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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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.
My Workers' Compensation carrier denied my claim because of a "pre-existing condition" that I did not even know that I had. What is a "pre-existing condition"?
The Not So Short Answer
There is a section in the workers' compensation statute that tells us the meaning of a pre-existing condition, but the Courts and the Workers' Compensation Board, through case decisions, is always looking at this issue, so what it actually means changes or evolves over time.
However, the statute's definition depends on the kind of claim involved.
The Pre-Existing Condition and the Injury Claim
For an "injury claim," a pre-existing condition includes any injury, disease, congenital issue, personality disorder or similar issue that contributes to the need for medical care or disability. However, there must be a diagnosis or at least some medical care for these conditions before the on-the-job injury. The big exception here is "arthritis." The term "arthritis" is more a legal term then medical term. Just like pre-existing conditions, there have been court battles over the exact meeting of arthritis in the workers' compensation context.
The bottom line: If you treated for a condition before your on-the-job injury, and it contributes to your need for medical care or disability, then it's a pre-existing condition. Also, if you have the legal definition of "arthritis," then it's a pre-existing condition.
The Pre-Existing Condition and the Occupational Disease Claim
Another kind of claim you can file in Oregon is known as an "occupational disease" claim. Occupational diseases occur over time when you are exposed to some environmental factor at work that causes an issue. For example, hearing loss claims are often occupational diseases because the hearing loss occurs over a long period of time when exposed to excessive noise at work. Carpal tunnel syndrome is a repetitive stress injury that occurs with repetitive grasping and gripping at work over an extended period of time. A pre-existing condition exists in a occupational disease claim if it contributes to disability from work or need for medical care, and preceded the onset of the occupational disease itself.
The "Silent" Pre-Existing Condition: "Arthritis"
Many of our clients approach us with a claims denial that a pre-existing condition is the main cause of our client's need for medical care, or disability from work. However, our clients will tell us they have never treated for any kind of pre-existing condition, and understandably, cannot understand how the claim could be denied.
The main culprit with these kinds of denials is the definition of "arthritis." The general legal definition of "arthritis" in the Oregon Workers' Compensation system is any "inflammation of a joint." Insurance retained doctors will come up with creative definitions of arthritis to find that there is an "inflammation of a joint." The claim of "silent" arthritis is the most common tactic insurer's use to deny claims when our client never experienced pain before their on-the-job injury.
Medical Opinions Are Important
When we handle these kinds of claims, we review all of the medical records carefully, and often consult with treating doctors to find out whether there is a pre-existing condition, and if so, whether it actually combined with the injury event in the first place.
If you are facing a claim denial, and want to know your rights, contact us. We can review your file, and let you know where you stand. If we take on your case, the Oregon Workers' Compensation statute allows us to recover a fee only if we prevail.
What is the Alleged Onset date?
The "alleged onset date" is the date that you tell Social Security when your disability began when filing the initial applicatoin for benefits. For many people, this may be the last date that they worked full time. However, other people may have stopped working for other reasons than a disability, and they will have to rely upon medical records and other information to determine when they were no longer able to work.
There are other issues that can arise around the alleged onset date. For example, if somebody is filing a Social Security Disability Insurance claim, they must show that their disability began prior to the date they were last insured for benefits. This is called the "date last insured." In order to qualify for disability insurance benefits, the claimant must prove that the disability began prior to the date last insured. Thus, deciding on the alleged onset date is even more important, because it must be a date prior to the date last insured.
In our experience, the Social Security Administration staff at the local branch offices often recommend the earliest alleged onset date possible to ensure that the alleged onset date of disability precedes any date that the claimant was last insured for benefits. It is always easier to amend an application to allege a later onset date than it is to allege an earlier onset date.
In many cases, we will go to a hearing, and agree with the Administrative Law Judge to amend the date that more accurately reflects what are client was no longer able to work on a sustained basis.
If you are in the middle of an application for Social Security Disability benefits, and have questions about the alleged onset date and your insured status, give us a call at 503-325-8600. We can review your claims file, and let you know where you stand with your claim. If you decide to hire us, we are not paid unless we are able to obtain benefits for you.
I have an Oregon Workers' Compensation claim. Can I change my doctor?
Yes, but there are some limits.
Generally, you can change your doctor two times without insurance company approval. You may do this for several reasons. Sometimes, an injured worker and their doctor do not see eye to eye, or you may need a certain kind of doctor, depending on your injury. Certain changes of doctors do not count as a change of physician.
