Answering the Most Frequently Asked Questions Is a Good Start, But We Decided to Answer The Most Important Questions Too. Learn What You Need to Know About Your Injury and Disability Claim.

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

I have probably met with hundreds of people over the years to discuss their potential case. Every meeting is different. Some people come with a list of specific questions. Other people are frankly intimidated at the prospect of meeting with an attorney. It is usually their first time sitting down with a lawyer in person. If you are going to call or meet with a car accident lawyer to discuss your Oregon or Washington injury claim, here are a few things you may want to ask the attorney.

1.  How do you pay the attorney fee?

You are a potential client, and as such, you have a right to know how the fees work. Do not be shy about asking about the fee agreement. In many cases, attorneys charge a contingent fee. This means that the attorney does not recover a fee unless he or she recovers money to compensate you for your injury. This could be in the form of a settlement, arbitration, or jury verdict. Typically, the fee is a percentage of the recovery.

It is a good idea to know what the attorney means by "recovery." For example, if you are injured in a car that is insured in the State of Oregon, you are covered by personal injury protection benefits. This is a no-fault medical insurance policy that will pay your bills for necessary care, regardless of who is at fault. You may want to know if the attorney considers the payment of PIP benefits to be part of the "recovery." This can make a big difference in your overall recovery when the case is finished.

2. What about costs?

In addition to the attorney fee, most fee agreements address case costs. Costs are those things that the attorney will spend money on to prepare your case for a settlement demand, or for litigation. Typical case costs include the cost of obtaining medical records and bills, police reports, and other documents. In some cases, the attorney may have to hire an investigator, or a physician to review records or perform and examination.

Some attorneys will pay the costs as they are incurred, and then recover the costs that were advanced at the end of the case. You should have an idea of how the attorney handles costs. Ask also about what items the attorney will charge as costs.

3. What is your experience with these kinds of cases?

Some attorneys limit their practice to specific areas, and others are generalists. It is a good idea to know how much experience the potential attorney has in handling your injury case. This is important because many insurance companies will keep track of how an attorney approaches a case when representing an injured person. Attorneys that are willing to go to arbitration or trial may be in a better position to get you the best result possible because the insurance company knows that the attorney is willing to go "all the way" if that is necessary. Be sure to ask about the attorney's practical experience.

4. Who is going to handle my case?

There are some attorneys who have several legal assistants and paralegals, or even younger associate attorneys that take on many of the duties of handling the case. This is not necessarily a bad thing. There are a lot of moving parts to these cases. However, you should have an idea of who you will be working with, and who will help you make decisions on how to move forward at the case.

5. How long this is going to take?

If an attorney is being upfront with you about an Oregon or Washington injury claim, he or she will give you a range or estimate as to how long a case may take. It is sometimes difficult to give an accurate estimate as to how long it will take to resolve a claim, especially at the very beginning. Many things can happen along the way, but you should get a basic idea of how long you will be working with the attorney on this particular legal matter.

6. How do you evaluate the value of my case?

This is a question that may help you figure out the third question regarding experience. In our office, we have more than one way to evaluate a case. We will also not provide an estimate of the case's value at the very beginning, because we don't have the information we need to give you an intelligent answer. However, it's a good idea to know the process that goes along with evaluating the value of your case.

7. What is your communication policy?

Probably the biggest complaint people have about attorneys is that they do not return phone calls. You should ask about how the office will communicate with you and provide information about the case. In our office, we typically schedule phone conferences or in person appointments to answer questions and discuss the case with our clients. This works very well for us and our clients because everyone is on the same page about how and when we will be able to talk about the case.

8.  Tell Us Your Story

When we meet with the client for the first time, we want to hear what they have to say about their case, and their concerns. Our overall goal is to learn their story, and then answer any questions they may have about the case, and about how we work with clients. If you or somebody you know would like to talk about a case, call us at 503-325-8600. Even if we are not able to handle your case, we are happy to provide you options.

Making Up for What Was Lost

The term "compensatory damages" refers to a claim for the amount of money that it will take to make up for what a person lost.  For example, if you are injured in a car collision in Oregon, you can make different kinds of claims for compensatory damage.  The bottom line, however, is that the claim for compensatory damages is aimed at getting back what a person lost.  It is not a prize, or an award.  There are different kinds of compensatory damages.  Let's break it down into smaller pieces.

