Oxner Thomas + Permar Blog

Social Security Administration adds Compassionate Allowances

toxner@otplaw.com — Tue, 18 Nov 2008 08:00:00 EST

The Social Security Administration has recently announced plans to begin a new "Compassionate Allowances" initiative that aims to approve the most obviously disabled applicants immediately. It is no secret that Social Security's track record in providing quick justice for most claimants is horrible. The program will allow certain claimants with serious impairments (such as leukemia) to get benefits easily. The press release is not specific, but it appears that the medical evidence required to qualify for the program is not as stringent as other types of diseases not in the program.
The best news may be that Social Security plans to add other diseases and impairments to the list. For years Social Security has used impairment listings in their disability evaluations. However, the medical evidence required to meet a listing is usually difficult to meet or requires expensive testing. I think this move shows that Social Security is making progress on their commitment to reduce backlogs, but I suspect that the impairments included in the Compassionate Allowances program were so severe that they were going to be approved more likely than not without this new program.
You can go to www.socialsecurity.gov/compassionateallowances to see the impairments that meet this new program.

OTP Lawyers speaking around the state.

toxner@otplaw.com — Mon, 20 Oct 2008 08:00:00 EST

Amy Berry spoke last week at the North Carolina Industrial Commission's 13th Annual Education Conference. This three-day affair was attended by hundred of workers' compensation adjusters, doctors, rehabilitation professionals, and attorneys. Amy spoke about recent North Carolina Court of Appeals cases affecting workers' compensation.

Chip Permar also spoke last week at a North Carolina Bar Association Continuing Legal Education seminar on the issue of what constitutes an accident in workers' compensation. This seminar was so popular that the Bar Assocation is planning on having three video replays around the state.

Our thanks to both Amy and Chip for continuing the firm's long record of educating other workers' comp professionals.

Some Workers' Comp lawyers are ripping off injured workers

toxner@otplaw.com — Sun, 05 Oct 2008 08:00:00 EST

Strong words, I know. But it's true.

The Industrial Commission awards attorneys' fees of 25%. In only the rarest of circumstances will they award 33%. (By rare, I mean in about 1 out of 10,000 cases.) So any attorney who says they'll charge 33% if you don't settle your case at mediation is really just trying to intimidate you into settling rather than taking your case to a hearing. Now there are many good reasons to settle at mediation rather than going to a hearing. But doing so out of fear of what YOUR OWN attorney will do to you is certainly not one of them.

Another way lawyers are ripping off their clients is by charging 10 -15% of their weekly checks even if nothing is going on in the case. We believe the only reason an attorney should get 25% of the settlement at the end of the case is because they haven't been paid anything at all for months or years. Thus all the work the attorney has put in on the case is paid out of the settlement at the end of the claim. But if the lawyer is being paid $100 per week just for keeping your file on his bookshelf, and then he is going to try to take 25% of your money at the end of the claim as well, is being unfair in my opinion.

There's little doubt that I've offended a couple of attorneys out there. I'm probably not welcome in their country club circles. But it strikes me as being hypocritical when we, as lawyers, complain about adjusters who victimize our clients but then do the same ourselves.

For the record: Oxner Thomas + Permar only takes 25% fees in workers' comp claims, and we only take them on amounts we win, negotiate, or obtain for you.

Worst North Carolina Industrial Commission ruling I've seen lately

toxner@otplaw.com — Fri, 03 Oct 2008 08:00:00 EST

I often remark that I don't understand some of the rulings from the Industrial Commission. Here's an example of one I saw recently.

The attorney for the insurance company, GAB Robbins, arranged for my client to be seen for an Independent Medical Examination with a neurosurgeon. The visit went well, according to both the rehabilitation nurse and our client, but the doctor was very slow in producing the medical records from the visit. I requested the records, the defense attorney requested the records, and the rehab nurse requested them. None of us got anything from the doctor.

While this was frustrating for all of us it certainly appeared that the delay was based solely in the doctor's office. Despite this the attorney for GAB Robbins wrote to the Industrial Commission asking that our client, the injured worker, be ordered to produce the records within 15 days or face termination of her weekly checks. To her credit the defense attorney for GAB Robbins told the Industrial Commission that we had made multiple efforts to obtain the records to no avail.

