CategoryWorkers' Compensation: Q/A | Philip Garrow LLC - Part 2
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.
Q: I just received a letter from the Social Security Administration that says they overpaid disability benefits to me and want me to send them a check for several thousand dollars. I have been on Social Security Disability for more than five years. I cannot afford to pay them back. What can I do?
A: Social Security will send you a notice of overpayment if they find that you have overpaid disability benefits. This may have happened because you did not report a change to Social Security, such as starting working, a child moving out of your house, getting child support, etc. In some cases you may have actually reported the change but Social Security delayed in applying that change to your monthly benefit. The notice of overpayment will tell you how much you were overpaid and it will tell you to send the money back in 30 days. Do not panic! The first thing you need to do is to read the notice carefully, checking to see if the information, dates, and amounts are correct. The first thing for you to do is figure out whether you really were overpaid by Social Security. You have several options, including requesting reconsideration, asking for a waiver, and making payment arrangements. There are strict time limits for filing most of these requests. They should be done in writing at your local Social Security office and by filling out a specific reconsideration request form. Most of the time you can come to an agreement with Social Security directly. If not, you always have the option of bringing your case before a judge.
Q: I was injured while working on a “clean-up” crew as a volunteer. I understand that my city has elected to cover me through its workers’ compensation policy, and pay my medical bills. However, I am also losing time from work while I recover. Can I receive compensation?
A: Yes, you can. State law mandates that all municipal personnel, who are not full-time, part time, or substitute employees, are considered “volunteer personnel” and will be covered if the municipality has filed an election to provide that coverage. Your city has. As a result, the city, in conjunction with the workers’ compensation carrier, selects a designated wage as “assumed compensation.” Your time loss rate would be based on that rate. You can check with your city’s personnel department to determine the assumed wage rate. You can also contact the Oregon Workers’ Compensation Department ombudsmen at 1-800-927-1271. If you need legal assistance to pursue your claim, contact an attorney who understands the Oregon workers’ compensation system.
Q: I was recently diagnosed with a serious medical condition. My doctors say that I will need therapy and treatment and will be unable to return to work for at least the next three-six months. Can I submit a disability insurance application for Social Security Disability Insurance Benefits?
A: You can certainly apply for benefits now. Social Security has a requirement that your medical condition be “disabling,” or expected to be disabling, for at least 12 consecutive months before you are eligible for disability insurance benefits. Social Security does have rules for what are called “compassion allowances,” which are a way of quickly identifying diseases and other medical conditions that will qualify you for disability benefits based on medical information from your doctor. You can check with the Social Security Administration and see whether you qualify. You can make an appointment at your local Social Security office or look online at www.ssa.gov/disability for additional information. If you file an application and are denied disability benefits because your condition is not expected to last for 12 months, you should immediately appeal the decision by requesting a reconsideration. Since the Social Security Administration usually takes three to six months to make a decision, you may be able to qualify, if you are still disabled, by the time they make their decision. You can also contact an attorney who understands Social Security disability law for a no-cost case evaluation.
Q: I take prescribed medical marijuana for a chronic back issue. I recently had an on-the-job injury. My employer has a drug testing policy after any injuries. I was terminated for violating workplace rules regarding use of substances while on the job and my on-the-job Worker’s Compensation injury claim was denied because of the marijuana in my system. Can I fight these decisions?
A: Your question raises complex and important legal issues in workplace safety, discrimination and workers’ compensation laws. I can answer your questions generally but I strongly urge you to seek legal advice as soon as possible.
As you know, Oregon legalized the use of recreational marijuana as of July 2015. Medical marijuana has been legal in Oregon for several years. Many workplace rules, including workers’ compensation laws, have not caught up with these legal changes. Oregon workers’ compensation law allows an employer to deny a claim only if the employer can prove that your injury was caused by consumption of alcoholic beverages or any controlled substance. Your employer has to show that marijuana was the cause of your accident as opposed to other forces. If they can’t, your claim will be covered by workers’ compensation. Many employment rules prohibit the use of certain substances while on the job.
Your marijuana consumption off the job should not affect your employment status. Your employer should not be able to fire you just because you had traces of THC or cannabinoids in your system. You should obtain legal advice and act quickly to protect your rights.
