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.


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.


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

February 3, 2015

What is Work Disability?

Work Disability in Oregon Workers' Compensation Law

Work disability refers to a type of disability that sometimes comes from a workers' compensation injury.  It also refers to the related financial award.

There are two main types of disability from a workers' compensation injury.  The first is "permanent impairment" which is impairment related to physical disabilities such as range of motion, sensation loss, or an amputation.

The second is "work disability" which is impairment of your ability to work.  Work disability essentially means your limitations that keep you from being able to return to regular work.  If you have some limitations but you are still able to return to the job at injury, you do not have work disability.  But, if you have permanent work restrictions that do keep you from returning to your job at injury, you have work disability.

For example, if you were a lawyer and had a lifting restriction, you would still be able to work as a lawyer so you would not have work disability.  If you were a UPS driver and you had a 30 pound lifting restriction, you would not be able to return to work and would have work disability.

Work disability is calculated when an injured worker becomes medically stationary.  The attending physician determines whether the injured worker can return to regular work and, if not, what the permanent work restrictions are.  The insurance company uses the permanent restrictions from the attending physician to calculate the work disability award which is included in the Notice of Closure.

This is one of the more complicated areas of workers' compensation law and can be pretty confusing.  If you have any questions about a work disability award, or your Notice of Closure, it is a good idea to ask a workers' compensation lawyer.

You can call us at 503-975-5535 any time for a free consultation.