Answering the Most Frequently Asked Questions Is a Good Start, But We Decided to Answer The Most Important Questions Too. Learn What You Need to Know About Your Injury and Disability Claim.
Answering the Most Frequently Asked Questions Is Good, Answering The Questions You Should Be Asking Is Even Better
We have been answering questions about Oregon and Washington personal injury and auto injury claims, Oregon Workers' Compensation claims, and Social Security Disability claims for more than a little while. People have a lot of the same concerns, so they ask the same questions. That's good. However, our job is not just to answer the most frequently asked questions, but also the ones you should be asking. That's better.
- Page 1
Can an adjuster close my file if I do not respond to an offer of settlement within a set time?
Yes, but it means nothing.
The first adjuster an unrepresented auto injury claimant deals with is usually a lower level adjuster with limited experience. These adjusters are often given some "tools" in an effort to minimize the settlement payments to the injured motorist. One of them is a veiled threat to close the file should the injured motorist fails to respond to an offer to settle the injury claim.
An insurance company adjuster can do this, but it really doesn't mean much. Under state law, you have a certain amount of time to have your claim resolved by settlement, or filed in the appropriate court. This is referred to as the "statute of limitations."
In Oregon, you generally have two years from the date of the collision to have the case resolved by settlement, or filed in the appropriate court. Please be aware that this time limit applies only generally, and there may be other deadlines critical to your case. For example, you may have to file tort claim notice against a government agency. For more information on tort claim notices, check out this article.
If you suffered a minor injury, and wish to resolve the case on your own, don't rush. Take a few months to make sure that you are able to do all the things you were doing before the injury before signing a settlement agreement that forever releases the insurance company from any responsibility for your injuries.
If your collision occurred in Washington State, then you have three years from the date of your injury to resolve the case by settlement, or file it in the appropriate court. Remember, other time limits may apply. Remember too that your best bet is to wait until you have completed treatment, and nowhere you stem medically before approaching the insurance company about settlement.
Who has to prove a workers' compensation claim?
Generally, the injured worker has to prove a workers' compensation claim in Oregon. However, this depends on the issue at hand.
When you file a claim for workers' compensation benefits, the insurance company investigates the claim, and decides whether there is sufficient proof that you suffered an injury as a result of an on-the-job activity. An employer or an insurance company need only have a "legitimate doubt" about the claim in order to deny it outright. Some people, including myself, think that many insurance carriers will deny a claim knowing full well that it should be accepted, hoping that the injured worker simply walks away, and does not appeal the denial.
After a claim is denied, the injured worker can file a request for hearing. At the hearing, the injured worker must prove that he or she suffered an injury that occurred in the course of employment and arose out of a work activity. Lawyers refer to this as the "burden of proof." In many cases, the injured worker does not have to prove a specific medical problem resulted from the work injury, but that the work injury event either caused disability from work, or the need for medical care.
In some cases, the evidence may show that the injured worker had a pre-existing condition, and that the injury event combined with the pre-existing condition. This is called a "combined condition." The insurance company must cover these kinds of claims as long as the injury event (the fall, strain, or other injury event itself) is the major cause of the combined condition.
In many cases, the burden of proof is now on the employer to show that the injury component of the combined condition never was the major cause of the combined condition, or is no longer the major cause of the combined condition.
Obviously, who has the burden of proof is key because it may determine whether you get benefits at all.
Can I appeal a workers' compensation denial?
And, if there is any doubt, you should.
In Oregon, workers' compensation is private. This means that your initial claim is filed within insurance company, and that insurance company decides whether it will pay benefits or not. If the insurance company decides to deny your claim, you can appeal the denial.
In order to appeal a denied claim, you must file a request for hearing within sixty days of the date on the denial letter. If you do not file your request for hearing within this time, you lose any right to appeal the denied claim.
After you file the request for hearing, the Oregon Workers' Compensation Board assigns and Administrative Law Judge to the case, and schedules a hearing. At the hearing, you can submit exhibits and call witnesses.
There are many different kinds of denials, and this article explores that topic.
Check out our free e- book that also discusses claim denials.
Can I change the doctor when I have an Oregon Workers' Compensation Claim?
Yes you can, but there are limits.
The doctor that is primarily responsible for your medical care is known as the "attending physician." You can only have one attending physician at a time. All of the medical treatment that you get must be authorized by the attending physician, except for emergency medical services.
Switching doctors is different than getting a referral to a specialist. Attending physicians may refer you to another doctor, like a specialist. However, those referrals have to be in writing. When the attending physician makes a referral, he or she has to be specific about the nature of the referral. For example, if the referrals only for a consultation, that must be included in the documentation. If the referral does not include a request for a consultation, then the specialist can provide medical services and treatment here she determines is appropriate.
