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Hit by a Tractor Trailer?

Being in an auto accident is a terrifying thing. Even the so-called “little ones” aren’t little to the people in the vehicles. I could go on and on with war stories about that.

What’s even worse is when you’re bombarded by a 16 ton transfer truck at high speeds. Accidents involving big commercial vehicles like that are not just scary, they’re deadly.

If you’re involved in any automobile accident, I think it’s wise to seek help from an attorney sooner rather than later. But if you’re in an accident with a tractor trailer or other commercial vehicle, it’s even more important that you get an attorney IMMEDIATELY. The stakes in these cases are way higher and as a result, the insurance carriers will be working from the get-go to stack the deck against you. You’re going to want someone to get on your side immediately to make sure the accident is properly investigated and that evidence is properly preserved. Failure to do that can be as catastrophic to your case as the impact was to your body.

Call me. 919-929-2992.

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Auto Accident Back Injuries: A Brief and Unscientific Essay

As I say to most of my clients when we meet, I’m not that kind of doctor. But my clients and I end up exploring a lot of medical issues in injury claims, so you can’t help but develop at least a passing familiarity with the more common injuries. In auto accidents, back pain is one of the most common complaints. But what causes it? This non-physician can tell you that generally, you’re looking at 3 likely candidates.

By far the most common cause for back pain after an auto accident is the “soft tissue injury.” This is the phrase we use to label strains or sprains to the muscles around your spine. The violent whipping motion your body undergoes in an automobile accident impact can put a terrible amount of strain on these muscles as they are doing their jobs. This trauma can result in back pain that can severely limit your ability to work and play. No fun at all. Normally, victims with this kind of injury seek treatment of their pain through medication, physical therapy, or chiropractic treatment. The vast majority of victims recover in a few months, but some do so much quicker, while others seem to linger forever. Bodies are different.

The next thing we see from time to time is an injury to the framework of the spine itself. There are these little cushions between your vertebrae – the blocks that make up your spine – and these guys try to keep your spine from collapsing. It’s a tough job, and as we get older…and I mean like over 20…we all develop some degree of a condition called Degenerative Disc Disease. Over time the pressure exerted on these discs wears them out and they start to show it. A bulging disc can best be described like a tire with low air; it is jutting outward from the pressure above and below it, like a balloon between two books. The most important things to remember about these are that a) they can become asymptomatic with time, rest, and treatment, so they won’t bother you forever, necessarily, and b) they tend to develop over time, not from trauma. So if you are diagnosed with this after an auto accident, it may be more likely that the condition was exacerbated by the impact as opposed to being caused by the impact. Unless you have pre- and post-impact imaging studies, it’s hard to say for sure.

These are to be contrasted with the disc herniation. If we’re still thinking of the balloon between two books analogy, think of that balloon as being filled with jello. While a herniation is flattening of the whole construct, a herniation is when the “balloon” is actually torn and the jello is pushing out. When this pushes out onto a nerve root, it can result in extreme pain, numbness, tingling, and weakness of extremities linked to that nerve. This is a serious condition that may require surgery. These are often far more likely to be the result of trauma as opposed to developing over time, so if you have this diagnosis after an accident, it would stand to reason that your doctor would be more likely to say that it was caused by the accident as opposed to being there before and merely exacerbated by it.

As I said, I ain’t that kind of doctor, so take everything I say with a whole bowl of salt. But this info can at least help you understand the different back injuries you might be facing. How you present them to the insurance company in your auto claim is a different story, too, so you might need some help with that. Call me to discuss. 919-929-2992.

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Why Do I Need An Attorney?

This is a question that I’ve heard once or twice, and the answer can be complex, but also fact-dependent based on the victim and their particular case.  Generally speaking, I freely admit that if I tried to do your job I would probably suck at it.  Now, after some experience and training, I could improve.  If you want to figure out my job, you’re 100% welcome to do that, just don’t expect a good outcome on your first try.  You’ll be up against a professional negotiator with a big fat “denied” stamp on his desk, but if you feel up to the task of figuring out how to be a personal injury lawyer in a few months, that is your prerogative.  So if you think so poorly of your cases that you’d let an amateur run them, then by all means, do that.  I would just imagine that you’d care enough about the outcomes of them that you’d want a professional with two decades of experience to handle them.  I know I would.  


