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.
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Can I get fired for an on the job injury?
The Short Answer
Unfortunately, the answer is “it depends.”
An Oregon statute protects injured workers from an employer’s retaliation. However, like any statute, there are limits.
Let’s set this up with the general rule, and then go from there.
Oregon is an “At Will” State
Oregon is an “at will” state. This means that unless you have a contract or agreement with your employer, you serve at the employer’s pleasure. The employer can fire you for any reason or no reason at all.
The exceptions occur with federal and state statutes that prohibit certain types of discrimination. There are also some protections that come from Court of Appeals and Supreme Court made law. Some federal statutes address age, gender and racial discrimination. These statutes apply to some, but not all employers. The fine print tells us that thee statues apply only to employers with a minimum number of employees.
Oregon has its own civil rights statutes. The protections range from housing, employment, and on the job injuries.
One of these statutes protects injured workers from an employer's retaliation against the injured worker, but it does not end there.
However, keep in mind that suffering an on the job injury does not totally shield you from employer discipline or termination. If you were under the influence of drugs or alcohol or getting into a physical fight or altercation with a coworker when injured, the employer may still fire you. This statute applies only to situations where the employer targets the on the job injury as the reason for discrimination.
What the Law Says for Injured Workers
The statute's protection is still a broad protection from retaliatory conduct and includes workers that may not actually file a Worker’s Comp. claim but “invoke” the workers’ compensation system. A good example would be a worker who makes an inquiry about filing a claim, but does not follow through. The employer can not target this worker.
Workers who are not injured on the job, but participate in the workers’ compensation system by testifying as a witness are also protected.
So, it's not just injured workers, people asking about filing a claim, and workers who testify at a Workers' Comp. hearing are protected.
What is considered discrimination is also broad.
The statute says that an employer may not discriminate against the worker “on any hire or tenure of any term of the employment relationship because the worker applied for benefits . . . “
When we talk about “hire or tenure of any term or condition of employment,” this covers just about every term of an employment relationship. That can include hours that are scheduled, the type of work scheduled, the location of the work, the rate of pay, and ultimately getting fired.
Another key aspect of this statute is that the discrimination has to be “because of” applying for benefits, invoking the workers’ compensation statute, or testifying on behalf of an injured worker, or even an employer and a workers’ compensation case. Basically, this means that the injured worker must show a connection between the discrimination and the filing of a workers’ compensation claim or any other protected behavior in the statute.
- The statute protects not just workers who file a claim, but those who may just ask about it.
- The statute protects other workers' who testify at a hearing.
- The statute applies to any term of employment (hours, wages, scheduling), not just job termination.
What Employers Do (Sometimes)
Most employers, in our experience, do the right thing. They may not be thrilled about an employee with a workers’ compensation claim but will not outright violate the discrimination statute. However, some employers who are hostile to the claim will attempt to get around the statute and push our client out the door.
Some employers will look for other reasons to fire or discriminate against an injured worker. Behavior that technically violated a work rule may no longer be tolerated. Years ago, we represented a millworker who drove to work every day in an old pickup truck. It burned oil, and occasionally he would go into the oil room and take a Dixie cup full of oil to put in his truck. Nobody cared until he was injured on the job. Then, when he went to get some oil, he was fired for theft.
Employer's may also invent other reason for cutting hours, reducing an hourly wage, or terminating an employer. The law is always changing, but courts have ruled that even if the termination is for a valid reason, there could be a mixed motive in the reason for a change in job status.
Other times, the employer will “push the envelope,” and while not blatantly discriminating against the worker, make the work environment intolerable, forcing the injured worker to resign or quit. There may be a claim for discrimination, but it could be a challenge to prove.
Another tactic we see is employers violating modified work restrictions. Sometimes an employer will offer an injured worker a modified job to get them back to work earlier. There are many requirements for a valid modified job offer, and many times, its a win-win situation.
But sometoimes, employers violated the modified job restrictions, forcing the worker to perform work beyond the outlines and the work restriction. We have seen positive results by notifying the workers' comp. claims adjuster that the employer is doing the wrong thing. A smart adjuster knows that an employer pushing an injured worker beyond their limits may end up creating yet another on-the-job injury claim, and put a stop to this abuse.
What You Can Do
The best thing you can do is “keep your nose clean” as they say. Pretend that you have just started working for the employer and assume that even the slightest workplace violation will not be tolerated. If a supervisor or manager is asking you to perform work that is beyond a modified work release, contact your adjuster as soon as possible, or if you have a lawyer, call the lawyer. Also, document the work you were being asked to perform, and report it to your doctor as well.
