Oregon Workers’ Compensation is anything but straightforward.  Many clients will contact us after receiving a letter that they were overpaid benefits. This often causes some anxiety and worry, but the fact is that the payments were not really overpaid, but instead paid in advance.

In the rules governing the payment of temporary total disability or temporary partial disability benefits, there are two requirements insurance companies must follow. These benefits are for wage replacement, and I often refer to these benefits as "time loss."

First, the insurance company is only required to pay any temporary total disability or temporary partial disability benefits if there is written authorization for either modified work or complete disability from work from the attending physician. As long as there is written authorization from the attending physician, these payments must continue.  These payments must continue until the worker is declared medically stationary. The Oregon Workers’ Compensation people call this “substantive” entitlement to time loss.

However, there is also a procedural limitation on payment of time loss benefits. Another rule provides that the insurance company cannot stop paying temporary total disability or temporary partial disability up until the issuance of a Notice of Closure.  This is the "procedural" apsect of time loss benefits.

In many cases, an attending physician will agree that an injured worker is medically stationary as of a certain date. However, the insurance carrier may need additional time to gather sufficient information to issue a Notice of Closure, or they just may not be doing their job.  As a result, any payments after the date the injured worker became medically stationary up until the date of the Notice of Closure is referred to as an “overpayment.”

When the Notice of Closure is issued, the insurance company may notify the injured worker that it made an “overpayment” of benefits, and will take a credit for the overpayment by reducing the amounts due in the Notice of Closure. This is not really an “overpayment,” but instead an advance on the payment of permanent partial disability benefits.

In some cases, the injured worker may not be due any permanent partial disability, or the amount of permanent partial disability benefits due may not be sufficient to completely cover the “overpayment.” The most important thing to realize is that you are not personally responsible for any overpayments made by the insurance company. Instead, the insurance company will have a credit on any future permanent partial disability payments.

If you have questions about your Oregon Workers’ Compensation claim, call us at 503-325-8600. We deal with these issues every day.

Oregon statute provides some protection for the injured worker who has a denied workers' compensation claim.

If a claim is denied, and the injured worker denies the appeal, medical providers must defer collection on any outsanding bills while the appeal is pending.  The key is to appeal the denial.  If a medical provider insists on collecting an outstanding bill, the injured worker should notify the medical provider that Oregon statute prevents any collection efforts while the bill is pending.

Many providers are well aware of the statute the prohibits collection of oustanding accounts.  Instead of an actual bill, an injured worker may receive a notice of the outstanding balance, just ot make sure that the injured worker is aware of the bill. Just to be sure that the insurance company is aware of the outstanding bill, we forward these bills to the workers' compensation carrier while the appeal is pending.  If the case settles, or if the injured worker prevails on the appeal, the bill is paid.

If you or a loved one have a denied workers' compensation claim with oustanding medical bills, remember that you have only 60 days to appeal the denial.  If you have questions, call us at 503-325-8600.  We have over twenty years' experience working with injured workers.

 

Oregon Workers' Comepnsation allows you to enter into a settlement on your claim.  There are two basic kinds of settlements, depending on whether your claim is accepted or denied.  When an injured worker settles a denied claim that is in dispute, the settlement is referred to as a disputed claims settlement, also known as a "DCS."  The rules set out how medical expenses are accounted for in the settlement.

Generally, any medical bills in the posession of the insurance company or employer must be paid out of the settlement.  However, the payment is not the face value of the medical bill, but the "audited" amount.  This is the amount that would have been paid to the medical provider under the Workers Compensation medical payment schedule had the claim been accepted. 

Up to forty percent of the settlement can be used to pay medical bills.  If the settlement amount is less than the total outstanding medical bills, then the bills are paid on a pro rata basis.  The medical provider can still seek to collect the remaining bill amount from the injured worker.  If the insurance company does not have an outstanding bill, then it may not be included in the settlement, and the injured worker would be responsible for that bill as well.

If you are looking at resolving a denied claim, or even an accepted claim, there is a lot to consider.  Call us with quesitons at 503-325-8600.  We have extensive experience dealing with the many issues an injured worker faces in deciding whether or how to resolve a Workers' Compensation Claim.

 

Oregon Workers' Compensation is a privately administered insurance benefit program. However, if you file a claim, and that claim is denied, you have the right to appeal the denial, and have the State of Oregon review the decision. Here are some thoughts on appealing claim denials.