An injured worker can change their attending physician two times after the initial choice of a doctor. If you ask your physician to refer you to another physician, that will count as one selection. However, certain changes of medical providers does not count, including:
1. When the insurance company asks you to see a doctor;
2. When your physician refers you to another doctor as a consultation only;
3. When your doctor refers you to a radiologist or a pathologist for diagnostic studies;
4. When you have to change your physician because the rules require that you see a different kind of doctor. In other words, only certain kinds of doctors can act as an attending physician for a certain period of time, and if you have to make a change for this reason, it does not count.
5. When the change of your physician is for some reason beyond your control. This can happen when the physician leaves the practice, the physician no longer wants to treat you, you move away from the area, or when the rules do not allow the physician to provide treatment. Sometimes, the insurance company will enroll you in a Managed Care Organization, which will result in a change of physician.
Even if you have used your choices, you can still change your physician if the insurance company agrees.
If you are in the middle of a workers' compensation claim, and wonder about changing physicians, contact us at 503-325-8600. We can help you decide how to go forward with the claim.
What is Permanent Partial Disability?
Permanent Partial Disability, also referred to as "PPD" is a cash benefit in the Oregon Workers' Compensation system. The benefit is designed to compensate an injured worker for any lost earning capacity resulting from an on-the-job injury in Oregon.
Permanent Partial Disability is determined after the injured worker becomes "medically stationary." An injured worker is medically stationary when the attending physician determines that more time or medical care is not reasonably expected to significantly improve the on-the-job injury. Once the attending physician finds that the injured worker is medically stationary, the insurance company is required to gather information to determine permanent partial disability.
There are two kinds of permanent partial disability. The first is known as "whole person impairment." To determine whole person impairment, the insurance company will send the injured worker to an independent medical examiner, or schedule a closing examination with the attending physician. The examining physician will then take measurements, depending on the kind of injury involved. For example, for a neck or back injury, the physician will measure things like range of motion, strength, and make a judgment call on whether or not the injured worker has suffered significant loss of repetitive use of the injured body part. The findings are then applied to rules that calculate the permanent partial disability rating. That number is then multiplied by a dollar figure set out in the statute to determine the dollar amount of the permanent partial disability award.
The second kind of permanent partial disability is known as "work disability." This benefit is paid when the attending physician determines that the injured worker cannot return to his or her job as a result of the on-the-job injury. The job title may be the same, but even if it is performed differently, or if there are some modifications on the job site, then the injured worker should be entitled to work disability.
Work disability can be a significant permanent partial disability benefit. To determine the dollar amounts of the work disability benefit, the insurance company will consider the age, education, and skill level of the injured worker. these are known as "social and vocational factors." The rules provide a point system, depending upon these factors. The calculation is then multiplied by either the injured worker's average weekly wage, or an index number known as the "state average weekly wage." Only the attending physician's opinion counts in determining whether an injured worker is able to return to the job at injury.
The insurance company's decision on permanent partial disability appears in the Notice of Closure. If you do not agree with the calculation of the permanent partial disability award, you can file a Request for Reconsideration. This is an appeal of the Notice of Closure to the Oregon Workers' Compensation Division. Depending upon the issues you appeal, the Oregon Workers Compensation Division will assign a medical arbiter, which is a medical doctor, to perform and examination.
Questions? We handle these cases every day, and can help you know where you stand. call us at503-325-8600. We can appeal your case,and are only paid a fee if we obtain additional benefits on your behalf.
Can I request a lump sum payment of my permanent partial disability award?
Yes, but you must be careful.
Oregon Workers' Compensation law provides for a permanent partial disability benefit. This is a cash benefit that is theoretically compensating you for your lost work capacity. There are two kinds of permanent partial disability benefit, and you can learn more about the actual benefit here.
If the permanent partial disability benefit is greater than $6,000.00, then the insurance company will make monthly payments within 30 days after the Notice of Closure, even if you appeal the Notice of Closure.the amount of payments is based upon your temporary total disability rate.
You can request a lump sum payment of the permanent partial disability award instead of receiving all the payments over time. However, if you make the request for lump sum payment, you give up your right to appeal the amount of your permanent partial disability award.
Lump sum payments are useful, but before applying, you should know whether not the insurance company has properly evaluated your permanent partial disability.
We review claims files to help injured workers no whether not a lump sum payment request makes sense. If you are not sure about whether to appeal your Notice of Closure, or request a lump sum payment, call us at 503-325-8600. We can review your file, and let you know where you stand. The best part is that we are not paid a fee unless we obtain more benefits for you.
I am meeting with a lawyer about my Oregon personal injury case. What kind of questions should I ask?
