Prior to becoming a workers compensation attorney, I assumed that workers compensation was a straight forward and relatively simple system. I thought that if I walked into work Monday morning with no pain, no complaints, and no issues and then by Monday afternoon was in excruciating pain because of a work injury, it would be a cut and dry workers compensation claim. Any medical bills associated with that injury would be covered by the workers comp insurance and if I lost any wages due to the injury, I would be compensated accordingly.

Since becoming a workers compensation attorney, my eyes have been opened. The workers compensation system is not that simple. Arguably, it ought to be. In reality, it is not. It is somewhat of a broken system leaving many injured workers in very stressful and complicated situations. The laws structuring the workers compensation system in Oregon are complicated and tricky. In many instances, injured workers are blindsided by the application of these laws and the rug is suddenly pulled out from under their workers compensation claim.

For example, I received a phone call from a man that worked in a warehouse loading and unloading freight. He walked into work on a typical Friday morning with no issues. A few hours later, while lifting a heavy item, he felt and heard a pop in his shoulder followed by extreme pain. The doctor diagnosed him with a rotator cuff tear and recommended surgery. He had never had any shoulder issues or pain prior to that incident. He filed a workers compensation claim and the claim was accepted. He continued treating but was not improving as quickly as he had hoped. It did not concern him, though, because he was confident that the workers compensation system would assist him until he got back on his feet. Unfortunately, that was not the case. After approximately one year of treating, with no warning, he received a denial of the very condition that the workers compensation insurance accepted. No more medical coverage. No more lost wage reimbursement. No more benefits. Unfortunately, this man learned the hard way that the workers compensation system is not what he expected.

In addition to being complex, the workers compensation system is extremely modest financially–some may call it “cheap.” After enduring injury, financial stress, and the roller coaster ride of a workers compensation claim, the injured worker is often disappointed and sometimes appalled at the small amount of compensation he/she receives (if he/she receives anything at all). Many workers’ lives are turned upside down because of their injury and they expect the workers compensation system to make them whole again—physically and financially. That is not the case. The dollar amounts associated with workers compensation claims are, for the most part, regulated by law. These regulated amounts are low compared to the actual impact these injuries make in our lives.

These amounts are also quite low when compared with personal injury settlements (ie auto accident, medical malpractice, spilt coffee in a drive-thru, etc). Workers compensation claims are not in the same league as personal injury claims. It’s comparing apples to oranges. Do all you can to avoid comparing the two. The sooner you are able to avoid the comparison, the easier it will be for you to survive your workers compensation claim.

In the midst of all these warnings, it is important to remember that there are benefits available through the workers compensation system and they can assist you, to some degree, in getting back on your feet after a work injury. In most cases, however, having the assistance of an attorney is extremely beneficial in warning you against potential hidden pitfalls and in securing the maximum benefits available to you. Remember, the workers compensation system is complicated and it does not compare financially with other personal injury claims. If everyone knew these things, it would make their experience in the workers compensation system much more manageable.

In my practice, I have seen injured workers make what they believe to be small, inconsequential choices but instead, these choices result in large hurdles to a successful workers compensation claim. Here are three common mistakes I have encountered in my time as a workers compensation attorney:

Mistake No. 1: Wait to File a Workers Compensation Claim

Mistake No 2: Fail to Report to the Doctor that the Injury Occurred at Work.

Mistake No 3: Wait to Consult with an Attorney

Mistake No. 1: Wait to File a Workers Compensation Claim

It is not uncommon to wrestle with the decision of whether or not to file a workers compensation claim. Getting injured on the job can be unsettling and create a lot of uncertainty–particularly when it comes to the injured worker’s employment. Many people with a work injury are concerned about how their employer will react to the news.

As a solution to this concern, the injured worker waits to report the injury to the employer and file a workers compensation claim. Often times, this decision comes from a determination to tough it out, believing that the injury will heal on its own and will not interfere with the worker’s ability to perform the job. Sometimes the worker is convinced that he/she can report the injury if it does not heal or gets worse.

