Assuming everything goes the way we want, at the end of your injury case you should have some money coming to you. But where does that many come from, where does it go, and who’s responsible for what?

First, in most injury claims, the money you get either by settlement or court award is paid out by an insurance carrier. Generally, it’s paid in a check, payable to BOTH you as the victim and me as your attorney. This two party check MUST, by law, then go into your attorney’s Trust Account.

As an attorney, I’m required to put any client funds I receive into a separate special account called my Trust Account. Lawyer Trust Accounts are HIGHLY regulated and monitored and we’re required to keep strict records about what goes in and what goes out. While these requirements are somewhat onerous for attorneys, they are designed to give clients peace of mind that their money is safe in our hands. For the most part, these rules and regulations work; most attorneys are very reliable about keeping a strict accounting of client funds and making sure they go where they’re supposed to. I know I am!

As stated, since the check has my name on it (and for other reasons explained below) I will place your settlement funds in my Trust Account. I have to give those funds sufficient time to clear before I disburse them. “What?!,” you exclaim. “It’s the 21st century! How can we still have to wait to see if a check is good or not!?” I hear you. That’s a valid question that’s best directed to your bank. Suffice it to say that the law requires me to hold the funds for a week minimum to make sure they clear, so I can’t play games with that timeframe. You should note that I have, on at least three occasions, had insurance companies bounce checks on me, so this waiting period is for everyone’s benefit.

Now we know where the funds come from, where they take a brief vacation at and why. So let’s figure out where they go…

Generally, on an injury claim my fee comes out of those funds. It’s normally 1/3 of the total amount, but that can vary under some special circumstances. After my fee, we sometimes have to pay certain medical expenses to health care providers. That might be voluntary – meaning you, the client, asked me to pay that bill – or it might be mandatory – meaning that there’s a law telling me I HAVE to pay a certain bill. You’ll know that before it happens, so don’t stress too much about those details for right now. On rare occasions we might have to repay my office for money it advanced on your case, but that’s not always the case. Finally, after all of that, the remainder (normally the vast bulk) of the funds goes to you.

All of this will be documented in a ledger that will show you what went in, what went out, when, and to whom. We’re required to keep those ledgers for all funds that come into and go out of the Trust Account so you should always get a copy of that document when you have funds coming through my practice.

I hope that helps to clarify the mystery of settlement funds and Trust Accounts. As always, call me (or your own attorney) for questions. 919-929-2992.

We all have different standards as to how our vehicles appear. Some of us get our cars detailed every week, while some haven’t seen a sponge in their entire tenure with their current owner. Whatever. That’s all fine.

But after an auto accident, getting your property damage addressed is really important for your bodily injury claim. Why is that? So glad you asked!

The insurance companies really don’t like giving away money, so they come up with all kinds of semi-plausible nonsense to give themselves an “out” on paying the injury claim. One of those is the old “we don’t think you could have been hurt in this accident given the property damage” BS.

Under this little example of non-science, the theory is that, in their infinite wisdom, the pencil-pusher looking at your case has decided that there wasn’t sufficient damage done to your car to make them believe this accident hurt you. Obviously, that’s bull$#!^. But the problem with people – people that might be on your jury – is that they’ll believe bull$#!^ when they want to. Just look at Trump voters for proof.

Now, when this really hurts is when you happen to be one of those folks that’s not really worried about your bumper being dented and so maybe you don’t get it fixed. That makes it look like a) the car wasn’t damaged badly enough to warrant repairs and/or b) maybe it wasn’t even damaged in this accident anyway! Either way, this helps to support the insurance company’s nonsensical theory of non-liability.

The moral of the story is that if you’re in an auto accident and are pursuing an injury claim, get your property damage addressed. Get the car fixed, even if it’s a hassle, because it can come back to bite you later if you don’t.

In general, I would recommend always reporting a work-related injury immediately. But there are consequences to reporting as well as not reporting, so let’s talk about those so you are making an informed decision.