I have probably met with hundreds of people over the years to discuss their potential case. Every meeting is different. Some people come with a list of specific questions. Other people are frankly intimidated at the prospect of meeting with an attorney. It is usually their first time sitting down with a lawyer in person. If you are going to call or meet with an attorney to discuss your Oregon or Washington injury claim, here are a few things you may want to ask the attorney.
1. How do you pay the attorney fee?
You are a potential client, and as such, you have a right to know how the fees work. Do not be shy about asking about the fee agreement. In many cases, attorneys charge a contingent fee. This means that the attorney does not recover a fee unless he or she recovers money to compensate you for your injury. This could be in the form of a settlement, arbitration, or jury verdict. Typically, the fee is a percentage of the recovery.
It is a good idea to know what the attorney means by "recovery." For example, if you are injured in a car that is insured in the State of Oregon, you are covered by personal injury protection benefits. This is a no-fault medical insurance policy that will pay your bills for necessary care, regardless of who is at fault. You may want to know if the attorney considers the payment of PIP benefits to be part of the "recovery." This can make a big difference in your overall recovery when the case is finished.
2. What about costs?
In addition to the attorney fee, most fee agreements address case costs. Costs are those things that the attorney will spend money on to prepare your case for a settlement demand, or for litigation. Typical case costs include the cost of obtaining medical records and bills, police reports, and other documents. In some cases, the attorney may have to hire an investigator, or a physician to review records or perform and examination.
Some attorneys will pay the costs as they are incurred, and then recover the costs that were advanced at the end of the case. You should have an idea of how the attorney handles costs. Ask also about what items the attorney will charge as costs.
3. What is your experience with these kinds of cases?
Some attorneys limit their practice to specific areas, and others are generalists. It is a good idea to know how much experience the potential attorney has in handling your injury case. This is important because many insurance companies will keep track of how an attorney approaches a case when representing an injured person. Attorneys that are willing to go to arbitration or trial may be in a better position to get you the best result possible because the insurance company knows that the attorney is willing to go "all the way" if that is necessary. Be sure to ask about the attorney's practical experience.
4. Who is going to handle my case?
There are some attorneys who have several legal assistants and paralegals, or even younger associate attorneys that take on many of the duties of handling the case. This is not necessarily a bad thing. There are a lot of moving parts to these cases. However, you should have an idea of who you will be working with, and who will help you make decisions on how to move forward at the case.
5. How long this is going to take?
If an attorney is being upfront with you about an Oregon or Washington injury claim, he or she will give you a range or estimate as to how long a case may take. It is sometimes difficult to give an accurate estimate as to how long it will take to resolve a claim, especially at the very beginning. Many things can happen along the way, but you should get a basic idea of how long you will be working with the attorney on this particular legal matter.
6. How do you evaluate the value of my case?
This is a question that may help you figure out the third question regarding experience. In our office, we have more than one way to evaluate a case. We will also not provide an estimate of the case's value at the very beginning, because we don't have the information we need to give you an intelligent answer. However, it's a good idea to know the process that goes along with evaluating the value of your case.
7. What is your communication policy?
Probably the biggest complaint people have about attorneys is that they do not return phone calls. You should ask about how the office will communicate with you and provide information about the case. In our office, we typically schedule phone conferences or in person appointments to answer questions and discuss the case with our clients. This works very well for us and our clients because everyone is on the same page about how and when we will be able to talk about the case.
8. Tell Us Your Story
When we meet with the client for the first time, we want to hear what they have to say about their case, and their concerns. Our overall goal is to learn their story, and then answer any questions they may have about the case, and about how we work with clients. If you or somebody you know would like to talk about a case, call us at 503-325-8600. Even if we are not able to handle your case, we are happy to provide you options.
Why does Social Security want to know about prior work experience?
When Social Security determines if someone is disabled, one of the first issues is when the applicant no longer participated in "substantial gainful activity." In other words, when did you stop working on a regular basis? Social Security will usually figure this out by looking at your official earnings records, which is included as an exhibit in your file at hearing. Sometimes, your records may show earnings after the date that you stopped working because of payment of sick benefits or other severance payments. It is important to look at your file to compare the date you left work with Social Security's earnings records.
Work history is also important in terms of the quality of work you performed. If Social Security determines that you have a "severe impairment," it then must determine how much the impairment limits your ability to perform work activity. This is known as "residual functional capacity." Once the Social Security Administration determines your residual functional abilities, it will determine whether you can do any of your past work. This is why it is important to provide an accurate description of the physical and mental requirements of your prior jobs.
