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Working with Your Lawyer to Get the Best Results (and to Avoid Mistakes!)

Revised 11 March 2017

Sometimes people call and say that five or six (or ten!) years ago they got a ticket in Raleigh, Durham or Chapel Hill. They say they hired a lawyer to take care of it. Now they are unable to renew their license because of the ticket they thought the lawyer they had hired all those years ago had resolved it.  They then hire me to reopen the case and take care of it. How might we might prevent these problems?

Help Head Off a Problem

Even though lawyers are expected to represent their clients competently and reliably, Rule 1 is that it is still your case. Please don’t hire a lawyer and then forget about it. Follow up. Let’s take the example of a traffic case like the one above. After your court date give your lawyer a day or two to contact you with the results, but if you don’t hear from them within three or four days, call or email your lawyer.  If it turns your your lawyer missed the court date, it’s easy to fix the problem so early in the process.

 Most lawyers are glad for such follow-up. It helps prevent a minor mistake like a missed court date from snowballing into something much more serious, like a license revocation (a consequence that will leave the lawyer scrambling to clean up).

This advice is similar to what many medical groups advise to avoid medical errors. An excellent article by Debra Wood, RN of Harvard’s Beth Israel Deaconess Medical Center urged patients to not just let things be done to them, but to take an active role to make sure they are getting the right medicines and procedures. “How can you avoid a medical mistake? ‘Patients are the center of the health care team,’ says Cathy Barry-Ipema, spokesperson for the Joint Commission . . . . You need to be an active participant. You need to be informed, and if something does not seem right, ask . . . .”

That same principle applies to your legal case.

Plan B

Now suppose you have not followed up and your lawyer has missed your court date.  Sticking with our traffic example, several weeks after your missed court date, you get a letter from DMV saying that you missed your court date and that if you don’t take care of the case by such-and-such a date, your license will be revoked.   You think, “Hey, I hired a lawyer to resolve that for me!”  What should you do?   Call (or email) your lawyer now!! Here’s a suggested script:  “Good morning, Ms. Florrick,* I got a letter from DMV today saying that my license is scheduled for revocation because I didn’t go to court last month. If I’m not mistaken, that’s the case I hired you for.  Would you check on that for me?  Thanks, and I look forward to hearing from you.”

When attorney Florrick hears that message, she’s going to go into high gear to straighten this out before the suspension date listed in your DMV letter.   And because you called her as soon as you discovered her mistake, it may be possible to correct this without incurring late fees or other penalties.

Even if you find it hard to deliver such a civil phone message as the one I described above (i.e.,  your phone message is more like, “Ms. Florrick!! I hired you to take care of that case for me, and DMV now says you didn’t. What kind of sloppy operation are you running?) it’s still better to call your lawyer than to just ignore the problem.  Why?  Remember Rule 1.

And believe it or not, Lawyer Florrick would rather hear from you, whether or not your message is polite,  than for her mistake to snowball and cause a missed court date to become a suspended driver’s license.



*The names used in this post are totally random and have no connection to any person, real or fictional!!




What Can You Get in a Workers’ Compensation Claim?


Before I tell you what the benefits are in a workers’ comp claim, let me explain what you could get in a “regular” personal injury claim.  Before workers comp, workplace injuries and illnesses were handled just like any other personal injury case.  The injured worker had to prove that their injury was the result of the employer’s negligence. If you could prove that, then you could get all the things you can get in any other personal injury case:  lost wages, medical care, pain and suffering (and even punitive damages if the boss’s negligence was bad enough).  On the other hand, if you couldn’t prove that the boss caused your injury through his fault (or if the boss could prove that you also were at fault), you got nothing.  Because most work injuries are the result of accidents, in which no one is at fault, most people who were hurt at work got no compensation. However, in those cases in which the employer was liable, he was open to great liability.

To resolve this  “all-or-nothing” problem, employers and employees came to an agreement of sorts. Under workers comp, claims became much simpler to prove.  If an injury was the result of an accident, then it was covered, no matter whose fault it was (it can even be the worker’s fault).  This opened the door to many more claims.  In exchange for allowing so many more claims, employees agreed to accept limited benefitsSo, you cannot get pain and suffering, or consequential  or punitive damages in a workers’ compensation case. Your benefits are limited to medical care and lost wages.

