North Carolina and South Carolina Personal Injury Lawyer Blog

Teenage Girl Visits Doctor's Office Suffering With DepressionIn many cases, a person is suffering from serious health conditions but has not stopped working yet, and they are worried that their conditions will get worse to the point that they will be unable to continue working. In other cases, individuals have already had to reduce their time on the job and don’t know if there current level of work will make them ineligible for benefits. One of the initial questions to consider when deciding whether are not you should file for Social Security Disability benefits is whether or not you have a “severe” mental or physical impairment.

A “severe” physical or mental medical impairment is defined by the Social Security Administration as an impairment that prevents a person from engaging in any substantial gainful activity. remember from our previous blog posts that substantial gainful activity is the term Social Security uses for working and earning more than $1,070.0 a month, or $1,800.00 if you are blind (1,090 and $1,820 in 2015). A “severe” impairment is one that significantly limits your ability to perform as least one work-related activity such as:

•walking, sitting, standing, lifting, pushing, pulling, reaching, carrying or handling
•hearing, speaking, and seeing
•understanding and following simple directions
•interacting with co-workers and supervisors, and adjusting to changes in your work.

A non-severe physical or mental impairment is one that has only a minimal effect on a person’s ability to perform basic work activities. In many cases, an individual may not have one health condition that would be considered severe but has multiple health problems that prevent them from working on a full time basis. In these situations, the Social Security Administration will look at all of your medical conditions and determine whether the combined effects of all your conditions prevent you from being able to work full time or at SGA levels.

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BricklayingIncreasingly and disturbingly, employers are attempting to claim an employee is an independent contractor. Though there are many benefits to employers in using independent contractors, many times an employer is attempting to improperly categorize an injured worker as an independent contractor in order to avoid liability for work-related accidents.

Under South Carolina Workers’ Compensation law, only “employees” are entitled to benefits under our laws. This term is broad but, essentially, if your employer proves that you were in fact an independent contractor rather than an “employee,” you could be denied the benefits you deserve if you are injured on the job. Fortunately, just because your employer says you are an independent contractor, does not necessarily mean that you actually are an independent contractor; it is much more complicated that a simple label.

These complicated cases require a deep analysis of the work relationship an employer and an employee had at the time the worker was injured.

Who Determines Whether I Am An Independent Contractor or Employee?
South Carolina Courts look to four different factors in determining whether a worker is an independent contractor or an employee. These four factors are: 1) the employer’s right to exercise or actual exercise of control over the details of the work and how it is performed; 2) the method of payment; 3) who furnishes the equipment; and 4) the employers’ right to terminate the employment. Generally, these factors are weighed by the Court to make a determination.

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Before operationGenerally, workers’ compensation has the right to direct medical care when they have accepted compensability for the specific part of your body, always subject to supervision by the North Carolina Industrial Commission. But this right is not absolute.

Am I Entitled to A Second Opinion?

There are provisions to obtain a second opinion for treatment with another physician. Sometimes you can simply call the adjuster and give them the name of another doctor from whom you want to receive treatment. However,usually it is not that easy. The adjuster may want to keep control over what doctor you see for a second opinion for many reasons that are important to workers compensation. Sometimes there is common ground as to who you can see for a second opinion, sometimes it is highly disputed. Sometimes the doctor you want to see does not want to treat workers compensation claimants, or, after reviewing your medical records, may not feel that they have anything to offer you. GS 97-25(b) sets out the provisions for a second opinion at workers’ compensation’s expense. Note that there is a 14-day notice requirement for a second opinion request, which will be even more significant if you would like to change providers. There are times when it may be advantageous to pay for the second opinion yourself. If there is a dispute between your treating doctor and the recommendations of the second opinion, the Industrial Commission always has the authority to decide who will be authorized to provide further treatment.

If the treatment that the workers compensation doctor is providing is no longer effective, or after talking with the doctor and sharing your concerns, you are still having a real problem with the recommended care, you probably should seek a second opinion. Especially when it comes to invasive treatment such as surgery.

