Attorney Blog

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's 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 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 clear 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’s 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.

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 their families again.” Those are the most common answers. In over fifteen years I’ve never had anyone tell me they 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 family, 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.

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 has 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, 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Largest Private Disability Insurer Found Fraudulent

jwraight@otplaw.com (Blog Author)6350 — Wed, 19 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.

Social Security Administration adds Compassionate Allowances

JWraight@otplaw.com (Blog Author)6323 — Tue, 18 Nov 2008 08:00:00 EST

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

OTP Lawyers speaking around the state.

toxner@otplaw.com (Blog Author)5521 — Mon, 20 Oct 2008 08:00:00 EST

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

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

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

Some Workers' Comp lawyers are ripping off injured workers

toxner@otplaw.com (Blog Author)5074 — Sun, 05 Oct 2008 08:00:00 EST

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

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

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

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

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

Worst North Carolina Industrial Commission ruling I've seen lately

toxner@otplaw.com (Blog Author)5053 — Fri, 03 Oct 2008 08:00:00 EST

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

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

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

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

North Carolina Supreme Court rules against injured workers

toxner@otplaw.com (Blog Author)4724 — Sun, 21 Sep 2008 08:00:00 EST

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

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

US Government bails out AIG

toxner@otplaw.com (Blog Author)4641 — Wed, 17 Sep 2008 08:00:00 EST

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

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

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

The North Carolina Industrial Commission has raised the mileage reimbursement rates

toxner@otplaw.com (Blog Author)4059 — Wed, 20 Aug 2008 08:00:00 EST

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

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

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

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

toxner@otplaw.com (Blog Author)3606 — Thu, 24 Jul 2008 08:00:00 EST

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

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

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

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

toxner@otplaw.com (Blog Author)3591 — Wed, 23 Jul 2008 08:00:00 EST

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

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

The standard for getting SSD is the 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.

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

toxner@otplaw.com (Blog Author)3434 — Sun, 13 Jul 2008 08:00:00 EST

I've got a list:

Insurance company adjusters who take advantage of an injured workers' unfamiliarity with the law.
When the Industrial Commission rules against an injured worker on a technicality (I believe a tie always goes to an injured worker).
Workers' Comp attorneys who let adjusters run all over their clients.
Attorneys who do not provide educational materials to their clients to help them understand what is going on in the case.
Workers' Compensation attorneys who claim they are "aggressive, experienced, determined, etc.," but never take tough cases to hearings.

Welcome to the OTP website

toxner@otplaw.com (Blog Author)3433 — Sun, 13 Jul 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.

When the injured worker returned to work he was immediately fired

toxner@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 count 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 of 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 defendants filed an appeal.

The North Carolina Industrial Commission ultimately found that 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 Neck Surgery case

toxner@otplaw.com (News Author)13259 — Fri, 05 Mar 2010 08:00:00 EST

The North Carolina Industrial Commission ruled that our client, a part-time maintenance worker, did not have to accept a highly-modified position with her employer. This was true even though the company doctor had released her to return to work without any restrictions just two months after performing a complex surgery -- a cervical fusion -- on her.

When she came to us our client was represented by a different attorney in Charlotte. She was in something of a panic. The insurance companies, Virginia Surety Insurance and First Comp insurance, had sent her to a neurosurgeon who had released her without any restrictions at all. She was still in pain, didn't think she could do her job, and to make things worse the insurance company had filed a Form 24 asking the Industrial Commission to cut off all of her benefits.

You wouldn't think things could get any worse -- but they did. Her attorney told her that there was no defense to the Form 24 and that he wasn't even going to oppose it. Instead he arranged to have a meeting with the insurance attorney to talk about a settlement in the case.

Lou Waple met with her and laid out a plan of action. First, he obtained medical evidence that showed our client really couldn't return to work. He used that to knock down the defendants' Form 24 and guaranteed that our client would continue to get her weekly checks for at least several more months.

Lou then turned to getting her additional treatment in order to restore her health and pre-injury abilities.

When she had a better handle on where she stood medically our client entered into settlement negotiations. When these didn't achieve the goals we needed to be successful Lou took the case to a hearing, winning an important decision before the Industrial Commission. Not only did the Commission uphold the earlier decision to keep her checks intact, it ruled that the company doctor had erred in releasing her to work without any restrictions, and that the plaintiff could have pain management with a doctor of her choosing.

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.

toxner@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.

toxner@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.

toxner@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.

toxner@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.

toxner@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.

toxner@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.

toxner@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.

toxner@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.

toxner@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."

toxner@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.

toxner@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.

toxner@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.

toxner@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

toxner@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.

toxner@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.

toxner@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.

toxner@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?

toxner@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

toxner@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.

toxner@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.