There are other rules if the insurance company enrolled you in a Managed Care Organization, also known as an MCO.
If you have an open claim, and are not sure if you can change doctors, or if you even need to, give us a call at 503-325-8600. We have offices in Astoria and Beaverton, and can meet to discuss your claim.
A claims adjuster wants to send me a check and paperwork five days after my car collision. What should I do?
We often get calls from people who ask this very question. When an adjuster tells you that he or she is going to send some money, usually a few hundred dollars, and some paperwork, you need to be careful.
First, realize that the paperwork is probably a settlement agreement, that if signed, releases the insurance company from any future responsibility for health problems you may have in the future. Many people are not injured in fender benders, and do not have to deal with any long term issues, but you want to make sure So, if even if you feel fine, just take some time to make sure everything is going okay, and you are able to go back to normal activities before signing a release.
Also, you may have other claims like property damage, or you may have to reimburse your insurance company if it paid medical bills. If you sign away your claim, you may be stuck with obligations that should have been someone else's responsibility.
We offer a free book (see below) that will help you know where you stand with your auto claim. Check out our book, or give us a call. We handle these kinds of issues every day.
What happens if I lose my Social Security Disability hearing?
Social Security Disability allows for several appeals. An initial denial can be appealed with a request for reconsideration. A request for reconsideration denial can be appealed with the request for hearing. When you go to hearing, it is usually the first time you get to actually meet the person who is making the decision on your case. If you are unsuccessful at hearing, you will receive an Unfavorable Decision. That can be appealed.
Unfavorable Decisions are appealed to the Appeals Council. The Appeals Council is a group of judges located in Falls Church, Virginia. Certain judges are assigned to hear appeals from certain parts of the country. The Appeals Council will allow you to submit new evidence if it pertains to the issues that the judge reviewed at hearing, and will also allow written arguments.
If you are successful at the Appeals Council, the case will be sent back to the original Administrative Law Judge for another hearing. if you are in the middle of an application for Social Security Disability, and have questions, call us at 503-325-8600. We have represented hundreds of people over the last two decades, and know our way around the system.
Can I appeal my Order on Reconsideration?
Yes, by filing a request for hearing. The first, let's start at the beginning.
When your attending physician finds that you are medically stationary, it means that you do not require any additional medical care to restore your functional abilities. At that point, your claim will be closed with a Notice of Closure. That document will describe many things, including whether or not you are entitled to permanent partial disability. If you are not satisfied with any of the decisions outlined in the Notice of Closure, you can file a Request for Reconsideration of your Notice of Closure.
When you request reconsideration of your claim regarding the extent of your permanent partial disability, the office that reviews your request, called the Appellate Review Unit, may schedule medical examination with a physician, referred to as a "medical arbiter." That physician will issue a report, and in most cases, the Appellate Review Unit will adopt the findings in that report. The Appellate Review Unit then will issue an Order on Reconsideration.
An injured worker can appeal the Order on Reconsideration by filing a request for hearing with the Workers' Compensation Board Hearings Division.
YOU MUST FILE THE REQUEST FOR HEARING WITHIN 30 DAYS OF THE ORDER ON RECONSIDERATION.
Any of the exhibits offered to the Administrative Law Judge must be part of the "reconsideration record." The reconsideration record is simply all the documents that were before the Appellate Review Unit when it reconsidered the Notice of Closure. Often times, the "hearing" is nothing more than submission of written arguments to the Administrative Law Judge.
If you have an accepted Workers' Compensation claim that has recently closed, or an Order on Reconsideration, and want to know whether to file an appeal, contact us. We have offices in Beaverton and Astoria, and can meet to discuss your case.
Should I keep a diary or notes after my Oregon auto collision?
Keeping a note book or diary after an auto collision can be helpful with your claim for many reasons. There is a lot going on in the beginning, including property damage and repair, car rentals, and in serious cases, extended hospitalizations with a lot of follow up care.
There is also the simple fact that when it comes time to document your claim, you will have this resource to refer back to when explaining how the injury affected your every day life. However, there are a few things to keep in mind when keeping a journal or diary.
- The law may vary state to state, but in Oregon, unless the diary or journal is kept at the instruction of an attorney, you must assume that if the case is filed in court, an attorney representing the careless driver will seek a copy of the notes or journal.
- You should keep the notes brief. This is not a book, or a novel. It is a tool that allows you to recall missed family events, struggles with every day activities, and simple things like the time taken to attend appointments. The idea is that you will be able to recall these events after reviewing the notes.
