it’s all about balance

The rights of someone injured at work are often misunderstood by those who haven’t had the misfortune. The way it is supposed to work is that if one can prove that employment activity caused injury, one is eligible to receive:  60% of any resulting income loss, payment of the necessary medical expenses, help returning to work, and a modest payment for permanent bodily impairment. To be entitled to those benefits, the worker doesn’t have to show that the employer caused the injury. He or she need only prove that the injury was caused by work activity. This is the law of workers’ compensation.

However, workers’ compensation rights are determined in the context of an adversarial process. The employer’s insurance company, therefore, has the right and often will challenge the evidence that there has been an injury, that the injury happened at work, that the medical care is reasonable and/or related to the injury, the extent to which the injury is disabling, whether or not and the extent to which permanent impairment has resulted, etc. These disputes in a workers’ compensation case are not decided in court.  There is no right to a judge or jury in workers’ compensation cases. By law, the testimony and evidence is heard and decided by a hearings officer at the New Hampshire Department of Labor.

Under this law, even if negligence by the employer’s or a fellow employee causes the workers’ injury, the worker may not make a claim for the usual compensation for injury. The injured worker’s rights are limited to the above workers’ compensation benefits.  He or she has no right to sue to seek the compensation to which one  would be entitled for injury outside the workplace: 100% of past and future lost income, loss of enjoyment of life, scarring, the emotional impact of the injury, physical pain, etc. The rationale for this law is that, in exchange for the employee’s right to benefits despite the absence of any employer fault, the law gives the employer a blanket immunity from suit by all injured employees. This law, first passed in 1911, is justified as a balancing of burdens and benefits between the employee and the employer by our Legislature and our  Supreme Court in the interest of the efficiencies of the workplace.

However, a recent change in the law has suddenly increased the burden-side of this “balance” for the  injured worker.  Today our laws are being interpreted by our courts to permit  negligence on the part of the immune employer to be raised as a defense in an injured worker’s claim against a third party who contributed to cause the workplace injury. Our courts had long deemed the concept of employer fault eliminated by our workers’ compensation statute. Yet the concept  has suddenly reappeared. While the employer continues to not be legally liable to the injured worker for injury caused by its negligence, the employer’s negligence can now nevertheless be used against the injured worker.  The balance has become unbalanced.

By: Peter G. Webb


Posted in: Personal Injury, Workers' Compensation


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