Although these solutions may seem harmless, in reality they may make the filing of a successful workers compensation claim difficult. In some cases, it may even ruin your opportunity to file a successful claim. Let me share some general reasons why that may be the case.

First, in most cases, the injured worker has just 90 days to give the employer notice of the injury and/or file a workers compensation claim. In some circumstances, the deadline may be extended but the extension is not granted easily. Second, the longer a worker waits to report an injury, the more difficult it may become to prove the required elements of a workers compensation claim. Typically, the passage of time is not a friend to the injured worker. It raises questions such as: Has the passage of time made it more difficult for your doctor to link your need for treatment to the work injury? Have you been involved in other activities since the injury that could be labeled as the cause of your problems? Have you been working without complaint since the date of your work injury? Are you filing a workers compensation claim because you were hurt at work or because you cannot work and need money? Has it been so long that the details of the incident have become vague or blurred? Are you filing this claim just because your private insurance will not pay? These are just a few of the issues that may arise due to a delay in reporting an injury. In many instances, these can be avoided if you report your work injury when it occurs.

Here are some examples of workers negatively impacted by waiting to file a claim:

The Case of the Worker That Thought He Could Tough It Out

In the Matter of the Compensation of Chilcote, 64 Van Natta 766 (2012): In this case, the injured worker was a drywaller. He felt a sharp pain in his back after bending over to lift a heavy bucket, but did not report it because he did not think it was serious and believed that he could work through it. His back symptoms started getting worse. Every weekend, for weeks, he had to stay in bed. About 5 months later, he began to feel numbness in his leg. At that point, he knew he needed to see a doctor. The worker reported his claim approximately 6 months after his injury. The insurance company denied the claim because it was filed late. The court agreed with the insurance company stating that the law requires that notice of an accident be given immediately by the worker to the employer no later than 90 days after the accident. The court further stated that this law does not require the worker to give notice to the employer only if the injury is significant or serious. Unfortunately, because this worker did not immediately report his injury, he missed the opportunity to receive workers compensation benefits for a potentially serious back injury.

The Case of the Worker that Waited to See a Doctor and Share the Details of His Accident

In the Matter of the Compensation of Smith, 64 Van Natta 340 (2012): The injured worker in this case was involved in two auto accidents outside of work—one in 2008 and another in 2009. He was still being treated for the injuries sustained in the accidents when he fell down the stairs at work and hit his knee on the concrete floor. An MRI of the knee taken two months later showed a torn meniscus. It wasn’t until after the worker saw his orthopedist one month after the MRI (over 90 days after the fall) that he reported the work injury. The insurance company denied the claim because it was not filed on time. The court agreed. The worker appealed the court’s decision. Upon review, the Workers Compensation Board, disagreed with the court stating that the worker had good cause for the late filing.

Unfortunately, the Workers Compensation Board still upheld the denial because the worker could not prove that his injury was compensably related to the fall at work. Why? In coming to this conclusion, the Board stated, “Because of the passage of time, causation of this disputed claim is a complex medical question that must be resolved by expert medical opinion.” Because so much time passed between the accident and the report of the injury, what may have been a simple case became complex. In this instance, the doctors were skeptical and unable to make the required connection between the fall and the injury. Why were the doctors skeptical? The Workers Compensation Board’s opinion does not give details of the doctors’ opinions. The Board does note, however, that the worker did not seek treatment for the knee until 5 weeks after the work injury and did not mention the fall at work to his doctor until he saw the orthopedist approximately 3 months later.

Although it is unclear whether or not the passage of time is the reason for the doctors’ skepticism in this case, I have seen it enough in my own cases to know that it very likely played a role. How much different would this case have turned out had the injured worker shared the fall with his doctors immediately? In my opinion, it probably would have made a big difference. The passage of time does play a significant role in the outcome in a workers compensation claim.

Mistake No 2: Fail to Report to the Doctor that the Injury Occurred at Work.

