Oregon Injury Attorney Blog

There are lot of ways people get hurt at work. Some are obvious, others are not. In Oregon, the Workers' Compensation statute provides for an occupational disease claim. This is a claim where the injured worker suffers some condition or disease due to substances or activities that the worker is not usually exposed to.

A recent study published in the journal Environmental Health Perspectives provides a good illustration of what is involved with an occupational disease claim. This study showed a strong relationship between exposure to diesel fuel and lung cancer, especially for short run truck drivers. Researchers studied job records of several workers employed in 1985, and tracked those who died through the year 2000. A large percentage of those who died had lung cancer. Apparently, the risk of cancer grows with every year a worker is exposed to the fumes.

This study was good enough to change the emission standards for these trucks, but is it enough to help a worker exposed to fumes with a workers compensation claim? As always, it depends. Workers' Compensation law is based in state law, so each state has its own statute, and each statute its own standards.

There are a couple of things to point out here. First, there is a potential issue about which employment caused the problem in the first place. Truck drivers, like a lot of people, move from employer to employer, and from state to state. When did most of the exposure take place, and with what employer? These questions are important because they may determine which state law applies, or which employer is responsible.

Second, in Oregon, exposure to fumes over time probably falls into the definition of an occupational disease claim. An injured worker would have to prove that exposure to diesel fumes was the major cause of her cancer when compared to all other causes combined. This is a strict standard, and a supporting medical opinion is vital. If the worker smoked, or has some other lung condition, it's just that much more to sort out. Claims of this nature present potential challenges.

Anyone applying for social security disability benefits knows that the process is a long road. In Oregon, the first step is to provide medical information to the Oregon Department of Disability Determination services, also known as DDS. DDS then sends out requests for medical records. Sometimes that get the records, and sometimes they do not. This can often cause a delay, or even worse a denial for lack of information.

In effort to streamline the process, Social Security will be participating in an electronic medical records system called the Health Information Exchange (HIE). This system claims to provide a seamless connection between hospitals, doctors, and other entities. Social Security will be the first government agency to use the system, beginning in 2009. Of course, the disabled worker must first consent to use of the electronic system.

Most of what I have read about the new system was published by the Social Security Administration and the vendor providing the technical support, so the predictions are quite optimistic. Will it make a difference? Obviously, it's too early to tell, but with the way things are with disability determinations, any change is welcome.

Long ago I read an article in a professional journal about insurance contracts, and how they are written. The basic point was that insurance companies will intentionally make the policy language ambiguous. When I say "ambiguous," I am not trying to sound like a fancy pants. In the legal world, something is "ambiguous" when it can be read two different ways, and both ways are reasonable. Why make something unclear?

It's pretty simple. Insurance is traditionally regulated by the states. Each state has its own insurance code, and an agency that enforces the insurance laws. If an insurance company is in one state arguing what a term in its own policy says, it can make a completely opposite argument in another state. Keeping things unclear makes that a lot easier.

Some states are better than others about regulating insurance. I would pick Washington over Oregon because in Washington, a policy holder can seek a remedy against the insurance company if it acts in bad faith. Oregon allows the consumer to report a violation to the state, but court remedies are more limited.

The Houston Chronicle recently reported on a case involving a fatal office building fire that killed three people. Great American, one of the insurance carriers, is arguing that the victims were killed by smoke, which is "pollution," and since liability for pollution is excluded in the policy, then there is no coverage.

As a recently elected official stated, this is a "teachable moment." First, if you are in the market for insurance, consider the fact that building owner, who had the insurance with Great American, disagrees with this position. Second, if you do buy insurance, take the time to wade through the exclusions. Third, it's a darned good thing to have the right to take an insurance company to court to enforce it's own policy if it is going to get this "creative."

The State of Oregon has great web resources, and here is another. The DMV gives you step by step instructions on your legal responsibilities after an auto accident. Boiling it down, you must stop at once, give help, exchange information, and report the wreck to the DMV.

A lot of insurance companies will give their policy holders a card with some of these instructions. One instruction says not to admit fault. This always bothered me somewhat, because sometimes it's obvious. However, there are times when a motorist may think she or he caused an accident, when in fact something else was going on around them that contributed to the wreck. It's probably good advice not to admit fault at an accident scene.

Getting information is key. If a police officer is at the scene, she will give the drivers a form to fill out, and this contains all the information that you will need. I have had cases where no information is exchanged, or if it is, it's not enough, and we will end up hiring an investigator to track down the responsible party.

After the accident, you should always file an Oregon Accident report. The State of Oregon requires reporting to enforce its mandatory insurance law, and to keep track of accidents that happen within Oregon. It's also a good idea to contact your insurance company right away, whether you are at fault or not.

The Associated Press reported recently that the United State Supreme Court has denied an appeal from contractors who worked at the Hanford Reservation, possibly opening up claims on behalf of Eastern Washington and Oregon residents exposed to radiation decades ago.

According to the article, several companies served as government contractors during the Cold War and the Manhattan Project. The contractors released radiation during the 1940's, but no public disclosure was made until 1986. Since then, "downwinders" have been fighting in the courts for compensation related to thyroid cancer and other health problems from the radiation.

The government contractors argued that because they were working on a government project, they are "immune" from any liability, but the arguments were rejected. There are several cases pending in Spokane, and some of the lawyers involved hope that the federal government may step in to offer compensation with a new administration coming into Washington D.C.

Government "immunity" is not a new argument. State and Federal governments have long enjoyed "sovereign immunity," which prohibits suits against the government. However, the federal government, through legislation, has given citizens limited permission to file suit against the government. There are exceptions, and limitations, but suits are possible.

