It’s only a matter of time before someone catches Covid 19 while working and then raises the question of whether or not they’re entitled to Worker’s Comp benefits.

Right now, I don’t think anyone has a definitive answer on that. There are certainly opinions, some more strongly held than others. But let’s talk about the law and see what we can see…

For a disease to be covered by Worker’s Comp, it has to be an “occupational disease.” There are essentially two kinds: First, there are some specific medical conditions/diseases, which are recognized to be commonly associated with workplace exposures, are specifically identified in North Carolina General Statute § 97-53. Suffice it to say that Covid 19 ain’t one of ’em.

Second, though, is the catchall category. North Carolina General Statute § 97-53(13) is a “catch-all” provision which grants Comp coverage for any disease “which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.”  The most common of these are carpal tunnel and tendinitis.

To qualify for the catchall provision, there are two elements:   The worker must show 1) that the employment placed them at an increased risk as compared to the general public for developing the occupational disease; 2) that the employment in fact substantially contributed to the occupational disease.

Personally, I think you could come up with a scenario where this argument passes muster. Let’s say we are, as a state, on a “shelter in place” order (I hear this is imminent at the time of this writing). That means if you aren’t deemed an “essential worker” then you are to stay home and not work. Which, conversely, means that if you are an essential worker, you are to get your @$$ out there and do your job…which means you are putting yourself at increased risk of exposure due to your employment AND your employment substantially contributed to the disease.

For example, let’s say you work for UPS, and delivery personnel are deemed essential. You’re out there going into ALL of the office buildings, ALL of the stores, ALL of the front porches, touching EVERYONE’S boxes. I think it’s obvious that you’re at an increased risk. And were it not for your employment, you wouldn’t be; you’d be at home eating bon bons and watching Tiger Joe (or whatever drivel is available on Netflix).

Now, what you get if it is deemed an occupational disease is for another post, so I’ll leave you here for now. If you have any questions about any workplace injury/disease, or any injury claim whatsoever for that matter, please call me at 919-929-2992.

That’s right. I said it.

It’s no news that our health care system is a shambles in this country, and health insurance is only part (maybe a huge part, but that’s another post) of the problem. One of the more complex and frustrating situations is the Cost Plus plan and how it (claims to) interact with your personal injury claim.

North Carolina is an anti-subrogation state, meaning that your health plan CANNOT come back to you and ask you to pay them back what they paid out UNLESS they have some specific law that allows it. The most common exceptions to this are Medicaid, the State Employee Health Plan, Medicare, ERISA plans, and Tricare. These are either government-sponsored plans and/or set up under State/Federal Law that specifically allows for a “right of reimbursement” (NOT subrogation, but once again, the difference between those two is another blog post).

The Cost Plus plan is NOT one of the above. But the argument that administrators of Cost Plus plans make is that the statute that gives them life states “The administration of any cost plus plans as herein provided shall not be subject to regulation or supervision by the Commissioner of Insurance”. 

But the key word is “administration.” The word “administration” obviously doesn’t apply to plan benefits, but rather to the operation and management of the plan.  Anyone can see that under the plain meaning of the words in the statute, the Cost Plus plan’s collection efforts should be prohibited by NC anti-subrogation law.

The Plans argue that N.C. Gen. Stat 58-65-1, “Regulation and definitions; application of other laws; profit and foreign corporations prohibited”, states: “[The plan] shall be exempt from all other provisions of the insurance laws of this State, unless otherwise provided” exempts them from the anti-subrogation rule. But clearly, the statement “all other provisions” implies that it is subject to at least some provisions.

The NC Insurance Commissioner is given regulatory power over the contracts of the Cost Plus plans according to N.C.G.S 58-65-40, “Supervision of Commissioner of Insurance; Form of Contract with Subscribers; Schedule of Rates”. The statute states:

There are some more arguments against the Plans’ points, but it’s a little “inside baseball” for a blog post. Suffice it to say that the claim by Cost Plus plans that they have a right of reimbursement is not settled law and should always be questioned.

Like I always say, this stuff can get complicated, so why try to figure it out on your own? Let a pro handle it. Call me at 919-929-2992.

As of right now, Orange and Chatham County Courts are being pretty understanding about continuing cases when defendants believe they are in danger of infecting others.

But why bother? If you have a traffic ticket, do you really want to worry with trying to get a continuance, or going to court and standing in line with 500 people? All the more reason to hire an attorney if you have a speeding ticket in Orange or Chatham County.

Give me a call. 919-929-2992. Let me deal with it.

Let’s start with a definition:

Lien: a right to keep possession of property belonging to another person until a debt owed by that person is discharged.

