Attorney Blog

Doctors For Sale! Return to Work Notes For Sale! Case-destroying Opinions For Sale!

toxner@otplaw.com (Blog Author)69721 — Fri, 25 Nov 2011 08:00:00 EST

In a dramatic move to increase the stranglehold that workers' compensation insurance companies and employers have on injured workers, the North Carolina legislature has passed another provision which will have immediate effect on all workers compensation claims.

Whether your claim is accepted or denied your employer and their insurance company can force you to see a doctor of their choosing. What are the limitations on this?

1.   The scheduled appointment has to be at a "reasonable time and place." Given that the Industrial Commission already routinely approves travel of up to three hours for a visit to be "reasonable," this isn't much of a limitation at all.

2.   The employer, the insurance company, the private investigator, or any other person who the defendants designate an "agent" can speak privately with the doctor before he sees you. No one ever has to reveal what was told to the doctor. At all. Ever.

3.   The employer, the insurance company, the private investigator, or any other person who the defendants designate an "agent" can send written material to the doctor. They do not have to provide you a copy of these to you before the doctor sees you. The doctor does not have to reveal what documents he has. So you have absolutely no idea what has been said about you, whether it is accurate, or even if it is really about you. (Don't laugh, private investigators routinely film the wrong person... so now the doctor may be reading a report describing "you" doing all kinds of activities when it isn't even "you.")

4.   If you disagree with any of this, the defendants may suspend all of your benefits until you comply with their demands. Of course if the defendants don't get around to rescheduling that doctor's visit it will be impossible for you to comply. Clever, no?

In an effort to be fair the North Carolina legislature did put in two safeguards. First, if you would like to hire a doctor to travel across the state and attend this visit with you at your own expense you are allowed to do so. You may not use a rehabilitation nurse or any other type of medical professional. It has to be a medical doctor. Second, if the doctor issues a written report (but not if he just gives a verbal report) then a copy of it, along with the documents sent to the doctor (but not a summary of any oral communication) within ten days of receipt by the employer.

Is that a safeguard? No. It's laughable. What the defendants will simply do is advise the doctor to not submit his written report until immediately prior to his deposition. Thus the defendants can have a written report and take the doctor's deposition but withhold everything from you even while the doctor is giving a sworn opinion.

Is all hope lost? No. But it is becoming increasingly difficult. There are still some technicalities and arguments which can be made on your behalf. But now, more than ever, it is requiring the skill of an experienced attorney who knows exactly what will and will not work in your claim.

Two Big Changes in Workers' Compensation

toxner@otplaw.com (Blog Author)69723 — Fri, 25 Nov 2011 08:00:00 EST

Big Change Number One.

Currently if you are injured and you cannot return to suitable employment, you are entitled to draw workers' compensation benefits for life. For nearly twenty years Todd Oxner has been telling people if they live to 102 and die in a bar room brawl they'll get paid until they're 102. No more. "Lifetime" claims are now limited to 500 weeks unless you are completely disabled from all work - not just suitable employment. Basically it's going to be 500 weeks unless you are in a wheelchair. As long as you can work as a Wal-Mart greeter on a stool it's 500 weeks. It's somewhat more complicated than that and we will deal with that in an upcoming article. But it won't apply to most people at all.

Big Change Number Two.

If (when) you return to work at reduced wages you will be entitled to draw wage loss for a period of 500 weeks. That is an increase from the 300 weeks under current law. Same as now, any week of total disability paid is deducted from the 500 week total. But in a positive twist, the 500 weeks is not a timer that begins on the date of accident. If your employer brings you back to work in transitional duty or make-work for a period of time that period is not deducted from the 500 week total.

It is important to note that these changes apply to cases arising after June 24, 2011.

There are some significant twists to these provisions which we will be addressing in upcoming weeks. In the meanwhile, however, if you have a new case, most of the strategies which were used before are now not going to work. Call OTP and let us help you work out a roadmap to your success in workers' compensation.

If your employer is trying to bring you back to work

toxner@otplaw.com (Blog Author)69724 — Fri, 25 Nov 2011 08:00:00 EST

If you haven't reached maximum medical improvement your employer can force you to do ANYTHING and cut off your weekly checks.

A few years ago Chip Permar handled a case where the employer called an injured person back to work and had him sitting in an unheated, unlit trailer on a construction site doing absolutely nothing in the middle of winter. The scenario was so over-the-top that it became almost an urban legend in terms of how illegal it was. Not any more.

The court of appeals recently permitted an employer to return an injured employee to a make-work position if it was therapeutic; that is, if performing the light-duty job would help the injured worker get better then it was acceptable. The new law takes this idea and eliminates any need for a positive benefit to the injured person. The law explicitly states that prior to maximum medical improvement the injured worker may be forced to return to "noncompetitive employment." What does that mean? It means sitting in an unheated, unlit trailer on a construction site doing absolutely nothing in the middle of winter.

You might ask yourself; well I'm going to get paid aren't I? The answer to that is "yes." You will get paid. But the danger - and one that we have seen occur literally hundreds of times - is that as soon as you go back to work the employer finds an excuse to fire you. They can claim you were late to work, had a poor attitude, or were incompetent, and they will fire you. Will the adjuster turn your checks back on? Don't count on it.

If your employer is trying to bring you back to work before you have reached maximum medical improvement it is almost imperative that you have an attorney representing you. That offers basically the only layer of protection between you and almost certain disaster. In our experience employers are much less likely to play games when you already have an attorney. They normally rely on your ignorance of the law to help them implement their plans. Thus having a lawyer on your case will make them pause. It isn't a guarantee but it certainly increases your odds of survival.

From the "If You Can't Beat "Em, Join 'Em" Department

toxner@otplaw.com (Blog Author)69725 — Fri, 25 Nov 2011 08:00:00 EST

Most all of you know about our love/hate relationship with Facebook. We love it because it gives a chance to do all the stuff you do on Facebook. (Let's face it, if I try to actually detail what I do on Facebook everyone will laugh. I don't actually do much more than put pictures of my kids online and talk to old college friends from Canada...) What we hate about Facebook is all the trouble it causes for our clients whose taken-out-of context pictures and posts are used against them when they put in their claims.

Despite that, we are happy to announce the new Oxner Thomas + Permar Facebook page!!! We are just building it as we speak but enough of it is live now that we want you, yes YOU, to Like us! In addition to all the educational materials we have on our website we will be putting pictures and articles about our community service projects as well as our extended OTP family. This will let us share some of our personal sides with all of you.

As many of you know we have had a policy that we did not become "friends" with clients in an effort to protect everyone's identity. We've set up the page so that only the site administrators (three of us in the firm) are the only ones who will se who has "liked" us. Additionally, for the foreseeable future only the administrators will be writing on the wall. Again, we want to protect the identity and privacy of our friends.

So please "like" us and check back often so that we can keep you completely up to date on what is happening in the legal world of personal injury, social security, workers' compensation cases, as well as what is going on at Oxner Thomas + Permar!

An Eleventh Way

toxner@otplaw.com (Blog Author)69726 — Fri, 25 Nov 2011 08:00:00 EST

An Eleventh Way to Wreck a Workers' Comp Claim

A lot of clients come to us concerned about private investigators. In workers comp cases these guys usually aren't too subtle. Often they park directly across the street from your house in an SUV with darkened windows. Then when you leave to go to Biscuitville they fire up and follow you in an attempt to prove that you couldn't possibly be injured if you're capable of driving to a fast food restaurant. OK, that might be a little sarcastic. But generally private investigators are more of a nuisance than a hazard.

Our three rules:

1. Don't get caught doing something you specifically told a doctor you cannot do. The doctor will think you're a liar and won't believe what you tell him.

2. Don't get caught doing something clearly outside of your restrictions. If you can do it for eight hours at home you could probably do it for eight hours at work.

3. Don't get caught working a different job, get caught taking your paycheck to a bank, and then get caught going to a bar to spend your paycheck. We don't really have to explain why this is a bad idea.

But I have discovered a fourth instance which I have never warned a single client about. This error is so catastrophic that it really could be The Eleventh Way to Wreck a Workers Comp Claim. Don't get caught dressed in drag competing in a spoon race. Here's the whole story:

A jailer in Naugatuck, Connecticut, Garrett A. Dalton, brought a workers comp claim for a back injury. While out of work and drawing disability checks his local radio station ran a contest to win tickets to a Hannah Montana concert. This particular contest required (male) contestants to put on dresses and high heels and then do a 40-yard dash while carrying a spoon with an egg balanced on it.

As you might imagine this was an amusing scene and a local television station covered the event. Sadly for Officer Dalton, he did not win the race or the Hannah Montana tickets. Worse yet, a co-worker saw the TV broadcast, recognized Dalton, and alerted their employer. Next thing you know, Dalton was criminally charged with workers compensation fraud.

As humorous as this is, there is an important lesson here. Workers' comp adjusters are becoming increasingly sophisticated in nosing around in your business. It is not at all uncommon for them it illegally obtain medical records from your family doctor, try to check out your "My Space" or "Facebook" pages. Our advice is simply tell your workers' comp doctor the whole truth and you're not going to get into trouble.

Seven Things Which Let a Workers' Comp Adjuster Know She'll Probably Win Your Claim

toxner@otplaw.com (Blog Author)69727 — Fri, 25 Nov 2011 08:00:00 EST

1. Injured Workers Without Attorneys. This is almost a no-brainer. The Workers' Compensation Act is so complicated and so full of loopholes that it takes a serious professional to know it all. So when a seasoned adjuster goes up against an injured worker without an attorney at his side, it's almost a guaranteed cheap settlement for the adjuster. And saving money for the insurance company is Job #1 for the adjuster.

How OTP works to your advantage. Whether it's getting reimbursements for your mileage; making sure your overtime, bonuses, or per diems were included in your average weekly wage; or demanding the workers' compensation insurance company pay for your yard care or housecleaning if you cannot do it, we never let an adjuster cheap out on your case.

2. Injured Workers With Attorneys Who Aren't Aggressive. Even better than an unrepresented injured worker is one with an attorney who doesn't do anything. Most of their clients don't realize how easy it to switch to an attorney who's going to get things done. If the attorney is too slow-moving to even return phone calls or meet face-to-face with clients, he'll never get the adjuster to back down.

How OTP works to your advantage. We are known widely for being just about the most aggressive firm in North Carolina. Our workers' compensation attorneys take more cases to hearings than any other - and that reputation pays off even for those whose case doesn't need to go to hearing. Adjusters know they'll never get rid of us easily or cheaply.

3. Knowing an Injured Worker Needs the Weekly Checks. Workers' Compensation adjusters know the Industrial Commission lets them withhold checks for no good reason. They can do this for three weeks at a time and as often as they like if an attorney doesn't intervene. If an adjuster can do this a few times, the injured workers will be desperate to settle - and usually for the first or second offer.

How OTP works to your advantage. We move quickly to obtain orders from the Industrial Commission requiring timely payment to you. We've even filed motions to have workers' compensation adjusters held in contempt if they continue to play games with your checks. The result is that most adjusters have learned not to bother our clients.

4. Doctors Who Will Return You to Work Without Restrictions. Experienced adjusters know this is a golden opportunity for them to cut your claim's value immediately. So they hand-pick the doctors in advance to increase the chances this could happen to you. In most cases the Industrial Commission will let the insurance company adjuster cut off your weekly workers' compensation checks, with little advance notice, unless you act fast to prevent it.

How OTP works to your advantage. We've developed a system for combating this. As soon one of these company doctors attempts to release you without restriction, we file a series of legal documents which require the workers' compensation insurance adjuster to hire an attorney, provide you with a visit to a new doctor, and ultimately stall off any attempt to cut your checks off.

5. The Myth That Attorneys Will Take Most of Your Settlement. This myth is spread by adjusters, doctors, and rehabilitation professionals, but it's often far from the truth. The adjusters' own research group found that injured workers with attorneys average settlements that are 2.7 times greater than those without a lawyer. Workers' Compensation Adjusters know that attorneys shouldn't charge more than 25%, so even after paying a fee the average injured worker will get more than twice as much having an attorney as they would otherwise.

How OTP works to your advantage. Note very clearly here: We think it is a complete ripoff for attorneys to charge on ongoing benefits they didn't get for you. We think fees should be limited to 25%. We think fees should be paid only when we win or negotiate something for you. And we don't take cases where you're not going to come out ahead after paying a fee.

6. Employers Who Offer Light Duty. The adjuster just wants to get you off of her payroll and back onto the company payroll as quick as possible. What happens after that isn't her business. In fact, if your employer can find a reason to fire you then you'll be on no one's payroll at all. Best yet, for the adjuster anyway, is that in most situations she won't have to put the injured ex-worker back onto weekly checks.

How OTP works to your advantage. Just as with full-duty return to work notes, we have a system in place which immediately smothers the adjuster and the employer with legal paperwork to make sure that any proposed light duty job is legal, is beneficial to you, and does not jeopardize your claim. This is a highly complex area of the law and it is one where we've seen hundreds of injured workers have their claims go down the drain because they were not protected by tough lawyers.

7. Rehabilitation Nurses and Vocational Rehab Counselors Who Break the Rules. These Rehabilitation Professionals are hired by adjusters to help keep costs down. But the RPs charge as much as $85.00 per hour to do this. How does that save the adjuster money? All too often it's because the RPs are violating the Industrial Commission's Rehab Rules. And they do it in a way which almost always guarantees a win for the adjuster.

How OTP works to your advantage. RPs have a begrudging respect for us. Many of them will privately concede that we make them tow a line that few other lawyers do. We keep databases of rehab professionals from different files and note their strengths, weaknesses, and areas where we've had to back them down. We don't go into dealings with these people without being fully prepared, and we don't let our clients do so either.

The Death of Doctor-Patient Confidentiality

cpermar@otplaw.com (Blog Author)69728 — Fri, 25 Nov 2011 08:00:00 EST

As far back as we can remember patients have had the comfort of knowing that what they said to their doctors was going to be kept confidential. Sure, there were medical releases, and occasions when medical records were produced. And in workers' compensation cases the insurance companies could send rehabilitation nurses (most of whom are upright, but more than a few see themselves as detectives for the adjusters) to the medical appointments. But even in those cases there has been a longstanding rule that the employer or the adjuster cannot simply call up the doctor behind your back and grill them or fill the doctor's head with misinformation and distortions.

Any sense of decency and privacy came to an end with the new workers' compensation law passed in June. And - most importantly - this part of the law is in immediate effect. That means even if the rest of your case is governed by the old law you have lost any meaningful sense of privacy thanks to the new legislature.

What can the adjuster or employer do?

1. Get any medical records that they (in their own opinion) is relevant - even in denied claims. Unfortunately the Industrial Commission routinely permits these records to include gynecology, mental health and marriage counseling matters.

2. Withhold copies of the records received for up to thirty days. There is no stated penalty for withholding them for a longer period of time.

3. Write to the doctor and ask questions about your diagnosis, treatment, work restrictions, causation, and permanent disability.

4. If, in the opinion of the adjuster or the employer, they wouldn't be able to get an answer in writing they may call the doctor and chat him up. But they have to give you a summary of what the doctor said - within two weeks.

5. Mail the doctor additional "evidence" that they adjuster or the employer thinks would be "helpful." This would include affidavits from company nurses or co-workers or private investigators saying that you didn't really hurt yourself at work, or that they have seen you doing all sorts of things when you are supposed to be hurt.

