The Answer:

Yes, but so what?

Let’s Talk About the Adjuster

Adjusters work for insurance companies, and insurance companies are regimented in the way they do things.  Adjusters have to account for every move they make on a case.  Each decision they make is being watched. There are methods on claim negotiation that these adjusters employ to meet the insurane company's goal.

What is the goal?

The insurance company’s goal is resolve the claim quickly and cheaply.  If the initial adjuster you deal with on your injury claim can get you to resolve the claim for a small amount of money soon after the collision or injury, they are doing their job:  saving the insurance company money.  And if they do it well, they are often rewarded.

Typically, the adjuster you deal with initially is not all that experienced but is trained to get a quick and inexpensive settlement. 

The Old “Fake Deadline” Trick

One of tactic is the fake deadline.  It goes something like this:

1. A settlement offer is made;
2. There may be some discussions about it, maybe even a counter proposal from the injured person;
3. Another offer may have been made;
4. If the injured person hesitates on the offer, a letter or call is made saying that the offer is only good for “X” days, and if not accepted, the file will be “closed.”

Obviously, the threat here is that the injured person is losing any claim they have and will be unable to recover any compensation for their injury. But what is really happening?

Yes, the adjuster is free to close their file, and they could even withdraw any settlement offers (We do not see this happen very often).  However, state law, not the adjuster, determines the time limit you have to pursue your case.

The Real Deadline

In Oregon, and injured person generally has two years from the date of the injury to have their case filed in the appropriate court or resolved by a settlement agreement. This is often referred to as a “statute of limitation.”

This is a GENERAL rule, and other, shorter time limits could apply. For example, in claims against a governent agency, there are notice requirements.  Claims against providers of alochol for serving a visibly intoxicated person also include tight deadlines to notify the alcohol provider of the claim.  However, when an adjuster decides to close the file, the claim does not suddenly disappear.

Why Adjusters Use the Fake Deadline Trick

Below are examples from actual cases we worked on showing how an attempt to “close the file” or run out the clock on the statute of limitation did not work for the insurance adjuster.

• We represented a young woman who sustained a major injury at a commercial establishment. She contacted us within weeks of the two-year time limit expired for resolving or filing her case. The insurance adjuster had made no offers, and based on our review of the file, it appeared that the adjuster was hoping the time limit would run and our client would not be able to bring a claim. We were able to get the case filed at the last minute and resolve the case for close to $200,000.00.  This is not an ideal situation, and if we had to do it over again, we would have had the client contact us much sooner in the process. Still, we were able to beat the deadline and resolve the case in our client’s favor.
• In a recent case, our client was driving southbound on Highway 101 when another car pulled out from a side street and failed to yield the right-of-way to our client. The collision was high-impact, and our client immediately reported symptoms consistent with traumatic brain injury. She sought various modes of therapy to help with her ongoing symptoms. We were involved in this case in plenty of time. However, the initial offer from the initial adjuster was in the $5,000.00 range. We filed the case, exchanged medical records and other documents, and after deposition, resolve the claim for $80,000.00 in addition to medical expenses.
• Another recent case drives home this point. Our client was driving southbound on Highway 101 in Tillamook County, and another driver pulled out into our client’s lane of travel when attempting to make a “U” term. Our client, who had suffered serious injuries in other previous collisions, struggled with strain and sprain injuries, and a concussion. The initial offer on this case was $4,000.00 plus the medical expenses. After we file the matter, a defense attorney deposed our client, and the case quickly resolved for $40,000.00 plus the medical expenses.

These cases are illustrations, and every case has unique issues that determine settlement value or potential recovery at a jury trial. However, a common theme here is an insurance company attempting to resolve the claim for an amount many times less than its potential settlement value.

The “Attorney Will Get All Your Money” Trick

Another common tactic is the “the attorney will get all your money” threat. This may not even be legal, but just like driving too fast on the freeway, it’s common. An attorney will get “some of your money.” But when you consider the examples above, it may be well worth it. Again, this is not true in every case, but it is certainly true much of the time.

The “Minor” Injury Case

We frequently get calls from folks who suffered an injury in a collision, but luckily for them, it’s temporary and minor. In these kinds of cases, it may not make sense to have an attorney involved because the case will only have so much settlement value, and having an attorney involved may not be cost effective.

When we confer with these folks, one thing we emphasize is the two-year time limit (again there could be other time limits) and how it allows them to make sure that they are in fact totally recovered from the minor injury. It makes sense to take a few months to make sure you can do all of your pre-injury activities without issues. Then, when you are convinced that you are 100% back on track, you can entertain resolving the claim.

