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 an adjuster close my file if I do not respond to an offer of settlement within a set time?
Yes, but it means nothing.
The first adjuster an unrepresented auto injury claimant deals with is usually a lower level adjuster with limited experience. These adjusters are often given some "tools" in an effort to minimize the settlement payments to the injured motorist. One of them is a veiled threat to close the file should the injured motorist fails to respond to an offer to settle the injury claim.
An insurance company adjuster can do this, but it really doesn't mean much. Under state law, you have a certain amount of time to have your claim resolved by settlement, or filed in the appropriate court. This is referred to as the "statute of limitations."
In Oregon, you generally have two years from the date of the collision to have the case resolved by settlement, or filed in the appropriate court. Please be aware that this time limit applies only generally, and there may be other deadlines critical to your case. For example, you may have to file tort claim notice against a government agency. For more information on tort claim notices, check out this article.
If you suffered a minor injury, and wish to resolve the case on your own, don't rush. Take a few months to make sure that you are able to do all the things you were doing before the injury before signing a settlement agreement that forever releases the insurance company from any responsibility for your injuries.
If your collision occurred in Washington State, then you have three years from the date of your injury to resolve the case by settlement, or file it in the appropriate court. Remember, other time limits may apply. Remember too that your best bet is to wait until you have completed treatment, and no where you stand medically before approaching the insurance company about settlement. If you would like to speak to a car accident lawyer directly, contact our office today.
I am meeting with a lawyer about my Oregon personal injury case. What kind of questions should I ask?
I have probably met with hundreds of people over the years to discuss their potential case. Every meeting is different. Some people come with a list of specific questions. Other people are frankly intimidated at the prospect of meeting with an attorney. It is usually their first time sitting down with a lawyer in person. If you are going to call or meet with a car accident lawyer to discuss your Oregon or Washington injury claim, here are a few things you may want to ask the attorney.
1. How do you pay the attorney fee?
You are a potential client, and as such, you have a right to know how the fees work. Do not be shy about asking about the fee agreement. In many cases, attorneys charge a contingent fee. This means that the attorney does not recover a fee unless he or she recovers money to compensate you for your injury. This could be in the form of a settlement, arbitration, or jury verdict. Typically, the fee is a percentage of the recovery.
It is a good idea to know what the attorney means by "recovery." For example, if you are injured in a car that is insured in the State of Oregon, you are covered by personal injury protection benefits. This is a no-fault medical insurance policy that will pay your bills for necessary care, regardless of who is at fault. You may want to know if the attorney considers the payment of PIP benefits to be part of the "recovery." This can make a big difference in your overall recovery when the case is finished.
2. What about costs?
In addition to the attorney fee, most fee agreements address case costs. Costs are those things that the attorney will spend money on to prepare your case for a settlement demand, or for litigation. Typical case costs include the cost of obtaining medical records and bills, police reports, and other documents. In some cases, the attorney may have to hire an investigator, or a physician to review records or perform and examination.
Some attorneys will pay the costs as they are incurred, and then recover the costs that were advanced at the end of the case. You should have an idea of how the attorney handles costs. Ask also about what items the attorney will charge as costs.
3. What is your experience with these kinds of cases?
Some attorneys limit their practice to specific areas, and others are generalists. It is a good idea to know how much experience the potential attorney has in handling your injury case. This is important because many insurance companies will keep track of how an attorney approaches a case when representing an injured person. Attorneys that are willing to go to arbitration or trial may be in a better position to get you the best result possible because the insurance company knows that the attorney is willing to go "all the way" if that is necessary. Be sure to ask about the attorney's practical experience.
4. Who is going to handle my case?
There are some attorneys who have several legal assistants and paralegals, or even younger associate attorneys that take on many of the duties of handling the case. This is not necessarily a bad thing. There are a lot of moving parts to these cases. However, you should have an idea of who you will be working with, and who will help you make decisions on how to move forward at the case.
5. How long this is going to take?
If an attorney is being upfront with you about an Oregon or Washington injury claim, he or she will give you a range or estimate as to how long a case may take. It is sometimes difficult to give an accurate estimate as to how long it will take to resolve a claim, especially at the very beginning. Many things can happen along the way, but you should get a basic idea of how long you will be working with the attorney on this particular legal matter.
6. How do you evaluate the value of my case?
This is a question that may help you figure out the third question regarding experience. In our office, we have more than one way to evaluate a case. We will also not provide an estimate of the case's value at the very beginning, because we don't have the information we need to give you an intelligent answer. However, it's a good idea to know the process that goes along with evaluating the value of your case.
7. What is your communication policy?
Probably the biggest complaint people have about attorneys is that they do not return phone calls. You should ask about how the office will communicate with you and provide information about the case. In our office, we typically schedule phone conferences or in person appointments to answer questions and discuss the case with our clients. This works very well for us and our clients because everyone is on the same page about how and when we will be able to talk about the case.
