Oregon Workers’ Compensation (WC) laws provide for 4 main benefits:
There is an additional category of benefits involving of survivorship benefits to those who qualify as “dependents” of workers who suffered a fatal injury while at work. As a claimant, you are potentially entitled to receive each of these benefits, so long as the essential prerequisites are met. Determining whether or not you meet these requirements can sometimes be difficult to discern, which is where we come in.
If you have questions about your eligibility for any of these benefits, call our office at (503) 563-7035.
Anyone injured at work should seek medical treatment immediately. After that, you need to give sufficient notice to your employer, letting them know you suffered a work-related injury. Employees must provide this notice within 90 days of the date of injury. Please note that if you wait too long, you could be barred from pursuing the claim. Such notice can be given by telling a supervisor, preferably in writing, that you suffered a work-related injury. You can also provide notice by filing official paperwork. However, providing notice is not the same as initiating a claim.
If you should choose to file a workers’ compensation claim, you may do so either by completing a Form 801 with your employer, or a Form 827 with your doctor (both forms can be found here). Once you complete the applicable paperwork, the insurer will have 60 days to investigate and either accept or deny your claim. During an investigation, they will usually take recorded statements from the claimant and any witnesses, and collect information from an independent medical examination (IME). Please note that you have the right to have an attorney present during your recorded statement, and you may bring an observer with you to your IME. This 60-day period is called “deferred status.”
Next, you will need to establish yourself as a patient of an “attending physician,” who will work with you during your recovery. Your attending physician (AP) is the medical provider primarily in charge of directing the care and treatment of your work-related injury. If you are unable to perform your full work duties, your AP may issue off-work or light-duty work restrictions. It is your responsibility to get these restrictions to your employer in a timely manner. These restrictions will protect your ongoing right to employment and ongoing right to receive temporary disability. Please keep in mind that such restrictions must be issued contemporaneously with your inability to work. Your doctor can only retroactively authorize restrictions up to 14 days from the date of the office visit.
If the workers’ compensation insurer denies your claim, you have 60 days from the date of the issuance of the denial to request a hearing before the Workers’ Compensation Board (WCB). Do not let your denial become final by waiting more than 60 days to request a hearing. Remember, you have the right to have a lawyer represent your claim.
Having legal representation to litigate the denial can prove invaluable in obtaining fair compensation. Keep in mind, the insurer will undoubtedly have legal counsel on their side as well. Contact Randy M. Elmer, Attorney at Law, PC if you receive a denial and our team can help you get the hearing requested promptly.
Lawyers who chose to represent claimants in Oregon’s WC system only get paid if they are instrumental in obtaining compensation for the injured worker. If your lawyer is not successful, you owe the lawyer nothing. Any payments for workers’ compensation legal help come in two variations: assessed fees and out-of-compensation fees.
Assessed fees: If you receive a denial of compensation (claim denial, temporary disability or medical dispute), and your attorney is successful in getting the denial set aside, the insurer will be ordered to pay your attorney directly for his or her services.
Out-of-Compensation fees: If your lawyer helps you settle your claim, your lawyer will receive a portion of your settlement. This variation looks like the standard contingency fee award in other legal settlements. Currently, this contingency fee is defined by Workers’ Compensation Board rule to be 25% of the first $50,000 of any settlement, and only 10% of all proceeds above $50,000. If your lawyer helps you obtain more benefits upon reconsideration, your lawyer will receive 10% of only the increase in those benefits.
If the insurer issues a Notice of Closure (NOC), you have 60 days from the date of its issuance to request reconsideration of the NOC by the Workers’ Compensation Division (WCD). Reconsideration is, in essence, an audit of the NOC. The WCD may rescind, modify, or affirm the insurer’s NOC.
The WCD will review your file to make sure your accepted conditions were, in fact, medically stationary, you were paid temporary disability for all periods of entitlement, and your permanent disability award, if any, was accurately calculated. The WCD’s findings will be contained in a document that will be issued upon the audit, called an order on reconsideration.
If you have received a NOC, please contact our office and we will be glad to help you submit reconsideration paperwork to the WCD.
Claimant: Any party pursuing benefits under the WC system. This may include injured workers or the surviving family members of workers who were fatally injured on the job.
Attending Physician: An attending physician is the medical provider primarily in charge of directing the care and treatment of the injured party’s work-related injury. There are certain restrictions regarding who you may see, and you can only have a maximum of 3 different attending physicians over the life of your claim.
An attending physician has 3 essential duties:
Insurer: The insurer is the workers’ compensation insurance company an employer uses for workers’ compensation coverage. Some Oregon employers may be self-insured. Click here to do a coverage search of your employer.
Injury: Under Oregon workers’ compensation law, an injury is a condition that arose suddenly from a discrete, identifiable event, or series of events, while in the course and scope of a person’s employment.
Occupational Disease: Under Oregon WC law, an occupational disease is a physical or mental condition attributable to repetitive work exposure. Your lifetime work activity must be the major contributing cause of the occupational disease for which you now seek compensation. If you find out you suffer from an occupational disease, you must file a claim for that condition within one year of learning that you suffer from a work-related ailment.
Pre-Existing Conditions: A pre-existing condition can be any type of condition a person was diagnosed with or received treatment for in the past. For example, a worker may have an existing arthritic condition that existed before her employment, which might contribute to her current inability to work. Preexisting conditions can affect your eligibility to receive workers’ compensation benefits.
