Learn What You Need to Know About Your Injury and Disability Claim.
Answering the Most Frequently Asked Questions Is Good, Answering The Questions You Should Be Asking Is Even Better
We have been answering questions about Oregon and Washington personal injury and auto injury claims, Oregon Workers' Compensation claims, and Social Security Disability claims for more than a little while. People have a lot of the same concerns, so they ask the same questions. That's good. However, our job is not just to answer the most frequently asked questions, but also the ones you should be asking. That's better.
- Page 4
What are the chances that my Oregon injury claim is going to trial?
It is no secret that most injury claims in Oregon and Washington do not go to trial. Most of the time, people will be able to resolve their differences, and move on. However, there are some cases that should and do go to trial. Here are a few thoughts on whether your Oregon or Washington injury case will go to trial.
In the end, it depends on what you can prove. If you have a clear liability case, then there is a greater chance you may be able to resolve your case short of trial. However, if the defendant, or responsible party, denies fault, then the chances of going to trial have increased.
The other issue for the Oregon or Washington injury claim is damage. What kind of damage resulted from the defendant’s negligent or careless behavior? Sometimes, an insurance company will admit that their insured was at fault, and acted carelessly. However, whether and how much injury and auto collision caused is a whole different issue. If there is a disagreement about the nature and extent of an injury resulting from an Oregon or Washington car collision, or other negligent behavior, then the chances of going to trial are increased.
Another factor is the people you are dealing with. Some insurance companies are more willing to come to the table to discuss resolution, and others are not. Certain insurance companies have hard and fast rules over which cases will go to trial, and which will not.
If you have an injury claim in Oregon or Washington, and want to know all the possible scenarios, call us at 503-325-8600. We represented many clients over the years against many different insurance companies, and have experience resolving cases and taking them to trial.
What options do I have if my claim was denied, and I did not request hearing within the time limits?
Although it can be an uphill battle, you may still have some options if you did not file a request for hearing within the sixty day time period under the Oregon Workers's Compensation law.
When your claim was accepted for some kind of injury, you may have asked that the insurance company accept another medical condition. Sometimes, the condition that is denied may be different than the medical condition you actually suffered as a result of the injury. For example, if you asked that a strain injury be accepted, but an MRI or other medical test shows a torn ligament or some other more serious injury, you may be able to still make a claim for that particular medical problem.
If your doctors find an injury that was not diagnosed before, this new evidence may overcome a previous denial.
There are also situations where the type of claim filed and denied is different than what is actually going on. For example, you may have filed an aggravation claim for a condition that was never accepted. Depending on the language in your claim denial, you may be able to file a new medical condition claim, or a consequential condition claim.
There are also possibilities with hearing loss claims or other kinds of occupational disease claims. You may have filed a hearing loss claim ten years ago, that was denied, but not appealed. That does not prevent you from claiming that your exposure to noise at work caused additional hearing loss. Of course, you still need to prove your claim.
If you have questions about the nature of your denial, and whether there are other options, call us at 503-325-8600. We are happy to help.
What kind of evidence can an Oregon Workers’ Compensation Judge consider?
Generally, an Oregon Workers' Compensation Judge can consider more kinds of evidence than a state court judge. This is because the formal rules of evidence do not apply in a workers’ compensation hearing like they do in a state court.
A workers’ compensation hearing is an administrative procedure, and the Administrative Law Judge has quite a bit of discretion in deciding what evidence is admitted, and what is not. For example, a Judge could receive and evaluate hearsay evidence. “Hearsay” is a recognizable term, and simply means “what somebody else said.” Also, in a Workers' Compensation hearing, medical opinions, which are the heart of many cases, can be in writing, whether by report, or in a deposition. It is rare to have a medical expert to show up live at a hearing, but it does happen.
More often, however, the bulk of the evidence in an administrative hearing at the Workers’ Compensation Board is in the form of medical records, medical reports, and witness testimony. In some cases, a physician may author a report giving an opinion, and refer to documents that are not in the file, or not in the exhibits. Nonetheless, a Judge may decide this opinion can be admitted into evidence. However, the Judge may find that this exhibit is not persuasive, depending upon its reliability.
