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