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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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?
The Employer Liability Law is about a hundred years old. Generally, if you are injured while working an inherently dangerous job, or with dangerous equipment, structures or substances, then you may have a claim against a responsible party for your injuries.
The Oregon Workers’ Compensation Act all but immunizes your employer from any liability, with some very narrow exceptions. However, there may be “indirect employers” responsible for your injuries. These could be property owners, business owners where the work is being performed, other contractors working on the same job.
Indirect Employers have to do whatever it takes, regardless of cost, to protect workers on the job site. Sometimes, the Oregon Occupational Health and Safety Administration will have rules in place for safe practices. If the Indirect Employer violates any of the rules in place, then responsibility is proven. We call this “negligence per se.”
The Indirect Employer and your employer also have to be involved in a common enterprise. In other words, you have to show that your employer and the Indirect Employer were working on the same project, that the work was dangerous, and that you were “adopted” by the Indirect Employer or were intermingled with the Indirect Employer’s employees. Finally, you have to show that the Indirect Employer was in charge of, or responsible for whatever caused your injury.
You have to be an employee, not an independent contractor. You will see situations where a company employs a lot of roofers, but each roofer working on the job is registered with the Construction Contractor Board, and is an “independent contractor.” Whether you are an independent contractor or an employee really boils down to how much control the main contractor has over your work.
If you have been injured on the job, and have more questions, call us at 503-325-8600. We have over twenty years of experience fighting for injured workers.
Can I get my car fixed or replaced after an Oregon auto collision?
The General Rule
If someone damages your car in Oregon, you have a property damage claim.
The General Rule: You may recover your car's loss of fair market value because of the property damage.
How is this measured?
It depends on if the car can be fixed. If it can, then you can claim the cost of repair. Cost of repair is generally considered the loss of value your car lost because of the damage. But not all the time.
If you own a late model car, and the cost of repair is extensive, then you also have a claim for the change in the car's value even after repairs are completed.
You are shopping for a used car, and on the lot are two identical cars with identical features and identical mileage. One car, however, was in an accident, and had significant repairs. If the cars were priced the same, which one would you buy? Better yet, how much less would you pay for the damaged car? That difference in price is the diminished value.
How to Prove Loss of Value
If your car is repairable, the cost of repair represents the bulk of your loss of value.
If you feel you have a claim for diminished value, the adjuster may make an offer, but it is probably based upon their own appraiser's estimate on the diminished value. Depending on the extent of damage to your car, consider hiring your own appraiser, and negotiate from there.
What About a Rental?
Another category of property damage is "loss of use." This is the cost of renting a similar car for the time that your car is not drivable or is being repaired. You are entitled to the cost of renting a similar vehicle. If you were driving a full sized pickup truck that was damaged collision, and it goes to the shop for repair, you get the cost of renting a full sized pickup truck.
You can claim the loss of use for the time you are without a car because of repairs, or if your car is a total loss (see below), the time to replace your car.
The term "totaled" is in insurance term. It means that the cost of repair is so close to the car's value, that it makes no sense to repair the car, and the car is "totaled," or a total loss. If this happens, you may recover the car's fair market value. "Fair market value" is what a willing buyer would have paid a willing seller for the car on the day before the collision. Many of our clients have no intention of selling their car and wish they could have held onto it for the long haul. That, unfortunately, does not come into play. Fair market value differs greatly from "replacement value."
Insurance companies hire appraisers to determine the car’s value before the collision, and will use data bases of recent sales of similar cars to yours to come up with the fair market value offer. Few people are thrilled with the insurance company's offer. However, property damage adjusters usually stick to their guns on total loss offers unless there is new information about the car's value, like recent major overhauls (new engine), that it was not aware of. You can disagree with the insurance adjuster, but if you want to fight with them, you may need to get your own appraiser involved, and you must wait until your injury claim is resolved, or include the property damage claim when you file the injury claim in court. This is because in Oregon, the injury claim and the property damage claim are separate legal claims, but they arise from the same event. All claims you have arising from one event must be filed in the same lawsuit. If one of those claims is resolved, you can still file any other existing claims.
Some people wish to hold onto the car, even after the collision. If you keep the car, the insurance company will reduce the property damage claim payment by the car's "salvage value." The salvage value is what the car wreckage would sell for at an auction.
If you do not keep the car, the insurance company is buying the car from you when it resolves the claim. You will be asked to sign the title. If you cannot find the title, you will be given DMV forms that allow for a replacement title.
We handle property damage claims for our injury clients, and do not take on stand alone property damage claims, but if you contact us, we can direct you to some attorneys that handle these cases. But, if you have questions, check out our other articles, or order our Oregon Personal Injury Guide. It offers information on property damage.
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
No matter who is calling you to get a recorded statement, that person is trying to find out more about your how the collision occurred, the extent of damage to your car, your injuries, or all of the above. Why a certain adjuster is taking a statement often depends on who that adjuster is. Let's start with your insurance company.