In some cases, the injured worker either tells the doctor that the injury occurred somewhere other than work or does not mention the location of the incident. In some instances, the employer specifically requests that the injured worker report the injury as non-work related (often accompanied with the promise to cover the medical bills). In other instances, the worker decides on his/her own not to report to the doctor that work is the cause of the injury—either by stating that some other incident caused the injury or by remaining silent. Regardless of the source of the idea, both are usually motivated by fear of losing employment.

Unfortunately, once the injured worker discovers that the injury is more serious than anticipated, the medical bills are too steep, or the employer is not being as helpful as promised, it is potentially too late. The doctor has already written the chart note stating that the injury occurred while skiing, or doing yard work, or falling down the stairs at home, or that the cause is unknown, etc. Several weeks or months have passed since the injury. Details of the incident are forgotten or have become blurred. The question of the hour then becomes: If you were injured at work, why did you tell your doctor something different?

It is not always impossible to overcome this obstacle, but it does create problems. Credibility is an important characteristic in a workers compensation claim. The injured worker ought to do everything possible to maintain it. Credible reports assist in proving the existence of an injury. It assists doctors in making casual links between the accident and need for treatment. And it helps to quickly resolve other issues that occur during a typical workers compensation claim.

Let me give some examples of workers negatively impacted by failing to report the details of the accident to the doctor immediately:

The Case of the Worker that Waited to See a Doctor and Share the Details of His Accident:

First lets revisit a case summarized earlier–In the Matter of the Compensation of Smith, 64 Van Natta 340 (2012): It applies to this section as well. The worker did not seek treatment for his injury until 5 weeks after the fall at work and did not mention the fall to his doctor until he saw the orthopedist approximately 3 months later. Because the injured worker waited so long to report the injury to his doctors, the doctors had a difficult time linking his injury to the accident.

Because of the passage of time, determining the cause of the injury became a complicated medical question. The only people qualified to resolve this question are medical experts, or in other words, your doctor. In this instance, the worker’s doctors were skeptical and unable to make the required connection between the fall and the injury. Why were the doctors skeptical? Most likely, it was because the worker did not seek treatment for the knee until 5 weeks after the work injury and did not mention the fall at work to his doctor until he saw the orthopedist approximately 3 months later. The delay in reporting the incident to his doctors most likely played a significant role in the outcome of this case.

The Case of the Worker that Reported Reasons Other Than Work as the Cause of Injury

In this case, the injured worker claimed to have herniated a disc in his lower back when he lifted a 50 pound can at work. A few weeks after the incident, he saw three doctors—Dr. Palm, Dr. Brown, and Dr. Baker.

The injured worker told Dr. Brown that he had been experiencing low back pain on and off for the past three weeks. He denied any particular injury and stated that the pain usually occurred once a year. When he saw Dr. Baker, he stated that he woke up with pain in his lower back three weeks earlier. He told Dr. Baker that he had similar problems in the past but every episode was getting worse. ­­As with Dr. Brown, he told Dr. Baker that he did not experience any trauma or injury. The injured worker’s visit with Dr. Palm was no different. He told Dr. Palm that he has had episodes of back pain on and off for over 10 years. These episodes usually lasted three days to a week, but the latest episode lasted for three weeks. Dr. Palm’s chart stated that the onset of pain was sudden with no known injury.

It wasn’t until the worker saw Dr. York two months after the injury that he reported the work incident. The worker claimed that he told Dr. Palm and Dr. Brown about the work incident, but unfortunately, their chart notes state otherwise.

Because the doctors’ chart notes did not mention a work injury, the Board upheld the insurance company’s denial of the worker’s claim.

Both of these cases are great examples of the importance of immediately reporting the work injury to your doctor.

Mistake No 3: Wait to Consult with an Attorney

This section may seem a bit self-serving and I can understand why. I assure you, however, that it is not. Whether you seek advice from this office or another attorney’s office, my advice remains the same. In most cases, it is extremely beneficial to have an experienced representative assisting you with your claim—accepted or denied.

Timing is everything in a workers compensation claim. Workers compensation laws are complex. There are many ways that you can lose your footing in your claim. In most instances, maintaining a sure footing in your claim requires knowledge of the system and an ability to anticipate potential issues.

