December 26, 2012

Occupational Disease vs. Injury

There are two main types of workers' compensation claims in Oregon.  They are categorized by the type and length of harm.

Oregon Workers' Compensation Injury Claim

The first is an work injury.  An injury stems from an acute event.  A good example is falling and breaking an arm, or bending over to lift a box and injuring a back.  These types of injuries occur immediately and can be related to a specific event (i.e., a fall).  The burden of proof for an acute injury is material contributing cause. Under Oregon law this means that the injured worker has to prove a preponderance of the evidence shows some relationship between the injurious event and the subsequent injury.  In other words, if a roofer fell from a ladder and broke his wrist, he would only have to show that he was on the ladder at work and his wrist broke from the fall.  This is often a relatively easy burden to meet, especially when there was an obvious injurious event.  It can be more difficult when the event was less obvious.  For example, if a worker developed back pain after lifting a truckload of heavy boxes, but was not sure if there was a specific moment when the injury occurred.

Oregon Workers' Compensation Occupational Disease Claim

The second type of Oregon workers' compensation claim is an occupational disease.  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 one event.

The burden of proof for an occupational disease claim is major contributing cause.  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.

December 5, 2012

Hearing Loss Workers' Comp Claims

Proving Hearing Loss Related to Noise Exposure at Work

Hearing loss is a common form of an occupational disease workers' compensation claim.  The term "occupational disease" simply means that is develops over time as opposed to acutely from one accident.

The burden to prove an occupational disease falls on the injured worker in Oregon.  The injured worker has to prove that his or her overall work activities are the major contributing cause of the occupational disease.  In the case of hearing loss, this would mean the worker must prove his or her lifetime of employment was greater than 50 percent the cause of their hearing loss.

There are multiple factors that can cause hearing loss.  First, is genetics or a family history.  Second, are injuries or illnesses such as very high childhood fevers.  Third, is normal aging.  This is often called presbycusis which is the Latin term for "aging ear."  Finally, exposure to loud noise can cause hearing loss.  This is usually from gun use (target practice, hunting, or military experience), riding motorcycles, or from work exposure.  There are many types of jobs that have very high noise exposure levels.  Common ones include truck driving, welders, firemen, pilots, and metal fabricators.

If you think you have hearing loss related to exposure to loud noise at work, it is important to file your workers' compensation claim as soon as possible.  The longer you wait the more likely it is that you will also have aging of the ears making it more difficult to prove that the majority of your hearing loss is related to work.

Responsibility and Hearing Loss Workers' Compensation Claims

Once you have filed your workers' compensation claim for hearing loss, the insurer will do one of several things   They may accept the claim.  Or, they may deny the claim.  A denial can be for several reasons.  The most common is called a compensability denial and is when the insurer is denying the claim because they do not think your hearing loss is related to your work exposure.  But, they may also deny your workers' compensation claim because they do not think they are the insurer responsible for your hearing loss.  In this scenario, the insurer is essentially acknowledging that your hearing loss is related to your employment, but they think a different insurer or employer should pay for it.  This comes up quite often when an injured worker has worked for several different employers and had noise exposure at each job.

When this happens, you will need a workers' compensation attorney to help you file against the other employers and insurers and appeal your responsibility denial.

If you have any additional questions, or would like a free attorney consultation, call our office at 503-975-5575.

March 21, 2012

Can Child Support Be Taken Out of Workers' Compensation Benefits?

Can the insurer take child support payments out of my workers' compensation benefits?

I get this question a lot.  The short answer is: yes.  But, it is slightly more complicated than that.

First, you have to have a child support obligation that is due each month or that is past owed (arrearages).  Second, there must be a formal Order from the Child Support Division.  (It can be from any State, not just Oregon, and it will still be applied here.)  The Order gets sent to the insurer when a workers' comp claim is opened for you.  The insurer will notify you that your benefits are going to be reduced for child support.  The insurer is then obligated to garnish the amount ordered, plus a percentage of any arrearages.  But, they cannot take more than 25 percent of your time loss checks.

Child support can also be taken out of a workers' compensation settlement if you owe arrearages.  No more than 50 percent of your portion of a settlement can be taken out for child support.

If you have more questions about how these rules impact your own situation, feel free to call me.  My direct line is (503) 975-5535.  I will answer your questions for free or set up a meeting for you.  There is also more info at the website: www.oregonworkinjury.com.

January 20, 2012

When Does the Insurance Company Have to Pay You Time Loss in a Workers' Comp Case?

Knowing when the insurance company has to pay you time loss can be tricky.   But time loss is important because it is how you are paid while out of work for a denied workers' comp claim.

First, what is time loss?

Time loss is money your employer's workers' comp insurer has to pay you to make up for the wages you are not being paid while you are out of work for your injury.  Time loss is paid at a rate of two thirds of the average weekly wage you earned (before taxes) for the last year at your job.  Time loss is tax-free, but child support is taken out if you have a garnishment.

When is time loss owed to you?

You are owed time loss for all the time you have missed work for your injury, assuming you have a work release (for full release or light duty) from your doctor.  However, there are a couple of exceptions.  Time loss is not owed for the first three days you are off work (called the "three day waiting period").  It is also not owed if your claim is denied within 14 days after it is filed.  If your claim is denied more than 14 days after you file it, time loss is due until the date of the denial.

Also, remember that if you have a denied claim, you should contact an attorney to help you appeal it.  If your denial is reversed, the insurer will have to pay you all your back-owed time loss while the workers' compensation claim was in denied status.

If you have any other questions about time loss or your workers' compensation claim, feel free to call me directly at 503-975-5535.  We can chat on the phone or set up a free consultation at one of my offices.  There is also more information at www.oregonworkinjury.com