Older Drivers and Automobile Accidents

Older Drivers and Automobile Accidents

First the good news about older drivers and automobile accidents.  Older drivers are less likely to be killed or injured in a car crash today than twenty years ago according to a study by the Insurance Institute for Highway Safety reported in the Wall Street Journal. Older drivers are still significantly more likely to die in an automobile accident than younger drivers, but the gap is narrowing.

Fatality rates for drivers aged 70 to 74 fell 32%, while rates for drivers 80 and older fell a whopping 55%.  Fatality rates fell 26% for drivers between 35 and 54 while rates for drivers and passengers 25 to 29 rose 38%.

Overall, deaths for drivers and passengers have fallen across the board.  Drivers 80 years old and older have the highest fatality fates, followed by teens and drivers in their 20’s.

The Insurance Institute attributed the decline in fatalities to safer cars and more active and healthy older drivers.  Since the 1990’s side air bags, traction control and collision avoidance systems have all become more common.  All of these are likely helping older drivers survive.

Not surprisingly, teens are most likely to be involved in automobile accidents.  Drivers over 65 are second most likely.

All of this comes at a time when record numbers of older drivers are hitting the road.  By 2050, roughly 16% of the population of the United States, 64 million people, will be over 70.  The number of Americans over the age of 80 is expected to almost triple. The Insurance Institute found that a higher percentage of older Americans are keeping their license and are driving more miles.

So, what is the connection between older drivers and automobile accidents?  Why are older drivers more likely to cause accidents and to be seriously injured?  According to the National Institute on Aging, there are a number of factors at play.

  • Changes in the body, including stiff joints and muscle weakness;
  • Diminished eyesight, especially at night and when faced with glare;
  • Changes in hearing that make it more difficult to hear horns, sirens or other warning sounds;
  • Slower reflexes can make it more difficult to react quickly;
  • Other health problems such as dementia, Parkinson’s disease, stroke and arthritis can interfere with driving;
  • Medicines, especially those that cause you to feel light-headed or drowsy.

Now that we know more about older drivers and automobile accidents, what can you do about it?

If you are injured an automobile accident in Raleigh, NC, or Cary, NC, Apex, NC, or elsewhere in North Carolina call Cary Automobile Accident Attorney Kevin Bunn for your free consultation.

NC Unemployment Benefits Delayed

NC Unemployment Benefits Delayed

According to a News and Observer article the Division of Employment Services is taking longer to issue NC unemployment benefits. Many workers are waiting more than three weeks to receive benefits.  Unemployment benefits are temporary payments made to tide over employees who are fired.  Employees who are fired because of their bad conduct are generally not eligible for unemployment benefits.

According to the article the backlog has increased from 7296 claims in July to about 12,000 in January.  Employment Security officials blame the backlog on increased efforts to ensure that payments are made to employees entitled to the benefits, and the fact that many employers fail to timely submit needed paperwork.  Up to 40% of employers do not report the reason an employee was separated from their employment.

Federal standards require the payment of 87% of claims within 21 days.  The U.S. Department of Labor is also pressuring the state to not overpay or improperly pay benefits.  Under a new state law Employment officials are required to attempt to recoup any improper payments.

Claims where the employer and employee disagree on the reason for the separation must be heard, or “adjudicated,” by the ESC. Typically ESC will make an initial decision based on reports from the employer and the employee.  If the stories match up, and the employee is eligible for benefits, then payments begin.  If there is a dispute between the parties as to how the separation from employment occurred then benefits may be denied.  Either party can appeal and request a more formal hearing before a hearing officer.

NC unemployment benefits can play a critical role in a NC automobile accident or other personal injury case.  An employee who is fired because he or she is unable to return immediately to work because of injuries sustained in an automobile accident can claim unemployment benefits while they recover.  While unemployment benefits will not replace lost wages then can provide some short term support for an accident victim.  Unemployment benefits can provide a similar benefit in a denied North Carolina workers’ compensation case.  While the employer may get a credit for unemployment benefits if the workers’ compensation case is later determined to be covered the benefits can at least provide some  income during a period of disability.



ERISA Reimbursement in NC Auto Accidents

ERISA Reimbursement in NC Auto Accidents

Often the most difficult aspect of a NC automobile accident case has nothing to do with who was at fault in the accident, the nature of the injuries or how to find insurance to cover the claim.  Increasingly personal injury cases are dominated by efforts to ensure that the recovery goes to benefit the injured person and not to reimburse a third party health plan.  This article discusses the increasingly important issue of ERISA reimbursement in NC auto accidents.