Your Insurance Adjuster
If you are an Oregon insured driver, and you are injured in an auto collision, you have a no-fault insurance coverage on your policy called "Personal Injury Protection," also known as "PIP." This coverage provides medical, disability, domestic services, and child care benefits, depending on the severity of your injuries. If you are insured in the State of Washington, you may have this coverage. This is because Oregon requires the coverage, but Washington does not. So should you talk to your own adjuster?
The short answer is yes. This is because your auto policy is an agreement, and part of that agreement is that you will cooperate with your insurance company so that it can process your claim for personal injury protection benefits. Here are a few reasons why your insurance company may want to speak with you:
- Your insurance company and you are in the same legal "boat." That is, you are both suffering 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, lost income benefits, and possibly more. Your insurance company has a right to seek reimbursement from the insurer of the at fault driver that caused your injury, but it must show that the other driver is the cause of your injuries. To do that, it must investigate the collision, and sometimes that means talking with you.
- Your insurance company must pay medical benefits for accident related injuries. It may want to find out if you have suffered serious injuries in the past that may be the cause of your need for treatment. 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.
Keep in mind 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 you are injured by a motorist who has no insurance coverage, or a motorist that has insurance coverage, but it is insufficient to compensate you for all your losses. In these situations, your insurance company is jumping into the shoes of the insurance company for the uninsured or underinsured motorist. The policy still calls for reasonable cooperation, so you will have to give a statement. The stakes here will be higher, because now your insurance company and you are across the legal fence from each other. Read on to find out our four basic rules about giving statements when you have to.
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 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.
When it comes to your injury claim, you must assume that giving a statement will almost never help your case. These cases are often made up of several layers of statements. First, there is the police report, if there is one, with your statement. Then, when you go to the doctor or hospital, there are statements you make to the doctor. An adjuster is going to be looking at those statements for sure. Then, if you file your case in court, there is a deposition, which is sworn testimony. So, do you think you are going to 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 some 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.
So, if you can at all help it, you should avoid giving a taped statement to the liability carrier, especially if there is a police report that will teach the adjuster what happened, and who is at fault. The truth is that 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 Give a Statement
We have, in some cases, agreed to make our client available for a statement, because we felt it was the best thing for our client under the circumstances. However, before giving a statement, we educate our client before the statement so that they can provide an honest and accurate response to all the questions posed. So, here are the four "rules" we will 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 almost thirty years of lawyering, 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 everyday. Some people, when nervous, get very chatty. The problem is that you are going to be on the phone a lot longer than you need to, and your answers may be confusing. Just answer the question that is being asked, and the adjuster will move on to the next inquiry.
Rule 3: Don't Guess
This is the most often violated rule. People are wanting 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, make sure you tell the adjuster you are not sure. If you can give an estimate, give an estimate. If you honestly 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 your are violating Rule No. 1 (tell the truth) when you are not.
Rule No. 4: Take Your Time
This is actually a couple of 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.
Questions? Give Us a Call
If you have a serious injury claim, and you are not sure about who you should talk to, contact us. The least we can do is get you oriented so you know where to stand, and if your case is the kind we handle, we are happy to help you through the process.
Who pays my medical bills after an Oregon auto collision?
If you are injured in an Oregon auto collision, and the car you were driving or riding is is insured in the State of Oregon, then the insurance policy covering the car carries Personal Injury Protection coverage, also called "PIP." This coverage is a no fault medical policy that pays a minimum of $15,000.00 for reasonable and related medical care up to one year from the date of your collision.
You need to file a PIP application, and sign an authorization so the insurance company can obtain your medical records. Here are some other facts about PIP coverage:
- The PIP is "no fault," so even if you are at fault, you are covered in most cases;
- 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
If you have questions about medical bills and an Oregon or Washington auto collision, call us at 503-325-8600. We offer over twenty years of experience with these issues.
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.
Do private health plans get involved with Oregon or Washington auto injury cases?
Regardless of where you live, or where your auto collision occurred, if you have private health insurance, it will possibly be involved with your case. Let's get some background information first, and then address the question.
Private Health Insurance
Most private health insurance coverage is not truly "insurance," but instead a "health plan." This is especially true if you have health coverage through your work. Health plans are governed by a federal statute called the Employment Retirement Income Security Act, also called "ERISA." The ERISA is a federal law, and generally, the federal statute gives the health plan authors a lot of discretion in how they write the plan. That has likely changed somewhat with the Affordable Heath Care Act, but the people that run your health plan will still have a lot of leeway in how they manage an employer sponsored plan.
Auto Injury and Other "Third Party" Claims
If you have been injured in a auto collision, or if someone's negligence causes you an injury, there may already be coverage for your medical care, and depending on the extent of your injuries, your health care plan may or may not get involved with your case. In Oregon, you will have medical coverage on your auto policy to pay your medical bills, but the coverage is limited. In Washington, medical coverage is optional, so you may or may not have medical coverage.
If you were injured on someone else's property due to their negligence, you may have a claim against the property owner if the property owner was careless, and that carelessness caused your injuries. However, even if you do not have a claim, the property owner may have "no fault" medical coverage to address medical expenses.
Where you make a claim that the other party is negligent or careless, you are making a "third party" claim. Included in such a claim is a claim for your medical expenses.
