Seersucker

NC Worker’s Compensation Law 101

I get in trouble with the Bar Nazis if I say I’m a professor when I’m not, so I can’t really write this little piece on basic worker’s comp law the way I wanted to, with the perspective of a crotchety old law professor.  My readers would enjoy it and get that I’m not actually that person, but the Bar has a problem with reality v. perceptions.   Alas. 

NC Worker’s Comp law is wacky.  It’s not like general tort law where fault matters and pain and suffering is paid.  I like to joke that the “comp” stands for “compromise” because that’s what it is, a compromise between looking out for injured workers and not exposing employers to excessive liability.

There are books written on this stuff, so it’s not necessarily appropriate for a short blog post, but I think I can give it to you in a nutshell in syllabus form.  After reading this, if you think just anyone is qualified to handle a worker’s comp claim, you didn’t read it very well.  This stuff is wacky, and unless you understand every bit of it now, you shouldn’t handle a worker’s comp claim (that’s why you call me).  Hope you enjoy, and remember to call me if you or anyone you know has a worker’s comp claim (or think they do).  Check it out:

(When I write “‘er” I mean employer, “”ee” means employee)

BASIC WORKERS’ COMP LAW

I.                    Jurisdiction

·        Employer must have three or more employees to be covered by the act

·        If the employer purchases insurance, they are covered by the act regardless of number of employees

·        employer/employee relationship must exist

·        accident must take place in the state

·        …..OR out of the state …AND K of employment was in state

AND principal place of business is NC

AND principal place of employment is NC

·        must be filed within two years of accident or last date of compensation

ELEMENTS (you have to have these three or it’s not compensable)

1. injury by accident
2. arising out of employment
3. sustained in the course of employment

II.                 Accident

·        = unforeseen/unusual event not expected or designed by employee

·        negligence of ‘er/’ee irrelevant

·        normal wackiness NOT covered (sidestepping case example - call me)

·        back injury exception = “specific traumatic incident”

·        assault exception - if there is an assault at work that arises out of the job, then it can be compensable

III.               Arising out of

·        At the time of the accident, was the ‘ee doing what he was hired to do?

·        As long as authorized, intended to benefit business = OK

·        Personal benefit = pure motivation = NOT covered

·        Commute = NOT covered

IV.               Sustained in course of

·        …pretty much same as above…

·        during period of employment at a place where the job was calculated to take ‘ee and activity was in the scope of employment

V.                 Defenses

A.     notice – w/in 30 days required, but rarely a real bar

B.     two years – file or this one will get ya (ie your claim is gone)

C.     intoxication – hard to establish, but complete bar if done (you have to show that the intoxication was a proximate cause of the accident)

VI.              Why it was created… a happy medium b/n protecting ‘ees and shielding ‘ers from unlimited liability for everything that happens to the work force.

VII.            What it provides…

A.     Medical Coverage

B.     Temporary Total Disability

C.     Temporary Partial Disability

D.     Permanent Partial Disability (rating payment – see 97-31)

E.      Permanent Total Disability

F.      Back to work…

G.     Vocational Rehabilitation

VIII.          Settlements

A.     Form 21 – rating calculation, lump sum, two years to come back with “change in condition”

B.     Form 22 - … after coming back with change in condition, re-settling, starts two years over again

C.     Clincher – Form 21 amount PLUS a premium to allow ‘er to buy out remaining two years of liability (usually accompanied by a resignation)

Our fight against Contributory Negligence

This is one of those things that you have no reason to ever know about until it’s on your face sucking the life out of you.  Being in the field of personal injury law, I’m acutely aware of it and the debilitating effect it has on injured parties.  Since most of you won’t have any insight into this undead hangover from English Commonlaw (the same people who brought us the stocks and witch drowning) I thought it worthwhile to give you a little insight. 

Since there’s a great deal of information about this available from the NC Advocates for Justice, I have taken the liberty of using their verbiage when appropriate…

Our state is one of only four that clings to contributory negligence, a harsh and outdated way of denying help to people hurt in accidents. Under “contrib,” even if you are only 1% percent responsible for an accident, you cannot recover damages from someone 99% responsible.

Comparative fault, used in 46 states, allows people to recover damages from those most responsible for causing an accident.  It’s a far more fair system than what have currently.