To our amazement the North Carolina Industrial Commission promptly filed an Order stating that if Dr. So-and-so didn't produce the records within 15 days the injured workers checks could be terminated. How this threat against the injured worker was going to motivate the defendant's hand-picked doctor wasn't stated. Allow me to be very clear here: I don't think the Industrial Commission was trying to be unfair. The problem is that career government types don't understand the real world of dealing with doctors, adjusters, and all. That's how a skilled defense attorney can take advantage of the situation to their clients' benefit.

North Carolina Supreme Court rules against injured workers

toxner@otplaw.com — Sun, 21 Sep 2008 08:00:00 EST

Our North Carolina Supreme Court has ruled against injured workers again in a recent case. As most of you know an injured worker is entitled to be paid 2/3 of her average weekly wages if she's unable to work. What all goes into "wages?" Ten years ago the Court of Appeals had excluded fringe benefits like health insurance and vacations. That decision was largely based on the idea that it is too hard to put a value on health insurance while it is eay to calculate your hourly payrate or salary. But what about an employer who matches your contributions to a retirement plan? As employers we can tell you that many employees are willing to make a little less if there is good health insurance, vacations, and a retirement plan. Those of you who have had unions negotiating contracts on your behalf know that the cost of the benefit package is a tradeoff against the hourly rate of pay.

But now the Supreme Court has said that contributions to your retirement plan -- even if these are made explicitly in exchange for a reduce in your hourly rate of pay -- do not count toward your average weekly wage. In doing so the Court said it would leave it to the legislature to be more specific about what it intended. While this decision might not have been completely unexpected we still find it disappointing. In our minds, if the Industrial Commission or the courts are unclear about who to favor: big employers and their insurance companies on one side or workers injured and out of work on the other, they should always err on the side of helping an injured worker.

US Government bails out AIG

toxner@otplaw.com — Wed, 17 Sep 2008 08:00:00 EST

Many of you have probably heard that the United States government has bought an 80% stake in AIG. It's not surprising the company got in trouble when it paid its CEO $14,700,000.00 in 2007. That's a nice payday to a guy who ran up three years of losses in a row. Then when AIG finally fired him this June he's getting a severance of up to $68,000,000.00. You can read the full details in The Ten Worst Insurance Companies in our library. AIG is number three on the list.

I'm not here to comment on the good or bad of federal bailouts in general, but this may have an effect on everyone, even those who have claims with other carriers. First, we're hearing reports of injured workers' weekly checks bouncing and we've seen AIG bounce checks. So if you've got an AIG claim be aware that this IS happening. Now, more than ever, you need to make sure that your weekly check is in the bank and that it has cleared before you write your own checks with that money. Unfortunately, the Industrial Commission will pretty much limit AIG's penalty to covering your bank charge for depositng a bad check. In our experience they haven't made AIG pay the penalties when some of your own checks bounce as a result of AIG sending you a check they knew or should have none was bad.

Second, the business community has long been lobbying Washington to step in on workers' compensation. This is a primary goal when you hear politicians talking about "tort reform." Obviously businesses and insurance companies would prefer to pay less money to the workers they injure and would love to have Washington politiicians help out on that. So with the US Government now owning 80% of an insurance company does that make it easier to justify changing the laws on workers comp? Especially when changing those laws would make insurance companies more profitable? We'll have to wait and see.

The North Carolina Industrial Commission has raised the mileage reimbursement rates

toxner@otplaw.com — Wed, 20 Aug 2008 08:00:00 EST

Effective July 1, 2008 the North Carolina Industrial Commission has raised the mileage reimbursement rate to 58.5 cents per mile on all trips which are 20 miles or more roundtrip. They've followed the IRS' move in this regard.