We have seen cases decided on the description of our client's past work. When a Judge decides whether our client can perform any of her past work, the Judge will ask a vocational expert for a list of the physical and mental requirements of the job. Sometimes, our client performed the job at a more strenuous level them what the job normally required. This could mean the difference between obtaining benefits or not.
If you have a denied Social Security disability claim, we will review your claims file to see whether not your prior work was properly considered in determining whether you're eligible for benefits. Call us at 503-325-8600. We can review your file, and let you know where you stand with your claim.
What are "compensatory damages?"
If somebody has suffered an injury because of someone else's carelessness, that person can bring a claim in court for "damages." There are different categories of damages in Oregon. One category of damages is known as "compensatory damages." Compensatory damages are those damages that a person suffers as a result of another person's wrongdoing. The goal of compensatory damages is to restore the loss the plaintiff suffered as a result of the defendant's wrongful conduct.
Medical bills are one form of compensatory damages. Lost wages are also a form of compensatory damages. Essentially, these damages are available to replace a loss, and fix what can be fixed.
Some forms of compensatory damage are available to make up for what cannot be fixed. For example, somebody suffers a permanent impairment as a result of an injury caused by another's carelessness, the damages requested for that loss are also a form of compensatory damages. However, a jury will be asked to consider different factors in awarding these kinds of damages.
If you have a claim resulting from an injury, and are not sure what damages you can recover, contact us at 503-325-8600. We can explain the different types of recovery available to you, and help you decide whether you need an attorney in the first place.
What is a "non- disabling compensable injury?"
When an Oregon Workers' Compensation carrier or an employer accepts an on-the-job injury claim, it must classify the claim is either "disabling," or "non-disabling." When a claim is classified as "non-disabling," it means that the injured worker needed treatment for their injury, but did miss any time from work.
You can find out whether your claim is classified as disabling or non-disabling by looking at your Notice of Acceptance. If the claim was classified as non-disabling, and you disagree with this decision, you can request that the claim be reclassified within one year of the date of the Notice of Acceptance. If the insurance company refuses to reclassify the claim, you can seek review of that decision with the State of Oregon Workers' Compensation Division.
It is important that you know that your claim is properly classified. For example, you may suffer a fairly serious injury that results in time off from work, or is expected to cause permanent impairment. However, if the claim is not classified as "disabling," that means there will be no Notice of Closure, and you may not be able to obtain permanent partial disability benefits.
We review claims files every day to see whether it makes sense to challenge claim classifcation, or pursue any other issues that protect your rights. Under the Oregon Workers' Compensation laws, we earn an attorney fee only if we obtain additional or new benefits for our client. Depending on the benefit at issue, the insurance company pays our fee, or it comes out of any increased compensation to the injured worker. Either way, the State of Oregon must approve the fee.
If you have a question about your accepted Oregon Workers' compensation claim, call 503-325-8600 to schedule a time to meet and discuss your claim.
How do I Pay attorney fees on an Oregon Workers' Compensation claim
Oregon Workers' Compensation regulates just about every aspect of making a claim for an on-the-job injury. For example, there are rules that tell insurance companies how much it must pay you for any mileage for traveling to and from medical appointments, as well as the amount of money to reimburse you for any meals or lodging while going to and from doctors. The statute also regulates how much physicians and other medical providers can charge for their services. Attorney fees are no different.
If you hire an attorney to represent you on an Oregon Workers' Compensation the attorney is paid only if he or she is "instrumental" and getting you a benefit that was denied, or underpaid. If the benefit you are fighting over involves payment of money, which would include temporary total disability (wage replacement) or permanent partial disability (compensation for lost earning capacity), then the attorney is paid only if he or she obtains additional amounts for these benefits. If the attorney prevails, then the fee is a percentage of the increased benefit amount. Before the fee is paid, the State of Oregon must approve the fee. This may be from the Workers' Compensation Division, or the Workers' Compensation Board.
If there is a dispute over whether you're entitled to a benefit in the first place, then the employer or its insurance company will pay the attorney fee, but only if the attorney prevails. For example, if you have a denied claim, and your attorney appeals that denial, and prevails at the hearing, then the Administrative Law Judge will order the employer or its insurance company to pay the attorney fee. In addition to that, the judge may require the insurance company or its employer to pay the cost of going forward with the hearing. This could be significant. These are commonly referred to as "assessed fees."
Another example of this kind of fee involves Vocational Rehabilitation. If your request for vocational rehabilitation is denied, and your attorney helps you get that denial overturned, then the Workers' Compensation Division will order the employer or its insurance company to pay your attorney a fee, aced upon how much time your attorney has invested in getting the denial overturned.