Notice that it’s a “right.” It’s not a document. It’s not a thing you sign. It’s a right, which has to therefore be enshrined in a statute.

This comes up a lot when health care providers are getting ancy about getting their bills paid after an auto accident. Sometimes the staff will say, “HE SIGNED A LIEN!” To which I have to respond, with the above definition and explanation. A lien is a right, it’s not a document.

Of course, while it is NOT a document, it is still a thing, but how does this thing exist? More importantly, when does it exist? In this context, the statutes that gives this right are North Carolina General Statutes §§ 44-49 and 44-50. But it doesn’t just exist because the provider wants it to; they have to jump through some hoops to “perfect” the lien.

First, the provider has to provide records AND bills FREE OF CHARGE when requested by the patient. Second, they have to assert the lien; that’s as simple as stamping the word “lien” on the paperwork they send free of charge. But they do have to do BOTH of those things to have a lien.

Remember that. There is no lien just because the provider wills it. The provider HAS to do BOTH of those things above for their to be a valid lien on your injury settlement.

Of course, mechanics liens and the like are different, but they are also created by statute and have hoops! They don’t just exist! They can’t bill summoned into being at will.

As with many things personal injury, this can be complicated and frustrating, which is all the more reason to consult an attorney. Call me at 919-929-2992.

In North Carolina auto insurance, you have an option to purchase extra, no-fault coverage called Medical Payments coverage, or “Med Pay” as we generally call it in the biz. It’s like a tiny, limited health insurance policy for use with treatment of injuries associated with an auto accident. It comes in various increments, but normally we see $500, $1000, $2000, $5000, and sometimes $10,000, but you can have much more.

As mentioned, this is no-fault coverage. You can use it whether the accident is your fault or not. Where I tend to have frustrating conversations about this coverage is when a victim comes to me with an injury claim and they have Med Pay but don’t want to use it. Here’s the deal:

If you have Med Pay, you’ve PAID for it. It’s yours. The only trigger to get to it is suffering an injury by auto accident that requires treatment. It has nothing to do with fault, as it’s no-fault coverage. So using it WILL NOT trigger an automatic rate increase on your auto policy. If you are paying for it and have the opportunity to use it and refuse to, then I can only assume you think that your auto insurance company is a charity in need of donations because that’s EXACTLY what you’re doing. You’re giving them money for nothing in return. If you’re not going to use it, just cancel the coverage because there’s no point giving away that money for nothing. Or you could take my advice and use the product that you’ve already purchased.

Think about it this way: Let’s say you’ve had the same policy for 5 years, and let’s assume your $500 Med Pay costs you $50 every 6 months. At that point, you’ve paid $500 for your Med Pay. When you are in an accident, you can get that $500 back now and there’s no reason you shouldn’t. You’ve paid it in, and now the coverage is triggered. You’re entitled to it. Choosing not to use that coverage only benefits your insurance company. And trust me, they don’t need your help.

Call me if you need any guidance on this or any other personal injury issue. 919-929-2992.

When you’re in a car accident, you suffer a lot of losses. You get hurt, you lose time from work, you incur medical expenses, you have to get your car fixed.

And most of the time your car becomes worth less than it was prior to the accident, regardless of how well it’s repaired. Can you expect to get paid back for that when the accident isn’t your fault? Maybe.

First, there’s nothing written in stone here. Every claim is different, and tons of stuff can impact evaluations here. But for me, the rule of thumb is 5 years/50,000 miles. If you car exceeds either of those, you’re going to have a really hard time getting compensated for the diminished value of that car. The argument is essentially it was already old and losing value. And that’s a hard argument to beat.

But if you want to try it, you’ll be best served if you go into battle armed with an appraisal from a qualified DV appraiser. Yes, they cost money, but you tend to get a more quality expert opinion to make your argument with. It’s a heck of a lot better than, “But I just know it!”

Of course, like a lot of things in this world, it’s a bit of a gamble. Those appraisals cost money. You’ll spend between $100 and $400. So you probably want to make sure that you’ll at least get that back if you make this argument, which is all the more reason to make sure your car is on the good side of my 5/50k rule.

If you have a claim like this, seek the advice of an attorney. Most injury attorneys will handle your DV claim along with your injury claim, so get some quality advice and you’re more likely to have a better outcome. Call me if you like: 919-929-2992

There is some craziness in the universe that makes things happen in bunches. You might go your whole life without an auto accident and then BAM/BAM you have TWO within a few months of each other.

If you have injury claims related to both impacts, you are in for a world of hurt. Each of the accidents can be used by the other insurance company as a red herring to detract from your claim value. The first folks will say the second one cut off their liability, and the second one will say your injuries were related to the first one! It just sucks.

