North Carolina and South Carolina Personal Injury Lawyer Blog

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Sometimes it is easy to determine if someone is a veteran, but other times it can be pretty difficult. This brief article will shed some light on the Department of Veterans Affairs’ (“VA”) definition of “veteran” regarding benefit entitlement.

The pertinent statutes and regulations define “veteran” as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable” (38 U.S.C. § 101(2) and 38 C.F.R. § 3.1(d)). The three major elements of this definition are: (1) Service, (2) Active Duty, and (3) Discharge or Release.

It is important to note that the pertinent statutes and regulations do not require service in the armed forces. Rather, it states service in the military, naval, or air services. Including the word “or” in the definition means that the service does not need to be military. Including the broad word “services” greatly expands the scope of “veteran.” In addition to service in the traditional military, the VA includes service in the following as qualifying service:

• Public Health Service
• National Oceanic and Atmospheric Administration
• Environmental Science Services Administration
• Coast and Geodetic Survey
• Service in the Women’s Army Auxiliary Corps
• WWII Service in the Merchant Marine
• Secret Intelligence Element of the Office of Strategic Services
• Wake Island Defenders from Guam
• Service of certain civilians supporting operations during periods of armed conflict

Active duty includes any full-time duty in the Army, Navy, Air Force, Marines, or Coast Guard, with the exception of “active duty for training.” Usually the military will designate if a member of the National Guard or Reserves is active duty for training purposes only. The VA can override the military’s designation for a member of the Reserves if the VA determines that such service in the Reserves was actually for operational or support purposes even if the military designates it as for training purpose only. The VA does not have this same authority regarding the National Guard. Attendance as a Cadet or Midshipman at a U.S. Military, Air Force, Naval, or Coast Guard Academy, or attendance at a preparatory school for the above mentioned academies, qualifies as active duty. In order to be considered active duty in the Public Health Service, the National Oceanic and Atmospheric Administration, the Environmental Science Services Administration, and the Coast and Geodetic Survey, a person needs to have served full-time as a commissioned officer. Authorized travel to and from the prior mentioned active duty types also qualifies as active duty. It is important to note that active duty in the National Guard only qualifies a person as a veteran if that active duty was “Federal.” The activation of the National Guard for service to the individual state as opposed to service for the federal government does not qualify the person as a veteran. For example, if the National Guard is activated by a Governor to quell a state prison riot or urban looting, the service would not qualify the Guard members as veterans.

Finally, the veteran’s discharge must be under conditions other than dishonorable. There are multiple statutory and regulatory bars to VA benefits relating to the events that bring about someone’s discharge or dismissal. These are all very fact specific and could fill an entire treatise. However, there are three basic assumptions that the VA usually makes when reviewing a discharge: (1) an Honorable Discharge is always given under conditions other than dishonorable, (2) an Administrative Discharge (entry level separation, void enlistment, etc.) is always given under conditions other than dishonorable, and (3) a Dishonorable Discharge or Dismissal is always given under dishonorable conditions. Any other discharge usually requires some sort of extra determination by the VA. The general Statutory and regulatory bars to VA benefits based on discharge are as follows:

  • discharge as a conscientious objector who refused to perform military duty or refused to wear the uniform or otherwise refused to comply with lawful orders of a competent military authority,
  • discharge or dismissal by reason of a sentence of a general court-martial,
  • an officer resigning for the good of the service,
  • desertion
  • discharge as an alien during a time of hostility,
  • discharge under other than honorable conditions issued as a result of absence without official leave (“AWOL”) for at least 180 continuous days (some exceptions apply),
  • accepting an undesirable discharge or discharge under other than honorable conditions to escape a trial by general court-martial,
  • mutiny or spying
  • an offense involving moral turpitude, and
  • willful and persistent misconduct.

In the general public, the term “Veteran” is used rather loosely in certain circumstances. In other circumstances it is used rather rigidly. The VA considers the term “Veteran” to be a well-defined term of art that serves as a gatekeeper to its benefits. Knowing what the term means and who falls under its definition is key to any successful claim before the VA.

Veteran LetterpressThis post will try to briefly explain the two most common and helpful forms of supporting evidence, Lay Evidence and Expert Evidence.