If you are facing a denied Oregon Workers’ Compensation claim, and have questions about how to prove your case, call us at 503-325-8600. We have extensive experience going to hearing for injured workers.
How can I get my Oregon workers' compensation insurance carrier to close my claim?
When your insurance company accepts your Oregon Workers’ Compensation claim, it must determine whether the claim is “disabling” or “non-disabling.” When a claim is accepted as “disabling,” then the insurance company must issue a Notice of Closure. Your claim is ready for closure when your attending physician has determined that you are “medically stationary.” At that point, the insurance company must gather the appropriate information to issue a Notice of Closure. However, sometimes the insurance company does not do its job.
Your option is to make a written request to the insurance company to issue a Notice of Closure. The insurance company has ten days from the date it receives the written request to either issue a Notice of Closure, or notify you in writing that it is refusing to do so. If the insurance company refuses to close your claim, you can request a hearing, seeking an order that the claim be closed. In addition, you can request that the insurance company pay a penalty for its unreasonable refusal to close the claim.
Sometimes, the insurance company will not respond at all. This may or may not result in penalties.
Why is it important to get your claim closed? Simply stated, when your claim is closed, you are moving forward from the injury, and can concentrate on returning to work, whether it be with the vocational benefit, or a modified position with your current employer.
If you are approaching claim closure on your Oregon Workers’ Compensation claim, and you have questions, call us at 503-325-8600. We work with folks every day facing these issues.
How do I get my workers' compensation carrier to close my claim?
When you are injured on the job in Oregon, and the Worker's Compensation insurance company accepts your claim, it must tell you whether you have a "disabling" or "non-disabling" claim.
If the claim is disabling, the insurance company will eventually have to issue a Notice of Closure. In order to do this, the insurance company must gather information to determine how your work injury will affect your future ability to perform work activity.
In some cases, insurance companies fail to do their job and gather the information needed to issue a Notice of Closure. However, an injured worker may request that the insurance company issue a Notice of Closure within 10 days of the receipt of the written request. If the insurance company fails to respond to that request, either by issuing a Notice of Refusal to Issue a Notice of Closure, are not responding at all, the injured worker can request a hearing, and ask the Workers' Compensation Board Hearings Division to order the claim closed. In addition, the injured worker may be eligible for penalties if he or she can show that the insurance company was "unreasonable" in refusing to close the claim.
Proving that the insurance company was unreasonable is not limited to their mere failure to close the claim, but also in not taking the proper steps to gather the required information close the claim.
If you are workers' compensation carrier is ignoring you, and you have questions, call us at 503-325-8600. We review claims files all the time, and advise clients on their options at closure.
What does it really mean to "settle" an Oregon auto injury case?
Many times, when people consult with our office, there may have been some discussion with an insurance adjuster on settling an auto injury claim, whether be in Oregon or Washington. Often times, we find that many people raise good questions about what it exactly means to settle their case.
Essentially, settling any kind of claim involves releasing your rights to further pursue the claim in exchange for payment of a sum of money. However, many settlement agreements go out of their way to make it clear what exactly is involved in the agreement. Not all settlement agreements are the same, but they often include the following provisions:
- Auto insurance companies are responsible for paying the claims made against their the people they insure. A settlement agreement will make sure that the injured party knows she is releasing not only the insured and the insurance company, but anybody remotely associated with the driver and the insurance company from any liability. This provision usually rambles on, naming any possible person or entity that may be potentially responsible for causing injury.
- Most settlement agreements will include a statement that the responsible party, by resolving the claim, is not admitting to any liability or fault. There are many possible motives for this provision. For example, the auto collision may involve several people, and many cars, and if a responsible insurance company admits fault for causing one injury, it may be concerned about admitting fault for causing injuries to others.
- Settlement agreements will make sure that the injured party understands that she is releasing her claim for her injuries that she actually knows about, but also any future or unknown injuries. This provision stresses that the settlement agreement is final, and even if some unknown injury comes to the surface after the agreement is signed, the settlement agreement shuts down a right to make a claim for the new injury.