Is this the end of the world? No, but it can cause a lot of headaches and embarrassment for injured workers. There are ways to fight back. In an effort to make this horrible law appear "fair" the legislature has put in some feeble safeguards. But the problem is they are so complicated that the average worker would have no idea how to protect themselves. Additionally, the section of the Industrial Commission which rules on most of these issues has a history of simply not seeing the big picture. Therefore it requires an aggressive and vigilant attorney to protect you from these invasions of your privacy.

As always we are here to talk about your case and how we might be able to help you. There is never a cost or obligation for doing this.

Retaliatory Employment Discrimination Act

lstegall@otplaw.com (Blog Author)69730 — Fri, 25 Nov 2011 08:00:00 EST

The Retaliatory Employment Discrimination Act ( or REDA, as it is more commonly referred to) was designed to protect employees who are terminated, demoted, or have other adverse action against them, because they exercised their rights under Workers’ Compensation or other specific circumstances. Every termination claim is not a REDA claim – North Carolina is still an employment-at-will state. But if you think your employer has retaliated against you because you exercised your rights under workers’ compensation, we can discuss the situation with you and see if you have a case. Be certain to contact us as soon as you can – you have 180 days from the date of the action to file a REDA claim with the NC Department of Labor. You must call 1-800-NCLABOR to request a complaint form to get it started. Let us know if we can help you at any stage. For more information, go to the NC Department of Labor website here.

Were You Injured by Someone's Negligence?

toxner@otplaw.com (Blog Author)69322 — Sun, 20 Nov 2011 08:00:00 EST

If the answer to that question is yes, then we either have very frustrating news or great news for you. We wish it were just good news all the time but it never is... Here's the follow up question: if you were injured by someone else's negligence was that person employed by your employer?

If you were injured by the negligence of a coworker it is essentially impossible to bring anything but a workers compensation claim against your employer. On the other hand, if you were injured by the negligence someone outside of your company you can bring a lawsuit against them - in addition to your workers comp claim.

Here is where it gets tricky... Because your employer lost out due to that other persons negligence your employer can also bring a claim against that negligent person. But only one claim can be brought. We've seen situations where the employer slips in and tries to collect all the available money without ever telling the injured worker about it.

Another problem area occurs when the injured worker does all the work to recover money from the negligent party and then the workers comp adjuster swoops in and tries to take most or all of it. Can she do that? As awful as it seems under North Carolinas anti-injured worker leanings, yes she can. there are certain things which you can do to protect yourself from that.

At Oxner Thomas + Permar we have substantial experience is coordinating the workers compensation and personal injury cases so that you get the maximum combined recovery. This is a very tricky area of the law. So, if you believe you were injured due to someone else's negligence give us a call so that we can help explain your options.

The adjuster is sending you to the doctor... are you safe?

toxner@otplaw.com (Blog Author)69323 — Sun, 20 Nov 2011 08:00:00 EST

Just because the adjuster is sending you to the doctor doesn't mean you're out of the woods on your case. All it really means is that she is having her hand-picked doctor be the one to create evidence about your accident, injury, and disability.

Even if the adjuster is also paying you weekly checks you need to make sure that she had filed the appropriate Industrial Commission forms. In most cases these will be either a Form 60 or a Form 63.

If the adjuster gives you a Form 63 you should be concerned. This particular form was developed by the Industrial Commission to give the insurance company a chance to back out of the claim. Basically it means that the adjuster can control your case for 90-120 days and then, if she doesn't like the way it is going, deny the claim. A Form 60 provides a bit more safety to you because the adjuster cannot back out of it.

The other thing to be very wary of is the use of either a Form 60 or a Form 63 as a "medical only" acceptance of the claim. What this means is that the adjuster is accepting liability for the need of medical treatment but is not agreeing to pay weekly checks if you go out of work. The problem with this is two-fold. First, on a Form 63 the normal deadlines to admit or deny the claim are suspended. So an adjuster could deny the claim a year or more after she filed the Form 63. Second, even if the authorized treating physician takes you out of work the Industrial Commission is not compelling the adjuster to start weekly checks without a full evidentiary hearing - which can take a year or more to occur. The effect of this is that the adjuster can pick the doctor, authorize a surgery, and if the surgery goes poorly leaving you out of work and unlikely to return to work soon... well all she has to do is deny the claim and leave you without income or the capacity to work. From the adjuster's point of view this is just business as normal because you will undoubtedly have to settle cheap in order to pay your bills.

There are three things which should trigger a call from you to an attorney:

Paying benefits or directing medical care without filing an Industrial Commission form.
Filing a Form 63 instead of a Form 60.
Filing either a Form 60 or Form 63 marked as "medical only."

If any of these happen, you should definitely speak with a lawyer.

Let's Talk About Board-certified Specialists

toxner@otplaw.com (Blog Author)68757 — Sun, 13 Nov 2011 08:00:00 EST

Oxner Thomas + Permar has more board-certified specialists than any other firm representing injured workers.

North Carolina is one of 18 states that has a process by which an attorney can demonstrate a mastery of the law and be officially labeled a board-certified specialist in a particular field. You probably didn't realize this, but lawyers are not ethically permitted to use terms like "expert" or "best" to describe themselves. Such terms are so subjective that just about any one can call themselves the best. So the North Carolina State Bar created a very difficult system for letting an attorney prove they really know the law.

There are three steps to becoming board certified.

First, an attorney must apply for permission to be considered. We must have several years of experience, we must dedicate a sizable amount of our time to the specific field, we must complete a detailed questionnaire explaining our experience (that we have taken extra training in this field), we must show that we have handled a large number of cases, show that we have had mediations, hearings, Full Commission appeals and cases in the Court of Appeals.

Second, the State Bar interviews ten or more attorneys who work against us. These are not our partners -- they are either our competitors or attorneys on the other side of us. Attorneys anonymously grade others in terms of competency, success and understanding of the law.

If an attorney passes the first two steps then we are invited to sit for a day-long written examination (the Third step). This test covers the entire breadth of workers comp law, the Industrial Commission rules, the regulations governing vocational and medical rehabilitation, and is generally just an awful experience. Many attorneys have to repeat the examination the next year before passing it.

So why is it important to hire a firm with board-certified specialists? You've only got one crack at your case. Do you really want to trust it to a firm that hasn't demonstrated that it really understands and succeeds at the law? Anyone can buy the back of the phone book or put an ad on television. Only a few attorneys are board-certified specialists.

How the Legislature Threw a Bone to the Insurance Companies' Favorite Pitbulls

cpermar@otplaw.com (Blog Author)68745 — Sat, 12 Nov 2011 08:00:00 EST

We have written a lot about rehabilitation professionals, particularly vocational rehabilitation professionals. Insurance companies have traditionally used vocational rehab professionals to set you up for a Form 24. (That's the Industrial Commission form they use to cut off your benefits.) All the voc rehab professional had to do was to send you out on a variety of ridiculous job leads for which you were either completely unqualified, paid next to nothing, were part-time, or were a couple of hours from your house. When you reasonably decline to go through with those interviews, the rehab professional would document that you were non-compliant and insta-presto the Industrial Commission would cut off your weekly checks. For those of you with workers' comp claims arising before June 24, 2011, ou still get to deal with this.

Several quick examples:

An RP referred an injured worker to sell wooden outbuildings from the back of a pick-up truck on the side of the highway in the mountains of Ashe County. On commission.
An RP referred a client of ours to a job as an interior decorator for mobile homes which were sitting on the sales lot. When our client went early for the interview, he observed the RP dropping off a local provate investigator from her car. The "interview" took place as a breakfast joint at a table next to where the investigator was sitting. And the "interview" was with another American Rehab RP who was pretending to be an employer.
An RP referred a client to a "work from home and early $1000s per week" advertisement in the local paper. All the client had to do was scrape up $500 for the information kit - and the insurance company wasn't going to pay for it. The client's refusal to pay the $500 was documented as non-compliance.
An RP recently wrote a report to be attached to a Form 24 stating that he had referred our client to over 100 jobs but had not received any independent confirmation that he had put in a single job application. When questioned about this, the RP admitted that he had only asked two of the "over 100" employers if the client had put in an application. And both of them said that because they were not hiring at the time, they didn't keep any applications at all and thus could not say one way or the other if the client had applied. The RP was outraged that we suggested his statement "I haen't received independent confirmation" was misleading just because he had made essentially no effort to obtain that independent confirmation.

So, those of you with claims under the old law still are vulnerable to these types of games. But those of you with new claims . . . with the definition of suitable employment changed to permit part-time minimum wage jobs, even if you had been making $100,000 annually, there really isn't much a vocational rehabilitation professional has to do. As long as you can be a Wal-Mart greeter or a parking lot attendant or a security guiard, your benefits may be short-lived.

Given that the voc rehab professional no longer has to find "suitable employment" for you (technically she still looks for suitable employment, but all employment is now suitable) then what will she have to do? And with nothing to do, why pay her to do anything? An entire division of the insurance companies was basically facing the elimination of their jobs. And this was a division which had served the interests of the insurance companies with great devotion over the years.

The solution was to create a situation where vocational rehabilitation is still relevant even after you have returned to work. Under the new law, if you return to work making less than 75% of your old previous wages, then the injured worker has the right to request vocational rehabilitation including education and training at any North Carolina community college or public university at defendants' expense. The only catch is that it must be likely that completion of the retraining will result in a substantial increase in your earning potential.

The question which only time will answer is whether the vocational rehabilitation professionals will continue to serve the insurance companies by saying that future voc rehab is unnecessary (and therefore they are unnecessary) or whether they will be forced to assist injured workers in obtaining further services which the carriers oppose.

At OTP we have met with a couple of independent vocational rehabilitation professionals who have already demonstrated they woudl buck the sytem and do the right thing for injured workres. We are putting standards and guidelines in place to make it nearly impossible for the carrier to prevent you from getting the education you may need to completely return to your old standard of living.

Hot Coffee Documentary: Telling the Whole Story

erichardson@otplaw.com (Blog Author)67690 — Fri, 28 Oct 2011 08:00:00 EST

You've heard about the McDonald's coffee burn lawsuit and you've read our comments (see the April 11, 2010 blog below). Now there's a documentary that gives you more insight. "Hot Coffee," compiled by Susan Saladoff, discusses how the public is being manipulated by the media and by corporations to believe that frivolous lawsuits are everywhere. Saladoff, a former attorney, states that corporations want you to think that the system is broken so that they can push through monetary caps on damages and interfere with the public's ability to have access to the court system.

If you're interested in hearing more, click here for the Hot Coffee website.

Were you fired while you had an open or pending workers' comp claim?

twilliams@otplaw.com (Blog Author)67732 — Fri, 28 Oct 2011 08:00:00 EST

Have you been fired from your job while you have an open or pending workers' comp claim? If so, you're probably eager to file for unemployment benefits. After all, you've been fired and you've heard you are entitled to those benefits. But remember, when you file a claim for unemployment benefits, you must be "able to work." That means you must be physically able to perform some type of work that you are qualified to perform. Now don't get us wrong. Just because you could no longer perform your OLD job does not mean you are not eligible for unemployment. As long as there is some other work you can do, you may still be eligible for benefits. But if you are represented by an attorney in your workers' comp claim, you should speak with them. You may be under a doctor's restrictions and you don't want to do anything that could jeopardize your worker's comp claim. So if you are represented by a workers' compensation attorney, be sure to discuss the impact an unemployment claim can have on your WC case. And as always if we can help answer any workers' compensation or unemployment claims questions, don't hesitate to call. We'll see if we can help you sort this out.

I've been denied unemployment benefits and I need help

twilliams@otplaw.com (Blog Author)67733 — Fri, 28 Oct 2011 08:00:00 EST

When you've been fired or laid off, you may (incorrectly) assume that you're entitled to unemployment benefits. You're shocked when the claim you submit to the Employment Security Commission is denied. How can that be? Your former employer has the right to block your benefits if you were fired with cause -- if, for example, you ignored multiple performance warnings. Timing is everything when trying to obtain unemployment benefits. Generally you should file for benefits within the first week after any severance pay, vacation pay and/or separation pay are exhausted. BUT, if you have an active or pending workers' comp claim when you are terminated, then see the blog below on that subject. That could change everything! Remember, if you want to file for unemployment benefits, you must be able to work and be available for work.

If you have filed for unemployment and have been denied, you have only 15 days to appeal the decision! That's not a lot of time. If you'd like the help of an experienced attorney, you need to call us as soon as you can. We'll try our best to stop the battle and get your unemployment compensation rolling along -- or perhaps find a compromise with your former employer that will get you at least a partial benefit, depending on the circumstances. You can find further information about filing for unemployment benefits on the NC Employment Security Commission's website by clicking here.

If you think you were fired unfairly

lstegall@otplaw.com (Blog Author)67713 — Fri, 28 Oct 2011 08:00:00 EST

Have you been terminated from your employment and feel that your termination was unjust? Employment claims are difficult to litigate, but we've looked in to several clients' concerns of discrimination, and we can tell you if we think you have a case. Because North Carolina is an employer-friendly state, all employment is "at will" unless there is an employment contract that changes your status. "Employment at will" means your employment can be ended by the employer at any time for basically any reason. However, if your firing involves harassment based on your race, gender, age, country of origin, or religion or because of your disability, you may be entitled to compensation for the firing or reinstatement. See the Federal law here (and also look under "Contact Us" for Frequent Questions to the Equal employment Opportunity Commission.). Also, if you were fired in retaliation for filing a workers' compensation claim, you may have a remedy. There are also other limited situations that the courts have said are wrongful discharges. Our job as attorneys is to determine as best we can, the basis for your firing. If it's because of an economic downturn, you don't meet the physical demands of the job, or if you weren't performing up to standards, then there's probably not a case. But if you were fired unjustly, we'll look into it.

In addition, there are times that employers are not following the law with regard to payment of wages, overtime, bonuses and other compensation. We can help in those situation where you are entitled to overtime pay but are not receiving it. Again, the laws are complicated, which is why you need an experienced attorney to assist you.

The Importance of Thoroughly Investigating Your Case

erichardson@otplaw.com (Blog Author)67139 — Thu, 20 Oct 2011 08:00:00 EST

I often wonder how much of a potential recovery is left on the table or never discovered by an injury victim. If you're injured in a car accident and the driver of the other automobile was at fault, you can seek compensation from the at-fault driver's insurance company. Most people understand that is the purpose of liability coverage. And the North Carolina legislature understands it, too, because they require liability coverage as a condition to drive in North Carolina. But what happens if you have significant injuries and that driver has only minimal liability coverage, which in North Carolina is $30,000? As the injured party, $30,000 may be your maximum reimbursement, no matter how seriously you're hurt. But sometimes there's more.

A thorough investigation of available automobile insurance coverages should include your own policy and policies of others. In one recent case, our client was told by her original attorney that she could, at the most, receive the North Carolina minimum limit of the negligent driver's insurance policy. She came to us because she felt she deserved more, and frankly so did we. After a thorough evaluation and search, we did find her more . . . much more. Although this client had moved a number of times in the year prior to the collision, because she was living at her parents' home at the time of the collision, she could argue for coverage from her parent's underinsured motorist policy. After a battle with that insurance company, our client ultimately received over 200% more than the original attorney suggested she accept. She had no idea that this additional coverage was avaiable to her. And why should she. Isn't that our job as attorneys to advise her of her options?

When everything was settled, our client was thrilled that she had taken the time to get a second opinion from us. We did our job by maximizing the insurance coverage available to her. It was a long road to search and find all the options, but in the end, it was a great victory.

Nursing Home/Facility Negligence

erichardson@otplaw.com (Blog Author)66270 — Fri, 07 Oct 2011 08:00:00 EST

What should you do when a person you cherish is injured while in a hospital or nursing home and you believe the facility and its employees to be at fault?

