Personal Injury

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Frequently Asked Questions

Will the money from my settlement come directly to me?

Not usually. If your personal injury case is settled with the insurance company of the person who caused your injuries, there are often a number of post-settlement issues that will need to be resolved before proceeds can be distributed. For example, you may have unpaid medical bills, or, if you have health insurance, your health insurance company may have a lien on the settlement proceeds for reimbursement of the money paid for your medical bills for treatment from the accident. Another lien comes up when your injury was a result of an"on the job" accident. In that case, if you also have a workers' compensation insurer paying you benefits, that insurer will have a lien on your personal injury settlement for the benefits they paid. If you cannot resolve this issue with the workers' compensation insurer,a petition may need to be filed to have the matter resolved by a superior court judge. And yet another lien can occur when medicaid or medicare pays your medical bills from the injury case. The bottom line is that almost every case has one or more of these types of post-settlement issues. Your attorney should spend plenty of time investigating each of these possibilities, exploring whether the lien or claim is valid and explaining the options to you. Many times your attorney can negotiate a reduced payment on these liens or claims. We do this work on behalf of our clients as part of our overall representation of your case.

Will my attorney keep our conversations confidential?

Yes. Absolutely. A lawyer can never repeat what has been said to him or her. That's true whether or not we agree to represent you. Being confidential is one of the most important aspects of being a lawyer. You never have to worry about your personal business getting out.

Why is my personal injury case required to go through mediation?

The North Carolina Rules of Court require that every case filed in Superior Court be mediated. Mediation is an informal gathering where all parties and their attorneys, if the parties are represented, meet with a neutral party -- the mediator -- to find out if a settlement can be reached. This not optional. In addition, there is a cost associated with mediation because the mediator is paid by the parties. The good news is that for parties who are motivated to resolve their differences, mediation provides a great opportunity to do so because everyone is present and not distracted by other matters while the mediation takes place. During mediation, each side can state its case and air concerns in a confidential manner. This can take a few hours or all day depending on the complexity of the case or the differing opinions. Typically, part of the mediation is spent with all parties in the same room and part of the time is spent with the parties divided into different rooms. The mediator assists in developing the discussion either way. Mediation more often than not settles cases, and good mediators can be very creative in developing settlements with the parties. The key to success in mediation is preparation. Every case that settles in mediation has a common characteristic: that neither side got what they wanted. It is important to understand that going in to mediation because the name of the game is compromise. Of course, sometimes parties come to mediation with unwavering positions and that makes it harder to reach an agreement. And in those instances, that party is saying we'd rather go to court than compromise. Regardless, it's in your best interest to come ready to make a deal, and your attorney will help you develop a mediation plan.

What should I say to the adjuster?

Shortly after your accident and once your vehicle insurance carrier has been notified, the adjuster will call you for your statement. Our advice is to tell her that she can speak directly with your attorney or speak with you when your attorney is present (on a speaker phone in our office). You are not obligated to respond to the adjuster, even if you decide not to hire an attorney. You could just send the adjuster a copy of the police report which should contain all the information needed to determine whether or not a payment will be made against your damage claim. Adjusters work for the insurance company and not for you. Some adjusters try to trick you with questions that can make it sound like the accident was your fault. Our advice is to ask us for advice.

What should I bring to my personal injury consultation?

1. The accident report that details the police officer's comments.

2. Any photos you have from the accident (your vehicle damage, other vehicles, the scene, injuries taken right after the accident or of injuries that showed up later -- bruises, surgery wounds, etc.)

3. Your vehicle insurance declaration page. This summary page includes the amount of coverage your personal insurance handles for vehicle damage.

4. Receipts for out-of-pocket expenses, including medical co-pays, over-the-counter medications or other expenditures not covered by your health insurance.

5. Any correspondence you have received from the insurance companies of the other people involved in the incident.

What is Martindale Hubbell?

Martindale Hubbell is the oldest, and certainly the most reliable, rating and evaluation service for lawyers. Not all lawyers have been ranked by Martindale Hubbell as it is a purely voluntary process.

Once a lawyer agrees to be evaluated by Martindale Hubbell they have no further input into it.Martindale goes to other lawyers, judges, deputy commissioners, etc., and asks them to anonymously rank the attorney's ethics and skill level.

If a lawyer is given a "V" for "Very High Ethics" Martindale goes on to give an "A, B, or C" ranking for skill level as follows:

CV Peer Review Rating — The CV certification mark is a good first rating for lawyers and a definitive statement of their above-average ability and unquestionable ethics. This is the maximum rating a lawyer can receive who has been admitted to the bar from 3-4 years.

BV Peer Review Rating — The BV certification mark is an excellent rating for a lawyer with more experience. This is the maximum rating a lawyer can receive who has been admitted to the bar from 5-9 years.