What does that mean in real terms? It may not seem fair, but under workers comp, we can’t force the employer or the insurance company to pay you for the fact that your pain keeps you from playing softball or soccer, or picking up and swinging  your child around, or doing other recreational things that you used to do.  On the other hand, if your pain keeps you from working, you can get benefits for lost wages.  And you can get medical care and vocational rehabilitation to help you get back to work.

Now, I must tell you that employers and insurance companies will often try to limit even the limited benefits that an injured worker should get.  If you think you’re not getting the benefits the law says you should get, please give me a call.  919-683-2175.    



What is Worker’s Compensation?

Workers’ compensation is a type of personal injury law that applies only to workplace injuries and illnesses. It is unlike regular personal injury law in that the injured person does not have to prove that someone else was at fault in causing the injury. All the injured person has to prove is that he or she was injured by an accident while they were doing their job. The accident could have been the employer’s fault, or the worker’s fault, or no one’s fault.  As long as an injury arises within the “course and scope” of the injured worker’s job, then it’s covered.

Two Important Exceptions to the Accident Rule

 There are a lot of exceptions in law.  Here are two of the most important in workers’ compensation:  If you hurt your back at work or you developed a hernia at work, then you do not have to show it was the result of an accident.  Generally speaking, you just have to be able to point to a specific time while you were working that the back pain or hernia started. So, if you have filed a workers’ comp claim for a back injury or hernia and the insurance company has denied your case because they claim it was not the result of an accident, you might want to fight that denial.

Got Denial?  Call me at 919-683-2175 for a free consult!


Figuring Lost Wage Benefits

If you are out of work due to a work-related injury, one of your benefits will be compensation for lost wages.  Generally speaking, workers compensation wage benefits are figured at 2/3 of your pre-injury gross average weekly wage.  So, if you were making $500 per week before you got hurt, then, while you are out for your injury your “comp rate” (as it’s called) will 2/3 of $500, or $333.33 per week.

Remember, the comp rate is based on your gross wages, meaning your wages before taxes and other deductions.

Many will say, “How can I live on 2/3 of my salary?”  Hopefully, this will only be a temporary situation — in fact the wage loss benefits that a person receives while completely out of work are called “temporary total disability,” or “TTD.”   More important, however, is the fact that workers compensation benefits tax free.  No taxes will be deducted from your workers compensation checks, nor will you have to pay any state or federal taxes on worker comp benefits you receive.

The above is a general summary of benefit calculations. There are a number of exceptions and additions that might apply to your case.  If you are wondering whether you are receiving the correct amount of comp benefits, please give me a call at 919-683-2175.       

What Doctors Can I See in a Comp Claim?

Before I get to the main topic of this post, I’d like to talk about a word that I will be using both here and in other posts.  That word is “carrier.”  Any employer that has three or more employees is required to “carry” workers compensation insurance (or prove that they have enough money to be their own insurance company, which is called being self-insured).  The workers compensation insurance company is called the “carrier.”  And since in the vast majority of cases the employer is not self-insured and has workers’ comp insurance, and since the insurance company is paying the bills for the employer, we usually just use the word “carrier” to describe the employer and its insurance company, or both.  Now, to the topic of choice of doctors.

One of the main benefits in workers’ compensation is medical care.  In some ways, it’s better than “regular” health insurance because the carrier is required to pay 100% of the medical bills, including prescription drugs.  There are no medical or prescription co-pays in worker’s compensation cases.  That’s the good part.  Here’s the not-quite-so-good part:  An injured worker generally has to go to the doctor that the carrier chooses.  You may live in Durham and want to see an orthopedist at Duke or Triangle Orthopedics.  You can always ask the carrier if you can see the doctor you have in mind, but if the carrier wants you to go instead to a doctor in Raleigh or Chapel Hill, then that’s where you have to go if you want worker’s comp to pay for it. The doctor the carrier assigns to your case is called the “authorized treating physician.”  There are a few exceptions to this general rule.  One is if there is an emergency and you cannot contact the carrier to arrange to see the authorized doctor.  Another exception would be if you ask the carrier to let you go to the doctor of your choice, and the carrier agrees to that.  A third exception would be if you feel that the doctor assigned to your case is not helping you, then you may request the Industrial Commission to order the carrier to allow you to switch doctors.  The Industrial Commission may or may not grant that request, but you do have the right to ask.

