December 19, 2013

Can I Choose My Own Workers' Compensation Doctor?


Importance of Attending Physician

Your workers' compensation doctor is extremely important for the smooth processing of your workers' compensation claim.  You will need to establish with a primary physician who will be your "attending physician."  This doctor will be the one to refer you to specialists, prescribe physical therapy and other treatment, and provide your work restrictions.  The attending physician also decides when you are medically stationary and what permanent impairment, if any, you have when the claim is closed.  These are all very significant benefits which is why it is so important to have a supportive and responsive attending physician.

An attending physician must be a medical doctor (M.D.) or a doctor of osteopathy (D.O.).  A nurse practitioner (NP or FNP) or a physician's assistant (PA) cannot be the attending physician.  It is common that you will be treated by a nurse practitioner or  physician's assistant when you first go to a medical clinic.  In fact, it is common that the clinic will not even clarify the type of provider you are treating with.  If you are unsure, just ask.

Under Oregon workers' compensation laws you can receive treatment and work restrictions from a nurse practitioner for the first 30 days of your claim.  If your fist few visits were with a nurse practitioner, don't panic.  But, plan to transfer care to an actual physician as soon as possible.

However, the official attending physician must be an M.D. or D.O. so it is best to establish with one as soon as possible.  I would recommend you request treatment by a doctor at your first appointment for this reason.

Choosing Your Workers' Compensation Doctor

Oregon law absolutely protects your right to choose your own doctor.  This means that you do not have to go to your employer's in-house medical facilities or to any place recommended by your employer.  You can choose to be treated by whomever you wish.  If your employer drives you to a specific clinic or tells you where to seek treatment, they are not following the law and you do not have to have treatment there.

Only you get to choose where to seek treatment!

You also do not have to treat with a provider in your private insurance network.  For example, if you have Kaiser insurance through your employer you do not have to go to Kaiser for your workers' compensation claim.  You can treat wherever you wish for your workers' compensation claim.

Can You Switch Attending Physicians?

Yes.  You can have up to three attending physicians throughout your claim.  So, if you are unhappy with a physician or need to switch to a different type of doctor, you can do so.  For example, it is common that you may begin treating with a general practitioner, but switch your care to your surgeon if you need surgery.  The surgeon would then be the attending physician.

You can have more than three attending physicians if there is special need.  For example, if your attending physicians retires, moves out of state, of dies, you would be able to have a new attending physician.

How is an Attending Physician Designated?

The most common way to designate an attending physician is via an 827 Form.  This is a form completed at the doctor's office.  It is also the same form used to file an initial claim, file an aggravation, or file a new medical condition claim.  There is a place where you or the doctor can check "change of attending physician."  This form is submitted to the workers' compensation insurer who then knows to look to your new doctor for work releases, etc.

However, an attending physician can also be established based on the record. So, if no 827 Form was completed, but you are regularly treating with a doctor for your claim and they are providing work releases, it would be determined as a matter of fact that the doctor was your attending physician.

August 26, 2013

Can I Sue my Employer for my Workers' Compensation Claim?

I have often been asked if an injured worker may sue their employer for their workers' compensation claim.  In other words, can an injured worker sue their employer for negligence in causing their injury?

The short answer is no.  Under Oregon law, workers' compensation is an "exclusive remedy" and is "no-fault."  "Exclusive remedy" is a legal term that means it is the only legal remedy under the law.  When an employee is injured in Oregon their only remedy (i.e., legal option) is to file a workers' compensation claim.  On the other side, all Oregon employers must provide Oregon workers' compensation coverage.  Basically, the State has decided that it will require all employers to carry workers' compensation insurance.  In exchange, injured workers cannot file lawsuits against employers - they can only go through the workers' compensation system.

"No fault" means that it does not matter if there is fault in the causing of a workers' compensation injury.  For the employer, this means it does not matter if they were negligent or there were dangers in the workplace that caused the injury.  For the worker, this means that it does not matter if the worker was negligent (i.e., not paying attention or not following correct safety procedures).  Simply, it does not matter what caused a work injury in Oregon.  Once there is an injury, the worker may file a claim and it will be covered under the employer's workers' compensation insurance no matter who or what was at fault.

There is one small exception to these rules.  If an employer is egregiously at fault, there is very, very rarely an allowance made for an injured worker to pursue them outside the workers' compensation system.  An example would be an intentionally harmful act by the employer (i.e., the employer actually intended to harm the employee) or very extreme recklessness (the employer knowingly sprayed a dangerous chemical on an employee's work station).

When to File a New Medical Condition Claim in Oregon Workers' Comp

When to File a New Medical Condition Claim in Oregon Workers' Comp

What is a New Medical Condition Claim?

A New Medical Condition Claim is a written request to the workers' compensation insurer to expand the scope of acceptance to include a new condition.  Oregon workers' compensation claims are always accepted for a specific condition or conditions.  A New Medical Condition Claim is appropriate when the specifically accepted conditions do not properly encompass the true diagnosis or medical problem.

