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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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.
Who pays the verdict if I go to trial for an Oregon or Washington auto injury claim?
In Oregon, auto insurance is required to protect other Oregon motorists. When an insured motorist causes an injury in a car wreck in Oregon, the insurance company insuring the careless motorist is responsible for any damages caused by their insured. This is what the insurance contract is all about.
In almost all cases, the preferable resolution of an auto injury claim is to resolve the case through a negotiated settlement. However, if there is a disagreement about who is responsible for causing the collision, or the amount of compensation is due, then the case will be filed in a state or federal court.
The insurance company remains involved, and will provide the careless motorist, who is now a defendant, with an attorney. The case still may resolve prior to a trial, and if it does, the insurance company is writing the check.
As the case moves forward through the courts, the insurance company pays court costs, and sometimes compensates their insured for time away from work to sit through a deposition, or a trial. However, the rules of evidence prohibit any mention at trial that there is an insurance company standing behind the defendant at trial, or that the trial lawyer defending the case is actually paid by the insurance company, or in many cases, is an employee of the insurance company.
The insurance company will pay any verdict a jury renders up to the amount of coverage provided to the defendant, which is also referred to as the “policy limits.” Even if the verdict is greater than the amount of insurance coverage provided to the defendant, the insurance company may still be responsible for the “excess verdict.”
Many people involved in an Oregon or Washington auto injury claim are concerned about having to “go after” a defendant or “bankrupt” them with a lawsuit. Auto insurance prevents this, but if you have questions or concerns, call us at 503-325-8600. We will walk you through the whole process, and give you all your options.
What is a contingent fee agreement, and what should I look out for?
Access to Justice
A contingent free agreement gives everyday people access to justice because the attorney earns a fee only upon recovery on behalf of the client. If the attorney makes a recovery, the fee is a percentage of the compensation recovered. Thus, the fee is “contingent” or conditional upon recovering of some money for the injured client as compensation.
When Are Contingent Fee Agreements Used
Attorneys use contingent fee agreements when representing clients on personal injury matters, including auto collision injuries, third-party claims arising from Oregon Workers’ compensation cases, or Employer Liability Law claims related to construction or logging accidents. Although contingent fee agreements are great because they allow an injured person access to legal representation, there are a few things to look out for when reviewing a contingent fee agreement.
What is the Fee?
These agreements provide that the fee is a percentage of the "recovery" or "settlement." The typical fee many people see calls for a fee of one third of the recovery amount, depending when the case resolves. When reviewing a contingent fee agreement, look to see what "recovery" the fee is charged from. Some attorneys may offer a lower percentage as a fee, but it may not truly better your recovery when you consider what the fee is charged from.
For example, in an auto collision case, many people have personal injury protection coverage, which is a benefit that pays medical expenses, regardless of who is at fault. There are some cases where there may be a dispute about whether certain medical treatment is necessary, but in many cases, these expenses are covered, and the attorney will have no role in making sure these bills are covered. Should an attorney include this as the "recovery" on a contingent fee agreement? This is a good question to ask.
What About Costs?
Another part of the agreement addresses expenses, or "costs." Costs are the expenses an attorney will incur in building a case for their client. Typical costs in an auto injury claim include the cost of obtaining a police report, medical records, and court filing fees. Many attorney’s contingent fee agreements provide that the client is responsible for any costs incurred in preparing the case. Some attorneys may require that the client deposit funds into the attorney client trust account, and others will offer to pay the costs in advance, and then seek recovery at the case’s conclusion. It is a good idea to get a clear understanding of how costs are handled in the case. Also, a prospective client should ask what items are considered “costs.” Some attorneys will charge for long distance calls, photocopies, and postage.
Does the Contingent Fee Amount Change?
Many fee agreements will have a graduated fee schedule. This means that the fee goes up depending on how far the case goes. If a case is filed in court, the costs are going to go up and the fee amount may increase as well. This only makes sense because trials are risky, labor intensive, and expensive. Our office has seen fee agreements from other attorneys that charge 50% of any recovery should the case go to trial. Frankly, that’s ridiculous.
What If I Don't Like My Lawyer
Finally, we tell all potential clients that they can fire us if they are unhappy with our work. However, our fee agreement provides that we are entitled to be compensated for the time we have in working on the case. Any client consulting with an attorney needs to know what the fee agreement says if the client or the attorney decide to dissolve the relationship and move on.
We go through the fee agreement paragraph by paragraph with all our potential clients so you can make an informed decision. If you are concerned about whether you can afford an attorney or whether you need an attorney in the first place, contact us. We will explain our fee agreement and help you decide whether an attorney should get involved with your claim.