Economic Losses:  The Objective Losses

Any kind of claim that can be verified with some objective evidence is a claim for "economic damages."  This is the phrase law makers gave this kind of claim. All this means is that there is something you can point to that shows the amount of the loss.  In an Oregon personal injury case, medical expenses and lost wages are the most common examples of this kind of claim.  An injured person and an insurance adjuster will agree that a certain medical bill is a certain amount.  The number is right there on the bill. The adjuster may not agree that the medical care was necessary, or that it was a result of their insured's careless behavior.  They may also argue the bill is too high.  But one thing everyone can agree upon is that the bill is for a certain amount. That is what makes it objective.

Lost wages are the same.  If a doctor takes you off work for two weeks, and your wage records show you make $400.00 a week, then everyone will agree that the claim is for two weeks of lost income at $400.00 per week, or $800.00.  There could be arguments about whether you were disabled as long as you claim, or whether the disability was a result of someone's careless behavior.  But everyone will agree on the math.

In some cases, a person may have a permanent but partial loss of ability to earn, or the injury may have disabled them from any future work.  In those kinds of cases, an injured person can seek compensation for future lost earnings, or future lost earning capacity.  The same is true for future medical care needs.  Whenever you are making a claim for future losses, you will probably need a medical expert or life care planner to explain the need for future medical bills.  A treating doctor opinion is also required to prove future disability, and you may need to have a vocational expert calculate and explain future lost earnings.

Non-Economic Losses For the Loss of Health

The other kind of compensatory damage claim you can make in Oregon if another person carelessly causes you injury is a claim for "non-economic" damages.  Again, this is the phrase from the statute.  This kind of compensatory damage is compensation for the loss of your health.  Oregon law recognizes that everyone is entitled to be a whole person.  If someone is careless, and takes a part of that away from you, even if it is temporary, you are entitled to be compensated for that loss.

Juries, when asked to determine how much to compensate someone for this loss, are instructed to consider the "subjective, non-monetary" losses a person suffered because of another's negligence or carelessness.  This can include inability to participate in activities outside of work, pain, suffering, and the emotional distress that goes along with being injured.  Jurors are also told that they must be reasonable in determining the amount of non-economic damages a person deserves to make up for their harms and losses.

There are many factors that go into determining a "reasonable" amount of compensation for non-economic damage. How badly was the person injured?  How painful was the injury?  How much did it interfere with their everyday life?  One important factor is whether the injury's effects are permanent.  Some injuries are life changing.  If someone suffers a permanent loss from an injury, a jury can consider the life long consequences of the injury in determine what is fair to compensate for the loss.

How Much is Fair?

That depends on who you are asking.  A person suffering a life changing injury is going to have a different opinion than an insurance adjuster.  At the end of the day, what is fair is what a jury or other decision maker says is fair.

Questions?

If you are facing a serious injury claim, and have questions on where to go next, contact us.  We help people with these kind of issues every day.

Punitive damages are best described as "punishment damages." Unlike compensatory damages, punitive damages are available when a defendant's behavior is so egregious, that it socially unacceptable. The goal of punitive damages is to deter a defendant from engaging in this type of behavior in the future.

In Oregon, in order for a plaintiff to bring a claim for punitive damages, the injured plaintiff must first establish evidence that the defendant's behavior for exceeded the bounds of socially tolerable conduct. If the plaintiff has such evidence, then the plaintiff must file a motion to amend her complaint so that the punitive damage request can be included as part of the lawsuit.

Over the years, the Oregon Court of Appeals and the Oregon Supreme Court have ruled on what kinds of behavior allows for punitive damages. Criminal behavior, obviously because it is not socially accepted, will give rise to a claim for punitive damages. Assault, battery, and drunk driving are some common examples of behavior that allows a claim for punitive damages.

Even if a plaintiff is permitted to bring a claim for punitive damages, she will face several obstacles. First, the amount of damages awarded has to be rationally related to the defendant's behavior, and in some cases, the courts will find some awards excessive, in violation of the defendant precious constitutional rights. There must be some connection between the behavior, and the defendant's wealth in assessing punitive damage awards.

Some other facts about punitive damages:

• In almost all cases, insurance will not cover any award for punitive damages. This is especially true with punitive damages arising from criminal behavior. It is a public policy in Oregon that people should not be able to ensure their criminal behavior. That only makes sense.
• There are caps on how much an attorney can recover as an attorney fee out of a punitive damages award.
• 60% of any punitive damages award are payable to the Attorney General for Criminal Injuries Compensation Account of the Department of Justice Crime Victim's Assistant Section, and is allocated toward crime's victims assistance payments.
• 10% of the punitive damages award is also payable to the Attorney General. However this part of the award goes to a State Court Facilities and Security Account.

