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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What is a "disabling compensable injury?"
In the Oregon Workers' Compensation system, an insurance company must classify accepted claims is either "disabling," or "non-disabling." A "disabling" claim is a claim that results in lost time from work or is expected to cause a permanent impairment.
This distinction is important, because only disabling claims resulting in a Notice of Closure, and possible entitlement to permanent partial disability benefits. If your claim is classified as a non-disabling claim, even if you have some permanent impairment, if that classification wasn't changed, you will never receive permanent partial disability benefits.
If you have a recently accepted claim, and are curious as to whether not the insurance company accepted everything and did in the right way, call us at 503-325-8600. We work on these issues every day, and cannot BE better understand your rights.
What is a "claim" under the Oregon Workers' Compensation system?
When we attempt to define a term of art involving Oregon Workers' Compensation claims, we always start with the statute. Many of the terms lawyers in the Oregon workers' compensation system use day-to-day are defined in the statute. From there, we then look to the Oregon Workers' Compensation Board decisions that flesh out or clarify the definition of these terms. Sometimes, we even rely upon Oregon's Court of Appeals or Supreme Court for the final word.
So, the statute defines a "claim" as a written request for compensation from a "subject worker," or someone on behalf of the worker, or a compensable injury that the employer knows about. A "subject worker" is a worker that is subject to the protections of the Oregon Workers' Compensation system.
There are many cases that wrestle with the issue of whether an actual claim was made. Sometimes, the issue is whether not the claim was made in writing. Sometimes, the issue is whether or not the employer knew about the injury.
Generally speaking, a worker must file written claim within 90 days of an injury event. However, if the employer actually knows about the injury, that time I may be extended up to one year. Most claims are made by filling out and 801 Form, which is the standard claim form used in Oregon. Sometimes, a worker will appear at an emergency room, and the treating physician will fill out and 827 Form. This is also written notice of the claim.
Your employer should have the 801 forms on hand, and if you are not able to get a claims form from your employer, you can call the Workers' Compensation Division to obtain a claim form, or downloaded from the agency's website. We also have a claim form available for you to use.
What are "economic" damages?
If you have an injury claim in Oregon, you have a right to request compensation for your losses. Oregon law divides the type of loss as you can claim into two categories. The first is called "economic" damages. The other is called "non-economic" damages.
"Economic" damages are those kinds of losses that are objectively verifiable. In other words, these kinds of claims can be objectively verified with a medical bill or a wage stub. The statute that defines economic losses includes medical expenses, and the cost of substitute domestic services. You should also keep in mind that these losses cover both already incurred losses, but also losses that you can verify will occur in the future.
Washington allows for a similar claim. However, the labels applied to this type of claim are different. Lost wages, medical expenses and other verifiable expenses in Washington are categorized in the claim for "special" damages. Same damages, different name.
If you have an Oregon or Washington injury claim, and have questions about the extent of your economic loss, call us at 503-325-8600. We have handled several claims over the years, and can help you determine the full extent of your economic loss.
Why did the insurance company discount my Permanent Partial Disability award in my Notice of Closure?
"Permanent Partial Disability" is a workers' compensatio cash benefit in Oregon that compensates injured workers for lost earning capacity. The amount of this award is based upon a "whole person impairment." The "whole person impairment" is determined in a closing medical exam. The physician will measure loss of range of motion, loss of strength, and determine whether the injured worker has suffered a loss of ability to use the injured body part. Also, if the injured worker can no longer return to the job that he or she was working on the date of the injury, there is a "work disability." The workers' compensation carrier supposed to look at your work background, your earnings, and your age to determine the amount of this part of the permanent partial disability "award." I put the word "award" in quotes because it's not really an award, but compensation for something that you have lost permanently.
Sometimes, insurance companies will accept a "combined condition" at the beginning of the case. This occurs when the work injury event (the fall or lifting injury) combined with some pre-existing medical issue (arthritis or an old injury) and the work injury event is the major cause for the need to treat the combined condition. Sometimes, the work injury event will no longer be the major cause of the combined condition. When this happens, an insurance company can issue a denial, claiming that because the work injury event is no longer the major cause of your need for treatment, the insurance company does not have to provide any more medical services. However, even though it issues that denial, the insurance company still must close the claim. When this kind of a claim goes to closure, the insurance company will pay permanent partial disability, but is allowed to discount the amount of permanent partial disability due by the percentage of disability that results from the pre-existing condition. We call this claim apportionment.
