Insurers Decide Claims, But You Can Appeal
Oregon Workers' Compensation is a private insurance system. This means that the employer is either self-insured, or purchases an insurance policy from a commercial insurance company to provide workers' compensation coverage.
If a worker is injured on the job, he or she files a claim with the workers' compensation carrier. The insurance company that may pay the benefits first decides whether not to accept or deny the claim. If the claim is denied, the injured worker can file a request for hearing appealing the denial, but has the burden of proving that the insurance company should cover benefits for the on-the-job injury. Lawyers like to call the job of proving the claim the "burden of proof." There are different burdens of proof in Oregon Workers' Compensation claims, which can make a big difference on your case. This article summarizes some of the different burdens of proof injured worker's face in obtaining benefits.
The Injury Claim
The first kind of claim is the "injury" claim. An "injury" claim is an on-the-job injury that occurs over a discrete period of time. An obvious example is a fall injury or a severe and sudden lifting type injury. Sometimes, there is a big issue as to whether a particular injury on the job happened in a sudden and discrete fashion. For example, there is one case involving a warehouse worker who suffered low back pain after unloading trucks over a two week period. The Court of Appeals found that this was a discrete enough period of time to classify this type of claim as an "injury claim." Why is this such a big deal?
When a claim is evaluated under the "injury" standard, then the injured worker need only prove that the injury event was a significant factor or a material contributing cause of the need for treatment, or resulting disability. In other words, the relationship between the on-the-job injury and the need for medical care must be significant. It can be a factor in causing the need for treatment, but not the only factor. If we were to put numbers on this standard, we would estimate that an injured worker would have to show that the on-the-job injury is roughly a third or more of the reason he or she needed medical care.
The Occupational Disease Claim
Another kind of workers' compensation claim is an "occupational disease claim." These kinds of claims involve medical conditions that occur over a period of time, and are due to exposure to some environmental factor at the workplace. For example, if somebody is working in a noisy plywood mill year after year, and eventually suffers occupational hearing loss, that is a occupational disease. Another common example is a repetitive use injury to the hands or wrists, like carpal tunnel syndrome or epicondylitis (tennis elbow).
If a worker has an occupational disease claim, the injured worker must show that the environmental factors at work are the "major cause" of the occupational disease. When we talk about major cause, we mean that the injured worker must show that the work activity or environment is the dominant cause of the medical condition when compared to all other causes. So, to put numbers on this burden of proof, we would say that the injured worker has to show that the work activity or work environment is more than 50% of the reason the injured worker developed the occupational disease. This can be challenging, especially depending upon the particular medical problem at issue.
Occupational disease claims become even more challenging if there is a pre-existing condition involved. When we use the term "pre-existing condition," we mean some condition that existed prior to the injury. We commonly encountered the pre-existing condition of osteoarthritis. So, if somebody is working at a job that requires repetitive use of their hands or wrists, and they develop a need for treatment, and x-ray may reveal that the injured worker had some long-standing osteoarthritis. If the osteoarthritis is the main focus of treatment, the injured worker must not only show that the work activity is the major cause of the need for treatment, but must show that the repetitive hand use or other environmental factors at work caused a pathological worsening of the pre-existing condition. That leads to the question of what we mean by "pathological worsening."
"Pre-Existing Conditions" Exist in Workers' Comp. Too
A "pathological worsening" means that there has been some objectively verifiable worsening of the pre-existing conditions. For example, if somebody has degenerative joint disease in her knee, and she requires treatment of the degenerative joint disease after climbing up and down ladders at her job, that injured worker may have to show that something in the knee has actually gotten worse, like an increased tear, or other increased damage to the joint structures in the knee. This can be challenging because x-rays and MRIs may not be able to visualize what's actual pathological worsening. We often also run into issues where a radiologist will see the imaging study one way, an insurance retained orthopedic physician will see the imaging study in another way.
A similar challenge occurs when dealing with "combined condition" claims. These are claims where the injury event combined with some pre-existing condition to cause a need for medical care or disability. A pre-existing condition in this context occurs when the injured worker has had medical problems in the same area where the injury occurred, or suffers from "arthritis," which in this setting, means an inflammation of the joint structure. If an injury event combined with the pre-existing condition, it is up to the employer to show that there has been a combining, and the combined condition will be covered as long as the injury event remains the major cause of the need for medical care or disability. If the insurance company feels that the injury event is no longer the major cause of the need for medical care of the combined condition, the insurance company can deny the claim, but must prove that the injury event is no longer more than 50% of the reason the injured worker needs medical care, or is disabled from work.
These cases can become complex, depending upon the kind of injury the injured worker is dealing with. If you have a workers' compensation claim, and you just don't think everything is being covered like it should, contact us. We can review your case, and let you know if you have any options. Under the Oregon Workers' Compensation statute, the insurance company, not you, pays our fee only if we overcome a denied claim.