Learn What You Need to Know About Your Injury and Disability Claim.
Answering the Most Frequently Asked Questions Is Good, Answering The Questions You Should Be Asking Is Even Better
We have been answering questions about Oregon and Washington personal injury and auto injury claims, Oregon Workers' Compensation claims, and Social Security Disability claims for more than a little while. People have a lot of the same concerns, so they ask the same questions. That's good. However, our job is not just to answer the most frequently asked questions, but also the ones you should be asking. That's better.
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What is Arbitration?
Arbitration is a private trial. Two parties in a dispute may agree that instead of going to a court and proceeding to a trial in front of a judge, or a judge and jury, the better way to resolve the dispute is to arbitrate. Both parties select a person or a panel of people to act as decision makers. The rules of evidence are often relaxed, and each party submits its evidence for the arbitrators to review in making a decision.
Some court cases in Oregon will go to mandatory arbitration, and if either party is not satisfied with the result, he or she can appeal to the Circuit Court for a trial. This is a form of "non-binding" arbitration. Other arbitrations occur as a result of a dispute over auto injury claims, like an Uninsured Motorst claim. If both parties agree, these disputes go to arbitration, and the arbitrators' decision is the final word. There are no appeals, and this is "binding" arbitration.
Whether to file your case in court, or to agree to arbitration is a decision that rests upon many factors. If you are looking at this decision, and have questions, give us a call at 503-325-8600. We have experience taking cases to arbitration, or trial.
How do I appeal a Social Security Disabilty denial?
The first step is to file a request for reconsideration, which is the first appeal on a denied claim for Social Security Disability benefits. This can be done via the mail, or online, which ever you prefer. We help many disability applicants with this at the first appointment. Along with the appeal, you have to file a Disability Report, which is a form seeking updated information on your medical conditions and treatment.
When this appeal is filed, the same office that originally decided your denial reviews the appeal. It is not the same exact person, but is it in the same agency. This is called the Disability Determination Services (DDS) office in Oregon. DDS should update any medical records, and may decide to send you to a doctor for an examination.
The fact is, however, that most reconsideration requests are denied. There was even some talk of scrapping this whole level of appeal, but it is still around. If the the reconsideration request is denied, then you have 60 days to file a request for hearing, which is a very similar process.
If you have a denied claim, and you have questions, give us a call at 503-325-8600. We appeal cases for people all the time, and can help you perfect your appeal, even if you decide you do not need an attorney.
How do you prepare a client's Social Security case?
This a good question, because most of the work on a Social Security case happens well prior to hearing. There are a few stages of work that we perform.
First, we perfect the appeal, which includes filing the actual request for review, and completing the Disability Appeal Report. We then request your claims file, and review it. In the early stages, we are making sure that Social Security has updated medical records.
When we review the file, we are looking for any evidence that will help, or even hurt, your claim. We are also interested in finding out if a doctor or other health care provider is willing to comment on your condition and provide a report or respond to questions. We will meet with these folks, and help them with reports, or statements to help prove your case.
We then continue to monitor the file, depending on which stage of the appeal you are facing. If a request for reconsideration is denied, we file the appeal for our client, and request the hearing. Prior to hearing, we are regularly in touch with our client to make sure that medical records are up to date, and that we have all the evidence we can find to prove the case.
We meet with our clients prior to hearing after summarizing and reviewing their file, and explain the hearing process from the time you walk into the door, until the time you leave the hearings room. We also talk about what kind of questions will be asked, and what to expect from the particular Judge hearing the case.
After we receive a Decision, we contact our client, and discuss when benefits will be paid, or in some cases, whether to file an appeal.
For us, the goal is to get the proof early, keep things up to date, and keep our client informed. If you are facing a denied claim, call us at 503-325-8600. Even if you do not need our help, we can answer your questions.
What is an Employer Liability Law Claim?
A Little History
The Employer Liability Law, also called the “ELL” first came upon the scene through an initiative in 1910. This statute was passed before Oregon’s predecessor to the modern Workers’ Compensation Statute.
The law applies to employers who conduct projects or work that involved “risk or danger.” The law survives today, despite significant changes to the workers’ compensation system.
To make out a claim under this statute, the injured worker must show 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.
There are two kinds of work activity considered “dangerous:”
Any work that is proven to involve risk or danger, and,
Work involving certain structures, machinery, electricity, and dangerous appliances and substances.
Sometimes, violation of an OSHA rule or regulation that results in injury will prove a violation of the Employer Liability Law. This is because the rules are aimed at making the work place safe to protect the worker. Depending on the rule and work involved, violation of the rule will prove the work involved a risk of danger, and that the employer's violation of the rule makes them responsible under the ELL.
Who is Responsible?
The Oregon Workers’ Compensation statute gives employers immunity from lawsuits for an on the job injury, even if the employer is negligent. There is an exception if the employer violates the law that requires it to provide workers’ compensation coverage for its workers. This employer is called a “non-complying employer,” and a worker can use the Employer Liability Law to recover for the loss and harm from an injury on the job.
The other “party” responsible under the statute is known as the “indirect employer.” This is a company or contractor that did not actually higher the worker but was in charge of risky and dangerous work. An indirect employer is responsible for a worker’s injury when the indirect employer is working with the injured worker’s employer on a common project or enterprise. When this happens, the injured worker must show that the two employers, direct and indirect, were working on a common project, the project involved risk or danger, the injured worker was adopted or “intermingled” with the indirect employer, and the indirect employer was in charge of whatever condition at work caused the injury.
Another way to prove responsibility as if the indirect employer controlled the way the work was done, and that control over how things were done caused the workers’ injury.
Who Has The Claim?
The worker injured can recover compensation for their harms and losses. If the injury causes a fatality, the surviving spouse and children may make a claim on behalf of the estate.
Who Does Not Have A Claim?
Generally, an independent contractor cannot make a claim under the statute. Sometimes, figuring out whether a worker on a job site is an independent contractor or an employee is complicated. The main factor courts look at is how much control the indirect employer had over the worker.