Under NC Workers’ Compensation Law, you are technically supposed to report an on the job injury in writing to your employer within 30 days of the incident giving rise to the injury. The best way to do that is to file a Form 18. That form gives you instructions on how to do that, but the main thing is you’re also simultaneously reporting it to the NC Industrial Commission, the quasi-judicial body that oversees the administration of Worker’s Comp claims in NC. This is the safest way to put everyone on notice that you might have a Worker’s Comp claim.

“Might have?” you say. “But I was hurt on the job! Doesn’t that mean I DEFINITELY have a worker’s comp claim?” No, my friend, I’m afraid it doesn’t. Under NC Law, you have to have suffered “an injury by accident, arising out of AND sustained in the course of your employment with the employer.” That’s a lot of little words that have very big and precise definitions, but for purposes of this article, just understand that simply having a workplace injury DOES NOT guarantee you coverage under Worker’s Comp. But reporting your injury immediately at least keeps you from running afoul of that 30 day deadline, so if you even think you have one, it’s probably a good idea to report it.

But we live in the real world, right? Sadly, some employers are less understanding than others and a report of a workplace injury is a 1 way ticket to the unemployment office. Firing you for reporting an injury is probably a violation of the NC Retaliatory Discrimination Act, but that’s another legal battle for you, and as the administration leaving the White House as of yesterday has shown us, simply breaking laws doesn’t mean that the bad guys will suffer any penalties; someone has to go after them, and even then it’s not always successful.

For me, whether or not to report an injury on the job is a case by case sort of scenario wherein you must consider all of the facts? Generally speaking, I’d say the less significant the injury, the less your likely need for Worker’s Comp benefits, so the less urgent it would be for your to report it. Conversely, the more significant the injury, the more urgent the need for reporting. Also, consider your access to medical care v. the likelihood your boss will fire you v. your ability to walk away from this job. If you can get adequate care for your injury without Worker’s Comp benefits and you’re more worried about losing your job than you are about getting Comp benefits, then you make the decision that’s right for you.

I think different attorneys might handle this question in slightly different ways. I tend to err on the side of giving as much information as I can and then letting the potential client decide what to do. I know about the law, but they know about their life way better than I ever will, so ultimately they’re in a better position to make that call. But this is all the more reason that you should talk to someone that can inform you as to your rights. So if you’re hurt on the job, call a lawyer and get some help in figuring out what you should do. Call me at 919-929-2992.

A huge part of my job is to keep you from hurting your claim. It’s not that you want to hurt it, it’s just that you don’t know what will hurt it.

If I do say so myself, I think I tend to be quite good at that job. It shouldn’t be that hard, right? Tell the client what not to do and then they don’t do it, right? But sometimes, for whatever reason, despite my best efforts, I get clients that don’t listen and they engage in the very dumbassery that I instruct them to avoid. Here are a few of the greatest hits!

TALKING TOO DAMN MUCH: This is a pretty easy one to avoid, but is probably the biggest problem we face. Don’t talk about your injury claim. Period. Not to your friends. Not to your family. Definitely not to the insurance company. And for the love of all things holy, particularly not on social media! If you’re talking, you’re hurting your claim, almost certainly. So don’t, please.

HEALTH INSURANCE: If you have it. Use it. Period. It’s there for this reason! It will probably save you money in the long term! There are only very specific situations where you wouldn’t want to use it and if you FREAKING ASK ME I WILL TELL YOU! But you should default to using it unless told otherwise.

TREATING TOO DAMN MUCH: Look, I’m not a healthcare provider, so I can’t say what care you need or don’t need. But I CAN tell you – from a claims evaluation perspective – when you’re treating too much. One example of this is going to a chiropractor/physical therapist AFTER you’ve told me you’re already done with treatment, thinking that this new treatment is going to be considered. Another example is going to similar/same providers in the same time period. Trust me, going to separate chiropractors AT THE SAME TIME is NOT going to help your claim.

