Learn What You Need to Know About Your Injury and Disability Claim.

The Basics

Every state has its own insurance laws, often referred to as the insurance code.  Oregon law requires insurers doing business in Oregon to provide basic levels of coverage.  One of these coverages is known as "Personal Injury Protection," or "PIP" for short.  Here is a run down of the menu of benefits in your Oregon PIP coverage if you are involved in a collision.

It's "No Fault."

This means that the benefits are available regardless of who causes the collision. Even if you are at fault in causing an auto collision, you are entitled to PIP coverage. If another driver causes the collision, you are covered, but in many cases, your insurer is entitled to be reimbursed for the benefit it provides.

To be covered, you must be an "insured." This includes not only the person named on the policy, but also a driver who has permission to drive the vehicle. Passengers are covered, and in some cases, a pedestrian struck by an Oregon insured vehicle may have PIP coverage from the Oregon insured car.

Medical Insurance

Medical insurance must cover $15,000.00 for related and necessary medical care incurred within two years of the date of injury. Insurers may provide additional amounts of medical coverage.The statute borrows from Oregon's workers compensation medical fee payment schedule, so that all medical expenses are paid as if the treatment were for an on-the-job injury. This means there are usually no co-pays or deductibles with covered medical treatment.

The insurer must deny benefits within 60 calendar days after receiving a billing request from a medical provider. The medical provider must respond to written requests from the insurer within ten days during the first 50 calendar days after the injury.

The Insurer Can Deny Medical Coverage, But You Can Appeal

The insurer may question whether ongoing treatment is necessary, or related to the original injury. In these cases, the insurer can require that the insured attend an "independent medical examination." The examiners are not often true the independent, and may find that ongoing treatment is excessive or not related to the injuries caused in the motor vehicle collision. If the independent medical examiner finds that treatment is no longer necessary, the insurer can deny further treatment for coverage. However, the insured can appeal this denial by requesting arbitration, or filing a lawsuit directly against the insurer. In certain cases, the injured party may recover attorney fees if it prevails in court.

Sometimes, it may make better sense not to attend an independent medical examination. This is a decision that must be made on a case-by-case basis.

Other Medical Coverage

In serious injury claims, the personal injury protection or PIP medical coverage is often exhausted within days after the collision. In some cases, there being be another auto policy that will take over payment of medical expenses. This happens when there is more than one vehicle insured in a family household.

When the maximum coverage for PIP medical benefits is paid out, this is known as "exhaustion" of benefits. The next coverage in line to pay medical expenses is private health coverage, including any government-sponsored health plans like Medicare, Medicaid, or the Oregon Health Plan. The Oregon Health Plan also includes Coordinated Care Organizations, which behave like a Managed Care Organization.

Paying Back PIP or Other Health Insurers

If another driver caused your injury, your personal injury protection carrier is in the same legal position as you. You have suffered a personal loss because he suffered personal injury. Your insurer was forced to pay benefits, and it suffered a business loss. The Oregon personal injury protection statute allows your insurer to recover what it paid in medical or disability benefits. There are several ways your personal injury protection insurer can recover the benefits it paid. This is something you should pay attention to as he moved forward with the claim.

The same is true for other medical coverage including any private health plan, Medicare, Medicaid, Oregon Health Plan, or Coordinated Care Organizations. If you have a private health plan, the plan includes a provision that conditions payment for medical benefits on your promise to repay your health plan out of any settlement or recovery make against the at fault insurer. This is important to know because private health plans have the right to sue for recovery of benefits paid, and can get attorney fees in addition to the health benefits paid.

Government-sponsored health care plans rely on statutes that require you to report your claim against an at fault party. You then must report the settlement of any claim. After reporting claim settlement, the agency or a government contractor will contact you to make a demand for reimbursement. This is something not to ignore. For example, if Medicare is not reimbursed, it can sue you, your attorney, and the insurance company for triple the amount of the accident related medical benefits provided!  There are also potential hefty fines. Do not ignore Medicare or any other government sponsored health plan.