- Be positive. Overcoming an injury is a struggle for sure, but if you are going to make the best recovery possible, you need to celebrate your successes along with your struggles. We have a client with a significant pre-existing condition who has a stellar attitude, and calls herself the Queen of Adaptation. That is a great attitude. Her injury has affected her, and in a big way, but she is adapting. It's not just good for the case, but it is good for you.
Questions? Call us at 503-325-8600. If you are in the midst of dealing with an injury claim of any kind, give us a call, and we can help you know where you stand.
If a workers' compensation carrier pays my medical bill, is it accepting my claim?
The Oregon Workers' Compensation statute and rules specifically state that an insurance carrier can pay a medical bill to treat a medical condition, and not accept responsibility for that condition. This can lead to a lot of confusion. A real life example is helpful.
Years ago, we represented a man who suffered a low back injury at work. He filed the claim, and the insurance company accepted responsibility for a low back strain. However, his problems were more complex, and a neurosurgeon performed a multilevel surgery to relieve pressure on the nerves from bone spurs, disc bulges, and other low back conditions. The insurance company paid the surgeon for his work, which was significant, but then, weeks after the surgery, was able to get the surgeon to agree that none of the treatment provided was for the accepted medical conditions, and that none of the treatment was the result of any on the job injury.
Many times, an insurance carrier will pay a medical bill, but that does mean it is accepting the condition that required the treatment provided. To do that, you must file a new or omitted medical condition claim.
If you are in the middle of an Oregon Workers' Compensation claim, and are unsure what is accepted and what is not, call us at 503-325-8600. We can meet with you in our Astoria or Beaverton office, review your claims file to look for options, and let you know where you stand.
Should I go to the Personal Injury Protection Independent Medical Examination?
If a car is insured in the State of Oregon, it must carry Personal Injury Protection benefits, which provide medical, disability, domestic service and child care benefits. The auto insurer providing personal injury protection benefits, aka PIP benefits, has a right to manage the claim, and determine whether medical care is actually necessary.
One way that a PIP carrier manages these claims is through “independent medical examinations.” Under the insurance policy, the PIP carrier can require, if it is reasonable, that its insured attend an independent medical examination. This is a medical examination performed by a doctor chosen by the insurance company to determine what care is necessary, if at all. Based on the opinion of the independent medical examiner, the PIP carrier may terminate payment of medical benefits, or continue medical benefits as recommended. If there is a disagreement, the insured can seek arbitration, or file a complaint in state court.
If this request is reasonable, then the insured is required to attend the examination if he or she wants to continue seeking benefits under the insurance policy. If the insured decides not to attend the examination, then the insurance company can terminate benefits, citing the insured’s failure to cooperate as required under the contract.
In some cases, we may advise our client not to attend the independent medical examination. Some independent medical examination physicians have reputations that precede them, and are notorious for a strong bias against the injured motorist. Other medical examiners tend to be more objective, and if the injured motorist truly needs further medical care, these reasonable and objective medical examiners will say so.
There are a lot of factors to consider when deciding whether to attend or not attend an independent medical examination. First, does the injured motorist have other health insurance that will cover the cost of necessary medical care? Second, even if the injured motorist attends the examination, will be attending physician who is actually treating the injury sustained in the car collision be willing to step up and oppose or disagree with the findings and the independent medical examination? Another consideration is how the independent medical examination may affect the claim against the responsible motorist and its insurance company.
Our experience is that whether to attend an independent medical examination is very much dependent on the specific facts of each case, and our client's specific situation. There are no easy answers, because in the end, nobody really knows exactly what the outcome of one of these examinations may yield, but we can provide some pretty good insight on some of the medical providers that perform these examinations for insurance companies.
If you are dealing with a motor vehicle collision injury in Oregon or Washington, and you have questions about whether to attend a personal injury protection medical examination, call us at 503-325-8600. We can discuss the many factors that go into deciding whether you should go are not go to these exams.
Can I still get medical treatment after I settled my Oregon Workers' Compensation claim?
Whether you are able to request additional medical services on your Oregon Workers’ Compensation claim depends upon the nature of the settlement itself.
The Oregon Workers’ Compensation statutes and rules allow two kinds of settlement. The first is called a “disputed claims settlement.” Read this article to learn about these settlements, but basically, this is a settlement of the denied and disputed claim. If you entered into this kind of agreement, then the denial remains in effect, and medical services are not available to you. However, in some cases, this agreement may not apply to other medical conditions resulting from your on-the-job injury. To be sure, you may want an attorney to review the agreement to see if you can make a claim for medical problems that resulted from the injury, but were not part of your claim.