Believe me, I’ve heard it all.  At this point you might ask, “But they told me they would pay my medical bills, and we can’t guarantee I’ll get my lost income, or anything for pain and suffering, so I still don’t know why or if I need you.”  Sure.  That’s a way to look at it.  Another way to look at it is you probably don’t know how you will get those other things without me.

Sadly, there are no guarantees in any claim, so if you’re looking for those, I can’t help you.  What I can tell you is I probably know better how to document your pain and suffering, your lost income, and whatever other losses you might have, in such a way as to increase the likelihood that the carrier would put more value on them.  I also present the legitimate threat of a trial (which means expenses on the part of the carrier), which you do not.  It is, therefore, simply more probable that I can get reasonable value for your various losses than you can on your own.  


Obviously, the gamble is that 1/3 of your recovery that would be my fee.  I get it.  Nobody likes parting with money.  I had an investment advisor that used to say, “You never lose money on an investment you never made.”  That applies to injury claims, in a way; you can’t fret over 1/3 of something that you don’t have yet.”  My job is to help you maximize your claim value so you feel like you got the benefit of your bargain.  Can I guarantee anything?  No, obviously I cannot.  But what I can say is that I always do my best to make my clients happy.  Should you trust me saying that?  If you want to.  But a better thing to do is look at my Google reviews.  Then look at other personal injury attorneys in NC and their Google reviews.  I can’t buy that kind of advertising. 

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Medical Liens and Your Settlement

Things don’t always go as we like. And despite our best efforts on some occasions the settlement from your auto accident doesn’t really rise to the level sufficient to cover your treatment costs in total. Thankfully there are statutes that give you some hope!

NC General Statutes 44-50 and 44-51 give you some assistance in this sort of situation. What the law essentially says is AFTER attorney fees, if the total medical bills that are protected by liens is greater than HALF of what’s left over, then you can take that total (after fees…remember that!) and split that amount in half. One half would go to you, the victim. The other half is split pro rata between the lien-holders. So let’s talk about pro rata and what “lien” means.

“Pro-rata” is lawyer talk for “percentage share.” Let’s look at an example:

100,000 Settlement. $30000 fee. $70000 left over. Let’s say the hospital is owed $30000, and another provider is owed $25000 (both with perfected liens). If you take that $70000 and divide it in half, then you have $35000/$35000. That’s less than the total of the liens, which is $55000. So take $35000 and divide it by $55000. You get roughly .63. That means you then multiply each bill by that percentage number, so in effect each gets about 63% of their bill paid. So the hospital gets $19009.09 and the other provider gets $15090.91, which totals to $35000. Providers get their share of $35000, and you get $35000.

So, that leads us to the “lien” question. A lien is a right to be paid from a defined set of funds. In this situation, the providers have to only do two things to perfect their lien: Provide the records and bills free of charge and state in writing to you or your attorney that they are asserting a lien. If there’s a lien, you HAVE to pay the providers SOMETHING from your settlement; you can’t just ignore them. But this is what the pro rata thing above is for. If there is no lien on a bill that you owe, but there isn’t enough money to pay the lien-holder in full, then you CANNOT pay the non-lien-protected bill to the detriment of the lien holder. That opens up a whole other can of worms for another post…

The purpose of this law is to ensure that you, as the victim, get something out of the settlement. I’m glad it’s still here, but it’s pretty wacky, huh?

This stuff is complicated! Don’t try to do it on your own. Get an attorney for professional help with this stuff. Call me at 919-929-2992.

§ 44-50
Statutes and Session Law
Chapter 44. Liens.
Article 9. Liens upon Recoveries for Personal Injuries to Secure Sums Due for Medical Attention, etc.
44-50 Receiving person charged with duty of retaining funds for purpose stated; evidence; attorney’s fees; charges.

