You should be getting your workers' compensation benefits

Q. I injured myself on the job and have been on workman's comp since April[.] The [doctor] said I could do light duty but my job said they had no light duty for me [and] to stay on workman's comp but this week I recieved no check and can't get anyone to talk to me[.] [A]ll I get is voice mail and no one ever calls. Can they just stop paying me? [A]nd if they can doesn't my job have to provide something for me? I can't go find a job as long as I'm on workman's comp and I can't afford to not work. [C]an you help me?

A. You’re correct in believing that you should eitherget light duty work from your employer, or you should continue to receive workers’ compensation benefits. You should most definitely consult with a workers’ compensation attorney in your State to pursue this because you do have rights under the workers’ compensation law.

In addition, I’m going to give you a little background that, with any luck, will help you decide what else you may want to do. Remember as you read this that each state has its own laws in this area, so some procedures and legal concepts may be applied differently. That’s why you should consult with a workers’ compensation attorney in your state.

If you’re hurt on the job, you’re entitled to workers’ compensation benefits, the theory being that employers are required to bear the cost of work-related injuries as a part of the cost of doing business. The workers’ compensation laws in this country are designed to protect employers from the cost and expense of defending negligence lawsuits filed by their employees for such claims while at the same time affording protection to employees by providing for relatively swift and sure compensation for their work-related injuries.

If you are temporarily, but totally, unable to work as a result of a work-related injury, you are entitled to temporary disability benefits under the workers’ compensation law. Once you are able to resume work, your right to those temporary disability benefits ends. Obviously, an employer is interested in getting you back to work as soon as possible so that it (or its insurance carrier) no longer has to pay those benefits. You, on the other hand, want to make sure you’re sufficiently healed that you can resume your work without risking any additional injury.

“Light duty” is a concept that has developed to get you back to work sooner, rather than later. A doctor will release you to “light duty” so that you can return to work, thereby ending the employer’s obligation to pay temporary disability benefits. In most cases, if the employer has “light duty” work available for you, you have to take it and return to work. If, on the other hand, the employer has no light duty work available, you should not return to work because the workers’ compensation law does not obligate you to attempt to do work that you are physically unable to do. In such cases, your temporary disability benefits should continue. (This sounds like your case.)

If you are only capable of performing light duty work, and your employer has no light duty work available, you should still receive temporary disability benefits until you are: 1) able to resume regular duty, 2) your employer makes light duty work available to you, or 3) it is determined that you are as healed as you are going to get (which is called “maximum medical recovery,” or some similar appelation). Once you reach either of these plateaus, your employer can then terminate your temporary disability benefits, even if you are not back to 100% of what you were before the injury.

If you’re as healed up as you’re going to get, and you’re not as good as you once were, then you can file a claim under the workers’ compensation law for permanent total, or permanent partial, disability, depending on how badly you are still injured. A permanent total disability is just what it says, and means you are unable to work. You would be entitled to the maximum benefits allowed under your state’s workers’ compensation law for a permanant total disability. On the other hand, a permanent partial disability means that whatever injury you have only partially affects your ability to work. Your state’s workers’ compensation system has a procedure under which the nature and extent of your permanent partial disability is assessed and, if appropriate, an award of some benefits is made to you.

In all of these cases, you would be well served to consult with a workers’ compensation attorney. He or she can fully advise you of your rights under your state’s compensation laws and prosecute a claim on your behalf, if one is warranted. Good luck.

Getting off the Lease with your pesky ex-boyfriend

Q. I shared an apt with my boyfriend and I moved out. Both of our names were on the lease, but before I left the landlord checked the apt for damages, watched me turn over my set of keys to ex-boyfriend but refuses to remove my name from lease because as he quoted the ex-boyfriend has not had the electric turned back on. Can he do this?

A. I thought I knew where you were going with this, until the last two lines, but let’s see if I can sort it out.

You and your ex-boyfriend both signed the initial lease for the apartment. That makes you both liable for the rent on the apartment for the duration of the lease (which is a contract in which you agree to pay rent). As a result, the landlord is under no obligation to remove you from the lease, whether or not you still live there. Generally, since you both signed the lease, the landlord can come after either you, or your ex-boyfriend, or both, for any lease payments that are due for the duration of the lease, even if on or both of you move out.

To get your name off of the lease, when the end of the term is near, you should notify the landlord in writing that you will not be renewing the lease when it expires. Your lease should contain language about when you must give notice about non-renewal, so read it carefully. That should cover you for any payments after your lease expires.