Most doctors won’t operate on unwilling patients for obvious reasons. The general rule is that where the surgery is of serious magnitude and risk, involves much pain and suffering and is of uncertain benefit, the refusal of the claimant to undergo surgery is reasonable and will not prejudice the claim. Watkins v. City of Asheville, 99 N.C. App. 302, 304, 392 S.E.2d 753, 756 (1990). That is not to say, however, that you can simply refuse surgery and there not be any consequences of push-back from workers compensation. It gets complicated.
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Thumbnail image for teendriver.jpgIf you want to do everything possible to keep your teen driver safe, perhaps it is time to put them in the seat of a BMW – or at least the company’s skills program for new drivers. The BMW Teen Driving School (BMW TDS) is a grassroots, community outreach initiative. Developed by BMW, it gives teenage drivers the important life-saving skills and experience they need behind the wheel. The program is based on the teen curriculum currently taught at the BMW Performance Center in Spartanburg. It is available at no charge to all drivers between the age of 15 and 21, so long as they have a valid learner’s permit or driver’s license.

Students are taught in a controlled environment setting. They are given the opportunity to not only drive a BMW, but to take part in driving exercises that teach them how to respond in real-life, emergency situations, including:
• Recovering from a skid or slide • Maintaining control of the vehicle and regaining control when the circumstances warrant • Accident avoidance techniques • Handling an unexpected braking or panic stop • Learning how to focus on where their vehicle needs to be, rather than fixating on what they are attempting to avoid
Classes also include airbag deployment demonstrations, trucker blind spot demonstrations and driver awareness demonstrations to show teenager drivers firsthand the dangers of texting while driving. The school travels to a variety of locations nationwide so parents in South Carolina, as well as parents in other states, can get their teenagers a seat in a BMW TDS.

How One Father Is Using His Own Tragic Loss to Help Others
Motor vehicle accidents are the leading cause of death for teenagers in the United States. According to statistics from the National Highway Traffic Safety Administration (NHTSA), more than 5,000 teenagers between the ages of 16 and 21 are killed in vehicle-related accidents each year. Another 300,000 young drivers sustain injuries in these types of accidents. As the majority of accidents are preventable, these are troublesome numbers.

While parents cannot be there to protect their children every moment, there are actions parents can take to help give their children the knowledge, skill and experience they will need to be able to make responsible and safe decisions when they get behind the wheel.

After one father lost two of his sons in a tragic car accident caused by reckless driving, he decided to help others by starting his own teen driving safety school, B.R.A.K.E.S. (Be Responsible And Keep Everyone Safe). Since he began giving this free, four-hour safety class, more than 12,000 teenagers and their parents have come through his doors.

Schools like the BMW TDS, the Mercedes-Benz Driving Academy and B.R.A.K.E.S. are striving to give teenager drivers the real-life experience they need to stay safe on today’s road. If you have a teenager who is getting ready to drive, check for a teenage driving school in your area.

Sources:
• National Highway Traffic Safety Administration: http://www.nhtsa.gov/Driving+Safety/Teen+Drivers/Teen+Drivers+-+Additional+Resources
• BMW: http://www.bmwusanews.com/newsrelease.do;jsessionid=4DAE27BA72CE917F842DDD2F5BF7B690?&id=298
• OC Register: http://www.ocregister.com/articles/driver-638030-driving-teen.html

googleglasses.jpgOne of the latest and most sought-after technological advancements is Google Glass. Google Glass is a wearable technology fitted with an optical display that allows wearers to see digital information, like that from a smartphone, right in front of their eyes. With Google Glass, wearers can see as they would through ordinary glasses while using the device hands-free. They are able to receive phone calls, read emails, and engage in any other online activities. A benefit of Google Glass is that it gives people a chance to continue to stay connected, even when away from the desk, when enroute to a meeting, or during other activities. Google Glass has even been introduced into medical procedures, showing promise as a training tool.

The Impact Google Glass May Have on Your Vision

What about the drawbacks? What risks does Google Glass pose? Could the design of Google Glass be a contributing factor in car accidents?

WISTV recently reported that one of the primary concerns with Google Glass is the impact it may have on a driver’s vision. According to the report, the device has proven to limit peripheral vision. The product may also create blind spots, which could potentially lead to accidents under the right conditions.

