O'Malley Tunstall PLLC
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May 2011 Archives

How do I file for Workers' Compensation

Filing for workers' compensation is difficult.  Will my employer be angry with me?  Should I file?  If I don't file can I file later on?  What benefits am I entitled to recover? Our attorneys are constantly involved in assisting injured workers with their rights after serious head injuries, herniated discs, neck injuries, back injuries, broken bones and injuries resulting in serious surgeries. If you are a worker who was injured in an accident in your workplace, you may be entitled to receive Workers' Compensation benefits. Please report your on the job injury swiftly and to the correct person within your company. Often workers' compensation claims become complicated simply because of poor reporting of the injury itself.  In fact, if you don't report your claim immediately, you may not be able to file later or if you do file, proving your claim may be much more difficult. Please remember you must not rely upon your company to report your injury to the North Carolina Industrial Commission. You have a duty to complete a Form 18 yourself (Employees notice of Injury to the North Carolina Industrial Commission). Compensable workplace injuries include most back or hernia injuries, regardless of the cause, other injuries such as broken bones or injuries to the joints caused by accident and occupational diseases such as black lung, brown lung and other diseases peculiar to a certain industry. Your rights after a workplace injury are narrowly defined by the General Statutes; however, a large body of case law has developed explaining these statutes. At Keel O'Malley Tunstall we speak with injured workers quite often that may not need an attorney to resolve their issues. If we can assist you, we will not hesitate to put you in touch with the correct person at the North Carolina Industrial Commission. The North Carolina Department of Labor promotes the health, safety and general welfare of over 4 million workers at over 238,000 businesses in this state. Whether you suffer from physical, emotional, mental disabilities or occupational-related disease, your employer provided insurance should give financial support. The laws require that your employer, or your employer's insurance company, compensate you, or your family, for injuries or death that occur during the performance of your job. Under the Workers' Compensation program, you may be entitled to benefits that include:

Do you need to file for Social Security Disability?

Often the hardest question for our clients is "should I file for disability?"  It is often a very emotional question.  People have often worked over 20 years and to decide to file for disability is a very scary decision.  In short, if you are no longer able to work because of a physical or mental disability, you may be entitled to receive Social Security benefits. Disability can stem from many things such as diabetes, asthma, arthritis, depression, back injuries, strokes and many other medical or mental conditions. Obtaining Social Security can also be a long process if you are denied at the initial levels. What does the Social Security Administration consider?  Social Security will consider your age, education, work history and disabilities in their determination to deny or accept your application for disability benefits. It is important to know what information the Social Security Administration finds important in making a disability benefits decision. In 2001, a California Congressmen cited statistics that support the choice of having expert representation in disability claims. In his statement, Congressman Matsui of California testified that, "...Claimants without professional representation appear to be far less likely to receive the benefits to which they are entitled. For example, in 2000, 64% of claimants represented by an attorney, but only 40% of those without one, were awarded benefits at the hearing level". It is not uncommon to be denied a couple of times in your pursuit of Social Security disability benefits. Do not give up hope. If an application is denied at the initial level, first it will be appealed the the Reconsideration Level, it can then be appealed to a hearing before an administrative law judge, then to the Appeal's Council and even to Federal Court. Susan O'Malley has even successfully represented clients attempting to receive Social Security at the 4th Circuit Court of Appeals, one step below the United States Supreme Court. The Hearing:  at the hearing an attorney presents evidence gathered on your behalf, argues how your disability meets or equals a listed condition or that a combination of imparments reduces your overall ability to work.  Some information includes medical records, letters from your physicians, evaluations from your physicians and witnesses on your behalf.  Our office doesn't employ non-attorney Social Security Representatives, instead our attorneys will be personally representing you. There is a limited opportunity to file or appeal a claim that has been denied, so take action as soon as you are denied.  In our office Susan O'Malley, who is a Board Certified Disability Specialist by the North Carolina State Bar, reviews every accepted Social Security Case and leads our team of Social Security Attorneys.   Susan, who frequently lectures other attorneys throughout North Carolina and the nation about how to assist Social Security claimants obtain their disability, has successfully represented claimants at all levels of application and appeal through the 4th Circuit Court of Appeals, only one step below the United States Supreme Court. Let Susan put her experience to work helping you or your loved one obtain your disability benefits.