If you suspect that your loved one has been the victim of below standard care, consider investigating the facility. Evidence of continual dehydration, bed sores or pressure sores, repeated falls, weight loss and complaints of pain can be signs of a problem. But you need intervention by a professional. Go to the Division of Health Service Regulation website, also known as the Division of Facilities Services, for our state where you will find information on how to file a complaint (click here). As noted on their website, all claims should be filed within a year of the incident. They will evaluate and review the records of the hospital or nursing home and begin an investigation if they find it is necessary. Our law firm will also review your case for a potential claim and help determine next steps. Hospitals, nursing home and even home health care workers can be neglectful, have too many patients and not enough licensed, certified staff to care for each of them. We'll work together to determine what can be done.

Check Out Our Book -- It's Free

erichardson@otplaw.com (Blog Author)66090 — Wed, 05 Oct 2011 08:00:00 EST

How can "Lightning Strike Twice?" Being involved in an accident is enough of a blow, but did you know that insurance companies and adjustors often try to knock you down again? Read our book, just published this year, in the Library section of our website. You can also call or email us, and we'll send you a copy -- no strings attached. We're sharing this basic information about how the system works -- the good and the bad -- so that you can be educated. And that's good for everyone.

Why You Can't Compare Cases that Appear to be Similar

erichardson@otplaw.com (Blog Author)66093 — Wed, 05 Oct 2011 08:00:00 EST

Folks who hire us will sometimes say that their friends or relatives have been involved in "the same kind of accident," or that their neighbor got a "large amount of money" in her case. These "friends and family" scenarios often create unrealistic expectations. We remind our clients that no two cases are the same. The facts of each case make it unique and dictate an outcome specific to that case. In addition, laws change all the time and what was available or achievable three years ago may be different today. Sometimes for the better.

A traffic accident or a construction site collapse may be similar to another accident -- but they're not the same, and the difference is often in the details. For instance, if you're hurt because of a car wreck and it's the other driver's fault, you should be compensated. But the amount of compensation depends on your circumstances. If you're retired, you did not lose wages because of the accident. An injured person in another case could have been out of work for a week or more, and should get lost wages. Sometimes people are working but don't record their earnings witht he IRS or an employer. They get paid "under the table." That makes it difficult to document later when seeking lost wages. As another example, a window washer can fall from scaffolding that's one story high or five storeis high, and the outcome could be dramatically different, even though they're both work-related falls. Or a negligent party may have a lot of insurance in one case and little or none in another. The amount of coverage available makes a huge impact in your recovery. Accidents can also make an existing injury worse, and payment to the injured party could be less if there was a pre-existing medical condition.

There is no simple formula to predict an outcome in your case. It's important for your attorney to know and discover everything possible about your case to give you the best chance for a successful outcome. Don't try to forecast the results of your case based on what you think has happened to others. Rely on your legal team to communicate with you and to take the time to research and review the circumstances of your specific situation beofre a compensation figure can be determined.

Perseverance Pays

erichardson@otplaw.com (Blog Author)66095 — Wed, 05 Oct 2011 08:00:00 EST

It can be difficult to determine at what point a case can be settled. In a recent case, we had a client who suffered a neck injury requiring cervical fusion as a result of an automobile collision. We contacted the insurance company of the driver who was at fault, and they took the position that the injury was not related to the wreck. They offered a small amount of money, and they hoped that we would all go away. At our recommendation, our client refused their offer, and we filed a lawsuit. After litigating the case with the insurance company for many months, they increased their offer. We didn't think it was fair, based on the damage that had been done to our client. So we prepared for trial. A few weeks before trial, the insurance company finally offered a fair settlement which was substantially larger than their initial offer. While we cannot guarantee similar results in every case (see our blog on this topic), in this instance Perseverance paid.

Guess Who Benefits from Medical Malpractice Reform

erichardson@otplaw.com (Blog Author)65242 — Thu, 22 Sep 2011 08:00:00 EST

Governor Perdue vetoed it, but the NC House overturned it. Senate Bill 33 has passed. (You can read the bill in full here.) Many times in a case involving a client who was the victim of medical malpractice, we have called into court records the testimony of an expert in the field. While this professional was not directly involved in the incident, he or she knows the Standards of Practice that medical workers in that industry must work within. But now the Standards of Practice have been lowered -- there are changes in the levels of misconduct and intent required to prove negligence. And the expert testimony can only be based on evidence and information in the actual case at hand -- there can be no reference to other occurrences or hypothetical situations.

Here's another part of the "reform" bill -- the maximum amount of money recovered for non-economic damages has been set at $250,000. That's a lifetime maximum of a quarter million dollars but what's the price to pay for causing pain, suffereng, stress and physical impairment to a person? Economic damages such as a loss of income or medical charges are simple to pinpoint, based on past history and dollar amounts. But now there's a cap on the price to be paid for pain.

One other change that the bill invokes is for judges to determine if the payment of an award is to be completed in one lump sum or if it can be paid to the defendant in periodic payments. Medical malpractice victims may now receive their award amounts on a payment plan -- in installments. It's as though they had received their emotional stress and pain only in installments. Ridiculous doesn't even cover it.

Surely only the medical industry benefits from these changes in malpractice liability and award payments.

New Law Redefines Suitable Employment

cpermar@otplaw.com (Blog Author)60318 — Sat, 23 Jul 2011 08:00:00 EST

If you used to make $50,000 a year, you can now be forced to take a part-time, minimum-wage job 50 miles away from your home.

Up until this point, your average weekly wage was either the single most important, or one of the most important, things that an insurance company looked at in terms of finding you a new job. No more.

The new law defines suitable employment offered to the employee -- employment that the employee is capable of performing in light of the pre-existing and injury-related physical and mental limitation, vocational skills, education and experience within 50 miles. Specifically eliminated is any consideration of the average weekly wage -- something that has always been a factor in the past.

What does that mean for you? Basically that no matter how low-paying or menial the job is, the insurance adjuster and assistant, the vocational rehabilitation professional, can make you apply for the job. If you refuse, they can run to the Industrial Commission and ask that your benefits be suspended.

Now, more than ever, you are going to need aggressive intervention by skilled attorneys to fight for you. With the playing field tilted drastically in favor of the multi-million dollar insurance companies, it is going to take everything we have to keep your checks intact and to get you on your way to a real and productive job.

Although this portion of the law is supposed to apply to new cases, we have seen several adjusters and vocational rehab professionals arguing that it applies to old cases -- and the law hasn't even been in effect a week yet.

What is Your Health Insurance Worth to Negligent Drivers?

erichardson@otplaw.com (Blog Author)60316 — Sat, 23 Jul 2011 08:00:00 EST

The NC General Assembly has done it this time. Under the guise of "reform," House Bill 542 has passed, and it gives a bailout to auto insurance companies and their negligent drivers. Safe drivers are the losers.

If you're involved in a traffic accident, the NC General Assembly has changed long-standing NC law to allow negligent drivers to benefit from their victims' coverage. This is how the sleight of hand works: a negligent driver spends all night drinking at his local establishment. He decides to drive and hits you with his vehicle, causing you injury. But he no longer has to be responsible for your medical bills. He would continue to be responsible for what a provider is paid, but the negligent driver gets to benefit from YOUR insurance by not paying the full medical bill -- your coverage now bails him out of complete responsibility.

Is this what the NC legislative leadership considers reform? Apparently so. In a not-so-veiled attempt to stick it to personal injury lawyers, the new law continues a trend in our state toward limiting NC citizens access to the court system. And this really harms one group -- injury victims. Injury victims already have so many challenges to take their case before a jury: the cost of litigation (when you have lost so much already), the poisoning of jury pools by inaccurate perception of "frivolous" lawsuits and the attribution that our economic suffering is due to needless business expenses dedicated to defending excessive litigation. In fact, your attorney cannot even ask about the defendant's automobile insurance policy when the case goes to trial because the defenders of insurance companies have persuaded NC legislators that such knowledge in the hands of a jury would be unfair to negligent drivers.

Do you see why this recent legislation is a further blow to good, law-abiding citizens of North Caolina and a lobbying win only for big insurance companies? If you have health insurance or coverage of any nature, the defendant cannot be made to pay you any of the money or benefit that you receive through your health care plan.

Let your representative know that you are saddened by their choice of big business insurance -- over your safety. Click on the bill to view its contents: SB542, SB586 (new effective date).

Injury from Animals -- What Happens After the Attack?

erichardson@otplaw.com (Blog Author)51358 — Sun, 20 Mar 2011 08:00:00 EST

You've been attacked by a dog and have suffered injuries. Can you recover the cost of medical treatment from the dog's owner?

Maybe. Not every dog bite injury gives rise to a claim under North Carolina law. A careful review of the facts must be done. In cases we've handled, we have even been successful in making claims against landlords who were aware of the danger on their property.

Factors to be determined include whether or not the dog has been known to show aggressive behavior in the past, a history of prior problems between the animal and other people and the existence of a record with animal control or the police. The dog does not necessarily need to have bitten anyone in the past in order to be considered aggressive. Prior occasions of acting "in a terrorizing manner" with other people qualify.

When there is a history of problems with a particular dog, the owner is on notice of the danger and is obligated to control the animal. According to North Carolina law, it is unlawful and negligent for a dog's owner to allow a dangerous animal to be kept outside without any type of leash or muzzle restraint.

If you are the victim of a dog attack, you should document the facts and history of the dog's conduct through witness statement(s) and report your incident to the local police. Of course, get appropriate medical treatment and take photographs of the scene, of the dog and of your injuries. Pictures of your injuries allow people to see how the dog caused harm to your body. Attacks by dogs can result in the victim being severely hurt, permanently disfigured or even killed.

North Carolina statutes do not identify dangerous dog breeds, but many insurance companies do -- some of them won't even allow policies to homeowners or renters who own certain dog breeds. In addition, the owner of a dangerous dog that causes injury can be charged with a misdemeanor and be criminally liable for injuries and property damage that the animal causes.

We can go over your dog bite injury incident with you and let you know if we think you have a strong case.

Contributory Negligence Fails in the Senate

erichardson@otplaw.com (Blog Author)46579 — Tue, 11 Jan 2011 08:00:00 EST

The Contributory Negligence bill that was highly endorsed as a positive move for North Carolina citizens has failed in our Senate. Because of another bill that was attached to it, the unfair practice of contributory negligence will unfortunately continue.

NC is one of only four (count 'em FOUR) states in the country where a person is not entitled to any compensation as a result of an accident if he/she is 1% or more at fault. (See my earlier blog posts.) This helps insurance companies to deny and undervalue claims that should be paid. Proponents of a more fair and even-handed system have advocated for a proportionate responsibility law. In other words, if a person is somewhat at fault in a personal injury case, the responsibility for the accident should be divided as necessary based on the involvement and negligence of each participant.

The House of Representatives passed the initial bill that would have abolished Contributory Negligence and replaced it with Comparative Fault, but the Senate rejected it last year. A Senate sub-committee added a section to the bill to change how the value of medical expenses would be considered by a judge or jury. Currently, the medical bill from the treating facility is deemed to be the reasonable value of the services rendered. The change would have allowed judges and juries to use the amount actually "paid" as the value of services. This farce fails to recognize that the reduction of medical bills often reflects costs to an injury victim for having collateral sources of coverage. North Carolina public policy has historically refused to reward a negligent party for the victim's responsiblity. Fortunately, the legislature avoided falling prey to this "sleight of hand" tactic and declined to change this medical bill law. But in the process, they threw out the baby with the bath water, and we lost our bid to rid the state of contributory negligence. Ironically, very little attention was given to the concern that maybe our medical institutions are the real culprits for creating unrealistic bills. Clearly, a "truth in medical billing practices" law would go a lot further in resolving this issue and fairly treating North Carolina citizens.

An Update from our Burlington Office

toxner@otplaw.com (Blog Author)41710 — Thu, 28 Oct 2010 08:00:00 EST

Amy Berry and America Jones recently presented an ethics seminar to the NC Bar Association in Raleigh. "Accidents Happen: 2010 Basics of Workers Compensation" helped to inform members about how the Burlington and Asheboro law staffs comply with ethical obligations and how they insure that all proper procedures are followed on their cases.

At the 15th Annual North Carolina Industrial Commission Education Conference, held earlier this month at the Raleigh Convention Center, Amy participated in a humorous skit. The group performance was used to enlighten and educate adjusters and rehab professionals on appropriate behaviors and practices in workers compensation.

The McDonald's Coffee Burn Lawsuit

erichardson@otplaw.com (Blog Author)29832 — Sun, 11 Apr 2010 08:00:00 EST

This is a Test. Before you read further, I want you to set aside your computer and spend a few minutes thinking about your understanding of the famous McDonald's Coffee Burn Case. Try to recall the facts and the results of this case. After you have spent a few minutes recalling this case, read the following information about the ACTUAL case. And let us know if these facts surprise you, are what you remember or otherwise.

The McDonald's Case.

Do we need to say more? You may agree, you may disagree, but it is a fairly safe bet that you have an opinion about the McDonald's Coffee Burn case. But how well do you remember the Liebeck vs. McDonald's case from 1994?

Stella Liebeck, age 79, purchased coffee at a McDonald's drive-through window in New Mexico. And she was severely burned as the styrofoam cup of coffee fell into her lap. She was a passenger in her grandson's vehicle, and he had stopped the car so that his grandmother, who put the cup between her knees, could open the lid to add her milk and sugar. As part of this process, she was burned when the coffee came in contact with her skin.

The coffee was so incredibly hot that third degree burns scalded Ms. Liebeck's skin and destroyed nerve endings. She was hospitalized for almost eight days and required skin grafting. Prior to hiring a lawyer, she asked McDonald's to merely cover her medical expenses of approximately $20,000, but they offered her $800. Ms. Liebeck hired a lawyer and filed a products-liability lawsuit, essentially alleging that McDonald's was serving a defective product to customers.

Evidence presented to the Court showed that the coffee served Ms. Liebeck was between 180 and 190 degrees. Normal standards for hot coffee are between 135 and 140 degrees. In addition, it was discovered that McDonald's had received more than 700 complaints of coffee burns prior to the one from Ms. Liebeck, and yet they refused to correct the problem.

The New Mexico jury took action where McDonald's refused. They found Ms. Liebeck's compensatory damages to be $200,000 (meaning damages compensating Ms. Liebeck for her losses). In addition, they awarded punitive damages of $2.7 million finding that McDonald's engaged in willful, reckless business practices. This figure was reached because it was the equivalent of approximately two days of McDonald's coffee sales. What was not widely reported, however, was that the punitive award was reduced on appeal, that the jury also found Ms. Liebeck at partial fault, and reduced her compensatory damages to $160,000, and that later an undisclosed settlement was reached for what most people believe to be under $500,000.

Whether you agree or disagree with the outcome of this case, be sure that you know the facts before reaching your conclusion.

Wilmington Office Opens

toxner@otplaw.com (Blog Author)29727 — Fri, 09 Apr 2010 08:00:00 EST

Our Wilmington office is now open to better serve our clients in the coastal area of our state. We are just off of Interstate 40. Give us a call to find out how we can help you.

Key Risk + Company Doctor + Light Duty Job = Disaster

toxner@otplaw.com (Blog Author)27938 — Tue, 09 Mar 2010 08:00:00 EST

I'd like to be able to say this didn't happen all the time. But I cannot do that because it does. Here are the basic facts:

Our client, an animal control officer hurt his back on the job
The initial treating physician took him out of work
The Key Risk adjuster picked another doctor
The new doctor returned him to work on light duty
The injured worker returned to work on light duty
The adjuster filed a Form 28T and stopped his checks
The employer fired him for "lack of organization" which had allegedly been cleared prior to the injury.