8. Tell Us Your Story
When we meet with the client for the first time, we want to hear what they have to say about their case, and their concerns. Our overall goal is to learn their story, and then answer any questions they may have about the case, and about how we work with clients. If you or somebody you know would like to talk about a case, call us at 503-325-8600. Even if we are not able to handle your case, we are happy to provide you options.
What are "compensatory damages?"
Making Up for What Was Lost
The term "compensatory damages" refers to a claim for the amount of money that it will take to make up for what a person lost. For example, if you are injured in a car collision in Oregon, you can make different kinds of claims for compensatory damage. The bottom line, however, is that the claim for compensatory damages is aimed at getting back what a person lost. It is not a prize, or an award. There are different kinds of compensatory damages. Let's break it down into smaller pieces.
Economic Losses: The Objective Losses
Any kind of claim that can be verified with some objective evidence is a claim for "economic damages." This is the phrase law makers gave this kind of claim. All this means is that there is something you can point to that shows the amount of the loss. In an Oregon personal injury case, medical expenses and lost wages are the most common examples of this kind of claim. An injured person and an insurance adjuster will agree that a certain medical bill is a certain amount. The number is right there on the bill. The adjuster may not agree that the medical care was necessary, or that it was a result of their insured's careless behavior. They may also argue the bill is too high. But one thing everyone can agree upon is that the bill is for a certain amount. That is what makes it objective.
Lost wages are the same. If a doctor takes you off work for two weeks, and your wage records show you make $400.00 a week, then everyone will agree that the claim is for two weeks of lost income at $400.00 per week, or $800.00. There could be arguments about whether you were disabled as long as you claim, or whether the disability was a result of someone's careless behavior. But everyone will agree on the math.
In some cases, a person may have a permanent but partial loss of ability to earn, or the injury may have disabled them from any future work. In those kinds of cases, an injured person can seek compensation for future lost earnings, or future lost earning capacity. The same is true for future medical care needs. Whenever you are making a claim for future losses, you will probably need a medical expert or life care planner to explain the need for future medical bills. A treating doctor opinion is also required to prove future disability, and you may need to have a vocational expert calculate and explain future lost earnings.
Non-Economic Losses For the Loss of Health
The other kind of compensatory damage claim you can make in Oregon if another person carelessly causes you injury is a claim for "non-economic" damages. Again, this is the phrase from the statute. This kind of compensatory damage is compensation for the loss of your health. Oregon law recognizes that everyone is entitled to be a whole person. If someone is careless, and takes a part of that away from you, even if it is temporary, you are entitled to be compensated for that loss.
Juries, when asked to determine how much to compensate someone for this loss, are instructed to consider the "subjective, non-monetary" losses a person suffered because of another's negligence or carelessness. This can include inability to participate in activities outside of work, pain, suffering, and the emotional distress that goes along with being injured. Jurors are also told that they must be reasonable in determining the amount of non-economic damages a person deserves to make up for their harms and losses.
There are many factors that go into determining a "reasonable" amount of compensation for non-economic damage. How badly was the person injured? How painful was the injury? How much did it interfere with their everyday life? One important factor is whether the injury's effects are permanent. Some injuries are life changing. If someone suffers a permanent loss from an injury, a jury can consider the life long consequences of the injury in determine what is fair to compensate for the loss.
How Much is Fair?
That depends on who you are asking. A person suffering a life changing injury is going to have a different opinion than an insurance adjuster. At the end of the day, what is fair is what a jury or other decision maker says is fair.
If you are facing a serious injury claim, and have questions on where to go next, contact us. We help people with these kind of issues every day.
What are "punitive damages?"
Punitive damages are best described as "punishment damages." Unlike compensatory damages, punitive damages are available when a defendant's behavior is so egregious, that it socially unacceptable. The goal of punitive damages is to deter a defendant from engaging in this type of behavior in the future.
In Oregon, in order for a plaintiff to bring a claim for punitive damages, the injured plaintiff must first establish evidence that the defendant's behavior for exceeded the bounds of socially tolerable conduct. If the plaintiff has such evidence, then the plaintiff must file a motion to amend her complaint so that the punitive damage request can be included as part of the lawsuit.
Over the years, the Oregon Court of Appeals and the Oregon Supreme Court have ruled on what kinds of behavior allows for punitive damages. Criminal behavior, obviously because it is not socially accepted, will give rise to a claim for punitive damages. Assault, battery, and drunk driving are some common examples of behavior that allows a claim for punitive damages.
Even if a plaintiff is permitted to bring a claim for punitive damages, she will face several obstacles. First, the amount of damages awarded has to be rationally related to the defendant's behavior, and in some cases, the courts will find some awards excessive, in violation of the defendant precious constitutional rights. There must be some connection between the behavior, and the defendant's wealth in assessing punitive damage awards.