Can I make a claim against a drunk or impaired driver?
The short answer is yes, you can make a claim for your injuries against a drunk or impaired driver. However, the real question is whether or not you can recover, and if so, from whom.
In Oregon, the insurance statute regulating auto insurance policies allows insurance companies to exclude "intentional" behavior. This is behavior that has intends to harm, like someone assaulting another person. This only makes sense, because it would be bad public policy to allow somebody to go out and essentially insure their own criminal behavior. However, this issue can get tricky in cases involving the drunk or impaired driver.
We have handled cases involving drunk drivers who have killed motorists, and drunk drivers who have severely injured others. Often, these cases involve criminal charges. Criminal charges involve proving a certain "state of mind," which can affect the injury claim against the responsible driver. In other words, some crimes require that the prosecutor prove the defendant drunk driver intended to cause harm. Other types of crimes require that the prosecutor prove that the defendant drunk driver "recklessly" disregarded the safety of others in causing the injury. In the first example, a liability insurance company may decline to cover the claim, because the behavior was "intentional." In the second example, however, the insurance company may be required to accept coverage, because the behavior, although socially unacceptable, was not purely intentional, but instead, reckless. There is a difference.
Another issue in cases involving the drunk or impaired drivers is the possibility of another responsible party. In Oregon, statutes prohibit providers of alcohol from serving "visibly intoxicated" patrons or individuals. An injured motorist in Oregon may have a claim against the provider of alcohol, but the statute allowing that claim sets higher hurdles for proving the claim.
If you have questions about making a claim against an impaired or drunk driver, call us at 503-325-8600. We have represented more than a few clients on claims against impaired drivers and providers of alcohol.
Why didn't the police cite the other driver, and does that affect my case?
The short answer is that whether a careless driver receives a ticket has little to do with proving a claim of negligence.
In many cases, police will choose not to cite a careless driver. It may be that there is insufficient evidence to prove a violation. It also may be a matter of department policy. Even if a driver received a citation, that fact, along with any conviction for a traffic offense is generally not admissible in another case involving an injury claim against that same driver. The rationale in the evidence code is that many people decide not to "fight" a traffic ticket, and for this reason, the mere conviction of a moving violation is not reliable evidence of negligent behavior.
However, when a careless driver receives a citation, and decides to contest the citation, some evidence may be helpful. For example, if the driver testifies in a court hearing, and that testimony is recorded, the testimony can be admitted in another trial. This is because the driver was placed under oath, and the law assumes that testimony under oath is generally reliable.
When we investigate a case, we determine whether not the negligent driver contested the citation, and in certain cases, we might even attend the court hearing.
If you have been in a collision in Oregon or Washington, and have questions about investigating liability, or proving the other parts of your case, call us at 503-325-8600. We offered 20 years of experience, and can explain how we investigate and pursue claims for injured drivers.
What is an "Offer of Judgment?"
When a Case is Filed in Court
Offers of judgment can only occur after a case has been filed in court, and must be served on the opposing party at least fourteen days of the date of trial. In our office, we occasionally see offers of judgment from insurance defense attorneys on Oregon personal injury claims. There is usually some disagreement on the value of the personal injury claim, and it is usually close to trial. This tactic is used to increase the risk of going to trial because, depending on the trial's outcome, a Plaintiff may end up recovering less money in any judgment. It's a way for an insurance defense attorney to call a plaintiff's bluff, or make a "dare." Offers of judgment force a reevaluation of the claim, and we receive an offer like this, we go over it with our client to make sure that they are making an informed decision on moving forward to trial.
How it Works
When one party files an "offer of judgment" with the other party, the offer is specific, including the amount of money offered, and whether it includes any liens or attorney fees. Usually, it is the defendant, or person or entity being sued that files an offer of judgment.
Under the rule, the plaintiff has seven days to respond to the offer of judgment. If the plaintiff accepts the offer, the plaintiff signs the offer, and files the document with the court. The parties then prepare a stipulated judgment, and the case is resolved. What happens if you decide not to accept the offer?
Rejecting the Offer
If the plaintiff does not accept the offer within the seven day deadline, the rule says that the offer is withdrawn. If the case goes to trial, and the plaintiff recovers more than the offer of judgment, nothing changes. The plaintiff can include in her judgment all the costs that the rules allows. These costs include witness subpoena fees, jury trial fees, and a prevailing party fee. In some cases, there may be a claim for attorney fee under a statute. If the plaintiff's beats the offer of judgment, she can still recover her attorney fees.
But, if the plaintiff does not beat the offer, her recovery is limited. The plaintiff will still recover the damages or compensation the jury determined in the verdict, but the plaintiff will not recover the cost of subpoenas, the prevailing party fee, and if there is a claim for attorney fees, that goes away too.