Does this happen every time Key Risk or other insurance companies return people to light duty work? No. But it happens a lot. And in most cases, like this one, it takes several months -- and sometimes over a year -- for the Industrial Commission to turn the checks back on again.

Click the link on the title to read the full story.

Workers' Comp Adjusters are using private investigators more and more

toxner@otplaw.com (Blog Author)27813 — Sat, 06 Mar 2010 08:00:00 EST

Psssst…..! Who’s that following you?

If you’ve got Stonewood Insurance on your case, you can pretty much guarantee it’s a private investigator. Most insurance companies will use private investigators from time to time. But Stonewood uses them more than any other insurance company we’ve ever seen.

“But I’ve got nothing to hide” you say… That’s not always the issue. Here are a few tips to keep in mind about private investigators: click the link in the title above to read the full story in our Article Library.

The Problem with Company Doctors, Part I

toxner@otplaw.com (Blog Author)27798 — Fri, 05 Mar 2010 08:00:00 EST

Lou Waple recently won a case before the Industrial Commission that illustrates two different issues in workers' compensation. First, the danger of company doctors. Second, the even greater danger of some attorneys....

The trouble all started when First Comp Insurance sent our client to one of their "approved" neurosurgeons. He correctly diagnosed her as having a bulging disk in her neck and eventually fused two of her vertebrae together. Then within only two months of this. he released her from his care with no restrictions at all. It didn't matter that she was still complaining of pain, he sent her back to her old job.

It got worse when the First Comp's attorney immediately filed a Form 24 saying that she was no longer disabled -- because the company doctor had said "no restrictions."

It all hit rock bottom when her attorney told her that there was no use fighting the Form 24 because the insurance company was right....

There is a happy ending to all this, though. She fired her first attorney who had wanted to settle her claim quick, she hired us, and Lou beat the Form 24. Then he followed that up with a win in a full hearing. As a result of that, our client is still getting her checks more than year later. Plus, she won the right to pick her own doctor for pain management.

What do you really want in your workers' comp claim?

toxner@otplaw.com (Blog Author)27799 — Fri, 05 Mar 2010 08:00:00 EST

What do you really want out of Workers’ Compensation? I’ve spoken to thousands of injured people and their families and I’ve asked most of them that question. “To get better, to be able to return to work, and to enjoy my family again.” Those are the most common answers. In over fifteen years, I’ve never had anyone tell me he wanted to beat the system or make a bunch of money.

So it is disappointing that so many insurance adjusters, human resource directors, safety managers, and politicians think that many injured workers are just doing it for the money. It’s so bad that a well-known orthopedic surgeon in Raleigh recently spoke to a group of defense attorneys and insurance adjusters and said that he believed that many injured workers would have unnecessary surgery just to avoid working and to get more money.

What scares the daylights out of me is knowing that injured workers – who know a lot more than I do about real life: driving trucks, running a knitting machine, building a house, and more – are going to see this doctor, and others like him, every day because they don’t know their rights under the workers’ compensation laws. It's not that we're smarter than they are. It's simply that we study workers' compensation all day long -- and we've been doing this for many years now.

Protect yourself, your famil, and your home. You may not need to hire an attorney but you certainly need information and someone to help you think through your case with you.

Kid's Chance Golf Tournament

toxner@otplaw.com (Blog Author)27603 — Tue, 02 Mar 2010 08:00:00 EST

Many of you know that Oxner Thomas + Permar has been a long-time champion of Kid's Chance of North Carolina. Kid's Chance is our local chapter of a national organization dedicated to providing scholarships to the children of injured workers. This April we're again the lead sponsor of a fundraising golf tournament to be held at the Sedgefield Country Club in Greensboro -- home of the PGA's Wyndham Championship.

Kid's Chance is an incredible organization, and we're proud to have donated thousands of dollars to it while helping them raise even more money from other law firms as well. If you have a student in your family, or know of a family of an injured worker who could benefit from a scholarship, please go to www.kidschancenc.org for more information.

Oxner Thomas + Permar Moves into the NASCAR Plaza

toxner@otplaw.com (Blog Author)26664 — Fri, 12 Feb 2010 08:00:00 EST

We're excited to move into the 18th floor of the NASCAR Plaza in Charlotte! NASCAR has the 19th and 20th floors, and the NASCAR Hall of Fame will be opening downstairs in just a few short months... so you never know who you'll bump into in the elevators!!!

If you're not familiar with Uptown Charlotte don't worry -- this is just about the easiest building to find. Take the South Boulevard exit off of Interstate 277/John Belk Freeway and you can't miss this beautiful 20-story office tower. Take a quick left on Stonewall and a right on S. Brevard to park in our garage. Be sure to bring the parking pass upstairs for us to validate for you.

The view from up here is unbelievable -- come check it out for yourself!

While Lou Waple and Kristin Packard are anchoring this new office, several of the rest of us have offices there as well. So whether you have a personal injury claim needing Eric Richardson and Laurie Stegall or a Social Security Disability claim for Justin Wraight, we're happy to meet with you here.

Our first workers compensation, personal injury and social security office on the coast

toxner@otplaw.com (Blog Author)26666 — Fri, 12 Feb 2010 08:00:00 EST

We're excited to have just opened our first office on the North Carolina coast in the Landfall Business Center in Wilmington.

Countless numbers of clients and attorneys have made the drive back and forth between Raleigh and Wilmington, but those days are over. We'll be meeting you in the Landfall Executive Suites at 1213 Culbreth Dr. That's just off Military Cutoff Road on the right, two blocks north of I74/Eastwood Road.

Ensign Amendment Fails --- Good News for Malpractice Victims

erichardson@otplaw.com (Blog Author)23305 — Sun, 13 Dec 2009 08:00:00 EST

A vote in the US Senate this past week showed that a bi-partisan majority did not agree with John Ensign's proposal to limit plaintiff's attorney's fees for handling medical malpractice claims. The bill to limit plaintiff's attorney fees in medical malpractice cases failed because the overwhelming majority of lawmakers realize that victims of medical malpractice face some of the fiercest litigation battles from negligent doctors. And those battles result in ever-increasing costs to injury victims. This on top of numerous hurdles that burden medial malpractice injury victims (at least in North Carolina) from ever getting to see the inside of a courtroom. The message from Ensign's proposal --doctors can vigorously defend the harm they cause, but we will continue to limit the victims ability to pursue cases. Interestingly, Ensign's proposal did not limit attorney's fees for defending negligent doctors. Instead it was another veiled attempt to stick it to trial lawyers, at the expense of people who suffer or die from medical mistakes. If real "tort reform" is ever to have a chance, it must be based on a genuine and sincere effort to level the playing field for all.

North Carolina's Senators Kay Hagan (D) and Richard Burr (R) voted in favor of the failed Ensign amendment.

City of Charlotte to Settle Wrongful Death Lawsuit for Driver Killed By Falling Tree

erichardson@otplaw.com (Blog Author)23291 — Sat, 12 Dec 2009 08:00:00 EST

The Charlotte Observer reported this week that the City will pay a settlement fee to the family of Kay Plyler because the root system of the tree that crashed into her SUV and killed her was known to be decayed. No warning had been issued to the public . Ms. Plyler was the assistant town clerk for Matthews, NC and the lawsuit defines the City as negligent. Read the complete article here.

Recently in Greensboro, a young mother was killed when a tree toppelled and crushed her as she was driving home in her SUV. It has been reported that heavy rain contributed to the tree falling. Read more about this tragic accident here.

All this brings to mind that sometimes unimagineable circumstances can happen when you're on the road and weather can be a contributing factor. Be careful out there. It's also important as homeowners to keep up with maintenance on your property.

Are Company Doctors Accurately Reporting Workplace Injuries?

toxner@otplaw.com (Blog Author)22146 — Fri, 20 Nov 2009 08:00:00 EST

In handling workers' comp cases, we have found that company doctors may downplay the severity of accidents that occur at work. Injured workers come to attorneys complaining of problems that continue to hurt weeks after the incident. Or worse, they are concerned because they received an icepack and a band-aid from the company doctor when it's clear that they should have been taken to the emergency room -- by ambulance.

What can be done and who's to blame? Doctors report to others up the corporate ladder and profits can be more important than employee well-being. The Occupational Safety and Health Administration (OSHA) keeps track of reported safety concerns and incidents. Doctors and staff are under pressure to keep any concerns quiet to avoid fines for safety violations. The Whistleblower Protection Program gives rights to employees who notifiy OSHA of any concerns.

The US Government Accoutability Office has urged quicker audits and more worker interviews when concerns are reported -- and also reviews at random intervals to help combat inaccurate corporate injury reporting. Read more in this recent Charlotte Observer newspaper article and also in the GAO posting.

Seat Belts = Safety

erichardson@otplaw.com (Blog Author)20519 — Sun, 25 Oct 2009 08:00:00 EST

The National Highway Traffic Safety Administration (NHTSA) in Washington DC has documented a steady increase in the use of seat belts across our nation since 1994. As a result, there have been less unrestrained vehicle passenger deaths. Click here to see this research informaiton.

Raleigh Office Adds John Landry

toxner@otplaw.com (Blog Author)20054 — Thu, 15 Oct 2009 08:00:00 EST

John Landry, Jr. recently joined the Workers Compensation team, working primarily in our Raleigh location. A life-long North Carolinian, John's law background includes insight into the workings of insurance companies and employers. He is a super-smart person and a big asset to our firm. We are pleased to include him in our group of OTP attorneys.

Update on the SSA Using Electronic Medical Records

jwraight@otplaw.com (Blog Author)19550 — Mon, 05 Oct 2009 08:00:00 EST

Here's an article from an Indiana newspaper that gives an update on Social Security's advancement into using electronic medical records. This National Health Information Network is gradually rolling out across the country and this article tells of the ways it will speed up the process.

Apply for SSD On Your Computer

jwraight@otplaw.com (Blog Author)18890 — Thu, 24 Sep 2009 08:00:00 EST

Last winter I wrote about how the Social Security offices are trying to speed up processing and also use less paper by going digital. Using technology for medical record codes is starting to work. The National Health Information Network is a first for a federal government agency, according to a published article, and it's great that it has started with Social Security. The SSA recommends that you apply for disability benefits on-line. You can click here to get to the website, and you can submit your application electronically.

Disability Claims Processing Data

jwraight@otplaw.com (Blog Author)18785 — Tue, 22 Sep 2009 08:00:00 EST

As an update to my recent post, the national average for processing a SSD claim is 494 days. That's nearly a year and five months. The Greensboro office operates at 541 days (almost 50 days longer), while Charlotte beats the national average slightly at 490 days.

It is important to note that North Carolina has had a slight drop (just under 4%) in the number of claims processed this year compared to 2008, which makes us one of only two states where this happened. Compare NC to Ilinois where the number of cases has unbelievably doubled, due possibly to more baby boomers in the market and people who had not planned for the economic dilemma we are in.

According to the latest reports, the Social Security Administration has the goal to end the backlog in hearing level claims in all states by 2013. Additional Administrative Law Judges, funding and efficient staff and productivity could make this happen. As always, we will keep you updated.

Personal Injury Legal Team Welcomes Laurie Stegall

erichardson@otplaw.com (Blog Author)18663 — Sun, 20 Sep 2009 08:00:00 EST

With nearly twenty years of legal experience, Laurie Stegall can handle many situations. Her intelligent, skillful pursuit of justice makes her a huge benefit to our firm and to our clients. As a lifelong resident of Greensboro, Laurie has joined the Oxner Thomas + Permar personal injury group at the Revolution Mills location.

Kristin Packard Joins Charlotte Office

toxner@otplaw.com (Blog Author)18553 — Fri, 18 Sep 2009 08:00:00 EST

As a Charlotte native, Kristin Packard knows all about the area and all about law. As a previous defense attorney for insurance companies and employers, she knows the "other side" of workers' compensation cases and will be an asset to our team. She joins our Charlotte office this month, and we welcome her dynamic personality.

Uninsured / Underinsured Motorists Liability Coverage Bill

erichardson@otplaw.com (Blog Author)18401 — Tue, 15 Sep 2009 08:00:00 EST

Senate Bill 749 has passed the House and Senate. It allows drivers to choose their auto insurance coverage amount, permitting them to go above the minimum limits that are now legally required. In that way, motorists can opt for more protection if they choose to, and the limits for anyone are still in place which will serve us all if we are involved in an accident.

Fixing a Broken Mental Health System

jwraight@otplaw.com (Blog Author)18303 — Mon, 14 Sep 2009 08:00:00 EST

Every day we talk to people with mental health issues who can't get the treatment they need because of cuts in the North Carolina system. The slashing of state's budget ($155 million in cuts for 2010) and the downsizing or closing of mental health facilities have left some people in a crisis situation, especially those who live in rural areas. It's frustrating to us and to our clients and their families. People with mental health disabilities deserve care and treatment and our tax dollars should fund adequate if not excellent programs to meet these needs.

GAO Follows SSA's Efforts to End Hearings Delays

jwraight@otplaw.com (Blog Author)18305 — Mon, 14 Sep 2009 08:00:00 EST

In a report released this month by the US Government Accountability Office, the Social Security Administration is still plugging along in its efforts to speed up the approval process of SSD claims. Following a plan that started in 2007, the GAO reviewed the May update and noted that the SSA must continue to move forward to reduce the backlog by 2013. Much of the effort centers on Administrative Law Judges, focusing on the hiring of judges, their availability to hear cases and their productivity. According to the GAO, claims are now at 446,000 and the SSA needs to set up performance goals and measures in order to be productive.

Personal Injury Team Wins Jury Verdict

erichardson@otplaw.com (Blog Author)18283 — Sun, 13 Sep 2009 08:00:00 EST

Our client was traveling home from a friend's house just outside of downtown Greensboro and stopped at a red light. His car was hit from behind and totalled. He had no reported injuries at the scene, but after a night's sleep, he had back pain. He had chiropractic treatment and saw an orthopaedic physician but did not have an operable condition. So he was stuck with ongoing pain and medical bills of $6,700. The insurance company for the driver that hit him (who ironically refer to themselves as the "good hands people") felt that his injuries were worth a settement offer of $5,400, ... yes, $1,300 less than his actual medical bills. Zero for pain and suffering. Zero for lost wages. A Guilford county jury felt otherwise and awarded our client just over $32,000. By the time costs and prejudgment interest were added, "the good hands people" paid over $37,000 for their driver's negligence.

Hospitals in NC

jwraight@otplaw.com (Blog Author)18151 — Thu, 10 Sep 2009 08:00:00 EST

Before you schedule a surgical procedure or even a consultation at one of our state's hospitals, it's a good idea to compare facilities and also visit the hospital's website. Here's a handy chart, compiled by US News & World Report, which lists hospitals in North Carolina. (click here)

Medical experts advise patients to ask questions of their doctors, such as:

How many procedures have you done like mine?

How many have been performed here at the hospital?

How many people have died after this surgery?

What complications can occur?

As a patient, you have a right to know these answers before you make a decision about your medical care.

America's Best Hospitals

jwraight@otplaw.com (Blog Author)18152 — Thu, 10 Sep 2009 08:00:00 EST

US News & World Report recently rated our nation's hospitals based on the quality of care, the reputation among colleagues in the medical field, the death rate, patient safety and other patient care factors (such as the technology at the hospital and the level of nursing care). Nearly 5,000 hospitals and medical centers were reviewed with a special focus on those that have specialty areas. For 2009, Duke Medical Center in Durham ranked in the top 10 of hospitals nationwide.