There are other examples of attorney fees in the Oregon Workers' Compensation system. All this is designed to give injured worker's access to an attorney, which is a good thing because the system is complex. If you have an issue with a denied or even an accepted workers' compensation claim, and have questions, calls at 503-325-8600. We can review your file, and help you decide whether a makes sense to pursue an appeal, or make an additional claim.
Should I settle my Oregon workers' compensation claim
We have written quite a few articles that talk about the pitfalls and advantages of settling a workers' compensation case. This is yet another article, and in it, I share some thoughts on things that clients and I will discuss in deciding whether to settle a workers' compensation case, and for how much.
We write a lot articles on this because one of our most frequently viewed articles deals with settlement of Oregon Workers' Compensation claims. We know this is an important issue because many insurance companies will provide an injured worker with a settlement agreement, but little explanation as to what the agreement actually means. To get a basic idea of what these agreements involve, check out these two articles that deal with settlement of denied claims and accepted claims. Whether you should settle a case as a whole different issue. Of course, I would not and could not answer that question for every injured worker in a brief article. But we can give you some things to think about.
First, you should look at what happens if you decide to settle and what happens if you decide not to. For example, if your claim has been denied, and you have been approached with a disputed claims settlement, it's a good idea to know what kind a evidence you have that would overcome the denial. If your doctor feels that your medical condition is work related, and can explain it in a clear and well reasoned manner, then you may be able to prevail on the claim. If you do, you have the right to seek significant benefits, including medical services, wage replacement or disability, permanent partial disability, and possibly even vocational retraining. When we evaluate a claim for settlement, we have to get a good idea of what the chances of prevailing at hearing are before we can advise our client on settlement.
If you are considering settlement of your accepted claim, you should know what it is that you are giving up in exchange for a sum of money. For example, if you enter into a claims disposition agreement, which is the settlement of an accepted claim, you are giving up all benefits except for the right to request medical coverage in the future. Some people come to our office in say that they resolved their claim, but have "medical coverage for life." This is not really accurate. Instead, an injured worker who enters into a claims disposition agreement has the ability to request that the insurance company pay for future medical care, but that insurance company can deny that request. You can appeal this denial, but that can be a challenge in some cases.
Here is something else to think about with claims disposition agreements. If you settle your case with a claims disposition agreement, you still have the right to request medical care. However, if you require significant care, like a surgery, which will keep you off work, you will not be entitled to any wage replacement while disabled from work. This is because when you settled your case, you gave up the right for any wage replacement if you are disabled as a result of medical care. Depending upon the nature of your injury, that can be a significant benefit.
Whether your case involves settlement of an accepted claim, a denied claim, or both, the overall consideration is the long-term. For example, if you suffered a significant injury and are not able to return to the job you worked on the date you are hurt, then you have to figure out a way that you're going to earn a living in the future. Sometimes, the only way you will earn a wage comparable to the wage at date of injury is to undergo vocational training. If you decide to resolve your case, and you need help with retraining, you should at the very least have some kind of plan on what kind a career you intend to pursue with the funds you recover as a result of the settlement.
We are not saying that all settlements are a bad thing. A settlement of a workers' compensation claim in Oregon can be a great thing. It gets the insurance company out of your life, and gives you some control over your future. However, it is a big decision, and there is a lot to think about.
If you have an accepted claim, and you wonder if it makes sense to enter into some kind of settlement agreement, call us at 503-325-8600. We can review your claims file, and advise you on your best options for settlement. And best of all, we do not charge a fee unless we are able to resolve the case in your favor.
How do I pay a lawyer to help with a Social Security Disability appeal?
Social Security Disability benefits are provided under the Social Security statute. The statute tells us what you need to prove in order to obtain benefits. It also regulates how attorneys can be paid for their work representing disability claimants.
The most important thing you should know is that an attorney representing a disability claimant cannot charge a fee unless the attorney is successful in obtaining benefits. If the attorney does not get a favorable decision for the client, there is no attorney fee. If the attorney is successful, then the fee comes out of retroactive benefits. "Retroactive benefits" are those benefits that have built up from the date your disability started up until the date of the favorable decision. The attorney is entitled to no more than 25% of the retroactive benefits, but to no case, can the fee exceed $6000.00. In other words, the fee is the lesser amount of 25% of retroactive benefits, or $6000.00.
For example, if your retroactive benefits total $4000.00, then the attorney fee would be 25% of that amount, which equals $1000.00. However, if your retroactive benefits were $40,000.00, then the attorney fee would be $6000.00.
The $6000.00 limit on attorney fees applies to cases at the initial appeal, known as "reconsideration," and at the hearings level. The hearings office is known as the Office of Adjudication and Disability Review, or "ODAR." Some attorneys handle cases at Federal Court, and a different statute may govern how attorneys are paid for their fees. Nonetheless, the fees will still come out of retroactive benefits.