If you have a combined condition claim, and it was denied before the notice of closure was issued, then the insurance company is allowed to discount the permanent partial disability by the percentage that is due to the pre-existing condition. However, if you are combined condition claim is in accepted status when the claim goes to closure, then the insurance company is not allowed to discount any portion of the disability due the pre-existing condition part of the claim. This is because the pre-existing condition is part of the accepted claim. That's the way we see it anyway, and we think the Supreme Court of the State of Oregon sees at the same way.
Nonetheless, insurance companies continue to discount the permanent partial disability, leaving many injured workers underpaid. We think this is wrong, and are currently appealing many cases to argue our point.
If your claim has been closed, and you think that the insurance company incorrectly discounted your permanent partial disability rating, call us at 503-325-8600. We can look at your case, and let you know if you should appeal your Notice of Closure.
My Oregon Workers' Compensation claim was denied. How do I prove the claim?
The first step in dealing with a denied workers' compensation claim is to request a hearing with the Oregon Workers' Compensation Board. A letter to the Workers' compensation board seeking a hearing on the denial is a good first step. If you want to get an attorney involved, that is even better, given the complexities involved with many workers' compensation cases.
The next issue to deal with is how to overcome the denial. When an injured worker requests a hearing on a denied workers' compensation claim, he or she must prove that their injury on the job is the reason they need treatment, or cannot work. There are many issues that go along with proving a denied claim, including what kind of workers' compensation claim you're dealing with, and whether medical opinion evidence is necessary.
We review denied claims all of the time, and can advise you of your options. Call us at 503-325-8600. We will appeal your claim, and review your file. If we pursue your claim, the insurance company pays our fee only if we win.
Why does Social Security want to know about my past work?
When you apply for Social Security Disability benefits, a state agency will evaluate your claim. In Oregon and Washington, the agency is known as Disability Determination Services, or DDS. DDS will send you a form asking about your past work. Why?
When Social Security decides whether not you are “disabled” as defined in the statute, it goes through a five-step sequence of questions. If Social Security determines that you have a severe medical problem or a combination of problems that is severe, it then decides your “residual functional capacity.” In other words, Social Security is determining what you can and cannot do in a competitive work setting.
Once Social Security determines what it thinks you can and cannot do, it then looks back at the jobs you worked for 15 years prior to the date you are claiming that your disability began to see if you can still perform those jobs with the limitations Social Security has placed upon you.
There are two important points here. First, it is important that you described in great detail the physical requirements of your job. For example, you may be a retail store manager, with lots of responsibilities that involve sitting at a desk in working on a computer. However, you may also work side-by-side with your workers, lifting boxes and stocking shelves. This is important, because if you are no longer able to do this kind of work, it puts you one step closer to getting your claim accepted.
The second point is that Social Security will decide what you can and cannot do both physically and mentally. Often, this is the most disputed issue when we go to hearing with our clients. If Social Security denies your claim because it thinks you can do some of your prior work, you need to sit down and review the claims file to see where Social Security is incorrect.
We help people seeking disability benefits all the time, so if you have a question, call us at 503-325-8600. Under the Social Security statute, we do not get paid unless we prevail on your appeal.
What can I claim on my Oregon auto injury claim?
If you have been injured in an auto collision in Oregon or Washington, you may make a claim for your losses, also known as "damages." In each state, the statutes assign specific names to the kind of "damages" that you can claim.
With an injury claim in Oregon, you can make a claim for "economic damages." These are the kind of losses that can be verified with some document, like a medical bill or wage stubs. The key to proving an economic loss is linking it to the injuries caused in the auto collision. For example, if you were injured in a collision, and required physical therapy, you must show that the need for the physical therapy is a result of the injuries from the auto collision. You also need to show that the treatment was necessary, and that the charge for the treatment was reasonable.
