Yearly Archives: 2013

Let’s Talk About Board-Certified Specialists

Workers' Compensation

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

There are three steps to becoming board certified.

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

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

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

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

Were You Injured by Someone’s Negligence?

Workers' Compensation

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

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

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

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

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

This article was written by Chip Permar

If your employer is trying to bring you back to work

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

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

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

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

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

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

Workers' Compensation

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

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

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

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

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

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

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

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

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

This article was written by Todd P. Oxner

Retaliatory Employment Discrimination Act

Workers' Compensation

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

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