The statute also allows attorneys to charge an hourly rate, based on their time involved in the case. Again, this fee is subject to the 25% or $6000.00 rule.
When a Social Security Disability claimant hires us, we review the written fee agreement with our client, and then submit that fee agreement to Social Security. When we win a case, the Administrative Law Judge approves the fee agreement.
If you are curious about whether an attorney can help you on your Social Security Disability claim, call us at 503-325-8600. We have over two decades of experience working with disability claimants, and can let you know where you stand with your case.
Who can I go to for medical care on my Oregon Workers' Compensation claim?
There are a couple of provisions in the Oregon Workers' Compensation statute that tell us who can treat an on-the-job injury for an injured worker. The first place to look is at the definition of an "attending physician"
in the statute, an "attending physician" is a doctor, physician, or a physician Assistant who is primarily responsible for the treatment of your compensable injury. However, there are a lot of qualifications. If the physician is a Doctor of Osteopathic the, or a Medical Doctor licensed in the State of Oregon, that type of physician can remain your attending physician throughout the life of the claim.
Chiropractic physicians, Physician Assistants, or a Naturopathic physicians can act as the attending physician for either 60 days from the first visit or for a total of 18 visits, whichever occurs first.
The administrative rules also provide that Nurse Practitioners can act as attending physicians for limited periods of time. There are exceptions if the Nurse Practitioner is providing care under the direct supervision of a Medical Doctor or Doctor of Osteopathic.
Another part of the Workers' Compensation system dictates who can treat your injury if your insurance company or employer contracts with a "Managed Care Organization" or "MCO." These organizations are like health maintenance organizations. If the insurance company contracts with an MCO to provide your care, then you must treat with a physician who is a member of the MCO panel. There are some exceptions, but this often creates another level of bureaucracy that impedes an injured worker's access to health care.
Even if you have an accepted claim, the attending physician can play a major role in determining whether not you are entitled to certain medical care, and whether your claim remains open, closed, and whether not you qualify for permanent partial disability benefits. The good news is that the statute allows you to change her attending physician, but only for a limited number of times.
Even if you have an accepted workers' compensation claim, you may have questions, and can call us at 503-325-8600. We can discuss the issues in your case, and help you determine whether not you need an attorney in the first place. If you do, we only get paid if we get a benefit for you that's been denied or underpaid.
Should I appeal my Social Security Disability denial?
The Short Answer: When in Doubt, Appeal.
The Long Answer:
Many of the people coming to us for help with Social Security Disability have applied in the past, but when their claim was denied, they chose not to appeal the denial. This can create problems for the claim. Some can be solved, but sometimes they cannot. If you are not sure whether it makes sense to appeal your denial, please consider the following:
First, going through the appeals process with Social Security disability can be a long-term proposition. Many folks will wait several months for the initial decision. If the initial claim application is denied, a request for reconsideration may only take a month, but could drag out to for five or six months.
The next appeal after a reconsideration is denied is a request for hearing, and depending upon the hearings office that schedules your case, you can be looking at well over a year before you get in front of an Administrative Law Judge. Sometimes a medical condition will improve after all these months, but other times, it will progress, and worsen.
The point is that you may not know where you will be with your health by the time a hearing is scheduled, and for that reason, it makes sense to appeal the claim and move forward. You can always withdraw your claim if your condition improves, and return to the work force.
Second, another problem not appealing a denial is that it may prevent a new application down the road. Depending upon the facts of your case, if you file an application for disability benefits, and that claim is denied, it may prevent you from filing a new application in the future. In many cases, Social Security will claim that it already decided that you are not disabled, and unless you are able to come up with new evidence that was not in your claims file the first time around, your claim will be denied. Making sure you appeal your denials will give you your best shot at having the case heard and decided with all of the required information.
If you have questions about whether to appeal a claim denial, call us at 503-325-8600. We can review your case, and let you know the consequences of appealing the denial, or not.
Do I need an attorney for my Social Security Disability claim?
There is no law or rule that requires you to hire an attorney to represent you on your Social Security Disability claim. Disability claimants can file their request for reconsideration or request for hearing without the help of an attorney, and can even appear at hearing in front of a judge. However, here are some things to think about when deciding whether you need an attorney to help with your Social Security Disability claim.
First, under the Social Security statute, an attorney cannot charge a fee unless your claim is approved. The fee is based on the attorney’s time working on the case, or a percentage of the retroactive benefits. All fee agreements must be approved by the Social Security Administration. If your attorney is unsuccessful in obtaining benefits, there is no attorney fee. This minimizes the risk of hiring an attorney.