The study did not find fault with the technology itself. It was simply the design of the glasses which seemed to present a problem with drivers’ peripheral vision. Even drivers who turned off the glasses before getting behind the wheel of a vehicle found that the right side of the glasses created a substantial loss of sight in the upper right portion (where the main component of the device is located) of their peripheral vision.
As peripheral vision is fundamental to maintaining safety, drivers, bicyclists, motorcyclists and pedestrians wearing Google Glass could be at risk. They may be unable to perceive a hazard present in the blind spot created by the design of the device.

Car Accident Statistics in South Carolina
Of course, there is also the issue of distracted driving. Drivers who are distracted by a phone call or a text message may be more prone to a distracted driving accident.

About 10 percent of all fatal injury accidents are the result of distracted driving. The South Carolina Department of Public Safety reports there have been 614 fatal car accidents so far this year, resulting in 659 deaths. This number is only 23 less than the previous year, and the holiday season — one of the most dangerous times of the year for drivers — is still to come.

The sad fact is that a large percentage of these fatal accidents were preventable, including those caused by the use of smartphones and other electronic devices. Before you get behind the wheel, remove all visible obstructions and eliminate any potential distractions. A few small steps could end up saving your life or the life of someone you love.

woman in wheelchair.jpgDeciding to apply for Social Security Disability is a hard decision for many people. It means coming to grips with the idea that you may not be able to return to work because of health problems. Almost everyone who applies for Social Security Disability has been out of work for some amount of time. If you have applied for Social Security Disability, or you are considering applying, you should know the requirements to be eligible.

Are you still working?
Lots of people with serious injuries or health conditions ask if they should apply for disability while they are still working. Even if you have a serious injury or health condition that may completely prevent you from working in the future, you won’t be eligible if you are still engaged in “substantial gainful activity” (SGA is the phrase Social Security uses for working and earning more than $1,070.00 per month, or $1,800.00 if you are blind. These amounts go up to $1,090 and $1,820 in 2015).

Are you under the age that Social Security calls “full retirement age”? The age to draw full Social Security Retirement benefits is on a sliding scale now, but basically you must be younger than 66. If you have reached full retirement age, and then become disabled, you will get Social Security Retirement, not Social Security Disability.

Have you worked 5 of the last 10 years and paid into the system?
Social Security Disability is a long term disability insurance program, and you must pay into the system to get benefits. If you have not paid into the system, you won’t be eligible, but you may still be eligible for Supplemental Security Income (SSI) based on low income.

Do you have a condition that will prevent you from working for at least 12 months?
You don’t need to be out of work twelve months before you apply, but the condition must be one that prevents you from going back to work in less than a year. That issue will depend on what your doctors think about your problem.

Will your impairments keep you from doing any work?
Even if you can’t return to your old job, Social Security will consider your ability to do other work activities based on your current physical and mental limitations. If you can do other work and earn at the level of Substantial Gainful Activity, discussed above, you won’t be eligible.

The Social Security Disability attorneys at Grimes Teich Anderson, LLP, can help you understand the eligibility requirements. If you have applied for Social Security Disability, we can help you get and present the information about your condition, your education, and your work experience to make sure you have the best chance to get the benefits that you may be entitled to. If you believe that you are eligible for Social Security Disability, or if you have been denied Social Security Disability benefits, we may be able to help.

veteran3.jpgThe Court in Wise v. Shinseki, No. 12-2764 (Vet. App. Apr. 16, 2014), held that (1) the VA does not satisfy its duty to assist a claimant if they fail to locate and obtain records when the VA is on notice that records supporting a claim may exist, and (2) the benefit-of-the-doubt-rule applies to secondary medical evidence such as treatises and medical journals.

George W. Wise was a U.S. Army World War II veteran
For his distinguished service from the beaches of Normandy, through the Ardennes, Rhineland, and central Europe, he was awarded the Bronze Star, the European-African-Middle Eastern Campaign Medal, and the World War II Victory Medal. Mr. Wise treated and evacuated soldiers at the Battle of the Bulge and helped liberate several German concentration camps, including Dachau, Buchenwald, and Landsberg.