Does my health plan cover medical care for a personal injury claim or denied Workers' Compensation claim?
We are addressing both the Oregon Workers' Compensation claim and the Oregon and Washington personal injury claim. So, where does health insurance fit in to each of these claims. Let's start off with the personal injury claim, and then address workers' compensation.
In an injury claim, you may have PIP if your car is insured in Washington, and you will have PIP if insured in Oregon. PIP, or "personal injury protection," includes coverage for medical expenses. However, if you are seriously injured, you may use the available PIP coverage. If this happens, you have "exhausted" your PIP coverage, and if you have health insurance, that health plan should step up and process the remaining medical bills. Your health plan is going to want verification that you have used all your PIP coverage, and may plans will require that you sign an agreement that it will be reimbursed for medical benefits provided out of any settlement.
On the Oregon Workers' Compensation end of things, your medical providers cannot collect any bills while the appeal of the denied claim is pending. However, you may need to treat for your injuries, and if you have a private health plan, it will likely cover your medical expenses so you can treat your injury, and get back to work sooner. Like a personal injury claim, your health plan may have you sign an agreement that provides you will reimburse the health plan for medical expenses paid if you resolve your claim by settlement. If you prevail on the claim, the medical provider usually reimburses your health plan, and then bills the workers' compensation carrier.
If you have questions about medical bills and a personal injury or Oregon Workers' Compensation claim, call us at 503 325 8600. We work with clients on these issues every day.
The Police did not cite the other driver. Does this hurt my case?
Police officers use their own discretion in deciding whether or not to cite a negligent or careless driver at a collision scene. Drunk or reckless drivers are going to be cited, or charged with a crime. However, police may not cite drivers who commit lesser offenses, like speeding, or even failing to obey a traffic signal.
The general rule in Oregon is that convictions for moving violations are not admissible in a civil claim against the negligent driver for personal injury or property damage. The commentary that accompanies this rule of evidence explains that these convictions are not inherently reliable indicators of an admission of fault. The rationale is that the driver receiving the citation may not believe that he or she is guilty of the moving infraction, but has chosen not to go through the time and expense of contesting the ticket. However, if the driver cited with a moving violation pleads "not guilty," and testifies in a court of record, that testimony can be introduced at a later trial or hearing to prove liability.
This rule of evidence does not apply to more serious infractions, like a felony hit and run, or a felony assault conviction arising from a collision. In some cases, a plaintiff may choose to defer any lawsuit until after a criminal conviction because a guilty plea to a serious crime may prevent the defendant from denying responsibility in a later civil case.
If you have questions about a recent collision, in Oregon or Washington, call us at 503-325-8600. We have extensive experience handling serious injury claims.
What does "no recovery, no fee" mean in an Oregon or Washington personal injury case?
Many lawyers, including our office, probably has an advertisement somewhere that claims there is no fee, unless there is recovery for the client. This is a good thing, because it gives people access to an attorney without, in most cases, having to pay any money for the lawyer's fees, or expenses. However, there is more to it than that.
First, most fee agreements, including ours, will make a distinction between "costs" and "fees." Costs are the things that an attorney will spend money on to prepare your case for a settlement demand, or litigation. This can include copying costs, long distance phone calls, paralegal costs, and the cost of obtaining medical bills, charts, and medical opinions. It is always a good idea to get an idea of typical costs. Some, but not all attorneys will "front" costs, meaning they pay the costs as they are incurred. However, other attorneys may want a client to pay a retainer to be held in trust, for use to cover costs, as they are incurred.
The "no recovery, no fee" really refers to the contingent nature of the fee. This means that the fee is contingent upon the attorney recovering money or other compensation for the claim. Only then is a fee paid. However, pay attention to the percentage of the fee, and what number is being used to calculate the fee. In other words, what is considered to be the "recovery" on your case?
We handle most all of our injury cases on a contingent basis, and many times, pay costs up front. To get a clear and full explanation of how our fee agreement works, call us at 503-325-8600.
What happens when my health insurance pays for treatment that is part of an injury claim?
If you are injured in a motor vehicle collision in Oregon, you probably have personal injury protection, which pays medical bills, but only up to a certain amount, and only for a certain period of time. If you have health insurance, it will probably cover these bills, but like your personal injury protection, your health insurance is going to seek reimbursement out of settlement or verdict proceeds.
Before resolving a case, we always make sure we have information about how much the health insurance is seeking for reimbursement. Often times, some of the expensees may be for care unrelated to the injury. There also may be a way to negotiate a discount on the reimbursement, which in some cases, can be significant.