To see the article and a list of the rankings, click here.

Richardson Serves the Community at the 2009 Wyndham Championship

erichardson@otplaw.com (Blog Author)18149 — Thu, 10 Sep 2009 08:00:00 EST

The role of the General Chairman of the Wyndham Championship includes being a master coordinator and communicator. Eric Richardson spent many volunteer hours this year bringing the best of golf together in the PGA Tour event and helping to put the spotlight on the Piedmont Triad. He started volunteering on the greens when he was just out of law school and has a love of bringing the community together for this fun event.

Pictured above: Bobby Long, chairman of the foundation board,
Ryan Moore, tournament winner, Eric Richardson, tournament
general chairman and Mark Brazil, tournament director.

No Cost of Living Increase for Social Security Benefits

jwraight@otplaw.com (Blog Author)17960 — Fri, 04 Sep 2009 08:00:00 EST

With the Congressional Budget Office projecting no cost of living increase for social security benefits in 2010 and 2011, many people who receive this income will be in a tough spot. For some folks, the SSD benefits cover the absolute necessities of living. They depend on their check and make it only from month to month. Without a cost-of-living increase to cover outside expenses, many people will be forced to cut back on an already small fixed budget.

Greensboro Office Expands and Relocates

toxner@otplaw.com (Blog Author)17472 — Wed, 26 Aug 2009 08:00:00 EST

The Greensboro office of Oxner Thomas + Permar has relocated from the Green Valley office building to Revolution Mill Studios, located on Yanceyville Street in Northeast Greensboro. Because of exuberant company growth, they have expanded to a 10,000 square foot work setting.

This stunning office and multi-use complex is a renovated textile mill and home to more than 100 businesses. With 15 ft. ceilings and original maple wood floors, this historic site is quite unique. Todd Oxner, principal partner in the firm, remarked, "It was time to change up our environment. We're not an ordinary law firm, and we want our offices to be distinctive. You'll enjoy this one-of-a-kind setting." If you need to know how to get to us, click on the Directions tab at the top of the page.

Preparing for a Hearing

jwraight@otplaw.com (Blog Author)17444 — Tue, 25 Aug 2009 08:00:00 EST

When your Social Security Disability claim gets to the level where you have a hearing with an Administrative Law Judge, you may be asked several questions by the judge to verify your application. These questions could include:

Tell me where you worked and the employment dates for the last dozen years. Describe what you did for each employer.

Why do you feel that you can no longer work?

What medications do you take, and what should I know about their side effects and your limitations?

Do you have pain? Where is it? How would you rate it?

Tell me about your ability to stand, walk and sit -- how long can you do each of them and do you need any assistance?

I want to know about your lifestyle. In other words, what do you involve yourself with when you're at home. Are you able to drive? Where do you go?

How has having a disability changed your life?

These questions are nothing to be alarmed about so you should not be concerned or nervous. The judge is just verifying your information and getting insight from you, a real person, about your claim.

Getting an outside appraisal for your damaged vehicle value

erichardson@otplaw.com (Blog Author)17363 — Mon, 24 Aug 2009 08:00:00 EST

The recently ratified Motor Vehicle Property Damage bill (SB 660, to be effective October 1) gives the person who claims the damages on his/her vehicle the right to dispute vehicle value differences that may occur with the insurance company. Specifically, if the before and after vehicle value damage estimates differ between the two parties at more than $2,000 or 25% of the fair market retail value of the vehicle before the accident took place, then the claimant and insurance company may each get an outside appraiser involved to help reach an agreement. Your attorney can give you more details.

Early-Onset Alzheimer's Disease Added to Compassionate Allowance List

jwraight@otplaw.com (Blog Author)16631 — Sat, 08 Aug 2009 08:00:00 EST

Last month Commissioner Astrue announced that early-onset Alzheimer's disease will now be part of the 50+ medical conditions that automatically qualify the SSD applicant for quicker claim processing. The SSA Commissioner noted: "Early-onset Alzheimer’s disease is a rapidly progressive and debilitating disease of the brain that affects individuals between the ages of 50 and 65 and clearly deserves our consideration." Individuals applying for benefits will get a quicker response from the SSA --perhaps in weeks rather than the typical months or even years -- and that is certainly a bright spot.

Update: Product Liability Bill

erichardson@otplaw.com (Blog Author)16175 — Fri, 31 Jul 2009 08:00:00 EST

Great news! As an update to my blog a couple weeks ago, Senate Bill 882 Statute of Repose has passed with flying colors and will be effective on October 1 of this year. Until October 1, an injured person cannot seek recovery in a products liability case if the product that causes injury is over 6 years old. This new law extends that period to 12 years.

Driving and Texting Can Kill You

erichardson@otplaw.com (Blog Author)16045 — Wed, 29 Jul 2009 08:00:00 EST

Five states in our country now outlaw the use of hand-held cell phones while driving. There are 21 states that prohibit the use by new drivers (in NC it's under age 18) and a third of the states deny hand-held cell phones by school bus drivers (including NC). This information, as posted by the Governors Highway Safety Association, highlights the concern by law enforcement of cell phone and texting distractions. Click on this link to see the actual laws (or lack of) in every state.

All drivers are banned from text messaging in 14 states (NC included), with 10 of the states restricting new license holders from texting while driving. Crash data collection, from police reports and survivor and witness interviews, shows that driver distraction can greatly increase the risk of an accident.

In a study released this week by the Virginia Tech Transportation Institute, the dangers of driving a long-haul truck and texting were capitalized. There was a six times greater risk of a crash or near crash when the driver was texting or dialing a cell phone -- when his eyes were off of the road. Drivers were aware of video cameras and software in their trucks for these studies and the researchers could see the near-miss scenarios and actual accidents that occurred. To read more information about the study, click here.

As noted in one article, the ever-present "ping" of an incoming text or the ring of a cell phone can be difficult to ignore, but it may just save your life. Think about it. Focus on the road and don't be a multi-tasking overachiever.

SSD, SSI Benefits and Same Sex Marriages

jwraight@otplaw.com (Blog Author)15696 — Wed, 22 Jul 2009 08:00:00 EST

While gay marriages may be recognized in some states, the Social Security Administration, as a Federal office, does not give them validity. The Defense of Marriage Act prohibits any acknowledgement. As such, benefits are not distributed to a spouse if there is a same-sex marriage. As a result, couples will need to consider if a union is in their best financial interest.

Claims for Disability Continue to Take More Time

jwraight@otplaw.com (Blog Author)15697 — Wed, 22 Jul 2009 08:00:00 EST

The backlog of applications for SSD at the initial application stage certainly is increasing with some of it caused by the slump of the economy. The SSA projects that by 2011 another 500,000 claims will be initiated due in part to the ongoing recession. Across the country, there has been an increase in new claims through May 2009 of almost 13%, compared to this same time in 2008. A much higher pending workload of these claims (more than a 26% increase) is leading to much longer processing times. Now, more than ever, it's important to have the assistance of an attorney to stay on top of a claim and to be sure it's filed correctly.

Medical Malpractice Case Punishes the Whistleblowers

erichardson@otplaw.com (Blog Author)15616 — Tue, 21 Jul 2009 08:00:00 EST

A recent medical malpractice case involving a doctor in Texas ended up getting the nurses who reported him fired from their jobs and facing possible prison sentences. It's been reported that the nurses sent patient medical records directly to the Texas Medical Board about the lack of care that the doctor's patients were receiving from him. They were not granted permission by the patients involved but they felt that the misconduct needed to be reported to the Board anonymously, and only patient record numbers were used.

The original complaint which involved a concern for patient safety has turned against the very people who were trying to right a wrong. This case shows how difficult it can be to succeed with a malpractice case against a physician. The tactics used by the defense attorneys will make anyone second guess whether or not a wrongdoing should be reported, and that's just not right.

Product Liability Bill News

erichardson@otplaw.com (Blog Author)15432 — Thu, 16 Jul 2009 08:00:00 EST

The House Commerce Committee has passed Senate Bill 882 Statute of Repose (Product Liability) which extends the statute of repose for damages caused by defective products from six years to 12 years (from date of product purchase). A statute of repose is an end point for pursuing a claim. Generally speaking, an injured party is barred from seeking recovery in a products liability case if the product that causes injury is over 6 years old. This new law, if passed, would extend that period to 12 years.

The statute of repose is different from a statute of limitation, which, in North Carolina, states that an injury victim has 3 years from the date of injury to pursue a claim (or 2 years if the injury causes death). Regardless of when the injury occurs, if the product is over 6 years old (or 12 years under the proposed legislation) then you cannot pursue the product liability claim. Understanding the interplay between the statute of repose and the statute of limitations can be difficult. We encourage you to seek legal advice in sorting them out.

The bill will now go to the House Judiciary Committee for approval. Hopefully it will become law later this year, and we will keep you updated.

State DDS Jobs Should Be Secure

jwraight@otplaw.com (Blog Author)15069 — Thu, 09 Jul 2009 08:00:00 EST

Because of action by Vice President Biden, job positions for state disability determination services (DDS) should be stable and free of hiring restrictions and unpaid mandatory leaves of absence.

Biden asked Governor Ed Rendell, Chairman of the National Governor's Association, to urge all US governors not to furlough or downsize their DDS departments. If all DDS personnel are able to continue with their jobs, then social security benefits for the disabled will not be disrupted or delayed. Commission Astrue noted that state-wide reductions would save no money from state budgets because salaries and overhead are self-funded from within the department. With this plea from Vice President Biden, the heavy workload that our country's DDS program manages for more than 12 million citizens, and the predicted increase in the number of claims, should continue to be handled without concern of DDS employees losing their jobs. And that should keep the system moving along.

Todd Oxner on Board of Directors at WILG

toxner@otplaw.com (Blog Author)14536 — Tue, 30 Jun 2009 08:00:00 EST

Todd Oxner recently joined the Board of Directors of the Workers Injury Law and Advocacy Group (WILG) based in Washington, DC. This non-profit organization promotes the rights of injured workers by joining together plaintiff attorneys across the country. The group shares knowledge and offers support, all in the interest of helping injured workers and their families.

Uninsured Motorist Coverage Should Be Extended

erichardson@otplaw.com (Blog Author)14476 — Mon, 29 Jun 2009 08:00:00 EST

Setting the scene: Let's say you're driving down the road and another vehicle crosses over the yellow line, swerves into your lane and is about to hit you. As you try to avoid getting hit by the other car, you turn your wheel hard to the right and go off the road and into a tree. Your car is totaled and you have injuries. The other car never hit you and sped away. The at-fault driver's identity is never discovered. Fortunately, a witness traveling behind you saw the whole thing happen and stops to give you assistance.

How do you recover? The at-fault driver's insurance is unavailble because it's unknown. If you have uninsured coverage, the insurance company won't pay the claim because North Carolina law requires, in a "hit and run," that there be some physical contact from the at-fault vehicle in order for you to recover. The current law is protecting insurance companies from paying claims for single car accidents caused by the driver. But in the case of having a witness to verify the events, the proposed law would allow the described accident to be treated as a "hit and run."

We at Oxner Thomas + Permar feel that Uninsured Motorist Coverage should include coverage for the injured person and his or her vehicle any time the victim can prove that another person caused the accident (with a witness, video coverage from a nearby business, etc.)

Why are injury victims expected to wait so long for a recovery?

erichardson@otplaw.com (Blog Author)14335 — Thu, 25 Jun 2009 08:00:00 EST

It has become customary for liability insurance companies to "delay and pay" claims of injury victims in North Carolina. Normally, when a person is injured in an automobile or other accident he or she must wait until the very end of the case to receive compensation from the negligent party's insurance company. When legitimate questions of liability occur, it's understandable that the insurance company will not pay a claim without more information or proof of negligence. However, what about the clear liability cases? Even these cases can go on for more than a year. In the meantime, the injured party is expected to carry on the payment of everyday bills and expenses. How can an injury victim who is unable to work make ends meet? And what if the injured party does not have personal health insurance or medical disability coverage and so their doctor and hospital bills fall behind for payment, or, what's worse, the injured person simply doesn't go to the doctor and get the needed treatment because there's no money to pay upfront. Many doctors refuse to treat patients without insurance, hoping for payment later when and if a settlement occurs.

Who in the legislative system can right this wrong? It is not a law that the insurance company must wait until the end of the case to start payment. In clear liability cases, the insurance company normally settles the property damage portion of the case very quickly so they are accepting liability and fault on behalf of their insured. But the injury proceeds rarely come forth so quickly. The insurance company wants to make one payment, in exchange for a complete release, to settle the case. And because of that position, injury victims must wait until they are sure they are finished with treatment before considering a settlement. It is merely the insurance company's decision to wait and wait and wait to pay for lost wages and medical expenses until one global settlement is reached or until they are legally required by a court to do so. Unfortuately, this can set up the injured person for a catastrophic situation where he or she gets so desperate that the injured party actualy considers the often ridiculous low ball settlement offers from the insurance adjuster just to get some money -- any money -- to survive. And for these injury victims, the "delay and pay" system doesn't work.

Inclusive Health: A New Healthcare Plan

jwraight@otplaw.com (Blog Author)13776 — Tue, 16 Jun 2009 08:00:00 EST

If you do not have a health plan with an employer and if you are looking at higher premiums because of a pre-existing medical condition, you may qualify for the North Carolina Health Insurance Risk Pool (NCHIRP), commonly called Inclusive Health. This individual health plan also helps people whose jobs have been lost due to overseas competition and people who have used all of their COBRA benefits.

Established by the State Legislature which underwrites the plan that began offering coverage in January, Inclusive Health participants may pay premiums that average $300 to $500 a month. This plan is only available to residents of NC who have no access to group coverage and who do not qualify for Medicare or Medicaid. This is not a family plan. Each family member who qualfies will receive his/her own separate rate which applies to his/her own circumstances.

Learn more about the program and to access enrollment details and forms by clicking on their website here. You will also see a list of medical conditions that automatically qualify a person for Inclusive Health Coverage.

Obtaining some type of medical treatment is crucial for those individuals applying for Social Security Disability. The Judges who hear your case want to know what the doctors are saying about your condition. No treatment often leads to a denial. Claimants applying for Social Security Disability need to be resourceful and determined to get treatment. Programs like this offer people who cannot otherwise afford private health insurance another option.

Winston-Salem Company Offers Hope for Chronic Back Pain Sufferers

jwraight@otplaw.com (Blog Author)13778 — Tue, 16 Jun 2009 08:00:00 EST

Back injury is a frequent cause of concern among many of our clients. There are just so many ligaments, discs, nerves, muscles and tendons. Let's face it -- if your back hurts, you pretty much hurt all over. We recently heard about a new invention called VerteLoc. It's hailed as a "minimally invasive spine stabilization system" and the inventors are in North Carolina. The implant is unique in that it uses human bone rather than metal screws and bolts to limit the motion of the affected spine segment. With early intervention in back problems, there's a shorter recovery time and you get back in your daily routine quicker. If you have lower back pain caused by osteoarthritis and spinal stenosis, VerteLoc may help you. News sources state that it was first implanted in May 2008. There are more than 330 US patients within this first year. Here's a link to their website. We haven't had a client yet who has used this device, but we're all for people feeling better quicker. We'll keep you up to date as we hear more about this invention.