- Many settlement agreements also include a “hold harmless” clause. This provision usually addresses payment of medical expenses. In some cases, a case may resolved by settlement, and a medical provider may have gone unpaid. This type of provision make certain that if a medical provider is still owed money after the settlement, the responsibility for paying the bill or defending claims for payment of the bill lies with the party who resolve the case, not the insurance company or the negligent driver. In other words, the injured person is agreeing to take on any claims for payment of medical bills after the case resolves, and hold the insurance company harmless from those claims.
- A similar provision involves inclusion of any outstanding medical bills or liens. In some cases, an injured person may agree to resolve the case for a certain sum of money, but that sum of money will include any insurance liens or responsibility for outstanding medical expenses. Again, the insurance company is making sure it has no other financial obligation for the claim.
- Rarely, an insurance company will seek a confidentiality clause as part of the settlement agreement. This is common with high profile cases or cases involving catastrophic injury. Some corporate defendants or large insurance companies will not want an injured party to publish or disclose the nature of the agreement, or the amount of settlement.
If you are facing an injury claim in Oregon or Washington, and have questions about potential settlement, and how these agreements were, call us at 503-325-8600. We have extensive experience working through settlement agreements.
What is the "burden of proof"?
The "burden of proof" is given to the person in an Oregon personal injury case making a claim for compensation. Whenever someone files a Complaint in a court, or asserts an Affirmative Defense in response to a Complaint, that person has made an allegation, and has to back it up with proof. Thus, that party or person has the burden of proof.
The burden of proof differs, depending on the kind of case that is in front of the court or the jury. In a criminal case, the burden of proof is known as "beyond a reasonable doubt." This is a pretty high burden, and the rationale is that if you are going to put someone in prison, you better not have any doubt about their guilt, or at least a reasonable doubt. Jurors often seem much more familiar with this burden of proof because they have seen it depicted on the big and small screens, sometimes accurately, sometimes not.
Civil cases, like an Oregon or Washington auto injury claim, do not have the same burden of proof. These cases require the person bringing the claim or asserting a defense to prove their allegations by a "preponderance of the evidence." This means "more likely than not." So, when presented with whether a party proved their claim or their defense, a jury must determine whether the evidence shows, more likely than not, something has been proven. The jury can have some doubts, and those doubts may even be reasonable, but in the end, if whatever fact is being argued about is probably true, then the person making the allegation has "met the burden of proof."
Whether and how to pursue an injury claim in court depends on whether you can meet your burden of proof more than any other single factor. So, if you have questions about how to go about proving a claim like this, give us a call at 503-325--8600. We can explain the process, and how we address the burden of proof.
Who can appeal my Notice of Closure on my Oregon Workers' Compensation Claim?
The Oregon Workers’ Compensation law provides a right of appeal of a Notice of Closure, which is known as a Request for Reconsideration. There are several issues you may want to appeal from your Notice of Closure. However, you are not the only one that can appeal the Notice of Closure.
Oregon law allows an insurance company to appeal its own closure. Why would an insurance company close a claim, and then later decide to appeal its own decision? This is an excellent question.
Well, insurance companies often audit or review their decisions, and they may see an opportunity to correct a mistake. Sometimes, an attorney gets involved, and again, sees a potential issue, or an opportunity to reduce a permanent partial disability award. In all fairness as well, insurance companies are limited to the attending physician’s findings or concurrence with other doctors’ findings at closure, and may simply want a second opinion.
If you have a claim that has been closed, and your insurance company is seeking an appeal, or if you just have questions, give us a call at 503-325-8600. We can let you know where you stand.
Who pays the verdict if I go to trial for an Oregon or Washington auto injury claim?
In Oregon, auto insurance is required to protect other Oregon motorists. When an insured motorist causes an injury in a car wreck in Oregon, the insurance company insuring the careless motorist is responsible for any damages caused by their insured. This is what the insurance contract is all about.