If you have an injury claim and have questions about how medical bills are addressed as part of your claim, call us at 503 325 8600. We answer questions like this every day.
Can I keep my car if it has been "totaled"?
A car is "totaled" when the cost of repair is so close to the car's value, it does not make sense to fix the car. There can be many issues with the repair or replacement of your car.
If your car is totaled, than n most cases, the insurance company will allow you to retain ownership of your car if it has been determined to be a total loss. If you elect to hold onto your car, you will have to submit your title to the Department of Motor Vehicles, and will receive a "branded title." This is a title with a stamp indicating that your car has been declared a total loss. This will obviously affect the resale value of your car.
Some people elect to keep their car for many reasons. They may have the ability or the means to fix the car, or may not want to go through the process of financing a vehicle, and incurring additional debt.
We help our injury clients with property damage issues. If you have been injured in a collision, and also have questions about your property damage claim, call us at 503-325-8600. Even if you're just dealing with a property damage issue, we can provide you free information, and put you in touch with attorneys who handle property damage only claims.
What is Contributory Negligence?
The term "contributory negligence" refers to a defense that is argued in Oregon and Washington negligence and personal injury cases. Essentially, when a defendant asserts a defense of contributory negligence, he or she is alleging that the plaintiff, who is bringing the claim, was at least partially at fault in causing his or her own injury. Both Oregon and Washington allow this defense, but there are some significant differences.
In Oregon, a defendant can allege the defense of contributory negligence. If there is any evidence to support that argument, a jury is then asked to allocate the percentage of fault between each party. In Oregon, if an injured plaintiff is more than 50% at fault, then the injured plaintiff is permitted to make any recovery for her damages. In other words, a defendant in Oregon could be 49% at fault, and if that is the case, then that defendant owes nothing to an injured plaintiff. Of course, there are special rules when there are more than two parties involved in a case.
Washington, on the other hand, is known as a "pure comparative" state. This means that the plaintiff is entitled to recover a pro rata share of the damages based on the defendant's fault. Thus, if a jury found the defendant and Washington only 10% at fault, then the injured Washington plaintiff would be entitled to 10% of any damages the jury decided on the case.
Other states bar any recovery whatsoever if the plaintiff is found at fault, even if it is one or two percentage points.
If you have a question about a comparative fault issue, call us at 503-325-8600. We have experience handling these kinds of issues in Oregon and Washington.
How long does it take to resolve an injury claim in Oregon or Washington?
Next to asking about the value of a case, this is an often asked question, but there are too many factors that allow for a simple answer. Still, there are some factors at play that determine how long you may be dealing with an injury claim.
Ideally, it makes sense to approach an insurance company with a settlement demand after you have completed your medical care, and your doctor is able to provide some opinion as to the nature and extent of your injuries, and your future outlook. It may take a long to time to heal, which will delay the time the demand for settlement demand goes out.
Statute of Limitations
If anything trumps waiting for medical care to wrap up, it is the statute of limitations. The statue of limitations is the time you have to either resolve your case, or have it filed in court. In some cases, a person may be injured, and still treating with their doctors, but because the statute of limitation is approaching, the case will be filed in court.
Different courts have different dockets, or schedules. If a court is really busy, your trial may not be scheduled for some time from the filing date. Also, if a case involves complex issues, it may have to be postponed to make sure that all the witnesses, attorneys, and exhibits will be ready for the trial, which could take several days.
Courts also have statutory obligations to give certain cases priority over other kinds of cases. We have gotten calls the week before the trial letting us know that our case has been "bumped" and that the trial will have to be rescheduled.
Every case requires a person to prove certain issues, like liabiliy, damages, and the relationship between the two. If there is no issue about liability, and the injuries are obvious, then the case may resolve quickly, without much trouble. However, if there are disputes about any issue, then the case could drag out.
Our firm has extensive experience handling a variety of injury claims, and can answer any quesitons you have about an injury claim. Call us at 503-325-8600. If we cannot help you, we will find someone who can.
What is Subrogation?
This is a legally loaded term, so we are going to focus on how subrogation works in personal injury claim. Subrogation occurs when an insurance company or a health plan pays benefits to its insured for losses caused by a third party (someone other than the insurance company and the insured). The insurance company has a subrogation interest in the injured person's claim because that injured person is going to claim losses already paid by a health plan or PIP carrier. An example is probably the best way to illustrate this concept.
I am injured in an auto collision as a result of being rear ended by Careless Driver. My insurance pays my medical bills and a disability benefit. I have been injured. My insurance company and I are in the same boat in that we each suffered a loss. I lost my health, and my insurance company lost money, all as a result of Careless Driver's behavior.