Understanding SSA Denial Paperwork

jwraight@otplaw.com (Blog Author)13779 — Tue, 16 Jun 2009 08:00:00 EST

It has finally been recognized that the Social Security Administration needs to provide more detail in denial notices. The US Government Accountabilitiy Office (GAO) determined that denied claimants sometimes received communications with inconsistent or hard-to-understand information. Medical sources and reports were not clearly linked to how a determination was made. The SSA generally agreed with the GAO but said that it would require computer system changes with funding for information technology. The story can be read here.

I have read hundreds of application and reconsideration denials. The Social Security sends out these form letters and except for a few lines in a few paragraphs, the denials are always very similar. It is almost impossible to understand exactly what information was used to make the denial. It is nice to see that the GAO has called out the Social Security Administration and that there is a chance something will be done.

SSD and Workers Comp in Utah

jwraight@otplaw.com (Blog Author)13781 — Tue, 16 Jun 2009 08:00:00 EST

Some state legislators will do just about anything to keep their state looking business friendly. A Utah law that reduces workers’ compensation benefits for workers over 65 that receive social security benefits has been ruled unlawful. In most states, only Social Security disability benefits are reduced when the injured worker receives periodic workers’ compensation payments. The law Utah tried to hold up essentially kicks injured workers’ off of periodic compensation payments simply because they turn 65. You can read the article here.

Insurance companies and business lobbyists will often push government to pass laws that keep older workers from receiving full workers’ compensation benefits. Having a workers’ compensation age cut-off reduces exposure for insurance companies and hurts the leverage of injured workers negotiating with insurance companies. This is something that businesses in North Carolina are actively pursuing. Unfortunately, state legislatures are often willing participants in passing these laws because it makes them look more business-friendly. I imagine this will continue to be the case as long as big business have more money to lobby with than injured and disabled people.

Update on Contributory Negligence

erichardson@otplaw.com (Blog Author)13666 — Sun, 14 Jun 2009 08:00:00 EST

Good news -- the House of Representatives has passed House Bill 813 which would change North Carolina's law of contributory negligence to instead be a law of comparative fault. Read the blog below to find out why this is such a great step for our state. The NC Senate is now reviewing the bill. We will keep you posted on the status of this important legislation, and we'll keep our fingers crossed that it becomes law soon.

Contributory Negligence -- How It Can Affect You

erichardson@otplaw.com (Blog Author)12290 — Thu, 21 May 2009 08:00:00 EST

Does it matter that North Carolina is one of only four states in our country that supports contributory negligence? What kind of legal jargon is that and what does it mean to you and me?

Under current NC law, you cannot get any insurance benefit or claim any compensation as a result of an accident if you are the least bit at fault. If, for example, another driver is barrelling down the road and slams into your car, and you didn't have your turn signal on at the stop sign. Obviously, whether or not your turn signal was on would not have affected if the speeding driver was going to hit your vehicle, but an insurance company may argue that you were not following the law, and they could suspend any claim you would file. In North Carolina contributory negligence begins when you are only 1% at fault, and this is not fair. It is merely a way for insurance companies to get out of paying claims.

Considering that 46 states do not endorse contributory negligence, it's high time North Carolina got with the program. The law in those states is comparative fault, which wisely divides the responsibility among those involved in the accident, based on how much each person was at fault. This allows for a balance of responsibility and parties pay or are compensated based on the degree of involvement and fault of each participant.

Attorneys at OTP are part of NC Advocates for Justice, and we support the bill that's currently before the Senate to change the law in North Carolina. Our state needs to do away with contributory negligence. It's way past time that this unfair practice is changed.

OTP Now in Hickory

toxner@otplaw.com (Blog Author)11963 — Wed, 13 May 2009 08:00:00 EST

We are here to serve you in Hickory, NC. We've expanded to the western part of our state in order to better help people with their workers' compensation, personal injury and social security disability concerns. You can reach us directly at 828-322-1271 or call toll free 1-866-OTP-Law1.

Workers Comp and SSD - Why not in NC?

toxner@otplaw.com (Blog Author)11775 — Sat, 09 May 2009 08:00:00 EST

There's a bill, co-sponsored by the chairs of the Labor Committees in the New York Senate and Assembly, which is working its way through the legal system that makes sense for permanently totally disabled workers. Bravo to New York for realizing that people who are found by the federal governement Social Security Law standards to be permanently totally disabled should not have to go through the system to get workers' compensation benefits, since it's obvious that if you're permanently disabled you can't work -- even light duty at your old job -- nor can or should you look for another job. North Carolina has not started this cause and it's a shame -- it's frustrating to clients, frustrating to attorneys and a waste of the Court's time. The Federal judge has already determined that the person is fully disabled based on evidence-- how can that person go out looking for a new job? Workers Comp rulings should look to what the SSA has already considered and ruled on. There's a link, and it would save everyone a lot of time if it was brought to light in North Carolina.

COBRA Health Insurance Subsidy Update

toxner@otplaw.com (Blog Author)11485 — Thu, 30 Apr 2009 08:00:00 EST

With the downturn in the economy and the increased number of people facing layoffs, it is important to know that your medical coverage can continue if you are eligible for COBRA health benefits. If your job is terminated between September 1, 2008 and December 31, 2009, you and your family may be able to join COBRA and pay a reduced premium for nine months at a group rate which is usually lower than what an individual would pay. This government subsidy allows former employees to maintain their health care coverage, sometimes with pre-existing conditions which could include injuries related to the workplace. This subsidized plan is not available if the company closed or went bankrupt. For more information, see the Department of Labor webpage: http://www.dol.gov/ebsa/faqs/faq_consumer_cobra.HTML

Devin Thomas Selected for Dispute Resolution Council

toxner@otplaw.com (Blog Author)10760 — Wed, 08 Apr 2009 08:00:00 EST

Devin Thomas, Board Certified Workers Compensation attorney and one of the founding partners of OTP, was selected by his peers to serve on the Dispute Resolution Council of the North Carolina Bar Association. This is a high honor for Devin and reflects strongly on his reputation as an attorney and mediator. The Dispute Resolution Council acts as a resource for developing and implementing processes that solve conflicts in the courts and make it easier for people with disputes and problems to work their way through the legal system. The Council also assists NC attorneys in setting up pro bono programs within their communities. Devin looks forward to this new challenge and hopes the steps to be taken by the Council will benefit everyone involved in workers' compensation cases.

Fayetteville Office Opens

toxner@otplaw.com (Blog Author)10336 — Fri, 27 Mar 2009 08:00:00 EST

Concerned injured workers in the Fayetteville area can now receive advice from us in our Fayetteville location. Call the direct number listed on our home page or just dial 1-866-OTP LAW 1. We can review your case and schedule a consultation.

Tom Clare Achieves Board Certification Designation

toxner@otplaw.com (Blog Author)10008 — Mon, 16 Mar 2009 08:00:00 EST

Tom Clare, chief attorney in the Raleigh office, recently passed the Board certification written exam. This elevates Tom to the highest level in the practice of workers' compensation. Less than 2% of all attorneys have passed Board Certification exams. It is one of the highest honors an attorney can receive. Oxner Thomas + Permar is proud to now have four Board Certified attorneys.

New way to diagnosis Chronic Fatigue Syndrome?

JWraight@otplaw.com (Blog Author)8751 — Wed, 04 Feb 2009 08:00:00 EST

Researchers may have found a new way to diagnosis Chronic Fatigue Syndrome. Chronic Fatigue Syndrome, or CFS, is a condition that causes seemingly endless and severe fatigue to those who have it. It is an impairment that is not well understood by the medical community. The study can be read here.

A new diagnostic tool for CFS has huge Social Security Disabiliy implications. For years I have seen claimants alleging CFS have great difficulty getting approved for Social Security Disability benefits. The Administrative Judges who hear CFS disability cases have a difficult time believing claimants with CFS because CFS is easy to allege and almost impossible to prove. If CFS claimants now have an opportunity to present an objective and scientific test proving they have CFS, then I believe their chances of getting approved would increase dramatically. It will be interesting to see if this new test finds acceptance in the medical community. At the very least, this study gives CFS claimants a reason to be optimistic.

Social Security Disability backlogs exist nationally

jwraight@otplaw.com (Blog Author)8101 — Wed, 14 Jan 2009 08:00:00 EST

A newspaper in Oregon recently had a great article about Social Security Disability backlogs. The Oregonian submitted a Freedom of Information Act request to the Social Security Administration and interviewed several Administrative Law Judges to try to understand why it takes a claimant 650 days to get a Judge's decision in Portland while the national average is 480 days. It should be noted that the frustration with backlogs is not particular to Portland, Oregon. Many of the same problems exist in Charlotte, Raleigh, and Greensboro. The article can be read here.

Administrative Law Judges are supposed to decide 500 cases every year. According to statistics, only about 11% of the Judges hit this mark. The biggest problem, according to most of the Judges, is that there is insufficient staff to work up the cases. Each claimant has a file with the Social Security Administration that holds medical records, employment earnings records, and other documents that are necessary to determine whether the claimant qualifies for Social Security Disability benefits. It is extremely difficult for a Judge to make a decision when medical records are lacking or the file is a mess (an unorganized stack of several hundred documents is hard to make heads or tails of especially if you are asked to do it 500 times a year). Let's hope the new Administration properly staffs the Hearing Offices.

Social Security to Start Gathering Medical Records Electronically

jwraight@otplaw.com (Blog Author)7746 — Fri, 02 Jan 2009 08:00:00 EST

The Social Security Administration recently announced that it would be the first government agency to use the Nationwide Health Information Network (NHIN). See the announcement here. The hope is that Social Security will have almost instantaneous access to an applicant's medical records. The medical records Social Security reviews helps them determine whether an applicant is entitled to Social Security disability.

The plan is for the Social Security Administration to start using NHIN in early 2009. I spoke about this possibility in an earlier blog post. I think NHIN is a positive step in making claim decisions quickly and with less expense.

Medicare to Pay For Telemedicine

jwraight@otplaw.com (Blog Author)7276 — Sun, 14 Dec 2008 08:00:00 EST

A story recently published by Minnesota Public Radio outlines the benefits of Medicare's recent decision to pay for telemedicine. Telemedicine is simply patients videoconferencing with their physicians instead of being seen at the doctor's office. This technology has existed for years, but the cost to implement this technology has been too high. Also, Medicare has refused to pay for this type of medical treatment and counseling.

With the cost of videoconferencing lowering, medical providers are now reconsidering the value of seeing patients with cameras and televisions rather than in person. This idea is especially attractive to medical providers who treat their patients in rural areas. Patients cannot always travel hours round trip to see their doctors because of sickness or frailty. In the future, nursing homes will be able to wheel patients one at a time into rooms with video equipment that will allow each patient to see the physician in another distant facility. With the help of nursing facility staff, physicians can examine their patients, diagnose problems, and recommend treatment. The cost of travel will be negated by the patient and the physician.

It is great to hear that Medicare will now begin covering this medical treatment beginning in 2009. This should allow medical facilities to aggressively invest in technology to drive down costs for their patients. The full story can be read here.

Spinal Fusion in Pictures

JWraight@otplaw.com (Blog Author)7221 — Thu, 11 Dec 2008 08:00:00 EST

One of the most common types of disability I see is spinal disc injury (it is also a common workers' compensation injury). Many clients have had different types of spinal procedures designed to lessen back pain or nerve pain that radiates into arms or legs because the discs between the vertebrae impinge on the spinal cord. The below animation shows what a herniated disc looks like and what a fusion procedure might look like:

One of the interesting things about this video is the ending where it is revealed patients should not lift over ten pounds soon after undergoing this type of procedure. Administrative Law Judges often do not understand why claimants with this disability do not return to work performing work that requires significant lifting or bending, stooping, and squatting. Claimants needs to be able to explain how their range of motion or flexibility is affected by a procedure like this.

A New Insurance Product For Tough Times

jwraight@otplaw.com (Blog Author)7087 — Sun, 07 Dec 2008 08:00:00 EST

The New York Times has recently reported that UnitedHealth may soon be offering a new insurance product for those people concerned about losing their health insurance. The new policy will allow current customers who have UnitedHealth coverage to pay an extra twenty percent of their monthly premium in order to guarantee their right to buy health insurance in the future.

Most people in the United States receive health insurance as a benefit of their employment. Once these people lose their jobs (not hard to imagine considering the current economic times), they often lose their health insurance. Options exist, such as Cobra coverage or individual coverage. These options are usually expensive - especially if they are unemployed. Individuals on Social Security disability are eligible for Medicare after two years, but there are few good options during this time period. Most companies have rules that allow them to avoid paying for costly pre-existing conditions.

There are still not too many details about these programs. However, it is an interesting concept for people who are approaching the end of their working days and know they will not be able to cover themselves as individuals once they start working. If the new Presidential Administration really tackles healthcare reform, then new products like the one being considered by UnitedHealth may be unnecessary.

Is Social Security Going Digital?

jwraight@otplaw.com (Blog Author)7069 — Sat, 06 Dec 2008 08:00:00 EST

According to Government Health IT, the Social Security Administration is considering new programs that would allow its Disability Determination Services to gather medical records electronically. Right now, the disability determinations are made from paper records provided by doctors and hospitals. The story indicates that this is a huge expense to the government - costing over $500 million a year. The Social Security Administration is proposing several programs that would incorporate available technology to make gathering records quicker and less expensive.

This is something that has been in the works for years. Social Security has initiated several programs over the last several years that make the process quicker. Claimants can submit new evidence online and have video hearings (where the claimant is in one office and the Administrative Law Judge is hundreds of miles away). Most law firms that practice this type of law have been investing heavily in the technology and equipment necessary to gather and submit records quickly and efficiently. OTP, with offices all over the state of North Carolina, is doing amazing things with technology. Our Social Security practice, for instance, is almost completely digital and paperless.

Medicare's Benefits Not Always Obvious

jwraight@otplaw.com (Blog Author)6840 — Sat, 29 Nov 2008 08:00:00 EST

U.S News & World Report recently had a story discussing a report from Journal of the American Geriatric Society. The report questioned many Medicare beneficiaries and asked them questions about their health coverage. A third of the participants were tested as unfamiliar or very unfamiliar with Medicare's benefits.

I cannot say that I am surprised by the report's findings. I know lawyers who have a difficult time grasping all of the details about Medicare. The program has different parts, some parts require premiums, and rules for qualification are not always clear. For instance, many people who are covered by Medicare do not know that they have until December 31, 2008 to enroll in the Medicare Part D (prescriptions) program.

Medicare is Important This Time of Year

jwraight@otplaw.com (Blog Author)6476 — Sun, 23 Nov 2008 08:00:00 EST

People who receive Social Security disability for two years automatically become eligible for Medicare. Medicare Part A (hospital visits) is free. There are costs for Part B (office visits) and Part D (prescriptions). New Part D enrollees sign up at the beginning of the year. If you receive Medicare, and need choose a Part D program or change your Part D program, you should visit Medicare's website.

Medicare is a crucial benefit for disabled individuals. Since disabled individuals do not work, they are rarely eligible for private health insurance. The program is not perfect but it allows thousands of disabled individuals to receive needed medical treatment.

New President's Plan on Disabilities

jwraight@otplaw.com (Blog Author)6453 — Sat, 22 Nov 2008 08:00:00 EST

Now that we know who the next President of the United States will be, many people are curious about what changes the new Administration will make to the Social Security disability program. Public statistics make it obvious that the Social Security Administration is currently underfunded and understaffed. Let's hope the new Administration takes the Social Security disability crisis seriously. While we do not yet know specifics, President-elect Obama's website outlines his plan on disabilities. The plan can be seen here.