Second, Social Security is a complicated area of the law. There are many potential issues you may face going into a hearing. For example, if you performed some kind of work after the date you claim your disability began, is that “significant gainful activity?” Is your medical condition “severe” in that it interferes with work activity? Other possible issues include whether you meet an impairment listing, your residual functional capacity, and whether you can perform any work that exists in significant numbers in the national economy. Often times, a well-meaning physician will write a letter supporting your claim, but may not address the critical questions Social Security needs to make the right decision on your claim.
Finally, we see many cases where medical records critical to the case have not made it into the claims file, or where the Social Security Administration simply does not have an accurate understanding of your past work and your current medical condition.
Overall, it makes sense to have someone helping you with the case.
That raises another question of how to go about selecting an attorney.
Social Security Disability is a federal benefit system, and as a result, any attorney or approved non-attorney representative can represent a disability claimant, regardless of location. We have seen situations where non-attorney representatives clear across the country in the Northeast will represent a claimant in Oregon or Washington. Although some of these national firms may do a good job for their clients, we have heard some sad stories regarding the quality of representation. It is not unusual for a disability claimant to meet their attorney or representative for the first time just a few minutes before the hearing in the hearing office waiting room.
If you are considering retaining a representative or lawyer that handles cases on a national level, make sure you understand how the firm will work with you, and handle your case. Will there be one representative assigned to your case? Will the representative assigned to your case also go to hearing with you? Will there be a pre-hearing appointment other than a brief meeting in the waiting room before you go in and see the Judge? Find out how your firm or attorney will handle the case before making a decision, and do not be shy about talking to a few different firms or attorneys.
If you have a denied Social Security disability claim, call us at 503-325-8600. We will meet with you in person, and explain the appeals process, what you must prove, and how we work with clients. Then, we leave it up to you to decide whether you would like us to help with the case, and encourage you to check around with other attorneys or representatives before making your final decision.
What is the "compensation" part of Oregon Workers' Compensation?
When somebody makes a claim for Oregon Workers' Compensation benefits, the "compensation" part of things involves a series of benefits. This article provides a brief list of those benefits, and explains what they are. Essentially, "compensation" refers to all benefits, including medical services that are provided for a compensable injury. Sometimes, the term "compensation" is important so that an attorney representing an injured worker can decide where to take a dispute. Some parts of the Oregon Workers' Compensation agencies address only those issues that involve "compensation."
If you are involved in an Oregon Workers' Compensation claim, and have questions about the benefits you may be entitled to, call us at 503-325-8600. We handle these kinds of cases every day, and can help you learn where you stand with your claim.
What exactly is a "compensable injury?"
That is a pretty big question. The Oregon Worker's Compensation statute defines a compensable injury as an accidental injury that arises out of and occurs in the course and scope of employment requiring medical services are resulting in a disability or death. In order to prove a compensable injury, the injured worker must establish an injury with medical evidence that shows objective findings of injury.
So, there are many elements to establishing a compensable injury. First, you have to show that an injury occurred at work. Second, you have to show that the injury required medical care, or that if disabled you from work. Next, you have to show through medical evidence some objective findings supporting the existence of an injury. That leads to a question as to what "objective findings" are. Essentially, these are findings that a physician makes on examination that are repeatable and observable without input from the injured worker. Often, whether there are objective findings turns on an expert medical opinion.
If your claim involves only a "compensable injury," then you must show that the work activity was a material cause of the need for treatment or disability resulting from the injury event. You do not need to initially prove any specific medical problem, but instead the need for care or resulting disability. The term "material contributing cause" simply means that the injury event was a significant factor in causing the disability or need for treatment.
But there is a lot more. Oregon Workers' Compensation law recognizes all different kinds of compensable injuries. There are also some limitations applied to the general definition.
For example, there is a compensable injury known as a "consequential condition." This occurs when the compensable injury is the major cause of a new or different medical condition that is a direct result of the original injury or medical condition. For example, if you injured your right leg, and a cause you to favor your left leg. If a very her left leg caused medical problems to the left leg, then that could be a consequential condition. Again, a lot of this depends on medical opinions.
Then, there are "combined conditions." You will find a lot of articles on this website about "combined conditions." Essentially, a combined condition exists when an injury event, like a fall from a ladder or lifting a heavy box combines with some "pre-existing condition." Sometimes, there are disagreements as to whether not the injury combined with a pre-existing condition, or if there is a pre-existing condition at all. The key to this part of the definition is that an injured worker must show that the injury event is the major or dominant cause of the need for treatment or disability. This is why it is important to determine whether a condition or injury at work combined with some pre-existing condition.
The definition in the statute also provides a list of what is not considered a compensable injury for example, if an injured worker actively participates and assaults or combats, then that is not a compensable injury. If the worker is injured as a result of recreational or social activities primarily for the worker's personal pleasure, that is not a compensable injury under the statute.