In North Carolina, private health insurers are prohibited from seeking reimbursement for payments made for medical treatment when there is a recovery from the person who caused the injury.  Such reimbursement is called “subrogation.”  Insurers in North Carolina are also prohibited from denying payment for injuries that arise from another’s negligence, like an automobile accident.

Most large employers however provide their employees health benefits through self-funded health plans authorized under the Employee Retirement Income Security Act of 1974 (ERISA).  These self-funded plans are exempt from North Carolina’s anti-subrogation law and so are allowed to seek to recover a part, or even all, of any settlement or judgment recovered from an at-fault party.

So, for example, assume an IBM employee is injured in an automobile accident in Cary NC caused by a drunk driver.  The IBM employee gets medical treatment for his or her injures, and these medical bills are paid by IBM’s self funded ERISA health plan.  IBM will seek to recover the money it has paid in health expenses from the employee’s settlement or judgment with the drunk driver.

To have a right of subrogation an ERISA health plan must be self-funded, that is the employer must put its own money into the plan to pay health claims.  If the plan itself purchases health insurance to pay the employee’s medical claims then North Carolina’s anti-subrogation statute applies and the plan is denied a recovery.  Also, the plan language must meet certain highly technical guidelines and must plainly provide for subrogation.  The right of subrogation applies not only to the employee but to all the beneficiaries under the plan, including typically the employees family members.

When a valid right of subrogation exists it can dramatically affect the rights of the injured driver to recover for their NC automobile accident injuries. Typically, ERISA health plans provide that the plan is entitled to recover all of the money it has paid out before the injured party receives anything.  The right of subrogation attaches to the entire settlement, without regard to whether the money is for medical bills, pain and suffering or lost wages.

Plan documents typically allow the plan to file a lawsuit in federal court to recover the medical expenses it has paid that are later recovered from an at-fault party.  Additionally, the plans can deny payment on unrelated claims for the injured party as well as for other plan participants.

It is possible to negotiate the right of ERISA reimbursement in NC auto accidents.  Key factors in the negotiation will be the exact plan language, the amount of medical expenses paid, and whether the injured party is still covered under the plan.  An experienced NC automobile accident attorney will be able to help make sure the recovery benefits the injured party and not the self-funded ERISA health plan.

Med Pay in NC Automobile Accident Cases

Med Pay in NC Automobile Accident Cases

This blog discusses the role of Med Pay in NC Automobile Accident Cases.  Med Pay, or Medical Payments Coverage, is insurance coverage typically combined with an automobile policy.  The coverage is optional but most insurance agents include Med Pay coverage with automobile insurance plans.  Med Pay limits are relatively small — $1000, $2000 or $5000 – and the coverage is inexpensive.

Persons eligible to file a Med Pay claim on an automobile policy generally include:  1) any named insured on the automobile insurance policy; 2) the insured’s spouse; 3) the insured’s family; 4) any person occupying a vehicle insured under the policy; 5) any person occupying a vehicle driven by someone insured under the policy.   An insured who is a pedestrian may collect Med Pay benefits when struck by a vehicle.  There are a number of specific exclusions from Med Pay coverage so check the policy carefully to see if your particular situation is covered.

In order for Med Pay to apply an insured must sustain an injury requiring medical treatment arising out of the use of an automobile.  Med Pay pays the actual, reasonable medical expenses associated with injuries that arise out of the use of a covered automobile.  Occasionally an insurance company will deny payment of a medical bill which it judges to be excessive.

Medical treatment must be provided by a licensed medical provider, including a chiropractor.  Med pay is no-fault coverage, which means it does not matter who is at fault in causing the injury.  Med Pay will pay the entire amount of the medical bill, without regard to whether that same bill is paid by health insurance.  There is no deductible with Med Pay coverage and filing a Med Pay claim will not increase your insurance premium.  Med pay does not cover pain and suffering, disability, lost wages or anticipated future medical expenses.

If you are injured in an automobile accident in North Carolina, Medical Payments Coverage can provide important flexibility in dealing with medical expenses.  Med Pay in NC automobile accident cases can allow you to pay your medical expenses if you do not have health insurance and to collect a small cash benefit if you do.  If you have questions about Med Pay in NC automobile accident cases call Cary, NC, automobile accident lawyer Kevin Bunn.