Economic damages are not limited to your past medical expenses or lost wages. In some cases, you may have a claim for future medical expenses and future lost income. Claims for future losses often require strong proof, and sometimes you may need to help of an expert witness to document and verify the need for future medical treatment or disability.
If you have a claim in Washington for an auto injury, you can make the same claim, but the damages in Washington are known as "special" damages. Again, these are the kind of damages that you can claim for things that are verifiable, like medical expenses and lost wages.
The other kind of lost that you can claim is known as "non-economic" damages in Oregon, and "general" damages in Washington. These damages are intended to compensate an injured person for the loss of their health, which includes pain and suffering, emotional distress, loss of ability, and all the other things that go along with being injured. The amount of not economic damages you may claim depends upon the severity of the injury, and its long-term consequences.
If you have a auto injury or any kind of injury claim in Oregon or Washington, and have questions, call us at 503-325-8600. We can explain how the process works, and let you know where you stand.
How much can I claim for travel and other expenses on my Oregon Workers' Compensation claim?
Each year, the Workers' Compensation Division issues a Bulletin that sets out the rates for reimbursement for travel and other expenses that we incur when treating for an on-the-job injury.
As of the end of 2014, the mileage rate for using your private vehicle to travel to and from medical appointments was 57.5 cents per mile. In 2014, the mileage rate was 56.0 cents per mile, and in 2013, the mileage rate was 56.5 cents per mile.
You are also entitled to reimbursement for meals, but you must have a receipt. As of October 1, 2014, the standard rate for reimbursement for meals is $11.50 for a breakfast, the same amount for a lunch, and $23.00 for dinner.
The standard rate for lodging is $83.00. However, we all know that a cost a lot more to stay overnight in certain parts of Oregon, especially during the tourist season. For example, if you are staying in Clatsop County between July and the end of August, your lodging rate will increase to $148.00 per night, and the meal rate increases to $51.00 for dinner.
If you are traveling out of state, the Bulletin provides information on how to calculate lodging and meal expenses.
Here is something else to note. If you need special transportation or lodging, then the allowable reimbursement rates can exceed what is published in the Bulletin. You can also claim the cost of parking fees and toll charges.
Keep in mind that you have two years of the date you incurred these expenses to submit a claim for reimbursement.
Questions? Call us at 503-325-8600. We help injured workers every day find their way through the claim.
Will Social Security consider my doctor's note that I am disabled in order to prove Social Security Disability?
A simple note from your doctor that you are disabled is not enough to prove Social Security Disability. This has a lot to do with how the statute is written.
Social Security applies a five-step process to determine whether somebody meets the definition of a "disability." I put the term "disability" in quotes for a reason. It is a statutory definition, and only the Social Security Administration can decide whether somebody is "disabled" under the statute.
When a doctor writes a short note in their chart or on a prescription pad that the patient is disabled from work, Social Security will reject that note, explaining that whether someone is disabled is for Social Security to decide, not the doctor. However, your physician can be helpful in a lot of other ways.
In most cases, the key issue in determining whether you are disabled is determining your "residual functional capacity." This term simply refers to what you can still do in a work setting, day in and day out, despite your physical or mental limitations. Some people have serious medical problems that limit them from many kinds of work, but not all work.
For example, if you were working as a logger, fishermen, or construction worker, and you suffered a serious knee injury that disabled you from this kind of work, you may still have the physical ability to do other kinds of work. Depending upon your age and your work experience, you would probably not be found disabled. For younger workers, it doesn't matter whether the other work you can perform only pays a fraction of your prior earnings. The real question is whether or not you retain some physical and/or mental ability to perform work activity.This is where your treating physician can be helpful. Your treating physician can provide an estimate on your ability to do work activities like sitting, standing, and walking. If somebody suffers from a mental impairment, your mental health provider can provide estimates on your ability to concentrate, follow instructions, and get to work on time. Social Security will generally defer to your treating physician's opinion because your physician knows more about your condition than Social Security doctors who never see you, but only review medical records.
If you are in the middle of a Social Security disability claim, and wonder what medical opinions may help your case, call us at 503-325-8600. We work with physicians every day to help our clients establish their claim.
Can I be reimbursed for my travel for on the job injury treatment?