The other kind of workers’ compensation settlement and Oregon is a “disputed claims settlement.” This article provides details. In this kind of an agreement, you are “selling” your rights to all the benefits of your accepted on-the-job injury claim except for the right to request medical services. The statute does not allow you to “sell” this benefit as part of a claims disposition agreement.
Even though you may have a claims disposition agreement that preserves your right to seek medical benefits, the insurance company may still deny proposed medical treatment for several reasons. For example, the insurance company may find that the proposed treatment is not medically necessary. An insurance company may also decide that the proposed treatment is not related to the original on-the-job injury. If treatment is denied, you have the right to appeal that decision to the State of Oregon.
If you are not sure whether or not it makes sense to request additional medical care, or to appeal a denied request for treatment, call us at 503-325-8600. We can review your file, and let you know your options. Under the Oregon workers' compensation system, we are not paid an attorney fee unless we are able to achieve a result in your favor.
Do I need to sign a medical release for the other driver's insurance adjuster?
What Is A Medical Release?
A medical release is a document that allows another person to obtain your medical records. These forms are required because your medical records are confidential, and your medical providers will not share this information unless they are provided a form that you signed giving permission to release your records.
Why Do Insurer's Want Medical Releases?
When you are injured because of someone else's careless behavior, you have a claim for your losses and harms. Lawyers call these losses "damages." In an injury claim, there are two categories of damages: Economic and Non-economic. Economic damages are things that can be objectively verified, like medical expenses and lost income. Non-economic damages are damages to compensate you for the loss of your health. Some people have heard of "pain and suffering." These are two aspects of non-economic damages, but there are many others.
Insurer's want your medical records so they can evaluate your claim to make an offer of settlement. Many insurers, especially in auto injury claims, will feed the diagnostic and billing codes it finds in your records into a computer program to calculate an offer of settlement. Insurers are looking to reduce your injury to some kind of formula. This cannot be avoided, but you should be the one to obtain and provide these records. Why?
First, the liability carrier's release forms cover all medical records, not just the ones for the injuries involved in your claim. Although we have not seen this happen, a medical release may even allow the insurer to speak to your doctor. There is no need for that.
The truth is that at one point, you or your attorney are going to provide medical records to the insurer to evaluate the case, or if the case is filed in court, to the attorney representing the at fault party.
But I Already Signed One!
It's not the end of the world. Many of our clients have already signed a medical release when they come to see us. We will revoke the release, which you can do as well, and request any medical records the insurer obtained with the release.
When Do I Sign A Release?
In an Oregon auto injury claim, your insurance company provides personal injury protection, or "PIP" benefits. These benefits cover medical expenses, and if you qualify, disability benefits. Your insurance company will send you an application for benefits, which includes a medical release. Because you have an agreement with the insurance company, you must sign this release, so the insurance adjuster can obtain your medical records and pay your bills. Those records are not shared with the other insurance company.
We help people facing these issues every day, so if you have questions, contact us. We can help you know where you stand.
What are my options in getting my car fixed or replaced?
Many of our clients who are injured in a car wrecks in Oregon and Washington have to first deal with fixing or replacing their car. This is known as the property damage claim. Here are a few pointers.
First, if your car is repairable, you are entitled to the cost of repairing the car. In some cases, even after the car is repaired, and may still not be worth what it was prior to the collision. You may have an additional claim for the difference in the value of the car from before the accident. This is often referred to as a “diminished value claim.”
While your cars being repaired, or during the time it takes to resolve a total loss claim, you are entitled to be compensated for the loss of the use of the vehicle. In Oregon, the amount of money to cover the loss of use of the vehicles equal to what it would cost to rent a similar vehicle. Many insurance companies will authorize a rental during the repair process, or during the time it takes to determine whether your car is a “total loss.”
When a car is “totaled,” this means that the cost of repair is too close to the fair market value of the car. In other words, it doesn’t make sense to fix a car if the cost of repair is almost the same as the car’s value. If this happens, you have a claim for the fair market value of the car at the time of the wreck. The fair market value is what a willing buyer would have paid a willing seller for your car immediately prior to the collision. Many insurance companies use database services to determine fair market value, and sometimes they are accurate, but many times not.