In many cases, we have represented people who were injured, and also considered a crime victim. There are many considerations when dealing with a District Attorney Victims Compensation office while at the same time, pursuing a personal injury claim.

If you are a crime victim, and have questions about your dealings with the District Attorney, and your personal injury claim, call us at 503-325-8600. We have helped many people get through this process, and can answer your questions.

If you have an injury claim in Oregon, you have a right to request compensation for your losses. Oregon law divides the type of loss as you can claim into two categories. The first is called "economic" damages.  The other is called "non-economic" damages.

"Economic" damages are those kinds of losses that are objectively verifiable. In other words, these kinds of claims can be objectively verified with a medical bill or a wage stub. The statute that defines economic losses includes medical expenses, and the cost of substitute domestic services. You should also keep in mind that these losses cover both already incurred losses, but also losses that you can verify will occur in the future.

Washington allows for a similar claim. However, the labels applied to this type of claim are different. Lost wages, medical expenses and other verifiable expenses in Washington are categorized in the claim for "special" damages. Same damages, different name.

If you have an Oregon or Washington injury claim, and have questions about the extent of your economic loss, call us at 503-325-8600. We have handled several claims over the years, and can help you determine the full extent of your economic loss.

If you have been injured in an auto collision in Oregon or Washington, you may make a claim for your losses, also known as "damages." In each state, the statutes assign specific names to the kind of "damages" that you can claim.

With an injury claim in Oregon, you can make a claim for "economic damages." These are the kind of losses that can be verified with some document, like a medical bill or wage stubs. The key to proving an economic loss is linking it to the injuries caused in the auto collision. For example, if you were injured in a collision, and required physical therapy, you must show that the need for the physical therapy is a result of the injuries from the auto collision. You also need to show that the treatment was necessary, and that the charge for the treatment was reasonable.

Economic damages are not limited to your past medical expenses or lost wages. In some cases, you may have a claim for future medical expenses and future lost income. Claims for future losses often require strong proof, and sometimes you may need to help of an expert witness to document and verify the need for future medical treatment or disability.

If you have a claim in Washington for an auto injury, you can make the same claim, but the damages in Washington are known as "special" damages. Again, these are the kind of damages that you can claim for things that are verifiable, like medical expenses and lost wages.

The other kind of lost that you can claim is known as "non-economic" damages in Oregon, and "general" damages in Washington. These damages are intended to compensate an injured person for the loss of their health, which includes pain and suffering, emotional distress, loss of ability, and all the other things that go along with being injured. The amount of not economic damages you may claim depends upon the severity of the injury, and its long-term consequences.

If you have a auto injury or any kind of injury claim in Oregon or Washington, and have questions, call us at 503-325-8600. We can explain how the process works, and let you know where you stand.

When a child suffers an injury as a result of another's carelessness, the child has a viable injury claim. However, Oregon and Washington law consider children to be "disabled," but only in the legal sense. In other words, because a child is not legally able to pursue a claim, and to enter into any agreement with the lawyer or an insurance company, special rules apply on how these claims are pursued.

In Oregon, the law requires that a parent or another responsible adult be appointed as  a conservator. A person is appointed as a conservator or by petitioning the court for permission. There are special requirements for people to be qualified to act as a conservator. In a traditional conservatorship, special responsibilities are imposed on the conservator, which generally require the conservator to act in the best interest of the child. If there is any recovery on behalf of the child, the conservator is required to manage the funds in the best interest of the child. The conservator must obtain court approval of any settlement, and must account for the management of funds on an annual basis. In some cases, the conservator must be bonded to protect the child's assets. Even on a local level, different courts throughout Oregon have different requirements on approving settlements for children, and management of settlement funds.

In Washington, courts require approval of the settlement of the children's injury claim. However, the procedure works somewhat differently. In Washington, the responsible parent must petition the court for the appointment of a "guardian ad litem." This person is somebody qualified to evaluate whether or not the settlement is in the best interest of the child. The guardian ad litem has no interest in the case, and will report to the court as to whether the terms of the settlement are reasonable. Sometimes, the guardian ad litem may make recommendations as to the management of settlement funds.

Regardless of whether a case is resolved in Oregon or Washington, structured settlements are often employed to manage the funds in the best interest of the child. A structured settlement usually takes the form of an annuity, which is an insurance contract. With an annuity, the responsible parent or adult agrees to a direct transfer of settlement funds from the responsible insurance company to another insurance company that provides the annuity. The annuity sets out a schedule of periodic payments over time to the child. Typically, payments are deferred until the child reaches adulthood. Because the insurance company is "holding on" to the bulk of the settlement funds, those funds earn interest, and the periodic payments over time will exceed the original value of the annuity.  In some cases, the earnings on an annuity are exempt from income tax. There may be some cases where disbursements are made prior to the child reaching adulthood, depending upon the child's needs.