In almost all cases, the preferable resolution of an auto injury claim is to resolve the case through a negotiated settlement. However, if there is a disagreement about who is responsible for causing the collision, or the amount of compensation is due, then the case will be filed in a state or federal court.
The insurance company remains involved, and will provide the careless motorist, who is now a defendant, with an attorney. The case still may resolve prior to a trial, and if it does, the insurance company is writing the check.
As the case moves forward through the courts, the insurance company pays court costs, and sometimes compensates their insured for time away from work to sit through a deposition, or a trial. However, the rules of evidence prohibit any mention at trial that there is an insurance company standing behind the defendant at trial, or that the trial lawyer defending the case is actually paid by the insurance company, or in many cases, is an employee of the insurance company.
The insurance company will pay any verdict a jury renders up to the amount of coverage provided to the defendant, which is also referred to as the “policy limits.” Even if the verdict is greater than the amount of insurance coverage provided to the defendant, the insurance company may still be responsible for the “excess verdict.”
Many people involved in an Oregon or Washington auto injury claim are concerned about having to “go after” a defendant or “bankrupt” them with a lawsuit. Auto insurance prevents this, but if you have questions or concerns, call us at 503-325-8600. We will walk you through the whole process, and give you all your options.
How do I pay for an attorney to help me with my Oregon Workers' Compensation claim?
The Oregon Workers’ Compensation Act regulates all aspects of workers’ compensation, including the fee agreement. As result, every fee agreement offered by every attorney representing injured workers in the State of Oregon is the same. These fee agreements are simply a compilation of the rules on how attorneys can get paid for representing injured workers.
There are two common aspects to the Oregon Workers’ Compensation fee agreement. First, an attorney representing an injured worker in Oregon is not paid unless he or she does something to obtain benefits for the injured worker. This may be obtaining an increase in an existing benefit, like temporary total disability, or permanent partial disability, or it could mean successfully fighting a denied claim at hearing. In either case, the attorney must be “instrumental” and getting the injured worker and increased benefit, or overcoming a denied claim. If the attorney is not successful, there is no attorney fee.
The other common aspect of the fee agreement is that no matter what issue the attorney helps the injured worker with, the State of Oregon must approve the fee. For example, if the attorney goes to hearing with a client and successfully fights denied claim, then the Administrative Law Judge will decide the attorney fee. The insurance company or employer pays the fee, or appeals the Order. If the attorney obtains an increase in an injured worker’s permanent partial disability rating, then the Appellate Review Unit at the Oregon Workers’ Compensation Division will set the fee according to rule. This fee is a percentage of the increased recovery, depending the level of appeal.
Costs are addressed in the fee agreement. The term “costs” refers to those things that the attorney may need to spend money on to prepare the case. A common example of a cost on a Oregon Workers’ Compensation case involves obtaining expert opinions from attending physicians. However, an insurance company or employer may be responsible for reimbursing the Claimant’s attorney for costs incurred in fighting a denied claim.
If you have a denied Oregon Workers’ Compensation claim, and have concerns about whether you need an attorney, call us at 503-325-8600. We offer twenty years of experience going to hearings with injured workers in Oregon.
What is a contingent fee agreement, and what should I look out for?
Access to Justice
A contingent free agreement gives everyday people access to justice because the attorney earns a fee only upon recovery on behalf of the client. If the attorney makes a recovery, the fee is a percentage of the compensation recovered. Thus, the fee is “contingent” or conditional upon recovering of some money for the injured client as compensation.
When Are Contingent Fee Agreements Used
Attorneys use contingent fee agreements when representing clients on personal injury matters, including auto collision injuries, third-party claims arising from Oregon Workers’ compensation cases, or Employer Liability Law claims related to construction or logging accidents. Although contingent fee agreements are great because they allow an injured person access to legal representation, there are a few things to look out for when reviewing a contingent fee agreement.
What is the Fee?
These agreements provide that the fee is a percentage of the "recovery" or "settlement." The typical fee many people see calls for a fee of one third of the recovery amount, depending when the case resolves. When reviewing a contingent fee agreement, look to see what "recovery" the fee is charged from. Some attorneys may offer a lower percentage as a fee, but it may not truly better your recovery when you consider what the fee is charged from.