There have been many instances in my practice in which I have received calls from injured workers that have lost control of their claim. It happens in so many different ways. For example, I got a call from an injured worker with an accepted workers compensation claim. The worker felt that his claim needed to include other conditions. He wrote a letter to the insurance company asking it to accept these other conditions. The worker believed that the conditions were obviously connected to his work injury and that the insurance would quickly accept. Unfortunately, he learned that it is not always that simple. His request was denied. As a result, he was not only unable to receive medical care for the requested conditions, but also weakened his ability to receive medical care on the accepted condition.

In another instance, I received a call from a worker whose injury and claim put her in a difficult position financially. She was offered a settlement by the insurance company but did not accept. She felt that waiting would be in her best interest. Shortly after, the medical evidence in her claim changed allowing the insurance company to deny any further treatment or benefits. The insurance company was no longer interested in settling the claim.

In both of these instances, it would have been extremely helpful to have the assistance of an attorney. Workers compensation attorneys know the system. They can advise you when it is appropriate to request the inclusion of another condition on your claim or wait. They can advise you when it is wise to settle or wait. Attorneys can inform you of your choices and the risks involved.

There is no risk hiring an attorney. You do not pay any fees unless you recover. Call an attorney to assist and protect you.

Since 2007, the social security disability rolls have increased by 23 percent.  Part of the reason is the 77 million baby boomers that are now over 50 years old and reaching the social security disability program first.  The bad economy is also contributing to budgeting woes of the Social Security Administration.  Many people are struggling to find jobs and have lost their unemployment.  Because they have conditions that make it difficult for them to work, they apply to see if they are eligible.   Another contributor is the expanding acceptance of disabling conditions.  The Social Security Disability program used to focus on those that suffered from strokes, cancer and heart attacks.  Now it has expanded to cover those with depression, back pain, chronic fatigue syndrome, and other subjective conditions.

The Social Security Disability program pays an average benefit of $1,111 per month.  The program cost $132 billion last year.  This is more than the combined annual budgets of the department of Agriculture, Homeland Security, Commerce, Labor, Interior and Justice.  The $132 billion does not count the additional $80 billion spent on Medicare for those who qualified for the social security disability program.

If Congress does not act, the disability trust fund will run dry.  Unfortunately, lawmakers are actively avoiding the topic.  According to an economist, the social security disability plan has been running on autopilot for decades.  Lawmakers can find ways to save and avoid the projected cuts, but neither President Obama nor House Republicans have addressed the disability program’s shortfall in their proposed budgets.

The good news is that “the administration believes that disability insurance is a vital lifeline for millions of Americans,” according to Kenneth Baer, a spokesman for the White House Budget office.   He also stated that the President is trying to work with Congress to strengthen the Social Security Disability program and protect its beneficiaries.  Some in the Senate believe that the program’s finances are not as bad as they might appear.  It is possible for Congress to funnel revenue from other departments to fund the shortfall.

As the 2016 deadline draws closer, Congress will take steps to preserve the program and save money.  It is possible that one of these steps will be stricter requirements to qualify for disability benefits.  If you are applying for Social Security Disability, an attorney can help keep you informed of these potential changes and meet any change in requirements.

Sources:

The Washington Post—Social Security disability trust fund projected to run out of cash by 2016.  Read more.

BusinessWeek—Federal Disability Insurance Nears Collapse.  Read more.

San Francisco Chronicle—Social Security Disability Insolvent Unless Congress Votes.  Read more.

In his article for the Statesman Journal, Dennis Thompson, Jr. reports the reality of the dangers faced by Oregon state workers.  “It’s easy for the public to think of state workers as pencil-pushing bureaucrats,” he stated, “but thousands are injured every year while performing high-risk jobs . . .”

Thompson further reports that the three state employers with the most workers’ compensation claims are: 1) the Oregon Department of Corrections with 3,219 claims, 2) Oregon State Hospital with 2,069 claims, and 3) the Transportation Operations Division with 1,676 claims.  Looking beyond the top three may show some unexpected results.  At fourth and fifth place come Oregon State University with 1,715 workers’ compensation claims and the University of Oregon with 1,480.  Surprisingly, the Oregon State Police filed fewer workers compensation claims than any of these with just 1,147.