44-50. Receiving person charged with duty of retaining funds for purpose stated; evidence; attorney’s fees; charges.

      A lien as provided under G.S. 44-49 shall also attach upon all funds paid to any person in compensation for or settlement of the injuries, whether in litigation or otherwise. If an attorney represents the injured person, the lien is perfected as provided under G.S. 44-49. Before their disbursement, any person that receives those funds shall retain out of any recovery or any compensation so received a sufficient amount to pay the just and bona fide claims for any drugs, medical supplies, ambulance services, services rendered by any physician, dentist, nurse, or hospital, or hospital attention or services, after having received notice of those claims. Evidence as to the amount of the charges shall be competent in the trial of the action. Nothing in this section or in G.S. 44-49 shall be construed so as to interfere with any amount due for attorney’s services. The lien provided for shall in no case, exclusive of attorneys’ fees, exceed fifty percent (50%) of the amount of damages recovered. Except as provided in G.S. 44-51, a client’s instructions for the disbursement of settlement or judgment proceeds are not binding on the disbursing attorney to the extent that the instructions conflict with the requirements of this Article. (1935, c. 121, s. 2; 1959, c. 800, s. 2; 1969, c. 450, s. 2; 1995 (Reg. Sess., 1996), c. 674, s. 3; 2001-377, s. 2.)

§ 44-50.1
Statutes and Session Law
Chapter 44. Liens.
Article 9. Liens upon Recoveries for Personal Injuries to Secure Sums Due for Medical Attention, etc.
44-50.1 Accounting of disbursements; attorney’s fees to enforce lien rights.

44-50.1. Accounting of disbursements; attorney’s fees to enforce lien rights.

      (a) Notwithstanding any confidentiality agreement entered into between the injured person and the payor of proceeds as settlement of compensation for injuries, upon the lienholder’s written request and the lienholder’s written agreement to be bound by any confidentiality agreements regarding the contents of the accounting, any person distributing funds to a lienholder under this Article in an amount less than the amount claimed by that lienholder shall provide to that lienholder a certification with sufficient information to demonstrate that the distribution was pro rata and consistent with this Article. If the person distributing settlement or judgment proceeds is an attorney, the accounting required by this section is not a breach of the attorney-client privilege.

      (b) The certification under subsection (a) of this section shall include a statement of all of the following:

      (1) The total amount of the settlement.

      (2) The total distribution to lienholders, the amount of each lien claimed, and the percentage of each lien paid.

      (3) The total attorney’s fees.

      (c) Nothing in this Article shall be construed to require any person to act contrary to the requirements of the Health Insurance Portability and Accountability Act of 1996, P.L. 104-91, and regulations adopted pursuant to that Act. (2003-309, s. 1.)

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NC Worker’s Comp: Is your claim accepted?

If you have a worker’s compensation claim in NC and you’re lucky enough to get a response from anyone, you might see a Form sent by your employer/insurance carrier that will be either listed as a Form 60 or a Form 63. What’s the difference?

A Form 60 is an acceptance of the claim. They’re pretty much saying they’re on the hook for your claim, and it’s fairly hard for them to get off the hook if they do this. Because of that you are more likely to see an adjuster file a Form 63.

Technically, a Form 63 is supposed to be used when the insurance company for your employer isn’t sure if a claim is one that should be accepted (we tend to use the term “compensable” in this business). Based on the rules, the carrier then has 90 days to investigate the claim and then deny if they think they have the legal grounds to do so. In the even that the carrier takes no action within 90 days the claim is deemed accepted. But that may not be the end of the argument…

There are still several issues regarding compensability that might arise. Oftentimes the Form 63 is used as a kind of tentative “maybe” by the carrer. They want to see how the claim shapes up and if it gets to wacky or expensive, then they may still deny it within the requisite time period. They might even argue that they meant to deny it but had some good reason that they didn’t and should still be allowed to. And even if you get a Form 60, it may be very limited as to what they are accepting; they might be saying we’ll pay for this body part’s treatment but not these others.