One analogy often used to distinguish an independent contractor from an employee is the “house painter” hypothetical. If somebody hires a person to paint their house, and the house painter provides her own tools, decides how to approach the job, and sets the schedule, that painter is probably an independent contractor. However, if a homeowner hires a painter, provides the paint, paintbrushes, ladders and drop cloths, sets the schedule, and directs the house painter, that person is more like an employee. Oregon statute sets out criteria to determine whether someone is an independent contractor, or an employee.
In the workers’ compensation arena, a worker on a construction site with their own Construction Contractor Board license bylaws considered an independent contractor, and even if their work is directed, they may not be able to pursue an Employer Liability Law claim
There Must Be A Connection
Lawyers and judges call this “causation.” There must be a connection between the indirect employer’s failure to take all practical measures to make the workplace safe and the resulting injury. Failing to make the workplace safe need not be the sole cause of the worker’s injury, but it must be a significant factor in the cause of injury. Like many other issues, this may come down to a jury’s opinion after looking at the facts.
Contributory “Negligence” Defense
The statute was amended so an employer can “point the finger” back at the injured worker and argue that the injured worker was at least partially at fault in causing the injury. This is known as “contributory negligence.”
When an employer makes this argument, the employer must prove that the worker was careless, and that the careless behavior contributed to the injury. A jury may decide that the worker was not at fault or may assign a certain percentage of fault to the injured worker. If a jury finds that the injured worker was at least partially at fault, the court will reduce any compensation the injured worker recovers by the injured worker’s percentage of fault. If the jury concludes the injured worker is over 50% at fault in causing their injury, the injured worker can recover no compensation for their losses.
Why Bring an ELL Claim?
There are many advantages in pursuing this claim.
First, it is easier to prove that the employer is responsible because this statute sets a higher standard for the employer to make the workplace safe. Instead of being reasonably careful, the employer must be really careful, and the cost to make things safe is not a consideration. This makes it easier to prove legal responsibility.
In other kinds of “negligence” claims, and injured person cannot bring up the fact that the other party (defendant) fixed the defective or dangerous condition at a trial. In this kind of case, the injured worker can show a jury how an employer fixed a dangerous condition to show that it was the cause of injury.
Another benefit for an injured worker is the compensation available. If someone is injured on the job, and files a workers’ compensation claim, the workers is only eligible for a limited schedule of benefits. The workers’ compensation carrier decides to accept or deny the claim, and even if the claim is accepted, the carrier may deny certain benefits. Although medical expenses and lost income are available benefits in the workers' compensation claim, there is no benefit for pain, suffering, loss of mobility, or other types of "non-economic” damage.
Whether you have a claim under this statute depends on your work, and your relationship to the responsible party. If you have questions, contact us. We can review your case, and let you know your options.
What is the Disability Appeal Report for when I appeal a Social Security denial?
The Disability Appeal Report is a form that you are filling out when you request reconsideration of an initial claim denial, and when you file a request for hearing to appeal a denied reconsideration request. Basically, the form asks for updated information about your condition, and medical treatment for that condition. In some cases, Social Security may update your claim file, and may even ask for an consultative examination. Here is a list of the information these forms seek:
- whether you worked since you applied, or last filed an appeal
- which doctors or hospitals you have seen since you applied, or last appealed your case
- what medications you are taking
- whether you condition has gotten worse, and if so, how
- whether you have any new medical problems that developed since the denial or application
- whether you have gotten any vocational training or schooling
- what you are doing day to day
Whenever we meet with a client who has been recently denied, we help complete these forms, and make sure Social Security has all the latest information on your medical care.
If you are facing an appeal, and have questions about the Disability Appeal Report, or any form, give us a call at 503-325-8600. We know these forms like the back of our hand.
Can I file a new application while my Social Security case is on appeal?
You can file a new application while your Social Security Disability cases on appeal, but your case must be pretty far along the appeal path. The short answer is that a new application can be filed if the Appeals Council has denied review.
There are several potential appeals with a Social Security Disability claim. After the initial claim denial, the first appeal is a "request for reconsideration." If a request for reconsideration is denied, the next appeal is a "request for hearing." If after the hearing, a judge issues an "Unfavorable Decision," the next appeal is review with the Appeals Council. If the appeals Council issues a "Notice of Appeals Council Action" denying review of your claim, the next appeal is to file at the federal court level.
We represent clients who appeal their cases to the Appeals Council, and if that appeal is unsuccessful, we then work with attorneys who specialize in federal court litigation to see whether not a federal court case makes sense. Sometimes it does, and other times not.
Depending upon our client's status, we will often advise our clients to will file a new application with an alleged onset date beginning the day after the unfavorable decision. So, if you receive the decision dated January 2, 2012 that determines that you are not disabled as of the date of that decision, your new application would allege disability beginning on January 3, 2012. Of course, there must be continuing supporting medical evidence showing that you are disabled from sustained and regular work.
In deciding whether or not somebody should file a new application, we look at several factors, including the client's "insured status," or, whether they would be entitled to Supplemental Security Income benefits for "non--medical" reasons.
If you have a denied claim, and are considering an appeal, call us at 503-325-8600. We can tell you your best options based on your specific situation.
What forms do I need to sign after an Oregon or Washington auto injury?
The answer to this question follows the logic in respose to the question about whether you should give a taped statement. It depends on who is asking for the form, and what it is.
So, for Personal Injury Protection, which is mandatory in Oregon auto policies, and optional in Washington auto policies, you will receive a claims form, and a release to obtain medical and wage information. Fill out these forms to get disability and medical benefits. When asked about how the collision occurred, keep it simple. This is your insurance company working to provide you benefits.
Liability adjusters from the other driver's insurance company will also send wage and medical release forms. Do not fill these out. Shred them. At one point, you may want to provide the liability adjuster with documentation of your claim, but do not give them the ability to poke around your medical history, especially for things that have absolutely nothing to do with your injuries. If you have ever really read those releases, you will see that they are very broad, and this does nothing to help your case.
The same goes for other forms, like a form asking for a list of your doctors, or anything that asks for a description of the collision.
