How to Screw Up Your Claim BIGTIME

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.

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Auto Insurance and Intentional Torts

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.

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Is your Worker’s Comp Check Late?

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.

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Do I have to pay my medical bills from this injury settlement?

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.

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Pain Journal v. Doctor’s Notes

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?

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When Auto Insurance Isn’t Enough

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.

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Medical Negligence: I do not think it means what you think it means

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.


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.

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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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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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