What are the Stages of a Car Accident Case?

Posted on Friday, June 15th, 2018 at 10:13 am    

Car accident cases aren’t simply a matter of “here’s what happened, pay me a large sum of money.” Experienced Virginia car accident lawyers are skilled at each phase of the trial from the initial client consultation through a trial before a jury. Once your medical diagnosis is clear, the lawyer will work to try to settle your case. To get the best results, the lawyer prepares your case as if it is going to go to trial.

Since car accident lawyers usually take your case on a contingency fee basis, the client does not need to rush to make a quick settlement. Contingency fee means the car accident lawyer only gets paid if your case settles or if you obtain a jury verdict. So you will not have to stroke a check to hire the attorney.

There are several steps a car accident victim should take before speaking with an attorney. For more detailed information on what to do and what not to do if you’ve been in a car accident, please download my book 23 Simple Rules to Follow if You’ve Been in a Car Accident, or call our office for a hard-bound copy. Also, remember that if you were on the job at the time of your accident, there will be a Workers’ Compensation element to your claim as well which we can handle for you.

  • The first step is to get an immediate medical evaluation. Even if accident victims feel well immediately after the accident, they should still go to the emergency room or see their family doctor. Some injuries like traumatic brain injury, concussions, or whiplash take a day or more to show symptoms. The sooner you see a doctor, even when pain is not immediate, the better care you should get. Early diagnosis and early treatment helps you get better faster and with stronger results. Additionally, if you wait to see your physician, the insurance companies may argue that you weren’t really hurt.
  • The second step is to contact the police if anyone was hurt or if there was property damage. The police will get everyone’s contact and insurance information. The officers will write a report which details the accident site including lanes of travel, traffic signals and signs, and other information. The police will work to secure the area so that nobody else is hurt. They’ll physical also arrange for any ambulance or EMT services. They will also charge anyone they feel violated any laws, such as failure to yield, running a red light, etc. This helps to determine who was at fault for the accident, and if that person pre-pays the fine, then they have admitted guilt in your case.
  • The next step is to make sure you take or get someone to take numerous photos of any damage to the vehicle you were occupying at the time of the accident, before the vehicle is repaired. This can easily be done with most smartphones today. In addition, if you have any bruises  lacerations, or seatbelt burn, etc. from the accident, you should get someone to photograph them extensively and as clearly as possible before they heal.
  • The third step is to contact an experienced car accident lawyer as soon as possible. The attorney will advise you how to document your pain and suffering. He’ll explain how the litigation process works. An experienced car crash lawyer will explain that you shouldn’t think about a settlement until you fully understand your injuries and what your long-term prognosis is. He’ll speak with the insurance adjusters for you have signed documents to allow him to represent you.
  • Vehicle owners are required to notify their own insurance carrier about the accident. You should never admit fault even to your own company.  You should give the facts about what happened. Normally, the insurance company will want to inspect the car to see what repairs may be necessary or to determine if the car was totaled.
  • Vehicle accident victims are not required to speak with the insurance adjuster for the people who were at fault, i.e. the defendant. If an insurance company, other than yours, wants to speak with you, you have every right to say that you want them to speak with your lawyer. If your lawyer thinks it prudent, he will set up a recorded statement and prepare you for it, and do a three-way telephone interview so that he is on the phone during the statement. He will also prepare you before the statement as to how to conduct yourself.

 

Victims should also understand that both Virginia and North Carolina have a strict contributory negligence laws. This means if a jury finds that the other driver was 90% at fault and you were just 10% at fault, then you get nothing. You don’t get 90%. You don’t get 50%. You get zero. So, admitting or implying fault in any way can cause you to lose your case.

Now if you were on the job at the time of your accident, generally, fault does not affect workers comp entitlement, unless you were grossly negligent, or failed to follow a company safety rule. For instance, if company safety rules require that you wear a seatbelt, and you were not wearing one and this increased your injuries, you would not be entitled to workers comp coverage.

The stages of your case once you a hire a lawyer

  • Consultation. The attorney will begin by reviewing what happened and your medical complaints. The more he understands what happened, the better he can analyze who was responsible and why.
  • Investigation. In the old days, the attorney would routinely send investigators to the accident site to take pictures and/or video of the site, but today, for most locations, you can view just about every angle of the scene using Google Earth and save the shots you want.  If skid marks or sight distance are important, then an investigator with appropriate training will be sent to take measurements. This can prove critical in close cases. The investigators may also examine your vehicle. The damage to all the vehicles (what parts of the car and how severe) is another piece of evidence to help determine fault.
  • Determination and Estimation of Coverage. Your own insurance policy should have a portion called Underinsured Motorist Coverage.  (UIM). It is very important to find the declaration page of your policy. This will display what your coverage is. It is usually expressed as policy limits, with two numbers and a slash line. For instance it may say $100,000/$300,000.00. The first number is the per person limit and the second number is the total coverage in the event that more than one person was hurt. The reason the amounts are important is because the minimum coverage required in Virginia is $25,000.00, and in North Carolina, $30,000.00. So no matter how bad your injuries are, if both you and the defendant have the minimum coverage, that is all you will be entitled to. Unfortunately, we are not entitled to know the amount of the defendant’s coverage without filing a lawsuit. Most of the time, you can get an idea based on the year, make and model of the defendant’s car. So if they are driving a 1980 Honda that is barely holding together, you can bet their coverage is very different from someone driving a brand new Mercedes.
  • Photos of the damage to the vehicle and any severe injuries.  As noted above, it is very important to get photos of the vehicle damage. Particularly in a nasty wreck, a picture is worth a thousand words. If you have to go to trial, nothing conveys what you have been through better than a mangled mass of twisted metal.
  • Medical care and gathering of records and bills. The attorney will review your medical injuries and the treatment you’ve received so far. The lawyer may suggest that your see other doctors, psychologists, therapists, and other health care providers. During your case, the lawyer will obtain medical reports which explain your medical condition, your prognosis, the loss of any long-term function, the pain and suffering that usually accompanies the type of injury you have, and any problems that are unique to your situation.
  • When to negotiate. Insurance companies for the people who hit your car want to settle your case as quickly as possible for as little as possible. Experienced Virginia car accident lawyers understand that delay is not your friend. Many doctors will defer payment until your case is resolved, but they are not required to do so. Therefore, your own health insurance company should pay for your medical care until the case settles or there is a verdict.

While some injuries such as a broken arm are treated and then heal in a few months, there are often exceptions. When your arm heals, you may lose some range of motion. There still may be a persistent pain. If you settle too early, you can’t come back and ask for more money. That’s why it’s good to wait until your medical condition has stabilized.

