Oregon Injury Attorney Blog

It has been a tough week for workers in Oregon. Last week, the Oregonian reported a fatal workplace injury involving a cleaning contractor who fell into an industrial meet processing blender. The State of Oregon OSHA is investigating the cause of the accident.

On Monday, a highway flagger was struck by a vehicle on Highway 101 between Warrenton and Seaside. Details regarding the worker's condition are still developing.

These two accidents involve issues of Workers' Compensation and "third-party claims." The family who lost their loved one in the meat processing plant accident may claim death benefits under the Workers' Compensation Act. The surviving family members may also have a claim for wrongful death against the meat processing plant because the worker was not an employee of the meat processing plant, but worked for an independent contractor hired to clean the facility. This makes the processing plant a "third party," hence the "third party claim."

This claim would be brought under the Oregon wrongful death statute. The statute provides that a personal representative for the estate may pursue an action against the responsible party. The personal representative would have to show that the meet processing plant was somehow negligent in causing the accident. The pending OSHA investigation will have a lot to do with determining who or what caused this accident. If the personal representative is successful in establishing liability, the personal representative can make a claim on behalf of the estate for "pecuniary loss." This type of loss involves the earnings and support that the deceased worker would have provided to his family. Typically, we use economists to calculate and estimate this type of loss. The second loss the personal representative can claim is compensation for the loss of society and companionship with family members. This is the value of the loss of a family member and their contribution to the family unit.

The injured highway flagger is also covered under the Worker's Compensation statute if he or she was in the course and scope of their employment when the injury occurred. The Worker's Compensation claim includes payment of medical expenses, a disability benefit, permanent partial disability benefits, and possible vocational rehabilitation.

The injured flagger may also have a third party claim against the motorist who caused the injury. Again, the injured flagger will have to show that the motorist was responsible for causing the collision. If the injured flagger proves responsibility, or "negligence," then he or she will have a claim for past and future medical expenses, past and future lost wages, and a claim for compensation for the loss of his or her health.

One parting thought. It is hard to imagine how somebody could leave some of the comments appearing in the Oregonian article. I guess its price we pay for the right to free speech.

A Third Party case occurs when you are hurt on the job, but someone other than your employer or a co-worker causes an injury. For example, let’s say you are running an errand for your boss. You are driving back to the job, and some other driver runs into you, and injures you. Then, you have a workers’ compensation clam because you were on the job, and you were hurt. But you also have a claim against that person who ran into you. These are called Third Party Claims.

When you have a third party claim, both you and the workers’ compensation carrier have suffered a loss. You have lost your health, and the workers’ compensation insurer is out money. Because of this, there are special rules that give the workers’ compensation carrier some say in what happens on your claim against the other party.

First, you have to decide whether you are going to pursue the claim, or if you want to leave it up to the Workers’ compensation carrier to pursue the claim for you. This is referred to as Third Party Election. I cannot think of a reason why you would turn the claim over to the Workers’ Compensation carrier, unless you are going to have a hard time proving the other party was at fault, or that you were actually injured.

If you chose to pursue the claim on your own, then you have to keep the Workers’ Compensation carrier informed, and you have to make sure that they are in agreement with any settlement proposals. In some cases, the Workers’ Compensation carrier will agree to taking less than it paid in benefits.

There are lots of rules dealing with this area of the Third Party claim, and if you have a significant injury, and lots of medical bills, it is a good idea to confer with an attorney before resolving the case.

Did you know that if your Oregon Workers Compensation Claim is accepted, you are entitled to be reimbursed for travel to and from your doctor or other health care provider, meals, and even in some cases, lodging?

Many of the injured workers I help come in to see me after the claim is accepted, and have never, or very rarely, asked for reimbursement. With fuel costs where they are today, it adds up.

The Oregon Workers Compensation Division recently issued a new Bulletin setting out the reimbursement rates, and updating the form.

Here is the link that takes you directly to the new reimbursement schedule: http://wcd.oregon.gov/policy/bulletins/docconv_12819/bul_112.pdf

The State Of Oregon recently observed Workers Memorial Day in an effort to recognize workers killed on the job. I knew nothing about this observance. It's on April 28th, which is the date Congress enacted the Occupational Safety and Health Act, or OSHA. In Oregon, 87 workers died on the job in 2006. I do not see the statistics for 2007 and 2008 on the Oregon OHSA website. Nationwide, more than a million workers are injured in America every year, and almost 5500 died in work related accidents in 2007. Logging and fishing are the most dangerous, so in Oregon and Washington, we get more than our share of worker fatalities.

After rattling off a bunch of statistics, I realize that the whole purpose the Worker's Memorial Day is to put a face on all the workers that are killed and injured each year.

In 2005, new statutes changed the way injured workers are paid permanent partial disability. "Permanent Partial Disability," also known as PPD, is the benefit that an injured worker receives a result of her loss of earning capacity. "Earning Capacity" refers to the person's ability to do different kinds of work. I often describe it as many doors of opportunity closing as a result of a permanent disability. There are experts, vocational counselors, that can actually put a dollar value on a person's lost earning capacity. However, with Oregon Workers' Compensation, the PPD benefit often does actually reflect the value of an injured worker's loss of earnings capacity.

The new PPD law and rules allocate PPD for the "whole person" and "work disability." Work disability is paid when the injured worker is unable to return to "regular work." Whether an injured worker has returned to regular work is often an issue we fight over. In one case, my client returned to the same job title, but was doing a whole lot less then before his injury. Even though he retained the same job title, and pay, the Workers' Compensation Division agreed that my client did not return to regular work, and he was awarded work disability.

The Workers Compensation Board is defining what "regular work" really means. For example is the loss of overtime due to physical limitations an inability to return to "regular work?" We shall see.