Yes, you can. However, you must submit your claim in writing, and it must be within two years from the doctor’s visit.
The insurance company must respond within thirty days of receiving your request. To make sure the insurance company “received” your request, fax the request and keep a copy of the proof of the fax, or send an e mail, and print it out or save it to your computer to show that you actually sent the request.
Keep in mind that the medical appointment has to be related to your accepted condition. To find out what your accepted condition is, review your notice of acceptance.
If you do not receive payment for your travel within thirty days, you can seek review with the Workers’ Compensation Medical Resolution Team.
There are other expenses you can claim, including lost income, meals, and even lodging.
Questions? Give us a call at 503-325-8600. We know our way around Oregon Workers' Compensation and can help you know where you stand.
What is "residual functional capacity?"
Proving Disability: An Overview
To explain residual functional capacity, we should first talk about where it fits in when Social Security evaluates a claim for Social Security Disability benefits. Social Security goes through a five step process to determine whether someone is has a "disability" under the statute. First, Social Security determines whether the Claimant has engaged in "substantial gainful activity." This means working and earning money. If the Claimant is not working and earning money, Social Security looks at the medical evidence to see if a medical condition causes some interference with work ability. If there is, then Social Security looks to see if the Claimant meets an impairment listing. An impairment listing is like a checklist. The Social Security Administration looks at the medical records to see if someone "meets a listing." If the Claimant does not meet a listing, then Social Security determines the Claimant's residual functional capacity.
Residual Functional Capacity
Residual Functional Capacity is what a person can physically and mentally do in a work setting on a sustained basis. Often, a disability claimant's significant medical problems prevent them from returning to their prior work. However, that is only one half of the equation. Social Security must determine whether the claimant, depending on their age, can perform other work that exists in the national economy. To do this, the Social Security Administration reviews the evidence in the claim file to determine a claimant’s residual functional capacity.
For example, a construction worker may have suffered a back injury that prevents him from returning to his prior work. However, that construction worker may still work “light duty” job that does not require climbing, balancing, or heavy lifting.
Why It’s Important
If our construction worker can perform light duty work, then Social Security will determine whether jobs exist in the national economy that this construction worker can physically perform. For example, if Social Security feels the construction worker can still work as a cashier or a security guard, then that claimant will not be found disabled.
How Social Security Determines Residual Functional Capacity
When we review a denied claim, the claims file includes a physician’s evaluation of the medical records. The physician reviews the medical records and other evidence in the file and provides an opinion on the claimant’s residual functional capacity. We often argue that these opinions are speculative and based on limited information. These physicians did not examine the claimant and may not consider what the claimant’s every day activities.
At a hearing, the Administrative Law Judge considers the medical evidence, including other medical opinions, but also the claimant’s testimony, and statements from friends and family. The Judge is not bound by any prior opinions or findings that justified the denial. There also may be new evidence for the Judge to consider.
If you have a denied Social Security Disability Insurance claim, and want to know what extent, contact us. We have nearly thirty years of experience helping disability claimants.
The workers' compensation adjuster wants to settle the case. What should I do?
We get calls all the time from injured workers who have been offered a settlement on their Oregon Workers’ Compensation claim. Many times the injured worker will ask us flat out whether they should accept the offer or not. This is not a question we can answer because we do not have enough information about the case to say yes or no. It would be bad advice.
The problem with these kinds of offers is that in many cases, the injured worker really does not know what he or she is giving up in exchange for what they are getting with a settlement. There are many potential pitfalls. Common questions include:
- What was accepted on this claim, and are there other medical problems that should have been accepted but were not?
- If this is a denied claim, what is the reason for the denial, and is there some evidence that would be available to prove that the denied claim was incorrect?
- What benefits is the injured worker giving up? The claim could include a significant permanent partial disability benefit, or vocational benefits?
- Does the injured worker have a plan? If you have been knocked out of your job permanently from an on the job injury, a “generous” offer of settlement may look good to you in the short time, but what happens in six months, or a year?
These are just a few of the many questions we ask when evaluating a settlement offer, or making a demand for settlement on behalf of an injured worker.It may be worth your while to have an attorney in your corner, even if there is a attorney fee involved.