If you have questions about this or any other issue on your case, call our office at 503-325-8600. We deal with these issues every day.
Should I give a recorded statement for my Oregon/Washington injury claim?
Why Insurance Adjusters Take Recorded Statements
After an auto collision, any adjuster that contacts you for a recorded statement wants to know about the collision and your. The topic of discussion depends on the adjuster involved, so let's go through the roster of adjusters to learn what they are looking for, and whether you actually need to talk.
Your Insurance Adjuster
If you are an Oregon insured driver injured in an auto collision, you have a no-fault insurance coverage on your policy called "Personal Injury Protection," also known as "PIP." PIP coverage provides medical, disability, domestic services, and child care benefits, depending on the severity of your injuries. If you are insured in Washington, PIP is an optional coverage.
Should you give a recorded statement to your PIP adjuster?
The short answer is yes. This is because your auto policy is an agreement, and part of that agreement requires you to cooperate with your insurance company so that it can process your personal injury protection benefits claim. Here are a few reasons your insurance company often takes a recorded statement:
- Your insurance company and you are in the same legal "boat," at least at the beginning. You have both suffered a loss. Your loss is more serious because it involves your health, and could be life changing. Your insurance company is suffering a business loss because it is paying your medical expenses, and sometimes disability benefits because of someone else's careless behavior. Your insurance company can seek reimbursement from the at fault driver's insurance carrier for the benefits it paid to you or your doctors. But, like you, your insurer must prove that the other driver was at fault, and the careless behavior caused the need for medical care and disability you suffered.
- Your insurance company must pay medical benefits for accident related injuries. It may want to find out your medical history to make sure that the medical care you are seeking is accident related, and not due to some other medical problem you may have already been dealing with. Again, you must reasonably cooperate with your insurance carrier, and if you intentionally withhold information about past medical issues or injuries, it could risk your access medical benefits, and it could destroy any chance of making a successful claim against the other driver's insurance company.
Remember that your insurance company's right to take a statement does not mean it can harass you or abuse the process. If you feel that a question is completely out of order, you can politely refuse to answer the question, or ask how the question is relevant to the claim. Many insurance adjusters will back down when they know that you know they are crossing the line.
Your insurance company may also have to process a claim for uninsured or underinsured motorist benefits. This claim arises when the other driver who injured you has no insurance at all, or not enough to cover all the harms you suffered. In these situations, your insurance company is jumping into the shoes of the insurance company for the uninsured or underinsured driver. The policy still calls for reasonable cooperation, so as the insurance contract probably says, you must give a statement. This gets more complicated because now your insurance company and you are across the legal fence from each other.
The Other Insurance Adjuster
Unlike your own insurance company, the other insurance company is in a "legally adverse" position to you. What does that mean? It means they are on the other side of the lega fence. Their interests and your interests are at odds. You want to be fully compensated for your losses, and they want to pay you as little as possible.
You must assume that giving a statement to the other driver's insurance adjuster will almost never help your case. A big part of the Oregon auto injury case is what you say to people along the way, including the police, your doctors, and an insurance adjuster taking a statement. At one point, the adjuster or the attorney for insurer will look long and hard at all the statements you made along the way, and look for inconsistent stories. It could be something you say about your symptoms or how the injury is affecting your activities.
So, do you will remember exactly what you said to some adjuster days after your collision, and be able to recite that exactly at deposition? Probably not. Insurance companies and their attorneys will try to make you look like you are changing your story, when in fact you just don't remember an event that happened several months ago.
This is just one example of how an insurance adjuster may try to hurt your auto injury claim. It rarely makes sense to give a taped statement to the liability carrier, especially if a police report that tells the adjuster what happened, and who is at fault. Liability adjusters are trained to get you make statements that can be later used against you. Does this happen all the time? No, it does not, but it happens enough for me to say don't do it.
Here is the exception to the general rule. You want to get your car fixed or replaced, and if the other driver's insurance company is willing to repair or replace your vehicle, you will have to communicate with them at some point. We are usually not involved in this stage of the claim. However, if you find yourself dealing with the property damage, you are usually talking with a different adjuster, and there is nothing wrong with limiting your discussion to getting the car fixed or replaced.
If You Do Give a Statement
We have agreed to make our client available for a statement because we decided it was the best thing for our client under the circumstances. However, before giving a statement, we prepare our client so they can give an honest and accurate response to all the questions posed. So, here are the four "rules" we always cover when preparing our client for a statement.
Rule No 1: Be Honest
We do not spend much time on this, except to say that if you violate this rule, you are killing your case and losing your lawyer. After several years working as an attorney, I can still say that most people are honest, and this is almost never an issue.
Rule No. 2: Answer the Question
It sounds simple, but people are often nervous when giving a statement, and rightfully so. It is not something you do every day. Some people talk a lot when they are nervous. If you talk too much, the statement will take lot longer than it should, and your answers may be confusing. Just answer the question that is asked, and nothing more. If the adjuster wants more information on the topic, they will ask you.
Rule 3: Don't Guess
This is the most often violated rule. Most people want to help, and when giving a statement, sometimes feel they are being tested. This is not a quiz. You are only responsible for what you actually know and remember. If you are not sure, tell the adjuster you are not sure. If you can give an estimate, give an estimate. If you do not remember, then that is the right answer. Do not give an answer just because you can. The big problem with guessing your answer is that you may guess incorrectly, and it could be made to look like you are violating Rule No. 1 (tell the truth) when you are not.
Rule No. 4: Take Your Time
This is actually two rules. Taking your time means listening to the whole question before your answer it, making sure you understand the question, and if you do, taking the time that you need to give a responsive answer. If you are not sure about the question, ask the adjuster to rephrase the question. Then, once you know the question, there is nothing wrong with taking the time you need to think about and provide your answer.
One more thing:
Many of our clients have already given a statement when they come in to see us for the first time, and it's usually not a big deal. If there is a mistake, or misunderstanding, we can address it. But, there are cases where a mistake filled statement makes it hard for us to help our client. So, we hope this article helps you.