The bipartisan House Bill 813 aims to introduce comparative fault as the new and improved law of the land.  But lobbyists are trying to stop this change by distorting the facts. Unlike what lobbyists say, neighboring states with comparative fault have seen premium rates slow down.  

We encourage you to visit http://www.fairjusticenc.com/  to learn more and to stand up to the lobbyists.  

Here are some good examples of how the doctrine can work:

In 1995, Cecil Stanley was a former collegiate athlete turned special education teacher who worked two jobs just to spoil his beloved wife with a cruise for their 25th anniversary.  While painting a local gymnasium, Cecil tried to avoid harming his employee while moving a ladder and fell into an unmarked, outdated high voltage electrical wire that was uninsulated and extremely dangerous. Cecil died that morning from the injuries sustained by the shock. At trial, the jury found the power company who installed and managed the wire for decades to be negligent by maintaining the wire so close to the gym. They also found that Cecil was partly to blame for his death and, under the harsh, blame the victim contributory negligence policy, his family was awarded nothing. 

Here’s a hypothetical example: A truck runs a red light and hits your car, totaling the car and fracturing your skull. You ask the truck driver’s insurance company to pay for your car, medical bills and lost wages. The insurance company decides that the truck driver was 90 percent at fault for running the red light and that you were 10 percent at fault for slightly speeding.  In North Carolina, with “contrib,” the insurance company pays you nothing. With comparative fault, you would receive compensation, reduced by 10 percent for your small share of the fault.

I recently lost a case myself in Orange County based on Contributory Negligence.  I represented a tiny little lady who had lived all of her 65 years in Hillsborough.  She bought a bedroom set from an Alamance Co. furniture company and they sent workers to set it up.  During the course of setting it up, they asked her how she wanted the bed situated.  When she moved in the room to show them, the monstrous foot board of the bed that they had leaned against the wall without any securing mechanism fell on her, causing her to break BOTH of her arms.  The trial judge granted the defendant’s motion for summary judgment, finding that my client’s entering the room while they were working was enough to demonstrate her own negligence as a matter of law.  Furniture company with slack employees - no loss; nice old lady who tried to answer their question - two broken arms, medical bills out the wazoo, surgery, steel rods, and lost time with her grandchildren.  Does that seem fair?

With comparative fault, compensation suits settle quickly, allowing people hurt in accidents to get the help they need.  Tell your representatives you’re ready for a fair shake.

An explanation of the mysterious Prayer for Judgment Continued

Time and again I’m confronted with potential traffic ticket clients who ask me about the Prayer for Judgment Continued, or as it’s known by its acronym, the PJC.  Many folks I’ve spoken to have felt this was the magic bullet for any traffic ticket in North Carolina.  Some have been cautious enough to attempt to comprehend its various attributes, but I’ve never spoken with a non-attorney who actually understood what it was, what it did, and when it’s useful.  I’ve also spoken to several attorneys who were just as uninformed. The reason why isn’t that people are generally silly, it’s that it’s a rather complicated concept with several rules that require detailed explanation to understand.  So I thought I’d give it a try to help folks out.

What does it mean?  Let’s break it down.  “Prayer” is simply a request to the court (as if the court is comprised of deities who would not deign to respond to a lowly “request”).  “Judgment” is the official ruling of the court, as in Guilty, Responsible, Not Guilty, etc.  “Continued” means it’s put off for a time, in this case, indefinitely.  You put these together and you get the idea that the PJC is a request that the ruling of the court be put off indefinitely.  There ya go!  That takes some of the mystery out of it, right?  An interesting little aside in this regard is that I have often heard clients suggest, and attorney says in court, that they would like a “Prayer for Judgment.”  If you look behind those words, that means they’re asking the court to render a judgment, which is not exactly the same as postponing a judgment, is it?  The court normally knows what they mean, but still, some judges can be sticklers, so be careful.

What does it do? Just like the translation implies, the PJC postpones the entry of the courts’ ruling indefinitely (in theory).  The effect of this is that the court in essence never officially comes down with a ruling so there’s never an entry of guilty or responsible for the defendant.  This is why it’s a good thing.  If the court doesn’t enter the finding of guilt, then there can’t be any consequences, can there?  In other words, PJCs do not count as convictions.  There are several newly carved exceptions to the use of the PJC, such as in cases where the charge is speeding over 25 mph over the limit, so sometimes, they are simply not allowed even if the judge is inclined and it would help you, so once again, be careful.

