Answering the Most Frequently Asked Questions Is a Good Start, But We Decided to Answer The Most Important Questions Too. 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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Can I get fired for an on the job injury?
The Short Answer
Unfortunately, the answer is “it depends.”
An Oregon statute protects injured workers from an employer’s retaliation. However, like any statute, there are limits.
Let’s set this up with the general rule, and then go from there.
Oregon is an “At Will” State
Oregon is an “at will” state. This means that unless you have a contract or agreement with your employer, you serve at the employer’s pleasure. The employer can fire you for any reason or no reason at all.
The exceptions occur with federal and state statutes that prohibit certain types of discrimination. There are also some protections that come from Court of Appeals and Supreme Court made law. Some federal statutes address age, gender and racial discrimination. These statutes apply to some, but not all employers. The fine print tells us that thee statues apply only to employers with a minimum number of employees.
Oregon has its own civil rights statutes. The protections range from housing, employment, and on the job injuries.
One of these statutes protects injured workers from an employer's retaliation against the injured worker, but it does not end there.
However, keep in mind that suffering an on the job injury does not totally shield you from employer discipline or termination. If you were under the influence of drugs or alcohol or getting into a physical fight or altercation with a coworker when injured, the employer may still fire you. This statute applies only to situations where the employer targets the on the job injury as the reason for discrimination.
What the Law Says for Injured Workers
The statute's protection is still a broad protection from retaliatory conduct and includes workers that may not actually file a Worker’s Comp. claim but “invoke” the workers’ compensation system. A good example would be a worker who makes an inquiry about filing a claim, but does not follow through. The employer can not target this worker.
Workers who are not injured on the job, but participate in the workers’ compensation system by testifying as a witness are also protected.
So, it's not just injured workers, people asking about filing a claim, and workers who testify at a Workers' Comp. hearing are protected.
What is considered discrimination is also broad.
The statute says that an employer may not discriminate against the worker “on any hire or tenure of any term of the employment relationship because the worker applied for benefits . . . “
When we talk about “hire or tenure of any term or condition of employment,” this covers just about every term of an employment relationship. That can include hours that are scheduled, the type of work scheduled, the location of the work, the rate of pay, and ultimately getting fired.
Another key aspect of this statute is that the discrimination has to be “because of” applying for benefits, invoking the workers’ compensation statute, or testifying on behalf of an injured worker, or even an employer and a workers’ compensation case. Basically, this means that the injured worker must show a connection between the discrimination and the filing of a workers’ compensation claim or any other protected behavior in the statute.
- The statute protects not just workers who file a claim, but those who may just ask about it.
- The statute protects other workers' who testify at a hearing.
- The statute applies to any term of employment (hours, wages, scheduling), not just job termination.
What Employers Do (Sometimes)
Most employers, in our experience, do the right thing. They may not be thrilled about an employee with a workers’ compensation claim but will not outright violate the discrimination statute. However, some employers who are hostile to the claim will attempt to get around the statute and push our client out the door.
Some employers will look for other reasons to fire or discriminate against an injured worker. Behavior that technically violated a work rule may no longer be tolerated. Years ago, we represented a millworker who drove to work every day in an old pickup truck. It burned oil, and occasionally he would go into the oil room and take a Dixie cup full of oil to put in his truck. Nobody cared until he was injured on the job. Then, when he went to get some oil, he was fired for theft.
Employer's may also invent other reason for cutting hours, reducing an hourly wage, or terminating an employer. The law is always changing, but courts have ruled that even if the termination is for a valid reason, there could be a mixed motive in the reason for a change in job status.
Other times, the employer will “push the envelope,” and while not blatantly discriminating against the worker, make the work environment intolerable, forcing the injured worker to resign or quit. There may be a claim for discrimination, but it could be a challenge to prove.
Another tactic we see is employers violating modified work restrictions. Sometimes an employer will offer an injured worker a modified job to get them back to work earlier. There are many requirements for a valid modified job offer, and many times, its a win-win situation.
But sometoimes, employers violated the modified job restrictions, forcing the worker to perform work beyond the outlines and the work restriction. We have seen positive results by notifying the workers' comp. claims adjuster that the employer is doing the wrong thing. A smart adjuster knows that an employer pushing an injured worker beyond their limits may end up creating yet another on-the-job injury claim, and put a stop to this abuse.
What You Can Do
The best thing you can do is “keep your nose clean” as they say. Pretend that you have just started working for the employer and assume that even the slightest workplace violation will not be tolerated. If a supervisor or manager is asking you to perform work that is beyond a modified work release, contact your adjuster as soon as possible, or if you have a lawyer, call the lawyer. Also, document the work you were being asked to perform, and report it to your doctor as well.