Both states have enacted these laws so that the child's best interest are first and foremost. Unfortunately, there are some sad stories where conservators and even parents have taken advantage of settlements and recoveries made for injured children, and these laws seek to prevent the misuse of funds.

When we represent a child in injury claim, we will often work with the responsible parent or individual to get the conservatorship established, appoint a guardian ad litem if necessary, and work with a reputable structured settlement broker to make sure that the annuity is in the child's best interest. We can sometimes structure the settlement so that a conservator in Oregon is not required to file annual reports.

If you have a child who is dealing with an injury claim, call us with your questions at 503-325-8600. We can explain your options, and let you know where you stand.

A "structured settlement" is a settlement of an injury claim where the parties agree that the injured person's recovery will be placed in an annuity contract, and payments will be made over a schedule period of time. Of course, this raises the question of what an annuity contract is.

The best way to think of an annuity contract is to simply consider it as an insurance policy. When you enter into an annuity contract, you agree to surrender control over a sum of money to an insurance company. This money may be "locked up" for a period of time. After an agreed-upon period of time, the insurance company then makes periodic payments from the annuity. The payments are scheduled as agreed-upon, and when everything is said and done, in many cases, the total sum of the payments made over time are greater than the initial amount in the annuity.

Another way to look at this is as a loan to the insurance company with deferred payments and interest.

Why would somebody want to enter into an annuity contract?

There are a couple of reasons somebody might be interested in structuring their settlement with an annuity. First, if done correctly, the income or increase in overall recovery with schedule payments is not taxable. However, the principle recovery on an injury claim is usually not taxable as well.

More often, we use annuity contracts when representing children. Depending upon the child's age at the time we resolve a claim, an annuity contract presents a wonderful opportunity for college savings or other opportunities for young person. Also, if a court approves of the structured settlement within annuity contract, in many cases, it will waive the typical requirements of an annual accounting for the conservatorship, which is also a necessary part of resolving a child this case.

Although annuity contracts are not for everyone, they definitely should be considered when planning the management of settlement funds for an injured child.

Sometimes, an insurance company will approach a parent of an injured child and propose an annuity contract. Any parent managing the claim on the half of a child should always cautious in evaluating which annuity product works best. We have a great relationship with a trusted annuity broker who ensures that the annuity product is reliable and solid, which is crucial to ensure reliability.

If you have a child who has an injury claim, and want to explore your options in pursuing and resolving the claim in the best interest of your child, call us at 503-325-8600. We can go through all the options, and help you make the right decision.
 

Yes.

If you have a personal injury claim in Oregon or Washington, and a health plan or health insurance policy is paying your medical bills, you will probably have to pay back your health plan out of any personal injury settlement you may recover. How much depends on the health plan.

In auto injury cases, people who are injured in a car that was insured in the State of Oregon will have personal injury protection benefits, which provide medical insurance for injury related treatment up to a certain amount, and over a certain period of time. In Washington, personal injury protection coverage is optional, so you may or may not have this coverage available to paymedical expenses.

If you suffer a serious injury, you are probably going to use all of the available personal injury protection coverage, which means that you will have to look to your health plan to cover the remainder of your care. If your automobile policy was originated in Washington, you may not have personal injury protection coverage, and you will have to have your health care plan pay all of your medical bills.  In either case, you  will probably have to reimburse your health plan for the medical bills it paid out of your personal injury settlement. How much depends on the health plan, and the circumstances of your case.

Most private health insurance is not actually "insurance" in the legal sense. Instead, it is a "health plan," which is regulated by federal law. The federal law that regulates  these plans allows the insurance carrier a lot of leeway in what it can include in the plan. Most health plans will exclude payment of any medical expenses that are responsibility of some other party, like a careless driver who injures you in an auto collision. However, these health plans will pay for accident related medical care, but only if you agree to reimburse the health plan out of any money that you obtain in a personal injury settlement.

The amount that you have to pay back depends on the plan's language. Some plans will only pay up to a certain amount for accident related care. Other plans will pay for all care, but the plan may require that you pay 100% of the medical benefits it provided. Other plans will negotiate a discounted reimbursement, realizing that many cases, you may have had to hire an attorney to help you with the case.  In other words, the plan is agreeing to share in the cost of paying the attorney.

