Does my immigration status affect my right to benefits?

Immigration and Benefits?

It is the law in North Carolina that all workers, even undocumented workers, have a right to file for workers’ compensation benefits.  Rivera v. Trapp, 135 N.C.App. 296, 519 S.E.2d 777 (1999).

What happens if an injured worker is not able to return to work because of their immigration status?


In North Carolina, if an undocumented worker was able to find work before their injury despite their immigration status, the assumption is that their injury is preventing them from a return to work, not their immigration status.  Gayton v. Gage Carolina Metals, Inc., 149 N.C.App. 346, 351, 560 S.E.2d 870, 874 (2002).

If you have experienced a job-related injury that makes it impossible for you to return to work, your immigration status should not keep you from receiving workers’ compensation benefits.  If you can present proof that you cannot find a new job because of your injury, your employer will have to provide you with benefits even if your immigration status was a factor in your job search.

It is important to remember that worker’s compensation claims can be complex.

For more information about how we can help, please call Brian Elston Law at 828.575.9700 to schedule a consultation today.

(The information above is is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Brian Elston Law (or their own legal counsel) regarding any specific legal issues. Brian Elston Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.)

Brian Elston Law announces plans to relocate to Patton Parker House in 2017

Brian Elston Law is pleased to announce that it is relocating to the  Patton Parker House effective January 1, 2017.  The historic house is located at 95 Charlotte Street near downtown Asheville, NC.




The Patton Parker House is an ideal fit for Brian Elston Law’s mission and its clients.  As an experienced workers’ compensation attorney and personal injury lawyer, Brian Elston understands that an injury at work or due to the negligence of another effects more than just the injured, but also their husband, wife, son, or daughter.  The firm appreciates that being injured can put families through a very stressful time, even jeopardizing their own home.  In addition, choosing an attorney to fight is more than just a business decision, but involves trusting someone with a once-in-a-lifetime legal matter.  The firm looks forward to continuing to fight to protect the rights of the injured and their families and welcomes them to the Patton Parker House.




The Patton Parker House is conveniently located off of Charlotte Street, which can be accessed off of I-240 in Asheville.  The House provides ample parking in the front and rear, and is handicap accessible.




The Patton Parker House, originally built in 1868, will showcase its rich history.  Listed on the National Register of Historic Places and part of the Chestnut Hill Historic District,  the house was built by Thomas W. Patton, a Civil War hero who rose to the rank of captain.




Patton served as Asheville mayor, Buncombe County commissioner and county tax collector. His efforts included trying to bring electricity to parts of the city and county, as well as helping local citizens in their day to day affairs. He returned to military service as a volunteer officer during the Spanish-American war.  Patton also hosted a group of civic-minded women in November 1894 in support of women’s right to vote. The meeting launched the North Carolina Equal Suffrage Association and the campaign for voting rights for both sexes. His descendant, Mary Toole Parker, helped make Asheville’s YWCA the first integrated chapter in the South.




The home was purchased by Attorney Jim Siemens in 2015, ensuring the survival of a city landmark for future generations.  “It turned out that Jim’s proposal was the most sensitive to the integrity of the house. We think that a professional use is the best use to keep the historic fabric” according to Jack W.L. Thomson, executive director of the Preservation Society (Asheville Citizen Times, November 2015).




Brian Elston Law will be sharing the House with Siemens Family Law Group, an established firm devoted to family law, that handles all matters that rise from the dissolution of marriages and domestic partnerships.




Pictures courtesy of Pack Memorial Library:









Circa 1901 Picture of Parker Patton House

Circa 1901 Picture of Patton Parker House

Patton Parker House


I was hit by a drunk driver, does that make a difference in my case?

I was hit by a drunk driver, does that make a difference in my case?

Yes. If you were hit by a drunk driver, then you may be entitled to recover “punitive damages.” Punitive damages can be awarded when the other driver’s actions were to such a degree, they can be classified as carelessness and recklessness, more than just ordinary negligence. Courts have held that the intentional act of driving while impaired is sufficiently reckless to warrant punitive damages. Ivey v. Rose, 94 N.C.App. 773, 776, 381 S.E.2d 476, 478 (1989).