What Will The Adjuster Ask?
The adjuster will ask about how the collision or injury occurred, and your injuries and medical care.
Some adjusters will want your Social Security number, claiming that they need to report your claim to Medicare to make sure Medicare is not paying accident related expenses. We do not believe that insurers must do this.
Insurance companies like to run your Social Security number through claims index data base to see if you have filed other claims in the past. The insurer may go deeper with background checks. We do not give out Social Security numbers.
Questions? Contact Us.
If you have a serious injury claim, and you are not sure about who you should talk to, contact us. We can help you know where to stand, and if your case is the kind we handle, we can work with you to get the best possible result.
Who pays my medical bills after an Oregon auto collision?
Your Auto Policy Steps Up First
If you have been involved in an auto collision in Oregon, the first place to look for medical coverage is your own auto policy. If the policy is issued in the State of Oregon, then we know you have "personal injury protection" coverage also called "PIP." This is a no-fault medical benefit that will cover necessary medical care related to your Oregon auto collision injuries up to the coverage limits or within two years from the collision, whichever is reached first.
You may be in a collision where there is no personal injury protection claim. For example, Washington insurance statutes do not require insurers to sell personal injury protection to all motorists. When this happens, we often look to see if there are any auto policies in your household. Sometimes, an auto policy and your household will pick up or cover medical expenses under the personal injury protection coverage.
Here are basics on PIP coverage:
You need to file a PIP application, and sign an authorization so the insurance company can obtain your medical records. Here are other facts about PIP coverage:
The PIP is "no fault," so even if you are at fault, you are covered;
You are covered if you are a passenger;
You are covered if you are driving another person's car with their permission;
There are other benefits available, like disability, domestic care expenses, and child care;
The $15,000.00 is the minimum required coverage. There may be higher coverage
Another possible scenario involves pedestrian injuries. Unlike injuries to people riding or driving cars, the personal injury protection coverage for injured pedestrians does not come into play unless there are no other sources of health care coverage (like health insurance) to pay medical expenses.
Bottom-line: the first order of business is to find coverage for your medical expenses so you can worry about getting better, and not medical bills.
When Auto Policy is Not Enough
We have seen many cases where our client is seriously injured, and before they even reach the hospital (Life Flight), they have used all their auto policy medical coverage. In those cases, we look to our client's health care plan to cover additional expenses. In some cases, the hospital will choose not to bill the health care plan, but instead files a lien on the case, making sure that it is paid directly from any settlement or recovery you obtain from the at fault driver. When that happens, we work directly with the hospital to negotiate payment of the liens, sometimes obtaining a significant discount of the claimed amounts.
How Are Medical Expenses Handled With a Claim Settlement or Recovery?
When a claim is resolved by settlement or recovery at a trial or arbitration, you need to account for the medical expenses paid by your auto insurer or health plan. This is because Oregon law generally requires that out of any settlement, you to reimburse your auto policy for medical benefits it paid. Health plans will almost always include the same requirement. But remember, these are only general rules, and there are exceptions. Also, the law is always changing, so you should know your obligations before agreeing pay health plans or your auto insurer out of any money you recover from the other insurance company.
Medicare and The Oregon Health PlanMedicare and the Oregon Health Plan are government sponsored health insurers, and both require that you report your claim and any settlement of the claim. These agencies will calculate, based on their rules, how much you need to pay out of any settlement for health benefits you provide. Generally, the government sponsored health plans are not as flexible with negotiating reimbursement, but it does occur.
We have handled many cases for people with serious injuries and significant medical expenses. If you have questions about medical expenses related to your Oregon auto injury claim, contact us. We can help you know where you stand.
Do I need to tell Medicare about my personal injury claim?
If you are enrolled in Medicare, and Medicare is paying accident related bills that are part of your personal injury claim, then you must report the claim to Medicare, through their contractor, Medicare Secondary Payer Contractor, also called MSPRC. This is becuase Medicare is like any other health plan, and is entitled to be reimbursed out of any settlement or recovery on a personal injury claim for the benefits its provided.
Some insurance companies feel that every person who has a personal injury claim must report to the MSPRC, but that is not the consensus. This probably stems from the fear that Medicare is able to seek reimbursement from several parties, including the insurance company, even if the injured Medicare beneficiary does not reimburse Medicare out of settlement proceeds. Medicare can also pursue reimbursement from the beneficiary, and her attorney. It is good practice to keep Medicare in the loop.
This system has been criticized over the years for several reasons, but there have been efforts to make working with the MSPRC more user friendly.
We have handled several cases involving Medicare reimbursement, and if you have a question on this topic, give us a call at 503-325-8600.
Will my health insurance get involved with my Oregon injury case?
The Quick Answer
Oregon Injury Claims and Health Insurance
Whether your health insurer gets involved with your injury claim depends on whether there is other insurance that is responsible to cover your medical expenses, and if so, the amount of available coverage. This is because your health insurance will exclude coverage where another insurance is involved, and is in the "front of the line" for covering medical expenses. The insurance company at the front of the line to pay medical expenses is considered "primary." Here are a few examples:
If you are injured in an auto collision in Oregon, and the car is an Oregon insured car, then you have no fault medical coverage under the auto policy. That coverage is first in line to pay medical benefits. However, an Oregon driver need only carry $15,000.00 in coverage for medical expenses, so if you are seriously injured, that coverage will be paid out, or "exhausted," leaving you with a lot of unpaid medical bills.
You may have been injured on someone else's property, and in a lot of cases, homeowner and business policies offer a "no-fault" medical coverage that pays up to a certain amount of medical expense, regardless of fault. After that coverage is exhausted, you must look to your health insurer to cover medical bills.
How Health Insurers Protect Themselves
Most health insurance is regulated by federal statute, and that statute gives the health insurer a lot of room to write the health plan. Health insurers will exclude coverage for injuries suffered in an auto collision where there is health coverage in the auto policy, or where the injury was caused by the fault of some other person. The health insurer scans your medical records to see if there is a possible injury claim against an at fault party. If it picks up the right terms (think "car wreck," or "fall"), then it sends you a questionnaire to find out if you are planning to make a claim. Under the health plan terms, you must fill out the form, and if you do intend to pursue a claim, the health plan will only pay accident related medical expenses if you agree to reimburse the health plan for the medical bills it paid out of any money you recover from the at fault party or their insurer.