For example, in an auto collision case, many people have personal injury protection coverage, which is a benefit that pays medical expenses, regardless of who is at fault. There are some cases where there may be a dispute about whether certain medical treatment is necessary, but in many cases, these expenses are covered, and the attorney will have no role in making sure these bills are covered. Should an attorney include this as the "recovery" on a contingent fee agreement? This is a good question to ask.
What About Costs?
Another part of the agreement addresses expenses, or "costs." Costs are the expenses an attorney will incur in building a case for their client. Typical costs in an auto injury claim include the cost of obtaining a police report, medical records, and court filing fees. Many attorney’s contingent fee agreements provide that the client is responsible for any costs incurred in preparing the case. Some attorneys may require that the client deposit funds into the attorney client trust account, and others will offer to pay the costs in advance, and then seek recovery at the case’s conclusion. It is a good idea to get a clear understanding of how costs are handled in the case. Also, a prospective client should ask what items are considered “costs.” Some attorneys will charge for long distance calls, photocopies, and postage.
Does the Contingent Fee Amount Change?
Many fee agreements will have a graduated fee schedule. This means that the fee goes up depending on how far the case goes. If a case is filed in court, the costs are going to go up and the fee amount may increase as well. This only makes sense because trials are risky, labor intensive, and expensive. Our office has seen fee agreements from other attorneys that charge 50% of any recovery should the case go to trial. Frankly, that’s ridiculous.
What If I Don't Like My Lawyer
Finally, we tell all potential clients that they can fire us if they are unhappy with our work. However, our fee agreement provides that we are entitled to be compensated for the time we have in working on the case. Any client consulting with an attorney needs to know what the fee agreement says if the client or the attorney decide to dissolve the relationship and move on.
We go through the fee agreement paragraph by paragraph with all our potential clients so you can make an informed decision. If you are concerned about whether you can afford an attorney or whether you need an attorney in the first place, contact us. We will explain our fee agreement and help you decide whether an attorney should get involved with your claim.
Can I make a claim against a drunk or impaired driver?
The short answer is yes, you can make a claim for your injuries against a drunk or impaired driver. However, the real question is whether or not you can recover, and if so, from whom.
In Oregon, the insurance statute regulating auto insurance policies allows insurance companies to exclude "intentional" behavior. This is behavior that has intends to harm, like someone assaulting another person. This only makes sense, because it would be bad public policy to allow somebody to go out and essentially insure their own criminal behavior. However, this issue can get tricky in cases involving the drunk or impaired driver.
We have handled cases involving drunk drivers who have killed motorists, and drunk drivers who have severely injured others. Often, these cases involve criminal charges. Criminal charges involve proving a certain "state of mind," which can affect the injury claim against the responsible driver. In other words, some crimes require that the prosecutor prove the defendant drunk driver intended to cause harm. Other types of crimes require that the prosecutor prove that the defendant drunk driver "recklessly" disregarded the safety of others in causing the injury. In the first example, a liability insurance company may decline to cover the claim, because the behavior was "intentional." In the second example, however, the insurance company may be required to accept coverage, because the behavior, although socially unacceptable, was not purely intentional, but instead, reckless. There is a difference.
Another issue in cases involving the drunk or impaired drivers is the possibility of another responsible party. In Oregon, statutes prohibit providers of alcohol from serving "visibly intoxicated" patrons or individuals. An injured motorist in Oregon may have a claim against the provider of alcohol, but the statute allowing that claim sets higher hurdles for proving the claim.
If you have questions about making a claim against an impaired or drunk driver, call us at 503-325-8600. We have represented more than a few clients on claims against impaired drivers and providers of alcohol.
What is "Substantial Gainful Activity"?
The Social Security And ministration employs a five-step sequential process in determining whether somebody meets the definition of "disability." This is a series of questions Social Security Administration decision makers ask in determining every disability claim. With some exceptions, the Claimant must meet all the criteria in the five-step process.