When you have been involved in a serious injury, it is important to know exactly what the terms of the health plan are so that you can plan ahead.

We deal with issues involving personal injury claims and reimbursing health plans when there is a personal injury settlement or recovery. If you have questions about your options with a personal injury claim and your health plan, call us at 503-325-8600. We deal these issues every day.

 

Although it is better to have your claim accepted than denied, there still may be some issues lurking beneath an accepted claim. Here are a couple of things to consider, even if your claim has been accepted.

Check The Notice of Acceptance

The Notice of Acceptance is probably the most important document in your claims file. This document, usually in the form of a letter, notifies the injured worker of the exact medical condition that the insurance company will recognize as the work related injury. Some people may have suffered a torn rotator cuff of the shoulder, or a herniated disc in the low back, but the notice of acceptance may only include a shoulder strain or a lumbar strain. The treatment for a strain injury is much different than the treatment required for a torn rotator cuff or a herniated disc. Also, if you are permanently impaired as result of your on-the-job injury, the insurance company may only calculate permanent partial disability for the accepted strain injury, and not a herniated disc or torn rotator cuff.

You should examine the notice of acceptance closely, and consider speaking with your physician to make sure that the injuries resulting from your on-the-job accident are fully covered in the notice of acceptance.

Here is also an important tip:  Under the Workers' Compensation statute, an insurance company may pay for medical care to treat a condition that it is not actually accepting as part of the claim. Merely paying for the medical care  does not legally obligate the insurance company to accept that particular condition.  We have seen insurance companies pay a physician to perform a complicated extensive surgery, only later to convince that same physician to sign a document that none of the conditions treated in the surgery were result of an on-the-job injury. As a result, our client was left with little or no permanent partial disability benefits, and was not qualified for vocational training. So, even if your medical bills are being paid for that herniated disc or that one rotator cuff, this conditions may not be part of the accepted claim.

If you determine that the insurance company has not accepted all of your medical problems, you can make a written request that the insurance company include all of the conditions resulting from your injury. In some cases, a new medical condition may be discovered after the notice of acceptance was issued. In that case, you can ask the insurance company in writing to include the new medical condition as part of the claim as well.

Check the Claim Classification

Included in the initial Notice of Acceptance is a claim classification. An accepted Oregon Workers' Compensation claim will be classified as either "disabling" or "non-disabling." If the claim is disabling, then it means that the insurance company agrees that you have missed time from work as result of your injury, or that you will likely have some permanent impairment as result of your injury.

The insurance company is required to issue a Notice of Closure with a disabling claim. This notice provide you a lot of valuable information, and also indicates whether not you are entitled to a Permanent Partial Disability benefit.  If you have missed time from work, or you feel that your injury will have some permanent limitation in your ability to work, check the classification. You have only one year from the date of the notice of acceptance to ask the insurance company to change the classification. Should it refuse, then you have a right to seek review with the State of Oregon.

If you are not sure whether your claim was properly classified, or if the insurance company has taken full responsibility for all the injuries you suffered, call us at 503-325-8600. We can evaluate your claims file, and let you know where you stand.

We often get calls from people who ask this very question.  When an adjuster tells you that he or she is going to send some money, usually a few hundred dollars, and some paperwork, you need to be careful.

First, realize that the paperwork is probably a settlement agreement, that if signed, releases the insurance company from any future responsibility for health problems you may have in the future. Many people are not injured in fender benders, and do not have to deal with any long term issues, but you want to make sure  So, if even if you feel fine, just take some time to make sure everything is going okay, and you are able to go back to normal activities before signing a release.

Also, you may have other claims like property damage, or you may have to reimburse your insurance company if it paid medical bills.  If you sign away your claim, you may be stuck with obligations that should have been someone else's responsibility.

We offer a free book (see below) that will help you know where you stand with your auto claim.  Check out our book, or give us a call.  We handle these kinds of issues every day.

Keeping a note book or diary after an auto collision can be helpful with your claim for many reasons. There is a lot going on in the beginning, including property damage and repair, car rentals, and in serious cases, extended hospitalizations with a lot of follow up care. 

There is also the simple fact that when it comes time to document your claim, you will have this resource to refer back to when explaining how the injury affected your every day life.  However, there are a few things to keep in mind when keeping a journal or diary.

