“Thank you!  You helped us when no one else wanted to – we do thank you for that.  You are a great guy.”

Pam R., Durham, NC 

“Jeffrey Howard did an excellent job representing me in traffic court. He will aggressively make sure that you get the legal representation that you need. He won my case. I would use him again and have recommended him to several friends.”

Mark S. Hillsborough, NC

“I had gotten no where prior to retaining you, but that all changed.  You took action immediately and did all the things that none of the other lawyers even attempted to do and I am grateful for you doing that.  I am glad that all of this is behind me and I too hope that I’ll never need you again, but if I do, you’ll be the first and ONLY person I’ll call.  Also, should any of my friends or colleagues need an attorney, I will certainly refer them to you as well.”

Kim R., Raleigh, NC

In a nutshell, when you have a compensable North Carolina Workers’ Compensation Claim you are entitled to three things:

1) Payment for your time out of work,

2) Payment of your medical treatment, and

3) To the extent that there is any, payment for any permanent disability you will suffer as a result of the injury.

Admittedly, this is a bit simplified; there are other benefits available in NC Workers’ Compensation law, but for the most part, you can boil it all down to these three things.

There are lots of intricacies involved in the interpretation of what the workers’ compensation insurance carrier has to pay for medical treatment (you can look forward to future posts on that), and I have another blog post already that deals briefly with some permanent disability injury values in comp claims and the spooky way we value body parts.  Plenty to discuss there, but this post is more about the first thing: payment for your time out of work.  So how does that work (oh, look…a pun!)?

So your doctor writes you out of work, and as a result you aren’t getting a paycheck.  If you are out of work for just one week (7 days) then you aren’t entitled to anything for your time out of work.  But once you’re out for more than seven days, then the clock starts ticking (parenthetically, if you are out for more than 21 days, then you will get paid for that first week you didn’t get paid for at first, so that’s nice).  Under NC Comp Law, you are entitled then to 66 2/3% (.6667) of your average weekly wage (AWW), payable on a weekly basis, until you get back to work (there can be some limitations on that, but that’s for another post).  This benefit is called Temporary Total Disability, or TTD, in our system.  The amount they pay you (the 2/3 of your average weekly wage is called your Compensation Rate (or CR).

I am sure that explanation gives you more questions than answers, such as: Where in the heck do they get that number?  And what is my average weekly wage?

The 2/3 of your paycheck number comes from the legislative supposition that most people pay around 1/3 of their paycheck into taxes, so most people only take home about 2/3 of their pay.  Since your TTD check is not taxable, that seems to be fair on its face.  We won’t explore the fact that most people don’t end up paying 1/3 of their pay to taxes, but at least there is some plausible rationale.

But what is your average weekly wage?  That’s sort of simple, and sort of not, just like the rest of the law; if it were simple, who would need lawyers?.  In the best situations, this is calculated by looking at what you made with that employer over the last 365 days. There are at least four accepted methods of calculating your average weekly wage, listed below in order of preference according to the North Carolina Statutes and the Industrial Commission:

1)      If you worked 52 weeks before the accident with that employer, take that total earnings and divide them by 52; or

2)      If you missed more than 7 days during the 52 week period prior to the injury, then the number of days missed will be deducted from the 365 day period, and gross wages will be divided by the remaining days to determine a daily rate; the daily rate is then multiplied by seven to obtain the AWW; or

3)      If you worked for this employer less than 52 weeks, you can still do the daily method above, unless considering other options it appears unjust, in which case you might try;

4)      Look at an employee at the same employer with similar work hours responsibilities, etc.., and determining their AWW in the most just and similar manner possible.

How could it be simpler than that?  I’m just kidding.  It can sound like gobbledy gook to me, too, but I’m around it, so I get it.  What makes it even more interesting is that you can take into consideration other forms of compensation as well.  Overtime is an obvious one, since you would hopefully get those numbers in your gross wages anyway.  But if you receive other benefits – like subsistence allowances, room and board stipends, extra duty bonuses, etc. – that can be factored in as well.  And while one of these four will normally do the trick, our legislature has opened the door for other options as well if one of these doesn’t seem to be just.  This means that if the numbers just come out crazy for some reason, the Industrial Commission will at least listen to other arguments for AWW and Comp Rate calculations.  Once you have your AWW, then you multiply that by .6667 and you have your Comp Rate.

Interesting stuff, huh?  North Carolina Workers’ Compensation law is a particular and persnickety (I stole that from the cheese commercial, I know) area of law that is best navigated by professionals with experience.  If you or someone you know has a question about a worker’s compensation claim, feel free to call me anytime.

Last week I had just had a great morning workout and was leaving Cup-A-Joe heading toward the office.  I was in a fantastic move, endorphins and caffeine pumping on all cylinders.  Of course that should have been a sign to me that things were about to go downhill.