The first question is whether somebody has engaged in "substantial gainful activity" this term, often referred to as SGA. SGA simply means regular work for earnings. Generally, Social Security will determine whether somebody is engaged in substantial gainful activity by looking at their monthly earnings. If a person's earning monthly income beyond the maximum earning level set by Social Security, there engaged in substantial gainful activity, and their claim will be denied without any further consideration. The amount of earnings considered "SGA" is set year by year. Of course, there are many exceptions to this general rule.
First, a person may not be engaged in substantial gainful activity if they worked for a short period of time, and were forced abandon the work due to their disabling condition. This is considered an unsuccessful attempt at a return to work, and will not be considered substantial gainful activity.
There are other situations where a friend or family member will accommodate the Claimant. For example, the employer may tolerate several absences for month, or may allow the Claimant to take several breaks during the day. In essence, the employer is subsidizing the claimant's work activity, and the Social Security Administration will determine the amount of subsidy the employer is providing. If the subsidy puts the Claimant below the earnings levels for significant gainful activity, then the work will not be considered significant and gainful, and the Claimant can proceed with attempting to prove the other required elements of a disability claim.
If you have a denied Social Security Disability claim in Oregon or Washington, and there is an issue regarding your work activity, call us at 503-325-8600. We have handled issues involving significant gainful activity in the past, and can answer your questions.
What is the "date last insured," and why is it so important for Social Security Disability Insurance claims?
Social Security Disability Insurance is Just That: Disability Insurance
Social Security Disability Insurance is nothing more than a disability insurance policy. The only difference is that the federal government is the insurer, not some private insurance company.
When a person earns income, whether as an employee or business owner, contributions out of gross income are made to the Social Security program. This is like a premium that a person pays to an insurance company. So, what does it take to be insured?
Under the Social Security Disability program, a worker is insured if they make the required amount of contributions from wage withholdings over the required amount of time. Social Security looks at earnings made each quarter of a year. If you earn enough in a quarter of a year, than that quarter counts as a quarter of coverage.
Generally, to be insured for disability benefits, a worker must have at least twenty quarters of coverage in the last forty quarters. Stated another way, you must have at least five years of insurance paid in over the last ten years. There are exceptions for workers under the age of 31.
The Date Last Insured
If someone works for ten years and earns enough quarters, then they have forty quarters of coverage. But if they stop working on January 1st, they start losing quarters of coverage. After one year of no work, the worker will have 36 quarters of coverage. Each additional year of no work is four quarters of coverage lost. This worker will remain insured for five years after they stopped working. The day after the fifth year has passed that person is no longer insured for benefits.
How does this affect a disability claim?
The Alleged Onset Date and Continuous Disability
Even if the worker is no longer insured for disability benefits, she may be able to make a successful claim for benefits if she can prove that her disability began prior to the date she was last insured for benefits, and that the disability has been continuous. So if a person applies for benefits in 2018, and was last insured on December 31, 2015, they must prove that their disability began prior to the end of 2015, and has continued to the present.
The common challenges in proving this kind of a claim include finding supporting medical evidence, and showing that the disability has been continuous. Many times, hospitals and medical clinics purge their medical records after so many years, and medical records are critical to prove disability. Other times, the worker attempted to go back to work, and if they worked long enough, it breaks the chain of continuous disability.
We have reviewed many cases involving a remote date last insured. Sometimes, we can dig and find supporting evidence. If you have a question about Social Security Disability claims involving a date last insured, contact us to find out where you stand.
What medical conditions will Social Security consider for disability benefits?
Social Security recognizes several medical conditions that can cause disability. The most common in our experience are orthopedic and spinal conditions. However, many of our client struggle with mental impairments to keep them from being able to work as well.
Other disabling conditions we have helped client on include cardiovascular conditions, respiratory illnesses, neurological disorders, immune system disorders, digestive tract problems, cancer, and kidney disease.
For many medical problems, the Social Security Administration has developed "impairment listings." The impairment listings are an appendix to the rules, and set out the medical findings necessary to determine whether somebody, based on the medical records alone, is entitled to disability benefits. Even if you do not "meet a listing," you still may be found disabled if your residual abilities are so reduced that you cannot engage in any competitive employment.