When do you use it?  Unlike the prevailing opinion amongst jailhouse lawyers and your brother-in-law who gets tickets all the time, the answer to this question is not “every time you get a ticket.”  As noted above, the PJC is, in theory, an indefinite postponement of your guilty or responsible plea, which makes it as if it didn’t happen.  But the “in theory” part is an important part of that explanation.  The PJC can be defeated by overuse.  Pay close attention to the following note:

You get ONE PJC PER HOUSEHOULD every three years for insurance purposes.
You get TWO PJCs PER PERSON every 5 years for DMV purposes.

What?  I know, that’s weird and confusing.  Allow me to explain…

For every conviction of a moving violation you may be penalized through the assignment of points on your record.  Each violation will have its own amount of points set by statute, and DMV points differ from insurance points in amount for most violations.  For example, an Exceeding Safe Speed charge carries 2 DMV points and 1 insurance points.  Moreover, these points have different affects.  DMV points do nothing until you get 12 of them, at which point you lose your license.  You can have 11 with no DMV consequences.  Insurance points can increase your insurance premiums for every point you have, so the effect is cumulative.  Not good.

If you use a PJC, you can avoid points from the conviction because it does not count as a conviction.  Great! 

But remember the limits above.  For insurance purposes, you only get one per household every three years.  So if you live with other drivers in your home, only one of you can use a PJC within a three year time period.  If another of you uses one, neither of you will enjoy the benefit of the PJC for insurance purposes and both of you will feel the effects of the assigned points.

For DMV purposes, you can use two PJCs in a 5 year period.  For example, let’s say Husband and Wife both get tickets, one after another.  Husband uses a PJC.  Hooray, no worries!  Then Wife uses a PJC.  Boo!  Now BOTH get the insurance point effects because you only get ONE per household.  However, each can use TWO PJCs in a 5 year period, so neither will suffer the effect of DMV points for that conviction.  Let’s say Husband gets another ticket and uses another PJC next year.  They are both still on the hook for insurance points for their previous conviction, but the PJC still works for DMV points on his new conviction.  Now he’s all used up and can’t use another PJC in a 5 year period.  In other words, if Husband uses a third PJC in a five year period, he will lose the DMV point benefits of each PJC.  Boo, again.

That still doesn’t create a bright line test for when you use a PJC, sadly.  It’s a little simpler to explain when you SHOULD NOT use a PJC:

DO NOT USE A PJC WHEN…

a reduction to a non-moving violation is available

you can get a reduction to a speeding charge of 10 over the limit or less AND you don’t have any other convictions in the last three years

when you have used two PJCs in the past 5 years

most of the time, when anyone in your household has used one (but sometimes the PJC would still be a good outcome under certain circumstances)

Did that help anyone understand the mysterious PJC a little more?  Probably not.  I think the moral of this little diddy is to not just think of the PJC as traffic ticket panacea.  If you have any doubt about whether or not you should use one, call someone who has a bit of knowledge about these things.  Call me.  919-929-2992.

Like a bad neighbor, insurance companies are scary.

As a personal injury attorney, I deal with insurance companies all day long, every weekday. Their job is to pay the victims of their insureds’ negligence as little as possible for the harm done to them.  Fine, fine, I get it.  They have a job to do, as do I.  They will make some pretty horrible arguments in their efforts to rob my innocent victim clients.  They will twist words and bend rules and sometimes just plain make stuff up to avoid doing the right thing.

More often than not, however, I can get insurance companies to exhibit some small measure of rational behavior and pay my clients a fair amount for their damages.  Mind you, “fair” is a subjective sort of word and it will have different meanings to different people, particularly the two sides in these sorts of things; regardless, most of the time I get them to see reason with or without some great deal of effort.  Granted, they almost always drive me batty with their standard party-line reasons for not wanting to pay on claims, but we can get at least close to seeing eye to eye most of the time.

Recently I was confronted with something that astounded even jaded old me.  I have a client who was a strapping young man with horses and kids and four-wheelers and the active lifestyle all of that would entail.  Then he was rear-ended while working and that all came crashing down around him.  After triple-level spinal fusion surgery he is permanently and totally disabled.  He can walk and get about, but he will never work again, and sure as heck won’t be on those horses or four-wheelers again.  He’s wrecked.

