September 8, 2017

FAQ About Workers' Comp Benefits

Frequently Asked Questions (FAQ) About Oregon Workers' Compensation Claim Benefits

One of the most common questions I get about workers' compensation benefits is whether there is a right to pain and suffering for a workers' compensation claim.  Here is an explanation of all the benefits available and not available when you have an accepted claim.  Unfortunately, pain and suffering is not one of them...

What Benefits Will I Receive For My Workers' Comp Claim?

Time loss:

If you miss work for your workers' compensation claim, you will be entitled to time loss.  This is basically missed wages.  However, it is not your full, normal wage amount.  Time loss is two thirds of your average weekly wage, tax-free.

Permanent Impairment (PPD):

If you have permanent physical limitations due to the accepted work injury, you will be entitled to some financial compensation.  It is based on limitations such as range of motion loss, sensation loss, and surgery.  It is calculated based on the amount of the limitation using a statutory calculation sheet.  Your attending physician decides what your permanent impairment is.

Work Disability:

If you cannot return to regular work due to your injury, you will be entitled to a one-time financial payment for this "work disability."  It is based on how disabled you are physically, how much you made at the job at injury, your age, and education level.  Your attending physician decides if you can return to regular work or not when your treatment is finished.

Vocational Retraining:

If you cannot return to regular work due to your injury, your company can offer you a permanent modified position.  But, if they are unable to do so, you will be evaluated to determine if you are entitled to vocational retraining.  The idea is that you should be able to go back to work in a job that pays at least 80 percent of the wage of the job at injury.  If you have a significant handicap in returning to work that pays at that level, you will be eligible for vocational retraining paid for by the insurer.

Medical Treatment:

Your medical treatment will all be paid for as long as it is related to an accepted claim.  The treatment must be for the actual accepted condition (i.e., lumbar strain), not other conditions even if they affect the same body part.

Return to Work:

You are entitled to return to your job at injury within 3 years of the work injury as long as you are released to regular work by your attending physician.  After three years your company can fill the position with someone else.

What Benefits Are Not Available in a Workers' Comp Claim?

Pain and Suffering:

There is no pain and suffering available in workers' compensation claims in Oregon.  The closest to this is the permanent impairment award addressed above.  Workers' comp covers the very basics for your claim, with nothing extra.  This can be frustrating because injured workers often experience a lot of problems other than missing work (being unable to do hobbies they enjoy, help with their children, etc).

Full Pay:

A company could pay your full wages while you miss work for an injury, but in practice, no employers do this.  You will just receive your time loss wage which is a little less than your normal pay.

Lifetime Benefits:

There are no lifetime benefits for injured workers.  (There is one exception for permanent and total disability but this is for very serious injurious such as full paralysis, loss of legs, etc.) So, at some point you will be declared medically stationary by your attending physician and the claim will be closed.  You will get the above-mentioned benefits, but there will be no ongoing payments, even if you cannot return to the job at injury.

Right to Sue:

There is no right to sue your employer for negligence for the causation of your injury.  Workers' compensation is what lawyers call an "exclusive remedy."  This means if you are hurt at work your only option is to file a workers' compensation claim, not a personal injury lawsuit, even if your employer is at fault.

If you have more questions or you think you are not being paid the benefits you are owed under a claim, feel free to call for more questions.  We always do free consultations!  (503) 975-5535

August 14, 2017

Occupational Disease Update

Occupational Disease Claims in Oregon Workers' Compensation

In general, an occupational disease is something that develops over time.  The most common examples are carpal tunnel syndrome and hearing loss.  Stress claims are also considered occupational diseases, even when related to a single event.

The burden of proof for an occupational disease claim falls on the injured worker and their attorney.  The injured worker must prove their work is major contributing cause of the diagnosed condition.  This means the injured worker must prove that his or her overall employment (from their whole life) is the major contributing cause (greater than 50 percent) of the occupational disease.  For example, if a truck driver developed hearing loss, it would be their burden to prove that their employment over their lifetime is the greater than 50 percent cause of the hearing loss.  This burden can be difficult to prove and it is generally harder to prevail on an occupational disease claim than an injury claim.