AV Peer Review Rating — An AV certification mark is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence. A lawyer must be admitted to the bar for 10 years or more to receive an AV® rating.

What is Board Certification? Does it matter?

All lawyers in North Carolina are required to graduate from law school (usually taking three years to do so), pass a half-day ethics examination, and then pass a two-day bar examination. After that you can call yourself a lawyer and practice any area of the law you like. Ethically we're required to seek assistance in a case if we aren't really competent in that area of the law. Less than 2% of all attorneys who attempt a much more difficult examination, the Board Certification exams, actually pass.

To even sit for the exam a lawyer must have several years of experience in the particular field, have undergone extensive additional training in that area of the law, have many of their cases reviewed to see how well they performed, undergo a secret evaluation by your competitors, and then take a one-day examination. Then, and only then, may you use the term "specialist" to describe yourself.

Does this matter for your case? There are good attorneys who have not taken the specialization exam. However when you have the opportunity to go with a firm with multiple specialists ora firm with none it may not make sense to go with the firm which has no specialists.

What is an expert and will I need one to help with the presentation of my case?

It is the Plaintiff's responsibility to bring forward enough evidence to satisfy a jury or judge who is deciding issues in the case. As part of that process, we sometimes hire experts to give opinions about particular issues. An expert is an independent evaluator with advanced technical knowledge who reviews the facts and circumstances of your case to formulate opinions to assist the judge and jury with decisions in the case. Examples can include doctors (who can state an opinion on the cause of an injury, physical pain and limitations), economists (who analyze lost wages, benefits and vocational prospects when you're out of work or if there's a death) and accident reconstructionists (who re-create a construction or traffic accident). Often, the expert will be counted on to provide his or her opinion in a deposition or at trial or both.

The decision to hire an expert is on a case by case basis. Sometimes an expert can assist with case preparation because their expertise can help the attorney ask for the right documents in discovery, etc. Additionally, experts are used to support a part of your case that is being challenged by the defendant (or that you expect will be challenged). In a medical malpractice case, you cannot even begin to pursue your case without an expert opinion from another doctor that malpractice has occurred. One thing is almost always certain, you can expect to be challenged by the defendant on one or more issues in your case. When that occurs, it is important to have as much support for your position as possible. And when that contested issue involves technical knowledge beyond your knowledge, you will need experienced, trained professionals to help explain your position. Defendants hire experts and so should you, when recommended by your attorney.

Your attorney will find experts who are best equipped to help with your case and who are familiar with industry standards. Unfortunately, expert opinions are not free. Nor will experts often work on a "contingency basis" as many plaintiff's attorneys do. Experts typically bill by the hour and expect to be paid regardless of the outcome of your case. In addition, they often require up-front retainers. So, the decision to hire an expert is one that should be considered early on in your case. Although things happen in the course of litigation that may change a decision about hiring experts, usually attorneys will know that they need certain experts prior to filing a lawsuit.

Therefore, if you cannot afford to hire an expert you may be limited in your ability to pursue your case. This is one of those "costs" that make litigating cases difficult for most people. Be sure to have an open discussion about experts, expert fees and all costs at the beginning of your case. And if you don't understand the need for an expert in your case or who will pay for it, ask your attorney.

What is an accident reconstructionist?

Your attorney may feel that in order to best explain the accident, which will help you get the best settlement, it is necessary to bring in a professional who analyzes the scene. An accident reconstructionist can do this even after the roadway has been cleared. He or she works mostly on complicated cases and can look at skid marks, take measurements, read statements from witnesses, review the weather conditions and also consider street lighting in the area. This expert may also examine your vehicle to determine where and how it was hit.

What is a Pain Suffering Diary?

In order to document the aftermath of the affects of the injury on you and how it affected your lifestyle, it is important to maintain a pain and suffering diary. On a calendar or in a notebook -- actually just on a piece of paper will work -- begin writing notes describing each day, as soon after the accident as possible. Because some cases can be delayed or last for more than a year, it is important to have this information because it may be difficult later to recall details. In your pain and suffering diary, take note of what hurts, to what degree you would describe the pain, etc. Include on what dates you visited your doctors. And be sure to note what events or life happenings you are forced to miss because of your injuries.

What is a Mediated Settlement Agreement?

This document includes the terms of an agreement which was reached at a mediation as the result of negotiations between the parties. It usually contains a Compromised Settlement Agreement (also known as a Clincher -- see that FAQ for more information.)

What is a Board Certified Specialist? Why does it matter?

In order to call yourself a "lawyer" you have to be licensed by the North Carolina State Bar. Licensing occurs after three years of law school, an interview with the State Bar, passing a half-day ethics examination, and then passing a two-day examination on State and Federal law.