Disability Benefits

Again, regardless of who caused the collision, if your insured under PIP coverage, you have a potential claim for wage replacement benefits, also known as "disability benefits." To qualify for benefits, you must prove that you were disabled from your work for at least fourteen consecutive days. The best proof of disability is verification from a treating physician. Many of the insurers will provide forms to the physician to complete and return to the insurance company. If you qualify for disability benefits, the insurer must provide 70% of your average weekly wage. There is a $3,000.00 On disability benefits, meaning that regardless of the extent of your lost income, you can recover no more than $3,000.00 in disability benefits for any given month.These benefits are not limited to the first two years after the injury, but instead run for a period of "52 weeks in the aggregate."

Essential Services: Managing a Household

If someone injured in a collision is not working outside of the house, and disability continues for 14 consecutive days, there is coverage for "essential services."  This includes the value of housekeeping, and is limited to $30.00 per day, with a maximum benefit period of 52 weeks.

Funeral Benefits

If the collision causes a fatality, the estate is entitled to recover $5,000.00 in funeral expenses incurred within one year after the date of the collision.  In cases involving passengers or innocent drivers, there may be a wrongful death claim, and the personal protection carrier may request reimbursement for this benefit as well.

Child Care

If the injured person is a parent of a child, and is hospitalized for at least 24 hours, the personal injury protection coverage allows a $25 per day benefit for child care, with the benefit payment beginning after the initial 24 hours of hospitalization, and to continue as long as the injured party is unable to return to work or perform essential services that they would have done even if they were not paid. The overall limit of benefits is $750.00.

PIP Coverage and the Underinsured Motorist Claim

If you suffer a serious injury, and the available coverage from the other driver's insurer is insufficient to compensate you for your injury, you may have an underinsured motorist claim. This coverage is also available if the other driver was uninsured. Recent changes in the law allow you to make a claim for compensation up to the amount of your uninsured/underinsured motorist coverage in addition to the amount of coverage and the at fault party's liability policy.

However, your insurer is entitled to a credit for the personal injury protection benefits it provided for your medical care, disability, or any other personal injury protection benefits. There are exceptions to this rule depending upon the amount of damage you can establish in an underinsured/uninsured motorist claim.

You Can Still Claim Actual Expenses Incurred

The amount he received from your personal injury protection carrier does not limit the claims you can assert against the at fault driver for your medical expenses or wage loss. For example, a physician may charge $150.00 for a doctor visit. The personal injury protection carrier may enjoy a discount of $50.00, and have to pay only $100.00 of the medical expense. Nonetheless, the medical expense incurred is $150.00, and you can make a claim for that amount if you end up filing a case in court.

The same is true for the wage loss or disability benefit. The personal injury protection carrier only pay 70% of your average weekly wage, but in reality, you may have lost more than 70% of your average weekly wage, and may have future lost earnings as well. Nothing the personal injury protection carrier pays you limit your ability to make a claim for the true loss of income, including future lost income, or future lost earning capacity.

Questions

Personal Injury Protection benefits and reimbursement of those benefits in serious injury claims can make for some issues, so if you have questions, contact us. We handle these issues every day.

 

The Problem:  Future Medical Expenses in the Oregon Auto Injury Claim

The cost of medical care has almost doubled in the last couple of decades, and it’s fair to assume the trend will continue upward.  Our Oregon and Washington auto injury clients face special challenges when their injuries require future medical care.  This article provides a summary of how we handle claims for future medical expenses.

First, Some Definitions

First a little background.  Both Washington and Oregon split the kinds of compensation you can claim into two different categories:  What is objective, and what is not. 

In Oregon and Washington, medical expenses are in the objective category, because the medical bill is a specific amount.  Everyone will agree on the amount of the medical bill, but they may not agree that it is part of the case.  More on that below.

In Oregon, medical expenses fall into the “economic” damage category.  In Washington, medical bills are a form of “special” damage.  These are just two different labels for the same thing.

