O'Malley Tunstall PLLC
Call 24-hours a day Free consultation No Fees Unless we Win
800-755-1987
Offices in Raleigh, North Carolina, and Eastern North Carolina

March 2013 Archives

Medicaid Liens in North Carolina Injury Cases -- U.S. Supreme Court rules

Very courageous attorneys from North Carolina at Kirby & Holt, L.L.P recently had a rare opportunity.  They were able to help shape the law across the country by challenging North Carolina's interpretation of medicaid reimbursement in accident and injury cases.  Their argument was that North Carolina's procedure was arbitrary and often hurt those needing help the most; children. In WOS v. EMA 568 U. S. ____ (2013) the court held; "The task of dividing a tort settlement is a familiar one. In a variety of settings, state and federal courts are called upon to separate lump-sum settlements or jury awards into categories to satisfy different claims to a portion of the moneys recovered.  Indeed, North Carolina itself uses a judicial allocation procedure to ascertain the portion of a settlement subject to subrogation in a workers' compensation suit. It instructs trial courts to "consider the anticipated amount of prospective compensation the employer or workers' compensation carrier is likely to pay to the employee in the future, the net recovery to plaintiff, the likelihood of the plaintiff prevailing at trial or on appeal, the need for finality in the litigation, and any other factors the court deems just and reasonable." N. C. Gen. Stat. Ann. §97- 10.2(j) (Lexis 2011). North Carolina would be on sounder footing had it adopted a similar procedure for allocating Medicaid beneficiaries' tort recoveries. It might also consider a different one along the lines of what other States have done in Medicaid reimbursement cases. The State thus has ample means available to allocate Medicaid beneficiaries' tort recoveries in an efficient manner that complies with federal law. Indeed, if States are concerned that case-by-case judicial allocations will prove unwieldy, they may even be able to adopt ex ante administrative criteria for allocating medical and nonmedical expenses, provided that these criteria are backed by evidence suggesting that they are likely to yield reasonable results in the mine run of cases. What they cannot do is what North Carolina did here: adopt an arbitrary, one-size-fits all allocation for all cases."  WOS v. EMA 568 U. S. ____ (2013) Any reader of our blog knows we constantly address the issues involved in how workers' compensation liens work within third party (accident and injury) cases. The Supreme Court continued; "North Carolina's statute, therefore, is pre-empted if, and insofar as, it would operate that way.And it is pre-empted for that reason. The defect in §108A-57 is that it sets forth no process for determining what portion of a beneficiary's tort recovery is attributable to medical expenses. Instead, North Carolina has picked an arbitrary number--one-third--and by statutory command labeled that portion of a beneficiary's tort recovery as representing payment for medical care. Pre-emption is not a matter of semantics. A State may not evade the pre-emptive force of federal law by resorting to creative statutory interpretation or description at odds with the statute's intended operation and effect." "North Carolina's argument, if accepted, would frustrate the Medicaid anti-lien provision in the context of tort recoveries. The argument lacks any limiting principle: If a State arbitrarily may designate one-third of any recovery as payment for medial expenses, there is no logical reason why it could not designate half, three-quarters, or all of a tort recovery in the same way."  WOS v. EMA 568 U. S. ____ (2013) Thanks to these courageous attorneys who have spend incalculable hours helping a client, a child and a state.    

Asked to be A Guardian Ad Litem for a child? You cannot be charged with the cost of a lost case

A Guardian Ad Litem cannot be charged with the cost of a lost case for the minor they represent. The North Carolina Court of appeals recently addressed the issue of taxing costs against a guardian ad litem appointed to represent a minor child in litigation.  First, a minor (someone under 18 years of age or an incompetent) cannot file a lawsuit on their own.  They are only allowed to do so through someone appointed as their guardian ad litem or guardian at law.  This used to be called the "next friend" doctrine and prevents someone under 18 from contracting or creating a situation that binds themselves. An easy example is when a child is seriously injured in an automobile collision, they must have a guardian ad litem file suit on their behalf for their harms and losses including lifetime injuries. In Stark v. Ford Motor Company, NO. COA09-286-2, the NC COA concluded that the taxing of costs against the guardian ad litem in the absence of a finding of bad faith was an abuse of discretion.  Essentially it would not be fair to require a minor child to find someone willing to take the risk of being charged personally with the costs of the court if they lost to file a lawsuit on their own behalf. More interestingly, in the Stark case, the court did not address the appropriateness of charging personally a minor child with the cost of the trial.  How can someone who cannot even file their own lawsuit be responsible for what their "next friend" or guardian ad litem decided to do when they were only 2 or 3 years of age? If you have any questions about recovering for your damages, either for yourself or a child here in North Carolina, feel free to contact our office.