TAKING ADVICE ON YOUR CLAIM FROM ANYONE BUT YOUR ATTORNEY: If your Uncle Bilbo told you you should do X, Y, or Z in regards to your claim, you have that dude call me right now to discuss his illegal practice of law without a license. That dude doesn’t know what he’s talking about. Even a blind squirrel gets a nut every now and then, so he might accidentally tell you something good, but this is my career, it ain’t his. So don’t listen to him, damn it.

I got more, but I don’t want to write a book for free. The bottom line is if you have an attorney for your claim, listen to his/her advice. You’re paying for it, so it only makes sense. Call me at 919-929-2992.

This kind of case comes up about once every 2 or 3 years for me: Person is driving and hits a pedestrian or other car. The allegation is that maybe the driver meant to hit them. So, does their auto liability policy cover the plaintiff’s damages?

My professional answer is, “Maybe.” But there’s a lot of wiggle-room here.

The basic auto policy in NC will exclude coverage for intentional acts. But let’s talk about what that means and why it’s important…

Most injury claims are brought on the premise that the defendant was negligent, meaning they didn’t mean to cause any harm, but they just made a poor decision and there were consequences. This is the old I was adjusting my radio or I was looking at a text and ran into someone kind of thing. You meant to look at your phone, but you didn’t mean to run into someone.

That’s to be contrasted with intentional acts. That’s when someone chose to act in a certain way with the goal of causing harm. That’s not the real legal definition, but I’m not tryna explain “malice aforethought” to y’all. Just contrast making a mistake (negligence) with doing something on purpose (intent).

There are a few issues you might already see. First, how do you prove someone’s intent? How can we ever know, without the person confessing, that they meant to run you over on purpose? Second, what was intentional? Did you mean to kinda bump them with the car? Or was your goal to murder them? Or somewhere in between? There’s a lot to unpack in there!

So, let’s say the facts are the defendant was backing out of their parking space and your jacket was stuck in their car door. Then they run over your foot and drag you for a few feet before you become unstuck. Was that intentional? Does the answer change if they drove off really quickly in a huff because you two were arguing? Maybe. Probably. This is why it’s so fact-dependent.

These cases can be tricky. Call a lawyer and get some help. 919-929-2992.

While you’re out of work due to an accepted worker’s comp claim in NC, you should be getting weekly checks representing the income you’re losing. These are called Temporary Total Disability, or TTD, checks.

Ideally, they come regularly, maybe within a day or two each week. But it’s not an ideal world, so this isn’t always the case. So what’s wrong?

The first thing you should note is that under NC law, checks aren’t deemed late until their 10 days late. So if we’re talking 2 or 3 days, try to relax for now. It’s good to let your attorney know, but it’s not something we can act on yet. It has to be 10 days before we can get any real action done, though we can have them check to make sure it’s reissued. The main thing to remember though is that if it ain’t 10 days late, it ain’t late, by law.

The next thing to remember is that most of the time, it’s not the carrier that’s to blame. The VAST majority of the time it’s just the mail. While the US Mail is very amazing, statistically speaking, it’s not perfect, so sometimes things are delayed or even lost. This is almost ALWAYS the reason for a check that you feel is late.

When it’s not that, and it almost always is, then it might be that your TTD check wasn’t reupped by the adjuster. This is normally an easy fix, so just make sure to let your attorney know that something is amiss.

Most of the time, it is NOT a conspiracy against you to deny you your funds. It’s almost always the mail, and sometimes it’s just a forgetful human. It is almost never an adjuster willfully trying to cut off your benefits. Remember, in an accepted claim, the unilateral cutting off of TTD is illegal, so there would be consequences to that sort of thing. Does it happen? Sure. But is it often? Nah.

Worker’s comp is super weird. So having help is wise. Call me at 919-929-2992.

Some skeptics might not believe this, but the main reason people contact me for help with their personal injury claim is because they want to get their medical bills paid. It’s not about “secondary gain” or “abusing the system,” but about making sure the victim isn’t out of pocket for something they didn’t cause.

Medical bills are a big deal. Treatment costs can be very high and there is an entire industry built around collecting on those bills, so you don’t want to ignore them.