If you are curious about settling your Oregon Workers’ Compensation claim, call us at 503-325-8600.We can give you the basics, and let you decide whether it makes sense to get help from an attorney.
I was injured at work, but my claim was denied. How can I afford to hire an attorney?
The Oregon Workers' Compensation statute and rules dictate how attorneys who represent injured workers get paid for their work. The good news is that lawyers who work for clients injured on the job in Oregon are paid only if they are "instrumental" and getting a benefit, or an increased benefit for the injured worker. If the lawyer is not successful, then there is no attorney fee. So here is how it works.
A lawyer is "instrumental" in getting a denial set aside, or getting an increase in benefits if the attorney did some work that affected the outcome. If a claim is denied, an attorney will investigate the claim by reviewing the claims file, meeting with the client, talking to witnesses, and getting medical records or opinions. The lawyer may go to hearing with the client, or file appeals with the Oregon Workers' Compensation Board, or the Oregon Workers' Compensation Divsion. Only if there is a positive outcome is the lawyer paid a fee.
If the work results in a denied benefit being granted, or a denied claim being overturned, then someone from the State of Oregon, whether it is an agency official or a Judge, will order the insurance company to pay the attorney fee. This is called an "assessed fee." If the attorney overcomes a claim denial, then in many cases the Judge or Workers' Compensation Board will order the insurance company to pay the costs of fighting the claim as well.
Some benefits, like temporary total disability (wage replacement) or permanent partial disability (compensation for lost earning capacity) result in a money benefit, or an increase in the value of the money benefit. In those cases, the fee is a percentage of the increased benefit amount. This is called an "out of compensation fee."
If a case resolves, either through a claims disposition agreement, or a disputed claims settlement, the fee is a percentage of the settlement, and is set by the statute and the rules. Somebody from the Oregon Workers' Compensation Board will review to settlement agreement to make sure that it complies with the rules and statutes, and part of that rule involves approving the attorney fee.
Regardless of whether the fee is out of compensation, or if it is an assessed fee, all fees must be approved by the State of Oregon. In fact, with any appeal, the attorney actually sends a copy of the fee agreement to the State of Oregon, and to get a copy of your claims file, sends a copy of the fee agreement to the insurance company.
So the good news is that you can hire an attorney without having to pay money up front, and only if there is success, is there a fee. If you have a denied workers' compensation claim, or even an accepted claim but are having problems getting the benefits you need, call us at 503 325 8600. We can tell you if you need an attorney in the first place, and review your file to make sure. If there are no issues to pursue, there is no fee.
What does it mean to prove that someone was "negligent?"
Every profession has its own language. Attorneys are no exception. When somebody is injured because of another person's careless behavior, then the injured person has a claim for "negligence." The term "negligence" simply means that a person was acting carelessly, are not reasonably careful under the circumstances. There are many ways to show that somebody acted negligently.
In Oregon, a person can be found negligent if they acted unreasonably under the circumstances, and that as a result, somebody suffered foreseeable harm. In other words, the careless party should have known that by doing whatever they did, are not doing what they should have, a certain kind of injury could have resulted. This rule is in place because it would be impossible to write a safety rule for every possible way a person cannot carelessly.
In other cases, a person may be found negligent because of their relationship with the injured party. For example, attorneys have a special responsibility to their clients, and doctors have a special responsibility to their patients. In Oregon, we call this a "special relationship." If a person that has a "special relationship" with another person has a higher responsibility to make sure they do their job correctly. If they do not meet that responsibility, then they can be held responsible for their negligence.
There are statutes and rules that also determine whether somebody is careless. In an auto collision injury case for example, if a person violates the basic rule (speeding) or fails to keep a proper lookout for other vehicles on the road, that person has violated a couple of statutes in the motor vehicle code, and as a result, they are negligent as a matter of law. Attorneys like to call this a claim of "negligence per se." Statutes and rules can be used to prove that somebody was negligent per se if the harm that resulted was the type the statute intended to prevent, and the person who was injured was a member of the class of people that the Legislature intended to protect bypassing the statute. So, if a motorist is injured because of another motorist speeding are not looking out for other cars on the road, the injured motorist suffered the kind a harm that the Legislature sought to prevent, and is obviously one of the people of the Legislature intended to protect.