The good news is that all employment can be counted toward the claim.  This includes any military service and self-employment.

Deadline for Filing of Occupational Disease Claims in Oregon Workers' Compensation 

The statute of limitations for an occupational disease claim is one year from when a doctor first informs the worker their condition is related to their employment.  This does not mean that getting hearing aids from Costco triggers this deadline for a hearing loss case.  But, if an ear, nose and throat doctor told an injured worker five years ago that their hearing loss was work-related, the deadline to file the claim would be passed.

June 6, 2017

When Will I Get My First Time Loss Check?

When Will I Get My First Time Loss Check?

I get this question a lot when someone calls with a new workers' compensation claim.  The answer is pretty straightforward.

The workers' comp insurer should issue your first time loss check 14 days from their receipt of the claim as long as there is some indication you have work restrictions.  The following needs to happen for the first time loss check to issue:

1.  You file a workers' compensation claim (you can do this through your employer, your doctor, or a lawyer).

2.  Your doctor gives you work restrictions for the work injury.

The insurer must issue your first time loss check within 14 days of the above two things occurring (and the insurer receiving the related paperwork).  Your time loss should be about 66 percent of your average weekly wage, tax-free.

It is also important to know you will need to see your attending physician every 30 days for updated work restrictions in order to receive time loss.  This means your actual doctor must sign off on the work restriction, not a physical therapist, chiropractor, or physician's assistant.

Your time loss will then continue to be issued every 14 days as long as you have work restrictions.  However, if your claim is denied, time loss payments will end.

Time loss will continue to accrue while the claim is denied as long as you continue to see your attending physician every 30 days and continue to have work restrictions.  If you win an appeal of your denial, you will then be owed all this back time loss.

If you think your time loss is not being paid correctly, or if it is regularly being paid late, you will need an attorney to contest the time loss payment and try to get you a penalty.

If you have any questions, call me directly at 503-975-5535 for a free attorney consultation.

February 3, 2017

Responsibility Denial in Oregon Workers' Compensation - What is a Responsibility Denial?

Responsibility Denial in Oregon Workers' Compensation - What is a Responsibility Denial?

When an Oregon workers' compensation claim is filed for an occupational disease, occasionally a responsibility denial will be issued by the insurance company.  To understand why, first recall that an occupational disease is a condition that is caused by the lifetime of work.  This is as opposed to an injury, which is caused by a single, discrete event while working for a single employer.

One of the most common occupational diseases is hearing loss.  A valid hearing loss claim is established by proving the major cause of your hearing loss is your lifetime of employment.  In other words, you do not need to prove that any single one of your employers caused the hearing loss, just that your overall employment did.  This also includes time in the military which Oregon considers employment.

Because of this, it is common that multiple employment periods contributed to the disease claim.  The claim should be filed against the last employer where it is possible there was some contribution to the disease.  For hearing loss, this would be the last employment where there was noise exposure.

Sometimes, the insurer will then issue a denial called a responsibility denial.  It will say something along the lines of: "we are issuing this responsibility denial because we are not the responsible employer or injury for your hearing loss.  We advise you to file claims against other potentially responsible employers."

This type of denial is essentially the insurance company saying: we acknowledge you have a valid claim, but we think a different employer or insurer should pay for it so you need to join them.

If you have a responsibility denial, you will need an attorney to help you appeal the denial and join the other potentially responsible employers.


August 10, 2015

Should I Appeal a Denial of a Oregon Workers' Compensation Claim?

Should I Appeal a Denial of my Oregon Workers' Compensation Claim?

The short answer is YES.

The long answer...

So, you filed a workers' compensation claim in Oregon, and have now received a denial letter from the insurance company.  The letter will say something along the lines of:

                Dear Ms. Doe:

                We are unable to accept your claim for an injury to your low back because evidence does                     not show it was related to your employment.  This denial is based in part on an Independent                 Medical Examination (IME).  Your attending physician has not commented on the IME.