In a Car Accident: What you should consider

If you or a family member was injured or someone you know has died as a result of  an automobile accident, certain legal rights exist to protect you. You may be entitled to compensation for personal injury including: medical bills, lost wages, pain and suffering, loss of enjoyment of life, scarring, loss of consortium, permanent injury and possibly punitive damages. Often you must act swiftly after an accident to preserve the evidence you need to pursue these recoveries and be made whole for your injuries.  That is why our firm employs investigators with years of experience to swiftly gather the needed evidence. For many people the first question is whether there is a claim upon which they can recover. If there is negligence (simply fault) and damages  (some injury) typically one can recover damages, from an automobile collision. Negligence is the breach of a duty owed causing an injury. For example, another driver owes you a duty to stop for a stop sign and not fail to stop resulting in an accident.  Not only must negligence be proven, you must not be negligent yourself. North Carolina law recognizes the principle of contributory negligence. In North Carolina, if you, through any negligence of your own, contribute to your own injuries, then you are barred from recovering damages from another party. Damages must also be proven in order to recover from another's negligence from a car accident. Damages, entitling the person to lost wages, medical bills, permanent injury and pain and suffering, are called compensatory damages. You may also be able to recover punitive damages which are damages awarded to the injured person to punish and deter the flagrant nature of the wrongful conduct. An example of a situation which may involve punitive damages occurs when the other driver causes the automobile accident while under the influence of alcohol or drugs. In the case of a drunk driver causing the crash, often punitive damages are recovered in addition to the compensatory damages. Our attorneys have tried these cases to juries as well as taken them on appeal all the way to the North Carolina Supreme Court to assist our clients when they are injured by drunk drivers. Sometimes your automobile crash claim may have taken place while you were working. At Keel O'Malley Tunstall, PLLC we often have clients in serious accidents that use the expertise of several of our attorneys at once. If you are out of work for over a year, Social Security Disability may be an option they have not considered. Susan O'Malley is a NC Board Certified Specialist in Social Security Disability law. She is available to help our seriously injured clients obtain the disability benefits they deserve. If you were working at the time of the collision you may also need assistance dealing with your company's workers' compensation insurance company. Even if the workers' compensation carrier provides all the needed assistance, they may claim a portion of your settlement or verdict as part of a lien on your recovery. Our attorneys are experienced at arguing against and trying to reduce these workers' compensation liens - assisting you with every aspect of a serious injury crash. If someone you know has died due to another's negligence or wrongdoing, you should look at protecting the rights of the decedent's estate. The personal representative of the estate may have a claim against the negligent person or entity. No one wants to be involved in litigation, but if you were seriously injured in an automobile accident due to no fault of your own, a jury trial may be the only way to truly recover the full value of your case. Our lawyers handle and try jury cases involving injuries from auto accidents where there are head injuries, herniated discs, neck injuries, back injuries, broken bones and injuries resulting in surgeries. Our auto accident lawyers have tried cases for the seriously injured throughout North Carolina. This allows our clients to take advantage of the benefit of our collective experience and assures your case is being handled by an experienced trial attorney.