  • Demand Letter-Once all the bills and records regarding your related treatment are received, and you have reached maximum medical improvement,  your attorney will prepare a demand letter, which will set forth the facts of the claim, and recite, in detail, the entirety of your medical treatment related to the accident. If you had any prior injuries to the same body parts, this would also need to be discussed and dealt with. You attorney will also attach all the relevant medical records and bills and tally them up to compute an appropriate amount to ask for settlement from the insurance company. The amount asked for is typically not the amount your attorney expects the case to settle for, but is merely a place to begin negotiations. The attorney will also attach any relevant photos of the vehicle damage, photos of your visible bodily injuries, and a copy of the accident report.
  • How to negotiate. An experienced car accident lawyer understands how much your case is worth. He understands the strengths and weakness of your case and the defendant’s case. He understands the art of negotiation – how much to ask to start in order to get the settlement you deserve. The lawyer also understands when a settlement offer just isn’t fair and that you should proceed to a jury trial. Often times, the best settlement offer comes right before the jury trial date.
  • Watch out if you have a worker’s comp case. One thing many folks ignore is the situation where they may have a worker’s compensation case as well because you were on the job at the time of your accident. Generally, the law does not allow a double recovery. This first means that you cannot settle your case against the other driver without the permission of the workers comp adjuster. If you do, that is the automatic end of your comp case. Also, the money paid out by workers comp will create a lien against your injury case. That being said, these amounts are usually reduced and worked out at the time of settlement. The main take-away is NEVER settle your injury case before your workers comp case or you will be in for a rough ride.
  • Figuring how much the case is worth. For more detail on this subject, please download my free book, How Much is My Case Worth?  Your lawyer should understand how to value and how to prove each of the following damage items:
    • Your past and future medical bills. This includes hospital visits, doctor exams, work with physical therapists, and time with other medical professionals and healthcare providers.
    • All medical prescription costs. Often, a car accident victim needs to take medications during the healing process. Some patients may need to take medications for the rest of their lives.
    • The cost of any medical devices. Prosthetics, walkers, canes, and other devices cost money. They may need to be replaced over time. These expenses should be calculated.
    • Lost income. This includes all the money you lost because you couldn’t work up through the date of the trial. It also includes any lost wages or income that you will lose because you have a partial or complete disability or until your injuries heal. Lost income is generally proved, with the preparation of legal counsel, by evaluating your tax returns, statements from your employers, and profit and lost summaries. In some cases, we work with accountants, vocational experts, and other financial professions to detail how much lost income the accident cost you.
    • Property damage. This is typically the cost to fix your car or to replace it if the cost to repair it is nearly as much as the cost to buy a new one. It should be noted that typically your personal injury attorney will not deal with this at all, and it will be handled early on by you, and not by your attorney. This is because there is little leeway in negotiating vehicle damage amounts. You are entitled to recover the blue book value of the car and nothing more. While occasionally, there may be some add-ons for new items on the vehicle or other property damaged in the accident, it is usually fairly set in stone and there is little an attorney can do to change what you are entitled to. So unless the claim was completely denied, property damage is usually not part of your lawsuit.
    • Pain and suffering. Each day, you have to live with physical aches, pain, and discomfort. The pain may get worse when you move or perform simple tasks. Pain can prevent you from sleeping, enjoying family, doing your job, and engaging in simple tasks like eating and walking. Pain can include itching, swelling, vision loss, and a range of agonies.

 

Along with the physical pain is the emotional worry about when and if your injuries will heal. You worry that you’ve become a burden to your family. Physical pain is often accompanied by depression, anxiety, fear, and other emotions.

 

Your doctors can summarize some of your pain and suffering. Family members can testify as to your sadness, your crying, and other symptoms. Often, the best witness for showing pain is you, the victim. An experienced lawyer will usually value the pain and suffering part of your claim based on his experience and knowledge of the jury pool and what other juries have awarded in the past.

  • Scarring and disfigurement. Car accident victims who have scars, especially facial scars, or who lost a limb or body part because of the accident or an amputation – are generally entitled to additional damages.
  • Loss of consortium. In North Carolina, (but not in Virginia) a spouse of an accident victim may be entitled to damages because they have lost the ability to enjoy their spouse’s companionship, guidance, and intimacy. This element only becomes significant in the most severe injury cases.

 

How long will all of this Take?

So, this sounds like an awful lot to do. You may ask how long all of this will take? And this really depends on how long your treatment takes and many other factors that are too numerous to get into here. I suggest you download the book How Long Will My Case Take? where attorney Joe Miller provides the detailed answers to that question.

 

  • Filing of the claim in Court. If your attorney cannot reach an agreeable settlement with the insurance company, then a lawsuit should be filed before the statute of limitations runs. In both Virginia and North Carolina, that is two years after an accident. The complaint will identify who you are. It will also identify the defendants who caused you injuries. The complaint typically sets forth the theories of liability,  typically negligence, and there may be a plea for punitive damages, if warranted. Once the complaint is filed, we can then formally conduct discovery and prepare your case for trial.

 

  • Formal discovery. Discovery is the phase where each of the parties has the right to ask questions about what the other side knows.
    • Defense questions. Defense lawyers will ask victims to state what happened, what their injuries are, and what treatments they’ve received. The defense lawyers will explore anything that might show the victim was partially at fault for the car accident. The defense attorneys will also try to minimize your injuries by exploring if you had any prior accidents or if there were other events that may be the cause of your pain.

 

    • Plaintiff questions. Your lawyer will seek to determine which defendants owned the car. If the driver was different than the owner, we’ll seek to determine if the driver had permission to use the car. We’ll ask the driver where he/she was coming from and where they were going and get into all the details of the accident, particularly if liability or fault is contested. Many questions will vary depending on how the accident happened.
    • Discovery has three basic parts to it:
      • Interrogatories. These are written questions, sometimes 50 or even 100, about the events surrounding the car accident and the injuries
      • Depositions. These are oral questions under oath that one lawyer asks the opposing party. All of your responses are taken down by a court reporter. This also includes depositions of your doctors.
      • Requests for production of documents. These are written request to produce things such as medical bills, medical reports, proof of insurance, traffic citations, and other documents.
  • The trial. Cases that can’t be settled should be tried before a jury. Depending on the amount we are trying to claim, some cases can be tried in lower Court by a judge. For instance, in Virginia, a district court case has a $25,000.00 limit. So if you know for a fact that there is only $25,000.00 in coverage, this may be the way to go. It does save a lot of money on doctor’s fees, deposition costs, etc.
  • But on the higher value cases, plaintiff’s lawyers always ask to have a jury decide the case. The main parts of a jury trial include:
    • Voir dire. The selection of the jury
    • Opening statements. Each side presents its version of what happened
    • The presentation of evidence. Each side calls witnesses to testify. The opposing side can cross-examine those witnesses. The victim’s lawyer will generally call the victim/plaintiff, the family members, and any witnesses to the accident, if liability is contested. The employer and co-workers may be called. Doctors may also be called unless the parties agree that medical reports or video depositions can be used. Depending on the type of claim, economic experts may be called to testify about future wage loss and even vocational experts, if the plaintiff is unable to return to work due to his or her injuries.
    • Closing statements. Each side summarizes the evidence and argues why its side should win.
    • Instruction to the jury. The judge instructs the jury on how to properly review the case.
    • Jury deliberation. The jury reviews the evidence and decides who is responsible. If the defendants are responsible, the jury decides how much damage to award the car accident victim.
    • The verdict. The jury informs the judge what decision it has made. The judge then reads the verdict to the parties.
  • Appeal. The losing side may appeal the verdict to a higher court. Appeals are usually based on some legal or judicial error during the trial phase.

 

Speak with an Experienced Virginia car accident lawyer now

Car accident victims shouldn’t wait to speak with a lawyer. Memories fade. Evidence such as skid marks can disappear. Injuries usually worsen if you don’t see your doctor. As a respected car accident lawyer, Joe Miller will guide you through each phase of your case. He has been fighting for injury victims for over a quarter century. To make an appointment, please call (888) 694-1671 or complete my contact form.