My primary job is to make sure those bills get paid. If I represent you in your injury claim you can be that I’ll do my best to make sure that happens. Of course, my priority is you, not the medical providers, and there are some instances where those interests can be in conflict.

Some claims are weaker than others, and in those instances sometimes it doesn’t feel to the victim that there’s enough to go around. So I get this big question: Do I have to pay my medical bills from this settlement?

As with many legal questions, the most succinct answer is, “It depends.” But let me explain…

Regardless of the injury claim, you almost certainly owe the bills, right? You went to the provider, they provided a service, and they billed you. So of course you owe them. But do we HAVE to pay them FROM YOUR SETTLEMENT PROCEEDS?

The answer to that bit depends on the provider. When I request records/bills it is in the providers’ best interest to send me those records a) free of charge and b) with a note that says, in some form or another, that they are asserting a lien. By doing BOTH of those two things, they “perfect” their lien. That means their bill in some legal-mystical way attaches to the injury settlement and I cannot legally then ignore the bill; I, as your attorney, following the law, would HAVE to pay them SOMETHING.

If there’s enough to go around (more on that in a second) then I have to pay the whole bill for the lien holder. In instances where, after the attorney’s fee, the total amount of liens is greater than 1/2 of what’s left over, then I can do what’s called a pro-rata disbursement, which means I pay each lien holder a percentage of their bill. They don’t have to accept that as full and final satisfaction of the bill, but that does take care of our legal obligation to pay them something and also assures that you have something from the settlement. In the even the lien holder doesn’t accept that as full and final, then you still owe the balance, unfortunately (though you can often negotiate that down, depending on the situation).

If the provider does not perfect their lien, then the answer is simpler: I don’t have to pay them from the settlement proceeds. You can choose to tell me to pay them, but I don’t have to pay them from the settlement disbursement unless you tell me to do so (and that payment won’t prejudice a lien-holder). If you don’t pay them, you still owe, of course! But they don’t have a legal right to get paid from the settlement.

Look, this stuff gets complicated. That’s all the more reason you should hire me for your injury claim. So call me! 919-929-2992.

When a client hires me for an injury claim, one of the first things I tell them to do (and remind them to do throughout their recovery) is to keep a PAIN JOURNAL. That can look different for each client, but essentially what I’d like to see is what hurt, how badly, and how it affected your day EACH AND EVERY DAY OF YOUR RECOVERY.

Why is that important?

Well, your pain journal is the framework around which I build your pain and suffering argument. Obviously, you’re going to want your medical expenses covered. The bills help to inform that discussion. But what informs your pain and suffering discussion? I can say, “He hurt for 3 months.” OR I can show them 3 months of DAILY journal entries with details about how that injury was affecting them in their daily life. If you’re on a jury, are you going to be more likely to award the dude who says, “I hurt for three months,” or the dude who can read to you from his pain journal about how each of those 90 days sucked, how badly, and why? The latter, of course!

I get it. Many clients are busy with their lives and whatnot and it’s hard to commit to keeping up with the journal. That’s fine. But understand that it can really impact your case. And while I can encourage you to do it and explain/remind you why it’s important, I can’t do it for you. I just can’t. It’s up to you.

And clients often ask if information from their medical records will suffice. “The doctor asks me every day I go in what my pain level is and I tell them.” OK. Super. But is that a pain journal? Nope. Does it talk about how your neck pain really made it hard to sit through Mr. Derpenschleper’s quarterly sales report? Does it talk about how your back pain made it impossible for you to go to your niece’s wedding? Does it explain how you were hoping to go to the UFC event but couldn’t because your knee wouldn’t allow you to walk that far? No, it doesn’t. Your doctor’s notes are for him/her. Your pain journal is for you.

Do the pain journal. If you can’t, don’t. But if you do, it’s generally worth the time/effort involved as it illustrates your suffering from a personal point of view AND shows your commitment to pursuing this claim. If you can’t be bothered to keep a pain journal, can the adjuster be bothered to pay you?

