O'Malley Tunstall PLLC
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May 2013 Archives

O'Malley Tunstall: New Raleigh Office Location

As part of our continued commitment to the Raleigh area, we have recently finished moving to a new North Raleigh location purchased by Susan and Joe. O'Malley Tunstall is now located at 8300 Falls of Neuse Rd., Suite 108 Raleigh, NC 27615.  Our Raleigh office is conveniently located near the 540 intersection of Falls of Neuse Rd. in North Raleigh right down the street from Social Security Disability's Office of Disability Adjudication and Review.  Our Raleigh phone number remains 919 277 0150. Office Administrator -- Abbott Tunstall We continue to handle personal injury, Social Security Disability and workers' compensation cases, trials and appeals from both our Eastern NC office in Tarboro and Raleigh offices.

Reducing injured law enforcement officers' rights if injured? why?

There is a provision in the NC Senate budget bill changing the salary continuation statute for injured state law enforcement officers that could reduce their benefits upon an injury to less than that of all other injured workers in North Carolina.  Please read the below and contact your State Senator to protect our vulnerable law enforcement officers. Link to Senate Bill 402 Injured Law Enforcement officers currently are eligible to receive up to 2 years of full salary following an injury or occupational disease in lieu of the reduced wage loss benefit payable under the Workers' Compensation Act, GS 97-29 (temporary total disability) or G.S. 97-30 (temporary partial disability).   (See G.S. 143-166.13 et seq.)   The current legal standard is that the officer can get this salary continuance if he is incapacitated from work ("disabled") due to an "injury by accident or an occupational disease arising out of and in the course of the performance by him of his official duties."   If the officer's incapacity to work continues beyond two years, he then gets benefits paid under the Workers' Compensation Act which is paid at the lesser rate of 66% of his average weekly wage.  (G.S. 143-166.14 as it presently exists). Proposed amendments in this Senate budget bill change the current "injury by accident" or "occupational disease" requirement for benefits to only those injuries by accident or occupational illnesses caused by "extreme activity." Under the Workers' Compensation Act, compensation is paid to all injured workers, not just law enforcement, due to disability caused by an "injury by accident" or "occupational disease" that occurs in the course and scope of one's work.   There is no "extreme activity" required for workers who are not law enforcement officers. This new Bill does not appear to provide benefits for those officers who are injured by accident or have contracted an occupational disease, but who haven't been injured by extreme activity.   All other workers in NC would be able to get G.S. 97-29 (Temporary total disability) or G.S. 97-30 (temporary partial disability) benefits during the first 2 years of disability after an on-the-job injury, but this Bill seems to prohibit LAW ENFORCEMENT Officers from those benefits --- reducing our most vulnerable and helpful of public servants basic rights. Put another way, under the Senate Bill, injured LAW ENFORCEMENT Officers are "opted out" of the Workers' Comp Act for the first two years, but not "opted in" if their on-the-job injury is not caused by "extreme activity." What is "extreme activity?"   No one knows.  It is not defined in this change to the law. If you are sitting in your cruiser at a red light and get rear ended by a motorist who is not paying attention, and end up with neck surgery, was that injury caused by "extreme activity?"  If you are chasing a suspect through a yard at night and you trip over a tree root and fall, and end up needing knee surgery, was that an "extreme activity?"  So the definition will have to be litigated over the next decade or so as officers get injured and are denied their salary continuance or workers' comp benefits. So, the question arises---will any wage loss benefits be payable to law enforcement officers who are merely "injured by accident" or by an "occupational disease" not related to "extreme activity" during the first two years of their disability or will our law enforcement officers have less rights than that of ordinary citizens in North Carolina. Here is the relevant portion: "§ 143-166.14. Payment of salary notwithstanding incapacity; Workers' Compensation 27 Act applicable after two years; duration of payment. 28 The salary of any of the above listed persons eligible person shall be paid as long as his the 29 person's employment in that position continues, notwithstanding his the person's total or partial 30 incapacity to perform any duties to which he the person may be lawfully assigned, if that 31 incapacity is the result of an injury by accident or an occupational disease arising out of and in 32 the course of the performance by him of his or injuries due to extreme activity which occurred 33 in the course and scope of the eligible person's official duties, except if that incapacity 34 continues for more than two years from its inception, the person shall, during the further 35 continuance of that incapacity, be subject to the provisions of Chapter 97 of the General 36 Statutes pertaining to workers' compensation. Salary paid to a an eligible person pursuant to 37 this Article shall cease upon the resumption of his the person's regularly assigned duties, 38 retirement, resignation, or death, whichever first occurs, except that temporary return to duty 39 shall not prohibit payment of salary for a subsequent period of incapacity which can be shown 40 to be directly related to the original injury.41 " § 143-166.15. Application of § 97-27; how payments made. 42 Notwithstanding the provisions of G.S. 143-166.14 of this Article, the persons entitled to 43 benefits shall be subject to the provisions of G.S. 97-27 during the two-year period of payment 44 of full salary. All payments of salary shall be made at the same time and in the same manner as 45 other salaries are paid to other persons in the same department. 46 " § 143-166.16. Effect on workers' compensation and other benefits; application of § 47 97-24. 