There are some “minor” to “moderate” injury claims that may deserve an attorney’s attention. Oregon statute allows an attorney to make a demand for $10,000.00 or less for injury and property damage claims. If the adjuster does not respond within thirty days of the demand, or offers less than the amount demanded, there is a potential for recovery of attorney fees if the case is filed in court and the attorney obtains a result greater than the amount offered before trial. This statute will often prompt a more realistic settlement offer from an insurance adjuster because of the threat of paying attorney fees on top of compensation for the injury.

Why Patience is a Virtue

When we confer with a potential client, we emphasize the virtue of patience (again respecting all time limits) in resolving an injury claim. The example below drives this point home.

• A hairstylist contacted me many years ago. She had been rear-ended in an auto collision. About two weeks after the collision, the insurance adjuster offered her $500.00 to resolve the claim. The hairstylist accepted the offer and signed the settlement agreement. A few weeks went by, and the hairstylist noticed that when she had her arms outstretched while cutting hair, pain shot from her neck into the arms.  Her arms were weak, and she lost sensation in her hands.  She was struggling with her work.  A visit to the doctor revealed that the collision caused herniated a disc in her neck and required surgery. We tried to find a way to nullify the settlement agreement, but unfortunately, it was legally valid, leaving the hairstylist all on her own to get the medical care she needed.

This happened thirty years ago, and I have never forgotten it.  I share this story at least once week when explaining the seriousness of a claim settlement.

The Bottom Line

The insurance company adjuster for the other driver, or the at fault driver, is not your friend, and they are not going to “look out” for you, no matter how friendly they may seem.  Their job is to resolve the claim for as little and as quickly as possible.

Questions

Not sure where your claim stands?  Contact us.  If we cannot help you, we will find someone who can, or at least set you on the right

Every profession has its own language. Attorneys are no exception. When somebody is injured because of another person's careless behavior, then the injured person has a claim for "negligence." The term "negligence" simply means that a person was acting carelessly, are not reasonably careful under the circumstances. There are many ways to show that somebody acted negligently.

In Oregon, a person can be found negligent if they acted unreasonably under the circumstances, and that as a result, somebody suffered foreseeable harm. In other words, the careless party should have known that by doing whatever they did, are not doing what they should have, a certain kind of injury could have resulted. This rule is in place because it would be impossible to write a safety rule for every possible way a person cannot carelessly.

In other cases, a person may be found negligent because of their relationship with the injured party. For example, attorneys have a special responsibility to their clients, and doctors have a special responsibility to their patients. In Oregon, we call this a "special relationship." If a person that has a "special relationship" with another person has a higher responsibility to make sure they do their job correctly. If they do not meet that responsibility, then they can be held responsible for their negligence.

There are statutes and rules that also determine whether somebody is careless. In an auto collision injury case for example, if a person violates the basic rule (speeding) or fails to keep a proper lookout for other vehicles on the road, that person has violated a couple of statutes in the motor vehicle code, and as a result, they are negligent as a matter of law. Attorneys like to call this a claim of "negligence per se." Statutes and rules can be used to prove that somebody was negligent per se if the harm that resulted was the type the statute intended to prevent, and the person who was injured was a member of the class of people that the Legislature intended to protect bypassing the statute.  So, if a motorist is injured because of another motorist speeding are not looking out for other cars on the road, the injured motorist suffered the kind a harm that the Legislature sought to prevent, and is obviously one of the people of the Legislature intended to protect.

In some cases, negligent behavior is obvious because somebody broke a rule, or even admitted that they were at fault. However, there are cases where parties do not agree on the issue of negligence, and we will have to work very hard to establish the responsibility of the defendant.

If you have been injured, and you believe that another person was careless and caused your injury, call us at 503-325-8600. We can review your case, and let you know if you have a viable claim. Even if you do not need an attorney, we can give you some ideas on how you can pursue your claim.

Answer

You may have a claim against the person or business that caused her injury in some cases.

Introduction

Oregon Workers’ Compensation is a statute that requires employers to provide coverage for workers who are injured on the job. If an injured worker proves that the need for medical care or disability from work arose from an on-the-job injury, certain benefits are available.

These benefits are limited to certain coverages.

Available Benefits

While the claim is open, the injured worker is eligible for medical services and temporary disability (wage replacement) benefits. The need for medical care and any disability must be related to the medical condition the insurer accepted as part of the claim.

When an injured worker is found to be “medically stationary,” this means they no longer require medical care to restore their ability to work. When an injured worker is found medically stationary, the insurance company gathers information to close the claim and issue a Notice of Closure. At this point, the insurance company decides whether the injured worker is entitled to a cash benefit called “permanent partial disability.” This benefit is designed to compensate an injured worker for any permanent loss of earning capacity. However, it is not based on the actual future lost earning capacity for the injured worker, but instead application of findings and medical reports to the rules that govern calculation of the benefit. If an injured worker is unable to return to the exact job they were working, and other kind of permanent partial disability benefit is available, and is called “work disability.”