NC Legislature: Corporations over People

This session of the North Carolina General Assembly has seen bills aimed a reducing people's rights and favors business over the welfare of NC's citizens.  Simply by creating a committee whose sole purpose is reviewing all tort-reform bills shows the single minded determination this year to reduce individuals rights in favor of corporate irresponsibility. In both the Senate and House legislation has been proposed that would allow NC to become one of two states that would exclude the right to pursue negligence against any manufacturer that obtains governmental approval for their product.  Obviously this would be a huge boom for the pharmaceutical industry that has been known for rushing products to the public without full disclosure of the potential side effects.  Essentially all pharmaceutical products approved by the FDA would be protected regardless of the knowledge of the company not given to the FDA .  Governor Perdue recently announced that North Carolina is the second most business friendly state in a recent survey.  Why continue to reduce the protections for our citizens when we are already considered so business friendly? The General Assembly is also considering changes that would include allowing an intoxicated defendant to reduce the amount they owe to a victim  by putting on evidence of the amount of health insurance  paid by the injured victim.  Allowing a drunk to reduce the amount of medical expenses of their victim by allowing that drunk to put on evidence of health insurance paid without allowing into evidence the amount of the drunk's automobile insurance is just unfair. Also proposed this year is a cap on damages paid by emergency room physicians.  The reasoning behind such a cap is that emergency room physicians cannot choose their patients.  Of course, the hospital has no issue with billing all comers at a greatly inflated rate, nor is their a prohibition on the amount that ER physicians can be paid.  What is not discussed is North Carolina already has one of the most restrictive rules prior to filing a Medical Malpractice case requiring a physician of similar training to sign off on the fact that negligence was committed prior to any lawsuit being filed.  Additionally, what benefit to the public is created that by increasing the standard of proof of negligence for ER negligence?  Should we really want to encourage a REDUCTION in overall standards of care for our physicians?  It seems more moving backward than forward to reduce the qualifications of our ER physicians. Our nation was founded upon a system of checks and balances where our judicial system helps to keep control of the legislative and executive branch.  Why, when our state is already is found to be one of the top two most buisness friendly states in the nation, should we be taking away the rights of our citize

Social Security Administration's "Fiscal Crisis" With The Disability Program

By Scott B. Elkind Elkind & Shea The Disability Benefits Law Firm Silver Spring, Maryland More than 80% of all nonelderly adults are insured against disability by the Social Security Administration Insurance (DI) program.  The number of persons receiving these benefits has increased substantially (from 2.4% of the population receiving benefits in 1985 to 4.1% in 2005) in the past two decades. In 2005 alone, 832,000 new persons were awarded disability benefits which, assuming continued disability of claimants and current economic trends, will cost taxpayers over the course of the average claim duration a total of $125 billion in present day dollars.  Once Medicare payments begin, there is an additional present day value claim cost per disability recipient of $245,000.00. The annual spending for disability benefits is 8.1% of the federal budget in 2005.  Given the expected increases in the aging population, the increased number of disability claims  poses a significant financial risk to the solvency of the Social Security system. The increase in the disability rolls has been attributed to a combination of several factors.  The first factor is the growth in recipients suffering from back pain and mental illness.  The comparatively low mortality rate and high claim duration period resulting from these conditions has increased the size of the disabled population.  The second concern is the increase of payable disability benefits to increasing recipient earnings.  A third factor is the rapid increase in the female labor force.  Surprising, the aging of the baby boom generation has only contributed modestly to the increase in disability claim filings due to improvements in population health. Lastly, and perhaps, most importantly, the number of persons exiting the disability has decreased substantially.  In 1983, 16.4% of people receiving disability benefits exited the system because of death, entering retirement, or no longer being disabled.  Persons exiting the system decreased to 7.2% by 2005. A similar funding "crisis" occurred in the 1970s leading to the tightening of medical eligibility criteria and increasing continuing disability reviews.  By 1980, this process yielded both a significant decline in applications, award and enrollment, but generated a public backlash.  This led to 1984 legislation enlarging the disability determination focus from objectively verifiable diagnostic criteria to consideration of an individual's ability to function in a work setting.  Prior to 1984, 93% of initial awards were based on medical factors only.  This fell to 58% by 2003.  The 1984 legislation also placed controlling evidentiary  weight on the treating physician findings rather than findings made by SSA's consultative physician. There are several schools of thought as to what can be done to reform the system under the guise of whether claimants are "misusing" these benefits.  First, the assumption that people are "cheating" the system has been belied by a 1989 study which revealed that 30% or less of persons initially denied benefits would return to work.  Given changes in the labor market, newly disabled persons would be even less capable of finding employment.  There is also a noted incongruity that during an economic recovery, many people who have been out of work for extended periods find it difficult to return to work. Another consideration for controlling claims are changes in the screening process for disability benefits.  Despite repeated efforts at improving the efficiency, accuracy, and consistency of this process, the disability determination process has evolved from a bureaucratic function to an adversarial process which relies heavily on appeals and adjudication.  This change has resulted in records numbers of backlogged cases as they await adjudication.  This is made worse by the projected increase in claim applications (with a 4% in claims disability claims from 2008 to 2009 alone). Another avenue for slowing growth of the disabled population is to reduce inflows to the Disability Insurance Program.  The first method of stemming such flow is to adopt more rigorous eligibility criteria which again emphasizes medical rather than vocational factors as done previously.  This would have the unintended consequence of resulting in a increase denial rate for deserving claimants suffering from conditions which are difficult to verify (such as those causing pain or mental disorders).    A suggested counterbalance would be by the commissioning of "independent" medical and vocational evaluations of claimants during the initial disability determination. Alternatively, disability claims allowances could be decreased at the hearing level via instituting attorney representation on behalf of the Social Security Administration.  Such an effort "would ameliorate this almost comically lopsided setting, in which the Social Security Administration currently loses nearly three-quarters of all appeals." Another approach being considered is to increase the availability of Medicare as a stopgap form of health insurance to assist in treatment of applicants and allow for a faster return to work. Increasing the number of continuing disability reviews is also possible.  The cost of performing such reviews is significantly lower than the savings associated with the reduction of benefits achieved.  Currently, the DI program is unable to perform the targeted number of these reviews due to limited resources. There is another, more controversial proposed method for limiting the expense of disability claims. The current system is geared to an all-or-nothing cash award which could be reformed to a graduated disability scale.  Such a change would allow workers to remain in their jobs in a more limited capacity while receiving partial disability benefit payments.  Although this would initially result in a rise in disability applicants, the payments would be lowered.  With the additional of  tougher screening requirements, payments could be reduced substantially. An even more potentially contentious alternative would be to consider nonwage income and assets of disabled persons with an eye to reducing benefits payable to persons with greater ability to finance their own existence. Of course, increasing the payroll tax with dedication of the proceeds to the Social Security Administration  would alleviate the funding problem, but the political consequences of raising taxes remain challenging. In the end, despite the known challenges to the Disability Insurance program, there has been no concerted effort to address the problem.  The "kick the can down the road" mentality remains pervasive due to potential political fallback as no one seems wishes to touch the proverbial "third rail" of politics and tackle this issue. We would like to thank Scott Elkind, one of the nation's top long term disability attorneys for this guest post.  http://www.disabilitybenefitslawfirm.com/

