CategoryWorkers' Compensation Facts | Philip Garrow LLC
In a case handled by Garrow Law, the claimant is to receive a work disability award because he has not returned to his regular “at-injury” job. The claimant did not receive work disability because the employer’s job analysis did not not accurately describe all the duties of his job at injury. Affidavits from the claimant and a coworker showed that he did work activities that were heavier than in the job description. He did the heavier duties on a steady, customary basis. After his shoulder injury, he was restricted to lifting no more than 50 pounds from the floor to waist, no more than 10 pounds for above waist lifting, and he was to do no repetitive lifting.
The insurer first closed the claim with no award for work disability. The closure was set aside because there was not enough information to close the claim. There was no job analysis or description of the physical requirements of claimant’s “at-injury” regular work that the claimant had agreed to and that had been approved by the attending physician. At the insurer’s request, a vocational consultant had prepared a job analysis, which described the job as having minimal lifting duties with limited “field” work. The claimant disagreed with the analysis since it did not include his “at-injury” job duties of removing/installing heavy windows. The consultant would not include these “carpentry” duties in the analysis, says that if the claimant did this, it was not part of his job description and he was doing this on his own. The insurer again closed the claim but again did not award work disability.
Based on affidavits from the claimant and a coworker that showed that the “at-injury” job required carpentry duties occasionally involving lifting/carrying windows in excess of 50 pounds. Claimant was then awarded work disability because he had not returned to his regular work, and he was to receive a penalty. The Board also said that the claimant was entitled to a penalty because the insurer had known about the disagreement about the claimant’s duties when it closed the claim.
If you have questions about your Oregon Workers’ Compensation claim, please contact the law office of Philip H. Garrow
Q: Last year I was hurt on the job and I have been unable to return to work. The insurance claims adjuster called me about settling my claim. How do I know if I am getting a good deal?
A: Injured workers have the option of settling their claim for future benefits. The amount of the settlement can be negotiated between the parties. Unfortunately, insurance companies usually know much more about the value of the claim that most injured workers. Your claim costs include lost wages (time loss), permanent disability, medical benefits, and vocational rehabilitation/retaining benefits if you are unable to return to your usual job. It is tempting to take the insurance companies offer but you need to know the full value of your claim in order to get the best value. You can contact the Oregon Workers’ Compensation Division, the Injured Workers’ Hotline, at 1-800-452-0288, and get some advice from the Workers’ Compensation Division which regulates insurance companies. They can tell you what to look for. You can also contact an attorney who specializes in workers’ compensation practice who will give you a free case evaluation to discuss your options and whether a settlement is a good deal.
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Philip H. Garrow
Attorney at Law
Practice Limited to Workers’ Compensation Cases and Social Security Disability/SSI Claims
In a recent case decided by the Workers’ Compensation Board, an injured worker was awarded additional money for permanent disability because the workers’ compensation insurance company misapplied the law and failed to award the proper amount of disability benefits. The injured worker was also entitled to a penalty (in this case, an additional 25% of her award) because of the insurance company’s claim processing errors.
The injured worker had an on-the-job wrist injury. Her attending physician had restricted her to light duty lifting in her “at-injury” position as a cook/kitchen helper when he released her to return to work. However, the insurance company gave the physician an inaccurate job description, which said that the job the worker was doing at the time of her injury only required light lifting. Based on this incorrect information, the doctor said the worker was released to her regular work, thereby reducing the worker’s disability award. The insurance company closed the claim giving the injured worker some permanent impairment, but no work disability benefits based on her “regular” work release. When the Worker’s Compensation Department reconsidered the closure, the claimant offered an affidavit that explained that her lifting requirements at her “at-injury” job were heavy, rather than light. She was then awarded work disability, as well as a penalty.
The insurer objected to the penalty and argued that it had no reason to question the job description that it gave to the attending physician until after the claimant had given her affidavit during the reconsideration proceeding. The Workers’ Compensation Board affirmed her work disability award and the penalty because if the insurer was uncertain at the time of claim closure exactly what the attending physician had said about the claimant’s disability, it could have simply requested clarification from the physician. The insurer’s “mistake” would have cost the worker a substantial amount of disability benefits if she had not challenged the insurer’s closure of her claim.
It is always a good idea to have an experienced workers’ compensation attorney review your case to look for errors or omissions by the insurance company. There is never any charge for a case evaluation. If you have any questions regarding your Oregon workers’ compensation claim, please contact the law office of Philip H. Garrow
Here is some new news about traveling employees. The worker’s injury happened when he was struck by a motor vehicle after he got out of his employer’s truck, at the driver’s suggestion, to cross a highway to walk to a convenience store to get a beverage and cigarettes while the truck was getting gas. The claimant traveled every day as a passenger in his employer’s truck, from the employer’s offices to the job site. The truck would regularly stop at one of two gas stations for refueling, at which time claimant and his coworkers would frequently purchase food and drinks at nearby convenience stores.
When the worker asked if the truck would be stopping at the convenience store, the driver pulled into the turn lane of the highway in the intersection and stated that if claimant and his coworkers wanted to get out, “now’s the time.” The claimant and a coworker got out of the truck while it was still in the intersection, the claimant was struck by another vehicle, while trying to cross the highway to get to the convenience store. The insurer denied his claim, saying that he was injured while engaging in a purely personal activity that was unrelated to his employment.