Pretty much everything in the law is wackier than it needs to be, and Worker’s Comp is no exception. Hell, it’s wackier than most other bits. So be on your guard. And maybe call an attorney. Call me at 919-929-2992.

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Lost Income from your Injury Claim

It’s a totally natural consequence of getting injured. If you’re hurt, often times you can’t work, so you are losing money. Does that affect the value of your claim? Heck yeah it does.

But like everything involving personal injury claims in North Carolina, the devil is in the details.

Can you just say, “Hey, Snake Farm, I missed 2 weeks of work and that’s worth $75,000,” and expect to get that? You bet you can’t. Of course it’s not that simple.

So, how do you help to make sure the lost wage aspect of your injury claim is strong? I’m so glad you asked.

The first step is to have a legitimate reason to miss work. Don’t @ me, I’m on your side, but this is the time for truth. If you have a sore ankle but you can drive and have a sedentary job, should you really be missing work? Remember, in North Carolina you have an affirmative duty to mitigate your damages, which means that if it’s within your reasonable power to make your damages lower, you can’t benefit if your damages get artificially inflated. So just make sure your inability to work is reasonable. Conversely, if you are able to work, just do that.

The second step goes hand in hand with the first. Who is the best person to say you can’t work? YOUR DOCTOR! Whoever that is – family doc, chiropractor, whatever – is best-positioned to state that due to the injuries you suffered in the auto accident (or whatever) of (insert date here) you are unable to work for ____________, or you should avoid ___________________ (which may then mean you can’t work, depending on your job’s ability to accommodate your restrictions).

The third step is making sure your employer is on your side. If your employer will provide on their letterhead a statement that you a) work there, b) missed X amount of time, and c) that time is worth Y, then that’s the best lost wage documentation you can hope for. That letter, combined with an out of work letter from your doc that matches up is the best combo of evidence you can have to support a lost wage claim.

Granted, some of us can’t do a lot of that. What if you’re self-employed? That puts you in a bit of a pickle, because then instead of having a disinterested third party attesting to your lost income, it’s you, which is inherently a bit less believable. Still, there are ways around it, primarily showing a record of income via your taxes from years prior and coupling that with an out of work note, you might be able to get by. But as they say, there’s many a slip twixt a cup and a lip.

Look, like a lot of injury claim stuff, this can get complicated. All the more reason to talk to an attorney. Call one. Call me. 919-929-2992.

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Waiting on Medicaid: Personal Injury Claims and Medicaid

When you’re injured in North Carolina due to someone else’s negligence, you should use your health insurance – whatever it is! You can’t rely on anyone else to pay your bills up front, so use your health insurance!

When your health insurance is Medicaid, that’s a good thing and a bit of a bad thing (but not too bad). Let me explain…

Medicaid is great in that it pays for your health care and keeps you out of collections, which is fantastic on both fronts. Huzzah!

Medicaid causes a bit of a problem though in that Medicaid has a right of reimbursement from third party claims. What that means is if Medicaid pays your health care costs and you get money from someone else (the “third party” noted above) to reimburse you for those costs, then you have to pay Medicaid back.

That’s not the end of the world. You would normally have to pay at least part (if not all) of your outstanding medical expenses from your settlement anyway. And it actually helps to have Medicaid in this instance because of Medicaid’s steep discount; they only pay pennies on the dollar for your treatment, so instead of a $1000 bill paid in full, you might be able to pay about $300 to Medicaid. Not bad.

The major drawback to having Medicaid in a personal injury case is the TIME that it takes. You see, you have to wait for Medicaid to tell you how much they want back from your settlement. And it being what it is, it takes FOREVER for them to get back to you. They ask for 6 weeks to respond, but it’s normally more like 8+. And on top of that, that number is only good for 30 days, so if you don’t get the case settled and disbursed in that time period, you have to request an update, which will probably take another month or two. Ugh.

Overall, Medicaid is great. It’s good that it pays your bills, and when you pay them back it’s heavily discounted. But it creates a time suck on your case that can be a drag. Just be aware and be as patient, but as persistent, as you can. And get a good attorney. Call me at 919-929-2992.