If you have been injured in a car wreck in Washington or Oregon, and you have questions about property damage, we are here to help. We have offices in Beaverton and Astoria, and can meet with you at your convenience. Call us at 503-325-8600 with any questions.
When should I talk to a lawyer about my Oregon car wreck claim?
There is no stock answer to when a person should hire a lawyer to represent them on their Oregon injury claim, or if they need a lawyer at all. However, here are a few considerations.
If you suffered a serious injury that required an extensive hospital stay, and you are looking at lifelong need for medical care, then you may want to consult with a lawyer sooner than later. An attorney can investigate the case, and determine whether not there any other people or parties that may be responsible for causing your injury. An attorney can also determine whether not you have other options, like an underinsured motorist claim. Finally, an experienced an attorney will properly document not only your past medical expenses and needs, but your future medical care needs.
If you find that you the insurance adjusters being overly aggressive, or is not willing to accept that their insured caused your car wreck, then you may want to speak with a lawyer to see about your options. Many attorneys offer a free consultation, and will provide you at least a basic framework of the issues in your case.
If the insurance company has offer to resolve your case, and you are not certain whether not he offer is “fair,” and may make sense to consult with an attorney to see whether you should accept the offer or move forward with the case.
Our office offers a free book, the Oregon Personal Injury guide. This guide will walk you through all of the major issues and concerns people face with an injury claim in Oregon, and will at least give you a basic idea of where you stand with your case. This is a good option if an insurance adjuster is asking you to sign medical releases, or give a recorded statement. You can also check out our website, which provides helpful articles, blog entries, and answers to the most frequently asked questions. Of course, feel free to call us at 503-325-8600. We have offices in Beaverton and Astoria, and can meet with you personally to discuss your case.
Do I have a claim against another person if I am injured on the job?
You may have a claim against the person or business that caused her injury in some cases.
Oregon Workers’ Compensation is a statute that requires employers to provide coverage for workers who are injured on the job. If an injured worker proves that the need for medical care or disability from work arose from an on-the-job injury, certain benefits are available.
These benefits are limited to certain coverages.
While the claim is open, the injured worker is eligible for medical services and temporary disability (wage replacement) benefits. The need for medical care and any disability must be related to the medical condition the insurer accepted as part of the claim.
When an injured worker is found to be “medically stationary,” this means they no longer require medical care to restore their ability to work. When an injured worker is found medically stationary, the insurance company gathers information to close the claim and issue a Notice of Closure. At this point, the insurance company decides whether the injured worker is entitled to a cash benefit called “permanent partial disability.” This benefit is designed to compensate an injured worker for any permanent loss of earning capacity. However, it is not based on the actual future lost earning capacity for the injured worker, but instead application of findings and medical reports to the rules that govern calculation of the benefit. If an injured worker is unable to return to the exact job they were working, and other kind of permanent partial disability benefit is available, and is called “work disability.”
At about the same time, the insurance company will evaluate the injured worker’s eligibility for vocational rehabilitation services. An injured worker is eligible for vocational benefits when they are no longer able to return to the work at injury and meet other requirements. If qualified, and injured worker may be eligible for job training with the goal of getting them back to a job paying nearly the same as the job at injury.
After the claim is closed, if the injured worker experiences an “actual worsening” of the accepted on-the-job injury, the treating doctor can ask the insurer to reopen the claim. This is known as an “aggravation” claim. Only the treating physician can make the claim, and the option of filing an aggravation claim is good for five years after the claim is closed.
Even after the claim is closed beyond five years, the injured worker may still qualify for medical benefits and temporary disability if the accepted on-the-job injury condition actually worsens, or if the injured worker suffers a new medical problem that is a direct consequence of the accepted medical problem. For example, people who suffer serious knee injuries that go to surgery sometimes develop posttraumatic osteoarthritis in the same injured knee joint, requiring further surgery or a total knee replacement. In addition to proving the relationship between the worsening condition or the new medical condition, the injured worker must require significant article care, like surgery. The injured worker also must be a member of the workforce at the time they seek these benefits.
Why These Benefits are Limited
In exchange for having to provide these benefits to their employees, Oregon employers are generally immune from any other claims from their employees. This is true even if the employer is negligent in causing the employee’s injury. For example, an employer may ask an employee to perform a dangerous task, knowing that the employee was inadequately trained. Even if the employee can prove that the employer knew or should have known that they were putting the employee in a dangerous situation, there is no lawsuit or claim against the employer for personal injury damages. Of course, there are exceptions, but this is the general rule.