If you intend to make a claim for an unlawful employment practice like this, you can file what is called an “administrative” claim with the Bureau of Labor and Industries (also called “BOLI”). BOLI investigates the case, and if it decides that it will not pursue the case further, you can then file a claim in court within 90 days after the mailing of the notice from BOLI that it does not intend to further pursue the matter.
Another option is to skip the administrative claim, and file a lawsuit directly against the employer within one year of the date of the discriminatory conduct.
There are administrative rules that further flesh out how these claims were, and we advise you to confer with an attorney if you feel you have a claim. There also may be other time limits at play, especially when the employer is a public agency.
Although we do not handle employment matters, we often worked side-by-side with employment lawyers when our workers’ compensation client has employment claims arising from the on-the-job injury. Contact us with questions, and we can provide referrals to good employment lawyers, or at the very least, point you and the right direction.
Can the claims adjuster close my file if I do not accept a settlement offer for my injury claim?
Yes, but so what?
Let’s Talk About the Adjuster
Adjusters work for insurance companies, and insurance companies are regimented in the way they do things. Adjusters have to account for every move they make on a case. Each decision they make is being watched. There are methods on claim negotiation that these adjusters employ to meet the insurane company's goal.
What is the goal?
The insurance company’s goal is resolve the claim quickly and cheaply. If the initial adjuster you deal with on your injury claim can get you to resolve the claim for a small amount of money soon after the collision or injury, they are doing their job: saving the insurance company money. And if they do it well, they are often rewarded.
Typically, the adjuster you deal with initially is not all that experienced but is trained to get a quick and inexpensive settlement.
The Old “Fake Deadline” Trick
One of tactic is the fake deadline. It goes something like this:
- A settlement offer is made;
- There may be some discussions about it, maybe even a counter proposal from the injured person;
- Another offer may have been made;
- If the injured person hesitates on the offer, a letter or call is made saying that the offer is only good for “X” days, and if not accepted, the file will be “closed.”
Obviously, the threat here is that the injured person is losing any claim they have and will be unable to recover any compensation for their injury. But what is really happening?
Yes, the adjuster is free to close their file, and they could even withdraw any settlement offers (We do not see this happen very often). However, state law, not the adjuster, determines the time limit you have to pursue your case.
The Real Deadline
In Oregon, and injured person generally has two years from the date of the injury to have their case filed in the appropriate court or resolved by a settlement agreement. This is often referred to as a “statute of limitation.”
This is a GENERAL rule, and other, shorter time limits could apply. For example, in claims against a governent agency, there are notice requirements. Claims against providers of alochol for serving a visibly intoxicated person also include tight deadlines to notify the alcohol provider of the claim. However, when an adjuster decides to close the file, the claim does not suddenly disappear.
Why Adjusters Use the Fake Deadline Trick
Below are examples from actual cases we worked on showing how an attempt to “close the file” or run out the clock on the statute of limitation did not work for the insurance adjuster.
- We represented a young woman who sustained a major injury at a commercial establishment. She contacted us within weeks of the two-year time limit expired for resolving or filing her case. The insurance adjuster had made no offers, and based on our review of the file, it appeared that the adjuster was hoping the time limit would run and our client would not be able to bring a claim. We were able to get the case filed at the last minute and resolve the case for close to $200,000.00. This is not an ideal situation, and if we had to do it over again, we would have had the client contact us much sooner in the process. Still, we were able to beat the deadline and resolve the case in our client’s favor.
- In a recent case, our client was driving southbound on Highway 101 when another car pulled out from a side street and failed to yield the right-of-way to our client. The collision was high-impact, and our client immediately reported symptoms consistent with traumatic brain injury. She sought various modes of therapy to help with her ongoing symptoms. We were involved in this case in plenty of time. However, the initial offer from the initial adjuster was in the $5,000.00 range. We filed the case, exchanged medical records and other documents, and after deposition, resolve the claim for $80,000.00 in addition to medical expenses.
- Another recent case drives home this point. Our client was driving southbound on Highway 101 in Tillamook County, and another driver pulled out into our client’s lane of travel when attempting to make a “U” term. Our client, who had suffered serious injuries in other previous collisions, struggled with strain and sprain injuries, and a concussion. The initial offer on this case was $4,000.00 plus the medical expenses. After we file the matter, a defense attorney deposed our client, and the case quickly resolved for $40,000.00 plus the medical expenses.
These cases are illustrations, and every case has unique issues that determine settlement value or potential recovery at a jury trial. However, a common theme here is an insurance company attempting to resolve the claim for an amount many times less than its potential settlement value.
