondent in a legal action or lawsuit).

This term can refer to anything from a slip and fall or accident case to a medical malpractice or wrongful death case. The unifying theme of personal injury cases is that there is a harmed – physically, mentally, emotionally, or financially – party that wishes to recoup compensation – normally monetary – to make up for the damage caused.

 

Common Types of Personal Injury Cases

Asbestos Injuries

Assault Injuries

Auto Accidents

Breast Implant Injuries

Bus Accidents

Defamation

Dental Malpractice

Drug/Pharmaceutical Injuries

Dog Bites

Home Accidents

Lead Paint Injuries

Libel/Slander

Medical Malpractice

Motorcycle accidents

Product Liability

Psychiatric Malpractice

Slip and Fall

Sports & Recreation Injuries

Toxic Mold Injuries

Train Accidents

Wrongful Death

The following represents common elements which must be proven in a personal injury case:

  • the defendant owed the plaintiff a duty of care
  • the defendant breached the duty of care owed to the plaintiff
  • the breach by the defendant caused harm to the plaintiff
  • the plaintiff now suffers from a permanent disability or suffered major harm due to the acts of the defendant

 

Fee Structure
Attorneys in personal injury cases generally work on a “contingency basis,” which means that the attorney’s fee is a percentage of damages awarded rather than an hourly rate over the course of the trial process.

If you have been injured in a scenario which involves a potential personal injury case, you should speak to an experienced personal injury attorney as soon as possible.   An experienced attorney may help you receive compensation while also helping to preserve your legal rights. The Lawyer Referral Service can refer you to attorneys in your area. Contact us today.

Modifying a Mortgage When Your Name’s Not On It

Getting a Loan Modification for Successor-in-Interest

Mrs. Jones’ husband died of a heart attack last month. To continuing living her home, Mrs. Jones needs to reduce the monthly payment to an amount she can afford with her reduced income. However, when Mrs. Jones contacts the mortgage company to request a modification, she is told that no one can speak to her because “you’re not on the mortgage.”

Although Mr. and Mrs. Jones were both on the title to the property and both signed the mortgage, only Mr. Jones signed the promissory note. Because only Mr. Jones signed the promissory note, only Mr. Jones had the obligation to pay. When Mr. Jones passed away, Mrs. Jones became a successo-in-interest to the property but not to the obligation to pay the promissory note. Mrs. Jones however must pay the promissory note if she wants to stay in the home.

If Mrs. Jones wants to modify the payment terms of the promissory note, she needs to communicate with the mortgage servicer. However, a mortgage loan servicer will only speak with the person(s) who signed the promissory note. This presents a problem for widows and widowers, like Mrs. Jones, who want to stay in their homes but need a loan modification to make it financially feasible. If the mortgage servicer refuses to talk with Mrs. Jones, it is impossible for her to make a reasonable decision about keeping or leaving the home.

Fortunately, in 2014, the Consumer Financial Protection Bureau (CFPB), issued regulations that all servicers must maintain procedures to work with successors-in-interest when a borrower dies. Under the regulations, the servicer must develop policies and procedures to suspend foreclosure, speak with the successor-in-interest and process loan assumption and loan modification documents simultaneously.

This regulation assists widowers, like Mrs. Jones, as well as other people, such as children or siblings, who inherit property. This article addresses the legal status of widows and widowers as successors-in-interest.

In this case, for Mrs. Jones to obtain a modification, she will first need to assume the loan. Generally, contract rights are freely assumable, unless the contract states otherwise. In other words, it is up to Mrs. Jones to decide whether to assume the note. Upon assumption, Mrs. Jones will have all the rights and responsibilities of the original borrower (her deceased husband), including the right to apply for a loan modification.

The Due-on-Sale Clause

Although most mortgage notes do not restrict assumption of the mortgage note, the typical mortgage note restricts the transfer of the property. This is commonly referred to as a “due-on-sale” clause. A due on sale clause allows the lender to demand immediate payment in full when any interest in the property is sold or transferred, without the lender’s prior written consent.

As a practical matter, a due-on-sale clause may limit a person’s ability to assume a mortgage note, because an assumption will likely require a transfer of ownership of the property. Thus, although a party can freely assume the mortgage note, the transfer may trigger the due-on-sale clause and an immediate foreclosure.

