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Posts tagged "north carolina legislature"

Report your North Carolina Workers' Compensation Injury

In North Carolina an injured worker is required to report an injury at work to the North Carolina Industrial Commission within thirty days (30) of your injury and no greater than two (2) years of the date of your injury.  N.C. Gen.Stat. § 97-22. Injuries are reported on a North Carolina Industrial Commission Form 18.  The North Carolina Industrial Commission (NCIC) is the state agency that handles all workers' compensation claims, hearings and appeals. To report your claim, report your claim with a Form 18, informing the Industrial Commission and your employer of the nature of your injury, how the injury occurred and when the injury occurred. Why you should file a NCIC form 18 with Susan O'Malley

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.    

Is inadequate lighting enough to demonstrate negligence?

Our NC Court of Appeals recently heard the case of Cone v. Watson (COA12-670)argued by two of the stars of the Eastern NC Bar where the issue was whether a fall down inadequately lit stairs was enough to demonstrate negligence. The Court found that failure to illuminate stairs where one would leave a business after dark is enough for the jury to determine if the defendant was negligent. The Court found: North Carolina landowners . . . are required to exercise reasonable care to provide for the safety of all lawful visitors on their property. Whether a landowner's care is reasonable is judged against the conduct of a reasonably prudent person under the circumstances. There is no duty to protect a lawful visitor from dangers which are either known to him or so obvious and apparent that they may reasonably be expected to be discovered. Kelly v. Regency Centers Corp., 203 N.C. App. 339, 343, 691 S.E.2d 92, 95 (2010). Our Supreme Court has said that "[i]f [a] step is properly constructed, but poorly lighted, and by reason of this fact one entering the store sustains an injury, recovery may be had." Garner v. Atlantic Greyhound Corp., 250 N.C. 151, 159, 108 S.E.2d 461, 467 (1959). (A) defendant breaches her duty to a lawful visitor if she fails to provide adequate lighting such that a reasonably prudent person would be likely to expect or see the step. See York, 264 N.C. at 455, 141 S.E.2d at 868-69. Therefore, our Court has found that failure of a business to properly light the entrance and exit of a business may be enough to show negligence on the part of the business owner. For more discussion about negligence, visit our website.

Medical Expenses in Automobile Cases: New Law

As of October 1, 2011 many citizens of North Carolina will no longer be able to recover the full value of their medical expenses if they are injured in an automobile collision.  The North Carolina General Assembly has passed HB542 and SB 586 and it is now the law in North Carolina.  Rule 414 Evidence of medical expenses. Evidence offered to prove past medical expenses shall be limited to evidence of the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of payment, and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. This legislation hurts the average middle class citizens who works and has health insurance by giving any negotiated write-off between their health insurance company and their doctor to the at-fault party.  This change allows an injured person to only put on evidence of the actual amounts PAID on the bill regardless of who paid.  If the victim of any negligence is hard working and has as a result of their job health insurance the at fault person such as a drunk driver gets the benefit of this hard work and is allowed to reduce the amount submitted to the jury by the amount of the insurance reduction. One easy example is when a state employee is injured in a car collision and goes to the emergency room and to their primary physician for several visits they have "incurred" $2,500.00 in medical expenses. Under bill vs. paid, the amount the State Health plan has negotiated as a reduction with the hospital and the other providers in exchange for the provider getting paid by the health plan would come out of the amount. Of the $2,500.00 20% would be "paid" or owed by the state employee as a deductible and 80% would be the responsibility of the state health plan. Due to the amount of bills that are paid by the state health play the plan may only have to pay 50% of the 80% to satisfy that debt in full. Under bill vs. paid the state worker would not be able to present the 30% reduction to the jury as an incurred medical expense as it would not be actually "owed", the state worker would STILL have to pay the state health plan back out of any recovery the 50% they "paid" for the medicals.  The unreasonable portion of this bill is that those without health insurance recover the full amount of the bill with no reductions.  In reality the only one who benefits is the automobile insurance company.  The short answer is that it is not good for the victim and quite frankly the only benefit is for the insurance company who represents the drunk driver and whose identity in North Carolina is never mentioned during trial. Yes, that is correct, if the defendant drunk driver has auto insurance who will pay his bill, it is against the evidence rules to mention that during a trial, but the fact that the injured person is hard working and has purchased their own insurance is admissible...  Thus, if you or a close friend or relative has the misfortune of being injured in North Carolina after October 1, 2011 the one who injured you will be granted some of your benefits.