 

The Dangers of Distracted Driving and Driving While Tired

Posted on Tuesday, May 22nd, 2018 at 12:22 pm    

According to the Centers for Disease Control and Prevention, nearly 9 people are killed and 1,000 people injured by a distracted driver – each day. Distracted driving is dangerous for three fundamental reasons:

  • Distracted drivers aren’t looking the road in front of them
  • Distracted drivers don’t have their hands on the steering wheel. This makes it tough to respond to emergencies. Careful drivers have both hands on the wheel.
  • Distracted drivers aren’t thinking about how to respond to dangers such as by braking, steering into a different lane, slowing down, or taking other safety measures.

Types of distracted driving

Common examples of distracted driving including

  • Texting while driving
  • Speaking on a smartphone or cell phone
  • Using a GPS system
  • Eating while driving
  • Adjusting the radio
  • Looking at a video
  • Conversing with passengers especially those in the back seat
  • Personal grooming
  • Drinking a beverage such as coffee or soda
  • Smoking

Drivers who are tired or who are under the influence of alcohol are also unable to anticipate, control, and respond to emergencies.

A momentary lapse of even a second can be fatal or cause catastrophic injuries. A car travelling at 60mph is travelling 88 feet per second – which is about 4-5 car lengths.

The CDC reports that teenagers have an especially high likelihood of driving while distracted:

  • Drivers less than 20 years of age have the highest rate of distraction-related fatal accidents
  • In 2015, nearly two in five high-school students said that they sent an email or text while driving in the previous 30 days. Many of these young drivers also admitted that they didn’t wear a seat-belt while they were sending these emails and texts.

Texting while driving laws in North Carolina

North Carolina enacted a strong texting while driving ban that applies to all drivers though it is especially tough on novice drivers. The law provides that adult drivers can speak on their cell phones while behind the wheel but they can NOT text while the car is in motion. The texting while driving ban applies to reading, sending, or composing a text message. It is not illegal to text if the car is stopped or is parked. Violators can be stopped by a police officer and ticketed even if they haven’t committed another traffic offense.

Drivers under the age of 18 (novice drivers) can’t text while driving. They also can’t use a cell-phone (even a hands-free phone). Novice drivers can also be stopped if they haven’t committed another traffic offense.

Bus drivers are also banned from using a cell phone while their bus is in motion – in addition to the texting while driving fan.

Texting while driving in Virginia

In Virginia, it is unlawful for any person to operate a moving motor vehicle on the highways in the Commonwealth while using any handheld personal communications device to:

  1. Manually enter multiple letters or text in the device as a means of communicating with another person; or
  2. Read any email or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored within the device nor to any caller identification information.

Fines are $125.00 for the first offense and $250.00 thereafter.

The dangers of driving while tired

Nearly 20 percent of all fatal car crashes are caused by a driver who is too tired – as reported by the AAA Foundation for Traffic Safety, The foundation also found that young drivers, those between 19 and 24, were the most likely to drive while fatigued. While nearly all drivers understand the dangers of driving drowsy, most drivers still drive – even though it puts their lives, the lives of passengers, the lives of other car occupants, and the lives of pedestrians at risk.

Indicators a driver is drowsy

Drivers and occupants of the cars need to know when they need to avoid getting into the car if they’re tired or when to get off the ride if they’re getting sleepy. They’re no reason to risk a life to get somewhere a little faster. Drivers should plan to take regular rest stops. They should know where the hotels are where they can stop and sleep. Some of the signs of drowsy driving include:

  • Yawning constantly
  • Not remembering the most recent leg of a journey
  • An inability to focus
  • Shifting into other lanes of traffic
  • Tailgating or getting too close to other drivers
  • Near misses
  • Traveling too fast
  • Going through red lights
  • Failing to stop for stop signs

Some recommendations for sleepy drivers include:

  • Making regular rest stops for every 100 miles or for every several hours of driving time
  • Get plenty of sleep before you plan a long drive
  • Keep your sleep/awake patterns
  • Try to have another driver so you can take turns
  • Avoid medications that might make you sleepy
  • Avoid relying on caffeine to keep you awake
  • Don’t trust that having the radio on will keep you from getting drowsy
  • Avoid using cruise control

Some automakers who are aware of the dangers of drowsy driving are working to install technology that senses when a driver is tired. The cars sound alarms and even force the car to stop. Alas, that technology does not currently exist with any reliability. All drivers are responsible for any deaths or injuries they cause due to drowsy driving.

Talk with a respected North Carolina car accident lawyer as soon as possible

In many cases, when a teenager or young driver causes death or injury, the young driver is not the owner of the vehicle. Attorney Joe Miller Esq. can explain when you can also sue the owners of the vehicle in North Carolina under the “Family Purpose Doctrine.”  The car owners are generally the people who have liability insurance to pay for all your damages if the driver caused your injuries or the death of a loved one. If there is not enough insurance to cover you claim, you may be entitled to payment for your pain and suffering and economic losses from your own uninsured or underinsurance policy.

In addition, if you were on-the-clock for your employer or your travel was connected to a business trip at the time of your accident, we can, of course, handle any Workers Compensation aspects to the claim as that is also a specialty of our firm. To make an appointment with an experienced North Carolina car accident attorney, please phone (888) 694-1671 or fill out the contact form.

Some Common Types of Car Crash Injuries

Posted on Friday, May 18th, 2018 at 8:07 am    

Drivers and passengers suffer many different types of injuries. In the worst cases, the car occupants die. In severe cases, victims may suffer catastrophic injuries such as a traumatic brain injury or a in injury to their spine. Spinal cord damage may result in partial or full paralysis. Catastrophic injuries can change the quality of accident victim’s life forever. Many victims suffer broken bones, nerve damage, cuts from windshield glass, and burns. Some victims suffer amputations, disfigurement, and scarring.

Most injuries are due to the car driver or passenger being thrown around the vehicle. Occupants may strike the windshield, the dashboard, or the steering wheel. Many car crash victims collide with other car passengers. Some victims are thrown from the vehicle. Occupants may also be hurt when their air bag inflates.

Depending on what type of injuries the driver or passenger suffered, victims need to get medical help from many different types of doctors. North Carolina and Virginia car accident lawyer Joe Miller works with the following type of physicians:

  • Neurosurgeons and neurologists
  • General surgeons
  • Orthopedic doctors
  • Psychiatrists
  • Psychologists
  • Cardiologists
  • Physical therapists
  • Neuropsychologists
  • Neuropsychiatrists
  • Pain management doctors
  • Occupational therapists
  • Physiatrists
  • Chiropractors
  • Nurse Practitioners
  • Physician’s Assistants
  • Physical Medicine and Rehabilitation Doctors
  • Your family Doctor
  • Many other medical specialists

Some patients may need a medical device such as a prosthetic or wheelchair. Most car accident victims need to take prescription medications

Two common types of injuries are internal damage and whiplash.

Victims who suffer or think they might have internal damage are usually transported by ambulance or by emergency medical care to the closest emergency room. There, the doctors will conduct a battery of imaging tests, a physical exam, and an oral exam to help make a medical diagnosis.