48 The provisions of G.S. 143-166.14 shall be in lieu of all compensation provided for the first 49 two years of incapacity by G.S. 97-29 and 97-30, but shall be in addition to any other benefits 50 or compensation to which such person shall be entitled under the provisions of the Workers' 51 General Assembly Of North Carolina Session 2013 S402 [Edition 2] Page 395 Compensation Act. The provisions of G.S. 97-24 will commence at the end of the two-year 1 period for which salary is paid pursuant to G.S. 143-166.14. 2 " § 143-166.17. Period of incapacity not charged against sick leave or other leave. 3 The period for which the salary of any person is paid pursuant to G.S. 143-166.14 while he 4 the person is incapacitated as a result of an injury by accident or an occupational disease arising 5 out of and in the course of the performance by him of his or injuries due to extreme activity 6 which occurred in the course and scope of the eligible person's official duties, shall not be 7 charged against any sick or other leave to which he the person shall be entitled under any other 8 provision of law. 9 " § 143-166.18. Report of incapacity. 10 Any person designated in G.S. 143-166.13, who, as a result of an injury by accident arising 11 out of and in the course of the performance by him of his or injuries due to extreme activity 12 which occurred in the course and scope of the eligible person's official duties, is totally or 13 partially incapacitated to perform any duties to which he the person may be lawfully assigned, 14 shall report the incapacity as soon as practicable in the manner required by the secretary or 15 other head of the department to which the agency is assigned by statute. 16 " § 143-166.19. Determination of cause and extent of incapacity; hearing before Industrial 17 Commission; appeal; effect of refusal to perform duties. 18 Upon the filing of the report, the secretary or other head of the department or, in the case of 19 the General Assembly, the Legislative Services Officer, shall determine the cause of the 20 incapacity and to what extent the claimant may be assigned to other than his the claimant's 21 normal duties. The finding of the secretary or other head of the department shall determine the 22 right of the claimant to benefits under this Article. Notice of the finding shall be filed with the 23 North Carolina Industrial Commission. Unless the claimant, within 30 days after he receives 24 notice, files with the North Carolina Industrial Commission, upon the form it shall require, a 25 request for a hearing, the finding of the secretary or other department head shall be final. The 26 finding of the secretary or other department head shall be final unless the claimant, within 30 27 days of receipt of the notice, files a request for a hearing with the North Carolina Industrial 28 Commission using a form required by the Commission. Upon the filing of a request, the North 29 Carolina Industrial Commission shall proceed to hear the matter in accordance with its 30 regularly established procedure for hearing claims filed under the Worker's Compensation Act, 31 and shall report its findings to the secretary or other head of the department. From the decision 32 of the North Carolina Industrial Commission, an appeal shall lie as in other matters heard and 33 determined by the Commission. Any person who refuses to perform any duties to which he the 34 person may be properly assigned as a result of the finding of the secretary, other head of the 35 department or of the North Carolina Industrial Commission shall be entitled to no benefits 36 pursuant to this Article as long as the refusal continues. 37 " § 143-166.20. Subrogation. 38 The same rights and remedies set forth in G.S. 97-10.2 shall apply in all third party liability 39 cases occurring under this Article, including cases involving the right of the affected State 40 agency to recover the salary paid to an injured officer during his the officer's period of 41 disability." 42 SECTION 35.16.(b) This section becomes effective October 1, 2013, and applies 43 to incapacity commencing on or after that date. 44 45 SEPARATE INSURANCE BENEFITS PLAN ASSETS/PAYMENT OF HEALTH 46 INSURANCE PREMIUMS FOR LAW ENFORCEMENT OFFICERS 47 SECTION 35.17.(a) G.S. 143-166.60 is amended by adding a new subsection to 48 read: 49 "(d1) In addition to the benefits provided under subsection (d) of this section, the assets of 50 the Plan

Social Security Disability, SSI, SSD Application? What do i need to know?

Social Security needs to gather quite a bit of information when they take a disability application from you. Our office can help you submit an application based on you work history and we would need the same information. Meet Susan O\'Malley, head of our Social Security Section. Social Security Administration (SSA) needs accurate contact information. This includes your mailing address and a phone number where you can be reached. SSA will need your work history for the last fifteen years before you stopped work due to your disability. You must include the name and address of the employer and your job title. SSA will also require a description of what you did on each job. SSA will need to know what the highest grade you completed in school. They will need the contact information for any healthcare provider that treats you for you health problems. This will include the doctor's name address and phone number. SSA will also need to know what the doctor treats you for and how long you have gone to that doctor. Social Security will need the list of medications you currently take. They will need the name of the medicine, the dose, what it does and who prescribes it to you. SSA will need to know about any marriages and divorces. They will want to know that date on which your medical conditions stopped you form working. This date may be different from the date the condition began. Susan board certified disability specialist Social Security will also need a brief description of how your health condition limits you ability to function. Social Security uses this information to determine whether you are unable to work on a full-time basis based on your age, education, skills form past work and the limitations caused by your health condition. It will help the application process go smoother if you already have this information gathered. Our social security attorneys have provided a list of the above.