Some other facts about punitive damages:
- In almost all cases, insurance will not cover any award for punitive damages. This is especially true with punitive damages arising from criminal behavior. It is a public policy in Oregon that people should not be able to ensure their criminal behavior. That only makes sense.
- There are caps on how much an attorney can recover as an attorney fee out of a punitive damages award.
- 60% of any punitive damages award are payable to the Attorney General for Criminal Injuries Compensation Account of the Department of Justice Crime Victim's Assistant Section, and is allocated toward crime's victims assistance payments.
- 10% of the punitive damages award is also payable to the Attorney General. However this part of the award goes to a State Court Facilities and Security Account.
In many cases, we have represented people who were injured, and also considered a crime victim. There are many considerations when dealing with a District Attorney Victims Compensation office while at the same time, pursuing a personal injury claim.
If you are a crime victim, and have questions about your dealings with the District Attorney, and your personal injury claim, call us at 503-325-8600. We have helped many people get through this process, and can answer your questions.
What are "economic" damages?
If you have an injury claim in Oregon, you have a right to request compensation for your losses. Oregon law divides the type of loss as you can claim into two categories. The first is called "economic" damages. The other is called "non-economic" damages.
"Economic" damages are those kinds of losses that are objectively verifiable. In other words, these kinds of claims can be objectively verified with a medical bill or a wage stub. The statute that defines economic losses includes medical expenses, and the cost of substitute domestic services. You should also keep in mind that these losses cover both already incurred losses, but also losses that you can verify will occur in the future.
Washington allows for a similar claim. However, the labels applied to this type of claim are different. Lost wages, medical expenses and other verifiable expenses in Washington are categorized in the claim for "special" damages. Same damages, different name.
If you have an Oregon or Washington injury claim, and have questions about the extent of your economic loss, call us at 503-325-8600. We have handled several claims over the years, and can help you determine the full extent of your economic loss.
What can I claim on my Oregon auto injury claim?
If you have been injured in an auto collision in Oregon or Washington, you may make a claim for your losses, also known as "damages." In each state, the statutes assign specific names to the kind of "damages" that you can claim.
With an injury claim in Oregon, you can make a claim for "economic damages." These are the kind of losses that can be verified with some document, like a medical bill or wage stubs. The key to proving an economic loss is linking it to the injuries caused in the auto collision. For example, if you were injured in a collision, and required physical therapy, you must show that the need for the physical therapy is a result of the injuries from the auto collision. You also need to show that the treatment was necessary, and that the charge for the treatment was reasonable.
Economic damages are not limited to your past medical expenses or lost wages. In some cases, you may have a claim for future medical expenses and future lost income. Claims for future losses often require strong proof, and sometimes you may need to help of an expert witness to document and verify the need for future medical treatment or disability.
If you have a claim in Washington for an auto injury, you can make the same claim, but the damages in Washington are known as "special" damages. Again, these are the kind of damages that you can claim for things that are verifiable, like medical expenses and lost wages.
The other kind of lost that you can claim is known as "non-economic" damages in Oregon, and "general" damages in Washington. These damages are intended to compensate an injured person for the loss of their health, which includes pain and suffering, emotional distress, loss of ability, and all the other things that go along with being injured. The amount of not economic damages you may claim depends upon the severity of the injury, and its long-term consequences.
If you have a auto injury or any kind of injury claim in Oregon or Washington, and have questions, call us at 503-325-8600. We can explain how the process works, and let you know where you stand.
My child was injured and has a injury claim. What do I need to do to protect my child?
When a child suffers an injury as a result of another's carelessness, the child has a viable injury claim. However, Oregon and Washington law consider children to be "disabled," but only in the legal sense. In other words, because a child is not legally able to pursue a claim, and to enter into any agreement with the lawyer or an insurance company, special rules apply on how these claims are pursued.
In Oregon, the law requires that a parent or another responsible adult be appointed as a conservator. A person is appointed as a conservator or by petitioning the court for permission. There are special requirements for people to be qualified to act as a conservator. In a traditional conservatorship, special responsibilities are imposed on the conservator, which generally require the conservator to act in the best interest of the child. If there is any recovery on behalf of the child, the conservator is required to manage the funds in the best interest of the child. The conservator must obtain court approval of any settlement, and must account for the management of funds on an annual basis. In some cases, the conservator must be bonded to protect the child's assets. Even on a local level, different courts throughout Oregon have different requirements on approving settlements for children, and management of settlement funds.
In Washington, courts require approval of the settlement of the children's injury claim. However, the procedure works somewhat differently. In Washington, the responsible parent must petition the court for the appointment of a "guardian ad litem." This person is somebody qualified to evaluate whether or not the settlement is in the best interest of the child. The guardian ad litem has no interest in the case, and will report to the court as to whether the terms of the settlement are reasonable. Sometimes, the guardian ad litem may make recommendations as to the management of settlement funds.