• The law may vary state to state, but in Oregon, unless the diary or journal is kept at the instruction of an attorney, you must assume that if the case is filed in court, an attorney representing the careless driver will seek a copy of the notes or journal. 
• You should keep the notes brief.  This is not a book, or a novel.  It is a tool that allows you to recall missed family events, struggles with every day activities, and simple things like the time taken to attend appointments.  The idea is that you will be able to recall these events after reviewing the notes.
• Be positive.  Overcoming an injury is a struggle for sure, but if you are going to make the best recovery possible, you need to celebrate your successes along with your struggles.   We have a client with a significant pre-existing condition who has a stellar attitude, and calls herself the Queen of Adaptation.  That is a great attitude.  Her injury has affected her, and in a big way, but she is adapting.  It's not just good for the case, but it is good for you.

Questions?  Call us at 503-325-8600.  If you are in the midst of dealing with an injury claim of any kind, give us a call, and we can help you know where you stand.

If a car is insured in the State of Oregon, it must carry Personal Injury Protection benefits, which provide medical, disability, domestic service and child care benefits. The auto insurer providing personal injury protection benefits, aka PIP benefits, has a right to manage the claim, and determine whether medical care is actually necessary.

One way that a PIP carrier manages these claims is through “independent medical examinations.” Under the insurance policy, the PIP carrier can require, if it is reasonable, that its insured attend an independent medical examination. This is a medical examination performed by a doctor chosen by the insurance company to determine what care is necessary, if at all.  Based on the opinion of the independent medical examiner, the PIP carrier may terminate payment of medical benefits, or continue medical benefits as recommended. If there is a disagreement, the insured can seek arbitration, or file a complaint in state court.

If this request is reasonable, then the insured is required to attend the examination if he or she wants to continue seeking benefits under the insurance policy. If the insured decides not to attend the examination, then the insurance company can terminate benefits, citing the insured’s failure to cooperate as required under the contract.

In some cases, we may advise our client not to attend the independent medical examination. Some independent medical examination physicians have reputations that precede them, and are notorious for a strong bias against the injured motorist. Other medical examiners tend to be more objective, and if the injured motorist truly needs further medical care, these reasonable and objective medical examiners will say so.

There are a lot of factors to consider when deciding whether to attend or not attend an independent medical examination. First, does the injured motorist have other health insurance that will cover the cost of necessary medical care? Second, even if the injured motorist attends the examination, will be attending physician who is actually treating the injury sustained in the car collision be willing to step up and oppose or disagree with the findings and the independent medical examination? Another consideration is how the independent medical examination may affect the claim against the responsible motorist and its insurance company.

Our experience is that whether to attend an independent medical examination is very much dependent on the specific facts of each case, and our client's specific situation. There are no easy answers, because in the end, nobody really knows exactly what the outcome of one of these examinations may yield, but we can provide some pretty good insight on some of the medical providers that perform these examinations for insurance companies.

If you are dealing with a motor vehicle collision injury in Oregon or Washington, and you have questions about whether to attend a personal injury protection medical examination, call us at 503-325-8600. We can discuss the many factors that go into deciding whether you should go are not go to these exams.

 

What Is A Medical Release?

A medical release is a document that allows another person to obtain your medical records.  These forms are required because your medical records are confidential, and your medical providers will not share this information unless they are provided a form that you signed giving permission to release your records.

Why Do Insurer's Want Medical Releases?

When you are injured because of someone else's careless behavior, you have a claim for your losses and harms.  Lawyers call these losses "damages."  In an injury claim, there are two categories of damages:  Economic and Non-economic.  Economic damages are things that can be objectively verified, like medical expenses and lost income.  Non-economic damages are damages to compensate you for the loss of your health.  Some people have heard of "pain and suffering."  These are two aspects of non-economic damages, but there are many others.

Insurer's want your medical records so they can evaluate your claim to make an offer of settlement.  Many insurers, especially in auto injury claims, will feed the diagnostic and billing codes it finds in your records into a computer program to calculate an offer of settlement.  Insurers are looking to reduce your injury to some kind of formula.  This cannot be avoided, but you should be the one to obtain and provide these records. Why?

First, the liability carrier's release forms cover all medical records, not just the ones for the injuries involved in your claim.  Although we have not seen this happen, a medical release may even allow the insurer to speak to your doctor.  There is no need for that.

The truth is that at one point, you or your attorney are going to provide medical records to the insurer to evaluate the case, or if the case is filed in court, to the attorney representing the at fault party.

But I Already Signed One!

It's not the end of the world.  Many of our clients have already signed a medical release when they come to see us.  We will revoke the release, which you can do as well, and request any medical records the insurer obtained with the release.