If you intend to make a claim for an unlawful employment practice like this, you can file what is called an “administrative” claim with the Bureau of Labor and Industries (also called “BOLI”). BOLI investigates the case, and if it decides that it will not pursue the case further, you can then file a claim in court within 90 days after the mailing of the notice from BOLI that it does not intend to further pursue the matter.
Another option is to skip the administrative claim, and file a lawsuit directly against the employer within one year of the date of the discriminatory conduct.
There are administrative rules that further flesh out how these claims were, and we advise you to confer with an attorney if you feel you have a claim. There also may be other time limits at play, especially when the employer is a public agency.
Although we do not handle employment matters, we often worked side-by-side with employment lawyers when our workers’ compensation client has employment claims arising from the on-the-job injury. Contact us with questions, and we can provide referrals to good employment lawyers, or at the very least, point you and the right direction.
Who has to prove a workers' compensation claim?
Generally, the injured worker has to prove a workers' compensation claim in Oregon. However, this depends on the issue at hand.
When you file a claim for workers' compensation benefits, the insurance company investigates the claim, and decides whether there is sufficient proof that you suffered an injury as a result of an on-the-job activity. An employer or an insurance company need only have a "legitimate doubt" about the claim in order to deny it outright. Some people, including myself, think that many insurance carriers will deny a claim knowing full well that it should be accepted, hoping that the injured worker simply walks away, and does not appeal the denial.
After a claim is denied, the injured worker can file a request for hearing. At the hearing, the injured worker must prove that he or she suffered an injury that occurred in the course of employment and arose out of a work activity. Lawyers refer to this as the "burden of proof." In many cases, the injured worker does not have to prove a specific medical problem resulted from the work injury, but that the work injury event either caused disability from work, or the need for medical care.
In some cases, the evidence may show that the injured worker had a pre-existing condition, and that the injury event combined with the pre-existing condition. This is called a "combined condition." The insurance company must cover these kinds of claims as long as the injury event (the fall, strain, or other injury event itself) is the major cause of the combined condition.
In many cases, the burden of proof is now on the employer to show that the injury component of the combined condition never was the major cause of the combined condition, or is no longer the major cause of the combined condition.
Obviously, who has the burden of proof is key because it may determine whether you get benefits at all.
Can I appeal a workers' compensation denial?
You Have Sixty Days to Appeal Your Denial
You have sixty days from the date of the denial letter. There is no fee to file an appeal.
When in Doubt, Appeal
Oregon Workers' Compensation is a private insurane system. This means the insurance company decides whether to accept and cover your workers' comp. claim. Only if you appeal your claim denial does the Oregon Workers' Compensation Board get involved.
At the very least, filing a request for hearing preserves your ability to contest the denial. You can hire an attorney to file your appeal, or have an attorney look over your case even after you have filed the appeal.
Attorneys are not paid a fee unless they win the case. If they do, the insurance company pays the attorney fee. If the denial is upheld, there is no attorney fee. There is really no risk in filing the appeal.
We often file requests for hearing just to give our client an opportunity to meet to review the claim file, and decide whether to go foward with a hearing.
We Can Review Your Denial
If your workers' compensation claim has been denied, contact our office for a no cost consultation. We can request a hearing, obtain your claims file, and give you all the information you need to make a solid decision on moving foward.
Can I change the doctor when I have an Oregon Workers' Compensation Claim?
Yes you can, but there are limits.
The doctor that is primarily responsible for your medical care is known as the "attending physician." You can only have one attending physician at a time. All of the medical treatment that you get must be authorized by the attending physician, except for emergency medical services.
Switching doctors is different than getting a referral to a specialist. Attending physicians may refer you to another doctor, like a specialist. However, those referrals have to be in writing. When the attending physician makes a referral, he or she has to be specific about the nature of the referral. For example, if the referrals only for a consultation, that must be included in the documentation. If the referral does not include a request for a consultation, then the specialist can provide medical services and treatment here she determines is appropriate.
An injured worker can change their attending physician two times after the initial choice of a doctor. If you ask your physician to refer you to another physician, that will count as one selection. However, certain changes of medical providers does not count, including:
1. When the insurance company asks you to see a doctor;
2. When your physician refers you to another doctor as a consultation only;
3. When your doctor refers you to a radiologist or a pathologist for diagnostic studies;
4. When you have to change your physician because the rules require that you see a different kind of doctor. In other words, only certain kinds of doctors can act as an attending physician for a certain period of time, and if you have to make a change for this reason, it does not count.