In an auto injury claim, you will have to provide the health plan proof that your auto policy has paid out all available no fault medical benefits.
Paying Back the Health Plan
Some health plans expect you to pay back every penny in medical benefits it paid, regardless of the amount you recover from the at fault insurer. Some health plans even argue that it can deny future accident related medical expenses up to the amount of your overall settlement. Some health plans will negotiate the reimbursement claim while agreeing to cover future care. The law is always changing in this area.
If you do not pay back your health plan, it could file a lawsuit against you to recover the benefits it paid, and attorney fees.
Medicare, like any other health plan, will seek reimbursement for any accident related medical benefits. However, Medicare is a part of the federal government, and has its own rules for recovering the medical expenses it paid for injury related care. If you do not reimburse Medicare, it can also file a lawsuit against you, and can claim three times the amount of injury related medical benefits it provided.
If you have an Oregon injury claim and have questions about medical bills or health insurance, contact us. We help people through these issues every day.
What happens at an Oregon Workers' Compensation hearing?
There are a few ways you can take your Oregon Workers' Compensation claim to hearing in front of an Administrative Law Judge (also called an "ALJ"). Most cases we handle go to hearing after we request hearing on a claim denial. Here are a few other examples:
- An appeal of a denial for a request to include specific medical conditions in our client's claim.
- An appeal of a denial for proposed medical care.
- An appeal of an Order on Reconsideration (this is an appeal of an appeal of a Notice of Closure).
What happens at hearing will depend on the issue you bring to the ALJ. For example, if you appeal an Order on Reconsideration, the case is assigned to an ALJ for a "hearing," but usually there is no hearing. Instead, the parties will usually provide the ALJ exhibits, and argue in writing. More on that below.
Our summary will concentrate on a hearing involving the appeal of a claim denial.
Let's Talk About What Happens Before the Oregon Workers' Compensation Hearing
It makes sense to talk about what happens as the hearing approaches to put this all in perspective.
The hearing starts when someone, usually the injured worker, files a request for hearing. When the Oregon Workers' Compensation Board receives the request, it will begin the scheduling process, and look to schedule a hearing at the nearest Hearings Division Office. Most of our hearings are scheduled in Portland, Oregon, but we routinely request that the hearings be held in Astoria. Workers' Compensation hearings are also set in Salem, Medford, and Eugene. There are also un-staffed offices in Bend, Coos Bay, Klamath Falls, Newport, and Ontario, among others.
A notice of hearing is sent out to all parties, which includes the injured worker, the insurer, and the employer. Before the hearing occurs, the insurer will provide the ALJ assigned to the case an exhibit packet. The injured worker can then supplement the exhibit file with their own submissions. Often, exhibits, usually medical opinions, are provided within days of hearing, or even at the hearing. When exhibits come in at the last minute, one party may decide to "cross examine" the author of the exhibit. These are usually medical opinions, and the authors or usually doctors. More on how that affects the hearing below.
Sometimes, there may be a disagreement or dispute between the parties before the hearing. There also may be in need to meet with the Judge for housekeeping matters, like scheduling of hearings. The Administrative Law Judge will schedule a telephone conference to resolve these issues before the hearing. Some judges schedule a pre-hearing conference just to make sure everyone is ready to go to hearing.
Oregon Workers' Compensation hearings are somewhat like a court trial. However, the rules of evidence are more liberal, and the proceedings are less formal. For example, if you were in a court trial, medical records would have to be subpoenaed into the hearing, and you may even have to have a records custodian verify that the medical records are true and correct copies. Medical opinions in court require the doctor to appear at trial or testify under oath on video recording. Oregon Workers' Compensation rules allow written opinions as exhibits, but sometimes depositions (testimony under oath put into writing) are admitted as an exhibit.
At the hearing, the Administrative Law Judge goes over the issues and exhibits with each attorney before "going on the record." "Going on the record" is when recording the hearing begins. Along with the exhibits, recording the hearing is part of the official "record" of the case. The "record" is the body of evidence (exhibits and testimony) that the ALJ will base their opinion upon. Once all the issues are sorted out, the ALJ goes on the record.
After the Administrative Law Judge recites the issues, and admits the exhibits, each party is given the opportunity to give an opening statement. The opening statement advises the Administrative Law Judge about the evidence.
After the opening statements, the party with the burden of proving their case presents their case and can call witnesses. Witnesses are not required all the time. The opposing attorney can question these witnesses, which is known as "cross-examination." After the party with the burden of proving their case is finished calling witnesses, they will "rest their case." Then, the other side may put on their case, and calling their own witnesses.
When exhibits are "offered" within days of hearing, the other party may choose to cross-examine the author of the report. As we explained, most of the time this involves a doctor's report offering an opinion. When the other party cross examines the doctor, the hearing does not conclude. Instead, the ALJ will "continue" the hearing, which is like calling a time out. The deposition is scheduled. After the deposition, a transcript of the testimony is prepared and submitted as an exhibit. Closing arguments are then scheduled, sometimes in person, or on the phone. Depending on the issues, the parties may submit written closing arguments.
Once the closing arguments are done, the case is ready for the ALJ to review all the evidence to issue an Opinion and Order.
The Injured Workers' Testimony
When the hearing involves a claim denial, the injured worker will almost always testify at the hearing, but the testimony will depend on the issue.
In some cases, the denial is based on a claim that the worker was not at work when the injury occurred. These are called "course and scope" cases. The injured worker's testimony will focus on their job duties, and the employer-employee relationship.
If the the case involves a dispute regarding the nature and extent of the injury, the injured worker may talk in great detail about the "mechanics of injury." This is a description of how the leg, arm, or lower back was injured.