Fortunately for Mrs. Jones, under federal law, a due-on-sale clause cannot be enforced when an interest in real property is transferred to a surviving spouse by will or statute. Garn-St. Germain Depository Institution Act and Brush v. Wells Fargo Bank, NA (2013).
In other words, in most cases, a widow can freely assume a mortgage note without permission from the lender.

Once the mortgage note is assumed, Mrs. Jones has the right to apply for a loan modification like any other borrower. However, Mrs. Jones does not want to assume the mortgage loan unless she knows the loan will be modified. Unfortunately, she cannot get an answer about modification until the loan is assumed. To address this catch-22, most lenders have adopted servicing guidelines requiring evaluation of the loan modification first, and then simultaneous approval of both the loan modification and the assumption.

The Process

The process for modification and assumption will be vary depending on the lender. Although different rules apply if the loan is held by the US Department of Housing and Urban Development (HUD), Fannie Mae, Freddie Mac or a private investor using a Home Affordable Modification Program (HAMP) participating servicer, most loans at a minimum have a procedure to assume and modify the mortgage loan. The best place to start research about the lender is the loan look-up tool on Making Home Affordable.

If the loan is serviced by a HAMP servicer, the Making Home Affordable Handbook outlines the requirements and process loan assumption and modification. Under HAMP, a non-borrower widow or widower may apply for a modification as if he or she was the borrower. If the mortgage is already in a Trial Payment Plan (TPP), the servicer is required to send written notice to the widower outlining the requirements to assume the TPP or to apply for a new HAMP modification based on current income. Importantly, the servicer must stay the foreclosure process while the assumption process goes forward.

If the loan is held by Fannie Mae, the servicer must evaluate a modification request from a widow or widower as if it came from the borrower. Likewise, Freddie Mac guidelines allow for simultaneous assumption and modification after the borrower’s death. Finally, HUD has a general policy allowing loan assumption with a credit review.

In summary, it is possible for a widow or widower to assume and modify a mortgage loan in many circumstances. You should contact a Home Ownership Counselor to assist you with the process. To find a free Home Ownership Counselor visit www.homehelpnh.org or call 2-1-1 (in NH).

Mary Stewart and Krista Atwater are independent contract attorneys for the NH Bar Association Foreclosure Relief Project. For information about assistance with a loan modification, see www.homehelpnh.org.

Family Photos

Photo by www.personalcreations.com

LawLine: Free Legal Advice – 800-868-1212

Do you have a BRIEF LEGAL QUESTION? LawLine, the NH Bar Association’s free legal hotline is held on the second Wednesday of each month, from 6 – 8 pm.

Volunteer New Hampshire attorneys will take calls from the public and will give brief legal information and advice. This is a FREE public service. Call 1-800-868-1212.

Do you have more than a brief legal question and suspect you may need an attorney to represent you?  The NH Lawyer Referral Service can refer you to a competent local  attorney who handles your type of legal matter.  Call (603) 229-0002 today or fill out the Lawyer Referral Service request form at:  https://www.newhampshirelawyerreferral.com/contact-us.

What if I am Denied Unemployment Compensation?

Losing a job for whatever reason can be a real blow to individuals and their families. One way to take charge of the situation and minimize the financial downside is to file for unemployment compensation insurance right away.

NH Legal Assistance publishes an excellent informational pamphlet on the unemployment compensation application process, which advises:

If you become unemployed, it is important to file your claim for unemployment benefits. Do not wait. You can lose benefits if you delay filing your claim. Keep filing every week. Do not assume you will be ineligible. You may be found eligible. Also, many cases may be won on appeal, so don’t stop filing if you get a denial that you want to appeal.

Additional detailed information regarding the process may also be found at the New Hampshire Department of Employment Security.

If you have been denied unemployment compensation, you have the right to appeal. Information about the appeals process may be found in the links above. If you would like the assistance of a competent and insured attorney to guide you, and you are not eligible for free or Reduced-Fee legal assistance, call the Lawyer Referral Service (LRS) of the New Hampshire Bar Association. We can be reached at 603-229-0002, or request a referral online.  LRS can also assist with referrals to attorneys who handle other employment-related issues such as Wrongful Termination or Worker’s Compensation.

Unemployment Insurance Claims Office sign

Unemployment Office – Photo credit Burt Lum                     Flickr Creative Commons

Bullying in the Workplace

bullyfree_fcc_Eddie~sThe issue of bullying is currently a hot topic in the United States, and it’s not just schoolchildren who are the targets, or offenders. More and more advocacy and law enforcement agencies around the country are receiving inquiries from folks wondering if bullying and/or harassment is a legal cause of action.