How You Prove Medical Expenses

First, you need to show that the medical treatment reflected in the medical bill was necessary to treat injuries related to the collision.  Some medical expenses are obvious, like ambulance and emergency room bills.  Others are not.  If a case goes to trial, a medical expert’s testimony is needed to prove that the medical expenses are related to the auto collision injuries.

You must also prove that the medical treatment reflected in the medical bill is a reasonable charge.  This is usually a formality, but some insurance companies may attack the amount of the medical expense as being unreasonable.

How Future Medical Expenses Are Different

The rules for future and past medical expense are the same but proving that something will happen in the future is always a different challenge.

To prove future medical expense, a medical expert needs to explain what care will be required, and why.  But you will also need someone to talk about how much the care is going to cost over the long run.  When our client is facing life long medical care needs, we work with life care planners.  A life care planner is a special expert that reviews medical records, confers with medical providers, and our client, to create a life care plan.  The life care plan that is created sets out a schedule of all the medical care our client will need throughout their life.

Just like any issue in a serious Oregon personal injury case, there is no guarantee that an insurance carrier or defense attorney is going to accept a life care planner’s report.

Other Claims Related to Future Medical Care

In many cases, a doctor will not be able to say that our client will probably need future medical care but can say there is an increased risk of developing future problems, or that there is a very good chance that some kind if treatment, like surgery, is in our client’s future.

Oregon law allows us to argue for non-economic damages where your injuries put you at greater risk for developing future problems that could require more medical care.  Some people say that this is compensation for “fear of future disease.”  In plain English, someone having to deal with the possibility that their injury is going to come back to haunt them is entitled to compensation for living with that real possibility.

When The Settlement Does Not Cover Future Medical Care

We can prove all the future medical treatment needs possible for our client, but at the end of the day, there is a limited amount of liability insurance coverage available for every claim.  Sometimes, the available insurance will cover future medical expenses, but often, it does not.  When faced with this situation, the challenge shifts to doing everything we can to make sure our client has access to medical care after their case is completed.  That involves negotiating with health care plans or structuring the settlement so our client can get the medical care they need.

Questions?

We help people with serious injury cases all the time.  If you have questions, contact us.  At the very least, we can help you know where you stand.

The issue of whether there is sufficient insurance to cover someone's losses in an Oregon auto injury claim is becoming a more common concern. For a long time, Oregon law has required a motorist to carry a minimum of $25,000.00 in liability coverage. We refer to this as the "policy limits." This is coverage for any liability or damages caused for careless behavior.

If you were injured by a careless driver with minimal policy limits, the $25,000.00 coverage must compensate you for your lost wages, your medical expenses, and compensation for the loss of your health, often referred to as "non--economic damages", or compensation for pain, suffering, and loss of activities. We like to refer to this compensation as compensation for the loss of your health.

In many cases, my clients will suffer serious injuries that required extensive medical care, and caused significant disability. As a result, the medical expenses and lost wages alone will exceed the available insurance policy proceeds from the responsible party.

The first option we explore is an underinsured motorist claim. Uninsured motorist coverage exists on every Oregon auto insurance policy, and is designed to insure you against the uninsured motorist, or the "underinsured" motorist. Your uninsured motorist coverage is the same as the amount of liability coverage you purchased from your insurance company.

An uninsured motorist claim exists when you are injured by a driver with no insurance coverage. An underinsured motorist claim is a claim against your insurance company, but is only available to the extent that your "uninsured motorist" coverage exceeds the liability coverage of the other party. This is why we strongly recommend that you review your insurance policy to make sure you have adequate protection.

If your uninsured motorist coverage is the same as the responsible party's liability coverage, then generally, you will not have an uninsured motorist claim. In these cases, we will work with medical creditors, as well as your insurance company to negotiate any outstanding liens or medical bills to maximize your recovery. However, you may be faced with a serious injury without adequate compensation.