How to Deal with Property Damage After an Automobile Accident in North Carolina

How to Deal with Property Damage After an Automobile Accident in North Carolina

If you are in an automobile accident in North Carolina that is someone else’s fault one of the first things you will have to deal with is what to do about the damage to your automobile.  This blog will answer a few questions about how to deal with property damage after an automobile accident in North Carolina.

To begin with, make sure you have plenty of good pictures of the damage.  This will help support your personal injury case as well as deal with the  property damage after an automobile accident in North Carolina.

If your car is not drivable you have the right to have your car towed to and repaired at any shop you want.  If you do not have a shop preference the responding officer will usually have the car towed to a local repair shop on the “rotation” or list of shops that will take vehicles damaged in automobile accidents.  Ask the officer at the scene where your car will be towed to and write it down.

The workers at the repair shop will first prepare am estimate of damages.  Generally you will want to make sure this estimate includes original equipment manufacturer (OEM) replacement parts.  The adjuster with the at-fault insurance company will review this estimate and, hopefully approve the repairs. You will usually be provided a rental car for use while your vehicle is being repaired.

If the repair cost exceeds 75% of the value of the vehicle then it is a total loss by law.  In this case the insurance company for the person at fault in the accident should compensate you for the fair market value of the vehicle.  Do your research to help negotiate this amount.  Use online resources like Edmunds.com and cars.com to find comparable cars in terms of make and trim level, model year and mileage.  You are also entitled to be reimbursed for the sales tax you paid when you purchased the automobile.

If the repair cost is between 25% and 75% of the value of the car then the automobile will be reported to the Division of Motor Vehicles as damaged.  This information will show up on services like Carfax, which identify automobiles that have been in an accident.  If your vehicle fits in this range you should be compensated for this “depreciation” which is the difference between what the vehicle was worth wrecked versus not wrecked.

Please feel free to email or call if you have questions about property damage after an automobile accident in North Carolina.




Social Security Disability Overpayments

Social Security Disability Overpayments

Social Security disability made $1.3 billion in potentially improper disability payments to people who had jobs when they were supposed to be unable to work. The Government Accountability Office estimated that 36,000 workers got improper payments from December 2010 to January 2013. The numbers represent less than 1 percent of beneficiaries and less than 1 percent of disability payments made during the time frame. But GAO said the overpayments reveal weaknesses in Social Security’s procedures for policing the system.

The Social Security Administration said its accuracy rate for disability payments is more than 99 percent. But the agency noted that even small errors translate into big numbers. More than 8.2 million disabled workers received disability payments in December 2010, a figure that has grown to nearly 9 million. Last year, the agency paid out $137 billion in disability payments.

Before people can receive disability benefits, there is a 5-month waiting period in which they can, in general, earn no more than about $1,000 a month. The waiting period is to ensure that beneficiaries have long-term disabilities. Using a federal wage database, investigators checked whether a sample of disability beneficiaries had worked and earned significant wages during the waiting period, the report said. They found that most of the improper payments went to people who worked during the five months they waited for payments to begin.  Once people start receiving benefits, they can return to work and still get benefits during a trial work period.

Citing a potential weakness, the report said Social Security might not detect a person who worked during the waiting period if the period started in one year and ended in another. For example, if Social Security starts paying benefits in February, the agency might not detect significant wages earned the previous November because they weren’t earned in the same year that benefits were awarded, the report said.

In a written response to the report, the Social Security Administration agency questioned whether GAO overestimated the amount of overpayments. The report comes as the Social Security disability program faces a financial crisis. If Congress doesn’t act, the trust fund that supports the disability program will run out of money in 2016, according to projections by Social Security’s trustees. Congress could redirect money from Social Security’s much bigger retirement program to shore up the disability program, as it did in 1994. But that would worsen the finances of the retirement program, which is facing its own long-term financial problems.

For more information about Social Security disability contact Cary Social Security disability lawyer Kevin Bunn.

WTC First Responders Developing Work Related Cancers

WTC First Responders Developing Work Related Cancers

According to the National Institute for Occupational Safety and Health 1140 people have been diagnosed with cancer related to the attacks on the World Trade Center on September 11th 2001, and that number is expected to grow.  The cancers are traced to in the carcinogens in the air at ground zero.  Tina Engel, an oncology nurse at North Shore Hospital in Queens says she has identified 12 new cases in the last 2 months.  Federal funding is helping patients get biopsies and scans.

