Workers’ Compensation

Workers’ compensation is a state mandated insurance program required to be obtained by every Oregon employer. Workers’ compensation insurance provides benefits to workers who are injured while working in Oregon or while working for an Oregon employer.

Workers are entitled to worker’s compensation benefits if they have sustained an accidental injury or occupational disease arising out of and in the course of employment requiring medical services or resulting in disability or death. 

The goal of the workers’ compensation system is to get you back to full health and full work when possible.  In doing so, you will be provided full payment for related medical treatment received and wage replacement for authorized time missed from work.  If you are not able to return to work or suffer permanent impairment you will be entitled to a monetary award for final impairment if sustained and job placement / retraining if you cannot return to your job-at-injury.

Workers’ compensation is a no-fault system.  Therefore, even if you are the cause of the accidental injury, you are still entitled to benefits.  Even if you are not at fault, there is no award for pain and suffering in workers’ compensation claims. 

Yes. 

Even if it’s not with us, we recommend that you consult with an attorney as soon as you are injured.  We hope that everything in your claim is done to perfection.  However, many times it is not.  Insurance is a business.  Their job is to keep claim costs as low as possible.  They are not working for you.  Therefore, it is essential to have an experienced attorney guiding you through this complicated process.  Our goal is to get you the medical treatment needed to get back to work and to ensure fair compensation for your injury.

You don’t (at least not directly).

Your attorney will only be paid if you prevail or obtain additional benefits.  In all circumstances, your attorney’s fee will be paid directly by the insurance company/ self-insured employer or deducted from any additional benefits paid.  In addition, if a settlement is agreed to, the fee is capped by statute, meaning that no matter how large your final award, your attorney will only be entitled to a fixed percentage.

Workers are generally responsible for out-of-pocket expenses for their claims (such as for the cost medical reports when a doctor’s opinion is solicited on the client’s behalf, witness fees, etc.).  Your attorney will generally advance funds for these expenses.  If you prevail at a hearing, the insurer/self-insured employer will be required to reimburse costs and expenses.  If a settlement is agreed to, the costs are reimbursed through the settlement proceeds.    

To help your attorney get a head start on your claim, gather all letters, records, and documents you have received from the insurance carrier, Workers’ Compensation Board, etc.  It’s especially important that you forward any Notices of Acceptance, denial letters, and/or Notices of Closure, as these are time sensitive notices. Your attorney will also ask you to sign a medical release to speak with your medical providers and obtain records when needed.

Disagreement over whether the activities that caused the injury occurred in “at work” is common.  While you may not believe you were “at work” at the time of injury, if your employer had control over the activities leading to the injury, you may have a claim.  Therefore, it is vital to consult with an experienced workers’ compensation attorney to improve your chances of securing benefits for your injuries.

Maybe.

Generally, an injury sustained during your commute is not considered compensable.  However, there are exceptions based on the amount of control.  These types of cases result in very complex legal issues which require the assistance of an experienced workers’ compensation attorney.

If you are injured in a motor vehicle accident while working, you may have claims under both workers’ compensation and through a personal injury claim.  Regardless of fault, your employers’ workers’ compensation insurance will be responsible for payment of your medical bills, time missed from work, impairment, etc.  If you are not a fault for the collision, you will also be able to seek compensation for your pain and suffering from the at fault party’s motor vehicle insurance.

Yes.

If you have developed a mental health condition requiring treatment from a medical professional, you are likely entitled to workers’ compensation coverage.  Mental health claims are considered occupational diseases and come with a much higher burden of proof.  These types of claims have a high rate of denial as there are typically no visible injury or symptoms.  Therefore, it is essential that you consult with an attorney regarding your claim or denial.

Maybe.

You will be entitled to compensation for any disability or treatment required because of the work incident.  If you have a combined condition, as long as your pre-existing condition is not the major contributing cause of your disability and/or need for treatment, you are entitled to full benefits.  If you have had a prior injury, have arthritis, or have ongoing pain/treatment prior to your work incident, please make sure your provider fully understands the nature of your prior injuries and how the work incident has made your symptoms worse.  The more information your medical provider has, the stronger his opinion on your claim will be.

Yes.

If you have a closed claim, you have 5 years to file an “aggravation” claim.  To be found a compensable aggravation, medical evidence must show that there has been an actual/pathological worsening since your first claim closure. 

Under your aggravation rights, you will be entitled to the same benefits initially afforded. 

If your claim has been closed for more than 5 years, you will still be eligible for medical treatment and time loss benefits.  However, these must be obtained through own motion relief.  The own motion process is much more complicated and requires additional filings.  Depending on the reason for reopening your claim, some benefits may not be available while others will be.  Therefore, the assistance of an experienced workers’ compensation attorney is vital.

Yes,

An injured worker is entitled to all workers’ compensation benefits afforded by law from the time of their injury through their death.  After death, a workers’ estate will be entitled burial expenses.  In addition, a workers’ surviving spouse will be entitled to ongoing monthly monetary benefits up through remarriage and their dependents will be eligible for monthly payments up to18 years of age or completion of college.  Many times, the insurance company will try to settle these benefits up front to limit their overall claim costs.  Therefore, it is essential to have an attorney representing the estate of the deceased worker.

