Yearly Archives: 2011

An Update from our Burlington Office

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

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

Contributory Negligence Fails in the Senate

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

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

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

This article was written by Todd P. Oxner

Injury from Animals

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

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

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

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

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

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

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

New Law Redefines Suitable Employment

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

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

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

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

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

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

This article was written by Chip Permar

What is Your Health Insurance Worth to Negligent Drivers?

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

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

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

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

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

This article was written by Todd P. Oxner

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