In some cases, negligent behavior is obvious because somebody broke a rule, or even admitted that they were at fault. However, there are cases where parties do not agree on the issue of negligence, and we will have to work very hard to establish the responsibility of the defendant.
If you have been injured, and you believe that another person was careless and caused your injury, call us at 503-325-8600. We can review your case, and let you know if you have a viable claim. Even if you do not need an attorney, we can give you some ideas on how you can pursue your claim.
What is an "impairment listing" under Social Security Disability?
Social Security Disability involves a five-step process to determine whether you are "disabled" as defined in the Social Security Disability statute. First, Social Security will ask whether not you have done any significant work since the date you claim you became disabled. If you have not done any work, the second question is whether not your condition is "severe." If the condition or a combination of your medical conditions is deemed "severe,", then the next question is whether you meet an impairment listing.
The impairment listings are not actually in the roles, but they are an appendix to the rules. We tell our clients that the impairment listings are like a catalogue of disabilities. There are twelve chapters, and each chapter covers a certain category of medical problems. For example, orthopedic conditions appear in one chapter, neurological conditions appear and another, and psychological conditions, also known as "mental impairments," appear in yet another chapter.
Essentially, the listings are a screening tool to weed out those obvious cases. A typical impairment listing will provide a list of findings or opinions that must appear in the medical records in order to meet a listing. The thinking behind the impairment listings is that if a person's medical records have the required combination of medical findings, then it is obvious from looking at the medical records alone that this individual is not able to hold any kind of job on a regular basis. When a Social Security Disability claimant meets an impairment listing, there found "disabled," and provided benefits.
Many of our clients do not meet a listing, and yet we have been successful on many occasions prevailing on the disability appeal. This is because Social Security is required to take a harder look, even if a person does not meet an impairment listing to see if they could still work on a regular basis.
If you have questions about whether not you have enough evidence to prove your disability, or what you can do to gather the required evidence, call us at 503-325-8600. We can walk you through the process, and explain where you stand with your claim.
What does it mean to have a "severe impairment" under Social Security Disability?
The Social Security Disability evaluation process boils down to five questions. After Social Security determines that you have not worked since the date you alleged your disability began, it then determines whether not you have a "severe medical impairment." To make this determination, Social Security will look at not just one medical condition, but all the medical conditions and their combined effect on the ability to work. If the condition or combination of medical conditions significantly limits your ability to perform basic work, then your condition is severe.
In our experience, a significant impact on the ability to do basic work activities is the same as "more than a minimal impact" on the ability to do basic work activity. This is a relatively low hurdle to jump on your way to proving Social Security Disability. However, it is still crucial.
If you are concerned about whether you can establish that your medical conditions are severe, give us a call at 503-325-8600. We can explain how this works, and answer any other questions you have with your Social Security Disability claim.
My child was injured and has a injury claim. What do I need to do to protect my child?
When a child suffers an injury as a result of another's carelessness, the child has a viable injury claim. However, Oregon and Washington law consider children to be "disabled," but only in the legal sense. In other words, because a child is not legally able to pursue a claim, and to enter into any agreement with the lawyer or an insurance company, special rules apply on how these claims are pursued.
In Oregon, the law requires that a parent or another responsible adult be appointed as a conservator. A person is appointed as a conservator or by petitioning the court for permission. There are special requirements for people to be qualified to act as a conservator. In a traditional conservatorship, special responsibilities are imposed on the conservator, which generally require the conservator to act in the best interest of the child. If there is any recovery on behalf of the child, the conservator is required to manage the funds in the best interest of the child. The conservator must obtain court approval of any settlement, and must account for the management of funds on an annual basis. In some cases, the conservator must be bonded to protect the child's assets. Even on a local level, different courts throughout Oregon have different requirements on approving settlements for children, and management of settlement funds.
In Washington, courts require approval of the settlement of the children's injury claim. However, the procedure works somewhat differently. In Washington, the responsible parent must petition the court for the appointment of a "guardian ad litem." This person is somebody qualified to evaluate whether or not the settlement is in the best interest of the child. The guardian ad litem has no interest in the case, and will report to the court as to whether the terms of the settlement are reasonable. Sometimes, the guardian ad litem may make recommendations as to the management of settlement funds.
