Introduction
This is a paragraph by paragraph summary of our Oregon Workers' Compensation fee agreement. The good news is that you can hire an attorney without any up front fees. And, the attorney earns a fee only with a successful result. In most cases, the insurer pays the fee.
It’s All Regulated
Oregon Workers’ Compensation is a statute requiring employers to provide workers’ compensation benefits to injured workers. Just about everything in this system is regulated, and that includes how attorneys get paid. In this article, we explain our fee agreement.
Common Themes
Our fee agreement covers all the possible disputes that may arise and provides how we are paid. There are two common themes throughout the fee agreement:
1. We Only Get Paid for Positive Results:
The workers’ compensation fee agreement is a “contingent” fee agreement. This means we are only paid if successful in pursuing an issue on your behalf. The statute requires that an attorney be “instrumental” in getting a positive result before any fee is payable. If we do not when or get a positive result on your claim, there is no fee.
The only other way we are compensated on the case is if we negotiate a claim settlement. There are two claims settlements in workers’ compensation, and each provide that we are paid a percentage of the overall settlement amount.
2. All Fees Must Be Approved:
Regardless of the issue we pursue, somebody from the State of Oregon must approve our fee. If we overcome a claim denial, and Administrative Law Judge or the Oregon Workers’ Compensation Board decides the fee. If we increase a permanent partial disability award, the Appellate Review Unit applies regulations that set the fee. Most fees are based on our time dedicated to the issue, and the nature of the outcome.
If a claim is resolved by settlement, the settlement agreements are provided to the Oregon Workers’ Compensation Board, or an Administrative Law Judge for review and approval. The settlement agreement is reviewed to make sure it complies with rules, and only upon approval our settlements paid out.
Current Rules Determine Attorney Fees
The statute and rules on attorney fees are amended occasionally. Our fee agreement provides that any fee earned on pursuing a workers’ compensation issue is governed by the rule in effect when we succeed in pursuing an issue for our client. Again, someone from the State of Oregon applies the rules to determine the attorney fee.
Overcoming a Denied Claim
If we succeed in getting a denial set aside after a hearing, the Administrative Law Judge that reviewed the case will determine our attorney fee. The attorney fee is paid directly by the insurer, and is based on several factors, including the case’s complexity, our time dedicated on the case, and the value of the benefits obtained for our client.
We can also recover any costs we advanced in pursuing an appeal of a denied claim. Many claim denials are based on medical opinions. We frequently confer with treating doctors to obtain opinions regarding the cause of an on-the-job injury. We also obtain medical records and other documents to support the claim. We can recover costs we incur in overcoming a denied claim, which includes the cost of expert witnesses and obtaining medical records and other evidence supporting the setting aside of a claim denial
Time Loss (Temporary Total or Partial Disability)
“Time loss” is also called “temporary total” or “temporary partial” disability. This is the wage replacement benefit for an injured worker. If we succeed in obtaining additional temporary disability benefits for our client, the Administrative Law Judge reviewing the dispute determines our fee. If the dispute is decided on appeal, the Workers’ Compensation Board or the Oregon Court of Appeals may decide the fee.
Permanent Partial Disability
“Permanent Partial Disability” is a benefit provided when an injured worker sustains a measurable permanent impairment in their ability to perform work activity. There are two permanent partial disability benefits; “whole person impairment” and “work disability.” The regulations require insurers to consider closing examination findings and “social and vocational factors” to determine permanent partial disability.
If we appeal a Notice of Closure’s permanent partial disability determination, our fee is 25% of any increase in the permanent disability award. Sometimes, our client may recover a penalty if there is a significant increase in the permanent partial disability award on appeal.
Claim Reclassification
Claim “classification” is a description of how a claim is accepted. Claims are divided into two categories: “non-disabling” and “disabling.” If a claim is incorrectly classified as “non-disabling,” the insurer need not file a Notice of Closure and may be avoiding its responsibility to pay permanent partial disability benefits. An injured worker can seek review of the claim’s classification within one year from the date the claim is accepted. If we help an injured worker appeal claim classification, an agency official, Administrative Law Judge or Court will determine how much the insurer will pay for our attorney fee based on the factors set out in the rule.
Medical Service Disputes
Medical Service is the benefit that covers medical treatment for the on-the-job injury. An insurer may deny a medical benefit because it believes the treatment is unnecessary, or it may conclude that the treatment is not related to the accepted medical condition. When we appeal and win a medical services dispute, our fee is paid directly by the insurer, and is based on our time dedicated to resolving the issue.
Unreasonable Delay or Refusal to Pay Benefits
If we can show that an insurer unreasonably delayed or refused to pay the whole or any part of a claim, the State of Oregon will order the insurance company to pay our attorney fees.
Penalties
Insurers can be penalized for unreasonable claims processing. This includes denying a claim with no “legitimate doubt” on whether its work related. If an Administrative Law Judge or the Workers’ Compensation Board awards penalties, penalties go to the injured worker. The Judge or the Board will also order the insurer to pay an attorney fee.
Claims Settlements
There are two claims settlements in Oregon Workers’ Compensation; disputed claims settlements and claims disposition agreements. Many claims are resolved with both kinds of settlement agreements. The attorney fee on a disputed claim settlement or claims disposition agreement is 25% of the first $50,000.00 of the settlement proceeds and 10% of any recovery beyond $50,000.00. There are other disbursements that come out of settlement agreements including outstanding medical expenses and costs in pursuing a claim. The Administrative Law Judge or Board member reviewing settlement agreements must also approve attorney fees.
Oral Statements Requested by The Employer or Insurer
When an insurer is investigating a claim during the deferred status period, it may require that you submit to a recorded statement. A recent amendment to the statute allows for attorney fees so you can have a lawyer present when you give a statement. The attorney submits a fee petition to the insurer and is paid according to a fee schedule set out in the rules.
“Own Motion” Claims
“Own Motion” claims are claims to reopen older workers’ compensation claims closed for more than five years. These claims can include a claim to add a new medical condition or to reopen an already accepted claim because the condition has gotten worse. Insurers must pay attorneys who obtain these benefits.
Other Provisions
We also include a provision that allows our client to cancel the agreement within twenty-four hours after signing the agreement. We may also resign from a case if we see no viable options to pursue issues for the client.
Questions
If you have questions about whether you should have an attorney on the case, or how I our fee agreement works, contact us. You may not need an attorney, but we help you know where you stand.
