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.