Most importantly, you must file your request for hearing within 60 days of the date on the denial letter. There is an exception if you can show "good cause," but that exception is so narrow, it almost does not exist. You can file your request for hearing by simply writing a letter to the address provided on the denial letter. An attorney can help you fill out the request for hearing form which allows you to be more specific on what issues you are appealing.

You should also know that an attorney is able to take your case, and a fee is not payable unless that attorney is "instrumental" and getting the denied claim overturned or set aside. If the attorney is not successful, there is no attorney fee. Also, if your attorney is successful in overturning a denial, he or she may be able to get any case expenses reimbursed by the employer up to certain amounts provided for in the statute.

In many cases, the key to overturning a claim denial is obtaining a favorable medical opinion. Many times, an injured worker will turn to their treating physician, or even retain a physician to review the case, and provide an opinion. Another option is to seek a worker requested medical examination, which is similar to an insurance company seeking an independent medical examination.

If you have a denied Oregon Workers' Compensation claim, call us at 503-325-8600. We have extensive experience representing injured workers before the Workers Compensation Board.

In order to prove an on the job injury is "compensable" under the Oregon Workers' Compensation statute, you must prove more than the mere fact you were hurt at work.  You have to show that the injury "arose" from your work.  You also have to show that the injury occurred in the "course and scope" of your employment.  You have to show that the injury required some type of medical care, or, that it disabled you from work.  How this is proven includes providing medical evidence that is "supported by objective findings."  This article focuses on "objective findings."

To understand "objective findings," we need to look at how doctors and health care providers evaluate and treat injured workers.  First, most providers are going to ask you what happened, and where it hurts.  This is the "subjective" part of the examination.  In other words, it is what you are feeling, or have experienced; or, your subjective view of things. 

Then, the examiner will examine, and a lot of what he or she finds is referred to as "objective" findings.  This means that the findings are observable without your input.  A muscle spasm is a great example of an objective finding.  A doctor is going to feel the involuntary muscle contraction.  I fracture on an x ray is even more objective.  It is a picture of a bone, that is damaged.  You do not even have to be in the room for a doctor to observe that objective findings.

Oregon Workers's compensation law requires medical evidence be supported by objective findings, and the statute has its own definition, which can include all kinds of objective findings, including range of motion, atrophy, muscle strength and palpable muscle spasm.

But there is another component.   The statute goes on to state objective findings do not include physical findings or subjective responses to physical examinations that are not reproducible, measurable or observable.  So, the legal definition of what is objective is arguably more broad than what a doctor may think, because it includes a patient's response to physical examinations, so long as they can be reproduced, or can be measured, or can be observed. 

We make sure physicians understand this when seeking an opinion on a Workers' Compensation claim.  If you have questions about whether there is objective evidence to support your claim, give us a call at 503-325-8600.  We have a lot of experience with this issue, and can answer your questions.

Introduction

There are a few ways you can take your Oregon Workers' Compensation claim to hearing in front of an Administrative Law Judge (also called an "ALJ").  Most cases we handle go to hearing after we request hearing on a claim denial.  Here are a few other examples:

1. An appeal of a denial for a request to include specific medical conditions in our client's claim.
2. An appeal of a denial for proposed medical care.
3. An appeal of an Order on Reconsideration (this is an appeal of an appeal of a Notice of Closure).

What happens at hearing will depend on the issue you bring to the ALJ.  For example, if you appeal an Order on Reconsideration, the case is assigned to an ALJ for a "hearing," but usually there is no hearing.  Instead, the parties will usually provide the ALJ exhibits, and argue in writing.  More on that below.

Our summary will concentrate on a hearing involving the appeal of a claim denial.

Let's Talk About What Happens Before the Oregon Workers' Compensation Hearing

It makes sense to talk about what happens as the hearing approaches to put this all in perspective.

The hearing starts when someone, usually the injured worker, files a request for hearing.  When the Oregon Workers' Compensation Board receives the request, it will begin the scheduling process, and look to schedule a hearing at the nearest Hearings Division Office.  Most of our hearings are scheduled in Portland, Oregon, but we routinely request that the hearings be held in Astoria.  Workers' Compensation hearings are also set in Salem, Medford, and Eugene.  There are also un-staffed offices in Bend, Coos Bay, Klamath Falls, Newport, and Ontario, among others.