Sometimes, the case involves a claim where some medical problems are accepted, but other medical conditions are not. The injured worker may talk about how the injury occurred, but also their medical history.
The Opinion and Order
The ALJ reviews the evidence and decides the case in an "Opinion and Order." This is the written decision on the case. ALJ's try to get the Opinion and Order issued within thirty days after the closing arguments occur. Everyone involved, including the employer, the insurer, and the injured worker receive a copy of the Opinion and Order. The Opinion and Order can be appealed to the Workers' Compensation Board.
If you received a claim denial, or a notice of hearing, and have questions, contact us. We can help you know where you stand and lay out your options.
How does an MRI help or hurt my case?
What is an MRI?
An MRI or "magnetic resonance imaging," is an image of the body's internal structures captured through magnetic waves. MRI machines are taking better images all the time. Functional MRIs, also referred to as fMRIs, track chemical reactions in the body, like blood flow. We have conferred with doctors who can show us a three dimensional image of a neck, including all the ligaments, discs and other soft tissues, and move the image around on a computer screen to see the anatomy from all angles.
The MRI in an Oregon Workers' Compensation Claim
So how does this affect an injury or workers' compensation claim?
Remember that the MRI is a diagnostic tool that helps your doctors to investigate the nature and extent of injury. Doctors typically use the MRI to rule out a serious injury and develop a treatment plan. Whether your doctor sends you to have an MRI depends on your symptoms and the physician's findings on an office examination. Some physicians take a "wait and see approach" before requesting an MRI. This is because some symptoms will diminish after an injury event, and there is no need to get an MRI immediately. In other cases, an emergency room doctor may order an MRI right away because of serious injuries or findings.
In Oregon Workers' Compensation claims, MRI's are often critical because disputes center on what kind of injury a worker suffered on the job and whether the MRI findings are a result of the work injury. This is important because workers' compensation insurers usually only provide benefits for the actual medical condition the on the job injury caused. This is called the "accepted condition."
Neck injuries are commonly diagnosed with MRI's.
When a doctor orders an MRI of the neck, the doctor is looking to see if there is any damage to the joint structures of the neck. Between each neck bone is a "disc" that acts like a cushion. The disc is hard and fibrous on the outside, and moist and softer on the inside. Some doctors have described the inside portion of the disc as having the consistency of crab meat. When a human neck is exposed to sufficient force, the moist inner part of the disc can be pushed through a tear in the outer layer of the disc, which is called a disc herniation. Sometimes the force of an injury will push out the disc's outer layer, resulting in a protrusion, with the softer material in the disc's center staying in place. Other times, the disc may bulge as a result of trauma.
Aging and genetics will also cause wear and tear of the ligaments and discs in the spinal column, and an MRI can sometimes show these changes. Generally, doctors look at the color of the image as one marker to determine whether the changes are recent, or have been in place for several months, even years. These kinds of conclusions are based on the radiologist's interpretation of the image. An MRI can also show an injury that worsens degenerative changes in the spinal column. This can be a big issue in an Oregon Workers' Compensation claim because if a "pre-existing condition" combines with your on the job injury to contribute to a need for medical care or disability, the insurer may try to deny your claim, arguing that the pre-exiting condition is the main cause of a "combined condition's" need for treatment or disability.
Even though MRIs are objective, radiologists and doctors often disagree on what caused a particular finding. Some radiologists do not believe that discs can herniate under force, and regularly consult for insurance companies. Other doctors make their opinion based on what they see on the MRI, what the patient is saying about their symptoms, and what the treating doctor found in an office examination.
MRI's and the Oregon/Washington Injury Claim
In an auto collision case, MRIs will usually address one or two issues. The first issue is whether the auto collision caused the injury or worsened something that was already present.
MRIs also help lawyers prove whether an injury is permanent. For example, if someone suffers a significant disc herniation, they may need to have the disc removed and the two neck bones fused together. This is called a discectomy and fusion. The surgeon is removing a joint from your neck, and fusing two bones together. This surgery permanently restricts your neck motion, and makes the adjacent joints work overtime to hold up your head. Those joints are now at increased risk for development of wear and tear damage, which we call arthritis, or degenerative disc disease.
If you have an injury claim in Washington or Oregon, or if you were injured on the job in Oregon, contact us with questions. We have learned a lot from doctors over the years, and help people facing these concerns all the time.
Can I claim future income losses as part of my Oregon auto injury claim?
Yes, but you need to prove it.
Lost income is a form of what we call "economic" damages. This means that the loss is verifiable, and can be proven with objective evidence. In a simple case, you are injured, your doctor takes you off work, and you show through off work notes and wage information how much income you lost. However, things can get trickier if you have a future income loss.
It's all about documentation. You need to show your prior track record of earnings, and convince an insurance adjuster, or a jury, that you were set to either continue to earn comparable amounts, or even more. You also need to keep in mind that if there is something else you can do to earn money, you need to do that in order to minimize your losses.
If you were not working at the time, you may be able to make a claim for future income losses, but it may be more challenging. You may also have a claim for future lost earning capacity, which is not lost income, but compensation for lost income opportunities. Many times, experts, like vocational counselors and economists will get involved in order to document these claims.
Questions? Give us a call at 503-325-8600 to discuss this or any other issue you may have with your Oregon personal injury, or even a Washington injury claim. We work on issues like this every day.
What is mediation?
Mediation is simply another tool available to resolve any kind a dispute, including Oregon and Washington auto injury claims, or Oregon workers' compensation claims. Mediation is voluntary, and in my opinion, can only work of both parties are willing to approach the process in good faith.
A mediation is really just a meeting where all the parties get together to try and resolve a dispute. Although everyone is in the same building many times, the parties to not actually meet face to face in most cases.
When I work with another attorney on an injury or workers' compensation claim, she and I will agree on a mediator. We are usually hiring someone who knows the area of law that governs our case. For Oregon auto injury claims, we may use a Senior Judge or semi-retired attorney. For Oregon Workers' Compensation claims, we may use an active Administrative Law Judge. (The Oregon Workers's Compensation Board has an active mediation program).