Regardless of whether a case is resolved in Oregon or Washington, structured settlements are often employed to manage the funds in the best interest of the child. A structured settlement usually takes the form of an annuity, which is an insurance contract. With an annuity, the responsible parent or adult agrees to a direct transfer of settlement funds from the responsible insurance company to another insurance company that provides the annuity. The annuity sets out a schedule of periodic payments over time to the child. Typically, payments are deferred until the child reaches adulthood. Because the insurance company is "holding on" to the bulk of the settlement funds, those funds earn interest, and the periodic payments over time will exceed the original value of the annuity. In some cases, the earnings on an annuity are exempt from income tax. There may be some cases where disbursements are made prior to the child reaching adulthood, depending upon the child's needs.
Both states have enacted these laws so that the child's best interest are first and foremost. Unfortunately, there are some sad stories where conservators and even parents have taken advantage of settlements and recoveries made for injured children, and these laws seek to prevent the misuse of funds.
When we represent a child in injury claim, we will often work with the responsible parent or individual to get the conservatorship established, appoint a guardian ad litem if necessary, and work with a reputable structured settlement broker to make sure that the annuity is in the child's best interest. We can sometimes structure the settlement so that a conservator in Oregon is not required to file annual reports.
If you have a child who is dealing with an injury claim, call us with your questions at 503-325-8600. We can explain your options, and let you know where you stand.
What is a "structured settlement?"
A "structured settlement" is a settlement of an injury claim where the parties agree that the injured person's recovery will be placed in an annuity contract, and payments will be made over a schedule period of time. Of course, this raises the question of what an annuity contract is.
The best way to think of an annuity contract is to simply consider it as an insurance policy. When you enter into an annuity contract, you agree to surrender control over a sum of money to an insurance company. This money may be "locked up" for a period of time. After an agreed-upon period of time, the insurance company then makes periodic payments from the annuity. The payments are scheduled as agreed-upon, and when everything is said and done, in many cases, the total sum of the payments made over time are greater than the initial amount in the annuity.
Another way to look at this is as a loan to the insurance company with deferred payments and interest.
Why would somebody want to enter into an annuity contract?
There are a couple of reasons somebody might be interested in structuring their settlement with an annuity. First, if done correctly, the income or increase in overall recovery with schedule payments is not taxable. However, the principle recovery on an injury claim is usually not taxable as well.
More often, we use annuity contracts when representing children. Depending upon the child's age at the time we resolve a claim, an annuity contract presents a wonderful opportunity for college savings or other opportunities for young person. Also, if a court approves of the structured settlement within annuity contract, in many cases, it will waive the typical requirements of an annual accounting for the conservatorship, which is also a necessary part of resolving a child this case.
Although annuity contracts are not for everyone, they definitely should be considered when planning the management of settlement funds for an injured child.
Sometimes, an insurance company will approach a parent of an injured child and propose an annuity contract. Any parent managing the claim on the half of a child should always cautious in evaluating which annuity product works best. We have a great relationship with a trusted annuity broker who ensures that the annuity product is reliable and solid, which is crucial to ensure reliability.
If you have a child who has an injury claim, and want to explore your options in pursuing and resolving the claim in the best interest of your child, call us at 503-325-8600. We can go through all the options, and help you make the right decision.
I have an Oregon injury claim, and my health insurance is paying my bills. Do I have to be concerned?
If you have a personal injury claim in Oregon or Washington, and a health plan or health insurance policy is paying your medical bills, you will probably have to pay back your health plan out of any personal injury settlement you may recover. How much depends on the health plan.
In auto injury cases, people who are injured in a car that was insured in the State of Oregon will have personal injury protection benefits, which provide medical insurance for injury related treatment up to a certain amount, and over a certain period of time. In Washington, personal injury protection coverage is optional, so you may or may not have this coverage available to paymedical expenses.
If you suffer a serious injury, you are probably going to use all of the available personal injury protection coverage, which means that you will have to look to your health plan to cover the remainder of your care. If your automobile policy was originated in Washington, you may not have personal injury protection coverage, and you will have to have your health care plan pay all of your medical bills. In either case, you will probably have to reimburse your health plan for the medical bills it paid out of your personal injury settlement. How much depends on the health plan, and the circumstances of your case.
Most private health insurance is not actually "insurance" in the legal sense. Instead, it is a "health plan," which is regulated by federal law. The federal law that regulates these plans allows the insurance carrier a lot of leeway in what it can include in the plan. Most health plans will exclude payment of any medical expenses that are responsibility of some other party, like a careless driver who injures you in an auto collision. However, these health plans will pay for accident related medical care, but only if you agree to reimburse the health plan out of any money that you obtain in a personal injury settlement.