When submitting a claim to the Department of Veterans Affairs, it is always highly encouraged that you also submit additional evidence which can support your claim. The problem is that the VA is not always clear as to what evidence would be the most helpful and how that evidence should be arranged. The law states that the VA must “consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits” (38 U.S.C. §5107(B)) and that each disabling condition for which a veteran seeks service connection “must be considered on the basis of…all pertinent medical and lay evidence” (38 C.F.R. §3.303(a)). This means that the VA cannot deny a claim without first considering both the lay and medical evidence, if submitted. Though the VA uses the term “Medical Evidence,” it would be more appropriate to use the term “Expert Evidence” since often the evidence needed does not come from a doctor but rather from a counselor, social worker, or someone else with particular and pertinent expertise. Not only must the VA consider this evidence, but it also must specify in its decision which evidence it finds to be persuasive or unpersuasive and why. Continue Reading

Legs and feet of woman sitting in wheelchairIf I become sick or injured and can no longer work, should I wait at  least 12 months before applying for Social Security Disability benefits? How long must you be unable to work before applying for Social Security Disability benefits? What if you are suddenly and unexpectedly injured or become ill to such an extent that you are unable to work? Many people are under the mistaken belief that you must wait for several months or even a year before applying or collecting Social Security disability benefits. In fact, there are no requirements that you be disabled for a certain amount of time before applying for Social Security disability insurance (SSDI) or supplemental security insurance (SSI). The important factor is whether you meet what the Social Security Administration calls
the 12 month durational requirement.

What is the 12 month durational requirement?

The 12 month durational requirement states that to be found disabled, Social Security must determine that you are unable to engage in any substantial gainful activity due to your illness or injury and that your impairment or impairments are expected to last for 12 consecutive months or are likely to result in death. Continue Reading

Barcode ScannerAs a South Carolina Workers’ Compensation lawyer with Grimes Teich Anderson, I represent injured workers from our offices in Greenville, Spartanburg, and Gaffney, South Carolina.

In an earlier blog post, I wrote about the benefits an injured worker should receive if he or she is held out of work by their doctor or their employer cannot accommodate their work restrictions. These benefits, for when a worker is unable to work but is still treating, are known as Temporary Total Disability benefits or TTD, for short. If you are out of work and want to know what benefits you should be receiving, review my earlier posts or give me a call to discuss your case.

Sometimes, however, I have clients that are under work restrictions from their doctor and their employer does offer them work. If the worker is receiving the same income as before their injury they would not be entitled to any pay from their employer’s insurance company. Where entitlement to workers’ compensation benefits can occur is when a worker is being afforded work under their restrictions but they are not being paid as much or receiving as many hours as they were before they were injured.

Here is an example:

Worker is paid $25.00 per hour working at a plant in Greer, South Carolina. She works 40 hours per week and never works overtime. She is injured on the job and the company doctor puts her on light duty. She notifies her employer who offers her a light duty position but she will only receive $10.00 per hour and will only receive 20 hours per week. What is she entitled to? Continue Reading

Headache and health problems for young woman at workFor work injuries after June 24, 2011, North Carolina Law encourages employers to provide “light duty” positions while the injured worker is recovering from a work injury. These can be made up positions – a job for which the employer couldn’t justify hiring someone to do. Sometimes the tasks are of some use to the company, other times the job is just “make work” that is of little value. In most cases, light duty positions need to be approved by the authorized treating physician and be consistent with the doctor’s work restrictions. Light duty can be a good thing for all concerned if the injured worker can transition back to productive employment with the company.

Sometimes an employer will make life very difficult for an injured worker after they return to work. Supervisors may be verbally abusive, saying things in a humiliating or demeaning manner, or constantly complain about the injured employee’s work. Employers may also require other employees to carry the extra load to compensate for the injured worker’s limitations, which can cause bad feelings. In an abusive situation, the injured worker may feel as if it is better to quit than to agonize over what the employer will say or do next. If the person quits or is fired, and workers compensation benefits do not start up immediately, there will be problems paying their bills. So, that person does the best they can to do what the employer asks so they can keep their job.

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legalA frequent question from our clients is how do contingency fees work? We do almost all of our personal injury work on a contingency fee basis. That means the fee is a percentage of the amount we recover for the client. Depending on the kind of case, contingency fees can range from 25% to 40%. Also depending on the kind of case, certain amounts recovered are not subject to the contingency fee. There is an infinite variety of ways to structure a contingency fee.

Contingency fees have significant advantage over hourly fees. If you hire a lawyer on an hourly basis, typically they are going to require an upfront payment and then bill monthly. The attorney will expect to get paid monthly. If the client stops paying, then the attorney will stop working and move to terminate the relationship. Most insurance companies pay their lawyers either on an hourly basis or sometimes on a flat fee basis. In a contingency fee case, the lawyer gets a part of the recovery. Said another way, the lawyer doesn’t get paid unless the client gets paid. Often times our cases run on for years, and most clients can’t afford to pay attorneys on an hourly basis for years. Our clients prefer contingency fees because it is financially the best way for them to hire a lawyer to protect their interest.