I can make a claim against Careless Driver for all my losses, even if my insurance company covered some of those losses. However, my insurance company, by state law or contract, probably has a subrogation interest. This means that I am required, if I make any recovery, to reimburse my insurance company for the benefits that it provided me.
There are a lot of issues with subrogation, however. If I hire an attorney and incur attorney fees and other expenses to make a recovery, shouldn't my insurance company share in that expense? Also, what if I am partially at fault, say by 20%, and my recovery is reduced by that amount? Does that mean I only have to pay 80% of what my insurance company provided?
A lot of these questions are answered by statute, or by case law decisions, but it gets pretty tricky with federally regulated health plans, or situations where an insurance policy is issued in one state, and an auto collision occurs in another state.
If you have a claim, and you are facing issues about subrogation, or claims for reimbursement from a health care plan, call us at 503-325-8600. We sort these issues out for our clients all the time.
What is Arbitration?
Arbitration is a private trial. Two parties in a dispute may agree that instead of going to a court and proceeding to a trial in front of a judge, or a judge and jury, the better way to resolve the dispute is to arbitrate. Both parties select a person or a panel of people to act as decision makers. The rules of evidence are often relaxed, and each party submits its evidence for the arbitrators to review in making a decision.
Some court cases in Oregon will go to mandatory arbitration, and if either party is not satisfied with the result, he or she can appeal to the Circuit Court for a trial. This is a form of "non-binding" arbitration. Other arbitrations occur as a result of a dispute over auto injury claims, like an Uninsured Motorst claim. If both parties agree, these disputes go to arbitration, and the arbitrators' decision is the final word. There are no appeals, and this is "binding" arbitration.
Whether to file your case in court, or to agree to arbitration is a decision that rests upon many factors. If you are looking at this decision, and have questions, give us a call at 503-325-8600. We have experience taking cases to arbitration, or trial.
What is an Employer Liability Law Claim?
A Little History
The Employer Liability Law, also called the “ELL” first came upon the scene through an initiative in 1910. This statute was passed before Oregon’s predecessor to the modern Workers’ Compensation Statute.
The law applies to employers who conduct projects or work that involved “risk or danger.” The law survives today, despite significant changes to the workers’ compensation system.
To make out a claim under this statute, the injured worker must show that the responsible party was engaged in dangerous or risky work, that the injured worker was an employee for the responsible party, and that the injury resulted from the dangerous or risky work.
There are two kinds of work activity considered “dangerous:”
Any work that is proven to involve risk or danger, and,
Work involving certain structures, machinery, electricity, and dangerous appliances and substances.
Sometimes, violation of an OSHA rule or regulation that results in injury will prove a violation of the Employer Liability Law. This is because the rules are aimed at making the work place safe to protect the worker. Depending on the rule and work involved, violation of the rule will prove the work involved a risk of danger, and that the employer's violation of the rule makes them responsible under the ELL.
Who is Responsible?
The Oregon Workers’ Compensation statute gives employers immunity from lawsuits for an on the job injury, even if the employer is negligent. There is an exception if the employer violates the law that requires it to provide workers’ compensation coverage for its workers. This employer is called a “non-complying employer,” and a worker can use the Employer Liability Law to recover for the loss and harm from an injury on the job.
The other “party” responsible under the statute is known as the “indirect employer.” This is a company or contractor that did not actually higher the worker but was in charge of risky and dangerous work. An indirect employer is responsible for a worker’s injury when the indirect employer is working with the injured worker’s employer on a common project or enterprise. When this happens, the injured worker must show that the two employers, direct and indirect, were working on a common project, the project involved risk or danger, the injured worker was adopted or “intermingled” with the indirect employer, and the indirect employer was in charge of whatever condition at work caused the injury.
Another way to prove responsibility as if the indirect employer controlled the way the work was done, and that control over how things were done caused the workers’ injury.
Who Has The Claim?
The worker injured can recover compensation for their harms and losses. If the injury causes a fatality, the surviving spouse and children may make a claim on behalf of the estate.
Who Does Not Have A Claim?
Generally, an independent contractor cannot make a claim under the statute. Sometimes, figuring out whether a worker on a job site is an independent contractor or an employee is complicated. The main factor courts look at is how much control the indirect employer had over the worker.
One analogy often used to distinguish an independent contractor from an employee is the “house painter” hypothetical. If somebody hires a person to paint their house, and the house painter provides her own tools, decides how to approach the job, and sets the schedule, that painter is probably an independent contractor. However, if a homeowner hires a painter, provides the paint, paintbrushes, ladders and drop cloths, sets the schedule, and directs the house painter, that person is more like an employee. Oregon statute sets out criteria to determine whether someone is an independent contractor, or an employee.