If there is an injury on the job, and the employer is able to show that the major cause of that injury as a result of consumption of alcoholic beverages or drugs, then that is not a compensable injury unless the injured worker can show that the employer knew about the consumption, or encouraged it. It is important to point out that "major contributing cause" means that the drug or alcohol use, more than any other factor, caused the injury.
These kinds of claims will also be categorized or classify as either "disabling," or "non-disabling." This is known as "classification." A "disabling" injury is one that causes disability from work, or is expected to result in some permanent impairment. If you have an excepted claim, the Notice of Acceptance will tell you whether your claim is classified as "disabling," or "non--disabling." It is important to know the difference, because it could affect your eligibility for other benefits. If you do not believe your claim was properly classified, you can request that the classification be amended. However, there are strict time limits, and you must make this request within one year of the date of the Notice of Acceptance.
Still have questions? Call us at 503-325-8600. We can discuss your claim, and let you know if you even need to get an attorney involved in the first place.
What is the "average weekly wage," and what does it have to do with my temporary total disability benefit?
"Total temporary disability" or "temporary partial disability" (also referred to as "time loss") is the wage replacement benefit that is available to an injured worker if the attending physician authorizes the worker to be off work as result of the on-the-job injury. The amount of that benefit calculated by first figure out the worker's average weekly wage.
There are many rules that govern how an employer or its insurance company determines your time loss benefits. However, the general rule provides that the insurance company obtains your wage records for the 52 weeks prior to the date you were injured. The insurance company then calculates the total wages earned, and divides that amount by the number of weeks (52). If you have not been working for the employer for a full 52 weeks, then the insurance company simply uses the number of weeks that you actually worked. There are other rules that apply to seasonal and temporary workers.
Once the insurance company figures your average weekly wage, then as a general, it will calculate your temporary total disability benefit at 66.6% of your average weekly wage. Sometimes, the insurance company will not have accurate information when a calculates your temporary total disability benefits. If you feel you are being underpaid, you can request a hearing to have an Administrative Law Judge review the issue.
Even if the insurance company has not yet decided to accept or deny your claim in the first place, you are entitled to this benefit while the claim is being decided, but only if your physician has authorized you in writing to be off work.
If you have questions about whether you are receiving correct temporary total disability or temporary partial disability benefits, costs of 503-325-8600. We can review your case to determine whether not an appeals warranted. And, we only can charge a fee if we obtain additional benefits for you.
What are "punitive damages?"
Punitive damages are best described as "punishment damages." Unlike compensatory damages, punitive damages are available when a defendant's behavior is so egregious, that it socially unacceptable. The goal of punitive damages is to deter a defendant from engaging in this type of behavior in the future.
In Oregon, in order for a plaintiff to bring a claim for punitive damages, the injured plaintiff must first establish evidence that the defendant's behavior for exceeded the bounds of socially tolerable conduct. If the plaintiff has such evidence, then the plaintiff must file a motion to amend her complaint so that the punitive damage request can be included as part of the lawsuit.
Over the years, the Oregon Court of Appeals and the Oregon Supreme Court have ruled on what kinds of behavior allows for punitive damages. Criminal behavior, obviously because it is not socially accepted, will give rise to a claim for punitive damages. Assault, battery, and drunk driving are some common examples of behavior that allows a claim for punitive damages.
Even if a plaintiff is permitted to bring a claim for punitive damages, she will face several obstacles. First, the amount of damages awarded has to be rationally related to the defendant's behavior, and in some cases, the courts will find some awards excessive, in violation of the defendant precious constitutional rights. There must be some connection between the behavior, and the defendant's wealth in assessing punitive damage awards.
Some other facts about punitive damages:
- In almost all cases, insurance will not cover any award for punitive damages. This is especially true with punitive damages arising from criminal behavior. It is a public policy in Oregon that people should not be able to ensure their criminal behavior. That only makes sense.
- There are caps on how much an attorney can recover as an attorney fee out of a punitive damages award.
- 60% of any punitive damages award are payable to the Attorney General for Criminal Injuries Compensation Account of the Department of Justice Crime Victim's Assistant Section, and is allocated toward crime's victims assistance payments.
- 10% of the punitive damages award is also payable to the Attorney General. However this part of the award goes to a State Court Facilities and Security Account.
In many cases, we have represented people who were injured, and also considered a crime victim. There are many considerations when dealing with a District Attorney Victims Compensation office while at the same time, pursuing a personal injury claim.
If you are a crime victim, and have questions about your dealings with the District Attorney, and your personal injury claim, call us at 503-325-8600. We have helped many people get through this process, and can answer your questions.