North Carolina Personal Injury Law Advocate

DLG withdraws support for HB 813; compromises could be harmful to injured people

dan@deutermanlaw.com (Dan Deuterman) — Mon, 14 Jun 2010 14:16:36 -0500

We recently asked you to write to your state senators in support of legislation that would change how automobile accident claims and other personal injury cases are handled in court.

While we still believe that North Carolina's use of contributory negligence in personal injury cases is antiquated, harsh and punishes injured people, we can no longer support the version of HB 813 now being debated by state lawmakers. Quite simply, some the the provisions that have been added to the bill as it has made its way through the N.C. General Assembly do not protect the interests of injured people.

So, we must join the N.C. Advocates for Justice in withdrawing our support for HB 813.

As a law firm that advocates for injured people, we still believe that North Carolina must move away from contributory negligence and toward comparative fault in these cases, the compromise bill currently proposed sacrifices too much

North Carolina is one of only four states that allow the doctrine of contributory negligence as a defense in auto accident and other personal injury cases. Contributory negligence is a harsh and outdated way of denying help to people hurt in accidents. Under current law, if you’re even 1 percent responsible for an accident, you CANNOT recover damages from the person who injured you, even if that person is 99 percent at fault.

The original HB 813, which we supported, sought to correct that injustice by switching from contributory negligence to comparative fault. Under the comparative fault doctrine, juries determine how much fault lies with each party in the accident and then award damages based on those percentages. The injured party is allowed to recover only that percentage of damage caused by the other person. Under the much fairer comparative fault standard, an injured person would still be able to collect a percentage of an insurance settlement to cover medical bills and compensate for injuries. Now, these victims get nothing.

SUPPORT BILL HB 813 - for injured people

dan@deutermanlaw.com (Dan Deuterman) — Tue, 08 Jun 2010 09:29:49 -0500

State lawmakers are preparing to vote on legislation that will impact anyone who is hurt in a car accident or suffers a personal injury that is someone else’s fault.

North Carolina is one of only four states that allow the doctrine of contributory negligence as a defense in auto accident and other personal injury cases. Contributory negligence is a harsh and outdated way of denying help to people hurt in accidents. Under current law, if you’re even 1 percent responsible for an accident, you CANNOT recover damages from the person who injured you, even if that person is 99 percent at fault.

HB 813 seeks to correct that injustice by switching from contributory negligence to comparative fault. Under the comparative fault doctrine, juries determine how much fault lies with each party in the accident and then award damages based on those percentages. The injured party is allowed to recover only that percentage of damage caused by the other person. Under the much fairer comparative fault standard, an injured person would still be able to collect a percentage of an insurance settlement to cover medical bills and compensate for injuries. Now, these victims get nothing.

It could happen to you or someone you love.

Imagine that you’re driving home after picking up your child from school or coming home from a dinner date with your spouse. You have the green light, but just as you’re crossing through the intersection, another car runs the red light. You see their headlights and you know the other driver isn’t going to stop. But in the nanoseconds leading up to the crash, you don’t swerve and you don’t blow your horn. Because all you can think about is your loved one.

The other driver’s insurance company will argue that because you saw the car coming, and didn’t do anything to prevent the collision, you were partially at fault for the accident. Because of contributory negligence, that’s enough to kill your claim and leave you saddled with medical bills resulting from the crash. All while the other driver’s insurance company gets off scot-free.

How little can 1 percent be? In North Carolina, insurance companies have used contributory negligence to deny auto accident claims because the injured person:

Failed to honk when passing another vehicle that sideswiped them
Failed to look both ways when passing through an intersection with a green light and then was T-boned by another car whose driver ran a red light
Failed to slam on the brakes in the seconds before another car slammed into theirs

Though someone else was clearly at fault in each of these examples, the victims weren’t able to collect insurance payments for their injuries because they were slightly responsible for these accidents. Does that seem fair?

We don’t think so either. That’s why we’re asking you to call, email or write your elected officials in the N.C. Senate and tell them to SUPPORT HB 813! The bill has already been approved by the state House, and the state Senate is expected to vote on the measure during the current session of the North Carolina General Assembly.