To learn more about whether there is enough insurance compensate you for your injury, request are free book, or give us a call at 503-325-8600.

It’s A Common Question

We consult with people injured in auto collisions all the time.  There are common questions.  What are my rights?  What should I sign, or not sign?  Who are all these people calling me?  These are questions we can answer, but one question we get that is not so easy is:

What is my case worth?

Oregon Injury Case Value Opinions Require Research

I can provide no opinion on the value of an Oregon auto injury claim unless I have all the information I can obtain to evaluate the claim. The first question is whether the other driver is legally responsible for causing your injuries. Many cases are straightforward. For example, a rear end collision is often the fault of the striking vehicle. However, unless you can establish that the other driver’s careless behavior caused the collision and some injury, you do not even get to a claim for damages.

The Losses You Can Recover in An Oregon Auto Injury Claim

To know the value of a claim, you need to know what you can claim.

There are two categories of “damages” or compensation you can claim if injured in an Oregon auto collision. The first is known as “economic” loss or damage. These are objectively verifiable like medical expenses or lost income. You may claim already incurred medical expenses and lost income. In serious injury claims, there may be a claim for future lost earnings or lost earning capacity and need for future medical treatment.

Although every case is different, some common themes govern our evaluation of claim value and help us advise our client how to move forward with their Oregon auto injury claim.

How Insurance Adjusters Think

Insurance carriers rely heavily on pieces of information they can use to compare one case to another. Many insurers use database programs that allow input of things like diagnostic codes, billing codes, and the damage to your car. Some of these items are known as “drivers.” Insurance adjusters evaluating an Oregon auto injury claim do not want to hear how the injury has affected you on a real-life level. This is because everyone is different, and that is not something that can be fed into a computer database.

Still, some hard facts impact the value of an Oregon auto injury claim. Here are a few examples.

The Collision

How the collision occurred is key to determining not only who was legally responsible, but whether the collision could have caused injury.

Generally, the more severe the impact, the more severe the injury. However, a serious injury can occur in a “low-speed” collision, and sometimes our client is fortunate enough to escape serious injury in a high-speed collision. There is not always a strong relationship between the damage to your car or the speed of impact and the resulting injury. But insurance adjusters and defense attorneys have a lot less room to argue that someone was not injured in high-speed collision with significant damage to your car. Fair or not the collision’s severity is a factor.

Medical Evidence: The Insurance Adjuster’s Focus

Medical evidence is probably the most important factor for insurance adjusters and defense attorneys in evaluating Oregon auto injury case value. This is because medical records often contain information that adjusters can compare one case to another (see above). There are other clues in the medical records that help someone injured in an Oregon auto collision prove their claim.

Medical Evidence: Timing of Treatment

One factor is the timing of treatment. A basic assumption is that someone injured in an auto collision will seek medical care when injured. We see clients who try to “tough it out,” maybe because they are determined not to be injured or are concerned about other family members injured in a collision. Sometimes, the adrenaline is literally flowing after an auto collision, and symptoms steadily creep to the surface after thing settle down. So, there is often a reasonable explanation for avoiding treatment immediately after collision.

But if somebody waits weeks or months before seeking medical care after an auto collision, insurance adjusters and defense attorneys will be suspicious, and find a physician who is more than happy, for significant fee, to provide an opinion there is no connection between the claimed injuries and the auto collision.

Medical Evidence: Chart Notes and Tests

Medical chart notes are another source of information that helps us evaluate claim value. Most chart notes include the following outline:

• Subjective Reports
• Objective Findings
• Diagnosis and Assessment
• Plan

Subjective reports are the patient’s report of symptoms to the physician. This is also called the “patient history.” This is as important as any part of a medical examination because it shows the physician the potential issues or injuries that may have occurred in the auto collision.

For example, if somebody reports of neck pain to a physician after an auto collision, the doctor may want to know if the pain is radiating into the arms or is only in the neck and upper back. Radiating pain into the arms may indicate a more serious injury like a nerve impingement or herniated disc. Other information like the onset of symptoms, aggravating factors, and the intensity of symptoms also helps a physician form a diagnosis.