Compensability: The short-hand term used to describe an injury or occupational disease that belongs in Oregon’s WC system.
Acompensable injury is any injury that arises out of, and occurs during, employment. It either requires medical care, results in an inability to work, or leads to death.
A compensable occupational disease is a disease or infection that occurs during the course of employment and is caused by substances or activities to which an employee is not ordinarily subjected or exposed to. The employee must have been exposed doing something other than regular, actual employment, though the disease must require medical services, results an inability to work, or cause the worker’s death.
Deferred Status: The 60-day period after which the insurer receives official notice of an employee’s claim. During the 60-day period, the insurer investigates the compensability of the employee’s claim.
Interim Compensation: Temporary disability and medical service benefits received during the deferred status of a claim.
Notice of Acceptance (NOA): The formal document issued by the insurer acknowledging that a claimant suffered a compensable injury, occupational disease, or death. The NOA will enumerate the conditions or disease determined to be compensable.
Notice of Denial: The formal document issued by the insurer stating the determination that the claimant did not suffer a compensable injury, occupational disease, or death. A claimant must request a hearing within 60 days of the date the denial issued or else that denial will become final.
Temporary Disability: Commonly referred to as time loss, temporary disability benefits are paid when a WC claim results in an inability to work—i.e., disability. Temporary disability is categorized as either total temporary disability or temporary partial disability, depending on your restrictions and your employer’s ability to accommodate those restrictions. Total temporary disability is two-thirds of the employee’s average weekly wage at injury. Temporary partial disability is two-thirds of the difference between the employee’s average weekly wage at injury and your post-injury earnings. The attending physician can authorize work restrictions, thus entitling you to temporary benefits.
Medical Services: Employees have the right to receive medical services as they relate to the accepted conditions or disease, so long as those medical services are reasonable and necessary. Medical services include diagnostics, curative treatment, and palliative care. Medical services may also include prosthetics and durable medical equipment.
Medically Stationary: Eventually a worker’s recovery from the accepted conditions or occupational disease will plateau and they will reach maximum medical improvement. Once it is determined that no further material improvement would reasonably be expected from medical treatment or the passage of time, you are considered medically stationary.
Ratable Impairment: Ratable impairment is the impairment recognized and measured by Oregon’s relevant administrative rules. The process of rating impairment intends to measure the difference caused by the accepted claim pre-injury to post-injury. Common ratable impairments include the loss of range of motion, sensation, or strength attributable to the accepted claim. Ratable impairment does not include pain and suffering.
Permanent Disability: Permanent disability is categorized as either partial permanent disability or total permanent disability. It is determined by taking the injured person’s ratable impairment, and applying other factors such as date of injury, details about the job where injury occurred, and whether the worker will be able to return to work. The return to work may include a return to full-duty or might require a permanent work restriction once the worker has reached medically stationary status. This is a non-discretionary tax-free award the insurer pays an injured worker if there is ratable impairment or permanent work restrictions due to the compensable claim.
Notice of Closure (NOC): The formal document the insurer issues once it has been determined that the worker is medically stationary and there is sufficient information in the medical records to determine the extent of the worker’s ratable impairment. The NOC will outline the date the worker became medically stationary, periods of time for which the worker was entitled to temporary disability, and the amount of the worker’s permanent disability award, if any. You have 60 days to request reconsideration of a NOC.
Reconsideration: Reconsideration is the process by which a claimant can challenge the NOC to the Workers’ Compensation Division. If you request reconsideration, the WCD will sometimes send you one of their doctors called a “medical arbiter” to premeasure your ratable impairment, if one exists. The WCD will either affirm, modify, or rescind the NOC after it “audits” the NOC in a document called an Order on Reconsideration.
Vocational Rehabilitation: Vocational rehabilitation is a job-training benefit that may be available to a claimant if certain requirements are met. The claimant must have been issued a permanent work restriction upon becoming medically stationary and the employer at injury must be unable to offer permanent light-duty work accommodating any such permanent work restrictions. Also, the claimant must not be able to return to the work force making at least 80% of his or her wages at injury because of a permanent work restriction. If those prerequisites are met, the insurer will pay for tuition and out-of-pocket expenses relating to the vocational rehabilitation. The insurer will also pay total temporary disability during any periods of time during where claimant is attending courses.
Aggravation Rights: If a claimant’s accepted condition pathologically worsens, he or she may have a compensable aggravation claim. The major contributing cause of the pathological worsening must be attributable to an injury or event occurring in the course and scope of employment. A claimant can file an aggravation claim by completing a Form 827 with his or her attending physician.
Own-Motion Status: If a claimant suffers a pathological worsening, need for treatment, or inability to work after the 5-year aggravation rights period expires, a claimant may still be due benefits and have his or her claim reopened upon the Board’s own motion.
Claims Disposition Agreement (CDA): The settlement of an accepted claim wherein a claimant sells back all rights to the accepted claim except reasonable and necessary medical services. This settlement takes place in exchange for an agreed-upon sum of tax-free settlement proceeds.
Disputed Claims Settlement (DCS): The settlement of a denied claim wherein a claimant agrees to allow the denial of his or her claim to become final in exchange for an agreed-upon sum of tax-free settlement proceeds.
Contact Randy M. Elmer, Attorney at Law, PC to schedule a free consultation.
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