A notice of hearing is sent out to all parties, which includes the injured worker, the insurer, and the employer.  Before the hearing occurs, the insurer will provide the ALJ assigned to the case an exhibit packet. The injured worker can then supplement the exhibit file with their own submissions.  Often, exhibits, usually medical opinions, are provided within days of hearing, or even at the hearing.  When exhibits come in at the last minute, one party may decide to "cross examine" the author of the exhibit.  These are usually medical opinions, and the authors or usually doctors.  More on how that affects the hearing below.

Sometimes, there may be a disagreement or dispute between the parties before the hearing. There also may be in need to meet with the Judge for housekeeping matters, like scheduling of hearings. The Administrative Law Judge will schedule a telephone conference to resolve these issues before the hearing.  Some judges schedule a pre-hearing conference just to make sure everyone is ready to go to hearing.

The Hearing

Oregon Workers' Compensation hearings are somewhat like a court trial. However, the rules of evidence are more liberal, and the proceedings are less formal. For example, if you were in a court trial, medical records would have to be subpoenaed into the hearing, and you may even have to have a records custodian verify that the medical records are true and correct copies.  Medical opinions in court require the doctor to appear at trial or testify under oath on video recording.  Oregon Workers' Compensation rules allow written opinions as exhibits, but sometimes depositions (testimony under oath put into writing) are admitted as an exhibit.

At the hearing, the Administrative Law Judge goes over the issues and exhibits with each attorney before "going on the record." "Going on the record" is when recording the hearing begins.  Along with the exhibits, recording the hearing is part of the official "record" of the case.  The "record" is the body of evidence (exhibits and testimony) that the ALJ will base their opinion upon.  Once all the issues are sorted out, the ALJ goes on the record.

After the Administrative Law Judge recites the issues, and admits the exhibits, each party is given the opportunity to give an opening statement. The opening statement advises the Administrative Law Judge about the evidence.

After the opening statements, the party with the burden of proving their case presents their case and can call witnesses. Witnesses are not required all the time.  The opposing attorney can question these witnesses, which is known as "cross-examination."  After the party with the burden of proving their case is finished calling witnesses, they will "rest their case."  Then, the other side may put on their case, and calling their own witnesses.

When exhibits are "offered" within days of hearing, the other party may choose to cross-examine the author of the report.  As we explained, most of the time this involves a doctor's report offering an opinion.  When the other party cross examines the doctor, the hearing does not conclude.  Instead, the ALJ will "continue" the hearing, which is like calling a time out. The deposition is scheduled.  After the deposition, a transcript of the testimony is prepared and submitted as an exhibit.  Closing arguments are then scheduled, sometimes in person, or on the phone.  Depending on the issues, the parties may submit written closing arguments.

Once the closing arguments are done, the case is ready for the ALJ to review all the evidence to issue an Opinion and Order.

The Injured Workers' Testimony

When the hearing involves a claim denial, the injured worker will almost always testify at the hearing, but the testimony will depend on the issue.

In some cases, the denial is based on a claim that the worker was not at work when the injury occurred.  These are called "course and scope" cases.  The injured worker's testimony will focus on their job duties, and the employer-employee relationship.

If the the case involves a dispute regarding the nature and extent of the injury, the injured worker may talk in great detail about the "mechanics of injury."  This is a description of how the leg, arm, or lower back was injured. 

Sometimes, the case involves a claim where some medical problems are accepted, but other medical conditions are not.  The injured worker may talk about how the injury occurred, but also their medical history.

The Opinion and Order

The ALJ reviews the evidence and decides the case in an "Opinion and Order."  This is the written decision on the case.  ALJ's try to get the Opinion and Order issued within thirty days after the closing arguments occur.  Everyone involved, including the employer, the insurer, and the injured worker receive a copy of the Opinion and Order.  The Opinion and Order can be appealed to the Workers' Compensation Board.

Questions?

If you received a claim denial, or a notice of hearing, and have questions, contact us.  We can help you know where you stand and lay out your options.

When a Oregon Worker’s Compensation claim is denied, you should receive a denial letter. The Workers' Compensation claims rules require that denial letters provide you a notice of your right to appeal the decision. The denial will also explain the reason your claim is being denied, although sometimes the explanations are broad. Insurance companies may decide to amend the basis of their denial if new facts come to light during the litigation of a denied claim.

The most important thing to remember is that you have 60 days from the date of the denial letter to request a hearing with the Workers' Compensation Board. You can do this by simply writing a letter to the Workers' Compensation Board explaining that you wish to request a hearing on the denial of your claim. You can also use a request for hearing form, which asks several questions about the kind of claim denial you received, and the issues you would like to raise at the hearing.