Examples of internal injuries include:

  • Broken ribs. Broken ribs often take months to heal. The pain is often unbearable. Sometimes, the broken ribs don’t heal 100% leaving the victim in a lot of chronic pain. If ribs are injured, it’s also likely that internal organs such as kidneys, lungs, and the spleen may be damaged.
  • An abdominal aorta aneurysm. This type of rupture is extremely dangerous and often deadly.
  • Internal bleeding. Doctors should be on the lookout for this condition. While external bleeding is fairly easy to spot (just look for the red blood), internal bleeding requires a more thorough examination. Internal bleeding can affect the head, brain, spine, heart, abdomen, joints, and muscles.  Some of the ways physicians look for internal bleeding are by conducting CT-scans, blood tests, an ultrasound, or an angiography. Symptoms doctors look for are lightheadedness, vomiting, difficulty breathing, blood clots, and examining your urine for signs of blood. Internal bleeding can also affect tissues and organs. Internal bleeding occurs when damage to a vein or artery causes the blood to leak into other parts of the car accident victim’s body
  • Organ damage. If the kidney, lungs, or other internal organs fail to function, surgery may be required. Extensive organ damage, particularly to the liver,  is often fatal.
  • A ruptured spleen. Doctors normally need to repair a ruptured spleen by performing a surgery. Internal bleeding usually accompanies a ruptured spleen.
  • Pneumothorax. This is a fancy way of saying you have a collapsed lung. It occurs when air gets into part of area between the lung and the chest wall. It often requires surgery to correct the damage.

Many patients with internal injuries often have to cope with internal bruises.

Whiplash Injuries

Most whiplash injuries occur when a front car is struck in the rear by a distracted or careless driver. It is often made fun of comedically in TV sketches; however, it can actually be a serious, and in some instances, permanent injury. Whiplash involves a tearing of the muscles and ligaments that surround the cervical spine.

The symptoms of a whiplash can take a day or few days to appear. So, anyone in a rear-end collision should avoid saying they feel fine until they’ve waited to see if they do have a whiplash. Most often, you will feel it when you wake up the next day. Common symptoms include:

  • A stiff neck
  • Reduce range of motion
  • Neck pain
  • Back pain and shoulder pain
  • Headaches
  • Numbness and tingling
  • Dizziness
  • Difficulty seeing
  • Ear ringing

A whiplash injury happens when the neck and head suddenly move backwards and then forward. (Hyperextension). This unusual motion puts a great deal of stress on the cervical/neck spine. Some car accident whiplash victims may even lose their memory due to the brain being slammed up against the interior of the skull. Whiplash injuries damage the muscles, discs, nerves, joints, and bones around the neck.

Physicians will conduct an oral exam and a physical examination. In addition to listening to you explain your symptoms, the doctor will feel or palpate your neck to see if there is muscle spasm.  The doctor will see if anything isn’t aligned properly and determine your range of motion. The doctors may analyze your reflexes and how strong or weak your neck muscles and nerves exiting the spinal column in that area are.

Imaging tests include CT scans, MRI exams, and X-Rays – especially if they suspect a fracture. Whiplash injuries are graded depending on their severity. One of the most common effects of whiplash is a straightening of the spine or cervical lordosis. This can actually be seen on X-ray, and in some cases, digital motion x-ray. This happens when the muscle spasm is so severe it pulls the neck out of it’s normal curvature, and into a straight, “beanpole” configuration, where there is no curvature at all.

Self-help whiplash treatments include:

  • Rest
  • Heat and ice treatments
  • Over-the-counter medications such as Motrin, Advil, and Tylenol

Cervical collars used to be a standard recommendation for whiplash but now there is some thought that these collars may actually weaken neck muscles.

Doctors may recommend the following treatments:

  • Injections
  • Pain medications
  • Physical therapy
  • Psychotherapy
  • Yoga
  • Acupuncture
  • Chiropractic manipulation
  • Radiofrequency neurotomy

Most patients with just whiplash return to reasonably normal lives in a few months.  In severe cases, some car accident victims may have a lifetime of chronic pain due to the scar tissue left over from the whiplash. Older victims usually have a more difficult time fully recovering than younger victims because the tissue is not as resilient. Women are also more prone to long-term whiplash damage than men.

Make the call to an experienced North Carolina and Virginia car accident lawyer

Both North Carolina and Virginia are fault-car accident states. This means injured victims need to prove that another driver or another responsible party caused your injuries. Victims who can prove fault are entitled to payment of their reasonable medical bills, lost wages and pain and suffering. Proving fault and getting a just recovery requires the help of a respected lawyer. And of course, we know car accidents also occur while people are ‘on-the-clock’ for their employer. Because we also specialize in workers compensation in both Virginia and North Carolina, we can help with that portion of your claim as well. Joe Miller Esq. has been helping injury victims get justice for more than 30 years. To arrange a free consultation, please phone (888) 694-1671 or fill out my contact form.

Major Steps to Take after a Virginia or North Carolina Accident Occurs

Posted on Tuesday, May 1st, 2018 at 10:48 am    

Car crashes can be frightening. It’s hard to know who to call, what information you need, what evidence is needed, or how to care for the injured. Certainly, nobody wants to get into an accident – but it helps to have a plan in case a crash does occur. Almost everyone will have an accident in their lifetime.

The best plan is to contact an experienced car accident lawyer as soon as possible. The attorney will explain your rights and guide you through each stage of the claims and litigation process. A second plan is to make sure you have your cellphone with you. The phone should be charged and should have access to the Internet. With your smartphone, you can review our blog for general suggestions.

Key things to consider and be ready for if an accident happens

  • Stay at the accident scene. If you drive away from the accident site and anyone is injured, you can be cited for a hit and run offense. If someone is hurt (either a passenger or the occupant of another car), that person needs medical help. You should either call the police or a local hospital or doctor’s office and ask for assistance. You can reach the police by dialing 911. If you leave the accident site, even if it is not a hit and run case, your flight may used against you. Jurors and insurance companies may believe you wouldn’t have left the scene if you didn’t cause the accident. You should get to where it’s safe. For starters, this means getting off the center of the road and off to the sidewalk or another safe place. Make sure the engine is turned off. Turn on the hazard lights.
  • Determine if anyone was hurt. Nobody expects you to b a doctor. But most people understand the signs of being hurt. Victims may bleed. They may faint. If they can talk, they will tell you themselves that they are in pain. Normally, the police or a hospital will arrange for an ambulance or a first-aid service to come to the accident site and render assistance. Most victims are taken to a local emergency room for treatment. If you suspect that you yourself were hurt in any way, you should arrange to go to the local emergency room. Early treatment can help your recovery process. If you delay getting medical attention, the insurance company may claim you weren’t seriously injured. You should also follow up with your family doctor as soon as you can.
  • Exchange relevant information. It’s generally a good policy to exchange basic information. It may even be a requirement of law. Your lawyer can tell you what information you must disclose. Typically, drivers should exchange:
    • Their name
    • Their insurance information
    • The make, model, and year of the cars
    • Their driver’s license numbers

When you speak with your lawyer, he can explain what information is not required to be exchanged. Generally, drivers shouldn’t discuss how the accident happened. NEVER admit any fault, or say you are “sorry,” even it sounds nice. That will be determined later. As a general rule, it’s not necessary to give your address and phone number, unless asked for by the police.