Another exception arises when you get to the end of your healing period (which is called maximum medical improvement, or “MMI”).  If you have received an impairment rating, such as 15% to the back, or 20% to the foot, you are automatically entitled to a second opinion of the rating, at the carrier’s expense, by another doctor of your choice.  Which doctor to choose for the second opinion is a critical decision.  Please let me help you with that — just give me a call at 919-683-2175.  

Step 1 for Workers’ Comp.

Just abut every legal remedy has time limits called “statutes of limitation.”  Normally, lawyers say that the “statute begins to run” (that is, the clock begins to tick on the time to bring a claim ) when the person who wants to bring a claim is injured, or in some cases when they discover they are injured.  Workers comp is an interesting animal in that it has what I will call one-and-a-half statutes of limitation.   What do I mean by this?

First, in North Carolina, the absolute statute of limitations for a comp claim is two (2) years.  This means that the claimant must file their claim with the North Carolina Industrial Commission or be barred from ever pursuing the claim.  However, there is another time limit (the “half” part of my description) called the “notice” requirement.  The  notice requirement says that a claimant must give written notice of their injury as soon as possible, but no later than thirty days after the injury.  The Industrial Commission likes to use forms, and there is a notice and claim form (called Form 18) that the injured person may download and fill out.  Once the injured person gives a copy of the Form 18 to their employer within thirty days, and at the same time sends the original to the the Industrial Commission, they have met both the notice and statute of limitations requirements.

For occupational diseases, the 30-day notice period and two-year statute of limitations begin to run when a claimant discovers they have an occupational disease.  That normally is the date the claimant’s doctor tells them that they have an occupational disease.   So, if your doctor informs you that the elbow pain you’ve had for the past six months is actually a case of “tennis elbow” caused by the constant motion you have to do for your job, you have thirty days from the time the doctor tells you that to do the Form 18.

If you would like to read what the Industrial Commission has to say about filing a claim, click here.


Why Choose Kenneth Duke?

First, clients benefit from the expertise that I have developed through 26 years of law practice in the Research Triangle area of North Carolina.   I have tried cases in the district and superior courts, and I have tried many workers compensation claims before the North Carolina Industrial Commission.  I  know my way around workers’ comp, personal injury and traffic law. 
Further, you usually will be dealing directly with me.  I do have an assistant, but when you call, as likely as not I will answer the phone.  I usually answer client emails myself.  I am willing to discuss directly with you the pros and cons of the various courses of action to be taken in your case, whether it’s a traffic, personal injury, or workers’ compensation claim. 
Call or email me right now and put my skills to work for you. 

What about “occupational diseases?”

Workers’ compensation claims also may be the result of “occupational diseases.” North Carolina’s Act contains a whole list of diseases that are covered at N.C.G.S. Section 97-53. The list includes the “traditional” industrial diseases, such as asbestosis and silicosis and hearing loss, plus a “catch-all” section that includes any disease caused by conditions peculiar to a particular trade or job.

The “catch-all” section specifically excludes the “ordinary diseases of life to which the general public is equally exposed.” So, that nasty case of the flu you got at work is not likely to be covered — but that case of carpal tunnel syndrome may be!

What is your fee in a workers’ comp case?

My fee in a workers’ compensation claim is 25% of whatever you get, plus whatever expenses I have incurred.  That’s the standard rate. 

You may wonder, “What kind of expenses might there be?”  In a workers comp case, my out-of-pocket expenses are usually pretty low.  Often, the only expenses are the fees that your doctors charge me for copies of your medical records.


Dear Visitors,

I have posted useful information on workers’ compensation, personal injury, and traffic law, and I am adding new material regularly.  You also may call me now at 919-683-2175 for a free consult.

I look forward to helping you.

Ken Duke

Street Address:

123 West Main Street

Suite M-14

Durham, NC 27701

Mailing Address:

PO Box 546

Durham, NC 27702

919-683-2175 (v)

919-682-3821 (f)