The State Bar has an optional level known as the Board Certified Specialists.Less than 2%of all attorneys have passed this level of certification.To do so you must have practiced law for several years focusing on a particular field, submit a number of completed cases for review, undergo an anonymous evaluation by a number of other attorneys, and complete a one-day written examination in your area of specialty.

Do you need a Board Certified Specialist? In our opinion it's like going to the doctor. If you can have an operation with a neurosurgeon why would you risk having it done by your family doctor? You only get one chance to get your case resolved correctly. Therefore it's important to get an attorney who really knows what he or she is doing.

What is a 9(j) opinion?

The law of North Carolina, as codified in the NC General Statues, section 9(j), requires that a person injured by a doctor's negligence must obtain an opinion from a certified doctor that the treatment given was below the standard of care. This expert testimony must be from a doctor who is practicing (or practiced) in the specialized area of medicine where the alleged malpractice occurred (ex. cardiovascular, orthopaedic, etc.) at the time the alleged malpractice occurred. In addition, the certified doctor must be familiar with the standard of care for treatment within the medical community in which the alleged malpractice took place. Before an injury victim can consider going forward, he or she must have these opinions.Costs for these opinions are incurred and required to be paid up front, before it's even determined if you have a case. For people injured by a doctor's or hospital's mistake, the requirements of section 9(j) mean that a lot of money must be invested in a case before it begins. And as a result of this hurdle, many medical malpractice cases in North Carolina never move forward. Imagine being seriously injured by a doctor's mistake. Then consider the impact of that mistake in your life. Finally, realize that unless you (or someone on your behalf) invests thousands of dollars up front, you can do nothing about your situation. This is the state of the law in North Carolina, and the reason why section 9(j) is a feared enemy of anyone injured by medical malpractice. And even when you are successful with obtaining the opinion you need, you still must face the very talented attorneys for the medical community who will make every effort to disqualify your expert's opinion. Because they know that if the 9(j) expert gets disqualified, your case is over before you get to a jury.

What happens with the proceeds when a settlement is for a minor child?

In addition to the potential claims and liens noted in the above settlement FAQ, there is an additional step that needs to happen when the settlement is for a person under the age of 18. The settlement monies from the insurance company of the person who caused the injuries are not regularly distributed to a minor. The parent or guardian representing the child must file a lawsuit with the court and go through a minor settlement hearing. The judge reviews the case and if it is approved, the child's money gets deposited with the court system. This money is held by the court until the child reaches the age of 18.

What happens if the insurance company says my damaged car or truck is a "total loss?"

A vehicle that is considered a "total loss" has repair costs that are greater than the Fair Market Value (FMV) of the vehicle. In other words, it will cost more to fix the vehicle than the vehicle is worth. The insurance company will only pay you for whichever cost is less. For the state of North Carolina,a total loss is when the cost of repairs and damages equals or exceeds 75% of the pre-accident cash value or FMV.

Your policy will dictate the requirements for the insurance company. Most policies DO NOT require the insurance company to provide you with a comparable replacement; just the value of your loss. So, if you own an older model car with a low value, you will often be quite disappointed when you discover that your "total loss" means you get a small amount of cash that cannot be used to get you a vehicle like the one you lost.

You have choices with a total loss vehicle. You can keep the car and find a way to make it run (perhaps cheaper than the adjuster quoted) or you could get it to where it works good enough for you (it could, for example, still have dents or not have air conditioning, but it would get you where you needed to be).

If you keep it, though, you must pay back the insurance company for the residual or salvage value of the car. The insurance company would not get the title of the car, so the salvage value would be deducted from the FMV settlement. The insurance company adjuster would tell you what that amount would be. If your vehicle is determined to be a "total loss"but you decide to let the car go and take the FMV from the insurance company, giving them the car and title, then you will want to be sure to get many photographs of the damaged vehicle. You might need them for later reference for your personal injury claim.

What happens at a hearing?

The hearing is the best chance for a claimant to explain his/her reasons for seeking disability benefits. The claimant will almost always testify with the help of his or her representation. An Administrative Law Judge presides, and there are sometimes expert witnesses like vocational or medical experts. The hearing can take fifteen minutes to over an hour. These hearings are rarely combative or intense, but it is not uncommon for people to disagree. A successful hearing is when the claimant is able to present his or her best evidence and persuasively present his or her best case.

What can you tell me about Medical Payments Coverage?

In North Carolina, this is an optional coverage within your automobile policy. Also known as Med Pay, this portion of a policy gives you a limited amount of coverage for medical bills resulting from an automobile accident in exchange for a small fee. What's unique about Med Pay is that it does not matter who was at fault in the accident in order to be covered. This coverage is extremely helpful for people who do not have health insurance or who have very high deductibles on their health insurance coverage. At Oxner + Permar, we encourage you to carry any Med Pay insurance coverage available to you or to maximize Med Pay that you may already carry.

What can you tell me about a police report?