In 1985, Mr. Wise was granted service connection for post-traumatic stress disorder (“PTSD”), at a rating of 10%. The rating was increased to 30% in 1989 and 100% in 2000. He passed away in 2008, survived by his wife, Ouida Wise. His death certificate lists his cause of death as cardiovascular disease, congestive heart failure, and chronic obstructive pulmonary disease. None of these conditions were referred to in his service medical records.

The Case

Mrs. Wise filed a claim for dependency and indemnity compensation (“DIC”) benefits from the Department of Veterans Affairs (“VA”) in December 2008, submitting a letter from her late husband’s VA treating physician stating that it was possible that Mr. Wise’s death was brought on in part by the stress from his PTSD. The physician’s opinion included an article from a 2007 medical journal which discussed that male veterans with PTSD were more likely to develop coronary heart disease. The VA Regional Office (“RO”) denied the claim, which Mrs. Wise appealed through the Board for Veterans Appeals (“BVA”) up to the U.S. Court of Appeals for Veterans Claims (CAVC). During this process, Mrs. Wise submitted numerous articles from journals and off of the Internet which supported to a certain degree the claim that PTSD could increase a man’s chances of contracted coronary artery disease. The VA did not obtain any records of Mr. Wise’s VA cardiology appointments. The VA’s expert, who was a VA medical professional, stated that accepting PTSD as a causal factor for coronary artery disease is speculative and not generally accepted in the scientific community. Relying on its expert, the VA rejected Mrs. Wise’s evidence that PTSD could be a causal factor in heart disease.

The Court’s Decision

The CAVC held that the VA does not satisfy its duty to assist a claimant if they fail to locate and obtain records when the VA is on notice that records supporting a claim may exist. The Court held that the BVA must “support its determination that VA satisfied its duty to assist with an adequate statement of reasons or bases.” In this particular case, the VA did not obtain the medical records for many of Mr. Wise’s VA cardiology appointments. This is important because many times the VA denies a claim because the veteran did not submit enough evidence to support either a current diagnosis of a condition or he or she does not submit enough evidence to show that the condition was caused or aggravated while in service. If the claimant put the VA on reasonable notice that the records exist, it is the VA’s duty to locate and obtain these records at the expense of the VA. A failure of the VA to do so could result in the VA failing to satisfy its duty to assist the claimant.

In a welcome move, the CAVC held that the BVA cannot reject scientific evidence on the grounds that it is not yet ‘generally accepted’ in the scientific community. The Court held that this directly goes against the benefit of the doubt rule. “[C]ontradicting articles indicate that the evidence on that issue may be in approximate balance, triggering the Board’s statutory duty to accord Mrs. Wise the benefit of the doubt.” The benefit-of-the-doubt-rule, detailed in 38 CFR § 3.102, states that “[w]hen, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.”

If you need help with your claim, let an experienced Veterans Affairs attorney at Grimes Teich Anderson assist you in receiving a proper evaluation by the VA. If the VA is unable to properly evaluate a claim, we are experienced in, and can represent you, before the U.S. Court of Appeals for Veterans Claims (CAVC).

workersinwarehouse.jpgAlmost all private sector employees in North Carolina are “at will” employees. That means that an employee is hired for an indefinite period of time and may be terminated for any reason or no reason at all, with or without notice, as long as they are not terminated for an illegal reason that is prohibited by federal or state laws.

Does Having a Contract Protect Me?
Some employees, usually medical or other professionals, actually have employment contracts, verbal or written, for a definite term of employment, or providing that employment can only be terminated “for cause.” However, even in some written employment contracts, there are provisions that the contract may be terminated “at will.”

North Carolina law has very limited exceptions to employment “at will” created by the courts and the legislature. The North Carolina courts have recognized that an employee cannot be terminated in violation of public policy. For example, an employee cannot be fired for refusing to violate the law at their employer’s request, for engaging in legally protected activity, or for opposing their employer’s activity that is illegal or contrary to public policy. The North Carolina Court of Appeals has set forth a rule that the public policy cannot be based on federal law, but must be set forth in North Carolina’s constitution, statutes, or regulations.