Because firefighters, police, EMT’s and other first responders are at particular risk, many of the cancers are work related.  The US Centers for Disease Control has identified about 65,000 people who became sick from 9/11 exposure, many of them first responders.  A Mount Sinai Medical Center study showed that first responders have a 15 percent greater risk of developing cancer than people who were not exposed to the toxic air.  Marty Cervellion , a 63 year old engineer who spent more than 2 months at ground zero following the attacks developed gastroesophageal cancer in 2011.  “It was always in the back of everyone’s mind we were in jeopardy given the contamination down there, but the entire world was calling on you,” he told the Daily News. “It felt so good to serve.  There was no wanting to escape.”

Many workers’ compensation attorneys believe that we will continue to see an increase in work related cancers, which are treated as occupational diseases under NC workers’ comp law.  To recover for an occupation disease in NC the employee must show that their employment placed them at increased risk for developing the condition as compared to the general public and that the employment substantially contributed to the employee contracting the disease.  The challenge is frequently showing that the work exposure contributed to the cancer, particular when other factors such as smoking are present.

Link to Yahoo article.



Law Students Help Local Kids Mediate Differences

Law Students Help Local Kids Mediate Differences

When East Millbrook school officials started sensing tension among their students they brought in  Professor Jon Powell and the Campbell Law School Juvenile Justice Project which he leads.  The Campbell Law School Juvenile Justice Project is a group of Campbell law students who work with Wake County school children to help them resolve conflicts.  The Project partners with several Wake County middle and high schools and is funded through the Campbell University Norman Adrian Wiggins School of Law.

An anonymous eighth grader at East Millbrook complained that students just  “didn’t get along.”  “It was like he-she said stuff.”  The law school mediators focused on the harm that had been done and how that harm could be addressed in a positive way.  Mediators first talk to the students separately, then together, to help keep a conflict from escalating into a fight.  Professor Powell and the law students’ goal is to get both sides to understand the root of the problems so it doesn’t build up again. “We just worked it out that day” said the eighth grade student.

The Campbell Law School Juvenile Justice Project has dealt with about 80 cases in the last school year.  In the last ten years 95% of the students who completed the mediation didn’t offend again.  A vice principal at East Millbrook said that the students behavior after the program was “calmer, not necessarily best friends but at peace.”

One of the major changes in the practice of law over the past twenty years has been the increased use of mediation to resolve conflicts.  Practically every NC automobile accident, personal injury or workers’ compensation case  that is filed is ordered to mediation.  There are many NC personal injury lawyers who now limit their practice to working as a mediator.  And most NC automobile accident lawyers spend more time in mediation that in trial.

So it’s probably a good idea to start training lawyers in law school to mediate conflict.  And I guess if they can mediate a middle school spat they can mediate anything.

Link to WRAL article.

Should I take a drug test if injured on the job in NC?

Should I take a drug test if injured on the job in NC?

An article in the Smoky Mountain News presents an important NC workers’ compensation question:  Do I have to take a drug test if I am injured on the job in NC, and can my workers’ comp. benefits be denied if I refuse?

According the article, Robert Bradley’s day working at Ghost Town in the Sky amusement park in western North Carolina was like any other until a mock wild west showdown went horribly wrong. Bradley was hit with a piece of shrapnel that exploded out of a gun and buried itself 1.5 inches in his upper thigh. After struggling to find a medic on staff at the amusement park Bradley’s coworkers ended up driving him to a nearby bar parking lot to meet with an ambulance that would take him to the emergency room. At the ER, the doctor flushed out several slivers of an unknown material from the wound. The doctors assumed that the substance was wadding, a material used in place of real bullets. Ghost Town’s workers’ compensation insurance company asked Bradley to submit to a drug test in order to receive workers’ compensation for his injuries. Bradley refused stating that the insurance company was just fishing for a reason to withhold his money. After the accident Bradley lost his job. Bradley says he was fired while Alaska Presley, Bradley’s employer and owner of Ghost Town in the Sky, says Bradley quit. Several other Ghost Town employees quit their jobs at the amusement park in support of Bradley.  So far Bradley has not received either medical or wage replacement benefits from his employer’s workers’ compensation carrier.