However, punitive damages are not automatic. There has to be other circumstances beyond mere intoxication in order to award punitive damages. Howard v. Parker, 95 N.C.App. 361, 365, 382 S.E.2d 808, 810 (1989).

If you were hit by a drunk driver, or a driver that was charged with DWI/DUI, contact my office to review your case to see if you could be entitled to punitive damages.

What if you were hit by a driver that was drinking, but not charged with driving while impaired, could you be entitled to punitive damages?

Yes, but it depends on the circumstances. Take a look at the cases below to get an idea of what cases an a court would allow a jury to consider the issue of punitive damages.

  • Driver fell asleep while driving and did not wake up until after his vehicle rear-ended victim’s car. The defendant driver conceded that he had consumed two beers and taken three prescriptions drugs prior to the incident. After the crash, the defendant driver went to a nearby house where he called the police. The police picked up the defendant and returned him to the scene and the state trooper gave defendant an Alco-Sensor test, which indicated defendant’s blood-alcohol level was below the legal limit. The Court of Appeals allowed the issue of punitive damages to go forward. Byrd v. Adams, 152 N.C. App. 460, 462, 568 S.E.2d 640, 642 (2002).
  • Driver caused a collision after consuming two twelve ounce beers and fled the scene to avoid taking the Breathalyzer. Driver spent the entire night at a hotel before contacting police, and no blood alcohol content was ever obtained.   Court of Appeals allowed the issue of punitive damages to go forward. Eatmon v. Andrews, 161 N.C. App. 536, 588 S.E.2d 564 (2003).

If you were hit by a driver that was drinking, contact my office and we can discuss whether you may be entitled to punitive damages.

Med Pay

What is Med Pay?

One of the first questions that I ask in talking with someone that has been involved in a motor vehicle accident is whether or not they have “med pay” under their own car insurance policy. The reason why I ask is because, generally speaking, payment under a “med pay” can be processed very quickly and help individuals while they are waiting on the at-fault driver’s insurance company to provide answers to any liability or damage issues.

med pay personal injury attorney asheville nc

Med pay is short for medical payments, and pays medical expenses for its insured and any passengers injured during an accident or auto-related injury. It does not come included in most auto policies, but it is relatively inexpensive to add. To find out whether or not you have med pay, it will be listed on the declaration page of an insurance policy. Med pay amounts vary, and the ranges are usually $500 to $5,000 per policy per accident.

When can you ask for Med Pay?

Generally speaking, if you are involved in a motor vehicle accident, you should notify your auto-insurance company and request the “med pay.” Most insurance companies require a copy of the medical bill and then will reimburse you or the medical provider for the expense.

The other driver was at fault, so why should I ask for my own medpay?

One of the misconceptions about motor vehicle accidents is that if the other driver is at fault, they’ll immediately pay for the medical bills. Unfortunately, another driver’s car insurance does not operate like health insurance, or process medical bills upon receipt. Instead, the at-fault driver’s insurance is going to make one lump-sum payment, typically when the injured party is done treating. This can take months, and in the meantime, medical bills start piling up.

Med pay, on the other hand, can be quickly processed and provide some financial support while the at-fault driver’s insurance company processes the claim.

So do yourself and your family a favor; check with your insurance agent about adding or increasing your “Med Pay.”

*Med pay differs from policy to policy and may not disbursed in certain circumstances. The above is intended to be informational only, and not construed as legal advice. If you have any questions, please do not hesitate to contact my office.

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Brian Elston Law is a personal injury law office in Asheville, NC, dedicated to fighting for people who need it most. Our practice areas include personal injury, workers compensation, wrongful death, employment law, civil litigation and more.

At Brian Elston Law our success comes from our willingness to serve individuals and families all across North Carolina with our high-quality personal injury and workers' compensation advocacy. We know how difficult it is to suffer a personal injury and / or workplace injury and how hard this must be for you and your family. Our team of attorney’s are here to help you make the process as easy and stress free as possible. To learn more about what our firm can do for you, just give us a call or a text. If you would like to learn more about how our firm can assist with your case, we encourage you to contact us immediately. We are proud to offer 100% free, confidential consultations.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

The verdicts and settlements listed on this site are intended to be representative of cases handled by Brian Elston Law. These listings are not a guarantee or prediction of the outcome of any other claims.