Tough Personal Injury Cases

Representing clients who have been injured is often difficult.  They are in pain, are out of work, have serious financial and other obligations and need your advice and assistance right now.  The system is not always designed to work quickly.  Having your clients truly understand that you will be with them no matter what happens takes years of building trust, and can be shattered with a misused word or seemingly unfriendly gesture taken out of context. I recently had a difficult trial where my client was truly taken advantage of and only after years of preparation were we finally able to get the case into the courtroom.  He did a wonderful job of explaining what he had experienced and gone through in the worst situation of his life, and one we all to some degree stay nervous about deep in our hearts.  He was arrested due to a personal vendetta.  http://www.newsobserver.com/2011/05/21/1213557/arrest-was-wrong-state-says.html?story_link=email_msg http://www.newsobserver.com/2011/05/21/1213561/pursued-by-police-and-patrol.html His story, though, is not one of what he suffered, although he did suffer, but is more a wonderful example about those people who just will not back down.  I had the fortunate experience, that often comes only once in a career, of representing a client who stood up to the system, not only for himself, but for others and told his story. Opinions about what the state should or should not have done to the trooper are really irrelevant.  My client continues to look over his shoulder, around every corner and will continue to have issues as a result of not allowing himself to be taken advantage of by someone in authority who was misusing that authority.  Rick Eatmon's story is truly, one of overcoming through sheer determination not to allow the system to make him irrelevant.  The State of North Carolina finally admitting fault and finding  $15,000.00 in damages that he could not collect, still makes him a winner.