5. When the change of your physician is for some reason beyond your control. This can happen when the physician leaves the practice, the physician no longer wants to treat you, you move away from the area, or when the rules do not allow the physician to provide treatment. Sometimes, the insurance company will enroll you in a Managed Care Organization, which will result in a change of physician.
Even if you have used your choices, you can still change your physician if the insurance company agrees.
If you are in the middle of a workers' compensation claim, and wonder about changing physicians, contact us at 503-325-8600. We can help you decide how to go forward with the claim.
What is Permanent Partial Disability?
Where Permanent Partial Disability Fits
Oregon Workers' Compensation is an insurance benefit system for injured workers. The statute requires employers to provide a schedule of benefits to injured workers regardless of fault. The statute also tells employers how to process claims, and provides a framework to resolve disputes for denied claims or deny benefits.
Every workers' compensation claim involves medical services. If the injured worker is disabled, the second benefit provided is wage replacement, also known as temporary total disability or "time loss." Permanent Partial Disability, also known as "PPD" is supposed to compensate the injured worker for permanent lost earning capacity. However, the actual compensation is determined through a complicated set of rules.
When and If You Are Entitled to PPD
When the injured worker has completed treatment, and there is no expectation of improvement with more time or medicine, the injured worker is considered "medically stationary." At that point, if a closing examination shows measurable permanent impairment, the injured worker is entitled to permanent partial disability. The permanent partial disability benefit, also called "PPD" is supposed to represent compensation for lost earning capacity. However, it is based on the impairment rating rules, which provide a specific formula to calculate the dollar benefit.
Whether you qualify for PPD depends on what kind of injury you suffered, whether it causes permanent limitations, and if so, how much. Sometimes, an injury may cause some form of permanent impairment. However, to qualify for PPD, the permanent impact of an on-the-job injury must "show up" on the impairment rating standards, which are designed to determine how much a permanent impairment interferes with someone's ability to do work activity.
PPD does not include compensation for "pain-and-suffering," or a permanent loss of enjoyment of life. It is strictly related to how a permanent impairment impact someone's ability to perform work.
The Types of PPD
There are two types of PPD benefits. The first is known as "whole person impairment." To determine whole person impairment, the insurance company will send the injured worker to an independent medical examiner, or schedule a closing examination with the attending physician. The examining physician will then take measurements, depending on the kind of injury involved. For example, for a neck or back injury, the physician will measure things like range of motion, strength, and make a judgment call on whether or not the injured worker has suffered significant loss of repetitive use of the injured body part. The findings are then applied to rules that calculate the permanent partial disability rating. That number is then multiplied by a dollar figure set out in the statute to determine the dollar amount of the permanent partial disability award.
The second kind of permanent partial disability is known as "work disability." This benefit is paid when the attending physician determines that the injured worker cannot return to his or her job as a result of the on-the-job injury. The job title may be the same, but even if it is performed differently, or if there are some modifications on the job site, then the injured worker should be entitled to work disability.
Work disability can be a significant permanent partial disability benefit. To determine the dollar amounts of the work disability benefit, the insurance company will consider the age, education, and skill level of the injured worker. these are known as "social and vocational factors." The rules provide a point system, depending upon these factors. The calculation is then multiplied by either the injured worker's average weekly wage, or an index number known as the "state average weekly wage." Only the attending physician's opinion counts in determining whether an injured worker is able to return to the job at injury.
Where Do You See Your PPD Calculations?
The insurance company's decision on permanent partial disability appears in the Notice of Closure. If you do not agree with the calculation of the permanent partial disability award, you can file a Request for Reconsideration. This is an appeal of the Notice of Closure to the Oregon Workers' Compensation Division. Depending upon the issues you appeal, the Oregon Workers Compensation Division will assign a medical arbiter, which is a medical doctor, to perform and examination. In most cases, the Workers' Compensation Division will adopt the findings of the medical arbiter in deciding the appeal. It is important to know the risk before appealing your claim closure, because you could end up with less benefits than you did at closure.
Also, when you appeal the Notice of Closure, the Workers' Comp. Division will look at other issues on your claim, like whether it should have been closed in the first place, and whether you were paid for all the time you were off work becuase of your injury.
Questions? We handle these cases every day, and can help you know where you stand. Contact us, or check out our website for other articles about who claim closures work.
Can I request a lump sum payment of my permanent partial disability award?
Yes, but you must be careful.
Oregon Workers' Compensation law provides for a permanent partial disability benefit. This is a cash benefit that is theoretically compensating you for your lost work capacity. There are two kinds of permanent partial disability benefit, and you can learn more about the actual benefit here.