As far as the issue about the electricity is concerned, I’m not certain what that has to do with the lease, or with the landlord. If the landlord is paying the utilities, and you’re reimbursing him for them, the electricity should be on and remain on during the duration of the lease. The landlord will then simply pay the electric bill out of each month’s rent. If, on the other hand, you and your ex-boyfriend had the utilities in one or both of your names, whoever is on the bill must pay for the utilities. I must confess that I’m at a loss as to what the electricity has to do with your name on the lease, so I’ll just say that you’ve got to pay for the electricity if your name is on the bill, and you don’t have to pay for the electricity if your name is not on the bill. If you’re on the bill by yourself and you’ve moved out, advise the utility and ask them to put the your boyfriend on in your place. They may ask for confirmation that he’s going to assume the bill, but you should be able to work that out.

Investigating things at work

Q. I would like to know if an employer has the right to question the employees 'peers' concerning an unproved alleged act of misconduct based on hearsay that results in the employees' termination?



A. In a word, “yes.” If you, as the employer, feel the need to conduct an investigation of an employee based on the unconfirmed word of a co-woker, you should do so. In fact, depending on the circumstances, you might be found at fault if you didn’t. Suppose, for example, that Co-worker A told you that Co-worker B assaulted a customer in the parking lot. You have nothing to go on but the hearsay statement of Co-worker A. However, if you didn’t investigate the claim (by talking to other co-workers, to other customers, and to Co-workers B) and Co-worker B subsequently assaults a second customer, and the second customer finds out that you heard about the first assault and did nothing, the second customer could file a claim against you, asserting negligent employment, negligent supervision, and general negligence by keeping a suspected assailant on the payroll and doing nothing about it. Go ahead and investigate.

Getting a Power of Attorney Form

Q. What steps are necessary to obtain a power of attorney for a disabled spouse?

A. It should not be difficult to obtain a power of attorney for your spouse, provided, of course, that when you say “disabled,” you mean something along the lines of “confined to a wheelchair” or “bedridden” and not “comatose” or “insane.” In the latter two instances, your spouse is not considered legally competent to execute a valid power of attorney form.

For your spouse to be legally competent, your spouse must be lucid, in charge of his or her mental faculties, and aware of the nature and quality of his or her acts. You can be bedridden and still be competent to execute a power of attorney form. Essentially, if your spouse is mentally capable of carrying on his or her own personal business affairs, your spouse is likely competent to execute the form.

If your spouse is competent, the only other thing you need to know is the type of power of attorney form your spouse wants to execute. For instance, if you’re trying to close the sale of a house you own jointly with your spouse, a limited power of attorney form is sufficient. If, on the other hand, your spouse wants you to take over running his or her business, you’d likely need a general power of attorney form. Finally, if your spouse is more concerned with health care questions, you’ll want to look into drafting a living will and a health care power of attorney. In any of these cases (particularly the last two), you should have no trouble finding a local attorney who will work with you, relatively inexpensively, in drafting a form that is appropriate for your specific needs.

When Teens of Divorce Play the "Other Parent" Card

Q. I have had permanent care,custody and control of my 15 yrs old son [for eleven years]. My son wants to live with his father now. If I give the father custody, will I be required to pay child support to him? Would we have to go through the court system to do this? Or can we make our own agreement?

What are my rights and how much control do I have over this situation?

A. Let me answer your last question first. You have total control over the situation as far as deciding whether to give in to your son’s wishes, and whether you want to trust the father with caring for a teenager with whom it appears he has not lived for over a decade. That’s your call.

As a father myself, I’ve been through the teen years already (and they’re coming around again, too, with my second son), so I’m sure part of your question is the result of whatever teenage angst your son may be dealing with. As you probably know, teenagers often say things and do things simply to get a reaction out of you, or just to be contrary. My oldest threatened to move out several times, usually in a heated moment, until we told him that he could do so, provided that he left all of the stuff in the house that wasn’t his -- things like the DVD player, the TV, the fully-stocked fridge, the mother who did his laundry. He stopped making that particular threat after that. But I digress.

I’m guessing that your divorce decree spells out the particulars of child support, visitation, medical coverage, and all of the various issues that go with raising a child. Those are always subject to modification upon a “change in circumstance.” It can be done by making an application to the court and asking the court to sort it out. It can also be done by agreement between the parties, and then memorialized in a court order. It can also be done without having to go to court at all. However, depending on the relationship you have with your ex, at the very least, you most likely want to memorialize whatever modification you make to the custody arrangement in writing, and have that agreement witnessed and notarized, just so everything is clear.