The scariest thing I learned when I started practicing personal injury law was that the VAST majority of drivers in North Carolina carry the minimum liability limits required by law, which is $30,000.

If you don’t understand why that’s scary, let me explain: Let’s say some negligent driver with minimum limits runs you over due to no fault of your own, solely their negligence. You’re taken to the ER by EMS, have emergency surgery, medical expenses over $100,000 and some degree of permanent disability. The MOST you’ll ever likely see from the at-fault driver is $30,000.

That’s it. $30,000.

Why is that? Well, there are several reasons…

First, the NC legislature has seen fit to establish this as the minimum amount. This has been the case for decades and you can thank your insurance whore Republican legislators for keeping that there to your detriment.

Second, a liability policy is only as good as it’s limit. Theoretically, under the facts listed above, you could seek what’s called an “excess judgment” against the driver, meaning you could get the $30k, but try to get a judgment over that and collect that amount from the driver’s personal assets. But it’s extremely unlikely that the type of person who would have sufficient assets to make such an execution worthwhile is precisely not the type of person who would only have $30,000 in coverage. Which means you’re stuck with the $30k and maybe the dude’s television. Huzzah.

Third – and this is the bit that you CAN affect – most people don’t carry sufficient Underinsured Motorist (UIM) coverage. That’s right, it’s backwards, I know, but it’s extremely wise for YOU to insure yourself against the potential negligence of poor people. Let’s say you happened to have wisely purchased Underinsured Motorist coverage in the amount of $100,000. Under the facts above, you should be able to get the $30,000 from the bad guys, and then go to your carrier for up to $70,000 (for the total of your $100k limits).

What’s the moral of the story? Well, there are three.

1. Vote Democrat. Republicans have been in the pockets of the insurance companies for decades, and will continue to be so indefinitely. If you have any self-interest whatsoever and aren’t a significant shareholder in an insurance company, you have no reason whatsoever to vote for a Republican.
2. Buy as much UIM coverage as you can. It’s dirt cheap. We’re talking several dollars a year, nothing drastic. And it could mean the difference between solvency and bankruptcy in a bad situation. Call your agent now.
3. If you’re in an accident, do yourself a favor and call me right away. Don’t mess around. 919-929-2992.

Medical malpractice or medical negligence are overused terms that can cause a great deal of confusion and result in unnecessary grief and angst in an already difficult situation. Let’s talk about what it means to be “negligent.”

In North Carolina, negligence is defined as failing to act as a reasonably prudent person would in the same or similar circumstances. Medical negligence, though, is a different animal here. To present a successful medical negligence claim, you have to show that the provider failed to treat based on the standard of care in this geographical area. What in the hell does all of that mean?

It means that doctors aren’t held to a standard of what’s reasonable. They’re held to a standard of what other doctors in the same geographical area think is reasonable. This isn’t necessarily a bad standard, but it does make for some complicated scenarios. Imagine if a condition is treated one way in the south east and a completely different way in the north west. A patient in the south east is treated the way it’s done in the south east, but suffers ill effects. There may be medical evidence that the patient would not have had those effects if they’d been treated the north eastern way. BUT, as long as the provider treated them in the south east and in the south eastern way, you’ll have a hard time making a successful claim against them.

Right!?!

And that doesn’t even begin to explain the biggest problem with these potential claims. People often assume that if there is a negative effect after a medical procedure then there is negligence. Au contraire mon frere! JUST because something bad happens doesn’t mean there was “negligence.”

First, you have to get past the standard of care issue (discussed above). Was the treatment what other providers would have done in that area? If so, then there’s no negligence.

Second, was the negative impact a known risk of the procedure? If so, there’s no negligence. Yep, there are lists of problems associated with every type of treatment and when you agree to that treatment, you’re agreeing that those might happen and they aren’t the provider’s fault.

We have a jacked up system. I know. But it’s what we have to work with until we get our heads out of our prodigious American a$$@s and fix our health care system. Until then, you’re stuck with it.