Objective findings are those things that a physician can observe without a patient’s input. A fractured bone on an x-ray is an objective finding. The patient doesn’t need to be in the room when a radiologist views and x-ray to diagnose a fracture. Physicians can also perform clinical tests in the office that if positive, are objective findings. This is common with orthopedists performing an examination for damage to the knee joint like a torn meniscus or anterior cruciate ligament tear.

After obtaining a history, and performing an examination, the physician may further investigate with other testing like an MRI or x-ray. Once your doctor has all this information, the physician makes a diagnosis, and puts together a treatment plan.

We will review all this information in evaluating a case, including your response to the recommended treatment, and the treatment’s effectiveness.

Medical Evidence: Prognosis

The “prognosis” is the “forecast of the course of the injury or ailment.” What will the future be like for you?

Often, auto collision injuries cause only a temporary loss of health. The prognosis is good, and there is no ongoing impairment from the injury. However, all too often, injuries suffered in an auto collision because permanent impairment.

If a physician determines that an injury will cause a permanent change in our client’s health, our client may recover compensation not just for losing their health until the claim demand or jury trial, but for the rest of their life. Therefore, the compensation for our client’s loss of health covers a much greater chunk of time.

Injuries with permanent impairment may also require ongoing medical care, and we often work with life care planners to make sure that we have an accurate accounting of the cost of future medical care.

If an injury causes permanent disability, we often work with economists and vocational experts to determine the true loss of future income because of a life changing injury.

Real Life Evidence

This is the most overlooked but most important part of any serious injury claim because the real-life impact of an injury is what it means to our client. Insurance adjusters do not have a place to enter this data into their claims evaluation software, but jurors will want to know the day-to-day impact a serious life changing injury causes. Often, the most powerful witnesses in an injury lawsuit are our client’s friends, co-workers and relatives because they know the real-life impact and injury can cause.

Questions

If you have an Oregon injury claim, and have questions, contact us. We help injured Oregonians every day.

The time limits for filing your workers' compensation claim in Oregon are strict. For and "injury" claim, you must file a written claim within 90 days of the date of your injury. There are a lot of arguments about what constitutes a "written" claim. Typically, your employer should provide you with an 801 claim form.

In some cases, my clients work for hostile employers. I recommend going to the Oregon Workers' Compensation Website, and searching for the insurance coverage information using the Employer Coverage Database. You can then contact the insurance company directly, and file your claim.

If you are filing an "occupational disease" claim, you have one year from the date you knew or should have known about the occupational disease. A common example of an occupational disease is occupational hearing loss. If you go to a physician for an audiogram, and here she tells you that your hearing loss is due to exposure to noise at work, you are on notice of an occupational disease, and the one-year clock to file your claim begins ticking.

Frankly, I do not care for the term "slip and fall." To some, it means a frivolous claim. Nothing could be further from the truth.

Before answering what causes these accidents, let's look at what you must do to prove a claim. The first step is your status on the responsible party's property. This is because the landowner's responsibility depends on your status on the property.  For example, a business owner has a higher level of responsibility to make the property safe for your use if you are a customer or client.  This is because the landowner benefits by having you on the property.

Building code violations or other safety rule violations are the most common cause of injuries. Stairs, decks, railings, and other structures are not built to code.  Another common cause of injuries is the property manager's  failure to maintain the property.  Things wear out, rot, get slippery, and that makes things dangerous, especially for a first time visitor.  We commonly retain an engineer or other safety expert to investigate the accident scene to determine whether the stairs, steps, ramps, or other structures were built "to code."

Insurance company adjusters or property owners almost always argue that our client was somehow at fault in failing to keep a proper lookout for hazards. Sometimes, this defense is valid, but many times, it is an effort to avoid responsibility for not doing the right thing.

If you have a question about a "slip and fall" case, call us at 503 325 8600.  We answer questions about these cases every day.