  • Take pictures. Another good reason for having a charged cellphone is so that you can take photographs. You should take pictures of the following:
    • The damage to the cars – make sure to take pictures of all the vehicles
    • The traffic site – this includes any traffic signals and the lanes of traffic. Pictures should note street names, any obstructions, and anything unusual about the location
    • The witnesses, drivers, and passengers – if they don’t object. Don’t be afraid to show the cuts, bruises, and injuries – while being respectful.
    • Any skid marks or debris.
    • Evidence of intoxication of defendant drivers-especially if they are stumbling or slurring their speech-video them!
  • Talk with a trusted North Carolina or Virginia car accident lawyer. The lawyer will help calm you down. The lawyer will explain any legal answers and questions. He’ll also review all practical steps you need to take to put your case in the best possible light.
  • Cooperate with the police. Standard police procedure is to:
    • Determine if anyone is injured and help them get medical care
    • Get the relevant information such as driver’s license and registration information
    • Clear the accident site so that nobody else runs the risk of getting hurt
    • Speak with any witnesses
    • Prepare a police report which your lawyer will review so that he knows how to start the litigation process and who is at fault
  • Call your own insurance company. You should let your own insurance company know about the accident. They may want to send someone to the accident site. They will almost certainly want to inspect the damage to your vehicle when they get the chance. Your insurance company will help arrange a tow for your car to a local repair shop.

There are other precautions and plans drivers should consider. The car should be stocked with different items to handle different situations. A car should include:

  • Blankets
  • Flashlights
  • Some way to keep warm if the car heater doesn’t work
  • Some non-perishable food

When you get home, you should note the time and date of the accident and what the weather conditions were. Try to remember how fast each car was going and which directions they were going.

Proper planning helps determine who caused the accident. Planning helps verify your damages which include:

  • All reasonable medical bills including hospital surgeries, doctor visits, physical therapy, rehabilitation costs, medical equipment, and medications.
  • Your daily physical pain and emotional suffering
  • Payment for any scarring or disfigurement
  • Lost income and the inability to work
  • Property damage
  • Other relevant damages

Talk to a respected North Carolina or Virginia car crash lawyer as soon as the accident happens

Attorney Joe Miller Esq. has been fighting for the injured for more than 30 years. He’s helped thousands of people get justice in both Virginia and North Carolina He’ll fight to get you the damage award you deserve through a strong settlement or a jury verdict.  For hep now, please phone (888) 694-1671 or complete the contact form.

Experienced North Carolina and Virginia Counsel for Every Type of Car Accident

Posted on Friday, April 27th, 2018 at 10:20 am    

Every car accident happens in a different way. How the crash happens is a strong indicator of which driver was at fault. For example, almost all read-end collisions happen because one car was struck in the rear by another driver who wasn’t paying attention. How the accident occurred also indicates what injuries are likely. Again, in a rear-end collision, the occupants of the car that is struck usually suffer whiplash and other soft-tissue injuries.

Attorney Joe Miller works with the police and investigators to determine how the crash occurred. If necessary, his team speaks to all relevant witnesses including the passengers in any cars and any bystanders. The good news is that in most circumstances, the rear-end collision scenario requires little investigation. Some of the other kinds may require more intensive investigation. What is most important is that you do not say something early on that you do not realize implicates you in some level of fault. In Virginia and North Carolina, that could mean the end of your case.

Common kinds of car crashes

Most car crashes fall into one of the following categories:

  • Rear-end collisions. Most rear-end crashes happen when one car is stopped waiting for a traffic light to turn or waiting their turn to proceed through a stop sign. The car behind the stopped car is usually traveling too fast and fails to stop in time. Often, the failure is because they are distracted because the driver is too tired, looking at the scenery, texting while driving, or for other reasons. The bumper and rear of the car in front usually require repairs. The front and hood of the second car (the one that causes the crash) may also require maintenance. Whiplash, soft-tissue damage to the neck, is a common injury to the driver and passengers in the front car.
  • Head-on crashes. This type of accident usually happens because one driver is in the wrong lane of traffic. Drunkenness can cause a driver to veer into an oncoming lane. Driver distraction can also cause a driver to swerve into the other lane. Some drivers get confused and go the wrong way. Head-on collisions often cause death and serious injuries to the occupants of both cars. When cars strike head on, the impact is worse than most types of accidents because the speed of the cars is combined. For example, if you are going 30mph and the car in the wrong is going 20mph towards you – the crash is comparable to one car striking another going 50mph. If anyone is killed in this type of crash, we file a wrongful-death claim on behalf of the family members of the deceased.
  • T-bone collisions. These crashes, also called broadsides and side-impact crashes, involve the front of one car striking the side of another car. These crashes often happen at intersections when one driver runs through a red light or through a red or yellow traffic signal or stop sign. The person in the struck vehicle often suffers catastrophic injuries or dies because the side of the car offers little protection. The driver in the car where the front is damaged can suffer serious injuries, too. Generally, the car that strikes the car in the side is the one that caused the accident. T-bone collisions are dangerous because both cars may spin out of control causing havoc on the road for all nearby drivers.
  • Sideswipes. Sometimes the side of one car strikes the side of another car. This often happens if one car passes too closely to another car. It can also happen when two cars are merging and neither driver waits for the other driver to slow down. The danger in sideswipe accidents is that one or both cars can then veer into other lanes of traffic striking other cars. Determining fault in sideswipe accidents often depends on who was passing and which car had the right of way during the merge. Typically, the passenger side of one car strikes the driver side of the other car. Two cars can also collide with each other if they are going in opposite directions and both aren’t driving in the center of their lanes.
  • Car rollovers. Some cars like SUVs and jeeps have a different center of gravity than standard vehicles. Flips generally occur if a car is going too fast while the car is in a turn. If a car rolls over, the crushed hood and other vehicle damage can kill the occupants. Survivors often suffer severe injuries including traumatic brain injury, spinal cord damage, and paralysis. Cars can also roll over if they strike an object in the road such as a large pothole or a dead animal. In some cases, if the impact from a rear-end collision is severe enough and occurs at high speed, it can cause the struck vehicle to roll over. We have seen drivers and passengers actually ejected from vehicles due to the impact and rollover.
  • Single-vehicle collisions. Many deadly and serious accidents happen because a driver was distracted, was speeding, or was driving recklessly. Single-vehicle accidents include striking a traffic pole or other object, veering off the road, and rolling over. Typically, the driver is the one at fault. Any passengers in the single car should have a claim against the driver and the owners of the vehicle. Even if the driver is uninsured, if the passenger has uninsured motorist coverage on his or her vehicle, even though it was not involved in the accident, that coverage sticks to the passenger like glue and will cover the passenger for the accident.
  • Crashes involving multiple cars. These are very difficult cases which require the experience and resources of a respected North Carolina and Virginia car accident lawyer. They can happen for different reasons: One car may driver into the lane of traffic of other cars. A car may flip over. A truck may spill its cargo causing all cars around the truck to change their traffic patterns. In addition to the initial car or truck that caused the accident, other drivers may be liable too. In multi-vehicle crashes, people often die or suffer permanent injuries. We recently settled a case involving two vehicles and 10 (ten) injured people. We represented five occupants of one of the cars.

Accidents happen for many other reasons:

  • One driver is usually violating a traffic law
  • A driver may be intoxicated or under the influence of alcohol-depending on the facts, this may result in higher damages, and punitive damages against the drunk driver
  • Many drivers are texting while they drive.
  • Drivers may hit you and then run instead of having the decency to identify themselves.

In many car accidents, more than one person may be responsible. The owners of the car can be held liable if someone else used their car with their permission. In North Carolina, a Bar may be responsible if they served alcohol to someone they knew or should have known was intoxicated and who then caused an accident due to drunk driving.