Also known asan Accident Report and officially called the NC Crash Report, the police report data is written by a police officer who is called to the scene of the accident. To see samples of reports, please look under "Library" in the left column of our website. This report is the officer's version of the events and facts that surround your collision. There is a tremendous amount of information crammed into this little report. For example, the details on the form may include the location of the accident, the vehicles, parties, witnesses and/or pedestrians involved (including the license number and insurance information of each). The officer may estimate speed, vehicle damage, factors that led to the collision and if any driver is at fault. You will notice small boxes to the left and right of the main data area. They contain info in code that is a quick way for the office to note details such as lighting or injury status. Click here for a link to learn how to interpret the info in the boxes.The crash sequence on the report is developed by the officer after completing his or her investigation. A diagram isalsonormally included. It is very important to get a copy of this report as soon as possible after the accident to verify it for accuracy.

What can I expect at my first meeting with my attorney?

He or she will want to get the basics from you -- name, address, phone, how you heard about their law firm, your birthdate, your Social Security Number, your work history and if you have a spouse and/or children. You will also be asked to provide details about your medical issues including names and locations of doctors who are treating you and how often you see each one. You should bring any doctor's notes, hospitalization or treatment center information and medication details. You should also take with you any paperwork you have received from the SSA denying your claim for Social Security Disability benefits.

 

My injury from a car wreck was a couple months ago, and I'm not getting what I was promised from the other driver's insurance company. Is it too late for me to get a lawyer?

In North Carolina you have three years from the date of the accident to file a claim; two years if there has been a wrongful death involved.

My attorney wants to see my insurance dec page. What in the world is that?

A personal auto insurance policy has a summary sheet that is known as the declaration page. It typically includes the name and address of the policy holder and details of your vehicle, specifically the year, model and vehicle identification number. Coverages and liability limits and the premiums for this coverage are on the declaration page and help your attorney get a total picture of your insurance coverages. You can see a sample of a Dec Page in the Library section of our website (left column, under Personal Injury).

Is there a legal difference when a traffic accident involves a school bus?

When someone is injured due to the negligence of a school bus driver (for example, a student on the bus or another auto), the law is different from a typical car wreck. First, the case is filed before the North Carolina Industrial Commission. This includes the filing of an affidavit (and not a complaint). Next, the school bus driver is represented by the NC Attorney General's office. Although there are similarities with other injury cases, there are a number of differences in a school bus case that are important for you or your attorney to understand. We've handled several school bus cases, and we know the route to go.

If I'm involved in an accident, what should I do?

1. Call 911, if you're able, if you or others need immediate medical assistance. 2. Notify the police so they can come to the scene to investigate and file a report. 3. If there are witnesses nearby who were not involved in the accident, talk to each one and get comments and names, addresses and phone numbers. They may not be there by the time the police get to the scene, and you may need to contact the witnesses later to strengthen your case. 4. When giving information to the police officer about the accident, be sure to tell him of any injuries or concerns so that he will document them in his report. 5. Take photographs at the scene: of your vehicle (including one with the license plate), other vehicles, the scene of the accident (including skid marks on the road, a broken fence, etc.) and any physical injuries. You can use your cell phone camera or a disposable camera that you keep in your car. 6. If your car must be towed, be sure you know where it's going. 7. If you need treatment or are in pain, see a doctor. Even if your injuries appear minor, a doctor can note your comments of any stiffness or soreness. You may need to visit the doctor again if it turns out that your pain increases.

Does this law firm handle cases not related to workers' comp?

Yes! We also handle cases involving personal injury, automobile accidents and social security disability. We can also assist you in understanding medical malpractice, and, if needed, point you in the right direction so you can find appropriate legal counsel.

Do I own my medical records and is my doctor required by law to give them to me?

According to the laws of North Carolina, patients' original medical records are the legal property of the health care provider. Your doctor is required to turn over copies of your records and bills upon your request. Be aware that you have a right to say who can get a copy of this information, but you do not own the paperwork. It is important to note that a physician cannot refuse to turn over copies of your medical records because you have an outstanding bill with the doctor's office.

Can you lend me money against my case?

The North Carolina State Bar strictly forbids loaning clients money. While we know it occurs all the time through clever tricks like having a spouse make the loan instead, it is completely unethical to do so.

There are a couple of companies which do make loans to clients who need money now. While we strongly urge clients not to take these loans, and if they do to take the very least amount of money possible, we do cooperate with our clients' requests and can facilitate this.

Meet the founders

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Todd Oxner is a founder and managing partner who is known statewide for his success in handling workers' compensation claims. He is a Board-Certified Specialist in Workers' Compensation. Learn more
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Chip Permar is one of the founding and managing partners of Oxner + Permar, PLLC. He is a Board-Certified Specialist in Workers' Compensation. Learn more
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