The amount that you have to pay back depends on the plan's language. Some plans will only pay up to a certain amount for accident related care. Other plans will pay for all care, but the plan may require that you pay 100% of the medical benefits it provided. Other plans will negotiate a discounted reimbursement, realizing that many cases, you may have had to hire an attorney to help you with the case. In other words, the plan is agreeing to share in the cost of paying the attorney.
When you have been involved in a serious injury, it is important to know exactly what the terms of the health plan are so that you can plan ahead.
We deal with issues involving personal injury claims and reimbursing health plans when there is a personal injury settlement or recovery. If you have questions about your options with a personal injury claim and your health plan, call us at 503-325-8600. We deal these issues every day.
My Oregon Workers' Compensation claim has been accepted. Should I have any concerns?
Although it is better to have your claim accepted than denied, there still may be some issues lurking beneath an accepted claim. Here are a couple of things to consider, even if your claim has been accepted.
Check The Notice of Acceptance
The Notice of Acceptance is probably the most important document in your claims file. This document, usually in the form of a letter, notifies the injured worker of the exact medical condition that the insurance company will recognize as the work related injury. Some people may have suffered a torn rotator cuff of the shoulder, or a herniated disc in the low back, but the notice of acceptance may only include a shoulder strain or a lumbar strain. The treatment for a strain injury is much different than the treatment required for a torn rotator cuff or a herniated disc. Also, if you are permanently impaired as result of your on-the-job injury, the insurance company may only calculate permanent partial disability for the accepted strain injury, and not a herniated disc or torn rotator cuff.
You should examine the notice of acceptance closely, and consider speaking with your physician to make sure that the injuries resulting from your on-the-job accident are fully covered in the notice of acceptance.
Here is also an important tip: Under the Workers' Compensation statute, an insurance company may pay for medical care to treat a condition that it is not actually accepting as part of the claim. Merely paying for the medical care does not legally obligate the insurance company to accept that particular condition. We have seen insurance companies pay a physician to perform a complicated extensive surgery, only later to convince that same physician to sign a document that none of the conditions treated in the surgery were result of an on-the-job injury. As a result, our client was left with little or no permanent partial disability benefits, and was not qualified for vocational training. So, even if your medical bills are being paid for that herniated disc or that one rotator cuff, this conditions may not be part of the accepted claim.
If you determine that the insurance company has not accepted all of your medical problems, you can make a written request that the insurance company include all of the conditions resulting from your injury. In some cases, a new medical condition may be discovered after the notice of acceptance was issued. In that case, you can ask the insurance company in writing to include the new medical condition as part of the claim as well.
Check the Claim Classification
Included in the initial Notice of Acceptance is a claim classification. An accepted Oregon Workers' Compensation claim will be classified as either "disabling" or "non-disabling." If the claim is disabling, then it means that the insurance company agrees that you have missed time from work as result of your injury, or that you will likely have some permanent impairment as result of your injury.
The insurance company is required to issue a Notice of Closure with a disabling claim. This notice provide you a lot of valuable information, and also indicates whether not you are entitled to a Permanent Partial Disability benefit. If you have missed time from work, or you feel that your injury will have some permanent limitation in your ability to work, check the classification. You have only one year from the date of the notice of acceptance to ask the insurance company to change the classification. Should it refuse, then you have a right to seek review with the State of Oregon.
If you are not sure whether your claim was properly classified, or if the insurance company has taken full responsibility for all the injuries you suffered, call us at 503-325-8600. We can evaluate your claims file, and let you know where you stand.
A claims adjuster wants to send me a check and paperwork five days after my car collision. What should I do?
We often get calls from people who ask this very question. When an adjuster tells you that he or she is going to send some money, usually a few hundred dollars, and some paperwork, you need to be careful.
First, realize that the paperwork is probably a settlement agreement, that if signed, releases the insurance company from any future responsibility for health problems you may have in the future. Many people are not injured in fender benders, and do not have to deal with any long term issues, but you want to make sure So, if even if you feel fine, just take some time to make sure everything is going okay, and you are able to go back to normal activities before signing a release.
Also, you may have other claims like property damage, or you may have to reimburse your insurance company if it paid medical bills. If you sign away your claim, you may be stuck with obligations that should have been someone else's responsibility.
We offer a free book (see below) that will help you know where you stand with your auto claim. Check out our book, or give us a call. We handle these kinds of issues every day.
Should I keep a diary or notes after my Oregon auto collision?
Keeping a note book or diary after an auto collision can be helpful with your claim for many reasons. There is a lot going on in the beginning, including property damage and repair, car rentals, and in serious cases, extended hospitalizations with a lot of follow up care.
There is also the simple fact that when it comes time to document your claim, you will have this resource to refer back to when explaining how the injury affected your every day life. However, there are a few things to keep in mind when keeping a journal or diary.