This one is a little tricky. First, if an EMPLOYER (not insurance company) has a prior policy of requiring drug testing after an on the job injury, then the employee must either take the test or risk losing his job for violation of company policy. If there is no such policy then the employee is on firmer ground refusing the test. However a refusal or even a positive test is not a valid basis for denying a workers’ compensation claim in North Carolina. If an employer can prove that an employee was actually impaired by drugs when the accident occurred and this impairment contributed to the accident then no benefits are due. A simple drug screen, showing only the presence of a drug, is not sufficient to show that an employee was actually impaired. A test that actually measure the amount of the substance, like a breathalyzer, may be sufficient. The relevant portion of the NC law is reprinted below.

Unfortunately, without regard to the actual law, refusing to take a drug test after an on the job injury in North Carolina may prompt the workers’ compensation insurance company to deny the claim. While a postive test may also draw a denial I generally tell injured workers that if the employer has a clear drug testing policy that it has consistently enforced then taking the test may be best.  The safest route though is to contact an experienced NC workers’ compensation lawyer before deciding whether to take a post-injury drug test.




§97-12. Use of intoxicant or controlled substance; willful neglect; willful disobedience of statutory duty, safety regulation or rule.

No compensation shall be payable if the injury or death to the employee was proximately caused by:

  1. His intoxication, provided the intoxicant was not supplied by the employer or his agent in a supervisory capacity to the employee; or
  2. His being under the influence of any controlled substance listed in the North Carolina Controlled Substances Act, G.S. §90-86, et seq., where such controlled substance was not by prescription by a practitioner; or
  3. His willful intention to injure or kill himself or another.

“Intoxication” and “under the influence” shall mean that the employee shall have consumed a sufficient quantity of intoxicating beverage or controlled substance to cause the employee to lose the normal control of his or her bodily or mental faculties, or both, to such an extent that there was an appreciable impairment of either or both of these faculties at the time of the injury.

A result consistent with “intoxication” or being “under the influence” from a blood or other medical test conducted in a manner generally acceptable to the scientific community and consistent with applicable State and federal law, if any, shall create a rebuttable presumption of impairment from the use of alcohol or a controlled substance.”

The burden of proof shall be upon him who claims an exemption or forfeiture under this section.



Simpler Hospital Billing Might Help Personal Injury Claimants

Simpler Hospital Billing Might Help Personal Injury Claimants

Starting in June, the mystery shrouding hospital billing in North Carolina will be lessened.  Laws passed by the General Assembly will force hospitals to bill their patients using simple, easy to understand language.  These newly passed laws will help defend the public from misreading or overpaying hospitals for petty or unnecessary charges.   The idea for increasing transparency in hospital billing came alive after the News and Observer and the Charlotte Observer released stories revealing several hospitals misuse of profits.  After these scandals were uncovered, the power of the hospitals in the state began to diminish.

This past year, hospitals across the state took a financial hit due to the greatest Medicaid cuts in history.  The General Assembly denied the expansion of Medicaid to hundreds of thousands of North Carolina residence this year under the Affordable Care Act.  These cuts had the greatest impact on smaller hospitals located in the rural parts of the state where a large number of their patients rely on these federal programs.  These severe cuts in funding forced hospitals across the state to look for new means of income.  The North Carolina Hospital Association is said to have spent almost $1 million on advertisement in an attempt to boost business.

The main goal of N.C. hospitals was to fight a cap on sales tax refunds for non profit hospitals.  The original proposal was to cap the refund at $100,000.  This was quickly shot down by the House and the cap was adjusted to $2.85 million.  To some of the larger hospitals this amount was startlingly small. Many politicians were disappointed and frustrated by the outcome of a $45 million dollar cap on sales tax refunds.  This should not affect any hospitals this year, but hospital lobbyists fear that if the issue is reevaluated in the future, the cap will be set lower.

The most important section of the bill to the public is the more ‘user friendly’ billing system.  Patients will now be more aware of hospital pricing and the cost of all of the services healthcare providers and hospitals provide. Hospitals now have to post the reimbursements for patients from Medicare, Medicaid  and other  insurance providers as well as for patients who are not insured.  These have to be posted in plain view both in the hospitals and on their website. This allows patients to really feel more in control of the care they receive.

This will help NC personal injury and car accident claimants by making the bills easier to understand, especially where the medical provided may have to be reimbursed.

If you have been injured in an auto accident or on the job in NC and have questions about your personal injury claim or NC workman’s comp case please call or email for your free consultation with a North Carolina Personal Injury lawyer.