If the permanent partial disability benefit is greater than $6,000.00, then the insurance company will make monthly payments within 30 days after the Notice of Closure, even if you appeal the Notice of Closure.the amount of payments is based upon your temporary total disability rate.
You can request a lump sum payment of the permanent partial disability award instead of receiving all the payments over time. However, if you make the request for lump sum payment, you give up your right to appeal the amount of your permanent partial disability award.
Lump sum payments are useful, but before applying, you should know whether not the insurance company has properly evaluated your permanent partial disability.
We review claims files to help injured workers no whether not a lump sum payment request makes sense. If you are not sure about whether to appeal your Notice of Closure, or request a lump sum payment, call us at 503-325-8600. We can review your file, and let you know where you stand. The best part is that we are not paid a fee unless we obtain more benefits for you.
What is a "non- disabling compensable injury?"
When an Oregon Workers' Compensation carrier or an employer accepts an on-the-job injury claim, it must classify the claim is either "disabling," or "non-disabling." When a claim is classified as "non-disabling," it means that the injured worker needed treatment for their injury, but did miss any time from work.
You can find out whether your claim is classified as disabling or non-disabling by looking at your Notice of Acceptance. If the claim was classified as non-disabling, and you disagree with this decision, you can request that the claim be reclassified within one year of the date of the Notice of Acceptance. If the insurance company refuses to reclassify the claim, you can seek review of that decision with the State of Oregon Workers' Compensation Division.
It is important that you know that your claim is properly classified. For example, you may suffer a fairly serious injury that results in time off from work, or is expected to cause permanent impairment. However, if the claim is not classified as "disabling," that means there will be no Notice of Closure, and you may not be able to obtain permanent partial disability benefits.
We review claims files every day to see whether it makes sense to challenge claim classifcation, or pursue any other issues that protect your rights. Under the Oregon Workers' Compensation laws, we earn an attorney fee only if we obtain additional or new benefits for our client. Depending on the benefit at issue, the insurance company pays our fee, or it comes out of any increased compensation to the injured worker. Either way, the State of Oregon must approve the fee.
If you have a question about your accepted Oregon Workers' compensation claim, call 503-325-8600 to schedule a time to meet and discuss your claim.
How do I Pay attorney fees on an Oregon Workers' Compensation claim
Oregon Workers’ Compensation Regulates Just About Everything
Oregon Workers' Compensation regulates just about every aspect of an on-the-job injury claim. For example, rules tell insurance companies how much it must pay you for any mileage for traveling to and from medical appointments and sets limits on reimbursement for meals or lodging while going to and from doctors. The statute also regulates how much physicians and other medical providers can charge for their services. Attorney fees are no different.
How Your Attorney Gets Paid
Your Oregon Workers' Compensation attorney is paid only if "instrumental" in getting a benefit denial overturned, increasing a permanent partial disability award, or negotiating settlement of your claim. The State of Oregon, through an Administrative Law Judge or agency official, must approve the fee before it is paid.
Attorney fees are earned only with success. That is what the “instrumental” language is all about. If your attorney is not successful in appealing a benefit denial, claim denial, or a Notice of Closure, there is no fee. This minimizes your risk in hiring a lawyer to help you with the claim.
“Costs” and How They Are Paid
In some cases, the insurer may even have to pay the costs of fighting a claim denial. An njured worker’s attorney often incurs expenses in fighting a claim denial, including the cost of obtaining medical records, and presenting medical expert opinions. Instead of passing these costs to the injured worker after overturning a denial, insurers must pay costs in addition to attorney fees.
Our workers compensation fee agreement covers all the contingencies.
If you have an issue with your workers’ compensation carrier, and want to know if we can help, contact us. At the very least, we can help you know where you stand.
Should I settle my Oregon workers' compensation claim
We have written quite a few articles that talk about the pitfalls and advantages of settling a workers' compensation case. This is yet another article, and in it, I share some thoughts on things that clients and I will discuss in deciding whether to settle a workers' compensation case, and for how much.
We write a lot articles on this because one of our most frequently viewed articles deals with settlement of Oregon Workers' Compensation claims. We know this is an important issue because many insurance companies will provide an injured worker with a settlement agreement, but little explanation as to what the agreement actually means. To get a basic idea of what these agreements involve, check out these two articles that deal with settlement of denied claims and accepted claims. Whether you should settle a case as a whole different issue. Of course, I would not and could not answer that question for every injured worker in a brief article. But we can give you some things to think about.