- The law may vary state to state, but in Oregon, unless the diary or journal is kept at the instruction of an attorney, you must assume that if the case is filed in court, an attorney representing the careless driver will seek a copy of the notes or journal.
- You should keep the notes brief. This is not a book, or a novel. It is a tool that allows you to recall missed family events, struggles with every day activities, and simple things like the time taken to attend appointments. The idea is that you will be able to recall these events after reviewing the notes.
- Be positive. Overcoming an injury is a struggle for sure, but if you are going to make the best recovery possible, you need to celebrate your successes along with your struggles. We have a client with a significant pre-existing condition who has a stellar attitude, and calls herself the Queen of Adaptation. That is a great attitude. Her injury has affected her, and in a big way, but she is adapting. It's not just good for the case, but it is good for you.
Questions? Call us at 503-325-8600. If you are in the midst of dealing with an injury claim of any kind, give us a call, and we can help you know where you stand.
Should I go to the Personal Injury Protection Independent Medical Examination?
If a car is insured in the State of Oregon, it must carry Personal Injury Protection benefits, which provide medical, disability, domestic service and child care benefits. The auto insurer providing personal injury protection benefits, aka PIP benefits, has a right to manage the claim, and determine whether medical care is actually necessary.
One way that a PIP carrier manages these claims is through “independent medical examinations.” Under the insurance policy, the PIP carrier can require, if it is reasonable, that its insured attend an independent medical examination. This is a medical examination performed by a doctor chosen by the insurance company to determine what care is necessary, if at all. Based on the opinion of the independent medical examiner, the PIP carrier may terminate payment of medical benefits, or continue medical benefits as recommended. If there is a disagreement, the insured can seek arbitration, or file a complaint in state court.
If this request is reasonable, then the insured is required to attend the examination if he or she wants to continue seeking benefits under the insurance policy. If the insured decides not to attend the examination, then the insurance company can terminate benefits, citing the insured’s failure to cooperate as required under the contract.
In some cases, we may advise our client not to attend the independent medical examination. Some independent medical examination physicians have reputations that precede them, and are notorious for a strong bias against the injured motorist. Other medical examiners tend to be more objective, and if the injured motorist truly needs further medical care, these reasonable and objective medical examiners will say so.
There are a lot of factors to consider when deciding whether to attend or not attend an independent medical examination. First, does the injured motorist have other health insurance that will cover the cost of necessary medical care? Second, even if the injured motorist attends the examination, will be attending physician who is actually treating the injury sustained in the car collision be willing to step up and oppose or disagree with the findings and the independent medical examination? Another consideration is how the independent medical examination may affect the claim against the responsible motorist and its insurance company.
Our experience is that whether to attend an independent medical examination is very much dependent on the specific facts of each case, and our client's specific situation. There are no easy answers, because in the end, nobody really knows exactly what the outcome of one of these examinations may yield, but we can provide some pretty good insight on some of the medical providers that perform these examinations for insurance companies.
If you are dealing with a motor vehicle collision injury in Oregon or Washington, and you have questions about whether to attend a personal injury protection medical examination, call us at 503-325-8600. We can discuss the many factors that go into deciding whether you should go are not go to these exams.
Do I need to sign releases for the other person’s insurance adjuster?
Whether to sign a medical release depends upon which insurance company to sending you that release.
In Oregon, the personal injury protection carrier will send you a application form, which includes a medical release. Because this is your insurance company, or the insurance company for the car you were riding in, you should provide this information so that your medical bills are paid. In Washington, the vehicle you were driving or riding in may or may not have personal injury protection benefits. If it does, then you should complete these forms so that your medical benefits and disability benefits are paid and processed.
If the insurance company for the responsible driver sends you a medical release, it is generally not a good idea to sign the release. First, this adjuster is on the other side of the legal fence, so to speak, and is not out to protect your interests in the claim. Second, if you ever take the time to read the medical release, you will find that it is very broad, and allows an adjuster to not only obtain prior medical records, but also actually speak with your treating physicians.
There is no real advantage in signing medical release for the careless driver's insurance adjuster. However, if you have signed the release, it’s not the end of the world. When someone retains our office to help them with their claim, we will revoke the releases, and request all medical records obtained with the release.
Questions? Call us at 503-325-8600. We have convenient office locations in Beaverton and Astoria.
What are my options in getting my car fixed or replaced?
Many of our clients who are injured in a car wrecks in Oregon and Washington have to first deal with fixing or replacing their car. This is known as the property damage claim. Here are a few pointers.
First, if your car is repairable, you are entitled to the cost of repairing the car. In some cases, even after the car is repaired, and may still not be worth what it was prior to the collision. You may have an additional claim for the difference in the value of the car from before the accident. This is often referred to as a “diminished value claim.”