In the workers’ compensation arena, a worker on a construction site with their own Construction Contractor Board license bylaws considered an independent contractor, and even if their work is directed, they may not be able to pursue an Employer Liability Law claim
There Must Be A Connection
Lawyers and judges call this “causation.” There must be a connection between the indirect employer’s failure to take all practical measures to make the workplace safe and the resulting injury. Failing to make the workplace safe need not be the sole cause of the worker’s injury, but it must be a significant factor in the cause of injury. Like many other issues, this may come down to a jury’s opinion after looking at the facts.
Contributory “Negligence” Defense
The statute was amended so an employer can “point the finger” back at the injured worker and argue that the injured worker was at least partially at fault in causing the injury. This is known as “contributory negligence.”
When an employer makes this argument, the employer must prove that the worker was careless, and that the careless behavior contributed to the injury. A jury may decide that the worker was not at fault or may assign a certain percentage of fault to the injured worker. If a jury finds that the injured worker was at least partially at fault, the court will reduce any compensation the injured worker recovers by the injured worker’s percentage of fault. If the jury concludes the injured worker is over 50% at fault in causing their injury, the injured worker can recover no compensation for their losses.
Why Bring an ELL Claim?
There are many advantages in pursuing this claim.
First, it is easier to prove that the employer is responsible because this statute sets a higher standard for the employer to make the workplace safe. Instead of being reasonably careful, the employer must be really careful, and the cost to make things safe is not a consideration. This makes it easier to prove legal responsibility.
In other kinds of “negligence” claims, and injured person cannot bring up the fact that the other party (defendant) fixed the defective or dangerous condition at a trial. In this kind of case, the injured worker can show a jury how an employer fixed a dangerous condition to show that it was the cause of injury.
Another benefit for an injured worker is the compensation available. If someone is injured on the job, and files a workers’ compensation claim, the workers is only eligible for a limited schedule of benefits. The workers’ compensation carrier decides to accept or deny the claim, and even if the claim is accepted, the carrier may deny certain benefits. Although medical expenses and lost income are available benefits in the workers' compensation claim, there is no benefit for pain, suffering, loss of mobility, or other types of "non-economic” damage.
Whether you have a claim under this statute depends on your work, and your relationship to the responsible party. If you have questions, contact us. We can review your case, and let you know your options.
What forms do I need to sign after an Oregon or Washington auto injury?
The answer to this question follows the logic in respose to the question about whether you should give a taped statement. It depends on who is asking for the form, and what it is.
So, for Personal Injury Protection, which is mandatory in Oregon auto policies, and optional in Washington auto policies, you will receive a claims form, and a release to obtain medical and wage information. Fill out these forms to get disability and medical benefits. When asked about how the collision occurred, keep it simple. This is your insurance company working to provide you benefits.
Liability adjusters from the other driver's insurance company will also send wage and medical release forms. Do not fill these out. Shred them. At one point, you may want to provide the liability adjuster with documentation of your claim, but do not give them the ability to poke around your medical history, especially for things that have absolutely nothing to do with your injuries. If you have ever really read those releases, you will see that they are very broad, and this does nothing to help your case.
The same goes for other forms, like a form asking for a list of your doctors, or anything that asks for a description of the collision.
If you have questions about this or any other issue on your case, call our office at 503-325-8600. We deal with these issues every day.
Should I give a recorded statement for my Oregon/Washington injury claim?
Why Insurance Adjusters Take Recorded Statements
After an auto collision, any adjuster that contacts you for a recorded statement wants to know about the collision and your. The topic of discussion depends on the adjuster involved, so let's go through the roster of adjusters to learn what they are looking for, and whether you actually need to talk.
Your Insurance Adjuster
If you are an Oregon insured driver injured in an auto collision, you have a no-fault insurance coverage on your policy called "Personal Injury Protection," also known as "PIP." PIP coverage provides medical, disability, domestic services, and child care benefits, depending on the severity of your injuries. If you are insured in Washington, PIP is an optional coverage.
Should you give a recorded statement to your PIP adjuster?
The short answer is yes. This is because your auto policy is an agreement, and part of that agreement requires you to cooperate with your insurance company so that it can process your personal injury protection benefits claim. Here are a few reasons your insurance company often takes a recorded statement:
- Your insurance company and you are in the same legal "boat," at least at the beginning. You have both suffered a loss. Your loss is more serious because it involves your health, and could be life changing. Your insurance company is suffering a business loss because it is paying your medical expenses, and sometimes disability benefits because of someone else's careless behavior. Your insurance company can seek reimbursement from the at fault driver's insurance carrier for the benefits it paid to you or your doctors. But, like you, your insurer must prove that the other driver was at fault, and the careless behavior caused the need for medical care and disability you suffered.