First, you should look at what happens if you decide to settle and what happens if you decide not to. For example, if your claim has been denied, and you have been approached with a disputed claims settlement, it's a good idea to know what kind a evidence you have that would overcome the denial. If your doctor feels that your medical condition is work related, and can explain it in a clear and well reasoned manner, then you may be able to prevail on the claim. If you do, you have the right to seek significant benefits, including medical services, wage replacement or disability, permanent partial disability, and possibly even vocational retraining. When we evaluate a claim for settlement, we have to get a good idea of what the chances of prevailing at hearing are before we can advise our client on settlement.
If you are considering settlement of your accepted claim, you should know what it is that you are giving up in exchange for a sum of money. For example, if you enter into a claims disposition agreement, which is the settlement of an accepted claim, you are giving up all benefits except for the right to request medical coverage in the future. Some people come to our office in say that they resolved their claim, but have "medical coverage for life." This is not really accurate. Instead, an injured worker who enters into a claims disposition agreement has the ability to request that the insurance company pay for future medical care, but that insurance company can deny that request. You can appeal this denial, but that can be a challenge in some cases.
Here is something else to think about with claims disposition agreements. If you settle your case with a claims disposition agreement, you still have the right to request medical care. However, if you require significant care, like a surgery, which will keep you off work, you will not be entitled to any wage replacement while disabled from work. This is because when you settled your case, you gave up the right for any wage replacement if you are disabled as a result of medical care. Depending upon the nature of your injury, that can be a significant benefit.
Whether your case involves settlement of an accepted claim, a denied claim, or both, the overall consideration is the long-term. For example, if you suffered a significant injury and are not able to return to the job you worked on the date you are hurt, then you have to figure out a way that you're going to earn a living in the future. Sometimes, the only way you will earn a wage comparable to the wage at date of injury is to undergo vocational training. If you decide to resolve your case, and you need help with retraining, you should at the very least have some kind of plan on what kind a career you intend to pursue with the funds you recover as a result of the settlement.
We are not saying that all settlements are a bad thing. A settlement of a workers' compensation claim in Oregon can be a great thing. It gets the insurance company out of your life, and gives you some control over your future. However, it is a big decision, and there is a lot to think about.
If you have an accepted claim, and you wonder if it makes sense to enter into some kind of settlement agreement, call us at 503-325-8600. We can review your claims file, and advise you on your best options for settlement. And best of all, we do not charge a fee unless we are able to resolve the case in your favor.
Who can I go to for medical care on my Oregon Workers' Compensation claim?
There are a couple of provisions in the Oregon Workers' Compensation statute that tell us who can treat an on-the-job injury for an injured worker. The first place to look is at the definition of an "attending physician"
in the statute, an "attending physician" is a doctor, physician, or a physician Assistant who is primarily responsible for the treatment of your compensable injury. However, there are a lot of qualifications. If the physician is a Doctor of Osteopathic the, or a Medical Doctor licensed in the State of Oregon, that type of physician can remain your attending physician throughout the life of the claim.
Chiropractic physicians, Physician Assistants, or a Naturopathic physicians can act as the attending physician for either 60 days from the first visit or for a total of 18 visits, whichever occurs first.
The administrative rules also provide that Nurse Practitioners can act as attending physicians for limited periods of time. There are exceptions if the Nurse Practitioner is providing care under the direct supervision of a Medical Doctor or Doctor of Osteopathic.
Another part of the Workers' Compensation system dictates who can treat your injury if your insurance company or employer contracts with a "Managed Care Organization" or "MCO." These organizations are like health maintenance organizations. If the insurance company contracts with an MCO to provide your care, then you must treat with a physician who is a member of the MCO panel. There are some exceptions, but this often creates another level of bureaucracy that impedes an injured worker's access to health care.
Even if you have an accepted claim, the attending physician can play a major role in determining whether not you are entitled to certain medical care, and whether your claim remains open, closed, and whether not you qualify for permanent partial disability benefits. The good news is that the statute allows you to change her attending physician, but only for a limited number of times.
Even if you have an accepted workers' compensation claim, you may have questions, and can call us at 503-325-8600. We can discuss the issues in your case, and help you determine whether not you need an attorney in the first place. If you do, we only get paid if we get a benefit for you that's been denied or underpaid.
What is the "compensation" part of Oregon Workers' Compensation?
When somebody makes a claim for Oregon Workers' Compensation benefits, the "compensation" part of things involves a series of benefits. This article provides a brief list of those benefits, and explains what they are. Essentially, "compensation" refers to all benefits, including medical services that are provided for a compensable injury. Sometimes, the term "compensation" is important so that an attorney representing an injured worker can decide where to take a dispute. Some parts of the Oregon Workers' Compensation agencies address only those issues that involve "compensation."