Speak with a strong North Carolina or Virginia car accident lawyer today

Delay can hurt your case. It’s best to inspect the accident scene and speak to witnesses as soon as possible. Attorney Joe Miller Esq. has been fighting for injured residents for more than 25 years. He understands how to prove fault. He’ll demand the right amount of damages for your pain and suffering, medical bills, and lost wages. For help now, please call (888) 694-1671 or fill out the contact form.

Restaurant Workers and N.C. Workers’ Compensation

Posted on Friday, May 19th, 2017 at 12:59 pm    

Restaurant workers often suffer work-related injuries for a variety of reasons. Many service establishments are understaffed The work hours are irregular causing many workers to be tired. There’s constant commotion between the dining center and the kitchen. The quarters are typically quite tight. For many cooks and servers, getting hurt is almost a prerequisite for the job. Minor injuries can often become major injuries. Some injuries can be permanent and prevent the worker from ever working again.

It doesn’t matter if a worker works full-time or part-time as long as they are an employee. My office represents chefs, cooks, servers, bussers, dishwashers, hostesses and maitre’ d’s, delivery drivers, and anyone who works in any type of restaurant.

Common restaurant- related injuries

Restaurant workers can suffer the following types of injuries:

  • Lifting injuries. Workers often have to lift large bags or items because food is often delivered to the restaurant in large quantities. Any worker who is hurt lifting, carrying, or pushing these large containers has the right to bring a North Carolina work injury claim based on the theory that the injury was due to a work-related accident.
  • Burn injuries. Any contact with a stove, oil, hot grease, scalding hot coffee, or any hot item can cause first, second, or third-degree burns which can require multiple skin grafts. Burns often cause disfigurement.
  • Back and neck injuries. It’s easy to wrench your back or twist your neck while preparing and serving food or lifting heavy pots, pans, or other food items. Most restaurant workers are on their feet all day long except for breaks. Back and neck injuries can cause chronic pain. Sometimes, injections can help. Often, workers have to take time off to manage the pain.
  • Cuts and lacerations. Anyone using a knife or chopping items to prepare feet, cut meat, trim, slice vegetables, or otherwise cut and dice food can suffer a cut or laceration. Cuts can lead to infections. If not treated properly and timely, an infection can require that an arm or hand be amputated.

Common causes of restaurant injuries

While there are many ways restaurant accidents can occur, these are some of the more typical causes and injuries.

  • Slips and falls. Floors at restaurants always need constant mopping because beverages or food falls to the floor and of course, grease. Servers often bang into other service workers or slip on greasy floors that are overdue to be mopped.
  • Mopping, snow, and ice removal. Floors must be continually cleaned of debris. The outside parking lots and entrances have to be shoveled and cleared so customers don’t slip and fall. This type of clean-up can cause back injuries or a slip and fall.
  • Criminal attacks. Because restaurant workers, especially cashiers, work with money, these workers can be the target of criminal attacks and muggings. Any violent crime which occurs while working is compensable in North Carolina, so long as it is not the result of a personal argument or situation.
  • Upset customers. Sometimes, a customer does worse than fail to leave a tip. An angry customer strikes a worker, that worker is entitled to workers’ compensation benefits if the strike causes injuries and is related to the work performed.
  • Explosions and product defects. Heaters, boilers, dishwashers, and other appliances that don’t work can cause explosions, electrical burns, and other serious injuries.

Chemicals used in the restaurant profession can also cause injuries. Loud noises can cause hearing loss or damage.

Repetitive stress injuries

Servers, food preparers, and busboys are constantly lifting and carrying plates and dishes filled to the brim with food. The constant movements can cause lifting injuries and repetitive stress injuries such as carpal tunnel syndrome. The argument that experienced North Carolina workers compensation lawyers use in repetitive stress injuries is that the repetition is covered as an occupational disease.

To be sure, these types of injuries are much more difficult to prove than a traumatic injury.  That being said, North Carolina work injury lawyers can often successfully argue that a catch-all provision of the state’s workers compensation law applies. That provision holds that a worker can obtain benefits if he/she can show:

  • That the work environment exposed the employee to a greater risk of developing carpal tunnel syndrome than for members of the general public and
  • That the work environment was a leading reason for the carpal tunnel syndrome.

These two conditions generally apply in restaurant work. Members of the general public may clean their dishes three times a day. They don’t carry plates filled with seven servings and they don’t carry and clear items hundreds of times a day. Doctors can usually verify that the repetitive stress injury was due to the restaurant work.

Injuries outside the restaurant.

Restaurants often employ delivery staff to transport meals to offices, homes, and venues where parties or celebrations are being held. Delivery personnel who get into a vehicle accident while traveling to these locations can suffer a full range of injuries such as broken bones, traumatic brain injury, and spinal damage. Drivers can also be killed. Any restaurant delivery worker who is hurt while making a delivery would be entitled to North Carolina workers’ compensation benefits.

Make the call to an experienced North Carolina restaurant injury lawyer today

If you are suffering minor aches or a major injury due to work at a fast-food restaurant, local diner, hotel restaurant, five-star attraction, or any type of food service establishment; you may be entitled to workers’ compensation benefits. Benefits include 2/3rds of your average weekly wage loss and payment for your medical bills. If you are permanently injured, you may be entitled to additional benefits.

North Carolina workers’ compensation lawyer Joe Miller Esq. has been fighting for the rights of injured workers for over 25 years. You may have a strong recovery coming your way. Please phone attorney Miller at (888) 694-1671 to schedule an appointment with a respected work injury lawyers.

Rating Guidelines for Upper Extremity Impairments in North Carolina

Posted on Monday, August 22nd, 2016 at 2:00 pm    

Here are more impairment rating guidelines for physicians to use in North Carolina work injury cases. The guidelines are meant to be a starting point. Doctors should also factor into their impairment ratings the oral examination, functional tests, diagnostic tests, and the prognosis for the injured worker.

For a deeper understanding of why the impairment ratings can impact directly the amount of benefits you deserve, watch this video by attorney Joe Miller. He has been a tough advocate for injured workers for over 25 years. His counsel includes working with workers and doctors to fight for the right rating for each worker’s unique set of physical problems.

Upper Extremities

Many of the decision points for doctors are medical terms of art. A few that can help guide the discussion are:
• Ankylosis is stiffness of the joint(s) due to abnormal adhesion and joint bone rigidity.
• Arthroplasty is an orthopedic surgical procedure performed to help restore function of the joints.