Private Health Plans and Third Party Claims
Your private health care plan will not get involved if you have other medical coverage, for example, in your auto policy, and that coverage is sufficient to cover all your medical bills. Or, if you are injured on another's property, and medical coverage is available to pay all medical expenses, then the private health plan will not get involved. However, where you have serious injuries, or require medical care that will cost more than what the auto coverage or "no fault" medical coverage on a property owner's insurance offers, then the private health plan will be a factor in your case.
Private health plans generally do not cover medical expenses where you are making a third party claim, but will often agree to provide coverage if you promise to reimburse the private health plan from any settlement or recovery that you make against the third party. The health plan may send you a questionnaire asking about the details of the third party claim. If you are making the claim, you complete the form and send it back. The health plan will then have you enter into an agreement that you will reimburse the health plan the cost of any benefits that it provided.
In some cases, this is not a problem. However, you should have a clear understanding of the plan's reimbursement rights under the plan language. Some plans will expect that you fully reimburse the plan for all of your past medical expenses that were covered, and even into the future. Some plans will not allow any discount to compensate you for your efforts in recovering money to reimburse the plan for what it paid in medical benefits.
There is a lot of litigation over how much to reimburse a health plan, or whether it should be reimbursed at all. There are also questions about whether state statutes that would act to limit how much a health care plan can recover are applicable, given that this is a federally regulated area. This is a quickly changing area of the law.
So, if you have been in a serious accident, and your health care plan is sending you forms, give us a call at 503-325-8600. We can answer your questions, and even if it is not a case we can handle, we can point you to the right attorney for the job.
What happens at an Oregon Workers's Compensation hearing?
Oregon Workers' Compensation hearings are somewhat like a court trial. However, the rules of evidence are a bit more liberal, and the proceedings are a bit less formal. Here is a general rundown of what to expect if you are appearing at an Oregon Workers' Compensation hearing.
An Oregon Workers' Compensation hearing begins with the filing of a request for hearing. Usually, the injured worker files the request for hearing. An attorney representing the employer will file a response to the request for hearing. These two documents tell the Hearings Division what the issues are in the case.
About a month prior to the hearing, the attorney representing the employer will submit an exhibit packet. This exhibit packet contains documents from the claims file arranged in chronological order. The typical exhibits include a mix of medical records and claims documents. Within a required period of time, the attorney representing the injured worker files supplemental exhibits. These documents come from the claims file, or from medical providers.
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.
At the hearing, the Administrative Law Judge goes over the issues and exhibits with each attorney prior to "going on the record." "Going on the record" is when the recording of the hearing begins. Anything recorded is part of the official record of the case, in addition to the exhibits. Once all the issues are sorted out, the Judge 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 is designed to advise the Administrative Law Judge about the evidence in the case.
After the opening statements, the party who has the burden of proving their case goes first to present 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 has the option of putting on their case, and calling their own witnesses.
In Oregon Workers' compensation cases, it is common for a party to present a medical report as an exhibit days before the hearing, sometimes even the day of hearing. When this happens, the opposing party has the right to request the cross examination of the author of that report. If a party exercises the right to cross-examine the author of a report, the judge will allow the remaining witnesses to testify. After the witnesses testify, the judge will continue the hearing to allow the deposition.
A deposition is where someone gives sworn testimony outside of a hearing or trial after being placed under oath. A certified court reporter records the testimony. Depositions usually take place at the physician's office with both attorneys and a court reporter. Each attorney asks questions of the witness. After the deposition is completed, a court reporter converts the deposition into a written transcript. A copy of that transcript as provided to the Administrative Law Judge, and is made an exhibit to the case.
After the deposition is admitted into evidence, the record is usually closed, and the closing arguments are scheduled. Some Judges like to have closing arguments over the telephone. Other judges prefer that the closing arguments be made in writing. Within approximately thirty days of the closing argument, the Administrative Law Judge will issue a decision, which is called an Opinion and Order.
If you are facing a hearing on a denied claim, and you have questions, call us at 503 325 8600. We have handled many hearings, and can answer your quesitons. If we are able to help, there is no fee unless we win the hearing, and the insurance company pays our fee, not you.
How does an MRI help or hurt my case?
What is an MRI?
An MRI, which stands for "magnetic resonance imaging," is a device that creates an image of the body's internal structures through magnetic waves. MRI machines are getting better all the time, and the quality of the images is impressive. 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 to 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 will 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 often center on what kind of injury a worker suffered on the job, and whether that injury is due to the work injury event. This is important because workers' compensation insurers 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 that hold the neck bones in place, and separate one neck bone from the other. 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 outside of the outer layer of the disc, which is called a disc herniation. Sometimes the force of an injury will force the outer layer of the disc protrude, but the material in the disc's center does not break through the disc's outer layer. 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 show these changes. Generally, doctors look at the color of the image as one marker to determine whether an injury event damaged the joint structure or degenerative changes are causing pain and numbness. 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?
A third party claim occurs when you are injured on the job because of the carelessness or someone other than your employer or a co-worker. You have a claim for your losses against the "third party."
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.
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 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, give us a call at 503-325-8600. 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.