As for “giving the father custody,” it may not be necessary (or prudent) to do that. You can modify the custody arrangement to be “joint,” and make the father the residential parent (meaning that’s where your son would live). Depending on how close you live to your ex, you could share residential custody, three days at his house and four days at your house. (For schooling purposes, this would probably only work effectively if you both live in the same town.) These are just possibilities; there are dozens of other permutations to custody arrangements.

Child support is a separate issue. If you are receiving it now and your son moves in with his father, you will no longer be entitled to receive it. If he stays with you part-time, the payments would likely be reduced. Child support payments are usually affected by each parent’s income, and each state usually has a system for computing the amount of child support due from the non-residential parent to the other based on income, need, and various other factors. Of course, if you both agree to payments that are different from your state’s guidelines, you can incorporate them into an agreement and the courts will generally defer to your wishes.

Finally, as to the wisdom of this move in general, I don’t know your personal situation, and I don’t know what kind of relationship you have with your ex, or he has with your son, so I can’t begin to tell you whether this would be a good move for you, or your son. As I mentioned above, I suspect that your son’s comments are as much a part of the contrariness that goes with being a teenager as with any actual desire to move in with his father. I am aware of many instances when a teenager expresses a desire to move in with the other parent, only to find that the non-residential parent doesn’t really want the child moving in with him or her. You may wish to spare your son this unique type of humiliation by discussing the matter with the father (if your relationship with him permits such discussions) so that he’s aware of the desire, and you’re both on the same page when you discuss it with your son.

As a final note, your son is 15. In less than three years, he’ll be able to do what he wants anyway. (In some states, he can already petition the court for a declaration of emancipation, if he wants to.) You can always use that carrot as a way to delay this particular decision, along the lines of, “You’re stuck with me until you’re 18. After that, you can do what you want.”

I know how hard it is dealing with a teen. I wish you well.

Revenge is a dish best served cold

Q. Can a husband whose wife is leaving him for someone else and happens to be a therapist file a non founded claim of sleeping with a client go to the board of ethics to attemt to hurt her, and what will happen. [T]he client he said has never filed any complaint and dosent [sic] know their records were taken yet. [C]an he harm her if no complaint from anyone was ever filed against her[?]

A. Vengeful, much?

I can’t tell who’s writing this. It may be the husband, or it may be an acquaintance of the husband. I also cannot tell for sure who the players are. However, there’s enough ugliness in this question that I feel compelled to respond to it.

As a preliminary matter, I will never understand why one person, even if rejected by a spouse, finds it necessary to inflict harm (emotional or physical) on the rejecting spouse, simply for the sake of doing it. Life is too short to be consumed by such overriding hatred and bitterness. We’ve all been hurt, for goodness sake, and we’ve all been rejected (some of us more than others). We all get over it in our own time and, believe it or not, Husband here will too, without the necessity of lashing out for no particular reason except to be evil.

That said, let’s see if I’ve got this straight: Wife is a therapist and is leaving Husband for Other Man. Husband has, somehow or other, taken (or otherwise gained access to) the Wife/therapist’s client files and wants to assert a baseless claim in front of the ethics board, apparently in the name of one of the clients, that the Wife/therapist has been sleeping with that client. (It may be that the Other Man is also the client in question, but that’s not clear.) Husband now wants to know if that will hurt the Wife/therapist.

This is not a legal question, except for the legal ramifications that may arise as a result of Husband’s immature nastiness. I’ll get to those in a minute.

The answer to the question is: no. We already know the claim Husband wants to file is baseless. How will the assertion of a baseless claim hurt Wife? If the ethics board even bothers to investigate a baseless, unsubstantiated, and presumably anonymous claim, I cannot imagine the circumstances under which the ethics board would impose any sanctions on Wife.

I can, however, very easily imagine a scenario where Wife finds out what’s going on and presses criminal charges against Husband. Those charges would, of course, depend on the circumstances under which Husband came into the possession of Wife’s files. I’m thinking that if Husband broke into Wife’s office to get the client files, the prosecutor would be more than a little interested in investigation that particular breach of the law. I’m also thinking the clients whose privacy rights were violated might also consider filing civil claims against Husband. Nice how vengeance works, isn’t it?

More importantly, Wife’s divorce attorney will probably be salivating over this turn of events, once he or she discovers Husband’s nefarious conduct. Husband can say goodbye to any favorable inferences that any judge who hears his case might have drawn. It’s far better in a divorce action for Husband to assume the role of cuckolded spouse, thereby donning the mantle of “victim,” rather than take on the part of “crazy stalker” who breaks into Wife’s office, steals her files, asserts false claims against her, and generally tries to make her life miserable for no particular reason other than he’s a jerk. That’s all the explanation Wife would need for her decision to go with Other Man, and that’s all the judge would need to bury Husband under the courthouse. Figuratively speaking, of course.