According to a recent article in The Employment Discrimination Report, in a recent New York federal court case, the pro se plaintiff, a college lecturer, attempted to bring an action “regarding the bullying and harassment by (his department’s) current Chair.” He told the Court “that he was not alleging that his Chair’s hostility was motivated by his race, sex, age, or national origin.” The federal court held that:

 

“Bullying and harassment have no place in the workplace, but unless they are motivated by the victim’s membership in a protected class, they do not provide the basis for an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2 (“Title VII”), and any complaint to the Equal Employment Opportunity Commission (“EEOC”) based on them does not constitute “protected activity” under Title VII.”

The Court went on to say:

“Victims of non-discriminatory bullying at the workplace, like those treated unfairly for reasons other than their membership in a protected class, must look outside Title VII to secure what may be their fair due. The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin.”

Read the entire article by Richard Cohen.

On July 28th, 2014, NH’s Governor vetoed an anti-bullying bill, HB 591   Read Governor Hassan’s Press Release regarding the veto.

So what is an employee to do when he/she believes she is being subjected to bullying behavior?  How can an employer protect itself against legal action while maintaining a safe, professional working environment?

The Lawyer Referral Service of the NH Bar Association can help with referrals to competent and insured labor law attorneys who represent employees and/or employers.  Call 603-229-0002 or request a referral online.

Requesting Child Support Orders from the Court

Provided by the Domestic Violence Emergency (DOVE) Project of the NH Bar Association, this is a video presentation to assist pro se litigants (people representing themselves) with requesting child support orders within divorce, parenting rights or domestic violence restraining order cases. The presenters provide a “nuts and bolts” review of the court forms utilized to obtain child support orders.

•Financial Affidavit
•Child Support Guidelines Worksheet
•Uniform Support Order.
The video is a component to the Resource Handbook for Victims of Domestic Abuse, a compilation of resources for library patrons who are navigating the legal system in ongoing family law cases. This program is for informational use only and does not constitute legal advice. To review a copy of this handbook please visit your local library. If you are a victim of domestic abuse you may want to contact a local domestic and sexual violence crisis center at 1-866-644-3574 (24-hour service) for help. If you are in immediate danger you should dial 911 for emergency response.

 


 
Presented by Cathy Shanelaris, Chanelaris and Schirch, PLLC, Nashua, NH & Mary Krueger, NH Legal Assistance, Claremont, NH.

Representing yourself in court can be quite overwhelming. Hiring an attorney to assist you on a limited basis is an option. The Lawyer Referral Service of the NH Bar Association can make referrals to competent and insured attorneys who may provide “unbundled” or “limited scope representation” for child support and other family law matters.  Call 603-229-0002 or request a referral online.

 

Probating Your Will Before You Die

A new state law, in effect as of July 1, 2014, allows a will to be probated before the person passes away.  Under this new law, an individual who has written a will that is likely to be contested may obtain approval of the will from the Probate Court in advance.  It proactively prevents disputes among heirs, avoiding costly litigation.

New Hampshire is one of the few states to have this type of law.

Read more about it in an article written by Paul Briand for the Seacoast Online.

If you would like to speak with an attorney about estate planning, the Lawyer Referral Service of the New Hampshire Bar Association can refer you to competent and insured attorneys who handle estate planning matters.  Call 603-229-0002 or request a referral online.

Last Will & Testament Documents

Does Forced Decryption Violate the Fifth Amendment?

Can the government force a suspect to give up the encryption keys to his/her computer hard drives, to provide evidence to convict the suspect with? Does this violate the Fifth Amendment right against compelled self incrimination? This issue hasn’t yet been directly addressed by the Supreme Court.

“Federal prosecutors have formally dropped demands that a child-porn suspect give up his encryption keys in a closely watched case, but experts warn the issue of forced decryption is very much alive and is likely to encompass a larger swath of Americans as crypto adoption becomes mainstream.”

Read the entire story at Wired.com

If you believe your constitutional rights have been violated, a consultation with a competent and insured Civil Rights attorney can make all the difference.  Call the Lawyer Referral Service of the New Hampshire Bar Association for a referral at 603-229-0002 or request a referral online.

 

keys_woodleywonderworks

Photo by woodleywonderworks at Flickr Creative Commons