Category : Workers’ Compensation: Q/A
Q: I had a severe back injury at work. The doctor said that I do not need surgery but I am still in tremendous pain and have been getting physical therapy for the past three months. I am not yet able to bend or lift, much less return to work. Now the insurance company is telling my doctor I have had enough physical therapy and I should be released to return to work. The doctor says he does not want to fight with the insurance company. Is there anything I can do?
A: Yes, there is a lot you can to do. Insurance companies are interested in saving money for themselves and their clients (employers). Their goal is not to see that you get the best care that you can but to get the least expensive care that the doctor will authorize. Your doctor should carefully explain to the insurance company why you need additional therapy and why a home exercise program by itself will not improve your medical condition that the extent that you can return to your regular work. Therapy and other passive treatments are beneficial at reducing disability and returning workers back to their normal activities, including work, as long as they are given the opportunity to succeed. Constantly delaying or questioning treatment is not helpful to anyone but the insurance company. You or your doctor can appeal the insurer’s decision to the Workers’ Compensation Department.
You can also talk to an attorney who understands workers’ compensation law and can help you get the treatment that you need.
Q: I am 62 years old and unable to continue working due to multiple physical problems, including back surgery. I am eligible to apply for early retirement. If I also apply for disability, will my disability benefits be reduced because of the early retirement?
A: As you know, you can begin receiving early retirement Social Security benefits at age 62. By filing early, you will lose about 25% of your full (age 66) retirement amount. However, if you have a disability which prevents you from returning to work, regardless of your age, you can also apply for Social Security disability benefits while you are receiving your retirement benefits. If you are granted disability benefits, you will be entitled to your full Social Security retirement amount as if you had not applied for your early retirement benefits. When you apply for retirement, the Social Security representative should ask you about why you stopped working and ask you if you want to file for disability. Social Security law requires them to advise you about all benefits to which you might be entitled.
If you have questions, you can talk to your local Social Security representative. You can also talk to an attorney who is experienced in Social Security disability matters.
Q: I am confused about the Social Security Disability process. We have a young child who may be eligible for disability benefits based on a diagnosis of autism. Is he eligible for benefits even though he has not paid Social Security taxes?
A: Social Security has two basic programs that pay disability benefits for people who meet certain medical criteria, Social Security Disability and SSI. The disability program (SSDIB) benefit is based on a number of earnings reported to the Social Security Administration and is payable to an individual who becomes disabled and in certain circumstances the spouse, disabled widow, or disabled adult children of the wage earner.
Children under the age of 18 may be eligible for SSI (Supplemental Security Income) benefits if they have physical or mental conditions which meet Social Security’s definition of disability for children and their income and resources fall within the eligibility limits. Your local Social Security office can usually tell you about the SSI payment as well as income and resources limits. You can also find information on Social Security’s website www.ssa.gov.
If you have questions about applying for disability or if you have been denied, you can contact an attorney who may be able to assist you with your disability questions.
Q: I slipped and fell at work, hitting my head on the pavement. The fall was witnessed but my employer asked me not to file a claim with workers’ compensation. They asked me not to go to the doctor. However, I am still having neck pain and headaches even though the injury happened over two weeks ago. My employer has me doing light duty and told me that it could be a “problem” if I filed a claim. Is it too late for me to file and claim and will I get fired if I do that?
A: You can file a claim at any time if your employer had notice of your injury. The law says you are required to file a claim as soon as possible. However, if your employer prevents you from filing the claim, you can still go to a doctor of your choice and have the doctor file the claim for you. It is illegal for your employer to fire you because you asked about or sought help for an on-the-job injury. You can get confidential legal advice from an attorney experienced in practicing workers’ compensation law. You can also confidentially call the Oregon Workers’ Compensation Division at 1-800-452-0288 and ask them about the procedure for filing a claim.
Generally, a claim should be filed as soon as possible and medical treatment sought as soon as possible so as not to delay healing or cause additional problems. If you need help, you should contact a legal professional as soon as you can to assist you with filing your claim.
Q: I plan to begin working as an “Uber” driver soon. Am I covered for on-the-job injuries by Uber?
A: Your question has not yet been answered by the courts. In Oregon there is a statutory exemption for taxicab drivers from workers’ comp. insurance. In other words, until recently all taxi drivers, which would likely include Uber drivers, have been considered independent contractors and not subject to wage and hour laws, unemployment insurance laws, or workers’ compensation laws. However, two recent legal decisions bring the previous law into question.
In 2015, the Oregon Supreme Court held that Broadway taxi cab drivers in Portland were employees, not independent contractors, such that Broadway Cab owed unemployment taxes. Also in 2015, the Bureau of Labor and Industries (BOLI) issued an “advisory statement” which indicated that it may consider Uber drivers to be employees rather than independent contractors under Oregon law. Uber recently settled cases in California and Massachusetts to keep drivers’ status as independent contractors. However, in Britain, the Uber drivers are considered employees.
I suggest checking with your insurance company to make sure you have coverage for any injuries that occur while driving for hire. Some motor vehicle insurance policies have exclusions for vehicles used in a business.