Taking on the education system

Q. My son is a bright articulate, eleven year old who was retained in the second grade after the newly out of college school psychologist deemed he had no learning disabilities, four years later, he is going to flunk again, despite him recently being diagnosed with ADD [Attention Deficit Disorder], (April of this year), and our family going through a terrible trauma that has been ongoing since January, and not to mention the effects his asthma medication has on his attention span. I was told pretty much, that if I didn't like it too bad, he's being held back, period. End of story. In all of this time, never once was a multifactor evaluation offered, nor was I told of an IEP [Independent Education Program] program, or the fact that he has asthma entitles him to both an IEP, but a tutor paid for at the expense of the school. None of these things were offered or explained to me the past four years, my basic question is this, can I fight his retention and win? If so, what are the best measures for me to take? Can a school legally retain a child more than once in their grade school years? If it helps, I live in the state of Ohio. Thank you.

A. Your question takes us to the somewhat shadowy realm of administrative bureaucracies, of which the state Department of Education may be the most difficult to navigate. First, let me give you a little background to set the stage.

The education of our children is usually in the hands of local school Boards of Education. The members of these boards are the citizens in your community and are usually elected by the town in which they live. They work in conjunction with the Superintendent of your school system, who is roughly analogous to the “president” of the schools. The Board is somewhat similar to the “congress” of your schools. Between them, they set policy, make and enforce rules, and determine such things as curriculum, teachers benefits, budgets, after school programs and, of course, retention policies. If, for instance, the Board determines that it is fitting, in appropriate circumstances, to hold-back a child twice, three times, or even ten times, in his or her academic carreer, it is within its power to do so.

You appear to be aware (even though you state that no one at the school told you about it) that there are programs available for kids with special needs, such as independent education programs and counseling and evaluations for special needs kids. Each school board has its own policies and procedures on how and when to offer these various programs to parents, which are often based on or directed by state statutes and regulations.

You, as a parent, do have a responsibility to investigate these programs, request them from the school if you believe that they are appropriate for your child, and follow-up on your investigations to make sure that what you want for your child is made available to the child.

Local school boards have a great deal of power in administering their schools because the theory is that local boards are more familiar with, and thus better suited to address, the particular needs of their respective communities. This power is not unbridled, nor is it absolute. You can appeal decisions of local school boards. However, those decisions are often difficult to overturn.

Each state has its own appeals process for decisions made by local boards, so I cannot give you a definitive answer on precisely what to do. However, generally, your first step is to raise your concerns directly with the school. Start with the teacher, then go to the principal. Make certain that you document everything that happens by writing a self-serving letter to follow-up, something like, “Dear so-and-so, This will confirm our conversation on such-and-such a date about thus-and-so, after which you refused to do what I asked.” Don’t get personal in your letters; you should avoid using phrases like “you mealy-mouthed little worm,” even though the phrase may be accurate. Just stick to the facts. Keep a copy of your letters for your files, because you will need them later on in your appeals process to show what’s been done (or not been done).

If the principal doesn’t give you satisfaction, you would then bring your issue to the school board (usually at a school board meeting). From their, you would appeal to the state’s Department of Labor and, if you still don’t get satisfaction, most states provide for an appeal either to an administrative law judge or to the law courts (depending on your State’s rules for such things). Ordinarily, you have to take each step in the process to pursue an appeal before you can raise an issue in a court of law. It’s a concept in the law called “exhaustion of remedies,” which simply means that you have to take all of the steps available to you before you can assert a claim in court.

Sounds like a hassle, right? It is. Having raised a few issues with my own local school board, I can tell you that the wheels of justice in this area grind eternally slow, and satisfaction is often very long in coming. There are, in fact, law firms that concentrate on education law because it can be a very specialized and time-consuming field.

To win this kind of case, you need to have documentation from your doctors of your son’s condition. A written report with specific recommendations by the doctor is extremely helpful (and essentially a requirement) to have any hope of getting the school to help you out.

You should be able to take the first few steps yourself. Take your reports, diagnoses and concerns to the teacher, then the principal, then the school board. Be calm, be cool, and most importantly, be persistent. The adage “the squeky wheel gets the grease” is particularly apt when it comes to school boards. They tend to address the problems that are immediately before them and of which they are made constantly aware.

If the school board doesn’t see things your way, you should then seriously consider consulting with a lawyer familiar with the educational laws of your state. That attorney can better evaluate your case and your chance of success on the merits. Good luck.

