Workers Comp FAQ
Can I sue my employer if I get hurt on the job?
When state workers’ compensation laws were adopted a trade off was put into the law that stated you do not have to show that anyone was at fault in causing your injury, but the only course of action you have regarding your injury is a workers’ compensation claim.
Employers may try to deny coverage by asserting you are an independent contractor however many so-called independent contractors are actually covered as employees.
How do I know if I’m covered by workers’ compensation?
Today, Oregon requires most employers to carry workers’ compensation insurance for their employees. Employers with one or more employees must carry workers’ compensation insurance. Employers who use independent contractors are not required to carry coverage by the state of Oregon. If you are not classified as an independent contractor, then your employer should have workers’ compensation coverage.
Can my employer tell me where to get medical treatment?
Under Oregon law, you have the choice to select your own treating doctor or choose one from the insurance company’s managed care organization. Your employer cannot dictate where you receive your medical treatment. At your first appointment, your doctor must complete a Workers’ and Physician’s Report for Workers’ Compensation Claims and send it to the insurance company.
Do I have to follow up with the doctor that I am directed to at an urgent care clinic or the emergency room?
If you originally seek treatment at an urgent care clinic or emergency room, you will likely be directed to a follow up appointment with a specific doctor. You have no obligation to follow up with that doctor; you can choose another doctor for your follow up. Your attending physician is very important to your claim, so it’s important to find a doctor you trust.
What if I get injured on the job but I’m not sure I want to file a workers’ compensation claim?
If you are injured while working, and you do not plan on filing a workers’ compensation claim, you should document an injury sustained on the job in writing with your employer and notify a supervisor as soon as possible. While a minor injury may not present immediate issues, you will protect your right to file a workers’ compensation claim in the future.
Can I return to work while my claim is pending?
Your attending physician will recommend care and determine when you are able to return to work. If your attending physician recommends modified work with restrictions you should provide the restrictions to your employer, and ask them to provide a modified job offer in writing for your doctor to review. If your doctor has approved a modified work offer, you must return to it or risk losing Worker’s Compensation benefits.
What happens if my workers’ compensation claim is denied?
If your claim is denied, you should consult with a lawyer. There is a strict 60 day deadline for requesting a hearing on a denial. Many denials are issued incorrectly. For helping you with a denied claim, a lawyer is paid only when a judge orders the insurance company to pay the lawyer for the wrongful denial of the claim. If you do not win the hearing, there is no charge to you.
What if my doctor takes me off work due to my injury?
If your attending physician takes you off of work, he must put that in writing. Then, the insurance must pay temporary disability benefits. These benefits should be 66% of your average weekly pay, and they are not taxable. Temporary disability benefits are also paid if you’re attending physician has you on modified work and the employer has not made a written offer of modified work. In order to be sure to receive temporary disability benefits you should ask your doctor to provide in writing your work restrictions each visit.
If I am offered a modified or light duty job by my employer, do I have to take it?
Your employer may offer you modified work and pay you a wage when your doctor releases you to modified or restricted work. If you do not begin the available modified employment, the insurance company does not have to continue paying time loss benefits.
Modified work must meet certain requirements. Your doctor must approve the modified job and your employer must provide you with notice of the work offer. There are some limited situations where the obligation to accept the modified job is nullified: if the job is further than 50 miles from your residence or where you were injured (unless you had multiple or mobile work locations at the time of the injury) or if the modified job is not with your employer at the time of injury or at a worksite of your employer at the time of injury.
I’m doing modified work for my employer but what do I do when they give me work beyond my restrictions?
This is a common problem, and the best way to handle this is to have a copy of your doctor’s work restrictions at your place of work. If your employer asks you to do work that is outside your restrictions, you can reference your work restriction paperwork. