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If you have been injured on the job, early consultation with an attorney may mean the difference between full recovery of your personal and financial loss, and denial of your claim. Our attorneys have years of experience representing first responders, trade union workers, state workers, farm workers, factory workers, construction workers, and general laborers. We represent workers in all types of claims from injuries through complex occupational diseases. All workers’ compensation consultations are no charge.
All workers injured on the job are encouraged to obtain counsel as soon as possible regardless of the stage of your claim. It is never too early to seek representation and it is rarely too late. Below is a brief explanation of the workers’ compensation system and answers to many questions we are asked daily. This information is not legal advice nor intended to create a client attorney relationship.
What is 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.
Should I get an attorney?
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.
How am I supposed to pay for an attorney?
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.
What do I have to pay for?
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.
I have decided to meet with an attorney. What should I do before our first meeting?
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.
I am not sure if I was injured on the job. How do I know if I am entitled to workers' compensation benefits?
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.
I was injured traveling to a job site. Do I qualify for workers' compensation benefits?
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.
I was injured in a motor vehicle accident while driving for my job. Who is responsible?
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.
I developed a mental stress condition as a result of my work. Is this covered under workers’ compensation?
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.
I was diagnosed with a condition prior to employment, but my work has made my pre-existing condition worse. Do I qualify for workers' compensation benefits?
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.
My accepted claim has been closed but my condition has worsened. Am I still entitled to workers’ compensation benefits?
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.
My spouse died from a work site injury. Do I qualify for workers' compensation benefits?
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.
My claim was accepted, but I received a "notice of claim closure," and I disagree with its conclusions. Can I appeal the decision to close my claim?
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.
Are there any injuries at a worksite which will not be covered under workers’ compensation?
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.
I am a first responder. Are there any special protections for our claims?
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.
How do I file a claim for workers' compensation benefits?
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
My employer is pressuring me not to file a workers' compensation claim. Can they do that?
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.
How did my employer's insurance company get my medical records relating to my injury when I never signed a release of information?
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.
Am I allowed to change physicians during the workers' compensation claim process?
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.
Can I treat with any doctor I chose?
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.
I have filed a claim, but now I am being asked to participate in an "independent medical exam" (IME). Do I have to cooperate?
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.
I have filed a claim, and I am being asked to participate in a recorded statement or deposition employer's insurance company. Do I have to cooperate?
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.
When do my benefits end?
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.
What medical expenses are covered by my employer's insurance company?
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.
What happens if I have permanent damage from the work incident or exposure?
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.
What is temporary partial disability (TPD)?
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.
What is temporary total disability (TTD)?
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.
Will I receive my normal wages when I am not able to work?
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.
Will I receive compensation while my claim is pending?
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.
How long does it take for my benefits to be paid?
Once you have filed a workers’ compensation claim, benefits must begin within 14 days and continue until your claim is closed or denied.
Can I resolve my disputed claim without a hearing?
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.
How long does an administrative law judge have to make a decision about my claim?
After your hearing, an ALJ has 30 days to issue their Opinion and Order regarding your claim.
I appealed my claim denial, but when will my hearing be held?
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.
My workers' compensation claim has been denied. Can I appeal this denial?
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.
How long does it take for a claim to be processed?
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.
I want to return to my old job. Do I have any right to demand reinstatement?
Your employer must reinstate you if you are physically able and authorized by your doctor to return to your job-at-injury within three years of injury and that job still exists and is available. If your position no longer exists or is not available, your employer must reinstate provide you an opportunity to work in another existing position that is vacant and suitable.
Your right to reinstatement is not absolute. You must provide notice that you would like to return to your job within seven days of notice by the insurer that you are physically able to return to work. Your employer is not required to reinstate you if you accept suitable employment from another employer after becoming medically stationary. An employer is also relieved from having to reinstate you if you refuse an offer of suitable light-duty or modified employment before found medically stationary.
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