Depending on the facts, we might be able to help minimize the negative impact of having two claims so close together. But we can’t if you don’t let us!

If you are in this situation, get the advice of an experienced attorney. Call me at 919-929-2992.

NC is an anti-subrogation state, meaning that your health plan CANNOT come back to you after you settle a personal injury claim and ask for repayment of the medical expenses they covered.

However, there are exceptions to every rule. There is a Federal statute referred to as ERISA, and larger employers can set up health plans under this law, which trumps our state law. These ERISA plans are often self-funded and have a right of reimbursement, which means they CAN come back to you after you settle a personal injury claim and ask for repayment of the medical expenses they covered.

Why? Well, other than “that’s the law,” the best answer is that these self-funded plans aren’t insurance; they are a pool of money to which these many, many employees contribute and from which benefits are paid. So instead of it being insurance company money (who cares?!) it’s people’s money (we should all care!), and if there’s a way to get it paid back, that sort of makes sense.

Whether it makes sense or not is somewhat irrelevant in that it will undoubtedly affect your take-home amount from your personal injury claim. Not the end of the world, but it’s important that we know what we’re working with if you have one of these plans. If you don’t satisfy their claim, they can take away your coverage and leave you owing money. No good.

This is all the more reason to have a qualified, experienced personal injury attorney to help you investigate and ask the right questions so that you don’t end up any worse after your injury claim. Call me at 919-929-2992.

You’ve had a bad back for years, you’ve been to doctors here and there, done PT, chiropractic, all the things. You’re FINALLY starting to feel a bit better, and then WHAM! You’re in an auto accident.

These claims are, as the kids say, the worst.

You see, it’s SOOOO much easier to argue about the causation and value of a NEW injury as opposed to arguing the causation/value of the aggravation of a pre-existing injury.

First, it’s hard to prove that the accident caused anything, unless you are unlucky enough to have something that shows up on a diagnostic (which is the overwhelming minority of cases). Your back (or whatever) was already hurt; how can you prove that it got worse? Because you say so!?! Good luck with that.

Second, if you’re already hurting, then what should you be awarded for pain and suffering? You were already suffering, you were already in pain. How do you quantify the amount of increase in that suffering and pain? These are nebulous, diaphanous, hard to grasp sort of arguments and they can make your claim really hard to manage.

Look, I believe if you have an injury claim you could probably use an attorney’s help. If you have an aggravation claim, you almost certainly need an attorney’s help. Call me at 919-929-2992.

For many, many reasons, sometimes the settlement amount from your auto accident doesn’t really match up very well with your treatment costs. We can talk about why in another post. But the worry is that after you pay your bills you might not have anything left over for your pain, suffering, and inconvenience. Is there any remedy?

Yes, in fact, there is. This is one instance where the NC Republicans haven’t totally changed the law to the detriment of ordinary citizens. Yay!

NC General Statutes 44-50 and 44-51 offer you some assistance in this regard. I’ve cut/pasted it below for your edification, but in a nutshell, what it says is AFTER attorney fees, if the total medical bills protected by liens is greater than HALF of what’s left over, then you can take that total (after fees) and split it in half. Half goes to the victim. The other half is split pro rata between the lien-holders. What does that mean?

“Pro-rata” is a fancy way to say “percentage share.” Let’s look at an example:

10,000 Settlement. $3000 fee. $7000 left over. Let’s say the hospital is owed $3000, and the chiropractor is owed $2500 (both with perfected liens). If you take that $7000 and divide it in half, then you have $3500/$3500. That’s less than the total of the liens, which is $5500. So take $3500 and divide it by $5500. You get .6363636 (cool number, huh?). That means you then multiply each bill by that percentage number, so in effect each gets about 63.6% of their bill paid. So the hospital gets $1909.09 and the chiro gets $1590.91, which totals to $3500. Providers get their share of $3500, and you get $3500.

That helps to make sure you, the victim, get something out of the settlement. Sadly, it does NOT absolve you of the remaining balance of the bills. Technically, you still owe the balance. This law just allows you to not pay those balances from the settlement, even if there’s a lien. However, in a lot of instances, you or your attorney can get the provider to agree to accept that pro rata payment as full and final, in which case you’re clear!

This might beg the questions, “What is a lien?” followed by “What if some providers have perfected liens and some don’t?” Those are for other posts, but I’ll end with the fact that you cannot pay non-lien holders to the detriment of lien holders, so you ignore non-lien holders in this kind of distribution. That means you still have those bills hanging over you, which is, of course, different problem.

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.

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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.

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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.)