The plan involves providing the disabled with educational opportunities, promoting equal opportunity, helping the disabled return to work, and supporting community-based living when appropriate. The website does not provide many specifics, but part three of the plan (helping the disabled return to work) sounds like a daunting proposition. As I have noted in previous blog posts, the job market has become very competitive and employers will likely have more job applicants to choose from than ever before. Finding unique and clever ways to help disabled individuals return to work has been a Washington, D.C. idea for a long time. Experience suggests that disabled individuals usually return to work because of a combination of determination, an employer's willingness to take a risk (or a tax break), and not the government's intervention.

One year later, Social Security still doesn't get it.

jwraight@otplaw.com (Blog Author)6426 — Fri, 21 Nov 2008 08:00:00 EST

About one year ago, CBS News did an interview with the Commissioner of Social Security, Michael Astrue. CBS wanted to know why so many applicants waited so long to get a hearing with an Administrative Law Judge. Part of the interview can be seen here:

Commissioner Astrue says the right things and seems to be dedicated to decreasing the time it takes to get a hearing before an Administrative Law Judge. However, the backlogs of applicants waiting for a hearing and the time it takes to schedule a hearing have not significantly changed.

The thing that disappointed me most about what the Commissioner said came during his discussion of the over one million people who applied, were turned down, and did not appeal. He seemed to suggest that those people never should have applied in the first place. It almost looks he never thought before that the people who gave up did so because they were frustrated with the process and were actually deserving applicants.

Unfortunately, high unemployment rates do not translate into higher disability approval rates.

jwraight@otplaw.com (Blog Author)6399 — Thu, 20 Nov 2008 08:00:00 EST

The United States Department of Labor, Bureau of Labor Statistics, has recently released a summary on employment changes during October 2008. Nationwide, the number of unemployed persons increased by over 600,000 people. Clearly, the job market is taking a hit and jobs are becoming harder to find. Other national news sources report that the October numbers were the worst in sixteen years. The Bureau's report can be seen at:

http://www.bls.gov/news.release/empsit.nr0.htm

You might think that with so many jobs being lost it would be easier to be approved for Social Security disability. After all, more people are applying for fewer jobs. Who is going to hire someone with obvious limitations when there are so many healthy and able-bodied people trying to land the few jobs? Clients ask me that all of the time -- what kind of employer would hire them. They assume the Social Security Administration takes the job market into consideration. Unfortunately, Social Security disability claim managers don't care that no one will actually hire sick or injured people in bad times.

The test for someone applying for Social Security disability benefits is whether the applicant is capable of performing substantial gainful employment. In practical terms, this means that Social Security asks whether the applicant is able to earn a little under $1,000 a month. If jobs exist in the national economy that the applicant can physically and mentally perform, then they are not disabled according to Social Security rules. It does not matter that the job pays less than what the applicant used to make, that the applicant has no interest in the jobs available, or that no employer would ever hire the applicant.

It would make sense for the Social Security Administration to lower its standards when the job market is so competitive. After all, a person's ability to work when restricted by physical and mental impairments is partly dependent on the jobs he or she is able to find. I think it also depends on whether employers will hire individuals with disabilities. Why would employers take a chance when so many people without jobs are available to hire? Let's hope the Social Security Administration will take the bad economy into consideration when developing new rules and policies. Otherwise, I predict the backlogs will only increase.

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

toxner@otplaw.com (Blog Author)3434 — Mon, 17 Nov 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.

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

toxner@otplaw.com (Blog Author)3606 — Mon, 17 Nov 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.

The North Carolina Industrial Commission has raised the mileage reimbursement rates

toxner@otplaw.com (Blog Author)4059 — Mon, 17 Nov 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.

US Government bails out AIG

toxner@otplaw.com (Blog Author)4641 — Mon, 17 Nov 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.

North Carolina Supreme Court rules against injured workers

toxner@otplaw.com (Blog Author)4724 — Mon, 17 Nov 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.

Worst North Carolina Industrial Commission ruling I've seen lately

toxner@otplaw.com (Blog Author)5053 — Mon, 17 Nov 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.

Some Workers' Comp lawyers are ripping off injured workers

toxner@otplaw.com (Blog Author)5074 — Mon, 17 Nov 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.

OTP Lawyers speaking around the state.

toxner@otplaw.com (Blog Author)5521 — Mon, 17 Nov 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.

Welcome to the OTP website

toxner@otplaw.com (Blog Author)3433 — Mon, 17 Nov 2008 08:00:00 EST

We're glad you decided to visit our user-friendly website. It's full of free information that will make you smarter as you navigate the complex system of adjusters, lawyers, insurance companies and courts. We specialize in worker's compensation, social security disability and personal injury cases. Browse through the site and let us know if you have any questions or suggestions. Staff email addresses are included, and we have several personnel who speak Spanish. We'll help you in your journey to understanding the law and accomplishing justice.

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 (Blog Author)3591 — Mon, 17 Nov 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 inability 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.

Social Security Administration adds Compassionate Allowances

JWraight@otplaw.com (Blog Author)6323 — Mon, 17 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.

Largest Private Disability Insurer Found Fraudulent

jwraight@otplaw.com (Blog Author)6350 — Mon, 17 Nov 2008 08:00:00 EST

Ever wonder why it often takes over two years before claimants are approved for Social Security Disability benefits? An October 23, 2008 New York Times article is shedding some light on the issue. The story is about a Federal court case in Boston. The nation's largest private disability insurer, Unum, has been found guilty of fraud because the company asks people who qualify for their private disability benefits under Unum's policies to apply for Social Security Disability benefits - even if the claimants have no chance of qualifying!
Private companies like Unum and Cigna make this requirement with the hope that the federal government will pick up their tabs. Most private policies have language that gives these companies a dollar for dollar credit against Social Security disability benefits. For example: If Unum owes a disabled policy holder $1300 per month, but that same individual begins to collect $1000 a month in Social Security disability benefits, then Cigna will only have to pay $300 per month to their policy holder. I have seen in the past where these private companies will actually send their policy holder a bill if they learn someone collected a check for past due disability benefits. The companies also benefit from forcing the disabled to apply for Social Security disability because it allows them to lower their reserves (increase their profits) while their beneficiaries are waiting for decisions from the Social Security Administration.
There are many reasons why it takes so long to navigate the Social Security disability process (like Social Security's limited funding and staffing). However, delays are worsened when large insurance companies insist on trying to pass off their liabilities onto the Federal government. Let's hope the government sticks to its guns on this issue and works hard to prevent obviously able-bodied applicants from clogging up the system.

When the injured worker returned to work he was immediately fired

blog@www.otplaw.com (News Author)13302 — Tue, 09 Mar 2010 08:00:00 EST

Unfortunately this happens all the time.

Our client was an animal control officer for his county. While putting a dog in a cage he injured his back, immediately having pain all the way down his left leg into his foot. His employer accepted the accident as compensable and began directing medical treatment. Key Risk's hand-picked doctor said that although the MRI showed a herniated disk pressing on a nerve, our client could return to "light duty" work.

Our client -- he wasn't our client yet -- returned to work as recommended by Key Risk's doctor. As soon as he returned to work, Key Risk filed a Form 28T and stopped his checks. Within hours of Key Risk cutting off the weekly compensation checks, the employer called him in for a meeting. The county ended up firing the injured worker for "lack of organization."

Ordinarily getting fired for a lack of organization would be pretty unfair. But what happened here was even worse. It certainly looks like Key Risk and the county worked together to get our client back to work, cut off his checks and fire him.

What makes injured workers really vulnerable in these situations is that it takes the Industrial Commission so long to get a case like this to hearing. Even with the Deputy Commissioner putting this on a fast-track basis, it still took seven months to get a decision -- and then the defendants filed an appeal.

The North Carolina Industrial Commission ultimately found that the defendants' conduct was improper and that the plaintiff was entitled to his full benefits from the date of termination ongoing. Tom Clare and John Landry did a great job of showing how absurd Key Risk's arguments were at the hearing. But the case illustrates why we caution our clients about the danger of returning to work before you are 100%.

Workers' Compensation: The IC ruled that the employer, who willingly paid the medical claim and workers comp for the employee's foot injury, must also pay for pain management because this injury aggravated the employee's pre-existing fibromyalgia and hypertension and was now considered a chronic condition. Although it is tough to win these claims we can usually do it if we the treating physician will agree that the pre-existing condition is worse now than it was and that this change is due to the worker's comp accident.

blog@www.otplaw.com (News Author)9066 — Sun, 21 Jun 2009 08:00:00 EST

When our client, a long-time employee for a dentist, was out of town at a medical conference, she fell because of a hole in the sidewalk and fractured a bone in her foot. The group was on its way to a restaurant but because this conference was a work-related event, she received workers' compensation benefits. This foot injury made other health problems worse for her. We convinced the Industrial Commission that the employer should be responsible for pain management medical payments so that our client could learn to deal with her health concerns. The problem was that the treating physician that our client really wanted as a doctor did not accept workers' compensation. It is important to realize that the Industrial Commission cannot force a doctor to take a workers' compensation patient.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

Workers' Compensation: The Industrial Commission denied the employee's claim for temporary partial disability compensation. The Commission ruled that the reduction in wages that our client received was because of problems with the company's workload due to the economy. It was determined that he didn't receive less pay because of his injury or from the less-paying job within the company that he had to take because of the injury.

blog@www.otplaw.com (News Author)9065 — Sun, 21 Jun 2009 08:00:00 EST

Although this case was not a "win" for us, it's important to note that an attorney is needed when you have a complicated case. We did get the employee the correct amount of weekly workers' comp he was due because of the injury to his wrist from the wooden pallet falling on it. But the change in the number of employees at the company (from 500 to 19 due to layoffs) was determined as the reason the employer didn't have a job for the client. It is important to determine if temporary disability pays more than unemployment and take the best route from there. The hearing did set the stage though for a significant settlement a few months later on. Why? Well in the course of showing that the lack of work for plaintiff was due to the bad economy and not his injury the defendants basically admitted that there was no other work available anywhere else. They basically boxed themselves in so when the plant completely closed we already had proof they would never find another job for our client.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

Workers' Compensation: The NC Industrial Commission determined that the employer was required to pay our client's medical bills and also continue workers' compensation payments until our client could find a job with his limited physical capabilities. The employer was unable to find work for him at the company and he was fired, which was unacceptable, although it was explained by the employer as happening because of excessive absences.

blog@www.otplaw.com (News Author)9067 — Sun, 21 Jun 2009 08:00:00 EST

Our client's three back injuries had a collective effect on his health and surgery was required. He was not at fault when he missed work due to surgery. And it was not his job to find a position within the company that he could do with the limitations resulting from his back problems. One thing to note in this case -- even though our client was not a good record keeper and didn't keep track of all dates, conversations and information, we still won. But it's much easier for everyone if you start documenting what's going on with your workplace injury as early as possible.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

Workers' Compensation: The North Carolina Industrial Commission threatened to hold CNA in contempt of court because they refused to authorize the medical tests which would prove that the plaintiff was unable to do his job. This was a classic example of an adjuster getting an opinion from a reliable doctor and then refusing any other evaluation which could help the injured worker.

blog@www.otplaw.com (News Author)8131 — Tue, 14 Apr 2009 08:00:00 EST

This case was a big win for us and illustrates the problems which come from combining company doctors and rehabilitation professionals who don’t strictly follow the rules. Our client had fallen and injured his shoulder which ultimately led to surgery. The surgery went pretty well, but our client still had problems and his job required him to be climb ladders and carry heavy objects. Having a bad shoulder really hurt the way he could do his job.

The defendants’ rehab professional violated the Rehabilitation Rules by having a private conversation with the doctor which led to a very low rating. Worse yet, the doctor released our client to return to work without any restrictions at all – even though the doctor had no idea what our client did for a living! When we got the Industrial Commission to order a Functional Capacities Evaluation, the adjuster simply refused to schedule it.

We successfully convinced the Industrial Commission that the workers’ compensation insurance company, CNA, was violating the law. Indeed the Commission ordered the Functional Capacities Evaluation to be completed within 30 days and threatened to hold the adjuster in contempt of court (with possible jail time) because we would not let this issue go.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

Workers Compensation: The North Carolina Industrial Commission held that National Benefits Association had wrongfully denied this claim for more than a year...but only when the Industrial Commission finally heard all the evidence -- that the employer admitted that they knew the plaintiff was hurt, that they had sent him to a doctor but didn't follow his direction, and that there was no way our client could do his job with his severely-injured back.

blog@www.otplaw.com (News Author)8133 — Tue, 14 Apr 2009 08:00:00 EST

How unreasonable can an employer and the employer's insurance company be in denying a claim? This case. involving National Benefits Association and a steelworker, perfectly illustrates “deny and buy."

Our client was lifting steel at work when he felt an immediate onset of pain. This was reported to his supervisor, the job foreman and the company’s safety manager. The employer sent our client to the doctor who ordered only light duty work for the steelworker. The company, though, promptly disregarded the light duty restrictions. Unfortunately, that’s not unusual in our experience. Neither was the fact that the employer then refused to authorize a return visit to the doctor. Since he was in such intense pain, our client had to take himself out of work. The employer then decided to send our client to their hand-picked doctor for a second opinion – but then they refused to authorize the MRI this doctor requested. The combination of all this confusion left the plaintiff out of work and without either medical or financial benefits. Fortunately, he was able to survive financially by taking another job.

He agreed that it was important to take this case to a hearing rather than settling for a nominal sum. At the hearing, we cornered the employer’s witnesses who admitted that they had no real light-duty work available for our client. We were happy to win the claim for ongoing medical treatment. As is often the case, however, we had to appeal a portion of the Opinion and Award because it did not provide for enough weekly benefits for our client. The claim ultimately settled while the appeal was pending.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

Workers' Compensation: North Carolina Industrial Commission says Liberty Mutual must provide yardcare and housecleaning to an injured brickmason.

blog@www.otplaw.com (News Author)5297 — Fri, 20 Mar 2009 08:00:00 EST

Our client, a brick mason, fell and injured his back. After lengthy treatment he was able to walk -- but awkwardly with a cane. He needed modifications to his kitchen, bathroom, and other parts of his house to make it easier for him to get around. Additionally, because he had difficulty keeping the house and yard up to proper standards the Industrial Commission ordered Liberty Mutual to provide a housekeeper and a yardboy.

Additionally, we were able to prove that our client had previously roofed his own house and painted it. So when the house required a new paint job Liberty Mutual had to pay for it.

The key to this case was our willingness to hire an expert to go with us to our client's house, meet with him, and make recommendations as to what he needed. This is an example of why spending a $1,000 up front can payoff ten or twenty times that in the value of the case. Plus we had negotiated with Liberty Mutual's attorney upfront that they would accept the expert's recommendations. In a calculated gamble we used an expert which Liberty Mutual themselves often hired. Faced with our client's devestating injury she did the right thing and documented that he needed yardcare, housecleaning, and general attendant care.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

Workers' Compensation: North Carolina Industrial Commission rules that a restaurant dishwasher who slipped and fell, and was taken straight to an emergency room has proven that he was injured on the job.

blog@www.otplaw.com (News Author)5296 — Fri, 20 Mar 2009 08:00:00 EST

In another failed attempt at "deny and buy" (the insurance industry trick of denying an obviously good claim in the hope of starving an injured worker into a cheap settlement) this restaurant denied the workers comp claim when their dishwasher slipped on a piece of butter, fell on his back, and was taken to the emergency room.