There are some conditions, like fibromyalgia, that do not have a specific listing. However, Social Security does maintain policies on how to review and consider claims for disability arising from fibromyalgia.
To learn more about the Social Security Disability application process, order our free book, or call us at 503-325-8600. We have extensive experience representing Claimants in front of the Social Security Administration, and can answer your questions.
Can I receive Supplemental Security Income and Social Security Disability Insurance together?
Yes you can, but everything has to line up correctly.
First, you will only receive both benefits when your Social Security Disability Insurance is less than your Supplemental Security Income. Learn the difference between each here.
Supplemental Security Income, or SSI, will pay $721.00 per month currently. If you are entitled to Social Security Disability Insurance, or SSDI, and your SSDI monthly benefit is more than $721.00, then you do not receive SSI because you have too much income. But, if your SSDI is less than $721.00, then you will receive your SSDI, and the SSI will "supplement" that benefit up to the $721.00.
What are the advantages? Well, if you are eligible for SSI, you will receive Medicaid right away. But, if you are also eligible for SSDI, you will eventually be eligible for Medicare. (Medicare does not kick in until 24 months after you have been eligible for SSDI benefits). However, more doctors accept Medicaid, so you have that advantage, eventually.
If you are in the middle of an application for Social Security Disability, and have questions, call us at 503-325-8600. We help people seeking benefits every day.
My Oregon Workers' Compensation claim is denied. What are my options?
If your Oregon Workers' Compensation claim has been denied, you have a right to appeal the decision. However, there similar options available to get you through the wait for a hearing, and a Judge's decision.
1. Requesting Hearing
If you receive a written denial, it must provide you an explanation of your appeal rights. You have sixty days from the date on the denial letter to request a hearing with the Workers' Compensation Board. The request must be in writing. This is the first step, and the most important.
2. Documenting Disability
Battling a denied Oregon Workers' Compensation claim can take several months, even more than a couple years. During the time you were fighting the denial, you should document any ongoing inability to perform your job duties due to the on-the-job injury. This will better your chances of recovering temporary total disability benefits should you finally prevail on the claim. In some cases, the Workers' Compensation Board will acknowledge an "open ended" authorization to be off work from your physician. However, it is a better idea to get periodic notes from the doctor authorizing you to be off work. If you are only released for light duty work, document that as well.
3. Unemployment Insurance
Part of your wage withholdings include payment for unemployment insurance. If you are still able to perform some kinds of work, but your employer does not have any work available within your limitations, your employer may lay you off or discharge you from employment. Contact your local Employment Department office to see if you qualify for unemployment insurance benefits.
4. Vocational Rehabilitation
We have had catastrophic we injured clients contact the Oregon Vocational Rehabilitation Department to inquire about vocational retraining benefits. In certain cases, this Oregon agency may provide benefits to help you find work that you can do within your physical limitations. If you do complete a vocational program, you may render yourself and eligible for the Workers' Compensation sponsored vocational benefit, but you are that much closer to getting back on the job.
Another option is to get in touch with your local Community College to see if you qualify for any grants or other financial aid in an effort to train for work within your limitations.
5. Social Security Disability
If you feel that you are not able to return to any type of work as result of your on-the-job injury, you should consider applying for disability with the Social Security Administration. This benefit requires a showing of disability from occupations, depending upon your age, and that your disability has lasted or is expected to last for one year.
6. Expedited Hearing Requests
If you have no other income in your household after your claim has been denied, you may be able to request an expedited hearing due to a financial hardship. There are similar rules allowing for an expedited hearing where you have a critical need for medical care.
If you have questions about a denied Oregon Workers' Compensation claim, call us at 503-325-8600. We work with injured workers every day.
My Oregon Workers' Compensation claim is accepted. Do I need an attorney?
Many Oregon Workers' Compensation claims are accepted and processed without much problem. However, even with an accepted and open claim, there are a few things to consider in deciding whether you should talk to an attorney.