Health Insurance Through North Carolina State Employees BCBS? Your Personal Injury Attorney Cannot pay your PI monies without paying Health Plan

In an issue of first impression, the NC Court of Appeals recently ruled that the State Health Plan has a lien that must be paid out of any third party recovery and failure to so pay could result in the attorney having to personally reimburse the state. In other words, an injured party who has health insurance through the State of North Carolina as an employee of relative of a state employee must reimburse the Health Plan out of any injury claim and their attorney is charged by law with doing so.  Failure of the attorney in paying the lien could result in the attorney having to pay the money. In The NC Health Plan v. Barnett, NC COA12-999, the Court held, N.C. Gen. Stat. § 44-50 (2011), places an affirmative duty on an attorney for an injured party to retain the full amount of a medical provider's lien before disbursing settlement proceeds. NC Supreme Court has acknowledged that an attorney who violates this duty is subject to legal liability for the amount of the lien under the statute. N.C. Gen. Stat. § 135-45.15 similarly places a duty upon an injured party's attorney to direct settlement funds recovered by an injured State Health Plan member to plaintiff in satisfaction of its statutory lien. The attorney mistakenly argued that his client ordered that the funds be disbursed in that manner.  He cites North Carolina State Bar Ethics Opinion RPC 69, which states that "[a]lawyer is generally obliged . . . to disburse settlement proceeds in accordance with his client's instructions. The only exception to this rule arises when the medical provider has managed to perfect a valid physician's lien." North Carolina State Bar RPC 69 (October 20, 1989). This opinion by the State Bar does not excuse the attorney's actions.   Instead, the opinion clearly acknowledges that, regardless of a client's instructions, an attorney cannot ignore a valid statutory lien, a physician's lien under N.C. Gen. Stat. § 44-50. An attorney likewise cannot ignore a valid State Health Plan lien under N.C. Gen. Stat. § 135-45.15 when disbursing settlement funds, regardless of his client's wishes. The issues in lien disbursement have become unduly burdensome and difficult to properly follow.  You may be better off hiring an attorney to assist you as they are responsible for properly disbursing disbursing the money after you settle or win a judgment.  Call us today if you have any questions regarding your automobile injury claim. Personal Injury Attorney -- Joe Tunstall

Hospital Negligence: Can a hospital be liable for actions of a Doctor Practicing there?

In the recent NC Court of Appeals case of the Estate of Ray v. Forgy NC APP COA12-1071, the court examined the reasons when it would be appropriate to find the hospital negligent for the actions of one of their physicians.  The court made clear that the physician at question was privileged by the hospital but was not employed or an agent of the hospital, never the less: "[T]here are fundamentally two kinds of [corporate negligence] claims: (1) those relating to negligence in clinical care provided by the hospital directly to the patient,and (2) those relating to negligence in the administration or management of the hospital." Estate of Waters v. Jarman, 144 N.C. App. 98, 101, 547 S.E.2d 142, 144, disc. review denied, 354 N.C. 68, 553 S.E.2d 213 (2001). Cases alleging a failure by the hospital to adequately monitor and oversee a physician or which contend the hospital was negligent in granting privileges to unqualified physicians are examples of the latter, and require the court to apply the reasonably prudent person standard of care in assessing negligence. Id. at 102-03, 547 S.E.2d at 145 (discussing Blanton v. Moses H. Cone Hosp., Inc., 319 N.C. 372,375, 354 S.E.2d 455, 457 (1987)). A failure to inquire further into a matter listed on an application for renewal of surgical privileges has been deemed sufficient to raise a genuine issue of material fact as to whether a hospital was negligent in re-credentialing a doctor. See Carter v. Hucks-Folliss, 131 N.C. App. 145, 147-48, 505 S.E.2d 177, 178-79 , disc. review denied, 349 N.C. 528, 526 S.E.2d 173 (1998). Therefore, as in this case, the failure of the hospital to inquire about legal claims against the Doctor while allowing him to continue to practice medicine may be enough to allow a claim for the failure to adequately credential the physician. In other words, although a physician may not be actually employed by a hospital, the hospital must still check the qualifications of a physician or doctor before allowing them to work at the hospital and if they fail to do so and someone is hurt; the hospital is responsible for the damages. Hospital Negligence attorney -- Joe Tunstall

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Phone: 919-277-0150
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