Thankfully, there was a viable worker’s comp claim in the mix and we’ve been able to get his treatment taken care of and some modest income to see to his needs.  In these sorts of situations, there is what is called a “third party claim” against the person who caused the accident and damages.  Of course, whatever we get from that third party will have to go back to pay what worker’s comp has paid for him (that’s the law here in our fine state) so it’s a little “robbing Peter to pay Paul” but one can often get a little left over, perhaps with negotiation, to give to the injured party.  In a situation like this guy has, he deserves every penny.  His life is ruined as a result of this wreck and he will need every red cent he can get to keep things going around his house and help cushion the financial, physical, and psychological blows he has received.

In this instance, the person who caused this accident was insured by one of these companies you see advertising on TV.  They tell you how they take care of you in an accident and make sure your life is all hunky dory when things go awry.  What they don’t tell you is how they treat the other side.

I submitted a stack of medical records and bills to this company.  The bills were in excess of $350,000.  There is no question as to the causation of the injury or the necessity of treatment.  There is no question as to the liability of the person who caused the accident.  I even went so far as to provide five years of medical notes for my client preceding this accident showing a complete absence of any back issues.

That, my friends, is solid evidence of what we call a “limits” claim.  The insurance company should write my guy a check for their limits and pray their insured isn’t sued.  The reason they do that is because the value of our case is so high that it will likely exceed any policy they have.  Let’s say the insured, the woman who caused this accident, has a policy of $30,000.  That means they pay us $30,000.  That’s all we get, and that’s that.  Technically, we could sue her and take more from her personally, but it wouldn’t get us much more and wouldn’t be very nice, either, right?  The alternative is that we HAVE to sue the lady and go through time-consuming and money-consuming litigation in order to get a court to order her to pay us a gazillion dollars, at which point the carrier will have to pay at least the policy limits (which they could have done in the first place), and maybe more if they put their insured in a position where she would face a judgment in excess of the policy limits.

I bet you can smell what’s coming.  The adjuster supposedly reviewed our materials and then left me a message that went very much like this, “I see he had spinal surgery and is disabled now, and there’s no evidence that his injury wasn’t caused by this accident.  But I just don’t believe you.”

What?

Let me sum it up for you:

We have a case that is clearly worth at least $1 million.

The person who caused the accident has an insurance policy.

The insurance company is refusing to pay even a reasonable amount in settlement of the claim, choosing instead to put their insured in the firing line, get her sued, and potentially have her put into bankruptcy, when all they had to do was write a check for the policy limits THAT THEY PROMISED HER THEY WOULD PAY WHEN NECESSARY UNDER HER INSURANCE CONTRACT!!

Now, my client is going to have to shell out thousands of dollars in deposition costs, mediator fees, discovery costs, and hours and hours of his own time to pursue this claim which the company could just as easily have already settled.  People talk about “tort reform” and the need to rein in “trial lawyers.”  But let me tell you something, kiddies: Insurance companies are what need reining in.  They are one of the wealthiest sectors of business in the world and they’ve mastered the art of nickel and dime-ing the little guy into submission while they make more and more money off of the money they should be paying him.

The moral of the story is you cannot trust an insurance company any further than you can throw them.  Watch ‘em, boys and girls.  And if you’re hurt in an accident, seek counsel immediately; don’t let these companies get away with this.  We have to fight back.  And that’s what I’m here to help you do.

best meal ever

Thousands of years ago, before Sigourney Weaver, the natives of the Low Country of the southern shores of the continent known as North America, created a dish they called “shrimp and grits”.  This dish consists of many things, including the exotic crustacean known as “shrimp”, as well as the odd grain dish called “grits.”  Eventually, an enterprising young chef at the Chapel Hill restaurant Crooks Corner decided to take this recipe and make it his own.  I’m sure there was a twist here and a turn there, but I was not privy to the development of this recipe, so I just don’t know.  Regardless, I have had it, and it is friggin delicious.

As time passed, a Crooks Corner employee took this recipe to the eclectic little college town of Oxford, Mississippi when he opened his restaurant called City Grocery.  Thankfully, he was drunk enough one day to contribute this recipe to a cook book featuring recipes from many of the inordinately spectacular restaurants of Oxford.  We seized upon this fateful mistake today and made their version of shrimp and grits this evening and I have now experienced the culinary version of nirvana.  Go, find it now.  Revel in it.  Then get drunk, because life won’t get any better.

tried my hand at haiku…depressing

We are all scrambling

Drawing figures in the sand

The tide is coming