Each department has its own unique challenges, some more unexpected than others.  For example, State Hospital employees are more likely to be injured from being struck by someone or something than a State Correction officer.  Whereas the second leading cause of workers compensation claims amongst State Correction employees is exposure to contagious disease.

The Transportation Operations Division’s injuries are what we would expect.  One employee stated that his truck had been hit three times in the last year.  A bit perplexed, he told Thompson, “How do you miss a state-of-the-art emergency vehicle that’s painted white, with lights on it and a giant light board?”

With all this in mind, the safety record for Oregon employees is actually better than the national average.  Oregon employees had 3.2 work injuries per 1000 employees in 2010.  The national average for government employees, however, is 4.6 injuries for every 1000 employees.

Throughout the article, Thompson offers several examples of the variety of injuries suffered by state employees as well as remedies offered by the State and SAIF to minimize future injuries.  Workers compensation claims occupy a lot of resources and costs, but it is a necessary and important benefit to protect employers and employees.  This is especially true in relation to this article as many state employees are exposed to dangerous and physically strenuous activities.

See the full article here.

With all the expected strains, broken bones, and bruises, there is also the occasional unusual claim.  The Statesman Journal published a few such as: Caught foot in blackberry bush, hurt knee, tick bite, inhaled perfume, grass seeds flew into left eye, sneezed causing groin injury, and shocked by copy machine—to name a few.

See the full article here.

Since 2007, Retirement and Survivor claims have increased by over 30 percent and Social Security Disability claims have increased nearly 25 percent.  The funding shortfall makes it very difficult to meet this increased work load.  Due to the funding issues, the Social Security Administration expects to lose 3,000 employees in 2012 and another 2,000 in 2013.  On top of the 4,000 employees already lost in 2011, this will leave Social Security and State Disability Determination Services with a total loss of more than 9,000 employees.   With fewer employees it will increase the time it takes to process social security disability claims.  It will also extend the effort to eliminate the hearings backlog.

Addressing the loss of employees, Astrue stated, “Tough choices loom.  The complexity of the disability programs requires skilled employees to make decisions.  Uncertain budgets make it hard to replace the experienced employees because we do not know if we can afford to keep new hires.”

Despite this continuing challenge, however, Astrue expressed hope in making the disability processes more efficient stating, “We are proud of our efforts over recent years to improve how we manage our disability programs.  Social Security remains a sound investment.  Our administrative costs are very low, and our productivity has increased by about 4 percent each of the last 5 years.”

Astrue looks to the internet to be a heavy contributor to future improved efficiency with the online application process, the development of the online appeal process, and online/computer resources to train employees.

Read the full text of Michael Astrue’s testimony here.

In Cortez v. Nacco Materials Handling Group, Inc., the employee of an LLC was injured by a forklift while it was backing up. The injured worker filed a claim with the LLC’s insurer and obtained workers’ compensation benefits. Additionally, the employee filed an action against the sole member of the LLC for negligence and under the Oregon Employer Liability Law.

The LLC member argued that he had complied with Oregon’s workers’ compensation statutes and obtained workers’ compensation insurance. As such, he was protected by the exclusive remedy provision of Oregon’s workers’ compensation law.

The Court, however, disagreed with the LLC member’s argument. In support of its decision, the Court looked at the legislative intent of the exclusive remedy provisions of ORS 656.018. These provisions explicitly provide a shield to employers and other specific entities and persons but do not “explicitly [list] a member or owner of a limited liability company.” If the legislature intended to include LLC members as one of the types of entities protected, it would have been specifically stated in the provisions.

The Court also held that an LLC is a legal entity distinct from its members. Therefore, when the exclusive remedy provision applies to an LLC as an employer, it does not necessarily apply to the LLC’s members.

Read the Court’s full opinion here.

If you would like more information, please visit my website at www.belllawoffices.com.