The upper extremities means the thumbs, fingers, hands, wrist, elbows, shoulders, and the arms. Doctors should use the follow guidelines to decide if the digit, hand or arm should be rated:
• If damage is limited to the digits (fingers) distal to the metacarpophalangeal joint, then the digit itself should be rated.
• If there is anatomical damage proximal to the metacarpophalangeal joint, a rating for the hand should be given, including any consideration for the digit as a percentage of the hand.
• If anatomical damage includes an area proximal to the elbow joint, the disability rating should be for the arm and include any percentage which would have otherwise been credited for the hand or digits.
“ANKYLOSIS” AND “LIMITED MOTION WITH PAIN.”
Fingers
• Ankylosis of distal IP joint (in optimum position) = 35% of digit
• Ankylosis of proximal IP joint (in optimum position) = 50% of digit
• Ankylosis of metacarpal-phalangeal joint (in optimum position) = 45% of digit
• Any of the above in malposition = up to 100% of digit
Wrist
• Ankylosis in optimum position = 35% of “hand”
• Ankylosis in malposition = up to 100% of “hand”
o Limited motion, mild = up to 10% of hand
o moderate = up to 20% of hand
o severe = up to 25% of hand

Elbow
• Ankylosis in optimum position = 50% of arm
• Ankylosis in malposition = up to 90% (Straightened position not as disabling as marked flexion).
• Limited motion and pain
o Flexion and extension (accounts for 60% of elbow function)
 20º motion in middle range = 35% of “arm” (80 to 100%)
 40º motion in middle range = 30% of “arm” (70 to 100%)
 120º motion in middle range = 5% of “arm” (45 to 160%)
o Pronation and Supination account for 40% of elbow function
 Total loss in neutral position = 25% of hand
 20º motion each way from neutral 20% of hand
 60º motion each way from neural 5% of hand
 Arthroplasty of elbow using prosthesis = 40% of arm
Shoulder
• Ankylosis in optimum position = 50% of “arm”
• Ankylosis in malposition = up to 80% of “arm”
• Resection end of clavicle (distal to coranoid and trapezoid ligaments) = 5% plus limitation
FRACTURES
• Fingers and Metacarpals. Mal-alignment, shortening, stiffening, etc., rated according to function of finger. Express as “percent of digit” if loss is distal to MP joint; otherwise, as “percent of hand,” calculated from the sum of each involved digit, reduced to its known percent of hand.
• Carpals: Rated according to function of wrist.
• Forearm fractures
o Mal-alignment. Rated primarily on limited motion in wrist joint. Add for angulation, shortening, weakness, etc. Express as “percent of hand.” Occasionally the elbow must also be rated for loss of motion, expressed in “percent of the arm” and the total impairment calculated from the sum of the parts reduced to their relative percent of the whole.
o Excision of fractured radial head. Full motion with no pain = 10% of arm. Otherwise rate on basis of loss of motion and pain in elbow and wrist.
o Excision of distal end of ulna. Rated on basis of adjacent joint function with minimum loss of 10% of hand
• Fractures of humerus
o Mal-alignment. Rated primarily on basis of limited motion and pain in shoulder and elbow joints, and expressed in “percent of arm.” Add for angulation, shortening, weaknesses, etc., not reflected in loss of joint function.
• Fractures of shoulder girdle. Rated according to function of shoulder joint. Add for pain and weakness in non-union.
• Fracture into a joint. In general, add 10% if minimal displacement, and more if joint surface is irregular. Any time a joint is entered surgically for repair or excision of a part, the minimum impairment is to be 10%
LACERATION OF THE HAND (TENDON, NERVE, JOINT, ETC.)
• Loss of sensation (complete and noticeable) (exclusive of tendon damage)
o ½ of distal phalanx = 25% of digit
o ½ of finger = 100% of digit
• Division of flexor sublimis with full extension of finger
o Tendon only = 10% of digit
• Division of flexor profundus
o Tendon only = 75% of digit
• Division of both profundus and sublimis tendons.= 90% of digit
• Arthrodesis of distal IP joint = 35% of joint
• Arthrodesis of proximal IP joint = 50% of digit
• Arthrodesis of MP joint = 45% of digit
• Above ratings are for arthrodesis in optimum position. Add for malposition.
• “Contractures” of joints or “limited motion and pain.” Impairment determined on basis of severity as compared to arthrodesis of the joint.
PERIPHERAL NERVE INJURIES:
(Rated on basis of loss in the “hand.” If lesion is high and involves structures above biceps insertion, then loss is rated on the “arm.”)
• Ulnar nerve injury
o Complete motor and sensory = 60% of “hand”
o Complete motor and partial sensory = 50% of “hand”
o Motor only = 40% of “hand”
• Median nerve injury
o Complete motor and sensory = 90% of “hand”
o Complete motor and partial sensory = 60% of “hand”
o Motor only to thumb = 35% of “hand”
• Radial nerve injury
o Motor and sensory = 75% of “hand”
• Above estimates are given prior to any reconstruction and may be reduced considerably by reconstructive surgery.
• If contracture has occurred in the digits, additional impairment should be added.

Speak with an Experienced North Carolina Workers Compensation Attorney Today

A slight variance in an impairment rating can be a huge difference in a worker’s wallet, particularly if the injured worker has returned to alternate employment and is earning the same as pre-injury. To help you get the right rating, it is crucial that speak with a knowledgeable North Carolina injury lawyer who understands the complex medical jargon and who has worked with work injury doctors. For help now, call North Carolina Workers’ Compensation attorney Joe Miller today at 888-667-8295. You can also fill out his contact form.

Rating Guide Criteria for Doctors in NC Workers’ Compensation Cases

Posted on Monday, July 25th, 2016 at 11:00 am    

The North Carolina Industrial Commissions provides guides to physicians for determining how to rate the impairments for specific types of injuries. The guidelines are just a starting point and not a precise definition. Doctors who are making an evaluation of the impairment rating of a worker can use the guides but they should also factor in the intangible factors such as the amount of pain the worker can endure, how weak the employee is, the dexterity of the worker and other factors.

The guides are for injuries to the upper extremities, lower extremities and the spine. In North Carolina work injury cases, the doctor examines the affected body part and then assigns an impairment rating based on how well or how poorly the worker can use that part. Oftentimes, the doctor defers to a functional capacity examination (FCE) to help determine the level of loss of function. For example, the doctor may say the worker has 20% permanent impairment in his or her right upper extremity (arm). The impairment rating is just one factor in the amount of wage loss benefit the employee will get and the length of those benefits.

The final impairment rating should be based on the physicians’ knowledge, the clinical examination of the patient, and the doctor’s experience.

Some Recent Concerns by Doctors about the North Carolina Impairment Requirements

Some of the more recent issues that doctors and lawyers have raised about when and how to do their impairment ratings are:

Rating and Release

Due to some changes in the law, impairment ratings are becoming more and more important in North Carolina work injury cases.

Recent changes, for example, allow a worker to be forced to engage in ‘fake’ jobs if some residual disability prevents him from actually getting and keeping a job, and the doctor agrees it would help the injured worker, regardless of whether or not he has reached “maximum medical improvement”. This change has meant more litigation, between the employer and claimant, about the ability of the worker to perform the tasks in a given available job. The ratings, along with the analysis of the worker’s physical limitations can help or hurt the employee’s argument that he/she is not able to do the specific available job.

The rating can be given when the patient has reached maximum medical improvement even though the doctor may have already concluded that additional surgeries or additional medical treatments will not help the worker.

The North Carolina Industrial Commission guidelines for impairment ratings are not the same as the American Medical Association ratings. There is not a direct correlation between the two. Doctors, in North Carolina work injury cases, should begin with the Commission guidelines because those guidelines were designed to match the North Carolina Workers’ Compensation Statute.

The Right of the Worker to Get a Second Opinion as to a Rating

The employer is obligated to pay for the first medical opinion and treatment as to any permanent partial impairment. The employee can get a second medical opinion with a doctor of his choosing only as to the rating – at the employer’s expense, after the employer obtains a rating and where the worker is dissatisfied with the impairment rating offered by the worker’s original treating doctor. The employer and insurance carrier can also request that a second medical opinion be obtained. In some cases, such as where the worker does not have legal counsel, the Commission may recommend that there be an independent medical opinion. Litigation often centers around the situation where the two medical opinions contradict each other. Workers should review the right to a second opinion with an experienced North Carolina Workers’ Compensation attorney.

For a more in-depth discussion of your rights to a second opinion under NC Workers Comp Law, Click Here.