For example, a worker may have a fall at work and file a workers' compensation claim.  They receive an Initial Notice of Acceptance indicating the claim is accepted for a "low back strain."  However, an MRI scan tells the worker that he or she really has a herniated disc.  At this point, a New Medical Condition Claim requesting the acceptance of the "herniated disc" would be advisable.

Why File a New Medical Condition Claim?

The injured worker will want the herniated disc diagnosis included in the acceptance.  The insurer is only responsible for paying workers' compensation benefits (such as time loss and medical costs) for the accepted condition(s) so it is very important that all the diagnoses be included in the acceptance.

Who Can File a New Medical Condition Claim?

Usually an injured worker's attorney or doctor files a New Medical Condition Claim, although the worker may do it themselves.  If you think you need to file a New Medical Condition Claim, I would recommend you seek the advice of an attorney.  It can be tricky to file correctly and an attorney will guarantee it is done properly for each omitted condition.

How to File a New Medical Condition Claim

A New Medical Condition Claim must be sent to the insurer in writing (e-mail is okay).  It can be done via letter or with an 827 form through the attending physician.  Again, I would recommend you retain an Oregon workers' compensation lawyer to help you file a New Medical Condition Claim.

After a claim is submitted, the insurer has 60 days to accept or deny the requested medical condition.  It is common for the insurer to schedule an injured worker for an IME exam to address compensability of the New Medical Condition Claim.

If you have any other questions and would like a free consultation with an Oregon workers' compensation lawyer, feel free to call: (503) 975-5535


May 21, 2013

Role of Attending Physician in Oregon Workers' Compensation

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 Designate 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.



April 23, 2013

Oregon Workers' Compensation Settlements - What is a Claim Disposition Agreement (CDA)?



Claim Disposition Agreement (CDA)

A CDA is a type of workers' compensation settlement that settles out an accepted workers' compensation claim. Basically, a CDA consists of a lump sum paid to the injured worked in exchange for giving up his or her future benefits under their accepted claim. The settlement thus "disposes of" the accepted claim.

Benefits Retained in a CDA

Some benefits cannot be settled out in a CDA. The most important benefit is the right to future medical care under the claim. In other words, an injured worker with an accepted claim can settle out their future right to benefits under the claim, but cannot settle out their rights to future medical care. However, it is important to note that this medical care will only be the most basic care for the accepted claim. The medical benefits retained will not include future aggravations, surgeries, or any other significant treatment.

Benefits Given Up in a CDA

When a claim is settled via a CDA, the injured worker gives up his or her rights to benefits for time loss, aggravation, vocational retraining, re-opening, and permanent impairment.

CDA and DCS

It is very common that a workers' compensation settlement will include both a claim disposition agreement and a disputed claim settlement.  In this case, the settlement is a complete settlement of the workers' compensation claim, including any accepted or denied portions, and the injured worker will not retain any rights or benefits whatsoever relating to the claim.

Attorney Fees and Costs

Under Oregon law, attorney fees for injured workers in the Oregon workers' compensation system are capped.  The amount of the attorney fee for a claim claim settlement is 25 percent of the first $50,000 and 10 percent of the remainder.  The attorney costs cannot be taken out of a CDA.  If you owe your attorney costs at the time of a settlement, you will have to pay them back directly from your portion of the proceeds.  Attorney costs will likely not be more than a few hundred dollars.

Do You Need and Attorney to Settle Your Workers' Compensation Claim?

Yes.  It is always a good idea to have an attorney help you settle your workers' compensation claim.  The attorney will help you get a better settlement and make sure you do not give up more rights than you should.

Will my Workers' Compensation Settlement be Taxed?

No, proceeds from your workers' compensation settlement will not be taxed.  Under Oregon law, it is not considered taxable income.

End Result

The final result of a CDA is that the injured worker's accepted claim still exists with entitlement to medical benefits, but no entitlement to any other benefits. In exchange, the injured worker accepts the lump sum settlement.

If you have questions about settling your workers' compensation claim, call us for a free consultation: (503) 975-5535.


April 22, 2013

Oregon Workers' Compensation Settlements - What is a Disputed Claim Settlement (DCS)?

Disputed Claim Settlement (DCS)

A DCS is a type of Oregon workers' compensation settlement that is used to settle out a denied workers' compensation claim.  Essentially, a DCS means the injured worker (and their attorney) accepts a lump sum of money in exchange for the denial remaining final.  A DCS is most commonly used when the insurer has denied a workers' compensation claim and the denial has been appealed.  This creates the "disputed claim."

Unpaid Medical Bills

If there are unpaid medical bills at the time of settlement, they must be paid out of the settlement amount.  They are usually paid at an audited rate which reflects Oregon's maximum payments allowed under workers' compensation claims.  These amounts are lower than most physicians charge so it is to the worker's benefit to wait for the bills to be audited.

The insurer will not pay the unpaid medical bills out of the settlement unless they actually have the bills in their possession.  In other words, if there are unpaid medical bills and the insurer does not have them, they will not be taken out of the settlement and the worker will be responsible for them.