You can also contact a legal professional knowledgable about such laws.
Q: How much time do I have to file a claim for an on-the-job injury? My injury was 3 months ago and I just went to the doctor today.
A: Oregon law requires notice of an accident at work resulting in injury or death to be given immediately and not later than 90 days after the accident. Your employer is required to notify its workers’ compensation insurer immediately, and no later than 72 hours, after receiving notice of the accident. If you documented the incident with your employer, you have up to one year to file the claim. If you are off work because of the injury, wage replacement is due within 14 days. You should also seek medical attention as soon as possible after your injury. There are exceptions for failing to give proper notice if you have “good cause.” For occupational disease claims, which typically have a gradual onset, you are required to give notice of your claim within one year of the day that your doctor tells you you have a work-related occupational disease. A disease is different from an injury in that the disease usually comes on gradually over time. To be safe, you should file your claim as soon as possible and not rely on the “good cause provisions,” which can often result in litigation. If you have questions about filing a claim, you can contact the Workers’ Compensation Division Ombudsman’s office or call an attorney experienced in workers’ compensation law and procedure. Consultations are free in all cases.
Q: I was injured on the job when my coworker failed to secure a load which then broke loose, causing me substantial injuries. I have been off work several months receiving workers’ compensation benefits. Am I entitled to any other compensation due to the negligence which caused my injury?
A: Ordinarily, on-the-job injuries entitle the injured worker to benefits according to the Oregon Workers’ Compensation Act. The Oregon workers’ compensation system is considered a “no-fault” system. That means that negligence by your employer, a coworker, or even you, does not affect your entitlement to benefits. If you were injured on the job, your injuries are covered according to Oregon law. If the negligence which resulted in your injury was due to the mistake of your employer or coworker, ordinarily you are not entitled to additional compensation for pain and suffering and other benefits not covered by workers’ compensation. However, if there was a defective piece of equipment or if a third party, not working for your employer, caused or contributed to your injuries, you may be entitled to additional compensation. You can contact an attorney who specializes in workers’ compensation law to find out whether you are entitled to additional benefits. Keep in mind, there are usually limitations on when you must file these claims, so take action as soon as possible.
Q: I was hurt on the job while lifting a large item. My employer denied my workers’ compensation claim because the employment handbook says that I was supposed to have a coworker help me lift something that weighed over 100 pounds. We lift things over 100 pounds all the time. Were they right to deny my claim?
A: No. Workers’ compensation law is considered “no fault.” That means that if your injury arose “in the course and scope of your employment” you are entitled to compensation regardless of fault. Workers’ compensation insurance arose as a compromise between employers and workers, primarily through labor unions, which protected employees from on-the-job injuries without requiring them to file legal action to recover for their damages. The employers are protected from court actions while the employee is covered for all work-related injuries regardless of fault. You should immediately contest the denial of your benefits. You can contact an attorney who practices workers’ compensation law for help at no cost to you.
Q: I have chronic back pain from an on-the-job injury which occurred several years ago. I have been prescribed narcotic pain medication with limited success. Recently, my doctor suggested I try medical marijuana. The insurance company has refused to pay for the marijuana saying it is not a qualified “prescription medication.”
A: Your question raises important legal issues regarding the use of medical marijuana which has been legal in Oregon since 1998. Currently, Oregon Workers’ Compensation Division rules do not require reimbursement for “nonprescription” drugs. Under the current rules, marijuana is considered a nonprescription medication, like any other over-the-counter medication you can buy. Oregon rules have not kept up with the times. Other states, including Maine and New Mexico, are exploring the use of medical marijuana in lieu of prescription narcotics. Many doctors feel that marijuana and its derivatives are better suited for treating chronic pain than heavy narcotics. Currently, you can receive a marijuana card through the State of Oregon or purchase legal marijuana under the advice of your doctor.Continuing research will hopefully lead to a more enlightened view of the benefits of medical marijuana. If you have specific questions about getting your prescription covered, talk to an attorney who specializes in workers’ compensation laws. You can also check with the Oregon Workers’ Compensation Division, Medical Services Team, to find out what drugs are reimbursable under current Oregon law.
Q: I was in a serious car accident several months ago. I spent five weeks in the hospital. I am just now beginning to walk again but I am on pain medications and in therapy several times a week. My doctors have not yet released me to return to work. I have been encouraged to file for disability benefits through Social Security. Am I eligible?
A: Yes, Social Security Disability law requires that you be disabled for at least 12 consecutive months to qualify for benefits. Even though you have not been disabled for 12 months yet, there is a good chance you will not be released to return to work within that 12 months. Social Security will evaluate your application when you apply after they receive and review your medical records. If it appears you are currently disabled, and that your disability will likely last 12 months, you may be granted disability benefits. If your disability ends before the 12 months are up, you are not eligible for benefits. However, if your disability ends after the 12 months, you are still eligible for a “closed period” of benefits from the time you became disabled until the time you were able to work. I recommend you contact your local Social Security office and begin the application process.
If you have questions, contact a legal professional who understand Social Security Disability law.