The injured worker’s claim was ordered to be accepted because when an employee’s work includes travel away from the employer’s premises, the worker becomes a traveling employee, even if the travel is local and it was not a long trip. A traveling employee is considered to be continuously on the job unless the employee is on a “personal errand”. This injury was covered because the injured worker was not on a personal errand. Crossing the street to purchase cigarettes and a drink was an activity reasonably related to his travel. Even if the claimant’s method of crossing the highway to buy cigarettes and a drink had been questionable, it was the type of activity that the employer might reasonably know that a traveling employee would do. And, the claim was covered even though the claimant’s activity was prohibited by the employer’s policy. This was because lead workers had let him and his coworkers get out of the truck in the middle of the highway before, and they had never been told that this was prohibited, the claimant’s activity did not violate an employer rule, and did not result from a personal risk, but rather was a risk of his travel.
If you have questions or need help with your Oregon Workers’ Compensation claim, please contact the law office of Philip H. Garrow
In a recent decision, the Worker’s Compensation Board disagreed with a reduction in an injured worker’s disability award. A Medical Arbiter, appointed to evaluate a worker’s permanent disability, had reduced the injured worker’s award because he thought that 50% of the worker’s reduced range of motion was due to a preexisting condition. Oregon law states that when an injured worker has a preexisting condition that is either arthritis, or another condition that was diagnosed and treated before the work injury, the amount of permanent disability is “apportioned,” or reduced, by the amount of contribution from the preexisting condition. The Board said that the worker’s preexisting spondylosis was not a legally recognized preexisting condition that would allow for a reduction and the State did not accurately apply the law. The Board increased the worker’s disability award accordingly.
The Oregon Workers’ Compensation law has very strict time limits for appealing insurance company denials. Injured workers who do not file timely appeals can lose all their rights and benefits. The insurance companies must also follow the rules. In a recent ruling, the Workers’ Compensation Board said that an injured worker’s request for hearing was timely even though it that was mailed after the 60 day deadline had passed. This was because the insurer had mailed the denial to the wrong address. The Board said that the injured worker had a good reason for the late request for hearing because he did not receive the denial in the way the law requires. When the post office returned the denial to the insurer with notice of the correct address, the insurer did not re-mail the denial as is should have. Therefore, even though the injured worker eventually received the denial one week before the appeal deadline, it was still not properly served on him so that his appeal filed a week after the deadline was accepted.
Thanks to the efforts of the Garrow Law firm, the court has issued a more important decision helping injured workers:
In SAIF v. Camarena, 264 Or App 400 (2014),SAIF claimed the injured worker was not entitled to have his claim reopened for his back strain. The claim had been closed for more than 5 years so there was a requirement that the injured worker must be receiving “curative” treatment order to reopen the claim and pay disability benefits. The court agreed that the medical records showed that the injured worker was not “medically stationary” and that his condition could improve with additional treatment. Therefore, the Court ordered SAIF to reopen the claim and pay benefits.
The court held that the medical record easily would permit a reasonable person to find that the attending physician had prescribed treatment to bring about recovery from the injured worker’s back strain and the worker should have had his claim reopened. The Court specifically disagreed with SAIF’s argument that it was up to the insurance company to decide if the proposed medical treatment was necessary to “cure” the injured worker’s condition
If you have questions or need help with your workers’ compensation claim, please contact the law office of Philip H. Garrow
There has been some good news for workers from the Court of Appeals this year:
In Brown v. SAIF, 262 Or App 640 (2014), the Court held that an “otherwise compensable injury” is not defined by what conditions the insurer has accepted, but is rather “the work injury resulting from the work accident that caused the disability or need for treatment.” The Court applied this principle in SAIF v. Carlos-Macias, 262 Or App 629 (2014). In Carlos-Macias, the Court said that the terms “compensable injury” and “accepted condition” are not interchangeable. The insurer had refused to pay for a proposed diagnostic medical service, arguing that it was not needed for the “accepted conditions.” Because the law says that injured workers are to receive medical services for the compensable injury, this includes diagnostic procedures for conditions not yet discovered.
If you have question regarding your workers’ compensation claim, please contact the law office of Philip H. Garrow
In a recent case, the Workers’ Compensation Board held that, because the insurance company had reopened the injured worker’s claim for both a new medical condition and an aggravation of a previously accepted condition, the worker was entitled to have both conditions rated for permanent disability when the claim was closed. This resulted in a greater disability award for the injured worker. If you have questions about your on-the-job injury claim, including your possible entitlement to permanent disability benefits, contact the law office of Philip H. Garrow
The Workers’ Compensation Board held recently that when a home-care worker told her employer that she was in the motor vehicle accident (MVA) on her way home, after finishing work, her claim was not compensable. She told her boss some 6 months later that she had actually been in the MVA on her way to a client’s home. Finding insufficient evidence regarding when the MVA occurred, the Board held that the worker’s claim was barred since the worker had not reported the injury withing the statutorily required 90 days.
A note to home-care workers: Be sure to advise your employer if you get in a motor vehicle accident while coming or going from a client’s home. All workers would be well-advised to notify your employer or supervisor of an injury or accident immediately, even if you don’t seek medical treatment right away. Failure to promptly report a claim may defeat your right to benefits under the Oregon Workers’ Compensation Act.
If you have questions regarding your workers’ compensation claim,contact the law office of Philip H. Garrow