While your cars being repaired, or during the time it takes to resolve a total loss claim, you are entitled to be compensated for the loss of the use of the vehicle. In Oregon, the amount of money to cover the loss of use of the vehicles equal to what it would cost to rent a similar vehicle. Many insurance companies will authorize a rental during the repair process, or during the time it takes to determine whether your car is a “total loss.”
When a car is “totaled,” this means that the cost of repair is too close to the fair market value of the car. In other words, it doesn’t make sense to fix a car if the cost of repair is almost the same as the car’s value. If this happens, you have a claim for the fair market value of the car at the time of the wreck. The fair market value is what a willing buyer would have paid a willing seller for your car immediately prior to the collision. Many insurance companies use database services to determine fair market value, and sometimes they are accurate, but many times not.
If you have been injured in a car wreck in Washington or Oregon, and you have questions about property damage, we are here to help. We have offices in Beaverton and Astoria, and can meet with you at your convenience. Call us at 503-325-8600 with any questions.
When should I talk to a lawyer about my Oregon car wreck claim?
There is no stock answer to when a person should hire a lawyer to represent them on their Oregon injury claim, or if they need a lawyer at all. However, here are a few considerations.
If you suffered a serious injury that required an extensive hospital stay, and you are looking at lifelong need for medical care, then you may want to consult with a lawyer sooner than later. An attorney can investigate the case, and determine whether not there any other people or parties that may be responsible for causing your injury. An attorney can also determine whether not you have other options, like an underinsured motorist claim. Finally, an experienced an attorney will properly document not only your past medical expenses and needs, but your future medical care needs.
If you find that you the insurance adjusters being overly aggressive, or is not willing to accept that their insured caused your car wreck, then you may want to speak with a lawyer to see about your options. Many attorneys offer a free consultation, and will provide you at least a basic framework of the issues in your case.
If the insurance company has offer to resolve your case, and you are not certain whether not he offer is “fair,” and may make sense to consult with an attorney to see whether you should accept the offer or move forward with the case.
Our office offers a free book, the Oregon Personal Injury guide. This guide will walk you through all of the major issues and concerns people face with an injury claim in Oregon, and will at least give you a basic idea of where you stand with your case. This is a good option if an insurance adjuster is asking you to sign medical releases, or give a recorded statement. You can also check out our website, which provides helpful articles, blog entries, and answers to the most frequently asked questions. Of course, feel free to call us at 503-325-8600. We have offices in Beaverton and Astoria, and can meet with you personally to discuss your case.
What if my health plan pays for some of my medical care from my injury claim?
If you are injured in Oregon or Washington, and you have a claim against a responsible party, your health insurance may be called upon to pay for some of the medical care required to treat your injuries. Depending upon the type of health insurance you carry, you may have to reimburse your health plan for some or all of the benefits it provided to your doctors.
Health insurance comes in many forms. We use the term "health insurance" and "health plan", but they mean the same thing. Most health plans will exclude coverage for treatment related to injury sustained as a result of another person’s careless behavior. The reasoning is that the careless person's should pay the medical bill. However, many of these health plans will make payments if you sign an agreement to reimburse the health plan out of any recovery you make from the responsible party. This is why you need to read these agreements carefully before you sign.
An illustration may be helpful. Let’s say you are involved in a motor vehicle collision, and you sustained serious injuries. You may have medical coverage in your automobile policy, but with serious injuries, that coverage may be “exhausted,” which means that you have used all of the available benefits. If you have a health plan, it will take over paying your medical expenses, but only if you agree that if you make a settlement against the responsible party, you will reimburse your health plan for the value of benefits it provided to your health care providers.
This is similar to the agreement you have with your own auto insurance when it provides personal injury protection benefits. However, problems can crop up if the careless party does not have enough coverage to cover all of your medical bills, including those bills your health plan covered. Also, there may be a disagreement whether the careless party was 100% responsible for your injury, and there could even be an issue about whether the medical care that you received was related to the accident or collision.
Some health plans will allow a discount or reduction of the amount you must reimburse to share in attorney fees, account for the other party's fault, or even to make sure you are fairly compensated. Others will not. There are some health plans that will consider the total settlement or recovery amount as subject to reimbursement, and may exclude any future accident related care up to the amount of your overall settlement, regardless of whether it was allocated to attorney fees, costs, or lost wages.
If you have a serious injury claim where your health plan is involved, call us at 503-325-8600 if you have questions. We deal with these issues every day.
What are the chances that my Oregon injury claim is going to trial?
It is no secret that most injury claims in Oregon and Washington do not go to trial. Most of the time, people will be able to resolve their differences, and move on. However, there are some cases that should and do go to trial. Here are a few thoughts on whether your Oregon or Washington injury case will go to trial.
In the end, it depends on what you can prove. If you have a clear liability case, then there is a greater chance you may be able to resolve your case short of trial. However, if the defendant, or responsible party, denies fault, then the chances of going to trial have increased.