Yes.

Within 60 days of the Notice of Closure you may request reconsideration of the closure.  After your reconsideration request, the Workers’ Compensation Division, Appellate Review Unit will review your claim to determine if the insurer/self-insured employer met the legal requirements for claim closure.  If they have, a medical arbiter examination will be scheduled to determine if the work incident caused any permanent impairment to the effected body parts.  If the closure does not meet the legal requirements, it will be rescinded, and your claim will remain open. 

If any party objects to the Order on Reconsideration, they may request a hearing within 30 days of the order.  A hearing will be held by regarding the closure and impairment award. 

The closure process is the last opportunity you will have to prevent your workers’ compensation benefits from being ended.  Therefore, it is highly recommended you consult with an attorney. 

Yes,

Generally, injuries caused during a mutual fight at work, not connected to the job assignment, are not compensable.  In addition, injury sustained while engaging in recreational or social activities primarily for your personal pleasure are also not compensable.  Finally, generally injuries arising from the consumption of alcoholic beverages, or the unlawful consumption of any controlled substance are not compensable.

Yes.

If you are a qualifying police officer or firefighter there are specific laws and rules regarding the development of mental health conditions, certain cancers, and cardiovascular renal diseases.  These laws create a presumption that your work exposure is the cause of your condition.

However, this does not mean your claim will be accepted.  To qualify for the presumption, you must be a qualifying first responder, be diagnosed with a qualifying condition, and must not have had the condition prior to the start of your employment.

Eligibility for a first responder presumption is a complex legal question.  Therefore, consultation and retention of an attorney experienced in litigating first responder presumption cases is highly recommended.

When injured you have 90 days to file a claim via written notice to your employer.  It is recommended that you complete a Form 801 and provide to your supervisor or HR as soon as possible.  You can also file a claim through a medical provider.  Therefore, you must let them know that you are seeing them for a work-related injury.  It is recommended you ask for a Form 827 to be completed and sent to the insurance company. 

If you are suffering from an occupational disease, a condition which developed over a longer period, you have up to one year to file your claim from the date when you are informed that your condition is work related or becoming disabled from a known occupational disease.

An 801 and 827 may be found on the Workers’ Compensation Divisions’ website or here: https://wcd.oregon.gov/worker/Pages/file-a-claim.aspx

No.

An employer who intentionally or repeatedly tells you to not file a claim could face heavy fines if they are found to have interfered with your right to compensation.

Further, an employer cannot discriminate, harass, fire, or discipline you for filing a workers’ compensation claim.  If your employer is not accepting your workers’ compensation paperwork, does not have workers’ compensation insurance, or is hampering your ability to file your claim, please call our office immediately and we will assist you in getting your claim filed.

HIPAA’s Privacy Rule does not apply to workers’ compensation insurers, workers’ compensation administrative agencies, or employers, (except to the extent they may otherwise be covered entities).  Therefore, when upon completion of an 801 or 827, an employer or insurance company is entitled to all medical records related to injury and injured body without your explicit permission.

Yes.

The insurance and your employer are not allowed to require you to treat for your injury with a certain doctor or at a certain facility.  You have an absolute right to choose your attending physician and to make two changes. However, if you are enrolled in a managed care organization (MCO), then you are limited to treatment with a provider within that MCO.  The choice of providers is up to you as long as they are within the MCO and the MCO has a provider available.

For the first 18 visits or 60 days, whichever comes first, you may treat with any provider of your choice.  After this time, you must treat with a medical doctor (MD) or osteopath (DO).  The MD/DO may authorize continued treatment with your original provider but will be primarily responsible for your ongoing treatment and release from work if necessary. 

Be aware, only an MD, DO, or Nurse Practitioner can authorize ongoing time loss after 30 days.  Therefore, if you are off work, you are encouraged to seek treatment with an MD, DO, or NP as soon as possible.

Yes.

The insurer/self-insured employer may require you to participate in up to three medical examinations by a doctor of their choice at any time during your claim.  Failure to cooperate in the examination can have serious consequences including but not limited to denial of your claim, suspension of your benefits, and a monetary penalty. 

You will be compensated for attending this examination including the payment of any necessary milage, lodging, and meals.  If you cannot afford to travel to this examination, you may request payment of expenses prior to your examination. 

If you have questions or problems attending or traveling to an IME, you are encouraged to work with an experienced workers’ compensation attorney.

Yes.

You must cooperate with the investigation by giving personal or telephonic interviews.  These interviews may be recorded.  Failure to cooperate may result in suspension of your benefits and/ or denial of your claim.

You have the right to an attorney to be present through this interview process at no cost.  However, it is your responsibility to find and obtain counsel.

Your medical benefits never end for an accepted injury or occupational disease.  However, once your doctor has declared you medically stationary, you will only be entitled to ongoing palliative care if you remain in the workforce.  In addition, you will no longer entitled to TTD/TPD. 