Regardless of whether a case is resolved in Oregon or Washington, structured settlements are often employed to manage the funds in the best interest of the child. A structured settlement usually takes the form of an annuity, which is an insurance contract. With an annuity, the responsible parent or adult agrees to a direct transfer of settlement funds from the responsible insurance company to another insurance company that provides the annuity. The annuity sets out a schedule of periodic payments over time to the child. Typically, payments are deferred until the child reaches adulthood. Because the insurance company is "holding on" to the bulk of the settlement funds, those funds earn interest, and the periodic payments over time will exceed the original value of the annuity. In some cases, the earnings on an annuity are exempt from income tax. There may be some cases where disbursements are made prior to the child reaching adulthood, depending upon the child's needs.
Both states have enacted these laws so that the child's best interest are first and foremost. Unfortunately, there are some sad stories where conservators and even parents have taken advantage of settlements and recoveries made for injured children, and these laws seek to prevent the misuse of funds.
When we represent a child in injury claim, we will often work with the responsible parent or individual to get the conservatorship established, appoint a guardian ad litem if necessary, and work with a reputable structured settlement broker to make sure that the annuity is in the child's best interest. We can sometimes structure the settlement so that a conservator in Oregon is not required to file annual reports.
If you have a child who is dealing with an injury claim, call us with your questions at 503-325-8600. We can explain your options, and let you know where you stand.
What is a "structured settlement?"
A "structured settlement" is a settlement of an injury claim where the parties agree that the injured person's recovery will be placed in an annuity contract, and payments will be made over a schedule period of time. Of course, this raises the question of what an annuity contract is.
The best way to think of an annuity contract is to simply consider it as an insurance policy. When you enter into an annuity contract, you agree to surrender control over a sum of money to an insurance company. This money may be "locked up" for a period of time. After an agreed-upon period of time, the insurance company then makes periodic payments from the annuity. The payments are scheduled as agreed-upon, and when everything is said and done, in many cases, the total sum of the payments made over time are greater than the initial amount in the annuity.
Another way to look at this is as a loan to the insurance company with deferred payments and interest.
Why would somebody want to enter into an annuity contract?
There are a couple of reasons somebody might be interested in structuring their settlement with an annuity. First, if done correctly, the income or increase in overall recovery with schedule payments is not taxable. However, the principle recovery on an injury claim is usually not taxable as well.
More often, we use annuity contracts when representing children. Depending upon the child's age at the time we resolve a claim, an annuity contract presents a wonderful opportunity for college savings or other opportunities for young person. Also, if a court approves of the structured settlement within annuity contract, in many cases, it will waive the typical requirements of an annual accounting for the conservatorship, which is also a necessary part of resolving a child this case.
Although annuity contracts are not for everyone, they definitely should be considered when planning the management of settlement funds for an injured child.
Sometimes, an insurance company will approach a parent of an injured child and propose an annuity contract. Any parent managing the claim on the half of a child should always cautious in evaluating which annuity product works best. We have a great relationship with a trusted annuity broker who ensures that the annuity product is reliable and solid, which is crucial to ensure reliability.
If you have a child who has an injury claim, and want to explore your options in pursuing and resolving the claim in the best interest of your child, call us at 503-325-8600. We can go through all the options, and help you make the right decision.
I have an Oregon injury claim, and my health insurance is paying my bills. Do I have to be concerned?
If you have a personal injury claim in Oregon or Washington, and a health plan or health insurance policy is paying your medical bills, you will probably have to pay back your health plan out of any personal injury settlement you may recover. How much depends on the health plan.
In auto injury cases, people who are injured in a car that was insured in the State of Oregon will have personal injury protection benefits, which provide medical insurance for injury related treatment up to a certain amount, and over a certain period of time. In Washington, personal injury protection coverage is optional, so you may or may not have this coverage available to paymedical expenses.
If you suffer a serious injury, you are probably going to use all of the available personal injury protection coverage, which means that you will have to look to your health plan to cover the remainder of your care. If your automobile policy was originated in Washington, you may not have personal injury protection coverage, and you will have to have your health care plan pay all of your medical bills. In either case, you will probably have to reimburse your health plan for the medical bills it paid out of your personal injury settlement. How much depends on the health plan, and the circumstances of your case.