Prior to the mediation session, I prepare a "pre-mediation position paper." In plain English, this is a letter to the mediator describing the case, including its strengths and weaknesses, and our position regarding settlement. Some mediators may ask for more information. Our philosophy is to include as much information as possible, but also to keep it to the point. Everything in this letter is confidential.
Every mediator has their own personal style. However, in our experience, the mediator will meet with each party individually, and then conduct "shuttle" diplomacy between the parties to get the case resolved.
Mediation is not an option in every case. If you have a dispute involving an Oregon or Washington auto injury claim, or a Workers' Compensation claim, call us at 503-325-8600 to learn all your options.
What claims do I have if I am injured in an Oregon or Washington auto collision?
Oregon and Washington each have their own set of rules and laws about what can be claimed if a person is injured in a car wreck or with any other kind of personal injury claim. The compensation you may claim is similar in both states, but carries different labels.
You have a claim for any medical expenses and lost income as a result of your injuries. This claim is not limited to past medical expenses and past lost income, but if documented, can include future lost income and future medical costs.
You also have a right to be compensated for the loss of your health. Oregon refers to this type of claim as "non-economic damage", and Washington refers to these claims as "general damages." Regardless of the name, the law recognizes that everyone has the right to be a whole healthy person. If somebody is careless, and causes another injury, the injured party may seek compensation for the loss of their health. Many people are familiar with the term "pain and suffering," but that only covers part of the compensation for the loss of health.
If you have any other questions about the type of claim you may have if you were injured in an auto collision, or the result of some other careless conduct, call us at 503-325-8600. We help people with these issues every day.
My Workers' Compensation Claim Has Been Denied. Now What?
When a Oregon Worker’s Compensation claim is denied, you should receive a denial letter. The Workers' Compensation claims rules require that denial letters provide you a notice of your right to appeal the decision. The denial will also explain the reason your claim is being denied, although sometimes the explanations are broad. Insurance companies may decide to amend the basis of their denial if new facts come to light during the litigation of a denied claim.
The most important thing to remember is that you have 60 days from the date of the denial letter to request a hearing with the Workers' Compensation Board. You can do this by simply writing a letter to the Workers' Compensation Board explaining that you wish to request a hearing on the denial of your claim. You can also use a request for hearing form, which asks several questions about the kind of claim denial you received, and the issues you would like to raise at the hearing.
If you are not represented by an attorney, the Hearings Division of the Oregon Workers’ Compensation Board will advise you to consider retaining attorney. Under the Oregon Workers’ Compensation statute, an attorney does not earn a fee unless her or she is “instrumental” in proving your claim, and getting the denial set aside.
There are many considerations involved in deciding whether to appeal your claim denial. Obviously, the most important is whether not you can prove that your injury or occupational disease is work related. Also, it’s always good to know what exactly or fighting over before deciding to litigate against an insurance company.
If you have questions about your claim denial, feel free to contact our office. We help people with these issues every day. You can also download our free book, Navigating The Oregon Workers’ Compensation Maze.
Do I have a claim if I was injured by a state or federal government employee?
The general answer is "yes." But there are procedures, and there are limits.
First, a bit of background. Traditionally, the government has been immune from any kind of claim from a citizen, but the States of Oregon and Washington, as well as the Federal Government have passed statutes that have given the citizens permission to file lawsuits, but there are limits to the types of cases that may be brought, as well as the amount that can be claimed. We will take it state by state, and then talk about federal claims. Remember, this is not a complete explanation, but a good summary.
The State of Oregon
Oregon has a Tort Claims Act. A "tort" is a civil wrong, like when someone ignores a stop sign, and causes an injury. It is not necessarily a crime, but wrongful behavior, and so it is called a tort.
Oregon's tort claim statute requires that you provide appropriate notice to the responsible agency, or the state government within a certain period of time. For an injury claim, you must provide written notice of your intent to file a claim within 180 days of the injury. The notice has to describe the time, place and circumstances giving rise to the claim. There has to be enough information that will allow the agency to investigate and determine whether or not it was responsible. After you provide notice, you can file your claim in court. You do not need to wait for any response. You must file the claim within the time permitted under the statute. For injury claims, the general time limit is two years, but that depends on the case.
There are limits on what kind of claims you can make, and also the amount you can claim. For example, you can not make a claim that the governrment did not make the right kind of choice with the limited resources it has to deal with a problem. This is called "discretionary immunity." However, if there is a statute or rule that tells the government to do a certain thing a certain way, and it does not, that is not discretionary, it is a violation of the law.
There are also monetary limits on what you can claim and recover. The Supreme Court found that the old limits were unconstitutional because they denied injured citizens a remedy guaranteed under the Constitution for the State of Oregon. New limits were passed by the legislature, and they will likely be argued also as unconstitutional.
One more thing: this act allows claims against "subdivisions" of the government, like Cities, Counties, Special Districts, Ports, or any other government entity.
The State of Washington
The State of Washington also has a tort claims process. You must complete a form, and provide specific information about the facts of your claim, your injuries, your medical care, and your lost wages. You must provide this information to the Office of Risk Management within the time you have to file the lawsuit against the agency, and you must give the Office of Risk Management sixty days to look over the materials. You can only file a lawsuit after the sixty day time period has elapsed. After the sixty days, you may file the claim if you cannot resolve your dispute with the State of Washington.
The Federal Tort Claims Act
The Federal Tort Claims Act requires that you file a claim with the federal agency that caused your injury. The claim has to be filed with a Standard 95 Form, and you must file it within two years of the date of your injury. You have to give the federal agency six months to consider the claim. If it rejects the claim, or if the six months expires without any action, then you may file your claim.
Just like the state tort claims act, there are limitations on the kinds of cases you may bring, and possibly, the amounts you may recover.
We have handled tort claims against many cities, counties, the States of Washington and Oregon, and the federal government. If you have a question about a claim against the government, call us at 503 325 8600. We help people with issues like this all the time.
What is a third party claim in Oregon Workers' Compensation?