Sometimes, a government contractor will argue that because it was performing some sort of governmental function, it should be treated like the government, and enjoy the same protections. This is an interesting area of the law for some lawyers because governments, both state and federal, are contracting out a lot of their jobs.

Expect some developments on this case in the next year or so.

Oregon motorists all over the state are struggling with the cold weather and the icy roads. Tillamook County made a horrible discovery where a young woman lost control of her car, left the road, and plunged into the Nestucca River. She did not survive.

There a few things we can all do to reduce the risks of winter driving. Common sense is a good place to start. If you do not have to make the trip, then stay home. If you do, travel during the day, when you can see where you are going. Tell someone you are headed out, especially on a longer trip. Bring your phone, and make sure it is charged. Take the safer route, not necessarily the shorter route. Make sure you have your chains, and throw a blanket and some food in the car in case you are going to be sitting for awhile, and of course, fill your tank.

Whenever we plan a trip over to the Williamette Valley, we use Oregon ODOT's Trip Check. This website is great. It gives you up to the minute road conditions, weather warnings, and in some spots, you can even look at video showing actual road conditions. Be safe this holiday season, and be sure to use Trip Check.

Oregon Workers' compensation laws covers exposure to toxins or fumes, and a recent study from the Journal of the American Medical Association documents another potential hazard: bug bombs. One case involved a man on the job who went into a building to disarm a smoke alarm after setting off a bug bomb. He ended up in the hospital.

In Oregon, if a worker is exposed to fumes or dust, and it causes a disability, or the need for a trip to the doctor, there may be a claim under the workers compensation statute. It's called an occupational disease claim. However, the injured worker has to show that the exposure to the chemical, whether its from a bug bomb, paint, or some other chemical, is the major cause of the need for medical care. Often, employers and their insurance companies will look at other contributors to a breathing problem, like smoking, already existing asthma, or some other factor. This can make a claim complex and difficult to prove.

Often times, I spend a lot of time educating the doctors about the legalities of the workers compensation system so that doctor can make an informed opinion about what is causing a medical problem. Doctors often educate me about how these problems come about in the first place. If you have a denied claim, it's a good idea to have an attorney review your claims file to make sure you know all your options.

The Oregonian recently issued an editorial urging the Social Security Administration to focus more on reviewing existing disability claimants for fraud and abuse, mainly because it saves the agency a lot of money. Generally, I agree, but first things first.

As I have described in a recent post, there is a huge backlog at Social Security, with people waiting over two years to get a hearing in front of an Administrative Law Judge. One of the hardest things that I have to do is tell some homeless person with serious health problems that they are going to have to wait another year before they even get a hearing. I had one case where my client was living in the Oregon Coast Range in an unheated trailer with no plumbing or electricity, and the Social Security Judge found that this person was not suffering enough to get a hearing scheduled on an expedited basis. Maybe there are others worse off, and if so, it only underscores the gravity of the problem.

We have to root out fraud, and review cases, but to punish the worthy even more so we can catch the fraudulent is simply inhumane. Apparently, the disability review program is profitable. This means that for every buck the agency puts out to stamp out fraud, it saves almost $12.00. That sounds like a good investment for Congress, and not a bailout.

Some of my most serious cases over the years involve brain injuries and amputation injuries. Even after a long road of rehabilitation, everything changes. I recently read an article reporting on a recent study in Oregon offers hope to the brain injured and amputees. Researchers studied a man who had lost his hand for several years, and then underwent a hand transplant. Months after the transplant, brain scans showed that the newly transplanted hand was reclaiming the area of the brain responsible for controlling the hand. The consensus until now is that nerve injuries seldom forgive, and never forget. This recent discovery challenges that notion, and hopefully offer new strategies for treating serious brain injuries and limb transplant recipients.

The Washington Post recently reported on recent arguments in front of the United States Supreme Court involving a large verdict against Phillip Morris. About ten years ago or so, a widow of cigarette smoker filed a law suit against the tobacco company, claiming that Philip Morris mislead her husband about the hazards of cigarattes, and contributed to his death. The jury agreed, and as part of its verdict, awarded the widow $80 million in punitive damages.

Punitive damages are unique. Unlike compensatory damages, which are designed to make up for or compensate for harms a negligent party causes, punitive damages aim to punish a person or company for bad behavior, like fraud, or criminal activity. In this case, the bad behavior was the tobacco company's misleading smokers about the health risks involved in using cigarettes, among other things.

Punitive damages are not common. Most cases that make a claim for negligence mean are basically saying that the defendant was not careful, or that the defendant was careless. In order to make a case for this kind of claim, a plaintiff needs to prove that the defendant's behavior far exceeded what is socially tolerable. A criminal act, like drunk driving, will get you there, but blowing a stop sign will not.

The fight in this case is whether a verdict ordering someone to pay $80 million dollars as punishment for misleading a person about the health risks of its product is unconstitutional. Twice the Oregon Supreme Court has found the verdict appropriate, and some think that this time, the US Supreme Court may take the matter into its own hands. Stay tuned.

Many of my Social Security Clients are veterans, and many of those are disabled. In a lot of cases, the only health care available for vets is the VA Hospital in Portland. There is a clinic at Camp Rilea, but in a lot of cases, any real treatment requires a trip to Portland.

The Oregonian reported some good news for Vets recently. A new clinic is opening in Hillsboro, and there are plans for clinics in Oregon City, The Dalles, and a part time clinic in Lincoln City. Hopefully, this will ease some of the long wait times to get proper care.