                TO APPEAL THIS DENIAL DO THE FOLLOWING.....ETC ETC

Why Was My Workers' Comp Claim Denied?

There are several reasons a claim is denied.

First, the insurance company is hoping you will not appeal the denial.  This reason has nothing to do with whether you have a good claim or not.  The insurance company denies lots of claims and not all of them are appealed.  So, it is good math for the insurance company to issue denials of claims that are totally valid as some of them will never be appealed.

Second, the employer told the insurance company you made up the injury.  Often employers are annoyed or even angry when a workers' comp claim is filed. They react by telling the insurance company to deny the claim.  However, this does not mean that it is true, just that the insurance company has bad facts.  The truth will come out when you appeal the denial.

Third, the IME doctor says your injury is not work-related.  Often, while investigating a claim, you will be sent to see an IME doctor who works for the insurance company.  That doctor is basically hired to give the insurance company a reason to issue a denial.  Most of the time the IME doctor will offer an opinion that your injury is not work-related.  The insurer will then issue a denial.  Again, this does not mean you do not have a perfectly valid workers' comp claim.

Fourth, the medical evidence is iffy.  Sometimes it is actually a close call as to whether your condition is work-related.  This happens when you had a prior injury to the same body part or have developed a condition that might be hereditary (such as hearing loss).  Again, this does not mean that you cannot win your claim, just that the insurance company wants to fight it.

Statistics

Of all the denied claims that are appealed, most are settled for lump sum dollar amounts before a hearing ever takes place (I would estimate about 80 percent of appealed denials).  The rest go to a hearing before a workers' comp judge and about half of those are won by the claimant (injured worker).  Taking these statistics into account, it is almost always very worth it to appeal a denial of your workers' comp claim.

Will Appealing a Denial Cost You Anything?

No.  You will need an attorney, but workers' comp attorneys in Oregon must work on contingency.  This means the attorney is not paid unless you are.  In most cases, the fee does not even come out of your benefits, it is paid directly by the insurance company in addition to your workers' compensation benefits.

How Do I Appeal My Workers' Compensation Denial?

Get an attorney within the 60 day deadline.  You will need an attorney to help you file the appeal and to represent you in battling the insurance company for your benefits.

As always, if you have more questions or would like assistance with a denied claim, call my office for a free attorney consultation.   (503) 975-5535

June 24, 2015

Time Loss in Oregon Workers' Compensation

How Much Time Loss Will I Get?

If you are missing work because of a workers' compensation claim, the insurer should be paying you time loss.  The time loss rate is 2/3 of your average weekly wage, tax-free.

Example:  If you work 40 hours per week at $10 per hour, you average weekly wage is $400 and your time loss rate is $268 per week.

How to Calculate Average Weekly Wage for Time Loss

Your average.weekly wage is the average wage you earned (before taxes) in the 52 weeks prior to the work injury.  If you worked less than 52 weeks, it is the average of the weeks you did work.

However, if you have worked less than 30 days for a company when you are injured, the average weekly wage is based on what you would have expected to earn.  This is because it is common for the first few weeks of a job to be training and less hours than normal and you should not be penalized for that.

Break in Earnings

If you had a break in your earnings in the last year, that period should not be counted against you for purposes of calculating your average weekly wages.  Examples of breaks include leave for pregnancy or other medical reasons, a prior workers' comp claim or other similar reason.

How Often Should Time Loss be Paid?

Every 14 days.  The insurer should pay time loss within 14 days of receiving your first work restrictions.  They should continue to pay you every 14 days as long as you are off work.  If you are working light duty or less hours, they should still pay you every 14 days to make up the difference.

What Do I Do if my Time Loss Rate is Wrong or the Insurer is not Paying Every 14 Days?

Talk to an attorney.  There are penalties available for late payment of time loss (even if it is only 1 day) and for having the time loss rate wrong.  However, you will need an attorney to help you file a Request for Hearing to get the penalties.

If you have any more questions or think you need help with a time loss issue with your workers' compensation claim, call for a free attorney consultation.  (503) 975-5535.