It’s very important that you let your state senators know how you feel and how you want them to vote on this bill. The insurance industry is lobbying them aggressively to keep the current doctrine of contributory negligence. They’re twisting the facts, spreading misinformation and spending thousands every week on an advertising campaign aimed at killing HB 813.

You may have heard their radio commercials claiming that automobile insurance rates will go up if the proposed legislation becomes law. That’s simply not true. Insurance lobbyists are distorting the truth to protect their industry's profits at the expense of what's fair for everyone.

FACT:
Before neighboring states South Carolina and Tennessee switched from contributory negligence to comparative fault, auto insurance premiums were much higher there than in North Carolina. Since the change, premiums in those states have increased at a much slower rate than premiums in North Carolina.

The insurance companies also assert that more accident claims will be paid if this new law passes. We certainly hope that’s the case because accident victims in North Carolina have too long been denied fair compensation for their injuries. It’s important to remember that with comparative fault, victims won’t be getting money they don’t deserve. Insurance settlements will be determined by each person’s level of fault.

Victims finally will be getting the justice they deserve after more than a century of unfairness under contributory negligence, a standard designed to protect insurers at the expense of suffering people.

Finally, we have a chance to protect the victims of personal injuries.

Please, contact your elected officials today and ask them to support HB 813. Tell them that current law is too harsh and needs to be reformed. You’ll find contact information for North Carolina’s state senators at the end of this letter. You can learn more about the fight for fair justice in North Carolina by visiting www.fairjusticenc.com.

Thanks for your help in passing this much-needed reform that protects injured people. This is a law that could impact all of us

Tell Your State Senators to Vote for HB 813

dan@deutermanlaw.com (Dan Deuterman) — Mon, 24 May 2010 09:38:52 -0500

The N.C. General Assembly is considering important legislation that will impact anyone who is hurt in in an automobile accident or suffers from a personal injury.

We need you to call, write or email your state senators as soon as possible and tell them to support HB 813, which would change the standard in personal injury cases from contributory negligence to comparative fault.

We'll be writing more about this issue in the coming days, but here's a quick primer on what's at stake, courtesy of North Carolina Advocates for Justice.

All of us expect our civil justice system to be fair, but in North Carolina it's not. Unfortunately, insurance lobbyists want to keep it that way with empty scare tactics.

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 fair system that does not mean a rise in premiums.

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

Follow this link to find out who represents who in the state senate and how to get in touch with them.

Denied Social Security Disability Benefits, Cancer Patient Continues to Work

bsb@deutermanlaw.com (Benjamin Burnside) — Fri, 14 May 2010 10:07:23 -0500

Yet another sad story of how the Social Security disability backlog impacts lives.

47-year-old Heather Russell was diagnosed a year ago with Stage IV cancer and applied for Social Security disability benefits. She was initially denied benefits, and so kept working at her job at Home Depot despite the toll the end-stage cancer was taking on her.

Russell died before receiving Social Security Disability benefits. And it wasn't until a few weeks before her death that her family learned that her claim likely could have been expedited because of her terminal condition.

It wasn't until recently, with the help of staff from Congresswoman Carol Shea-Porter's Dover office, that the Russells learned Social Security provides "compassionate allowances," according to the agency, in order to "quickly target the most obviously disabled individuals for allowances based on objective medical information that we can obtain quickly."

But Heather Russell received no compassionate allowance. And she died while her Social Security Disability claim was mired in red tape.

Russell's family says that her final months could have been so much easier had her disability benefits been approved. She wouldn't have had to continue to work and to worry about how to pay her rent and other bills.

Heather Russell's story is a sad reminder of why the Social Security Disability system is sorely in need of reform.

Workplace Injuries Twice as Likely Among Younger Workers

dan@deutermanlaw.com (Dan Deuterman) — Wed, 12 May 2010 09:55:11 -0500

Going to work can be especially dangerous for younger workers.

Because of their inexperience, the types of jobs they're in and failures by employers to provide adequate safety measures and training, this group "face high risk of injury while on the job,” according to a new study by National Institute for Occupational Safety and Health (NIOSH) and published in the Morbidity and Mortality Weekly Report.