We always handle this reimbursement for our clients. I've heard recently of a couple of law firms who are telling their clients to defer this to the end of the claim when you talk settlement. I think that is a terrible idea for a couple of reasons. First, with gas at or near $4.00 per gallon most injured workers need that money now, not later. Second, if you are entitled to $1,000.00 worth of mileage reimbursements over the course of your claim you should get the full $1,000.00. I suspect that those attorneys are going to take a fee off this -- so you'll only get $750.00 and they'll get $250.

That's crazy, because a contingency fee of 25% is based on the possibility that there may not be a recovery. Yet mileage reimbursements are automatic in accepted claims so there should never be a fee on them.

What's a fair amount to pay your workers' comp attorney?

toxner@otplaw.com — Thu, 24 Jul 2008 08:00:00 EST

The short answer: No more than 25% of the benefits which the attorney gets for you. We never do that.

The long answer: Some attorneys are demanding 25% of an injured worker's checks from the moment he walks in their door. We think that is taking advantage of the workers' comp claimant. That is completely unfair. We don't take cases if we cannot add value to them -- and we don't expect to get paid until we do. You should never have to give up any of your money (which you need to live on) until the lawyer has done something for you. And filing a couple of form letters with the Industrial Commission isn't enough to earn a fee. In fact it is virtually unheard of for the NCIC to award a fee of more than 25%.

As a general rule we think it is improper for a lawyer to take a cut of your weekly check unless she actually went to a hearing to get the checks started, or if he kept the checks going at a hearing. But if an attorney asks you to pay them from the minute they represent you, or if they write a couple of letter and make some phone calls to get checks started and then want 25% of your money forever, you should seriously consider whether they are in it for your best interests or just for your money.

Why does the North Carolina Industrial Commission make an injured worker look for work even when they are on Social Security Disability?

toxner@otplaw.com — Wed, 23 Jul 2008 08:00:00 EST

Why does the North Carolina Industrial Commission make an injured worker look for work even after the Social Security Administration says they are disabled? The Court of Appeals looked at the question in a case pitting a Steelcase furniture worker against her employer and Liberty Mutual.

In the case the injured worker wanted to use her receipt of Social Security Disability as evidence that she couldn't work. Unfortunately it failed because she had listed multiple ailments as the basis of her SSD claim.

The standard for getting SSD is the ability to perform substantially gainful activities. This is different than the standard for workers' comp, which is the capacity to earn wages in a competitive labor market. The comp system also has the variation of suitable employment which holds that a high-earning worker doesn't have to take a low-paying job after their injury.

We think the Court of Appeals has left the door open for the right claim to come along. To succeed I think the award of SSD must be solely on the basis of the same injury as the workers' comp case. Also I think it will be more successful for an injured worker with a high pre-injury average weekly wage. We wouldn't argue necessarily that the injured worker couldn't find any work -- just that work paying so little as to be below the substantially gainful activity threshold would be, by definition, not suitable employment. Finally, it would be ideal if the Administrative Law Judge had used a vocational expert at the Social Security hearing.

No guarantees, but it's a case I'd take to hearing.

What drives me crazy after nearly 15 years of doing workers' comp?

toxner@otplaw.com — Sun, 13 Jul 2008 08:00:00 EST

I've got a list:

Insurance company adjusters who take advantage of an injured workers' unfamiliarity with the law.

When the Industrial Commission rules against an injured worker on a technicality (I believe a tie always goes to an injured worker).

Workers' Comp attorneys who let adjusters run all over their clients.

Attorneys who do not provide educational materials to their clients to help them understand what is going on in the case.

Workers' Compensation attorneys who claim they are "aggressive, experienced, determined, etc.," but never take tough cases to hearings.

Welcome to the NEW OTP website

toxner@otplaw.com — Sun, 13 Jul 2008 08:00:00 EST

Welcome, everyone, to our new website. It's very much of a work in progress and we'll be rolling out some new areas in the next few weeks. Our firm is well-known across the state for our proficiency in workers' compensation. But we're something of a secret when it comes to Social Security Disability law (which we also handle across the state) and personal injury cases. Look to see these areas of the website booming shortly. The most exciting part for us will be the video library where we'll be posting a number of short videos we've made to help people understand the law. If you've got an idea, a question, or just a comment please let me know.