Q: I was hurt on the job recently and my employer directed me to go to an occupational health clinic and treat with the doctors there. Can they make me treat with these doctors?
A: No. An injured worker is entitled to choose his or her own attending physician. Prior to claim acceptance, you can choose any licensed physician, chiropractor, nurse practitioner, or physician assistant to provide medical services. Certain workers’ compensation insurers have contracted with managed care organizations (MCOs). If so, you will be required to treat with a medical provider within the MCO after your claim is accepted. However, the choice of physician is up to you. You can choose an attending physician who refers you to specialists for additional tests or procedures, such as surgery, while still maintaining attending physician status. An injured worker is also entitled to change attending physicians up to three times. If you have questions or need help, you can contact the Workers’ Compensation Division Ombudsman’s office at 1-800-452-0288. You can also speak with an attorney experienced in representing injured workers.
Q: I have been diagnosed with chronic fatigue syndrome. Can I qualify for Social Security Disability Insurance even though they cannot test for my disabling condition? I am in a lot of pain and I have no energy to perform work.
A: You can qualify for Social Security Disability Insurance Benefits and/or SSI, if your doctor agrees that you have a disabling medical condition. Social Security law says that the agency is required to find a person “disabled” if he or she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairments which can be expected to result in death, or which have lasted or can be expected to last for a continuous period of not less than 12 months. Chronic fatigue syndrome is a systemic disorder consisting of a complex of symptoms that may vary in frequency, duration, and severity and is recognized by the Center for Disease Control of the United States government. So, yes, you can qualify for disability based on a chronic fatigue syndrome.
If you have applied for disability benefits and been denied, contact an attorney who understands Social Security law for assistance. Attorneys will offer a no charge case evaluation and may represent you at no charge unless you successfully receive benefits.
Q: I had an on-the-job work injury claim which has required surgery and has kept me off work. I have a lot of questions and concerns about my future. Do I need a lawyer to help me with my claim? The insurance representative contacts me periodically and tells me not to get a lawyer because the lawyer will just take some of my money. Is that correct and should I get legal advice?
A: An attorney practicing workers’ compensation law in Oregon will usually offer a free case evaluation to talk to you about your case. In fact, lawyers in Oregon are not allowed to charge an attorney fee except with the approval of a workers’ compensation judge or member of the Workers’ Compensation Board. Attorneys only collect fees if they assist an injured worker obtain compensation or if the insurance company has denied the claim. Most of the time the attorney fees are paid by the workers’ compensation insurance company. You can contact an attorney for a free case evaluation and ask the attorney the questions you have about your workers’ compensation case. Additionally, if you need help with your work injury claim, you can call the Oregon Workers’ Compensation Division directly on their Injured Workers’ Hotline at 800-452-0288. The Workers’ Compensation Division is not allowed to give legal advice. However, they can contact the insurance company on your behalf and find out why a check is late or why something has or has not been done. If you have any questions, you can also call the Oregon State Bar Lawyer Referral Service, at 1-800-452-7636, to get the name of an experienced workers’ compensation attorney.
Q: I am considering applying for Social Security Disability because I can no longer perform my usual work. I have no training or skills to perform lighter duty activities. Can I receive disability Benefits?
A: The Social Security Disability Insurance programs provides benefits, to you and certain members of your family, if you have worked long enough and have a medical condition that prevents you from working for at least 12 consecutive months. Depending on your age, education, and work experience, you may qualify for benefits even if you are not totally disabled. For example, individuals over 55, who have performed physical work activity most of their working lives, can still be considered disabled if they do not have the education or training to perform lighter duty activities. The Social Security Administration will want to see your medical records and test results to see what the doctors are saying about your physical condition and any limitations you have from performing your usual work. You can talk to the Social Security Administration directly by calling 1-877-405-0302, or by looking at the Social Security website at www.ssa.gov. You can also make an appointment to talk to somebody at the local Social Security office. You can also talk with an attorney who represents individuals who have applied for Social Security Disability. The case evaluation is free and attorney or representatives can only get paid if you are successful with your case. If you have been disabled at least 12 months or expected to be disabled for 12 months, you should file your application as soon as possible to ensure that you receive all the benefits to which you are entitled.