On the other side of the same coin, if an employee is negligent in causing their own injury, they are still covered in most cases for workers’ compensation benefits. Again, there are exceptions, including injuries that are due a major part to an employee’s intoxication or being under the influence of drugs.
The fact that the injured worker cannot sue their employer (generally) and that even negligent employees are covered makes the workers’ system in Oregon a “no-fault” system. This means that a claim cannot be denied because somebody was at fault in causing the injury.
Compensation Not Available to Injured Workers
The injured worker cannot recover any of their actual losses as if they were pursuing a personal injury negligence claim in Oregon. If so, the injured worker would be able to recover actual past and future medical expenses, and past and future lost income. Oregon law defines these losses as “economic” losses because they are objective and can be demonstrated with the actual medical bill or wage stub.
Although the Oregon Workers’ Compensation system provides similar benefits, there are often more requirements involved in qualifying for these benefits. In some cases, an injured worker could easily prove that the on-the-job injury is a significant factor in causing the disability or need for treatment but will not qualify for medical or wage replacement benefits.
The other compensation an injured worker does not qualify for is what is known as “non-economic” losses. This is often referred to as “pain and suffering” compensation. However, compensation for pain and suffering is only one part of the claim for non-economic losses. A claim for non-economic losses is a claim for compensation for the loss of the injured worker’s health. This includes pain, suffering, limited activity, and any permanent impairment resulting from the injury. Under the Oregon Workers’ Compensation system, a claim for non-economic damages is not permitted.
Although the permanent partial disability benefit may look like compensation for non-economic losses, it is considered compensation for future lost earning capacity. However, the permanent partial disability “award” rarely reflects the actual lost earning capacity. In a personal injury claim, this would be a form of “economic” damage, and in many cases, would be significantly greater claim.
The result is that an injured worker often ends up being undercompensated for the actual loss suffered. If we were to compare the compensation available to someone suffering the same injury in an auto collision, they may recover full compensation for their losses. This often is not the case in a workers’ compensation claim.
However, there are exceptions.
The Third Party Claim
The exception is the third-party claim. A third-party claim exists when somebody other than the employer or a co-worker negligently injures a worker. The most common example is an injured worker running and earned for the employer. While stopped at a traffic signal, somebody rear ends the worker, causing injury. This injury occurred on the job and is covered under the workers’ compensation system. However, because somebody other than the employer and a coworker carelessly caused injury, the injured worker has a claim against the other driver. That other driver is the “third party.”
Statutes and rules govern how an injured worker may pursue the third-party claim. This is because many of the damages the injured worker can claim are the same as those the workers’ compensation carrier provided. For example, the injured worker can make a claim for their medical expenses and their actual lost wages. The workers’ compensation insurer is providing benefits for these losses. Because the workers’ compensation carrier has paid benefits for these losses, the workers’ compensation carrier is in the same boat as the injured worker. They too have suffered a loss, although it is strictly a business loss.
Because the injured worker is making a claim for losses that the workers’ compensation insurer already paid, the injured worker is free to make a claim against the careless driver and their insurance company. However, out of any money the injured worker recovers, and must reimburse the workers’ compensation carrier for the benefits it provided.
Let’s say that an injured worker is rear ended by another driver while at work. The injured worker makes a claim against the careless driver and their insurer. Meanwhile, the workers’ compensation carrier has paid $3,000.00 in wage replacement and medical benefits. If the injured worker settles their claim against the at fault driver’s insurance company for $5,000.00, it must reimburse the workers’ compensation carrier for the $3,000.00 that the workers’ compensation carrier provided in benefits.
The first step in pursuing a third-party claim is to complete the “notice of election” form. This is a form submitted to the workers’ compensation carrier notifying it that the injured worker intends to pursue the claim on their own. The other option is to let the workers’ compensation carrier pursue the claim, but that does not happen in most cases, especially if the injuries are serious.
The workers’ compensation carrier also has some limited “veto” power on settlement negotiations. The third-party statute requires the injured worker to seek approval to accept a settlement offer before resolving the claim. If there is a disagreement about whether an offer should be accepted, or how much of a personal injury settlement should be reimbursed to the workers’ compensation insurer, the Oregon Workers’ Compensation Board reviews the matter.
Sometimes, there may be issues about whether the third party was at fault, and that could affect the amount the negligent third party’s insurer is willing to pay to resolve the case. In those cases, the workers’ compensation carrier may negotiate a reduced amount of reimbursement.