The “Attorney Will Get All Your Money” Trick
Another common tactic is the “the attorney will get all your money” threat. This may not even be legal, but just like driving too fast on the freeway, it’s common. An attorney will get “some of your money.” But when you consider the examples above, it may be well worth it. Again, this is not true in every case, but it is certainly true much of the time.
The “Minor” Injury Case
We frequently get calls from folks who suffered an injury in a collision, but luckily for them, it’s temporary and minor. In these kinds of cases, it may not make sense to have an attorney involved because the case will only have so much settlement value, and having an attorney involved may not be cost effective.
When we confer with these folks, one thing we emphasize is the two-year time limit (again there could be other time limits) and how it allows them to make sure that they are in fact totally recovered from the minor injury. It makes sense to take a few months to make sure you can do all of your pre-injury activities without issues. Then, when you are convinced that you are 100% back on track, you can entertain resolving the claim.
There are some “minor” to “moderate” injury claims that may deserve an attorney’s attention. Oregon statute allows an attorney to make a demand for $10,000.00 or less for injury and property damage claims. If the adjuster does not respond within thirty days of the demand, or offers less than the amount demanded, there is a potential for recovery of attorney fees if the case is filed in court and the attorney obtains a result greater than the amount offered before trial. This statute will often prompt a more realistic settlement offer from an insurance adjuster because of the threat of paying attorney fees on top of compensation for the injury.
Why Patience is a Virtue
When we confer with a potential client, we emphasize the virtue of patience (again respecting all time limits) in resolving an injury claim. The example below drives this point home.
- A hairstylist contacted me many years ago. She had been rear-ended in an auto collision. About two weeks after the collision, the insurance adjuster offered her $500.00 to resolve the claim. The hairstylist accepted the offer and signed the settlement agreement. A few weeks went by, and the hairstylist noticed that when she had her arms outstretched while cutting hair, pain shot from her neck into the arms. Her arms were weak, and she lost sensation in her hands. She was struggling with her work. A visit to the doctor revealed that the collision caused herniated a disc in her neck and required surgery. We tried to find a way to nullify the settlement agreement, but unfortunately, it was legally valid, leaving the hairstylist all on her own to get the medical care she needed.
This happened thirty years ago, and I have never forgotten it. I share this story at least once week when explaining the seriousness of a claim settlement.
The Bottom Line
The insurance company adjuster for the other driver, or the at fault driver, is not your friend, and they are not going to “look out” for you, no matter how friendly they may seem. Their job is to resolve the claim for as little and as quickly as possible.
QuestionsNot sure where your claim stands? Contact us. If we cannot help you, we will find someone who can, or at least set you on the right
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?
Where Permanent Partial Disability Fits
Oregon Workers' Compensation is an insurance benefit system for injured workers. The statute requires employers to provide a schedule of benefits to injured workers regardless of fault. The statute also tells employers how to process claims, and provides a framework to resolve disputes for denied claims or deny benefits.
Every workers' compensation claim involves medical services. If the injured worker is disabled, the second benefit provided is wage replacement, also known as temporary total disability or "time loss." Permanent Partial Disability, also known as "PPD" is supposed to compensate the injured worker for permanent lost earning capacity. However, the actual compensation is determined through a complicated set of rules.
When and If You Are Entitled to PPD
When the injured worker has completed treatment, and there is no expectation of improvement with more time or medicine, the injured worker is considered "medically stationary." At that point, if a closing examination shows measurable permanent impairment, the injured worker is entitled to permanent partial disability. The permanent partial disability benefit, also called "PPD" is supposed to represent compensation for lost earning capacity. However, it is based on the impairment rating rules, which provide a specific formula to calculate the dollar benefit.
Whether you qualify for PPD depends on what kind of injury you suffered, whether it causes permanent limitations, and if so, how much. Sometimes, an injury may cause some form of permanent impairment. However, to qualify for PPD, the permanent impact of an on-the-job injury must "show up" on the impairment rating standards, which are designed to determine how much a permanent impairment interferes with someone's ability to do work activity.
PPD does not include compensation for "pain-and-suffering," or a permanent loss of enjoyment of life. It is strictly related to how a permanent impairment impact someone's ability to perform work.
The Types of PPD
There are two types of PPD benefits. 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.
Where Do You See Your PPD Calculations?
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. In most cases, the Workers' Compensation Division will adopt the findings of the medical arbiter in deciding the appeal. It is important to know the risk before appealing your claim closure, because you could end up with less benefits than you did at closure.
Also, when you appeal the Notice of Closure, the Workers' Comp. Division will look at other issues on your claim, like whether it should have been closed in the first place, and whether you were paid for all the time you were off work becuase of your injury.