At about the same time, the insurance company will evaluate the injured worker’s eligibility for vocational rehabilitation services. An injured worker is eligible for vocational benefits when they are no longer able to return to the work at injury and meet other requirements. If qualified, and injured worker may be eligible for job training with the goal of getting them back to a job paying nearly the same as the job at injury.

After the claim is closed, if the injured worker experiences an “actual worsening” of the accepted on-the-job injury, the treating doctor can ask the insurer to reopen the claim. This is known as an “aggravation” claim. Only the treating physician can make the claim, and the option of filing an aggravation claim is good for five years after the claim is closed.

Even after the claim is closed beyond five years, the injured worker may still qualify for medical benefits and temporary disability if the accepted on-the-job injury condition actually worsens, or if the injured worker suffers a new medical problem that is a direct consequence of the accepted medical problem. For example, people who suffer serious knee injuries that go to surgery sometimes develop posttraumatic osteoarthritis in the same injured knee joint, requiring further surgery or a total knee replacement. In addition to proving the relationship between the worsening condition or the new medical condition, the injured worker must require significant article care, like surgery. The injured worker also must be a member of the workforce at the time they seek these benefits.

Why These Benefits are Limited

In exchange for having to provide these benefits to their employees, Oregon employers are generally immune from any other claims from their employees. This is true even if the employer is negligent in causing the employee’s injury. For example, an employer may ask an employee to perform a dangerous task, knowing that the employee was inadequately trained. Even if the employee can prove that the employer knew or should have known that they were putting the employee in a dangerous situation, there is no lawsuit or claim against the employer for personal injury damages. Of course, there are exceptions, but this is the general rule.

On the other side of the same coin, if an employee is negligent in causing their own injury, they are still covered in most cases for workers’ compensation benefits. Again, there are exceptions, including injuries that are due a major part to an employee’s intoxication or being under the influence of drugs.

The fact that the injured worker cannot sue their employer (generally) and that even negligent employees are covered makes the workers’ system in Oregon a “no-fault” system. This means that a claim cannot be denied because somebody was at fault in causing the injury.

Compensation Not Available to Injured Workers

The injured worker cannot recover any of their actual losses as if they were pursuing a personal injury negligence claim in Oregon. If so, the injured worker would be able to recover actual past and future medical expenses, and past and future lost income. Oregon law defines these losses as “economic” losses because they are objective and can be demonstrated with the actual medical bill or wage stub.

Although the Oregon Workers’ Compensation system provides similar benefits, there are often more requirements involved in qualifying for these benefits. In some cases, an injured worker could easily prove that the on-the-job injury is a significant factor in causing the disability or need for treatment but will not qualify for medical or wage replacement benefits.

The other compensation an injured worker does not qualify for is what is known as “non-economic” losses. This is often referred to as “pain and suffering” compensation. However, compensation for pain and suffering is only one part of the claim for non-economic losses. A claim for non-economic losses is a claim for compensation for the loss of the injured worker’s health. This includes pain, suffering, limited activity, and any permanent impairment resulting from the injury. Under the Oregon Workers’ Compensation system, a claim for non-economic damages is not permitted.

Although the permanent partial disability benefit may look like compensation for non-economic losses, it is considered compensation for future lost earning capacity. However, the permanent partial disability “award” rarely reflects the actual lost earning capacity. In a personal injury claim, this would be a form of “economic” damage, and in many cases, would be significantly greater claim.

The result is that an injured worker often ends up being undercompensated for the actual loss suffered. If we were to compare the compensation available to someone suffering the same injury in an auto collision, they may recover full compensation for their losses. This often is not the case in a workers’ compensation claim.

However, there are exceptions.

The Third Party Claim

The exception is the third-party claim.  A third-party claim exists when somebody other than the employer or a co-worker negligently injures a worker. The most common example is an injured worker running and earned for the employer. While stopped at a traffic signal, somebody rear ends the worker, causing injury. This injury occurred on the job and is covered under the workers’ compensation system. However, because somebody other than the employer and a coworker carelessly caused injury, the injured worker has a claim against the other driver.  That other driver is the “third party.”

Statutes and rules govern how an injured worker may pursue the third-party claim.  This is because many of the damages the injured worker can claim are the same as those the workers’ compensation carrier provided. For example, the injured worker can make a claim for their medical expenses and their actual lost wages. The workers’ compensation insurer is providing benefits for these losses.  Because the workers’ compensation carrier has paid benefits for these losses, the workers’ compensation carrier is in the same boat as the injured worker. They too have suffered a loss, although it is strictly a business loss.

