The Lost Income Claim in Oregon and Washington
This article looks at options for recovering lost income if you are involved in a personal injury claim in Oregon or Washington. Many of the ideas we offer are common to both states, but the laws differ somewhat.
We are focusing on auto collision claims in this article, but a lot of the information offered here includes claims arising from on the job injuries, logging accidents, or premises liability cases (slip and falls).
No matter the state, you have a claim against the careless person and their insurer for your lost income when the injury disables you from work. However, the at fault person's insurer is not necessarily required to pay your lost income as it occurs. Obviously, this is a big issue, and when we work with a client, one of our first tasks is to look for claims you can make to recover disability benefits while you are off work and recovering.
Get It In Writing
No matter what state law covers your auto injury claim, lost income claims require proof. Insurance companies love documentation, and even when you provide it, the insurer will look for holes in the lost income claim. Proving lost income involves the following:
1. A Medical Opinion
You must show that the injuries suffered in the auto collision caused disability from work. Physicians will often write a note for our client. In more serious injury cases involving hospitalization, the proof is pretty clear, but when presenting the claim, it is wise to have a doctor confirm how much the injury affected your ability to work.
2. Proof of Income
You must show that you were employed when the injury occurred to prove a claim for lost income. You may have been scheduled to start job, and if you can document the future employment, you still have a claim. We will often seek verification of employment and past earnings records to determine what our client would have earned but for the injury and disability. This can become quite involved depending on the type of employment involved. There are shift differentials, and multiple wage codes in some professions.
Self employment income loss brings its own challenges. Our client the business owner may show lost income in having to increase expenses in running a business, or determine the net profit a business would have earned but for the injury keeping them from opening their "shop" for a period of time. Sometimes, there are lost business opportunities the injured business owner cannot take on while disabled from running their business. Depending on the extent of lost income for a business owner, an expert like an accountant may be necessary to document all the losses.
Auto Injury Disability Benefits
If you were injured in a auto collision in an Oregon insured car, then you have personal injury protection coverage, also referred to as "PIP." Among other benefits, Oregon PIP coverage includes a disability benefit if your physician takes you off work for at least fourteen consecutive days and you were gainfully employed at the time you suffered your injury. This is "no fault" coverage, meaning you do not have to prove anyone was responsible for causing your injuries, just that you were in the car, suffered an injury, and were disabled for two weeks. Even if you do not miss a full two weeks of work, you still have a lost income claim against the at fault driver and their insurance carrier.
Disability benefits under the Oregon PIP claim cover 52 weeks of disability. You may only miss a few days of work immediately after a collision, but later undergo surgery that keeps you out of work for several weeks. That will be covered if the surgery is related to an injury suffered in the collision. There is a monthly cap on the income benefits with an Oregon PIP claim, currently at $3,000.00.
If you recover Oregon PIP disability benefits, your insurance carrier can seek reimbursement for the benefits it paid directly from the at fault driver's insurer, or seek reimbursement from you after you recover from the at fault driver's policy.
Washington auto insurance laws do not require insurers to include personal injury protection benefits in every policy, but require that the benefits be offered. Washington PIP benefits include medical and hospital benefits, and wage loss of up to $200.00 per week (total amount $10,000), but only for disability within one year of the collision. The benefit, like Oregon PIP, is payable after fourteen days of consecutive disability. There is an option to increase coverage up to $35,000.00, paid at $700.00 per week.
Other Disability Policies
Because auto insurance disability policies in both states have coverage limits, you may have to look elsewhere to recover your lost income.
Your employer may have paid time off benefits ("PTO"), or you may have an employer sponsored disability plan. These plans will pay benefits after you have disabled from work for the minimum required time. Just like your auto disability claim, your doctor must verify your disability. Most disability plans will send a form for your doctor to complete that asks specific questions about your medical condition.
Credit Card or Creditor Benefits
You may have purchased disability benefits with a creditor, like a credit card company or the company that finances your car purchase. Sometimes, these insurance policies will pay a lump sum benefit, or will take over payment of the loan. These policies are restrictive, and usually have tight deadlines. If make a claim for this coverage, you need to contact the bank or credit card company as soon as possible to find out if you qualify for these benefits. Just like all other disability benefits, there are documentation requirements.
If you are injured on the job, you may have a workers' compensation claim. Each state has its own workers' compensation system. In Oregon, you are generally entitled to a temporary total disability benefit that will cover two thirds of your "average weekly wage." Washington Labor and Industries claims have a similar benefit. In any claim, documentation is a must.
In both Oregon and Washington, if someone other than a co-worker or your employer causes your disability, you have a claim against the at fault person, but must reimburse the workers' compensation carrier, or in Washington, the Bureau of Labor and Industries, for the disability benefits it provided. There may be some cases where you can negotiate the reimbursement amount.
Social Security Disability
Finally, if you are looking at a permanent disability, you should consider applying for Social Security Disability benefits. There are two kinds of Social Security disability. One is known as Social Security Disability Insurance, or SSDI, and the other is Supplemental Security Income, also referred to as SSI. Regardless of which benefit you apply for, you must show that you are disabled, which essentially means that you are not only unable to perform your prior work, but any other jobs that exist in the national economy. If you are over 50 years of age, there may be some jobs you can still do, but you would still be considered disabled. Also, your disability must have lasted or be expected to last for twelve continuous months.
SSI benefits are based not only on your disabled status, but your financial needs. An injury settlement may be considered a "resource" that makes you not eligible for the benefit, but with careful planning, you may be able to place settlement funds in a "special needs trust" that allows you to still be eligible for SSI disability and medical coverage.
Future Lost Earnings and Earnings Capacity
These are two different things, but they are related.
If you are permanently and totally disabled because of someone's carelessness, you can claim not only your past lost income, but the income you would have earned but for your disability. You may not be totally disabled, but may need to still make adjustments in the work you can do. You can still claim the difference between what you would have earned had you not been injured, and what you will earn because of your partial disability. In cases like this, a medical opinion and an economists' input are probably critical in making the claim.
Future lost earning capacity is a little different. This is not a claim that you would have earned a specific amount out into the future because you were disabled from a specific job. Instead, when making a future lost earning capacity claim, you are putting a value on the loss of your future ability to work. This is where a vocational counselor can help with putting a value on this loss.
Got A Question? Contact Us
Still have questions? Contact us. We handle issues like this every day, and can explore all options with you. If we take on the case, there is no fee unless we make a recovery in your favor.