Social Security case helping Veterans with their Social Security, Disability, SSI Claims

At O'Malley Tunstall the attorneys and staff are committed to helping get America's Veterans and wounded warriors the disability benefits they deserve. To that end, we are happy to report about a new case recently handed down by the United States Fourth Circuit Court of Appeals, whose jurisdiction covers North Carolina. Bird v Astrue discussion In Bird v. Commissioner of Social Sec. Admin., the Fourth Circuit held that VA disability determinations "must be accorded substantial weight in Social Security disability proceedings." 699 F.3d 337, 345 (4th Cir. 2012). The Fourth Circuit had never previously ruled on this issue. In explaining its reasoning, the court cited to SSR 06-3p which states that the Social Security Administration must consider and cannot ignore VA disability decisions. The Court also favorably cited the Ninth Circuit case of McCartey v. Massanari, which explained that both the SSA and VA disability determinations focus on analyzing a claimant's functional limitations to determine whether they have the capacity to work. 298 F.3d 1072, 1076 (9th Cir. 2002). The Fourth Circuit reasoned that, since the SSA cannot ignore VA decisions, and VA decisions look at the same factors and evidence, it makes sense to give the VA decision substantial weight. See generally, Bird, 669 F.3d at 343 - 344. The practical effect of this ruling is that if a Veteran is given a 100% disabled rating by the VA, the Social Security Administration will likely also find that Veteran disabled and grant them benefits. This is great news for our Veteran's because it is likely to make the process simpler and quicker. The second major ruling in the Bird case is applicable to eligibility in all disability cases. The Court held that "an ALJ must give retrospective consideration to medical evidence created after a claimant's last insured date when such evidence may be 'reflective of a possible earlier progressive degeneration.'" Bird, 669 F.3d at 345 (quoting Moore v. Finch, 418 F.2d 1224, 1226 (4th Cir. 1969)). This reaffirms the old commonsense rule that a disability judge has to look at medical evidence created after your date last insured, because it might be good evidence of how your condition affected your ability to work prior to your date last insured. This is a technical ruling on eligibility matters, but could be very important for you if you became disabled before you started to go to the doctor frequently. If you or your loved one is a Veteran considering an application for Social Security Disability, please feel free to call O'Malley Tunstall at any time. We love to help Veterans, and one of our experienced disability lawyers, Susan O'Malley, Joseph Tunstall, or Amos Waranch, would be happy to talk to you about your case.

Car Crash while Working? Workers Compensation Lien must be Paid

Car crash while working? You must pay Workers' Compensation back. One of the main reasons to hire an attorney familiar with both workers' compensation and personal injury (automobile accident and injury claims) is that you have options at the end of your claim as to what you must repay to workers' compensation out of your injury verdict or settlement. Personal injury, workers\' compensation attorney -- Joe Tunstall N.C. Gen. Stat. Ann. § 97-10.2 (j) states "Notwithstanding any other subsection in this section, in the event that a judgment is obtained by the employee in an action against a third party, or in the event that a settlement has been agreed upon by the employee and the third party, either party may apply to the resident superior court judge of the county in which the cause of action arose or where the injured employee resides, or to a presiding judge of either district, to determine the subrogation amount."  N.C. Gen. Stat. Ann. § 97-10.2 (West) Therefore, your attorney may find it appropriate to file a motion with the court asking the judge to set the amount of the recovery rather than merely repay the lien.  In the Leggett case, Joe Tunstall, filed a motion arguing why workers' compensation should recover none of the money from a client's serious injury.  The Court of Appeals agreed with the trial judge in allowing no recovery for the workers' compensation insurance company.   "N.C. Gen.Stat. § 97-10.2(j) grants the superior court discretion to determine the amount of the employer's lien when a settlement is reached between the injured employee and the third party tortfeasor. See id. The trial court may reduce or completely eliminate a workers' compensation lien if warranted by the facts, and this Court may not interfere absent an abuse of discretion."  Leggett v. AAA Cooper Transp., Inc., 198 N.C. App. 96, 100, 678 S.E.2d 757, 761 (2009). The Court of Appeals held that one reason for upholding the elimination of the lien was  "Plaintiff's evidence at the hearing included Plaintiff's testimony and eleven marked exhibits, including Plaintiff's medical records."  Leggett v. AAA Cooper Transp., Inc., 198 N.C. App. 96, 101, 678 S.E.2d 757, 761 (2009) N.C. Gen. Stat. Ann. § 97-10.2(j) further states "The judge shall consider the anticipated amount of prospective compensation the employer or workers' compensation carrier is likely to pay to the employee in the future, the net recovery to plaintiff, the likelihood of the plaintiff prevailing at trial or on appeal, the need for finality in the litigation, and any other factors the court deems just and reasonable, in determining the appropriate amount of the employer's lien."  N.C. Gen. Stat. Ann. § 97-10.2 (West). It is clearly not appropriate to file a 10.2(j) motion in every case with workers' compensation and liability proceeds.  The ability to know when to file the motion and when not to file the motion is why you pay an experienced attorney who handles these claims on a daily basis. If you have any questions regarding personal injury, automobile injury cases or how they affect your workers' compensation claim; feel free to contact our office.

Contextual Contextaul Contextaul
Contextaul Contextaul Contextaul
Contextaul Contextaul Contextaul
Contextaul Contextaul Contextaul
Contextaul Contextaul Contextaul
Contextaul Contextaul Contextaul
Contextaul Contextaul Contextaul

Free Initial Consultations. No Attorney Fees Unless We Win.

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

Lead Counsel Rated | LC
Call 24-hours a day We’ll Come To You No Attorney Fees Unless we Win
Review Us

Raleigh Office
8300 Falls of Neuse Road, Suite 108
Raleigh, NC 27615

Toll Free: 800-755-1987
Phone: 919-277-0150
Fax: 252-641-9009
Raleigh Law Office Map

Tarboro Office
405 North Main Street
Tarboro, NC 27886

Toll Free: 800-755-1987
Phone: 252-823-2266
Fax: 252-641-9009
Tarboro Law Office Map