Philip Garrow LLC
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
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
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. speak with an attorney
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
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.
Q: After my work injury, I was “let go” by my employer. Was that legal? If so, is there anything you can do to help me get back to work?
A: The answer to your first question is complicated. The second question is a little easier. The law in Oregon requires an employer to reinstate an injured worker if the worker is either released to return to his or her regular work or another job which is “available and suitable.” That means if you can do your normal work, you must be reinstated. If you can’t do your regular work, and the employer does not have another, physically suitable job available, they are not required to create a permanent job within your physical limitations. You do have other options if you have suffered a work injury, however. The law requires Workers’ Compensation insurers to assist injured workers in returning to the workforce. Therefore, retraining, or Vocational Rehabilitation benefits may be available to help you. Check with an experienced attorney to understand your rights. If you believe you were unfairly terminated from your job, possibly relating to a work injury, you can also contact the Bureau of Labor and Industries for advice. Or, contact a legal professional today!
Q: I was injured on the job. I received a letter from the insurance company that said they accepted my claim. However, my doctor says I need injections in my back but the insurance company says they will not pay. They say the injections are not related to my injury. I did not have a problem until I got hurt on the job. What can I do?
A: The law says that workers’ compensation insurance companies are responsible to pay for all treatment related to a work injury. Many times an insurance company tries to limit its liability by accepting a lesser condition, such as a lumbar strain, when your doctor says you have a herniated disc, nerve, or similar problem. Consequently, workers’ compensation insurance companies sometimes deny payment for necessary medical treatment. You can appeal the insurance company’s denial with the help of the Workers’ Compensation Department. You can also seek legal assistance at no cost to you. Attorney fees are paid by the insurance company. Recent changes from the Oregon Courts require insurance companies to be responsible for any medical treatment caused by the work injury, whether or not you have “pre existing” conditions. Contact the Oregon Workers’ Compensation Department, Injured Worker’s Hotline or an attorney experienced in handling workers’ compensation cases to help you get your medical treatment.
Q: I went to apply for Disability benefits and was told I was “too young.” I am 45 years old and have worked in construction most of my life. I have had two back surgeries and my doctor says I will never be able to return to construction work. I don’t have the education or training for other work. I thought Social Security Disability would cover me or anyone who cannot go back to work.
A: Anyone who has worked long enough can apply for Social Security Disability Insurance benefits. If you have applied and been denied, file an appeal and ask that the Social Security Administration (SSA) reconsider its denial. You can get assistance with your appeal if necessary. Appeals have strict deadlines, so act promptly. The Social Security disability insurance program is designed to assist anyone who, because of injury or illness, is unable to return to work. The program is based on Federal Law which requires the SSA to consider medical considerations and opinions, as well as your age, education, and work experience. SSA regulations state that an individual under age 50 who can return to some other kind of work will be found not disabled. That same individual who is over 50 may be considered disabled. It depends on the person’s ability to adapt to other kinds of less demanding work. In addition to filing an appeal, you can contact the Oregon State Employment Department or the Vocational Rehabilitation Division and see if they can provide retraining or return to work help.