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.

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.

For quite a few years, Oregon Workers Compensation insurance companies have been using a tool to deny claims mid-stream, leaving many injured Oregonians without the resources they need to return to work, or train for another occupation.

It's the combined condition denial. For about ten years or so, Oregon Workers' Compensation law allows an insurer to deny claims when a "pre-existing condition" combines with an on the job injury, and the pre-existing condition becomes the main cause of the injured workers' need for treatment. Sounds crazy? A lot of doctors will confide to me that there is no way to know when two medical conditions combine. A lot of injured workers have a hard time understanding how some finding on an x ray that never caused any pain is now responsible for their medical problem months after a serious on the job injury.

There are options, however. An injured worker can appeal a combined condition denial, and sometimes can argue that the two conditions never combined, or that there was no pre-existing condition. We review claims files looking specifically at these issues.

I often receive calls from an injured worker that go something like this:

"I received some paper work from the insurance company. They want me to sign this and send it back to them. It says I will get a check, and they told me that I will be covered for medical treatment for the rest of my life. What should I do?"

Like everything else, it is not that simple. If you boil it down, Oregon Workers' Compensation is a statute, and a set of rules. An injured worker's rights begin and end with those rules. One area the rules cover is settlement, and I want to give a brief summary of the kinds of settlements available in the Oregon Workers' Compensation system. The key here is to be careful.

The first type of settlement is a claims disposition agreement, also called a "CDA." This settlement applies to claims that are accepted. This means that the insurance company has taken responsibility for a certain medical condition, and is providing benefits for that specific medical problem from the on the job injury. If you agree to a CDA, you are selling all of your benefits, except for the medical services benefit. A lot of people think that the medical care is guaranteed, but it is not. Instead, you are keeping the right to make a claim for medical care, and the insurance company could decide to deny your request for medical care down the road, long after the case is settled. You can appeal any denial of medical care, but the point is that there are no guarantees.

What you are giving up by signing a CDA is all the other benefits. That includes time loss, permanent partial disability, and vocational benefits. So, if a few years after your settlement, you need a surgery, AND, the insurance company agrees to pay for it, you get the medical bills paid, but you are not paid for your time off work. CDAs may be a good option, but you have to consider your future, and the value of the benefits you are giving up.

The second settlement in Oregon Worker's Compensation is a disputed claims settlement, also called a "DCS." This is for claims that are denied. For example, you may file a claim for an on the job injury, and for a number of reasons, the insurance company may deny that claim. After you file your request for hearing, the injured worker and the insurance company may want to settle. With a DCS, the injured worker is agreeing to let the claim denial stand, but in exchange for payment of money. When I evaluate a settlement offer like this, I consider the value of the benefits you would enjoy if you won at the hearing, as well as your chances of prevailing at the hearing. Unlike the CDA, all you get in a DCS is payment of money. As far as medical expense, disability, and job training, you are on your own.

The one nice thing about these settlements is that Oregon Workers' Compensation law requires that the State of Oregon approve these settlements. That provides some safeguard for the injured worker. Also, if you have an attorney, the fee is regulated by statute as well. Still, you need to approach settling these cases with caution. Once you sign on the dotted line, that's it.

Oregon injured workers often contact me near the end of their workers' compensation claim when they receive a Notice of Closure. Some workers will call and tell me that the insurance company wants to "settle up" on their on the job injury claim. A Notice of Closure is an important event in the workers' compensation process. Here is a brief primer.

When you are injured on the job in Oregon, your workers' compensation carrier provides medical services, and disability benefits. At some point, your treating doctor will decide that you are "medically stationary." This means that the passage of time or more medical care is not going to significantly improve your condition. Depending on the type of injury you suffered, the insurance company will close your claim when your doctor finds that you are medically stationary. This is done with a Notice of Closure. A lot of things happen with this Notice of Closure.

First, the insurance company is deciding that you are no longer eligible for medical care aimed at curing your condition. You may still be able to get some continuing care, but generally, it's not the kind of care aimed at a full recovery. Second, the insurance carrier is deciding whether you are entitled to a "permanent partial disability" benefit. This is a benefit designed to compensate an injured worker for his or her permanent loss of earning capacity as a result of the on the job injury. It is a cash benefit determined by results of a medical examination, and a doctor's opinion. This also may be the time where the insurance company evaluates whether you are eligible for vocational benefits. This is a benefit that may provide job training to get an injured worker back to work making the same money she made before her injury.

If you are confused by a Notice of Closure, you can give us a call for a no charge consultation. Often times I will review your claims file just to make sure you are getting all the benefits you deserve.

When I review an Oregon Workers Compensation file the first time through, I always try to find what I consider the most important document in the claims file; the Notice of Acceptance. In this document, the insurance company is required to state what exactly it thinks your on the job injury is. Why is this so important? The insurance company, in accepting a certain medical condition, is defining how much, and what benefits you are entitled to.

Many times, my workers compensation clients will have suffered a more serious injury, like a torn knee ligament, or a low back disc injury. However, when you find the notice of acceptance buried in the file, you find that the carrier is only accepting a knee strain, or a minor low back strain. This is a problem.

A lot of injured workers do not know that the insurance company is not accepting full responsibility. The statute and the rules provide that the insurance company can pay for more medical care than what it is actually responsible for without consequences. I remember a case where my client underwent major back surgery only to find out that all of the problems the surgeon addressed were denied, along with his right to re-training and permanent impairment benefits.

The good news is that you can challenge this notice of acceptance, and demand that the insurance company take full responsibility for the injury you suffered. We have fought many claims like this, and are happy to review your file to make sure you receive the benefits you are entitled to.