From 1998-2007, younger workers experienced approximately twice as many nonfatal occupational injuries as older workers, and employers must make changes in workplace environments and practices to protect this population, according to the April 23 Morbidity and Mortality Weekly Report.

The report also has some interesting findings about workplace fatality rates among older and younger workers and Hispanic workers.

Tips for Preventing Workplace Injuries for Workers and Their Employers

dan@deutermanlaw.com (Dan Deuterman) — Mon, 10 May 2010 09:42:16 -0500

The N.Y. Department of Health has some good tips for preventing workplace injuries for employees and their employers:

Employers should

* Review laws that apply to your worksites to ensure you are in compliance
* Work with workforce representatives to develop health & safety programming as needed
* Invite a site visit from an occupational health expert to make health & safety recommendations
* Offer medical screenings
* Host in-house workshops/training sessions for workers, focused on preventing work-related illness and injury
* Form/Join/Support health & safety committees
* Host a workplace health & safety fair with demonstrations, displays and more
* Distribute health & safety information regularly, along with appropriate protective equipment to employees

Employees should

* Work in a safe manner wearing your appropriate protective equipment
* Know your rights under state worker compensation laws
* Form/Join a health and safety committee and communicate with its representatives about workplace concerns and issues
* Bring to the attention of health & safety committees/employers/coworkers potential worksite hazards needing elimination
* Participate in medical screenings, trainings, workshops and other activities offered by employers or labor unions
* Exercise your right to appropriate protective equipment, procedures and training and follow the policies and procedures necessary to prevent injury or illness from these hazards
* Distribute health and safety information to co-workers
* Write a letter to a local newspaper/area legislator/policy maker describing in your own words why workplace health and safety is important

To that list, we'd also add that employers should ensure that they have proper workers' compensation coverage for all employees, as required by law. And workers should report all work-related injuries and illnesses immediately so that they can be fairly compensated and so that safety problems can be resolved immediately.

California Nurses Push for Workers' Comp Reform

dan@deutermanlaw.com (Dan Deuterman) — Fri, 07 May 2010 09:32:40 -0500

Nurses in California are pushing for reforms to their state's workers' compensation system to make it easier to receive benefits for certain work-related injuries.

California nurses and hospitals are locked in a precedent-setting fight over injury compensation that could benefit nurses but cost hospitals hundreds of millions annually.

Proposed legislation would declare that various infectious diseases or back and neck injuries suffered by nurses stemmed from their job and are eligible for workers' compensation benefits unless hospitals can prove otherwise.

Assembly Bill 1994, pushed by the powerful California Nurses Association, piggybacks upon an exception in state law adopted years ago for peace officers and firefighters.

AB 1994, applying to more than 350,000 hospital workers, would break new ground in two ways: It would apply to private employees and target public health, rather than public safety, workers.

Opponents argue that if such exceptions are granted to nurses, other private workers in risky jobs will demand them, creating a fiscal nightmare for a stressed workers' comp system.

If passed, this legislation would shift the burden of proof for these types of workplace injuries and illnesses from the worker to the insurance company, which would have to prove that the illness or injury was not a result of the worker''s job.

VA Changing Process for Handling PTSD Disability Claims

joel@deutermanlaw.com (Joel Davis) — Wed, 05 May 2010 11:04:05 -0500

Interesting reading from the Associated Press about the Department of Veterans' Affairs plans to reform the way it handles disability claims from veterans suffering from post-traumatic stress disorder.

Moved by a huge tide of troops returning from Iraq and Afghanistan with post-traumatic stress, Congress has pressured the Department of Veterans Affairs to settle their disability claims — quickly, humanely, and mostly in the vets' favor.

The problem: The system is dysfunctional, an open invitation to fraud. And the VA has proposed changes that could make deception even easier.

As someone who has represented countless disabled and injured workers, this article was interesting on two fronts. I know how difficult it can be to prove disability from certain hard-to-prove conditions, and certainly PTSD ranks as one. And I also know that there's a huge public bias against people who are collecting disability or workers' comp benefits; there's a sense that many of these people are faking it.