There are some other North Carolina laws which may protect an employee who is being fired depending on the circumstances. For example, an employee cannot be terminated for being absent due to jury service or for being subpoenaed as a witness for court proceedings. The North Carolina Retaliatory Employment Discrimination Act (REDA) prohibits discrimination or retaliation against an employee who engages in “protected activities” with regard to a wide range of areas, including workers’ compensation claims, wage and hour issues, workplace safety rights, mine safety and health, sickle cell and hemoglobin C carriers, genetic testing, National Guard service, juvenile justice system, domestic violence, pesticide exposure, and drug paraphernalia. North Carolina also has a Smokers Rights Act that is not limited to tobacco use and makes it illegal to terminate an employee for “the lawful use of lawful products during nonworking hours.”

Are There Special Protections for State Employees?
Employees of the State of North Carolina have protection from termination if they “blow the whistle” on violations of law, fraud, misappropriation, danger, or gross mismanagement, waste, or abuse of authority in or relating to any state programs and operations.

Employees of state and local governments and public school teachers have a broad range of additional protections relating to being terminated, which may include being terminated only for “just cause,” receiving notice of the reasons for the termination, and the right to a grievance, hearing, or other review if the employee feels he/she should not have been terminated.

What if I Have Been Discriminated Against?
Employees working in North Carolina also have rights under federal laws that protect employees from discrimination on the basis of such factors as sex, race, color, national origin, religion, disability, age, military service, use of employee or retirement benefits, and taking leave as a result of the serious health condition of an employee or their family members and/or as a result of the birth or the adoption of a child.

These laws do not apply to all employees and employers and there are many exceptions and exemptions. Below is a sample of federal laws which give employees job protection:

  • Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employers with 15 or more employees from discrimination because of race, color, sex, religion, or national origin
  • Age Discrimination in Employment Act (ADEA), which prohibits employers with 20 or more employees from discrimination because of age
  • Americans with Disabilities Act (ADA) and Americans with Disabilities Amendment Act (ADAA), which prohibits employers with 15 or more employees from discrimination because of disability
  • Family and Medical Leave Act (FMLA), which requires employers with 50 or more employees to provide unpaid leave to qualified employees for qualified purposes
  • Fair Labor Standards Act (FLSA), which prohibits employers from retaliation for exercising specified rights related to minimum wage and overtime protections
  • The Uniform Services Employment and Re-employment Rights Act (USERRA), which prohibits dismissal on the basis of an employee’s military obligations
  • 42 U.S.C. § 1981, which prohibits race discrimination in making of contracts, including employment
  • 42 U.S.C. § 1983, which prohibits violation of civil rights by persons acting under color of law
  • Employees have a limited time after their termination to take action if they feel their rights have been violated. For example, employees must file REDA complaints with the North Carolina Department of Labor within 180 days of their termination or they will loose their REDA claims. Thus, employees should not delay in seeking legal advice. An experienced employment law attorney at Grimes Teich Anderson can answer your questions and help determine if you have a case.

    shavebrush.jpgMost of the time, I think any day that ends in “y” is a good day to skip shaving. Sometimes I worry that as a lawyer, I should be clean-shaven and crisp all the time. That isn’t me. I think it started when I moved back to Western North Carolina and then I stopped asking for starch in my shirts. I don’t work on Wall Street or even at a bank, and as I have gotten older I worry less about how things look, and more about what gets done. This month, my three to five day beard stubble is IN. November is the time for No Shave November and Movember. I didn’t know there was a difference until someone asked me the other day if I was participating in No Shave November. I said “not exactly but I do think it is good to have a program about men’s health awareness like we do with October and Breast Cancer Awareness.” I was told that No Shave November is about fighting cancer, and it is not limited to men’s health or prostate cancer. That made me think, and when I realize I am wrong about something, I usually do a little research.
    No Shave November is an organization that grows awareness about cancer and raises money for the American Cancer Society. The movement is open to everyone who grows hair or just wants to help fight cancer. Participants should donate the money that they would spend on shaving and other hair grooming during the month to fight cancer. Movember is the organization that I was thinking about. Movember is a foundation based on growing moustaches in November to raise awareness about prostate and testicular cancers and men’s physical and mental health issues. Movember is more focused on just moustaches and men’s health. Movember has more guidelines and rules. It also requires more planning because you have to start on November 1 with a clean shaved face. You can’t just sort of fall into it when someone asks about your lack of shaving on November 4.