The Employer Liability Law
The Employer Liability Law, also called the “ELL” is a statute that has been on the books for about a century. This law applies to employers who conduct projects or work that involves a risk of danger.
Under this statute, an injured worker can recover actual losses by showing that the responsible party was engaged in dangerous or risky work, that the injured worker was an employee for the responsible party, and that the injury resulted from the dangerous or risky work. These kinds of claims occur when several contractors are working together on a common project or enterprise. There are special requirements involved in making this kind of claim. However, these claims have legal advantages because employers overseeing this work must be much more careful given the risk of harm involved.
If you have questions about third party claims or Employer Liability Law claims, contact us. If we are not able to take on the case, we can at least provide resources so you know where you stand.
What if my health plan pays for some of my medical care from my injury claim?
If you are injured in Oregon or Washington, and you have a claim against a responsible party, your health insurance may be called upon to pay for some of the medical care required to treat your injuries. Depending upon the type of health insurance you carry, you may have to reimburse your health plan for some or all of the benefits it provided to your doctors.
Health insurance comes in many forms. We use the term "health insurance" and "health plan", but they mean the same thing. Most health plans will exclude coverage for treatment related to injury sustained as a result of another person’s careless behavior. The reasoning is that the careless person's should pay the medical bill. However, many of these health plans will make payments if you sign an agreement to reimburse the health plan out of any recovery you make from the responsible party. This is why you need to read these agreements carefully before you sign.
An illustration may be helpful. Let’s say you are involved in a motor vehicle collision, and you sustained serious injuries. You may have medical coverage in your automobile policy, but with serious injuries, that coverage may be “exhausted,” which means that you have used all of the available benefits. If you have a health plan, it will take over paying your medical expenses, but only if you agree that if you make a settlement against the responsible party, you will reimburse your health plan for the value of benefits it provided to your health care providers.
This is similar to the agreement you have with your own auto insurance when it provides personal injury protection benefits. However, problems can crop up if the careless party does not have enough coverage to cover all of your medical bills, including those bills your health plan covered. Also, there may be a disagreement whether the careless party was 100% responsible for your injury, and there could even be an issue about whether the medical care that you received was related to the accident or collision.
Some health plans will allow a discount or reduction of the amount you must reimburse to share in attorney fees, account for the other party's fault, or even to make sure you are fairly compensated. Others will not. There are some health plans that will consider the total settlement or recovery amount as subject to reimbursement, and may exclude any future accident related care up to the amount of your overall settlement, regardless of whether it was allocated to attorney fees, costs, or lost wages.
If you have a serious injury claim where your health plan is involved, call us at 503-325-8600 if you have questions. We deal with these issues every day.
Can I appeal an Unfavorable Decision on my Social Security Claim?
Yes you can.
You must file a request for review with the Appeals Council within sixty days of the date on the Unfavorable Decision.
The Office of Disability and Adjudication and Review's Appeals Council, located in Falls Church, Virginia, reviews all appeals of Unfavorable Decisions.
The Appeals Council will review the Administrative Law Judge’s Decision for legal errors and factual errors. The Appeals Council can do one of three things. It can deny your request review. If the request for review is denied, you can then file another appeal with the US District Court where you reside. Oregon has one District Court, Washington has two District Courts. Where to file depends upon where you live.
The Appeals Council may also approve your disability claim. This does not happen very often, but it is a possible result.
Most often, if the Appeals Council finds a problem with the Unfavorable Decision, it will send the case back to the Administrative Law Judge that originally heard your case with instructions on how to properly evaluate the evidence. This is known as a “remand.” The Administrative Law Judge may still deny your claim at the remand hearing. Social Security will not have the same Judge hear a case that has been remanded back to the hearings office more than one time.
If you have a case at the Appeals Council, or have a case that has been remanded back to the hearings level, call us with your questions at 503-325-8600. We can let you know where you stand with your appeal.
Can I file a Workers' Compensation Claim in Oregon if I am at fault?
You can file a claim for workers’ compensation benefits in Oregon, even if you were at fault in causing your injury. This is because the Oregon Workers’ Compensation system is a “no-fault” system. The statute allows benefits where an injury “arises out of” and occurs within the “course and scope of” employment. That is pretty much all you have to prove, but sometimes, it is gets a bit involved.
Of course, there are exceptions. For example, if an employee is engaged in “horseplay," that causes an injury, then the claim may be denied. This is because “goofing around” at work is not doing work. It’s goofing around. Also, if a worker suffers an injury due in major part to drug or alcohol intoxication, then the claim can be denied. These are two examples where an insurance company can deny a claim for careless behavior.