When Do I Sign A Release?

In an Oregon auto injury claim, your insurance company provides personal injury protection, or "PIP" benefits.  These benefits cover medical expenses, and if you qualify, disability benefits. Your insurance company will send you an application for benefits, which includes a medical release. Because you have an agreement with the insurance company, you must sign this release, so the insurance adjuster can obtain your medical records and pay your bills.  Those records are not shared with the other insurance company.

Questions?

We help people facing these issues every day, so if you have questions, contact us.  We can help you know where you stand.

Many of our clients who are injured in a car wrecks in Oregon and Washington have to first deal with fixing or replacing their car. This is known as the property damage claim. Here are a few pointers.

First, if your car is repairable, you are entitled to the cost of repairing the car. In some cases, even after the car is repaired, and may still not be worth what it was prior to the collision. You may have an additional claim for the difference in the value of the car from before the accident. This is often referred to as a “diminished value claim.”

While your cars being repaired, or during the time it takes to resolve a total loss claim, you are entitled to be compensated for the loss of the use of the vehicle. In Oregon, the amount of money to cover the loss of use of the vehicles equal to what it would cost to rent a similar vehicle. Many insurance companies will authorize a rental during the repair process, or during the time it takes to determine whether your car is a “total loss.”

When a car is “totaled,” this means that the cost of repair is too close to the fair market value of the car.  In other words, it doesn’t make sense to fix a car if the cost of repair is almost the same as the car’s value. If this happens, you have a claim for the fair market value of the car at the time of the wreck.  The fair market value is what a willing buyer would have paid a willing seller for your car immediately prior to the collision. Many insurance companies use database services to determine fair market value, and sometimes they are accurate, but many times not.

If you have been injured in a car wreck in Washington or Oregon, and you have questions about property damage, we are here to help. We have offices in Beaverton and Astoria, and can meet with you at your convenience. Call us at 503-325-8600 with any questions.

There is no stock answer to when a person should hire a lawyer to represent them on their Oregon injury claim, or if they need a lawyer at all. However, here are a few considerations.

If you suffered a serious injury that required an extensive hospital stay, and you are looking at lifelong need for medical care, then you may want to consult with a lawyer sooner than later. An attorney can investigate the case, and determine whether not there any other people or parties that may be responsible for causing your injury. An attorney can also determine whether not you have other options, like an underinsured motorist claim. Finally, an experienced an attorney will properly document not only your past medical expenses and needs, but your future medical care needs.

If you find that you the insurance adjusters being overly aggressive, or is not willing to accept that their insured caused your car wreck, then you may want to speak with a lawyer to see about your options. Many attorneys offer a free consultation, and will provide you at least a basic framework of the issues in your case.

If the insurance company has offer to resolve your case, and you are not certain whether not he offer is “fair,” and may make sense to consult with an attorney to see whether you should accept the offer or move forward with the case.

Our office offers a free book, the Oregon Personal Injury guide. This guide will walk you through all of the major issues and concerns people face with an injury claim in Oregon, and will at least give you a basic idea of where you stand with your case. This is a good option if an insurance adjuster is asking you to sign medical releases, or give a recorded statement.  You can also check out our website, which provides helpful articles, blog entries, and answers to the most frequently asked questions. Of course, feel free to call us at 503-325-8600. We have offices in Beaverton and Astoria, and can meet with you personally to discuss your case.

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 are injured in Oregon or Washington, and you have a claim against a responsible party, your health insurance may be called upon to pay for some of the medical care required to treat your injuries. Depending upon the type of health insurance you carry, you may have to reimburse your health plan for some or all of the benefits it provided to your doctors.

Health insurance comes in many forms. We use the term "health insurance" and "health plan", but they mean the same thing.  Most health plans will exclude coverage for treatment related to injury sustained as a result of another person’s careless behavior. The reasoning is that the careless person's should pay the medical bill. However, many of these health plans will make payments if you sign an agreement to reimburse the health plan out of any recovery you make from the responsible party.  This is why you need to read these agreements carefully before you sign.

An illustration may be helpful. Let’s say you are involved in a motor vehicle collision, and you sustained serious injuries. You may have medical coverage in your automobile policy, but with serious injuries, that coverage may be “exhausted,” which means that you have used all of the available benefits. If you have a health plan, it will take over paying your medical expenses, but only if you agree that if you make a settlement against the responsible party, you will reimburse your health plan for the value of benefits it provided to your health care providers.