The First, Second and Third Parties
We explain it this way, and it may not be technically accurate, but that does not really matter. When you suffer an on the job injury in Oregon, you are covered by your employer's workers' compensation insurance. We consider you to be the "first party," and the insurer is the "second party." In many cases, that is everyone involved in the claim.
Workers' compensation in Oregon is usually your only remedy, that is, your only source of recovery. The benefits are what is provided for in the statute. Generally, you cannot sue your employer, even if it was negligent in causing your injuries. You cannot sue a negligent co-worker if they were negligent while working for the employer. Again, these are general rules, and there are always exceptions.
However, if another person, a "third party," causes your injury, then there is a claim against that person, if you can prove they were careless, and that the careless behavior caused your injuries.
First, let's start with an example. You are at work, and asked to run an errand. While driving across town, you are stopped in traffic, someone hits you from behind, and you are injured. You have a workers' compensation claim because you were injured on the job. But you also have a personal injury claim against the person who caused the collision, which we can call the "at fault driver." That person is the "third party." So, you have two claims from the one incident. Because the workers' compensation carrier is paying your benefits, they have a lot of say in what happens with the third party claim.
The Workers' Compensation Carrier Has a Say
This is because your claim against the other party includes medical expenses and lost income. These are benefits the workers' compensation carrier is already paying, so the workers' compensation carrier will want reimbursement from the at fault driver's insurance company for the money it spent on medical bills and disability benefits. Another way of looking at it is that you and your workers' comp. carrier are in the same boat. You both suffered losses. You suffered a loss of your health, and the workers comp. carrier suffered a business loss. So, each of you has a claim.
The Notice of Election
You do not have to pursue your third party claim, but you should. We almost always advise clients to pursue the claim on their own. If you don't the workers' compensation carrier will, and all they are interested in is getting reimbursed for the benefits they provided. Well, there is more you can recover if you pursue the claim on your own. That is why you should pursue the claim on your own.
The workers' compensation carrier should send you a letter explaining all of this with a form called a "notice of election." This form asks you to make a choice, or an "election." You can elect to pursue the the third party claim on your own, or you can let the workers' compensation carrier pursue the claim for you. If the workers' comp. carrier pursues the claim, it is looking out for itself to get back what it paid in benefits. This is why we almost always advise clients to choose to pursue the claim on their own. This makes sure you have the best chance of recovering for all your losses. You must include any medical expenses and lost income that the workers' comp. carrier provided you as part of your claim. If you recover expenses the workers' comp. carrier paid on your behalf, you must reimburse the workers' comp. carrier out of your settlement for those benefits.
"...we almost always advise clients to choose to
pursue the claim on their own."
When you elect to pursue the claim on your own, you must keep the workers' compensation insurance company updated on the claim, and you cannot settle the case without the workers' compensation carrier's permission. This "veto" power allows the workers' compensation carrier to make sure it is getting reimbursed as much as possible. Sometimes, there are issues that prevent the workers' compensation carrier from getting full reimbursement out of your settlement. The careless party may not have enough insurance, or there may be issues about proving who was at fault. The statute that governs third party reimbursement allows reductions or discounts on the amount you must pay back to the workers comp. carrier, but only in certain cases. You should also know that if there is a dispute about getting approval for a settlement, or how much you must pay back to your workers' comp. carrier, you can seek review with the Workers' Compensation Board.
A third party claim is like any other personal injury claim. There are time limits involved, and you have the right to make the same claim for damages as you would with any other claim. Sometimes, you will be able to claim losses that the workers' compensation did not provide you, like compensation for the loss of your health and quality of life.
If you have any questions about a third party claim, contact us. We have handled many third party claims, all the way through trial, and help people with these issues all the time.
Who Is Contacting Me After My Oregon Auto Collision Injury?
Even though you are not feeling well, things are hectic after you have been injured in an Oregon auto collision. Here is a list of the people you may hear from in the days following the collision:
1. Your Insurance Company
Your insurance company will provide personal injury protection coverage, or PIP, to cover medical expenses, and wage loss. You will receive a claims form, and some releases. You should fill these out so you can get medical care, and if you qualify, wage loss benefits. You may also have to give a statement. Your insurance policy probably includes a provision that requires you to cooperate with your insurance company, so you may have to give a statement. However, realize that some how, some way, this statement could end up int he hands of a defense attorney.
You may also hear from an adjuster from your company for property damage claims. This depends on the type of coverage you have on your policy. This adjuster may send out a property damage appraiser to look at your car. You may even hear from the wrecking yard or body shop as well.
2. The Other Drivers' Insurance Company
You will hear from a bodily injury adjuster from the other driver's insurance company. The adjuster's job is to resolve your claim as quickly and cheaply as possible. Some adjusters will try to resolve the case even before you have completed medical care. You do not need to speak with this person, sign any releases for medical records, or provide a statement. We generally advise that you not give any information to this adjuster.
Now there is the property damage adjuster, also for the other driver's insurance company. If you want your car fixed, a rental, or settlement of your total loss claim, then you are probably going to have to deal with this adjuster. However, avoid talking about the facts of the collision, or your injuries.
3. The DMV
The Department of Motor Vehicles, or DMV will not call you, but if the collision caused injury or property damage beyond $1,500.00, then you will have to file a DMV accident report. This is required to prove that you had insurance. You are supposed to file this report within 72 hours of the collision, but DMV realizes that you may not be up to it, so will allow you to do this "as soon as possible." You should not put this off too long, however, to avoid receiving a notice of suspension.
You do not have to provide the DMV report to anyone, it is confidential.
Many attorneys will order a copy of your police report, if there is one, and write a letter soliciting their services. Some of the letters we have seen state that the other driver "may" have been intoxicated. They may also have been from Mars. This is just an attempt to get a call from you. Be wary of this kind of advertising. Some of it may provide good information, but some not.
If you can keep track of phone calls with notes, and follow up any discussions in writing, that is a great help. Copying anything you send out is also a good idea.
If you have questions about your Oregon auto injury claim, give us a call at 503 325 8600. We help people with these issues every day.