I Like Easy Questions

Q. Can I appeal a restraining order issued against me?

A. Yes.

Who do I have to see about copies?

Q. Thank you for your help! We're an art library, and we're trying to find this information for our own use:

An artist created paintings of "Stations of the Cross" and then gave them to a church as a gift. The pastor of the church (now deceased) gave a photographer verbal permission to photograph the paintings and to reproduce the photographs. Photographer now wants to let the photos be used in a commercial video. Does the photographer own copyright to the photos, or does the church, or artist?

For paintings and sculpture on display in a museum: After our photographer received permission to photograph art works of a LIVING artist, the photographer photographs the work and wants to reproduce the photos. Does the photographer own copyright to the photos, or the museum, or the artist? (For this same question, if artist is deceased, would photographer own copyright, or museum, or artist's heirs?)

A. Copyright law is yet another of those esoteric areas of the law in which it seems only a select few actually know what is really going on. As you might expect, there’s no simple answer to either of your questions. I mean, I could simply say “The photographer owns the copyright to his pictures,” as the answer to both parts of your query, and that might be enough, but the reality is that it’s probably a little more complicated than that. Let me give you some general information about copyrights. Then you can decide how much additional information you might want from a copyright attorney in your area.

First, you should understand that there are federal copyright laws, state copyright laws, and common law copyright principles. The federal laws generally govern, but can be modified by state laws to the extent that those laws do not contradict the federal.

As to the first part of your question, you say that the artist who painted the “Stations of the Cross” (and therefore owned the copyrights to them). The artist then “gave” the paintings to the church as a gift. You should make certain that the paintings were a “gift” as opposed to a “work for hire” that the artist completed at the church’s request. If the church commissioned the paintings, it owns the copyright. If, however, the artist painted the paintings on his own and then gave them to the church, the artist owns the copyrights ... unless he simply abandoned them. (See, it does get complicated.) Under the common law, there is a test of the artist’s intention, which might eliminate the copyright interests all together. Did the act of the artist demonstrate an interest either in abandoning his rights in the work or in dedicating the work to the public? If so, it could be argued that there are no longer any copyright interests attached to his paintings.

Anyway, regardless of who owns the copyright, under the Federal law, the copyright owner has the exclusive right to do or to authorize five basic uses of the copyrighted work: 1) reproduce the work, 2) prepare derivative works based on the work, 3) distribute copies to the public, 4) perform the work publicly, and 5) display the work publicly. The Federal law also recognizes that certain uses of copyrighted material, even without the copyright owner’s permission, are socially useful and “fair,” such as using the work for criticism, comment, news reporting, teaching, scholarship, or research. This is a fact specific question, and is the basis of many of the defenses to copyright infringement cases.

Assuming the church did obtain the copyrights to the paintings, when the church, through its pastor, gave permission to a photographer to take pictures of the paintings and reproduce the pictures, the church did not give up the copyrights to the the paintings; it simply authorized reproduction of them.

What does all of that have to do with the photographer’s copyrights to his pictures? Well, by taking photos of the paintings, the photographer arguably created a separate work of art to which he owns the copyrights. Except....the photographer’s copyright interests in his photos could interfere with the church’s copyright interests in the paintings. Now, this is where it gets really fun. If the church knew the photographer was going to publish the pictures for the world to see, it could be argued that the photographer has the continuing right to further display the pictures of the paintings in the form of a video tape without infringing on the church’s copyright interests. Of course, the nature and extent of the initial agreement between the church and the photographer would control. For instance, what, exactly, did the church give the photographer permission to do? Did the photographer pay any royalty fees for taking pictures of the paintings? If so, were any conditions placed on his use of his pictures? Ideally, the initial agreement between the photographer and the church would have covered all future uses of the photos of the paintings. If it didn’t . . . well, that’s why we have lawyers.

As for Part II of your question, the same principles apply. The artist who created the original work (or his estate) owns the copyright to that work. The photographer owns the copyrights to his photos, to the extent that his copyrights do not infringe on the artist’s copyrights. However, several important issues can impact on each person’s rights. For example, what are the circumstances under which the photographer took pictures of the artist’s work? Did he pay a royalty fee? Did the artist give him permission? Did the artist condone the use? Is the photographer submitting his photos to an art critic, or an author of an art text book, or is he simply taking pictures and hanging them in a gallery as part of an original show?

The best bet is to have an understanding or agreement between the owner of the copyright to the art and the photographer before the pictures are taken. That agreement should define the scope of the photographer’s use -- both present and future -- of the photos. In any case, if you’re facing issues about potential infringements to copyrights, you would be well advised to consult with a copyright attorney in your area.