HB542: Insurance Company over Middle Class Workers with Health Insurance

The North Carolina General Assembly has passed HB542 which is designed to "help business" by reducing the amount paid out to victims of negligence. This legislation neither helps business nor the average middle class citizens who works and has health insurance. The bill does  not allow a hurt person to put on evidence of ALL of their medical expenses if they have some additional way to pay the same or if they would not all have to be paid back--in other words-- if they have health insurance the at fault driver gets that benefit. If the victim of any negligence is hard working and has as a result of their job, health insurance, the at fault party, whether a drunk driver or Wal-Mart gets the benefit of this hard work and is allowed to reduce the amount submitted to the jury by the amount of the insurance reduction. One easy example is when a state employee is injured in a car collision and goes to the emergency room and to their primary physician for several visits they have "incurred" $2,500.00 in medical expenses. Under bill vs. paid, the amount the State Health plan has negotiated as a reduction with the hospital and the other providers in exchange for the provider getting paid by the health plan would come out of the amount. Of the $2,500.00 20% would be "paid" or owed by the state employee as a deductible and 80% would be the responsibility of the state health plan. Due to the amount of bills that are paid by the state health play the plan may only have to pay 50% of the 80% to satisfy that debt in full. Under bill vs. paid the state worker would not be able to present the 30% reduction to the jury as an incurred medical expense as it would not be actually "owed", the state worker would STILL have to pay the state health plan back out of any recovery the 50% they "paid" for the medicals.  This seems reasonable until you consider that those without health insurance get no such reduction. Why would our legislature allow injured workers and those who have worked hard for health insurance to be taken advantage of... money -- in the form of contributions from automobile insurance companies who are the only ones who will actually see a benefit from this plan. Who benefits from the billed vs. paid option? Doesn't it make sense not to pay for what is not actually "owed"? In reality the only one who benefits is the at fault party and their insurance company. The not at fault party - the victim--gives to the defendant (the one who caused the problem in the first place) their benefit in having purchased insurance or had a good enough job to purchase insurance in exchange for nothing... The drunk that ran head on into the family of four on the way home from the circus gets the benefit of the parents having good jobs? Who of the two of them should get that benefit? If there is no health insurance then the bill is owed in full. Why is a system that rewards those who are at fault good for us? The short answer is that it is not good for the victim and quite frankly the only benefit is for the insurance company who represents the drunk driver and whose identity in North Carolina is never mentioned during trial. Yes, that is correct, if the defendant drunk driver has auto insurance who will pay his bill, it is against the evidence rules to mention that during a trial, but the fact that the injured person is hard working and has purchased their own insurance is admissible...  Truth is truth, unless you try cases regularly and then truth is whatever you can prove in court. As an attorney we are constantly criticized for "bending" or "spinning" the truth.  In fact, the rules that determine what is and is not admissible are determined by our state legislature, not our state Supreme Court.  In many states the Courts determine the evidence rules, but in North Carolina evidence is determined by non-lawyers, our legislature.  In reality, automobile insurance should be as admissible as health insurance, or even better, they both should not be admissible.  Mentioning one without the other creates a horrible fiction where those involved in the process loose confidence in the system.  North Carolina's legislature made a mistake passing the automobile insurance bailout and should amend it as so