While there are cases where fraudsters manipulate the system to collect benefits not due them, it's much more common for someone who is entitled to benefits to not receive them. I suspect that's also the case with disabled veterans.

The AP article cited three examples of fraudulent PTSD claims:

Gulf War veteran Felton Lamar Gray told a VA psychologist he was spattered with "blood and chunks of head" when his "best friend" was shot in the face in Iraq. But only after the VA rated Gray 100 percent disabled did anyone check into his stories — and discover the comrade he spoke of is very much alive and said he barely knew Gray.
Thomas James Barnhart is a Coast Guard veteran who used forged documents to convince VA doctors he was an elite, much-decorated Navy SEAL. Barnhart's tales of daring rescues and of cradling a dying helicopter pilot in his arms won a congressman to his cause and helped him get a 30 percent PTSD disability rating from the VA, before he was outed by a watchdog group.
Vietnam-era veteran Keith Roberts said he was traumatized when he was prevented from rescuing a friend being crushed under a Navy airplane, and was eventually granted 100 percent disability. But when the case was reopened, investigators could find no evidence that Roberts was even present when the accident occurred.

But don't let those examples cloud the reality. PTSD is a very real and very debilitating condition affecting hundreds of thousands of veterans. The VA should be applauded for its efforts to more quickly and favorably settle these disability claims.

PTSD is an undeniably real sickness whose symptoms — flashbacks, vivid nightmares, intrusive thoughts, exaggerated startle response, emotional numbness — can be debilitating. As of Fiscal Year 2009, nearly 390,000 veterans were receiving benefits for PTSD, making it the fourth-most prevalent service-connected disability, according to the VA.

Authorities have tried to brace the public for a tidal wave of psychically damaged veterans from the current wars. Of the roughly 1.6 million troops who have served in the war zones of Afghanistan and Iraq, more than 134,000 had been seen at VA health care facilities for "potential PTSD" as of late last year, according to a government report. Researchers suggest the numbers of actual sufferers are much higher.

Veterans groups have sued the VA over an enormous backlog, complaining that claims take months and even years to be approved, and that some veterans had committed suicide as a result.

N.C. Man Denied His Rightful Social Security Disability Benefits

bsb@deutermanlaw.com (Benjamin Burnside) — Mon, 03 May 2010 09:43:03 -0500

The Social Security Disability backlog has been widely covered in the media. We've blogged about the topic quite often here.

Statistics showing how deep the backlog is -- as much as two years in some cases -- are compelling. But it's stories like that of Kevin Smith of Spindale, N.C., that illustrate why reform and improvements to the Social Security Disability system are so necessary.

Because of a bureaucratic mistake -- a computer coding error -- Smith failed to receive $14,000 in back pay after being approved for Social Security Disability benefits for his chronic neck and back problems.

It wasn't until a local television station made an inquiry that Smith got his money.

This TV station apparently gets a lot of request for help from Social Security Disability applicants for help regarding their claims. Their number one bit of advice (it's ours too): Hire an attorney to assist with your clam.

Our attorneys and paralegals at the Deuterman Law Group know the Social Security Disability system inside and out, and we've handled countless cases. We know how to deal with the bureaucracy to get our clients the benefits that they deserve in as prompt a manner as possible.

School Employees Entitled to Workers' Comp for On-the-Job Injuries

dan@deutermanlaw.com (Dan Deuterman) — Fri, 30 Apr 2010 09:34:04 -0500

The American School Board Journal has an interesting article in its May issue about workplace injuries involving school employees.

The article concentrates on two cases in Ohio, one in which a teacher was killed in a car accident while driving to a continuing education workshop after school hours and another in which a substitute teacher's aide reported to the wrong school for duty and fell and broke her wrist.

Neither of these cases were typical workers' comp cases, but they're interesting case studies. And the ASBJ article serves as a reminder that workplace injuries can happen anywhere. Construction workers and others in high-risk jobs aren't the one people at risk for workplace injuries, nor are they the only ones eligible for workers' compensation. A school employee faces risks on campus and off (such as when they're chaperoning field trips or after-school extracurricular activities) that may be compensable under the state's workers' compensation laws.