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World War Two MedalsExaggeration, especially when it comes to military or combat experiences, is nothing new. Probably the only time that people exaggerate more is when talking about fishing or past dating. Lately it seems that everyone is lying about their past experiences, from Fox News’s Bill O’Reilly to NBC’s Brian Williams to the Secretary of the Department of Veterans Affairs. The more a veteran sees a person of trust, such as a news anchorman or an executive official, lie about their record the more that veteran may be tempted to do the same themselves, especially when there appears to be no consequences for such behavior.

First and foremost, it is important to remember that there are few things as important as duty, honor, and integrity, regardless of any outside consequence. When a veteran sacrifices his or her duty, honor, and integrity for pecuniary or social gain, that veteran violates a pillar of military service. In addition, dishonesty about military service can indeed be an actual crime.

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first aidOne of my clients’ favorite questions is what is my case worth? We do lots of car wreck cases. During our 25 years of handling these kinds of cases, I have come up with some guidelines on how to evaluate a wreck case. First,let me say that you are welcome to a free consultation at our office to discuss case value. We are looking for cases where we can improve your case value.

It’s important to know that the evaluation is half art and half science. There is no formula that will tell you what the case is worth. It is never as easy as multiply your bills by three to arrive at a value. The real test of the value of the case is what your local jury would do with the case. However, I think people look for the same kinds of information when they’re evaluating what cases are worth. Even when I am discussing settlement with an insurance adjuster, the touchstone for value is what a jury would think. You need an experienced trial lawyer to help you with your evaluation. Continue Reading

Geodesist measure land speak transmitterRecently, after a long court battle, the North Carolina Court of Appeals ruled in favor of land owners whose properties were basically frozen in time. The name of the case is Kirby v. North Carolina Department of Transportation.

Under a law called the Transportation Corridor Official Map Act (The Map Act), the Department of Transportation filed maps showing that the properties may be in an area where a highway “loop” might be built around a city at some point in the future. The Map Act allowed the Department of Transportation to file maps with the county Register of Deeds showing property that might become part of a highway. Once the map was filed, the Map Act would freeze development on the land by essentially denying the landowner any sort of building permit. Continue Reading

Broken carYear-end federal statistics show a decline in motor vehicle accident fatalities from 2012 to 2013, including an 11 percent drop in South Carolina. Even so, more than 1,000 S.C. drivers were involved in fatal accidents in 2013 and more than 600 drivers, passengers, pedestrians, or cyclists died in those accidents.

In its latest safety report, the National Highway Traffic Safety Administration (NHTSA) says that fatalities on U.S. roadways were lower in 2013 than in 2012. The nation lost 32,719 people in crashes on roadways during 2013, down 3 percent from 33,782 in 2012. Traffic fatalities have been trending downward since 2006, except for a slight rise in 2012.

According to the NHTSA report, South Carolina had 767 fatal crashes in 2013. Those crashes resulted in the deaths of 488 people in passenger cars, 100 pedestrians, and 15 bicyclists or other cyclists. Those wrecks included 335 that involved alcohol impaired driving, down 3.8 percent from 2012 and 306 speeding related fatalities, down 4.9 percent from 2012.

The 2013 report showed a small increase in motorcycle accident fatalities in South Carolina in 2013, rising from 146 in 2012 to 149. The report also recorded a similar increase in motorcyclists dying while not wearing helmets, with those numbers rising from 102 to 106. Fourteen of those motorcycle accident deaths (seven each) were in Anderson and Spartanburg counties.

Sixty-five traffic fatalities in S.C. in 2013 involved large commercial trucks, the NHTSA says.

Anderson and Spartanburg counties each had 33 motor vehicle fatalities in 2013, which put them at No. 7 among the state’s top 10 counties for fatalities (Greenville County was No. 1 with 71 traffic deaths). The Anderson and Spartanburg figures for 2013 represent 31 and 34 percent declines, respectively, from 2012.

Over the five-year span from 2009 to 2013, Anderson County averaged 39.4 motor vehicle fatalities a year, and Spartanburg saw an average of 41 each year. That’s more than three highway deaths in each county every month.

Thirteen traffic accident deaths in Anderson County in 2013 and 11 in Spartanburg were alcohol related. Ten fatal crashes in each county involved a driver who was speeding.

The NHTSA reports only provide the type of hard numbers we’ve highlighted here. They don’t go into depth about the cause of fatal car accidents, other than noting alcohol and speeding involvement. But in our experience at Grimes Teich investigating accidents, we know that most car accidents are caused by driver error brought on by carelessness or recklessness.

The bottom line is that most car accidents can be prevented and when negligent drivers do not take care to avoid an accident, the injured parties, or surviving family members in a fatality, deserve compensation for their loss. That’s where the attorneys of Grimes Teich Anderson can stand up for the people of the Upstate of South Carolina.

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