This is similar to the agreement you have with your own auto insurance when it provides personal injury protection benefits. However, problems can crop up if the careless party does not have enough coverage to cover all of your medical bills, including those bills your health plan covered.  Also, there may be a disagreement whether the careless party was 100% responsible for your injury, and there could even be an issue about whether the medical care that you received was related to the accident or collision.

Some health plans will allow a discount or reduction of the amount you must reimburse to share in attorney fees, account for the other party's fault, or even to make sure you are fairly compensated. Others will not. There are some health plans that will consider the total settlement or recovery amount as subject to reimbursement, and may exclude any future accident related care up to the amount of your overall settlement, regardless of whether it was allocated to attorney fees, costs, or lost wages.

If you have a serious injury claim where your health plan is involved, call us at 503-325-8600 if you have questions. We deal with these issues every day.

It is no secret that most injury claims in Oregon and Washington do not go to trial. Most of the time, people will be able to resolve their differences, and move on. However, there are some cases that should and do go to trial. Here are a few thoughts on whether your Oregon or Washington injury case will go to trial.

In the end, it depends on what you can prove. If you have a clear liability case, then there is a greater chance you may be able to resolve your case short of trial. However, if the defendant, or responsible party, denies fault, then the chances of going to trial have increased.

The other issue for the Oregon or Washington injury claim is damage. What kind of damage resulted from the defendant’s negligent or careless behavior? Sometimes, an insurance company will admit that their insured was at fault, and acted carelessly. However, whether and how much injury and auto collision caused is a whole different issue. If there is a disagreement about the nature and extent of an injury resulting from an Oregon or Washington car collision, or other negligent behavior, then the chances of going to trial are increased.

Another factor is the people you are dealing with. Some insurance companies are more willing to come to the table to discuss resolution, and others are not. Certain insurance companies have hard and fast rules over which cases will go to trial, and which will not.

If you have an injury claim in Oregon or Washington, and want to know all the possible scenarios, call us at 503-325-8600. We represented many clients over the years against many different insurance companies, and have experience resolving cases and taking them to trial.

Many times, when people consult with our office, there may have been some discussion with an insurance adjuster on settling an auto injury claim, whether be in Oregon or Washington. Often times, we find that many people raise good questions about what it exactly means to settle their case.

Essentially, settling any kind of claim involves releasing your rights to further pursue the claim in exchange for payment of a sum of money. However, many settlement agreements go out of their way to make it clear what exactly is involved in the agreement. Not all settlement agreements are the same, but they often include the following provisions:

• Auto insurance companies are responsible for paying the claims made against their the people they insure. A settlement agreement will make sure that the injured party knows she is releasing not only the insured and the insurance company, but anybody remotely associated with the driver and the insurance company from any liability. This provision usually rambles on, naming any possible person or entity that may be potentially responsible for causing injury.
• Most settlement agreements will include a statement that the responsible party, by resolving the claim, is not admitting to any liability or fault. There are many possible motives for this provision. For example, the auto collision may involve several people, and many cars, and if a responsible insurance company admits fault for causing one injury, it may be concerned about admitting fault for causing injuries to others.
• Settlement agreements will make sure that the injured party understands that she is releasing her claim for her injuries that she actually knows about, but also any future or unknown injuries. This provision stresses that the settlement agreement is final, and even if some unknown injury comes to the surface after the agreement is signed, the settlement agreement shuts down a right to make a claim for the new injury.
• Many settlement agreements also include a “hold harmless” clause. This provision usually addresses payment of medical expenses. In some cases, a case may resolved by settlement, and a medical provider may have gone unpaid. This type of provision make certain that if a medical provider is still owed money after the settlement, the responsibility for paying the bill or defending claims for payment of the bill lies with the party who resolve the case, not the insurance company or the negligent driver. In other words, the injured person is agreeing to take on any claims for payment of medical bills after the case resolves, and hold the insurance company harmless from those claims.
• A similar provision involves inclusion of any outstanding medical bills or liens. In some cases, an injured person may agree to resolve the case for a certain sum of money, but that sum of money will include any insurance liens or responsibility for outstanding medical expenses. Again, the insurance company is making sure it has no other financial obligation for the claim.
• Rarely, an insurance company will seek a confidentiality clause as part of the settlement agreement. This is common with high profile cases or cases involving catastrophic injury. Some corporate defendants or large insurance companies will not want an injured party to publish or disclose the nature of the agreement, or the amount of settlement.

If you are facing an injury claim in Oregon or Washington, and have questions about potential settlement, and how these agreements were, call us at 503-325-8600. We have extensive experience working through settlement agreements.