If, on the other hand, the insurer does have the medical bills in their possession and they simply fail to include them in the settlement, the insurer will remain responsible for the bills.

Any medical expenses or bills incurred after the time of the settlement will be the responsibility of the injured worker.  

Attorney Fees and Costs

Under Oregon law, attorney fees for injured workers in the Oregon workers' compensation system are capped.  The amount of the attorney fee for a disputed claim settlement is 25 percent of the first $50,000 and 10 percent of the remainder.  The attorney costs (usually incurred for obtaining medical opinion reports supporting the injured worker's claim) also come out of the settlement.

Do You Need and Attorney to Settle Your Workers' Compensation Claim?

Yes.  It is always a good idea to have an attorney help you settle your workers' compensation claim.  The attorney will help you get a better settlement and make sure you do not give up more rights than you should.

Will my Workers' Compensation Settlement be Taxed?

No, proceeds from your workers' compensation settlement will not be taxed.  Under Oregon law, it is not considered taxable income.

End Result

The final result of a DCS is that the injured worker's claim remains denied and, in exchange, they accept the lump sum settlement.

April 18, 2013

Hiring an Oregon Workers' Compensation Attorney - How Much?

How much does it cost you to hire an Oregon workers' compensation attorney?  The short answer is that it is free.  In Oregon, attorneys who represent injured workers must work on contingency.  This means the attorney may not charge an hourly rate and is only paid if they win or settle the case.  Basically, a workers' compensation attorney takes on the risk with you.  They are only paid if you win.

If you have a denied claim, and your attorney helps you overturn or reverse the denial, the insurance company will have to pay their attorney fee and costs.  In this scenario, the attorney fee will not come out of your benefits.

This is also true with time loss cases.  If you have not been paid your time loss correctly and your attorney helps you get the unpaid amount, the insurer must pay the attorney their fee without taking it out of what is owed to you.

If you reach a settlement of your case, the attorney fee does come out of the total.  In Oregon, the attorney fees from a settlement of a workers' compensation case are capped at 25 percent of the first $50,000 and 10 percent of the remainder.  This is significantly lower than attorney fees on other contingency cases such as personal injury and employment law - which go up to 40 or 50 percent of the total recovery.


We offer free office and phone consultations!  Call us at 503-975-5535.

Hiring a Workers' Compensation Attorney - Why?

It is often a good idea to retain a workers' compensation attorney when you have a workers' compensation claim.  This is true even if your claim is accepted.

An attorney can help with many things.  First and foremost, a workers' compensation attorney acts as the go-between between you and the adjuster, employer, and insurer.  The attorney will also monitor your medical records, your time loss payments and the insurer's processing of your claim   The insurers often make errors in payment of time loss  and other areas of claim processing.  An attorney will help you recover the benefits you are owed and any penalties for errors in claim processing.

With accepted claims, it is common that the acceptance will not fully encompass your injury.  For example, the insurers often accept a "low back strain" when the real injury is a disc herniation or other more severe injury.  Another common scenario is an acceptance of a head contusion (i.e., bruise) when the real injury is a concussion.  By accepting a minor injury, the insurers are trying to limit their liability.  This can significantly limit the benefits you are entitled to.  It is a good idea to have an attorney review the scope of acceptance to help you avoid this situation.

Finally, if your claim is denied, you will need to hire a workers' compensation attorney to help you appeal the denial.

Questions about the costs of hiring a workers' compensation attorney?  See my next blog post...

Please note we offer free office and phone consultations!  Feel free to call us at 503-975-5535.

January 10, 2013

Aggravation of a Workers' Compensation Claim

Aggravation

In Oregon, a workers' compensation claim can be reopened for an aggravation within five years of claim closure.  For example, if a worker sustained a back strain on January 1, 2010, he may treat for six months, at which point he would be medically stationary.  If the claim was then closed on June 1, 2010, he would have "aggravation rights" until June 1, 2015.  "Aggravation rights" simply refers to the right to have a claim reopened for an aggravation for five years after claim closure.

However, a claim will not be reopened automatically.  An aggravation claim must be filed.  This is usually in via an 827 form which is completed at a doctor's office.  The form is sent by the doctor to the insurer or the State of Oregon.  The insurer then has 60 days to accept or deny the aggravation claim, just like an original injury.

The legal test for whether an aggravation has occurred is whether the accepted condition has "pathologically worsened."  This is something the medical expert (i.e., your doctor) has to determine.  A good example of an obvious aggravation would be a meniscus tear of the knee needing a new surgery because it re-tore.

One issue that commonly comes up is when the accepted condition is not something that can pathologically worsen.  For example, if the claim was originally accepted for a lumbar strain, it can be very difficult to prove a worsening.  This is because strains, by their medical definition, will heal within a period of 3 to 6 months.  If you still have back pain a year or more after the injury, it is likely that you have a different condition, rather than a strain.  So, if your claim was originally accepted for a strain and closed, it can be hard to have an aggravation because the strain should have fully resolved.  In that situation, you likely have a new claim, rather than an aggravation of the original claim.