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

Proposed legislation to help at fault drivers: Billed vs. Paid

As the tort reform debate continues in the North Carolina Legislature, one of the most controversial and seemingly difficult to understand issues for legislators is the concept of bill vs paid. What that involves is a push by the major automobile insurance companies to not allow a hurt person to put on evidence of ALL of their medical expenses if they have some additional way to pay the same or if they would not all have to be paid back. One easy example is when a state employee is injured in a car collision and goes to the emergency room and to their primary physician for several visits they have "incurred" $2,500.00 in medical expenses. Under bill vs. paid, the amount the State Health plan has negotiated as a reduction with the hospital and the other providers in exchange for the provider getting paid by the health plan would come out of the amount. Of the $2,500.00 20% would be "paid" or owed by the state employee as a deductible and 80% would be the responsibility of the state health plan. Due to the amount of bills that are paid by the state health play the plan may only have to pay 50% of the 80% to satisfy that debt in full. Under bill vs. paid the state worker would not be able to present the 30% reduction to the jury as an incurred medical expense as it would not be actually "owed", the state worker would STILL have to pay the state health plan back out of any recovery the 50% they "paid" for the medicals. Who benefits from the billed vs. paid option? Doesn't it make sense not to pay for what is not actually "owed"? In reality the only one who benefits is the at fault party and their insurance company. The not at fault party - the victim--gives to the defendant (the one who caused the problem in the first place) their benefit in having purchased insurance or had a good enough job to purchase insurance in exchange for nothing... The drunk that ran head on into the family of four on the way home from the circus gets the benefit of the parents having good jobs? Who of the two of them should get that benefit? If there is no health insurance then the bill is owed in full. Why is a system that rewards those who are at fault good for us? The short answer is that it is not good for the victim and quite frankly the only benefit is for the insurance company who represents the drunk driver and whose identity in North Carolina is never mentioned during trial. Yes, that is correct, if the defendant drunk driver has auto insurance who will pay his bill, it is illegal to mention that during a trial, but the fact that the injured person is hard working and has purchased their own insurance is admissible...

Changes to workers' compensation: Should an employer have contact with you doctors?

Having represented 100's of injured workers over the years, this years debate over workers' compensation in the North Carolina Legislature is painful. The number one thing to remember our injured workers is that they were by definition, workers.  Although they are being portrayed in the media and by Chamber of Commerce groups as slackers who are out for a handout, I cannot remember a single client that would have traded their good paying job for an injury and only 66% of their pay.  Add to that burden that these injured workers were on the job, doing what they were paid to do when something happened causing them to become injured, and now they are thrown into a system where they are told, that regardless of their pain level, you must be here or there to see a doctor of the employers choosing as often as the employer wants you to go and must then constantly have to worry whether your pay will be on time or just within the 15 day "window" for paying late each week allowed in the system and you have a no brainer --- don't get hurt here in North Carolina. Allowing the insurance companies who handle workers' compensation, whose adjusters are mostly overworked, underpaid and have a huge burnout and turn over level, to determine which physicians you can see with no recourse (what is currently being proposed) is almost as bad as allowing the inmates to run the prison... it may be easier, but it will be painful to someone.  The group who will be hurt by allowing the insurance companies to determine, contact directly and then and only then authorize treatment will be the workers of North Carolina - all in the name of attracting business.  Lets face it, if being allowed to ignore injured workers, or truly torture them (what the true result will be of this proposed legislation) is the cost of bringing in additional business, perhaps we should reevaluate our priorities.  Honestly, North Carolina has been consistently ranked as one of the top 5 states for emerging business and the proposed changes will NOT increase that ranking, will NOT reduce insurance premiums for North Carolina businesses, but will only HELP OUT OF STATE INSURANCE COMPANIES. Why then are our legislators fighting so hard for these out of state insurance companies?  Money, pure and simple is the root cause of this legislation.  The newly elected legislators took huge campaign contributions from out of state insurance companies and now owe them political capital.  Unfortunately this capital should not be the lives of our injured workers.  We have statutes in place that protect this contact.  Don't let our legislators throw away citizens rights for political capital.

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