Because the injured worker is making a claim for losses that the workers’ compensation insurer already paid, the injured worker is free to make a claim against the careless driver and their insurance company. However, out of any money the injured worker recovers, and must reimburse the workers’ compensation carrier for the benefits it provided.

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Example:

Let’s say that an injured worker is rear ended by another driver while at work. The injured worker makes a claim against the careless driver and their insurer. Meanwhile, the workers’ compensation carrier has paid $3,000.00 in wage replacement and medical benefits. If the injured worker settles their claim against the at fault driver’s insurance company for $5,000.00, it must reimburse the workers’ compensation carrier for the $3,000.00 that the workers’ compensation carrier provided in benefits.

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The first step in pursuing a third-party claim is to complete the “notice of election” form. This is a form submitted to the workers’ compensation carrier notifying it that the injured worker intends to pursue the claim on their own.  The other option is to let the workers’ compensation carrier pursue the claim, but that does not happen in most cases, especially if the injuries are serious.

The workers’ compensation carrier also has some limited “veto” power on settlement negotiations. The third-party statute requires the injured worker to seek approval to accept a settlement offer before resolving the claim. If there is a disagreement about whether an offer should be accepted, or how much of a personal injury settlement should be reimbursed to the workers’ compensation insurer, the Oregon Workers’ Compensation Board reviews the matter.

Sometimes, there may be issues about whether the third party was at fault, and that could affect the amount the negligent third party’s insurer is willing to pay to resolve the case. In those cases, the workers’ compensation carrier may negotiate a reduced amount of reimbursement.

The Employer Liability Law

The Employer Liability Law, also called the “ELL” is a statute that has been on the books for about a century.  This law applies to employers who conduct projects or work that involves a risk of danger.

Under this statute, an injured worker can recover actual losses by showing that the responsible party was engaged in dangerous or risky work, that the injured worker was an employee for the responsible party, and that the injury resulted from the dangerous or risky work.  These kinds of claims occur when several contractors are working together on a common project or enterprise. There are special requirements involved in making this kind of claim. However, these claims have legal advantages because employers overseeing this work must be much more careful given the risk of harm involved.

Questions?

If you have questions about third party claims or Employer Liability Law claims, contact us. If we are not able to take on the case, we can at least provide resources so you know where you stand.

If you have been injured on the job, and you filed a claim, certain timelines are triggered before the insurance company to investigate and make a decision on your claim. In the case of a new claim, the Worker's Compensation carrier has sixty days from the date it received notice of your claim to make a decision.

This period of time is referred to as the "deferred status period." The insurance company will obtain your medical records, possibly speak with your doctor, and also has the right to take a statement from you regarding the facts and circumstances surrounding your injury. Do not be surprised if you're asked questions about your past medical history as well.  You may also be asked to see an insurance retained Doctor for an examination. Many of these doctors are biased against the injured worker, but some are genuinely objective.

If you are physician has taken you off work, and confirmed your disability in writing, you may be entitled to a temporary total disability benefit during the deferred status period. In some cases, you may be only missing some work, and will receive temporary partial disability benefits.  In many cases, the employer may find something for you to do within your physical limitations, which would disqualify you from any temporary total or temporary partial disability benefits.

The insurance company must make a decision within sixty days by issuing a written notice of acceptance, or some form of a claim denial. The rules require that these letters be put together in a certain format, and advise you of your right to appeal any adverse decision.

If you have a recent claim denial, or suspect a denial is coming in, give us a call at 503-325-8600. We can review your file, and let you know if it makes sense to contest the denial.  Please note that there are time limits for appealing a denial, so even if you do not call us, appeal that denial.  You can always withdraw the appeal at a later date.

The time limits for filing your workers' compensation claim in Oregon are strict. For and "injury" claim, you must file a written claim within 90 days of the date of your injury. There are a lot of arguments about what constitutes a "written" claim. Typically, your employer should provide you with an 801 claim form.

In some cases, my clients work for hostile employers. I recommend going to the Oregon Workers' Compensation Website, and searching for the insurance coverage information using the Employer Coverage Database. You can then contact the insurance company directly, and file your claim.

If you are filing an "occupational disease" claim, you have one year from the date you knew or should have known about the occupational disease. A common example of an occupational disease is occupational hearing loss. If you go to a physician for an audiogram, and here she tells you that your hearing loss is due to exposure to noise at work, you are on notice of an occupational disease, and the one-year clock to file your claim begins ticking.