If you are involved in an Oregon Workers' Compensation claim, and have questions about the benefits you may be entitled to, call us at 503-325-8600. We handle these kinds of cases every day, and can help you learn where you stand with your claim.
What exactly is a "compensable injury?"
That is a pretty big question. The Oregon Worker's Compensation statute defines a compensable injury as an accidental injury that arises out of and occurs in the course and scope of employment requiring medical services are resulting in a disability or death. In order to prove a compensable injury, the injured worker must establish an injury with medical evidence that shows objective findings of injury.
So, there are many elements to establishing a compensable injury. First, you have to show that an injury occurred at work. Second, you have to show that the injury required medical care, or that if disabled you from work. Next, you have to show through medical evidence some objective findings supporting the existence of an injury. That leads to a question as to what "objective findings" are. Essentially, these are findings that a physician makes on examination that are repeatable and observable without input from the injured worker. Often, whether there are objective findings turns on an expert medical opinion.
If your claim involves only a "compensable injury," then you must show that the work activity was a material cause of the need for treatment or disability resulting from the injury event. You do not need to initially prove any specific medical problem, but instead the need for care or resulting disability. The term "material contributing cause" simply means that the injury event was a significant factor in causing the disability or need for treatment.
But there is a lot more. Oregon Workers' Compensation law recognizes all different kinds of compensable injuries. There are also some limitations applied to the general definition.
For example, there is a compensable injury known as a "consequential condition." This occurs when the compensable injury is the major cause of a new or different medical condition that is a direct result of the original injury or medical condition. For example, if you injured your right leg, and a cause you to favor your left leg. If a very her left leg caused medical problems to the left leg, then that could be a consequential condition. Again, a lot of this depends on medical opinions.
Then, there are "combined conditions." You will find a lot of articles on this website about "combined conditions." Essentially, a combined condition exists when an injury event, like a fall from a ladder or lifting a heavy box combines with some "pre-existing condition." Sometimes, there are disagreements as to whether not the injury combined with a pre-existing condition, or if there is a pre-existing condition at all. The key to this part of the definition is that an injured worker must show that the injury event is the major or dominant cause of the need for treatment or disability. This is why it is important to determine whether a condition or injury at work combined with some pre-existing condition.
The definition in the statute also provides a list of what is not considered a compensable injury for example, if an injured worker actively participates and assaults or combats, then that is not a compensable injury. If the worker is injured as a result of recreational or social activities primarily for the worker's personal pleasure, that is not a compensable injury under the statute.
If there is an injury on the job, and the employer is able to show that the major cause of that injury as a result of consumption of alcoholic beverages or drugs, then that is not a compensable injury unless the injured worker can show that the employer knew about the consumption, or encouraged it. It is important to point out that "major contributing cause" means that the drug or alcohol use, more than any other factor, caused the injury.
These kinds of claims will also be categorized or classify as either "disabling," or "non-disabling." This is known as "classification." A "disabling" injury is one that causes disability from work, or is expected to result in some permanent impairment. If you have an excepted claim, the Notice of Acceptance will tell you whether your claim is classified as "disabling," or "non--disabling." It is important to know the difference, because it could affect your eligibility for other benefits. If you do not believe your claim was properly classified, you can request that the classification be amended. However, there are strict time limits, and you must make this request within one year of the date of the Notice of Acceptance.
Still have questions? Call us at 503-325-8600. We can discuss your claim, and let you know if you even need to get an attorney involved in the first place.
What is the "average weekly wage," and what does it have to do with my temporary total disability benefit?
"Total temporary disability" or "temporary partial disability" (also referred to as "time loss") is the wage replacement benefit that is available to an injured worker if the attending physician authorizes the worker to be off work as result of the on-the-job injury. The amount of that benefit calculated by first figure out the worker's average weekly wage.
There are many rules that govern how an employer or its insurance company determines your time loss benefits. However, the general rule provides that the insurance company obtains your wage records for the 52 weeks prior to the date you were injured. The insurance company then calculates the total wages earned, and divides that amount by the number of weeks (52). If you have not been working for the employer for a full 52 weeks, then the insurance company simply uses the number of weeks that you actually worked. There are other rules that apply to seasonal and temporary workers.
Once the insurance company figures your average weekly wage, then as a general, it will calculate your temporary total disability benefit at 66.6% of your average weekly wage. Sometimes, the insurance company will not have accurate information when a calculates your temporary total disability benefits. If you feel you are being underpaid, you can request a hearing to have an Administrative Law Judge review the issue.
