O'Malley Tunstall PLLC
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June 2013 Archives

Injured by a Driver without a Valid Drivers' License -- Is it even admissible at trial?

When injured by a driver that did not have a valid drivers license is the fact the defendant was not licensed admissible at trial? Meet Joe Tunstall, head of our Personal Injury Section. In Swicegood v. Cooper, 341 N.C. 178 (1995), the NC Supreme Court held that evidence of Plaintiff's poor driving record was admissible to prove contributory negligence by negligent entrustment, denying the in limine motion. In Thompson v. Three Guys Furniture Co., 122 N.C.App. 340 (1996), the court held that the status of an individual's driving credentials generated issues of material fact sufficient to withstand a summary judgment motion in a negligent entrustment action. In Dwyer v. Margano, 128 N.C.App. 122 (1997), the court again held that the status of an individual's driving credentials was a genuine issue of material fact. In this case, the fact that Margano had a up to date foreign driver's license was not sufficient to show that his rental car company should not have trusted him with the car. In Tart v. Martin, 353 N.C. 252 (2000), the NC supreme court wrote that "negligent entrustment is established when the owner of an automobile entrusts its operation to a person whom he knows, or by exercise of due care should have known, to be an incompetent or reckless driver" 353 N.C. at 254 (quoting, Heath v. Kirkman, 240 N.C. 303, 307 (1954)). In all four cases the driver's ability to operate a car, from both a skill and a licensure perspective, were admitted as evidence for a variety of reasons. Whether the fact that a defendant did not have a license appears to be fact specific as to admissibility. The courts appears to have given specific gravity to the reason for the admissibility and what it is being used to prove. Therefore, fair or not, it appears that whether a court allows the defendant's failure to even have a valid driver's license only is admissible if there are other evidence of bad driving in the past. If you have injuries from a car accident and have questions, feel free to visit our website.

Social Security Disability, SSI and Disability -- Current Status

​There has been a lot of news lately about disability. Unfortunately, not a lot of what has been report is accurate and it certainly does not give the whole picture. Social Security Specialist -- Susan O\'Malley "The Social Security Disability Insurance (DI) program provides modest but vital benefits to workers who become unable to perform substantial work on account of a serious medical impairment. Although some critics charge that spending for the program is "out of control;" the bulk of the rise in federal disability rolls stems from demographic factors: the aging of the U.S. population, the growth in women's employment, and Social Security's rising retirement age. Other factors - including the economic downturn - also have contributed to the program's growth, but its costs and caseloads are generally in step with past projections. There is little evidence that DI benefits are going to people who could support themselves by working." -Testimony of Kathy A. Ruffing, Senior Fellow, Center on Budget and Policy Priorities before the Subcommittee on Social Security on Ways and Means, U.S. House of Representatives. An individual has to prove they are disabled within Social Security's strict guidelines. There has to be medical documentation of a medical condition before Social Security will consider it under a disability claim. There is still a long wait to get a hearing. The denial rates in this part of North Carolina at the pre-hearing levels are close to 90%. The "modest benefits" paid by Social Security do not compare to what someone could earning in the work force. It is illogical to believe that someone would go that long, pass Social Security's strict guidelines, to get that little if they did not absolutely have to. The 2013 report of the status of the Social Security fund indicates that it can continue to pay benefit at one hundred percent through 2033. After that is would be able to pay at seventy seven percent. However, the reserves for the fund are expected to run out in 2016. The depletion does not mean that the trust fund cannot make any payments in 2016. Congress does need to address the funding so that the program can continue. Congress has been anticipating that the reserves would be depleted in 2016 since 1994. Contact your congressman and ask what they intend to do to address funding Social Security in the future. If you need to discuss a disability claim contact our office. O'Malley Tunstall

Workers' Compensation covers Increases in existing injuries

When a worker gets hurt in an injury by accident arising out of and in the course of employment, that injury by accident is compensable. N.C.G.S. § 97-2(6). Put simply, if you get hurt at work you can get payment for your injury. That is the fundamental rule of workers' compensation. An important corollary to that fundamental rule is that the accident does not have to be the sole cause of a workers' pain or limitations in order to be compensable. If a worker has a preexisting condition that is aggravated or exacerbated by an on the job injury by accident, the injury can be compensable. An injury by accident at work is compensable even if it is merely a contributing cause. Roman v. Southland Transp. Co., 350 N.C. 549, 515 S.E. 2d 214 (1999). "All natural consequences that result from a work-related injury are compensable under the Workers' Compensation Act." Roper v. J.P. Stevens & Co., 65 N.C.App. 69, 73-74 308 S.E.2d 485, 488 (1983). "When a preexisting non-disabling non-job-related condition is aggravated or accelerated by an accidental injury arising out of and in the course of employment ... so that disability results, then the employer must compensate the employee for the entire resulting disability." Cannon v. Goodyear Tire & Rubber Co., 171 N.C.App. 254, 262, 614 S.E.2d 440, 445 (2005)(quoting, Morrison v. Burlington Industries, 304 N.C. 1, 18, 282 S.E.2d 458, 470 (1981)). That means that the Plaintiff (injured worker) need not prove that the on the job injury is the only reason that they are having pain or problems. It is sufficient to prove that the injury caused an aggravation or exacerbation of a pre-existing condition. A recent case in our office demonstrates the importance of this rule. Our client suffered from congenital narrowing of the cervical spine, which means that the nerve column in his neck was narrower than the average person since birth. He suffered an injury by accident at work when he hit his head. His orthopaedic doctor testified that he more likely than not aggravated his preexisting neck condition when he hit his head at work. He ended up requiring surgery, and could no longer perform they type of work.  Importantly, he had never suffered any pain or injury to his neck prior to the injury at work.  His preexisting neck condition was asymptomatic or causing him NO PAIN or LIMITATION until the accident. Even though our client in the above example had a preexisting condition, the congenital narrowing of his cervical spinal column, his injury by accident at work aggravated it, causing substantial damages. Because of the rule that "all natural consequences" of a work-related injury are compensable, our client is entitled to damages. If he can prove that the accident is compensable, then the cost of medical care, as well as weekly workers' compensation payments, should be borne by his company (or their insurer) because he can no longer perform the same level of physical work. If you or a loved one suffered from an on the job injury, give us a call 800 - 755 - 1987.

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