If you are not represented by an attorney, the Hearings Division of the Oregon Workers’ Compensation Board will advise you to consider retaining attorney. Under the Oregon Workers’ Compensation statute, an attorney does not earn a fee unless her or she is “instrumental” in proving your claim, and getting the denial set aside.

There are many considerations involved in deciding whether to appeal your claim denial. Obviously, the most important is whether not you can prove that your injury or occupational disease is work related. Also, it’s always good to know what exactly or fighting over before deciding to litigate against an insurance company.

If you have questions about your claim denial, feel free to contact our office. We help people with these issues every day. You can also download our free book, Navigating The Oregon Workers’ Compensation Maze.

The First, Second and Third Parties

We explain it this way, and it may not be technically accurate, but that does not really matter.  When you suffer an on the job injury in Oregon, you are covered by your employer's workers' compensation insurance.  We consider you to be the "first party," and the insurer is the "second party."  In many cases, that is everyone involved in the claim.

Workers' compensation in Oregon is usually your only remedy, that is, your only source of recovery.  The benefits are what is provided for in the statute.  Generally, you cannot sue your employer, even if it was negligent in causing your injuries.  You cannot sue a negligent co-worker if they were negligent while working for the employer.  Again, these are general rules, and there are always exceptions.

However, if another person, a "third party," causes your injury, then there is a claim against that person, if you can prove they were careless, and that the careless behavior caused your injuries.

An Example

First, let's start with an example.  You are at work, and asked to run an errand.  While driving across town, you are stopped in traffic, someone hits you from behind, and you are injured.  You have a workers' compensation claim because you were injured on the job.  But you also have a personal injury claim against the person who caused the collision, which we can call the "at fault driver."  That person is the "third party." So, you have two claims from the one incident.  Because the workers' compensation carrier is paying your benefits, they have a lot of say in what happens with the third party claim.

The Workers' Compensation Carrier Has a Say

This is because your claim against the other party includes medical expenses and lost income.  These are benefits the workers' compensation carrier is already paying, so the workers' compensation carrier will want reimbursement from the at fault driver's insurance company for the money it spent on medical bills and disability benefits.  Another way of looking at it is that you and your workers' comp. carrier are in the same boat.  You both suffered losses.  You suffered a loss of your health, and the workers comp. carrier suffered a business loss.  So, each of you has a claim.

The Notice of Election

You do not have to pursue your third party claim, but you should.  We almost always advise clients to pursue the claim on their own. If you don't the workers' compensation carrier will, and all they are interested in is getting reimbursed for the benefits they provided.  Well, there is more you can recover if you pursue the claim on your own.  That is why you should pursue the claim on your own.

The workers' compensation carrier should send you a letter explaining all of this with a form called a "notice of election."  This form asks you to make a choice, or an "election."  You can elect to pursue the the third party claim on your own, or you can let the workers' compensation carrier pursue the claim for you.  If the workers' comp. carrier pursues the claim, it is looking out for itself to get back what it paid in benefits.  This is why we almost always advise clients to choose to pursue the claim on their own. This makes sure you have the best chance of recovering for all your losses. You must include any medical expenses and lost income that the workers' comp. carrier provided you as part of your claim.  If you recover expenses the workers' comp. carrier paid on your behalf, you must reimburse the workers' comp. carrier out of your settlement for those benefits.

"...we almost always advise clients to choose to

pursue the claim on their own."

Your Responsibilities

When you elect to pursue the claim on your own, you must keep the workers' compensation insurance company updated on the claim, and you cannot settle the case without the workers' compensation carrier's permission.  This "veto" power allows the workers' compensation carrier to make sure it is getting reimbursed as much as possible.  Sometimes, there are issues that prevent the workers' compensation carrier from getting full reimbursement out of your settlement.  The careless party may not have enough insurance, or there may be issues about proving who was at fault.  The statute that governs third party reimbursement allows reductions or discounts on the amount you must pay back to the workers comp. carrier, but only in certain cases.  You should also know that if there is a dispute about getting approval for a settlement, or how much you must pay back to your workers' comp. carrier, you can seek review with the Workers' Compensation Board.

A third party claim is like any other personal injury claim.  There are time limits involved, and you have the right to make the same claim for damages as you would with any other claim.  Sometimes, you will be able to claim losses that the workers' compensation did not provide you, like compensation for the loss of your health and quality of life.

Questions?

If you have any questions about a third party claim, contact us.  We have handled many third party claims, all the way through trial, and help people with these issues all the time.