Most private health insurance is not actually "insurance" in the legal sense. Instead, it is a "health plan," which is regulated by federal law. The federal law that regulates these plans allows the insurance carrier a lot of leeway in what it can include in the plan. Most health plans will exclude payment of any medical expenses that are responsibility of some other party, like a careless driver who injures you in an auto collision. However, these health plans will pay for accident related medical care, but only if you agree to reimburse the health plan out of any money that you obtain in a personal injury settlement.
The amount that you have to pay back depends on the plan's language. Some plans will only pay up to a certain amount for accident related care. Other plans will pay for all care, but the plan may require that you pay 100% of the medical benefits it provided. Other plans will negotiate a discounted reimbursement, realizing that many cases, you may have had to hire an attorney to help you with the case. In other words, the plan is agreeing to share in the cost of paying the attorney.
When you have been involved in a serious injury, it is important to know exactly what the terms of the health plan are so that you can plan ahead.
We deal with issues involving personal injury claims and reimbursing health plans when there is a personal injury settlement or recovery. If you have questions about your options with a personal injury claim and your health plan, call us at 503-325-8600. We deal these issues every day.
My Oregon Workers' Compensation claim has been accepted. Should I have any concerns?
Although it is better to have your claim accepted than denied, there still may be some issues lurking beneath an accepted claim. Here are a couple of things to consider, even if your claim has been accepted.
Check The Notice of Acceptance
The Notice of Acceptance is probably the most important document in your claims file. This document, usually in the form of a letter, notifies the injured worker of the exact medical condition that the insurance company will recognize as the work related injury. Some people may have suffered a torn rotator cuff of the shoulder, or a herniated disc in the low back, but the notice of acceptance may only include a shoulder strain or a lumbar strain. The treatment for a strain injury is much different than the treatment required for a torn rotator cuff or a herniated disc. Also, if you are permanently impaired as result of your on-the-job injury, the insurance company may only calculate permanent partial disability for the accepted strain injury, and not a herniated disc or torn rotator cuff.
You should examine the notice of acceptance closely, and consider speaking with your physician to make sure that the injuries resulting from your on-the-job accident are fully covered in the notice of acceptance.
Here is also an important tip: Under the Workers' Compensation statute, an insurance company may pay for medical care to treat a condition that it is not actually accepting as part of the claim. Merely paying for the medical care does not legally obligate the insurance company to accept that particular condition. We have seen insurance companies pay a physician to perform a complicated extensive surgery, only later to convince that same physician to sign a document that none of the conditions treated in the surgery were result of an on-the-job injury. As a result, our client was left with little or no permanent partial disability benefits, and was not qualified for vocational training. So, even if your medical bills are being paid for that herniated disc or that one rotator cuff, this conditions may not be part of the accepted claim.
If you determine that the insurance company has not accepted all of your medical problems, you can make a written request that the insurance company include all of the conditions resulting from your injury. In some cases, a new medical condition may be discovered after the notice of acceptance was issued. In that case, you can ask the insurance company in writing to include the new medical condition as part of the claim as well.
Check the Claim Classification
Included in the initial Notice of Acceptance is a claim classification. An accepted Oregon Workers' Compensation claim will be classified as either "disabling" or "non-disabling." If the claim is disabling, then it means that the insurance company agrees that you have missed time from work as result of your injury, or that you will likely have some permanent impairment as result of your injury.
The insurance company is required to issue a Notice of Closure with a disabling claim. This notice provide you a lot of valuable information, and also indicates whether not you are entitled to a Permanent Partial Disability benefit. If you have missed time from work, or you feel that your injury will have some permanent limitation in your ability to work, check the classification. You have only one year from the date of the notice of acceptance to ask the insurance company to change the classification. Should it refuse, then you have a right to seek review with the State of Oregon.
If you are not sure whether your claim was properly classified, or if the insurance company has taken full responsibility for all the injuries you suffered, call us at 503-325-8600. We can evaluate your claims file, and let you know where you stand.