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Does a Treatment Delay Hurt My Claim?

This is one of the most common mistakes people without competent personal injury claim representation make: They wait too long to get medical attention after an accident.

Why does that matter? Well, in a perfect world it wouldn’t, right? But remember, this is not a perfect world; it is a world driven by insurance company interests, and they have the checkbook, so you have to consider their responses to your requests. When they see what they refer to as a “gap in treatment” or a “treatment delay” they will point at it with one of those giant foam fingers and say, “See! You weren’t really hurt after the accident or you would have gotten treatment sooner!”

Is that true? Not necessarily. But, as you probably know from the current political scene, truth doesn’t really matter. What matters is perception. And a jury – who is the ultimate arbiter of the value of your claim – might be VERY susceptible to the argument of “if you ain’t treating then you ain’t hurt.” Remember, you’re having to cater to the lowest common denominator here, so the more simple and obvious you make things, the better. So how do you make your claim simple and obvious?

Well, after an accident you go get some sort of treatment. I don’t care what. Primary Care Provider, Urgent Care, whatever. Just go somewhere and get your complaints documented. If it’s just some Owies, then fine, you blew a couple hundred bucks that you should be able to get back. But if it’s more than that, and you are still hurting after a few days, GO BACK OR GO SOMEHWERE ELSE! PT! Chiropractors! Whatever. Go and get it documented that you’re hurting and how you’re hurting AS SOON AS POSSIBLE following the accident.

Trying to tough it out won’t help your claim. Hoping you’ll get better on your own won’t help your claim. Trying not to make a “big deal” out of it won’t help your claim. ALL that does is HELP THE INSURANCE COMPANY. Why would you help them?

If you’re hurt in an accident, do yourself a favor and call a personal injury attorney. Call me at 919-929-2992.

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Hospital Bills from Auto Accidents

The perennial question in this business is “What should I do with my hospital bills after an accident?”

There is A LOT of confusion over this topic, and while I’d like to think that my little blog post will set it straight, I know it won’t. Still, I shall try.

When you go to the hospital after an auto accident the hospital billing folks can put you in a mess of a situation. If you have health insurance, what they should do is document that your health insurance is the primary payer and bill them accordingly. What they should not do is take down the at-fault party’s auto insurance info and pretend like they can bill them. They can’t!

“What’s this?” you ask. “I thought that the at-fault party should pay for all of my bills!”

Well, yeah, in theory, they should. But we aren’t there yet. IF that’s coming, it’s coming later in the process, but not now.

In the meantime, the NUMBER ONE THING YOU CAN DO TO SAVE YOU FUTURE GRIEF AFTER AN ACCIDENT IS MAKE SURE ALL OF YOUR HEALTH CARE PROVIDERS ARE BILLING YOUR HEALTH INSURANCE.

“But why?” you ask. The main reason is that we are NOT what’s called a PIP state. PIP stands for Personal Injury Protection. In states that have those sort of policies, YOUR auto policy is the primary payer for any auto-accident-related medical expenses. Even if you have health insurance, they jump in front of that insurance under these circumstances.

North Carolina is a liability state. We all (are supposed to have) liability insurance. That sort of policy covers you for what you might have to pay victims of your negligence. That is NOT a primary payer; it is a potential reimbursement mechanism.

The best way to look at it is this way: In NC YOU own your medical expenses until you MAKE someone else buy them from you. So, since you own them, you should use your health insurance to make them lower (remember, your health insurance will have the right to contractual adjustments that will lower the overall costs. In the end, that helps to make sure that a) your expenses are less than they could be, and b) it might also increase your take-home amount when/if you get an award from the liability carrier.

I know. It’s all needlessly complicated, but that’s what we have. As always, call me when this stuff comes up. 919-929-2992.

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Contact Jeffrey

Jeffrey Allen Howard, Attorney at Law, PLLC
1829 E. Franklin St. - Bldg 600
Chapel Hill, NC 27514

(P) 919-929-2992
(F) 919-636-4779

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