Claim closure ends all rights to substantive workers’ compensation benefits.  Therefore it is important to consult with an experienced workers’ compensation attorney if you claim as been closed to ensure your benefits are not being ended too early.

Generally speaking, all medical expenses materially related, necessary to treat your condition, and non-experimental must be paid by the insurance company or self-insured employer. 

The scope of compensable medical services is vast and inclusive.  However, they are not unlimited.  If there is a disagreement over whether the employer/insurer is responsible for a particular treatment, your will likely need the assistance of an experienced workers’ compensation attorney due to the complex medical nature of these issues.

If you have permanent disability from your work incident or exposure, you are entitled to either permanent total disability benefits or permanent partial disability benefits. 

Permanent total disability benefits are available if you are diagnosed with a work-related condition that will not improve in the future and completely incapacitates you from all gainful and suitable employment.  Permanent total disability is intended to compensate for permanent loss of bodily function and earning capacity.

A claimant’s PTD payments may be reduced by the amount of any disability benefits the worker receives from federal Social Security.

If you are not totally disabled, you could be found entitled to an award for Permanent Partial Disability (PPD) at the closure of your claim.  Permanent disability benefit is intended to compensate you for permanent loss of bodily function and earning capacity. PPD is calculated as a percentage of the whole person and may awarded for injury to any body part.

If you are not able to return to your job at injury, your PPD you will be eligible for a work disability award.  This is a multiplication of the PPD award by several factors including your age, education, base functional capacity, and your residual functional capacity.

Much like TTD, temporary partial disability (TPD) is a wage replacement benefit.  Once your attending physician has released you to an approved modified job or you return to modified work, you no longer are eligible for TTD but will be for TPD. 

TPD is a payment to make up for any gaps in earning between your modified job and your regular wages.  Depending on how much you can work, TPD payments can be as low as $0.00 and up to 66 2/3 percent of your wage at injury. 

Temporary total disability (TTD) is the benefit paid if you are not able to continue working.  TTD is paid at 66 2/3 percent of your wage at injury. 

You are entitled to TTD if your attending physician has found that that you are unable to work.   Payment must start within 14 days of your employer receiving your off work note and will continue every 14 days until you no longer are authorized to be off work, or you return to modified or regular work duty. 

Maybe.  If your employer is self-insured, they may elect to pay you through salary continuation.  This would represent a continuation of your normal pay while you are not able to work. 

However, if salary continuation is not available and you are not fit to return to full work, with a valid work note from your medical provider, you will be entitled to either Temporary Total Disability (TTD) or Temporary Partial Disability (TPD).  This is a non-taxable benefit paid by the insurer/self-insured employer every 14 days.

Yes.  If your employer/insurer does not deny your claim within 14 days, you will be entitled to interim compensation.  “Interim compensation” is a salary benefit paid during the period in which a worker is missing work due to a claimed injury or disease while the acceptance/denial of their claim is pending.   If you are taken off work for more than three consecutive days, you will be entitled to 66 2/3 percent of your average weekly wage.

Once you have filed a workers’ compensation claim, benefits must begin within 14 days and continue until your claim is closed or denied.

Yes.

Most workers’ compensation disputes are resolved through settlement, rather than a hearing.  There are multiple forms of settlement that can be entered into included a Claim Disposition Agreement (CDA), a Disputed Claim Settlement (DCS), or a stipulated settlement.  A CDA is used to settle all benefits owed on an excepted claim except for medical benefits.  A DCS is utilized for denied claims or conditions.  A stipulation is an agreement to accept or continue processing the claim. 

All settlements must be approved by an ALJ or the Workers’ Compensation Board.  Settlements are complex and each can involve different benefits. Therefore, before engaging in settlement discussions, it is highly recommended that you consult with an experienced workers’ compensation attorney.

After your hearing, an ALJ has 30 days to issue their Opinion and Order regarding your claim.

Typically, a hearing will be set for 3 months from the request for hearing.   If you are unrepresented, the Administrative Law Judge may grant a postponement one time to obtain counsel.

At the hearing you will need to both prove that an injury occurred and that the medical evidence supports the injury caused a disability or need for treatment.   This is a highly complex matter which requires the assistance of counsel. 

It is highly recommended by the state that you obtain an as soon as a hearing is requested to prevent any delay.

Yes.

You will have 60 days from the date of claim denial to appeal the denial. This timeframe may be extended in extremely rare circumstances.  However, you are encouraged to file you request for hearing as soon as possible and/or consult with an experienced workers’ compensation attorney who can request a hearing on your behalf well before any deadlines pass. 

Once a claim has been filed, your employer or their insurance company has 60 days to accept or deny your claim.  You can expect to participate in a recorded statement and potentially an independent medical examination arraigned by your employer.  You are required to attend these and assist into the investigation of your claim. 

It is recommended you obtain experience workers’ compensation counsel from the start, so you have an advocate on your side during the investigation of your claim.