Bear with me as I set the scene, because this is important from the perspective of legal analysis (yeah, some of that will be in here):  I was coming out of Kingston Rd., right next to Timberlyne Shopping Center.  There is a stop light there, but no cross walk or pedestrian signals there at Kingston as it meets Weaver Dairy Rd.

I was getting ready to turn right (to head east) onto Weaver Dairy, and my light had just turned green.  So I going to go, right?  No cars coming, so why wouldn’t I?

Well it turned out that there was a tiny little college girl on her morning jog heading toward me (she was going west on Weaver Dairy, approaching my intersection).  I saw her, but she was still on the grass behind the curb and not going fast (she was jogging and was like 4 feet tall, so she wasn’t exactly going Olympic speeds) so of course, I feel clear to go.  I proceed in my turn, only to hear a “thonk” behind my car as I begin to head east on Weaver Dairy.  I looked in my rear view mirror and she was still running and had just started going across Kingston, not missing a beat.  I had assumed at first that I had hit her somehow, but then it hit me (so to speak): The little snot had punched my freakin’ car!  Seriously!  Who does that?

People who know me well will recall that I will not shy away from an argument when I feel like I’m right, so I was all ready to pull over and attempt to discern exactly what this lady’s problem was and how we could get her meds adjusted to avoid me having to give her the what for.  But quickly I realized that that wasn’t going to get me anywhere.  I put on my personal injury lawyer hat and wondered if I had done something wrong.  I didn’t feel like I had done anything illegal, but I couldn’t put my brain on a relevant statute simply from memory.  So then I thought, “this is a perfect blog post experiment – I’ll research it and see if I was in the right or if I owe this little lady an apology!”

So here we are.  And here’s what I found:

§ 20-172. Pedestrians subject to traffic-control signals

(a) The Board of Transportation, with reference to State highways, and local authorities, with reference to highways under their jurisdiction, are hereby authorized to erect or install, at intersections or other appropriate places, special pedestrian control signals exhibiting the words or symbols “WALK” or “DON’T WALK” as a part of a system of traffic-control signals or devices.

(b) Whenever special pedestrian-control signals are in place, such signals shall indicate as follows:

(1) WALK. – Pedestrians facing such signal may proceed across the highway in the direction of the signal and shall be given the right-of-way by the drivers of all vehicles.

(2) DON’T WALK. – No pedestrian shall start to cross the highway in the direction of such signal, but any pedestrian who has partially completed his crossing on the “WALK” signal shall proceed to a sidewalk or safety island while the “DON’T WALK” signal is showing.

(c) Where a system of traffic-control signals or devices does not include special pedestrian-control signals, pedestrians shall be subject to the vehicular traffic-control signals or devices as they apply to pedestrian traffic.

(d) At places without traffic-control signals or devices, pedestrians shall be accorded the privileges and shall be subject to the restrictions stated in Part 11 of this Article.

So what does all of that legal gobbledy gook mean?  Here’s my interpretation:  When there are pedestrian-control signals, they have to be followed.  But that doesn’t matter for my situation because there weren’t any.  So check out section c regarding when there aren’t any pedestrian-control signals… “pedestrians shall be subject to the vehicular traffic-control signals…(which also happens to be, almost word for word, the title of this statute)”  What that means is that when this lady is heading west, and the light for cars in her direction is red, which it has to be since my opposite light for the perpendicular lane of travel, she has a duty to stop, just like motorists do.

Now there is a separate section, 20-173, that talks about yielding the right–of-way to pedestrians when there aren’t any crosswalks and the pedestrian is crossing the road.  But that’s only when they are in the road.  This lady was not in the road.

So what it boils down to is this: Pedestrians have to follow traffic-control signals, and when there is a red light for the cars going in the pedestrian’s direction, the pedestrian has to stop.  Now that doesn’t give motorists the right to run them over when they are in the roadway, and motorists should yield when pedestrians are in the road, even when they are so place due to their own negligence/stupidity.  But pedestrians have to obey traffic lights (and stop signs, for that matter), too.

VERDICT: Jeffy wins!  This runner lady should have stopped her little jog when she saw that her light was red, and I had every right to proceed with my green light and with the pedestrian still being on the curb and not in the roadway.  Moreover, she had no right to punch my shiny, pretty car.  Thank goodness she didn’t leave a dent, or we would have an issue.  Still, that’s not going to stop me from carrying a printed out copy of this statute with me now, so if I see this girl again, I’m going to deliver it to her so she’ll know her responsibilities a little better next time she wants to fight a 2000 lb. vehicle.

 

Aren’t I a giver?

In my practice handling automobile accident personal injury claims, workers’ compensation claims, and the like, I have had to deal with the NC Mortality Table very often.  This disturbing bit of legislative clairvoyance is an attempt to codify your life expectancy.  Want to know when you’re going to die?  Read on!  Turns out you might not have anything to worry about at all…