Even if the insurance company has not yet decided to accept or deny your claim in the first place, you are entitled to this benefit while the claim is being decided, but only if your physician has authorized you in writing to be off work.
If you have questions about whether you are receiving correct temporary total disability or temporary partial disability benefits, costs of 503-325-8600. We can review your case to determine whether not an appeals warranted. And, we only can charge a fee if we obtain additional benefits for you.
What is a "disabling compensable injury?"
In the Oregon Workers' Compensation system, an insurance company must classify accepted claims is either "disabling," or "non-disabling." A "disabling" claim is a claim that results in lost time from work or is expected to cause a permanent impairment.
This distinction is important, because only disabling claims resulting in a Notice of Closure, and possible entitlement to permanent partial disability benefits. If your claim is classified as a non-disabling claim, even if you have some permanent impairment, if that classification wasn't changed, you will never receive permanent partial disability benefits.
If you have a recently accepted claim, and are curious as to whether not the insurance company accepted everything and did in the right way, call us at 503-325-8600. We work on these issues every day, and cannot BE better understand your rights.
What is a "claim" under the Oregon Workers' Compensation system?
When we attempt to define a term of art involving Oregon Workers' Compensation claims, we always start with the statute. Many of the terms lawyers in the Oregon workers' compensation system use day-to-day are defined in the statute. From there, we then look to the Oregon Workers' Compensation Board decisions that flesh out or clarify the definition of these terms. Sometimes, we even rely upon Oregon's Court of Appeals or Supreme Court for the final word.
So, the statute defines a "claim" as a written request for compensation from a "subject worker," or someone on behalf of the worker, or a compensable injury that the employer knows about. A "subject worker" is a worker that is subject to the protections of the Oregon Workers' Compensation system.
There are many cases that wrestle with the issue of whether an actual claim was made. Sometimes, the issue is whether not the claim was made in writing. Sometimes, the issue is whether or not the employer knew about the injury.
Generally speaking, a worker must file written claim within 90 days of an injury event. However, if the employer actually knows about the injury, that time I may be extended up to one year. Most claims are made by filling out and 801 Form, which is the standard claim form used in Oregon. Sometimes, a worker will appear at an emergency room, and the treating physician will fill out and 827 Form. This is also written notice of the claim.
Your employer should have the 801 forms on hand, and if you are not able to get a claims form from your employer, you can call the Workers' Compensation Division to obtain a claim form, or downloaded from the agency's website. We also have a claim form available for you to use.
My Oregon Workers' Compensation claim was denied. How do I prove the claim?
The first step in dealing with a denied workers' compensation claim is to request a hearing with the Oregon Workers' Compensation Board. A letter to the Workers' compensation board seeking a hearing on the denial is a good first step. If you want to get an attorney involved, that is even better, given the complexities involved with many workers' compensation cases.
The next issue to deal with is how to overcome the denial. When an injured worker requests a hearing on a denied workers' compensation claim, he or she must prove that their injury on the job is the reason they need treatment, or cannot work. There are many issues that go along with proving a denied claim, including what kind of workers' compensation claim you're dealing with, and whether medical opinion evidence is necessary.
We review denied claims all of the time, and can advise you of your options. Call us at 503-325-8600. We will appeal your claim, and review your file. If we pursue your claim, the insurance company pays our fee only if we win.
How much can I claim for travel and other expenses on my Oregon Workers' Compensation claim?
Each year, the Workers' Compensation Division issues a Bulletin that sets out the rates for reimbursement for travel and other expenses that we incur when treating for an on-the-job injury.
As of the end of 2014, the mileage rate for using your private vehicle to travel to and from medical appointments was 57.5 cents per mile. In 2014, the mileage rate was 56.0 cents per mile, and in 2013, the mileage rate was 56.5 cents per mile.
You are also entitled to reimbursement for meals, but you must have a receipt. As of October 1, 2014, the standard rate for reimbursement for meals is $11.50 for a breakfast, the same amount for a lunch, and $23.00 for dinner.
The standard rate for lodging is $83.00. However, we all know that a cost a lot more to stay overnight in certain parts of Oregon, especially during the tourist season. For example, if you are staying in Clatsop County between July and the end of August, your lodging rate will increase to $148.00 per night, and the meal rate increases to $51.00 for dinner.
If you are traveling out of state, the Bulletin provides information on how to calculate lodging and meal expenses.
Here is something else to note. If you need special transportation or lodging, then the allowable reimbursement rates can exceed what is published in the Bulletin. You can also claim the cost of parking fees and toll charges.
Keep in mind that you have two years of the date you incurred these expenses to submit a claim for reimbursement.