Questions? We handle these cases every day, and can help you know where you stand. Contact us, or check out our website for other articles about who claim closures work.
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 a car accident lawyer 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?"
Making Up for What Was Lost
The term "compensatory damages" refers to a claim for the amount of money that it will take to make up for what a person lost. For example, if you are injured in a car collision in Oregon, you can make different kinds of claims for compensatory damage. The bottom line, however, is that the claim for compensatory damages is aimed at getting back what a person lost. It is not a prize, or an award. There are different kinds of compensatory damages. Let's break it down into smaller pieces.
Economic Losses: The Objective Losses
Any kind of claim that can be verified with some objective evidence is a claim for "economic damages." This is the phrase law makers gave this kind of claim. All this means is that there is something you can point to that shows the amount of the loss. In an Oregon personal injury case, medical expenses and lost wages are the most common examples of this kind of claim. An injured person and an insurance adjuster will agree that a certain medical bill is a certain amount. The number is right there on the bill. The adjuster may not agree that the medical care was necessary, or that it was a result of their insured's careless behavior. They may also argue the bill is too high. But one thing everyone can agree upon is that the bill is for a certain amount. That is what makes it objective.
Lost wages are the same. If a doctor takes you off work for two weeks, and your wage records show you make $400.00 a week, then everyone will agree that the claim is for two weeks of lost income at $400.00 per week, or $800.00. There could be arguments about whether you were disabled as long as you claim, or whether the disability was a result of someone's careless behavior. But everyone will agree on the math.
In some cases, a person may have a permanent but partial loss of ability to earn, or the injury may have disabled them from any future work. In those kinds of cases, an injured person can seek compensation for future lost earnings, or future lost earning capacity. The same is true for future medical care needs. Whenever you are making a claim for future losses, you will probably need a medical expert or life care planner to explain the need for future medical bills. A treating doctor opinion is also required to prove future disability, and you may need to have a vocational expert calculate and explain future lost earnings.
Non-Economic Losses For the Loss of Health
The other kind of compensatory damage claim you can make in Oregon if another person carelessly causes you injury is a claim for "non-economic" damages. Again, this is the phrase from the statute. This kind of compensatory damage is compensation for the loss of your health. Oregon law recognizes that everyone is entitled to be a whole person. If someone is careless, and takes a part of that away from you, even if it is temporary, you are entitled to be compensated for that loss.
Juries, when asked to determine how much to compensate someone for this loss, are instructed to consider the "subjective, non-monetary" losses a person suffered because of another's negligence or carelessness. This can include inability to participate in activities outside of work, pain, suffering, and the emotional distress that goes along with being injured. Jurors are also told that they must be reasonable in determining the amount of non-economic damages a person deserves to make up for their harms and losses.
There are many factors that go into determining a "reasonable" amount of compensation for non-economic damage. How badly was the person injured? How painful was the injury? How much did it interfere with their everyday life? One important factor is whether the injury's effects are permanent. Some injuries are life changing. If someone suffers a permanent loss from an injury, a jury can consider the life long consequences of the injury in determine what is fair to compensate for the loss.
How Much is Fair?
That depends on who you are asking. A person suffering a life changing injury is going to have a different opinion than an insurance adjuster. At the end of the day, what is fair is what a jury or other decision maker says is fair.
If you are facing a serious injury claim, and have questions on where to go next, contact us. We help people with these kind of issues every day.
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 Everything
Oregon Workers' Compensation regulates just about every aspect of an on-the-job injury claim. For example, rules tell insurance companies how much it must pay you for any mileage for traveling to and from medical appointments and sets limits on reimbursement for 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.
How Your Attorney Gets Paid
Your Oregon Workers' Compensation attorney is paid only if "instrumental" in getting a benefit denial overturned, increasing a permanent partial disability award, or negotiating settlement of your claim. The State of Oregon, through an Administrative Law Judge or agency official, must approve the fee before it is paid.
Attorney fees are earned only with success. That is what the “instrumental” language is all about. If your attorney is not successful in appealing a benefit denial, claim denial, or a Notice of Closure, there is no fee. This minimizes your risk in hiring a lawyer to help you with the claim.
“Costs” and How They Are Paid
In some cases, the insurer may even have to pay the costs of fighting a claim denial. An njured worker’s attorney often incurs expenses in fighting a claim denial, including the cost of obtaining medical records, and presenting medical expert opinions. Instead of passing these costs to the injured worker after overturning a denial, insurers must pay costs in addition to attorney fees.
Our workers compensation fee agreement covers all the contingencies.
If you have an issue with your workers’ compensation carrier, and want to know if we can help, contact us. At the very least, we can help you know where you stand.
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.