Yearly Archives: 2011

Guess Who Benefits from Medical Malpractice Reform

Personal Injury

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

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

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

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

This article was written by Chip Permar

Check Out Our Book — It’s Free

Workers' Compensation

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

Hot Coffee Documentary: Telling the Whole Story

Personal Injury

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

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

This article was written by Chip Permar

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

Workers' Compensation

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

Several quick examples:

An RP referred an injured worker to sell wooden outbuildings from the back of a pickup truck on the side of the highway in the mountains of Ashe County. On commission.

An RP referred a client of ours to a job as an interior decorator for mobile homes which were sitting on the sales lot. When our client went early for the interview, he observed the RP dropping off a local private investigator from her car. The “interview” took place as a breakfast joint at a table next to where the investigator was sitting. And the “interview” was with another American Rehab RP who was pretending to be an employer.

An RP referred a client to a “work from home and earn $1000s per week” advertisement in the local paper. All the client had to do was scrape up $500 for the information kit – and the insurance company wasn’t going to pay for it. The client’s refusal to pay the $500 was documented as non-compliance.

An RP recently wrote a report to be attached to a Form 24 stating that he had referred our client to over 100 jobs but had not received any independent confirmation that he had put in a single job application. When questioned about this, the RP admitted that he had only asked two of the “over 100” employers if the client had put in an application. And both of them said that because they were not hiring at the time, they didn’t keep any applications at all and thus could not say one way or the other if the client had applied. The RP was outraged that we suggested his statement “I haven’t received independent confirmation” was misleading just because he had made essentially no effort to obtain that independent confirmation.

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

Given that the voc rehab professional no longer has to find “suitable employment” for you (technically she still looks for suitable employment, but all employment is now suitable) then what will she have to do? And with nothing to do, why pay her to do anything? An entire division of the insurance companies was basically facing the elimination of their jobs. And this was a division which had served the interests of the insurance companies with great devotion over the years.The solution was to create a situation where vocational rehabilitation is still relevant even after you have returned to work. Under the new law, if you return to work making less than 75% of your old previous wages, then the injured worker has the right to request vocational rehabilitation including education and training at any North Carolina community college or public university at defendants’ expense. The only catch is that it must be likely that completion of the retraining will result in a substantial increase in your earning potential.

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

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

This article was written by Chip Permar

Two Big Changes in Workers’ Compensation

Workers' Compensation

Big Change Number One.

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

Big Change Number Two.

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

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

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