First, take a look at the Notice of Acceptance. This is a letter from the insurance company explaining what medical conditions have been accepted. You will want to make sure that the insurance company is accepting all of the medical conditions that resulted from your on-the-job injury. Otherwise, you may not be receiving all the benefits you deserve. The statute allows you to make a written request to the insurance company asking it to include additional medical conditions as part of the Notice of Acceptance. If the request is denied, you can seek review with the Oregon Workers' Compensation Board.
Another part of the Notice of Acceptance involves the "classification" of your claim. In Oregon, claims are classified as either "disabling" or "non-disabling." If you have missed work as result of your injury, or if your doctor expects that you will have a permanent impairment even after you have completed your medical care, then your claim should be classified as "disabling." You have one year from the date of the notice of acceptance to ask your insurance company to reclassify the claim. If the insurance company refuses to do so, you can seek review with the State of Oregon Workers' Compensation Division.
If you do have a disabling claim, you will receive a Notice of Closure. The Notice of Closure explains, among other things, whether you are entitled to a permanent partial disability benefit, and if so, how the benefit was calculated. You may want to have an attorney review the claims file to ensure that the permanent partial disability benefit was correctly calculated. If you disagree with the amount of permanent partial disability, you can seek review by filing a Request for Reconsideration with the Oregon Workers' Compensation division.
If you are in the middle of an Oregon Workers' Compensation claim, and have questions, call us at 503-325-8600, or order our free book. You can order the electronic version, or call and we will rush out a hard copy.
How do I file an Aggravation Claim for an Oregon Workers' Compensation Claim?
An "aggravation claim" unfortunately is not a claim for compensation for the aggravation the goes along with being injured on the job in Oregon. Instead, it is a request to re-open a claim that has been closed for less than five years.
Only and "attending physician" can file an aggravation claim. The "attending physician" is the physician primarily responsible for your care when your claim was originally opened. A recent case confirms that another doctor, not your attending physician, cannot file an aggravation claim.
Another recent case from the Oregon Workers' Compensation Board confirms that the "aggravation" must be of the "accepted condition." The "accepted condition" is the medical condition that the insurance company took responsibility for when it issued a Notice of Acceptance. If your claim involves a Notice of Closure, you also should have received an "Updated Notice of Acceptance."
So, to prove an aggravation claim, you must show an "actual worsening" of the accepted condition. This can be an actual pathological worsening of the injury (some change in the anatomy), or a can be inferred by increased symptoms. Either way, the aggravation must be proven with "objective" medical evidence. This simply means that a doctor is able to observe the actual worsening through clinical tests, x-rays, or laboratory results.
These claims are difficult to prove, and can be tricky. If you are in the midst of an aggravation claim, and have questions, call us at 503-325-8600. We have answers.
Can I recover travel expenses as part of my claim?
An injured worker with an accepted workers' compensation claim is entitled to reimbursement for travel expenses associated with necessary medical treatment. Generally, the reimbursement rate for travel, effective December 23, 2013 is $.56 per mile. This is down one half cent from the beginning of 2013.
You can also recover expenses for meals if you meet the requirements under the rules. The current reimbursement rates are $11.50 for a breakfast, the same amount for a lunch, and $23.00 for dinner.
If you are required to stay overnight for an examination or treatment, you are entitled to reimbursement for lodging. Generally, the reimbursement rate is $83.00, but in certain parts of the state, that amount is adjusted due to seasonal rates.
If you are not medically able to drive to your appointment, get it in writing from your doctor, and your driver can be reimbursed as well.
Since we are talking about travel, you should also know that if your medical care is going to pull you off work for four hours or more, obtain verification of your missed time from work, and you can submit a request for time loss benefits for the missed time from work.
To avoid any problems, we recommend that you contact the carrier in advance to confirm authorization for lodging, and also keep those receipts for reimbursement of meals. We also recommend that you keep a record of these expenses as you incur them, even though you have several months to submit the request for reimbursement.
We focus our practice on denied workers' compensation claims, but if you have a question about the medical services benefit, or any other issue on your case, call us at 503-325-8600. If we cannot take your case, we can at least .9 the right direction.