The other issue for the Oregon or Washington injury claim is damage. What kind of damage resulted from the defendant’s negligent or careless behavior? Sometimes, an insurance company will admit that their insured was at fault, and acted carelessly. However, whether and how much injury and auto collision caused is a whole different issue. If there is a disagreement about the nature and extent of an injury resulting from an Oregon or Washington car collision, or other negligent behavior, then the chances of going to trial are increased.
Another factor is the people you are dealing with. Some insurance companies are more willing to come to the table to discuss resolution, and others are not. Certain insurance companies have hard and fast rules over which cases will go to trial, and which will not.
If you have an injury claim in Oregon or Washington, and want to know all the possible scenarios, call us at 503-325-8600. We represented many clients over the years against many different insurance companies, and have experience resolving cases and taking them to trial.
What does it really mean to "settle" an Oregon auto injury case?
Many times, when people consult with our office, there may have been some discussion with an insurance adjuster on settling an auto injury claim, whether be in Oregon or Washington. Often times, we find that many people raise good questions about what it exactly means to settle their case.
Essentially, settling any kind of claim involves releasing your rights to further pursue the claim in exchange for payment of a sum of money. However, many settlement agreements go out of their way to make it clear what exactly is involved in the agreement. Not all settlement agreements are the same, but they often include the following provisions:
- Auto insurance companies are responsible for paying the claims made against their the people they insure. A settlement agreement will make sure that the injured party knows she is releasing not only the insured and the insurance company, but anybody remotely associated with the driver and the insurance company from any liability. This provision usually rambles on, naming any possible person or entity that may be potentially responsible for causing injury.
- Most settlement agreements will include a statement that the responsible party, by resolving the claim, is not admitting to any liability or fault. There are many possible motives for this provision. For example, the auto collision may involve several people, and many cars, and if a responsible insurance company admits fault for causing one injury, it may be concerned about admitting fault for causing injuries to others.
- Settlement agreements will make sure that the injured party understands that she is releasing her claim for her injuries that she actually knows about, but also any future or unknown injuries. This provision stresses that the settlement agreement is final, and even if some unknown injury comes to the surface after the agreement is signed, the settlement agreement shuts down a right to make a claim for the new injury.
- Many settlement agreements also include a “hold harmless” clause. This provision usually addresses payment of medical expenses. In some cases, a case may resolved by settlement, and a medical provider may have gone unpaid. This type of provision make certain that if a medical provider is still owed money after the settlement, the responsibility for paying the bill or defending claims for payment of the bill lies with the party who resolve the case, not the insurance company or the negligent driver. In other words, the injured person is agreeing to take on any claims for payment of medical bills after the case resolves, and hold the insurance company harmless from those claims.
- A similar provision involves inclusion of any outstanding medical bills or liens. In some cases, an injured person may agree to resolve the case for a certain sum of money, but that sum of money will include any insurance liens or responsibility for outstanding medical expenses. Again, the insurance company is making sure it has no other financial obligation for the claim.
- Rarely, an insurance company will seek a confidentiality clause as part of the settlement agreement. This is common with high profile cases or cases involving catastrophic injury. Some corporate defendants or large insurance companies will not want an injured party to publish or disclose the nature of the agreement, or the amount of settlement.
If you are facing an injury claim in Oregon or Washington, and have questions about potential settlement, and how these agreements were, call us at 503-325-8600. We have extensive experience working through settlement agreements.
What is the "burden of proof"?
The "burden of proof" is given to the person in an Oregon personal injury case making a claim for compensation. Whenever someone files a Complaint in a court, or asserts an Affirmative Defense in response to a Complaint, that person has made an allegation, and has to back it up with proof. Thus, that party or person has the burden of proof.
The burden of proof differs, depending on the kind of case that is in front of the court or the jury. In a criminal case, the burden of proof is known as "beyond a reasonable doubt." This is a pretty high burden, and the rationale is that if you are going to put someone in prison, you better not have any doubt about their guilt, or at least a reasonable doubt. Jurors often seem much more familiar with this burden of proof because they have seen it depicted on the big and small screens, sometimes accurately, sometimes not.
Civil cases, like an Oregon or Washington auto injury claim, do not have the same burden of proof. These cases require the person bringing the claim or asserting a defense to prove their allegations by a "preponderance of the evidence." This means "more likely than not." So, when presented with whether a party proved their claim or their defense, a jury must determine whether the evidence shows, more likely than not, something has been proven. The jury can have some doubts, and those doubts may even be reasonable, but in the end, if whatever fact is being argued about is probably true, then the person making the allegation has "met the burden of proof."
Whether and how to pursue an injury claim in court depends on whether you can meet your burden of proof more than any other single factor. So, if you have questions about how to go about proving a claim like this, give us a call at 503-325--8600. We can explain the process, and how we address the burden of proof.