June 9, 2015

What is an MCO in Oregon Workers' Compensation?

The Role of MCOs in Oregon Workers' Compensation Claims

So, you have just received a letter from the insurance company saying you are now in an MCO (Managed Care Organization).  The letter says you must now choose a new provider from their list.

You are rightly wondering what is going on and what this means for your workers' compensation claim.

Will I have to change my attending physician?

Maybe.  If your current attending physician is within the MCO network, you will not have to switch.  If your attending physician is not in the network, you must switch unless they have been your primary doctor from before your work injury.

What if I can't get in to see one of the doctors on the MCO list?

This is a common problem and is extremely frustrating.  The best thing to do is to e-mail the claim adjuster explaining the problem and listing the doctors you have tried to reach.  Continue to use e-mail to communicate so there is a paper trail showing that you cannot get it to an MCO doctor.  The adjuster should help you get set up with a new doctor.

Tip:  Continue to see your original attending physician until you get in with a new doctor so that your time loss is continuous.

April 7, 2015

Changing Workers' Comp Doctors (Attending Physician) in Oregon

Can you change your workers' compensation doctor?

Yes, up to three times.

Can you choose your workers' compensation doctor?

Yes, unless you are placed in an MCO (Managed Care Organization).

It is important to remember your workers' comp doctor is called the "attending physician."

What is an Attending Physician?

An attending physician is the primary doctor for a workers' compensation claim.  They are basically the go-to person for all your medical needs.  They coordinate your care under your workers' compensation claim.  The attending physician is the only doctor who can give you work restrictions, refer you to specialists, and prescribe you physical therapy or chiropractic visits.  The attending physician is also the only person who can declare you medically stationary and rate your permanent impairment.

Who Can be an Attending Physician?

Only M.D.s and D.O.s can be attending physicians for Oregon workers' compensation claims.  Often, at the beginning of a claim, an injured worker will initially treat with a physician's assistant, a nurse practitioner or a chiropractor.  This is okay for the first 30 days, but after that you must have an actual M.D. or D.O. as the attending physician.  After 30 days, any work releases or medical treatment by a physician's assistant, a nurse practitioner or a chiropractor will not be covered under your workers' compensation claim.  It is therefore very important to establish with an M.D. or D.O. as your attending physician as soon as possible after you are injured.

How to Choose an Attending Physician?

This is most often done by completing an 827 Form at the doctor's office.  This will designate the physician as the attending physician.  There is a specific box that can be checked on the form called "Change of Attending Physician."

How Often do I Need to See My Attending Physician?

You should have an examination with your attending physician every 30 days while your workers' compensation claim is open.  You should maintain this schedule even if your claim is denied.  The reason for this is that you must see your attending physician to renew your off-work notes every 30 days to keep them valid.  Even if you claim is denied and you are not receiving time loss, if you win an appeal of your denial, the insurer will have to pay back time loss for every period it was authorized by your attending physician.

Attending Physicians and Time Loss

In order to receive time loss, you must see your attending physician and obtain a new work note (with work restrictions or a no-work note) every 30 days.  Only your attending physician can authorize time loss.  Off-work notes from your physical therapist, a specialist, a chiropractor or a nurse practitioner are not sufficient to authorize time loss under Oregon workers' compensation laws.

Attending Physicians and Claim Closure 

At some point in your claim you will become medically stationary.  This simply means that you no longer need active medical treatment.  It does not necessarily mean that you are fully healed.  It just means that you are about as healed as the doctor can get you.  It is up to the attending physician to declare you medically stationary.  They can indicate in a regular chart note that you are medically stationary, or they can concur with another physicians's opinion that you are medically stationary.  This second scenario often happens if you have an IME exam and the IME doctor says you are medically stationary.  If your attending physician agrees, he will indicate so and this counts as he or she declaring you medically stationary.