Questions? Call us at 503-325-8600. We help injured workers every day find their way through the claim.
Can I be reimbursed for my travel for on the job injury treatment?
Yes, you can. However, you must submit your claim in writing, and it must be within two years from the doctor’s visit.
The insurance company must respond within thirty days of receiving your request. To make sure the insurance company “received” your request, fax the request and keep a copy of the proof of the fax, or send an e mail, and print it out or save it to your computer to show that you actually sent the request.
Keep in mind that the medical appointment has to be related to your accepted condition. To find out what your accepted condition is, review your notice of acceptance.
If you do not receive payment for your travel within thirty days, you can seek review with the Workers’ Compensation Medical Resolution Team.
There are other expenses you can claim, including lost income, meals, and even lodging.
Questions? Give us a call at 503-325-8600. We know our way around Oregon Workers' Compensation and can help you know where you stand.
The workers' compensation adjuster wants to settle the case. What should I do?
We get calls all the time from injured workers who have been offered a settlement on their Oregon Workers’ Compensation claim. Many times the injured worker will ask us flat out whether they should accept the offer or not. This is not a question we can answer because we do not have enough information about the case to say yes or no. It would be bad advice.
The problem with these kinds of offers is that in many cases, the injured worker really does not know what he or she is giving up in exchange for what they are getting with a settlement. There are many potential pitfalls. Common questions include:
- What was accepted on this claim, and are there other medical problems that should have been accepted but were not?
- If this is a denied claim, what is the reason for the denial, and is there some evidence that would be available to prove that the denied claim was incorrect?
- What benefits is the injured worker giving up? The claim could include a significant permanent partial disability benefit, or vocational benefits?
- Does the injured worker have a plan? If you have been knocked out of your job permanently from an on the job injury, a “generous” offer of settlement may look good to you in the short time, but what happens in six months, or a year?
These are just a few of the many questions we ask when evaluating a settlement offer, or making a demand for settlement on behalf of an injured worker.It may be worth your while to have an attorney in your corner, even if there is a attorney fee involved.
If you are curious about settling your Oregon Workers’ Compensation claim, call us at 503-325-8600.We can give you the basics, and let you decide whether it makes sense to get help from an attorney.
I was injured at work, but my claim was denied. How can I afford to hire an attorney?
The Oregon Workers' Compensation statute and rules dictate how attorneys who represent injured workers get paid for their work. The good news is that lawyers who work for clients injured on the job in Oregon are paid only if they are "instrumental" and getting a benefit, or an increased benefit for the injured worker. If the lawyer is not successful, then there is no attorney fee. So here is how it works.
A lawyer is "instrumental" in getting a denial set aside, or getting an increase in benefits if the attorney did some work that affected the outcome. If a claim is denied, an attorney will investigate the claim by reviewing the claims file, meeting with the client, talking to witnesses, and getting medical records or opinions. The lawyer may go to hearing with the client, or file appeals with the Oregon Workers' Compensation Board, or the Oregon Workers' Compensation Divsion. Only if there is a positive outcome is the lawyer paid a fee.
If the work results in a denied benefit being granted, or a denied claim being overturned, then someone from the State of Oregon, whether it is an agency official or a Judge, will order the insurance company to pay the attorney fee. This is called an "assessed fee." If the attorney overcomes a claim denial, then in many cases the Judge or Workers' Compensation Board will order the insurance company to pay the costs of fighting the claim as well.
Some benefits, like temporary total disability (wage replacement) or permanent partial disability (compensation for lost earning capacity) result in a money benefit, or an increase in the value of the money benefit. In those cases, the fee is a percentage of the increased benefit amount. This is called an "out of compensation fee."
If a case resolves, either through a claims disposition agreement, or a disputed claims settlement, the fee is a percentage of the settlement, and is set by the statute and the rules. Somebody from the Oregon Workers' Compensation Board will review to settlement agreement to make sure that it complies with the rules and statutes, and part of that rule involves approving the attorney fee.
Regardless of whether the fee is out of compensation, or if it is an assessed fee, all fees must be approved by the State of Oregon. In fact, with any appeal, the attorney actually sends a copy of the fee agreement to the State of Oregon, and to get a copy of your claims file, sends a copy of the fee agreement to the insurance company.
So the good news is that you can hire an attorney without having to pay money up front, and only if there is success, is there a fee. If you have a denied workers' compensation claim, or even an accepted claim but are having problems getting the benefits you need, call us at 503 325 8600. We can tell you if you need an attorney in the first place, and review your file to make sure. If there are no issues to pursue, there is no fee.