- Your insurance company must pay medical benefits for accident related injuries. It may want to find out your medical history to make sure that the medical care you are seeking is accident related, and not due to some other medical problem you may have already been dealing with. Again, you must reasonably cooperate with your insurance carrier, and if you intentionally withhold information about past medical issues or injuries, it could risk your access medical benefits, and it could destroy any chance of making a successful claim against the other driver's insurance company.
Remember that your insurance company's right to take a statement does not mean it can harass you or abuse the process. If you feel that a question is completely out of order, you can politely refuse to answer the question, or ask how the question is relevant to the claim. Many insurance adjusters will back down when they know that you know they are crossing the line.
Your insurance company may also have to process a claim for uninsured or underinsured motorist benefits. This claim arises when the other driver who injured you has no insurance at all, or not enough to cover all the harms you suffered. In these situations, your insurance company is jumping into the shoes of the insurance company for the uninsured or underinsured driver. The policy still calls for reasonable cooperation, so as the insurance contract probably says, you must give a statement. This gets more complicated because now your insurance company and you are across the legal fence from each other.
The Other Insurance Adjuster
Unlike your own insurance company, the other insurance company is in a "legally adverse" position to you. What does that mean? It means they are on the other side of the lega fence. Their interests and your interests are at odds. You want to be fully compensated for your losses, and they want to pay you as little as possible.
You must assume that giving a statement to the other driver's insurance adjuster will almost never help your case. A big part of the Oregon auto injury case is what you say to people along the way, including the police, your doctors, and an insurance adjuster taking a statement. At one point, the adjuster or the attorney for insurer will look long and hard at all the statements you made along the way, and look for inconsistent stories. It could be something you say about your symptoms or how the injury is affecting your activities.
So, do you will remember exactly what you said to some adjuster days after your collision, and be able to recite that exactly at deposition? Probably not. Insurance companies and their attorneys will try to make you look like you are changing your story, when in fact you just don't remember an event that happened several months ago.
This is just one example of how an insurance adjuster may try to hurt your auto injury claim. It rarely makes sense to give a taped statement to the liability carrier, especially if a police report that tells the adjuster what happened, and who is at fault. Liability adjusters are trained to get you make statements that can be later used against you. Does this happen all the time? No, it does not, but it happens enough for me to say don't do it.
Here is the exception to the general rule. You want to get your car fixed or replaced, and if the other driver's insurance company is willing to repair or replace your vehicle, you will have to communicate with them at some point. We are usually not involved in this stage of the claim. However, if you find yourself dealing with the property damage, you are usually talking with a different adjuster, and there is nothing wrong with limiting your discussion to getting the car fixed or replaced.
If You Do Give a Statement
We have agreed to make our client available for a statement because we decided it was the best thing for our client under the circumstances. However, before giving a statement, we prepare our client so they can give an honest and accurate response to all the questions posed. So, here are the four "rules" we always cover when preparing our client for a statement.
Rule No 1: Be Honest
We do not spend much time on this, except to say that if you violate this rule, you are killing your case and losing your lawyer. After several years working as an attorney, I can still say that most people are honest, and this is almost never an issue.
Rule No. 2: Answer the Question
It sounds simple, but people are often nervous when giving a statement, and rightfully so. It is not something you do every day. Some people talk a lot when they are nervous. If you talk too much, the statement will take lot longer than it should, and your answers may be confusing. Just answer the question that is asked, and nothing more. If the adjuster wants more information on the topic, they will ask you.
Rule 3: Don't Guess
This is the most often violated rule. Most people want to help, and when giving a statement, sometimes feel they are being tested. This is not a quiz. You are only responsible for what you actually know and remember. If you are not sure, tell the adjuster you are not sure. If you can give an estimate, give an estimate. If you do not remember, then that is the right answer. Do not give an answer just because you can. The big problem with guessing your answer is that you may guess incorrectly, and it could be made to look like you are violating Rule No. 1 (tell the truth) when you are not.
Rule No. 4: Take Your Time
This is actually two rules. Taking your time means listening to the whole question before your answer it, making sure you understand the question, and if you do, taking the time that you need to give a responsive answer. If you are not sure about the question, ask the adjuster to rephrase the question. Then, once you know the question, there is nothing wrong with taking the time you need to think about and provide your answer.
One more thing:
Many of our clients have already given a statement when they come in to see us for the first time, and it's usually not a big deal. If there is a mistake, or misunderstanding, we can address it. But, there are cases where a mistake filled statement makes it hard for us to help our client. So, we hope this article helps you.