When an injured worker is medically stationary, the attending physician must determine if there is any permanent impairment related to the accepted conditions and, if so, how much.  Often the attending physician performs a closing exam to makes these determinations.  It is also common for the insurer to schedule a closing IME which the attending physician will often concur with.  Either scenario meets the information requirements for claim closure.

When an injured worker is medically stationary, the attending physician is also the person who determines if the injured worker can return to the job at injury.  If the injured worker cannot return to the job at injury, the potential workers' compensation benefits increase substantially.  This is another reason why the attending physician is so important to an Oregon workers' compensation case.

March 31, 2015

Frequently Asked Questions (FAQ) About Hearing Loss Claims in Oregon

If you are reading this article it is because you have work-related hearing loss and are wondering about filing a workers' compensation claim in Oregon.  You also probably have a lot of questions and no one who can answer them.  Or, if you are like me, your spouse is so tired of hearing about workers' compensation, they fall asleep every time you bring it up...

Well, I am here to help! Here is a list of the most frequently asked questions about hearing loss workers' compensation claims in Oregon:

1.  I am retired - so how do I file a claim?

If you are retired, you can't just waltz into an HR office to file a workers' compensation claim.  Sometimes, your company may even be out of business or merged by the time you realize you have hearing loss and that it is probably related to loud noise at work.  The answer is that you file through your doctor's office.  Legally, you have a workers' compensation claim when a doctor determines you have some injury (hearing loss) that can be related to exposure (noise) at work.  You then complete an 827 Form at the doctor office.  The doctor office is required to send the form in to the insurance company and to the Workers' Compensation Division.

If your doctor does not want to file the claim or does not know how, you can do it yourself.  If you get into this situation, I recommend you contact a lawyer or the Oregon workers' compensation ombudsman to help you determine the correct insurer to send the form to.

2.  How long do I have to file a claim?  Is there a statute of limitations?

Yes, there is a statute of limitations (a deadline) for filing a hearing loss claim under Oregon workers' compensation law.  You have one year from the first date a doctor (an M.D./ENT, not an audiologist) tells you your hearing loss is work related.  For example, if you went to an ENT doctor last month and they told you your hearing loss was related to noise at work, you have 11 more months to file a claim.  However, if you had a hearing test ten years ago at work and the audiologist or technician told you your hearing loss was related to noise at work, your deadline has not begun ticking away.  The deadline is only triggered by a medical doctor's opinion or chart note.

3.  What benefits will I get?

You will be entitled to hearing aids for life at $7,000 per pair every 5 years.  Your other medical costs, (doctor visits, hearing tests, etc) will also be covered.  You will also be entitled to a permanent impairment award for your permanent hearing loss.  This is calculated based on your age, sex, and how great your hearing loss is.  It is a lump sum dollar amount awarded under the law to compensate for your permanent hearing impairment.

Permanent impairment is something that is often calculated incorrectly and if you have questions about a permanent impairment award (which is included with your Notice of Closure), I recommend you ask an attorney to review it.  (I am happy to review permanent impairment awards for free - just give me a call!)

4.  Will my claim be accepted or denied?

Probably denied.  Many hearing loss claims are initially denied because they can be difficult to prove.  The older you are and the longer you have been retired, the more likely your claim is to be denied.

5.  My claim is denied, what should I do?

Call a lawyer.  You will need a workers' compensation lawyer to help you appeal the denial and fight the insurance company.  The good news is that it will cost you nothing to have a workers' compensation attorney.  Oregon law requires the insurance company to pay your lawyer's fee if the lawyer helps you overturn a denial.  The fee does not come out of your benefits.

6.  The insurer told me another insurer is responsible - what do they mean?

A responsibility denial means the insurance company thinks a different insurance company is responsible for your workers' compensation claim.  Often, companies have different workers' compensation insurance carriers over the years, or you may have worked for different employers throughout your career.  Either way, an insurance company can try to move the claim to another insurance.  If you receive a responsibility denial, you will need a workers' compensation lawyer to help to fight it and file claims against the other potentially responsible insurers.

If you have any more questions, feel free to call me at (503) 975-5535 or comment on this post.  Consultations are always free!

March 4, 2015