While it isn't recorded in the Opinion and Award the defendant first tried to claim that our client wasn't even on the job. Fortunately we'd immediately made copies of his time card -- so we were able to prove that was, in fact, there. This claim got ugly fast as the defendants poured thousands of dollars into trying every dirty trick in the book. We fought back with a series of tape-recorded interviews, our own investigator, and relentless pressure on a defendant who was willing to do almost anything to avoid payment of the claim.

This case was not easily won, however. The uninsured owner of the restaurant poured money into his defense, using one of the highest profile attorneys in the state to argue the case to the North Carolina Court of Appeals and back.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

Workers' Compensation: North Carolina Industrial Commission finds that Diebold and Broadspire MUST pay weekly benefits even after they fired the injured worker from her "light duty" job.

blog@www.otplaw.com (News Author)5755 — Mon, 16 Mar 2009 08:00:00 EST

We are skeptical of "light duty work" for a whole lot of reasons and this case illustrates several of them. Our client in Lexington had an assembly job with Diebold. She injured her shoulder and the employer began directing her medical care. Notably, however, they refused to file a Form 60 or a Form 63 formally accepting the claim. They sent her to the company doctor who, pretty reliably, returned her to light duty work instead of taking her out of work.

Nearly immediately upon return to work with a 5 pound lifting restriction Diebold moved her to a different job which required her to lift over 40 pounds regularly. Without any other way to pay her bills our client had to try to stick it out. Like many employers and insurance companies, Diebold and Broadspire responded by writing her up for allegedly being less than five minutes late to work. They followed this up with another write-up for a highly disputed instance of tardiness and fired her.

Not surprisingly Broadspire declined to start her on weekly checks.

Like many injured workers this hard-working woman hadn't wanted to hire an attorney. Yet at this point she had no other options. She hired us and we sent her back to an authorized orthopedic surgeon who wrote her out of work. We immediately filed a Motion to Reinstate Benefits, however the Industrial Commission denied this due to Broadspire's failure to formally accept the claim. (Rather than punishing Broadspire for this violation of the law, the Industrial Commission effectively punished our client by requiring her to go to a full hearing without any weekly income at all.)

After the hearing and doctor's depositions the Industrial Commission correctly ruled that Broadspire had illegally failed to accept or deny the claim. The NCIC also held that Diebold had violated the light duty restrictions and therefore plaintiff should not have been at work -- and thus shouldn't have been exposed to the risks of termination. The NCIC proceeded to order weekly benefits paid from the date of termination ongoing as well as all medical treatment necessary to get plaintiff better.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

Workers' Compensation: North Carolina Industrial Commission rules against The Hartford Insurance Company and holds that a nurse who was still on her employer's property when she was hit by a car is within the course and scope of her employment and entitled to workers' compensation benefits.

blog@www.otplaw.com (News Author)5754 — Mon, 16 Mar 2009 08:00:00 EST

Our client, a nurse at a private college, was on her way to lunch when she was hit by a speeding student. For nearly two years no attorney would touch her case. The problem was that while the Industrial Commission admits that a workers is still within the course and scope of their employment if they are injured in the company-owned and controlled parking lot, our client had left the parking lot at the time of the auto accident.

We had met with our client to handle the personal injury claim against the student who hit her. No one had been willing to take the workers compensation case before but we decided to consider it. During the course of tallking the facts through with several of our attorneys we developed an argument which proved successful. The rationale behind the "parking lot rule" is that a worker is acting to the benefit of the employer even while walking in/out of the job. The employer should be responsible for injuries in the parking lot if they own and control it or, in other words, have the capacity to keep it a safe place. That rationale should extend to the full extent of an employer's property. The side argument in this case was that the university campus was particularly risky given the concentration of young drivers who are known to be more accident-prone that older drivers.

We discussed the idea with our client and, making no promises of success, agreed to take this case straight to a hearing. The final Opinion and Award is a little anticlimactic because it doesn't detail the lengthy arguments presented for and against awarding our clients benefits. While Hartford Insurance promises an appeal we are confident that we've got a solid argument going in to the Full Commission.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

Workers' Compensation: North Carolina Industrial Commission: The Vocational Rehabilitation Professional, from Page Rehabilitation, had a "strained interpretation of suitable employment and the duration of her proposed job search raises serious questions as to whether her objective was to benefit plaintiff or defendants."

blog@www.otplaw.com (News Author)5299 — Mon, 16 Mar 2009 08:00:00 EST

Our client, a truck driver, had earned nearly $1000 per week as a tractor-trailer driver. His truck flipped and he suffered head injuries and back injuries. He couldn't return to work as a truck driver. As is often the case the insurance adjuster assigned a vocational rehabiliation professional to have him look for work.

We proved the vocational rehabiliation professional from Page Rehabiliation (one of the largest and most aggressive vocational rehab companies) completely disregarded the Industrial Commission rules for job searches. These included her request that our client put in for $8/hr jobs, part-time jobs, look for jobs 30 miles from his home, and continued the job search when it should have been obvious that he wasn't going to find suitable employment.

This case is an example of why adjusters love vocational rehabilitation. Indeed many of them use a short-hand verb. "To voke" an injured worker is to try to drive the plaintiff into giving up by having him look for terrible jobs. In fairness, some vocational rehab professionals refuse to cooperate with such goals, and nearly all get angry at the term "to voke." Fortunately our client was willing to stay the course, and we had this rehab provider removed from the claim.

Footnote: We also learned a lesson in this case. The Industrial Commission is no longer satisfied with just tearing up defendants' witnesses. We needed to hire our own experts to put on the necessary evidence. In this case we produced sufficient evidence after the claim that defendants settled on terms quite favorable to our client.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

Workers Compensation: North Carolina Industrial Commission shows we beat both AIG and Zurich in proving that this truck driver for a brick company had two separate accidents which both injured his knee, ultimately disabling him.

blog@www.otplaw.com (News Author)5298 — Mon, 16 Mar 2009 08:00:00 EST

This case illustrates a rare, but difficult situation. Our truck driver client had two separate accidents and didn't report either of them until a month or so after the second. Which accident lead to the need for surgery? Often it doesn't matter but in this case the employer had changed insurance companies in the interim. Neither wanted to take responsibility for it.

The biggest weakness in the case was our client's delay in reporting the claim. In fact he didn't do so until he found out he needed surgery. The next biggest problem was that he didn't get his information lined up beforehand. He described the facts of the accident but had it occuring in the wrong month. This gave the company's safety manager a cheap and easy excuse to deny the claim.

We took statements from a coworker and put the employer's safety manager on the stand immediately. We forced her to admit that the injured worker had indeed reported the claim to the company although to the wrong supervisor. However it is the Industrial Commission which defines the rules for reporting the claim -- not an adjuster or safety manager. We also forced her to admit that while our client put the initial accident in the wrong month she could very easily have confirmed the correct date by all of the other facts which he did have straight.

As a side note, several months after this one of the insurance company's witnesses referred a friend of hers to us for another denied claim. After having been involved in dozens of hearings she said this was the one time that the plaintiff's attorney was in complete control of the hearing from start to finish and her attorneys didn't stand a chance.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

Workers' Compensation: North Carolina Industrial Commission sanctions against the insurance company for failing to accept a claim when our client, an insulation installer, was in an auto accident.

blog@www.otplaw.com (News Author)5295 — Mon, 16 Mar 2009 08:00:00 EST

Our client was an insulation installer on his way to a job site. He was the passenger in a company truck which got in an accident and rolled over. In a classic example of insurance company delay tactics the adjuster refused to accept or deny the claim. When we filed a written request to the Industrial Commission to force a decision in this obvious case, the insurance defense attorney blatantly lied to the Commission claiming that benefits were being paid on a Form 63.

This story fell apart at the hearing and the insurance company took the creative approach of arguing that while the truck rollling over and, yes, the plaintiff had to be taken to the emergency room for treatment there was not enough evidence for them to determine if the treatment offered at the emergency room was related to the accident. It would be funny if it hadn't taken our client nearly a year to get the benefits he should have had from the start.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

North Carolina Industrial Commission: A restaurant manager who suffered gunshot wounds in a hold-up is entitled to a yard worker and a housecleaner because he cannot do much of his own work anymore.

blog@www.otplaw.com (News Author)5254 — Mon, 16 Mar 2009 08:00:00 EST

Our client had gunwounds to his hand, shoulder, and thigh. As a result of these he struggles to do his own yardwork and housecleaning. Given that he had been able to do all of this before he was shot in a robbery outside his Charlotte restaurant we believed that GAB Robbins and Royal Insurance should provide assistance with this.

Unfortunately plaintiff's doctor, an excellent surgeon, was not willling to go along with this idea. When he was quizzed about the North Carolina Industrial Commission's requirement of all medical treatment necessary to "effect a cure, provide relief, or lessen the period of disability" he noted that a yardboy would provide relief to anyone -- whether they were on workers compensation or not.

Fortunately, we had already had an expert in the area of attendant care meet with our client at his house. While the surgeon didn't see what was really necessary he did agree to defer to this expert. The North Carolina Industrial Commission agree with us and awarded the requested services.

This is a real example of being prepared. Had we walked into the doctor's office without the expert's statement we would have walked out losing the case. By arranging for this ahead of time we won what GAB Robbin's adjuster thought was an impossible case.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

North Carolina Industrial Commission: Hartford Insurance wrongfully used a "pre-existing condition" as an excuse to deny an automotive tech's workers' comp claim

blog@www.otplaw.com (News Author)5253 — Mon, 16 Mar 2009 08:00:00 EST

Our client, an oil change technician, injured his back rotating tires. He had previously injured his back while working in construction but did not require surgery. He settled his first workers' comp claim and changed jobs into something easier.

While this should have been obviously a compensable claim given that he complained of pain immediately while working, the adjuster from Hartford employed an old "deny and buy" trick of denying the claim because she couldn't tell whether or not the current need for surgery was due to the old accident or the new one. Plaintiff's neurosurgeon was perfectly clear about it but Hartford apparently wanted to see if the automotive tech would fold and settle cheap.

Fortunately he didn't and Hartford Insurance ended up paying the claim.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

North Carolina Industrial Commission: Adult daughters of this injured Lexington Memorial Hospital worker were entitled to compensation for taking care of their mother.

blog@www.otplaw.com (News Author)5252 — Mon, 16 Mar 2009 08:00:00 EST

Our clients were the children of a cafeteria worker who broke her pelvis when she slipped and fell, with a cart landing on top of her. While they had willingly taken care of their mother, who passed away from other causes, they came to us when Cambridge's adjuster refused to even pay their mother's rating for her fracture.

We retroactively obtained evidence of the need for attendant care and also of the permanent partial disability rating, and won both of these fights at the North Carolina Industrial Commission.

We also tried to find a link between our clients' mother's death from COPD and her being bedridden. While it made sense to us that this would have worsened by her lack of exercise her physicians explained that she was in pretty bad shape already at the time of the fall. While we lost on that point we firmly believe it is critical to be (a) willing to lose and (b) never give up trying to win.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

North Carolina Industrial Commission: Family members are entitled to be paid for providing attendant care.

blog@www.otplaw.com (News Author)5251 — Mon, 16 Mar 2009 08:00:00 EST

Our client fell and injured her elbow, ultimately requiring surgery. She then contracted a terrible case of Reflex Sympathetic Dystrophy which largely confined her to a wheelchair. We persuaded her physicians to order attendant care for her (having someone help with her activities of daily living) as well a major renovations to her house to make it wheelchair accessible.

The adjuster initially agreed to provide attendant care but couldn't find anyone in this rural area to do it. The adjuster refused to pay family members to provide the care. The North Carolina Industrial Commission ruled in our favor.

Note: in this Opinion and Award the NCIC also required defendants to build a new house for the plaintiff. This was subsequently overturned. Defendants instead spent over $100,000 in modifications.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

North Carolina Industrial Commission: In this case with Kemper Insurance company the NCIC found that the employer, Cintas, "schemed" to fire plaintiff while she was on light duty.

blog@www.otplaw.com (News Author)5126 — Mon, 16 Mar 2009 08:00:00 EST

The workers' compensation adjuster at Kemper Insurance accepted this claim as compensable and sent this injured laundry worker to the "company doctor" who told her to work light duty. When she did this she was soon fired from the job. Through extremely aggressive courtroom tactics we produced evidence that the North Carolina Industrial Commission described as follows:

"Employer terminated plaintiff as part of a scheme between Mr. Barnes and Mr. Williams and not due to any fault or misconduct on the part of plaintiff. Mr. Barnes and Mr. Williams specifically created a scenario under which they could terminate plaintiff and claim that it was for absenteeism. Mr. Barnes and Mr. Williams continued this scheme through their sworn testimony"

Unfortunately we see this happening in most cases where injured workers go back to their jobs too soon. While this time it was in Greensboro, North Carolina we've seen it occurring throughout the state.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

North Carolina Industrial Commission: When are you "on the job" to be covered by workers' compensation?

blog@www.otplaw.com (News Author)5123 — Mon, 16 Mar 2009 08:00:00 EST

My client, a collections worker for Oakwood Homes, was asked to participate in a fundraising event for charity. While he was off the clock everyone in his department was doing it and he was pressured to help out. Unfortunately while working on the project he seriously injured his back.

The workers' compensation adjuster from ACE USA denied the claim and basically tried to starve the injured worker into a settlement. He refused and we took this case to hearing even though most similar cases had gone down in defeat. Our willingness to take risks was rewarded with a big win for our client.

The key bit of testimony was that the employer benefitted from the "team-building" aspects of the project, and thus while it was technically for charity the employer profited from it as well.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

North Carolina Industrial Commission: Facing down the Argonaut workers' compensation adjuster in a disputed carpal tunnel case

blog@www.otplaw.com (News Author)5120 — Mon, 16 Mar 2009 08:00:00 EST

The workers' compensation adjuster at Argonaut Insurance Company denied this carpal tunnel syndrome case for a truck driver. The injured worker came to us for help based on the referral from a friend. We retained an ergonomics expert who testified that the vibration coming from the steering wheel and the gear shifter could cause carpal tunnel syndrome. With this piece of evidence we refused to settle at a mediation and took the case to a hearing. Without it we surely would have lost the case. Defendants sought permission to send our client to their hand-picked doctor; however we prepared our client for this visit and sent him with the ergonomics report. Even the insurance company doctor had to concede the point in the face of our ergonomics report. The workers compensation defendants dropped their denial and gave in even to our choice of treating doctors.

Our client underwent successful surgery, collected his permanent partial disability ratings, and is back at work as a truck driver.

Click to read the Industrial Commission decision. User name is "public" and there is no password.

North Carolina Industrial Commission: OTP Lawyers stepped in to save an injured plumber whose original lawyer couldn't get the job done against Key Risk.

blog@www.otplaw.com (News Author)5122 — Mon, 16 Mar 2009 08:00:00 EST

We don't go out of our way to get involved in other North Carolina lawyer's cases. But when we see an injured worker who isn't getting the help he needs in his workers' compensation case we'll intervene. Sometimes this is when the other attorney is passing all of the work off onto paralegals and doesn't have time for the injured worker. Other times it's when the attorney won't return phone calls. In this case the original attorney, a well-known auto accident defense attorney, was trying his hand at representing an injured worker. While he was inexperienced at this type of law Key Risk's lawyer wasn't and was beating the plaintiff badly. The original attorney got in over head at the hearing and basically threw up his hands and went no further.

We were able to get involved in the case, get the medical evidence we needed, succussfully got the insurance company's doctor to change the date of maximum medical improvement so that we could obtain far more in benefits than our client expected, and secured lifetime medical benefits for this injured plumber to boot.

Click to read the Industrial Commission decision. User name is "public" and there is no password.