    I believe I had them confused, but after looking into both organizations, they both sound like worthy causes. Since I didn’t start promptly on November 1 and limit my facial hair to just the moustache, I think this year I am going to send some money to no-shave.org. Next year I will do Movember. (I am putting it on my calendar now, so I won’t forget. October 22 is my daughter’s birthday, so that will be a good day for the reminder). So many people have cancer and other serious physical and mental disabilities, we all know someone who has been affected. This is the season to be thankful for all that we have, but also to give of ourselves and help others.

    veteranuniform.jpgGrimes Teich Anderson will be closed on Veterans Day, November 11, in honor of our veterans. For Grimes Teich Anderson, this is not just a day off from the work we do serving our clients. Veterans Day holds a new , more important significance for us because of our own veteran, Tod Leaven. Tod leads our firm’s veterans law department, which includes assisting veterans with obtaining service related disability benefits. Who better to help and serve our veterans than an attorney who knows the military life and soldier side of the U.W. Department of Veterans Affairs?

    The importance of the date, November 11, often gets lost in the shuffle.
    Formerly known as Armistice Day, it is the date the armistice was signed between the Allies of World War I and Germany. This ended the hostilities on the Western Front, and took effect at 11:00 a.m. Paris time – the “eleventh hour of the eleventh day of the eleventh month of 1918.” The treaty is known as the Armistice of Compiegne after the location in France where it was signed. Hostilities on the Russian front and with the Ottoman Empire continued another six months until the Treaty of Versailles was signed, ending the war.

    World War I was significant in terms of the progression of the recognition of service related disabilities.
    World War I was the collision of the modern, industrialized world and warfare. The unfortunate result was a quantum leap in the ability of nations to engage in months and months of battle with superior weapons capable of generating previously unimaginable numbers of wounded and dead. As recent as the U.S. Civil War, a battle may last a few hours or perhaps a few days. Total casualties at the Battle of Gettysburg, which occurred July 1-3, 1865, were 51,000. This was the bloodiest of the Civil War. Nations weren’t capable of sustaining battles for much longer than that, as it had been since the dawn of time. The Battle of Verdun, however, lasted from February to December, 1916, and casualties for both sides totaled 800,000. The battle was marked by artillery fire at a level previously beyond the industrial capacity of nations.

    A sad consequence were reports of “shell shock,” which in many ways resembles post traumatic stress disorder. Early in World War I, soldiers from the British Expeditionary Force began to report symptoms after combat, including ringing in ears, amnesia, dizziness, tremor and hypersensitivity to noise. Most often there was no physical injury. It was assumed there was a l ink between the effects of the explosions of artillery shells and the symptoms, likely inflicting a hidden brain injury. Later, an alternative view developed describing shell shock as an emotional injury, instead of a physical injury. A lack of understanding caused some prosecutions for desertion of post and denial of pensions. Over time, this problem, which arises not just from heavy artillery fire but also from combat, was brought under the umbrella of posttraumatic stress disorder.

    Shell shock is the historical ancestor of posttraumatic stress disorder. Fortunately, advances in psychiatric medicine have led to better recognition and treatment of post traumatic stress disorder. The stigma of the “thousand yard stare” is gone, and veterans are encouraged to seek treatment. As it often happens, new medical conditions are poorly understood and not treated effectively when first recognized. Effective treatment, including counseling and prescriptive medication, is readily available now.

    We honor our veterans by recognizing the physical and mental consequences that can arise from their service. Veterans Day, 2014, is a fine time to pause and consider where we might be but for our nation’s military. The Carolinas are home to many active duty and retired military. Let us all make certain they feel appreciated on November 11.

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