If your in an accident you must understand: Medical Liens

SETTING UP YOUR RECOVERY Liens - every attorney that handles personal injury or workers' compensation matters gets frustrated as our creative ways to obtain benefits for a client goes back into the hands of a provider who often  gave limited support and called weekly for years prior to the recovery.  Our client did not hire us to become the collection agent for the physician; however, that is just what we often become if we correctly follow the law with regard to disbursing funds. Once a case settles, often our work as attorneys assisting clients just gets started.  Once you have identified and recovered for your client, maximized your clients result and ultimately settled or tried the case, often your number of hours invested in the case is just beginning.  N.C.G.S. 44-49, 44-50 and 44-50.1 are just the start of the liens you must check for in deciding whether the funds you have recovered for your client go to your client. Begin Early to identify Lien issues Unfortunately, often the work an attorney puts into maximizing their clients recovery is little understood by our clients who are very frustrated with the time before they are able to actually see the recovery and results in frustration for both attorney and client unless the process starts early and is handled in such a way that the client understands early into the representation, what will be expected of them and ultimately who is going to be paid from the recovery and what amounts are going to the medical providers. We would contact our client early on in any representation and advise them of your need for what health insurance may be in play.  One of your initial letters to our client, whether in an automobile, slip and fall or products liability action, is always concerning the requirement for their insurance information - or lack thereof.  We request a copy of all of their insurance cards.  Keep a copy of their cards in our file and make sure we  advise the client of their need to keep you up to date with any changes to their insured status.  Depending on the type of coverage we will often need to begin contacting the lien holder early so as to not delay your eventual disbursement. a. Identify the Type of Liens If you choose to handle a case without an attorney, or even if you do have an attorney, be aware that for any recovery for personal injury there are statutory liens against your recovery such as N.C.G.S. 44-49, 44-50 and 44-50.1; Medicaid; Medicare, workers' compensation,  tricare, and common law rights of subrogation in the form of ERISA.  The unrepresented person must be aware that these recoveries are not options.  The insurance company will not allow you to merely obtain the settlement without withholding the funds necessary to pay pursuant to statute or common law the medical provider liens.  The most common call we have from people who have tried to handle their own cases is that AFTER settlement they were informed by the insurance adjuster that the amount INCLUDED their medical bills and that as a result they are unhappy with the settlement. Liens can be complicated.  Attorneys who handle liens for a living often disagree about the best and most prudent way to handle liens.  You can only imagine what happens when an insurance company decides whether to take a chance or pay your lien. Therefore, it is important to make sure you have identified what type of lien or right of subrogation may exist against your recovery early on and how you will handle that lien at the end of the case.

Medical Records are Important in all Injury and Disability Cases

Every court assumes a patient will always tell their doctor the truth. They also assume this truth is fully and accurately reported in the medical records. No matter what type of case you have, personal injury, social security or workers' compensation; your medical records are key to your recovery. Therefore, what medical records say or do not say speaks loudly in every courtroom. You should always be honest with your doctor and also explicit as to all of the issues or problems you are having, not just the day of the visit; but everything that has happened since your last visit. Why is it so important to give your physicians so much back ground and information on your condition? First, because that will help the doctor help you with your medical condition, diagnosis or injury. Second, because it will help the court, judge or jury understand what your medical problems really are from the records. Tell your doctor everything that is going on every time and be honest about what your real problems are at that time. You should not use general words like good, fine or okay unless that is exactly what you mean. If those words appear in your medical records, it will look like you are not having any problems.   People use these words loosely with their doctors when they mean nothing has changed. The doctor's may understand this but it will not read that way in the records.   Remember, legally you will have to explain your own medical condition in your own words.  If your interpretation of your medical condition is vastly different from your doctors, you loose credibility as your word about your condition is not very strong in the eyes of others. Next, do not assume that any symptoms you have are unrelated or unimportant. You should tell your doctor everything so they have all of the information necessary to help treat and diagnose you. It will also help the court understand how long certain problems have been going on. Lastly, the court will assume if you did not tell your doctor, it must not have been a problem. Many patients only tell their doctors what caused them to be there that day or what has bothered them most recently.  You also have to tell them about how you felt in the days leading up to being seen as well.  If you don't, the doctor cannot remember days or weeks later you were having the problem and he or she cannot then accurately convey to others what you have experienced. Remember, honesty is the best policy.

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