What Will The Adjuster Ask?
The adjuster will ask about how the collision or injury occurred, and your injuries and medical care.
Some adjusters will want your Social Security number, claiming that they need to report your claim to Medicare to make sure Medicare is not paying accident related expenses. We do not believe that insurers must do this.
Insurance companies like to run your Social Security number through claims index data base to see if you have filed other claims in the past. The insurer may go deeper with background checks. We do not give out Social Security numbers.
Questions? Contact Us.
If you have a serious injury claim, and you are not sure about who you should talk to, contact us. We can help you know where to stand, and if your case is the kind we handle, we can work with you to get the best possible result.
Who pays my medical bills after an Oregon auto collision?
Your Auto Policy Steps Up First
If you have been involved in an auto collision in Oregon, the first place to look for medical coverage is your own auto policy. If the policy is issued in the State of Oregon, then we know you have "personal injury protection" coverage also called "PIP." This is a no-fault medical benefit that will cover necessary medical care related to your Oregon auto collision injuries up to the coverage limits or within two years from the collision, whichever is reached first.
You may be in a collision where there is no personal injury protection claim. For example, Washington insurance statutes do not require insurers to sell personal injury protection to all motorists. When this happens, we often look to see if there are any auto policies in your household. Sometimes, an auto policy and your household will pick up or cover medical expenses under the personal injury protection coverage.
Here are basics on PIP coverage:
You need to file a PIP application, and sign an authorization so the insurance company can obtain your medical records. Here are other facts about PIP coverage:
The PIP is "no fault," so even if you are at fault, you are covered;
You are covered if you are a passenger;
You are covered if you are driving another person's car with their permission;
There are other benefits available, like disability, domestic care expenses, and child care;
The $15,000.00 is the minimum required coverage. There may be higher coverage
Another possible scenario involves pedestrian injuries. Unlike injuries to people riding or driving cars, the personal injury protection coverage for injured pedestrians does not come into play unless there are no other sources of health care coverage (like health insurance) to pay medical expenses.
Bottom-line: the first order of business is to find coverage for your medical expenses so you can worry about getting better, and not medical bills.
When Auto Policy is Not Enough
We have seen many cases where our client is seriously injured, and before they even reach the hospital (Life Flight), they have used all their auto policy medical coverage. In those cases, we look to our client's health care plan to cover additional expenses. In some cases, the hospital will choose not to bill the health care plan, but instead files a lien on the case, making sure that it is paid directly from any settlement or recovery you obtain from the at fault driver. When that happens, we work directly with the hospital to negotiate payment of the liens, sometimes obtaining a significant discount of the claimed amounts.
How Are Medical Expenses Handled With a Claim Settlement or Recovery?
When a claim is resolved by settlement or recovery at a trial or arbitration, you need to account for the medical expenses paid by your auto insurer or health plan. This is because Oregon law generally requires that out of any settlement, you to reimburse your auto policy for medical benefits it paid. Health plans will almost always include the same requirement. But remember, these are only general rules, and there are exceptions. Also, the law is always changing, so you should know your obligations before agreeing pay health plans or your auto insurer out of any money you recover from the other insurance company.
Medicare and The Oregon Health PlanMedicare and the Oregon Health Plan are government sponsored health insurers, and both require that you report your claim and any settlement of the claim. These agencies will calculate, based on their rules, how much you need to pay out of any settlement for health benefits you provide. Generally, the government sponsored health plans are not as flexible with negotiating reimbursement, but it does occur.
We have handled many cases for people with serious injuries and significant medical expenses. If you have questions about medical expenses related to your Oregon auto injury claim, contact us. We can help you know where you stand.
Do I need to tell Medicare about my personal injury claim?
If you are enrolled in Medicare, and Medicare is paying accident related bills that are part of your personal injury claim, then you must report the claim to Medicare, through their contractor, Medicare Secondary Payer Contractor, also called MSPRC. This is becuase Medicare is like any other health plan, and is entitled to be reimbursed out of any settlement or recovery on a personal injury claim for the benefits its provided.
Some insurance companies feel that every person who has a personal injury claim must report to the MSPRC, but that is not the consensus. This probably stems from the fear that Medicare is able to seek reimbursement from several parties, including the insurance company, even if the injured Medicare beneficiary does not reimburse Medicare out of settlement proceeds. Medicare can also pursue reimbursement from the beneficiary, and her attorney. It is good practice to keep Medicare in the loop.
This system has been criticized over the years for several reasons, but there have been efforts to make working with the MSPRC more user friendly.
We have handled several cases involving Medicare reimbursement, and if you have a question on this topic, give us a call at 503-325-8600.