Medical Records

The medical provider should understand that the following people are entitled to medical rehabilitation records, the testimony of the doctor, and the opinions of the doctor – as a matter of course:

  • The patient if not represented by an attorney
  • The patient’s counsel
  • The employer or the insurance carrier, usually through their attorneys and/or nurse case managers or insurance adjusters.

If one side (employer or employee) has the records, then the other side should be able to get those records, without charge. In most respects, therefore, at least as to the employer and its representatives, the rules and laws on privacy and privilege as to your medical privacy do not apply.

The medical records, along with the history and patient notes, can often help determine if the work injury is compensable. For this reasons, workers should consult with their work injury lawyer before seeing their doctors. The lawyer can help explain what questions may be asked. Submission of the medical records and opinions can often mean that there is less of a need to depose the treating doctor – depending on how clear and concise the records are.

Rehabilitation Personnel

Insurance carriers often use nurse case managers to monitor the care the patient is getting, to help the employee keep scheduled appointments and take the prescribed treatments. These nurses may also help the employee return to a job they can manage. The Workers’ Compensation law does allow for these nurse case managers.

Many employees, employee counsel, and even the doctors have complained that the nurse case managers are not acting as facilitators. They are acting as advocates for the employer or insurance company. Doctors should understand that the nurses are to act only as facilitators. Nurse case managers cannot direct the worker’s treatment. Decisions with regard to the patient’s treatment always remain with the worker’s treating doctor. If the employer attempts to direct treatment in opposition to the worker’s doctor, the worker can and mostly likely should request that the Commission put a stop to such behavior.

Doctors should also understand that the nurse case manager does not have the right to be present in the examination room at all times. The patient is entitled to a private conversation with his or her doctor.

Call North Carolina Work Injury Attorney Joe Miller for Help Now

If you were hurt while working on the job, you need a lawyer who will fight for you. A strong advocate understands the legal and medical complexities of workers’ compensation Cases. Often the difference between a good result and a bad result can be the attention to detail and a full understanding of the law. To speak with a strong advocate today, please phone lawyer Joe Miller today at 888-667-8295 . You can also complete his contact form.

Functional Capacity Exams (FCE’s) in North Carolina and Virginia Workers’ Compensation

Posted on Wednesday, July 20th, 2016 at 2:00 pm    

A Functional Capacity Evaluation (FCE) is oftentimes performed in both Virginia and North Carolina Workers’ Compensation cases. It is typical performed once the injured worker has reached MMI (maximum medical improvement) as determined by his or her authorized treating physician.

The purpose of the FCE test is to determine the severity of a physical impairment. It is used to evaluate the extent of the impairment, the likelihood of the success of future treatments, and mostly the ability of the worker to do his or her job. The test is usually performed by an occupational or other physical therapist – someone who understands how impairments impact various occupations. It usually lasts several hours, and sometimes even takes two office visits to complete.

Attorney Joe Miller has been advising injured workers for over a quarter century. Part and parcel of this advice is explaining some procedures such as functional capacity exams (FCEs) that are done for evaluation purposes only. He helps the client prepare for the exam by informing the worker what to expect and how to prepare for the exam ahead of time. It is his attention to all the little details and his strong advocacy that has enabled him to help thousands of injured workers obtain significant recoveries.

What happens at the functional capacity evaluation?

 

The physical therapist will typically examine the following:

  • The worker’s functional abilities via various modes of testing
  • Very specific testing including range of motion, lifting capacity, pain tolerance and more
  • Evaluation as to whether the employee can return to the job he/she did before the injury
  • Sometimes there is commentary on what might help the employee get back to work
  • What other medical treatment might help
  • What physical limitations any potential employer will have to consider for this particular employee
  • Permanent partial impairment ratings for the injured body part.

The entire test can take several hours. The employee will be asked to perform many tasks such as bending, carrying objects, walking, climbing, pulling, fingering, kneeling, talking, testing his/her range of motion, balance, and other work factors. The occupational or physical therapist will tackle the limitations from many vantage points such as sitting and standing.

The physical therapist will typically then use the standards set forth by the U.S Department of Labor’s guidelines to rate the employee’s work capabilities based on the testing performed.

  • Functional Capacity Exams (FCE’s) in North Carolina and Virginia Workers’ CompensationHere, the worker may be required to move or lift up to 10 pounds.
  • Here, the employer can comfortably handle 10 pounds and sometimes up to 20 pounds.
  • Workers who can do medium work can exert between 10 to 25 pounds comfortably and can handle up to 50 pounds on occasion.
  • Heavy. Here, workers can handle 25 to 50 pounds frequently and sometimes up to 100 pounds.
  • Very heavy. This worker can exert up to 20 pounds constantly, 25 to 50 pounds frequently, and over 100 pounds occasionally.

The Role of the Workers’ Compensation Attorney

The test is sent to the treating physician. The employer or insurance pays the FCE professional so it is crucial to review what happens with your attorney before you attend the evaluation. The physical therapist and employer is looking to see if you are faking or exaggerating your physical difficulties.

WARNING: There are some known FCE facilities that are “rigged” against employees, so it is critical that you inform your attorney as to the FCE facility where you are referred as soon as possible. Your attorney may be able to get the facility switched, especially if your treating doctor did not specify the facility where the testing will be performed in his or her referral.

The lawyer will explain what happens, what your rights are, and that you should not be a hero – you should say what hurts you and where. In some cases, particularly in North Carolina, your attorney may ask for a reevaluation of the FCE if the disability rating by the doctor appears to be incorrect. Your attorney will work hard so the FCE professional has the correct job description and that the facility is known as one that conducts unbiased testing.

How the FCE is used

There are two types of FCE tests:

  • Job Specific. This type of FCE focuses on the ability of the worker to perform the tasks of a specific job. Sometimes it is done at the therapist’s office but it can also be done at the job site. The aim here is to see if the employer can do his/her prior job – with our without restrictions.
  • General Purpose/Combination. These more common FCE’s are usually done if the job no longer exists or if the job functions have not be set, or if we are attempting to learn the employee’s capabilities in the previous job and in any potential alternate job. The tests are standardized. The test helps to determine if the worker can do future jobs that arise.
  • Permanent Impairment Ratings to Body parts--The FCE can also be used to determine the impairment rating for any worker with a permanent injury in a ratable body part. The impairment rating is a percentage that is assigned to the particular body part. For more on Permanent Impairment Ratings and what they mean, please see this video.

 

Contact an Experienced Work Injury Lawyer Before You Take a Functional Capacity Exam

The employer and insurance company are seeking to get you back to work as soon as they can so they can stop making benefit payments. North Carolina and Virginia lawyer Joe Miller has the experience and skills to fight early returns to work. He also understands how permanent impairment ratings should help you not hurt you. If you were hurt on the job, call attorney Joe Miller for help at 888-667-8295. You can also complete his online form for an appointment.

Medicare Set-Asides (MSA’s) in North Carolina Settlement Agreements

Posted on Thursday, October 8th, 2015 at 2:28 pm    

Employees who have an MSA (Medicare Set Aside) account as part of their settlement should get a separate check from the employer or insurance carrier to cover the cost of future medical expenses. Self-administered accounts should be deposited into a separate account that is used just to pay for the employee’s medical expenses – and no other expenses. Some MSAs are not self-administered. Here, the employee will normally get a yearly check for the anticipated medical bills. (more…)

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