On the other side of this is the employer’s responsibility. An employer may be negligent in causing an injury to an employee. But the no fault nature of this system protects the employer too. Exceptions? You bet. An injured worker can sue an employer that intentionally harms an employee. In other cases, there may be a claim under the Employer Liability Law, which may allow for additional recovery.
Some workers' compensation claims require that you show a much stronger connection between the work activity and the need for medical care than if you were making a personal injury claim in a state court. If the employer denies this kind of claim, you may have a personal injury negligence claim against the employer. This claim may allow you to recover more than the limited benefits of an workers' compensation claim.
You may have been injured by a person other than a co-worker or employer, which allows for a "third party claim."
If you have been injured on the job and have questions about whether your claim will be denied for any of these reasons, call us at 503-325-8600. We have extensive experience working with injured workers on these issues.
What happens if I quit my job, or find other work when I am out on an Oregon Workers' Compensation Claim?
Temporary Disability Benefits
Temporary Disability benefits are wage replacement benefits. We sometimes refer to these benefits as "time loss." There are a lot rules about when and how much of a wage replacement benefit you are entitled to, and when they can be terminated. The rules change frequently, but here are the basics:
- You are entitled to time loss benefits after you have been disabled from your job due to an on the job injury for at least three days
- You must have written authorization from your physician to qualify for time loss benefits
- If you withdraw from the work force, you are not entitled to time loss benefits
- Your doctor can retroactively authorize your disability, but there are time limits on how far back you can go to claim retroactive benefits.
You are entitled to time loss benefits even while the insurance company is investigating your claim to decide whether to accept or deny the claim. Again, you must have a doctor's note taking you off work.
After your claim is accepted, you are entitled to time loss as long as your doctor keeps you off work, and puts it in writing. Sometimes, you may be able to perform a modified job that provides for part time work. There is a process the employer and the insurance company must follow to make an offer of modified employment (think of a light duty job). If your modified job is part time, you are still eligible for a partial disability benefit, or partial time loss to cover the remaining hours you are missing because of your injury.
If You Quit Your Job
If you voluntarily leave your employment, you may still be entitled to time loss benefits if your doctor has you on limited duty, and you report your new earnings to the insurance company. If you are earning less than you would have been at your former job, you may still be able to recover partial disability benefits. If you do not report the new earnings, the insurance company is allowed to assume that you are making as much at your new job as you were at the job where you were injured.
If You Are Terminated
Generally, if you are terminated from your job, whether your time loss stops depends on when you were terminated, and why. If you are not terminated due to violation of a workplace rule, and your employer has a policy of offering modified work, then you still may be entitled to partial time loss benefits if you are released for a part time modified work. The insurance company will pay you for the time that you would have been able to work. If you violate a work place rule, however, it appears from the rules that you are out of luck.
The timing of termination is also important. If you go back to work on a light duty, or modified job, and then you are terminated, there is case law suggesting that you are no longer entitled to any time loss benefits. This is because you are not working for a reason other than your disability.
More Than One Job? (Read this if you were working two jobs when you were injured!)
If you are working more than one job at the time of your injury, you can claim time loss benefits for the wages lost from both jobs. However, you must notify the insurance company of your second job within thirty days of filing your initial claim.
Job Changes Affect Other Benefits
Changing jobs, resigning, or job termination also effects your eligibility for vocational benefits. If, after your medical care, you still cannot return to your job, and there are no other positions that pay a competitive wage within your limitations, you may be entitled to vocational benefits. This benefit can include job training and help starting a new career. But if you leave your job and go to work for another employer, you are no longer eligible for those benefits.
If you have a question, contact us. We have nearly 30 years of helping injured workers under our belt.
Should I settle my Oregon Workers' Compensation Case?
We have many clients that consult with us at various stages of their claim. Sometimes, there is a settlement agreement buried in all the papers they bring in for us to review. They really do not understand what the settlement is all about.
If your claim is accepted, you are entering into a Claims Disposition Agreement, and can read about that here.
If you have a denied claim, then you are entering into a Disputed Claims Settlement, and you can learn more about that here.
So, should you settle? Before you sign any agreement, you should call an attorney who knows how these settlement agreements work. Your attorney can give you the pros and cons of accepting a settlement, and then you can make an informed decision.
We help people every day decide which road to take when facing a tough decision on a workers' compensation case. If you have a case, and have questions about settling, call us at 503 325 8600.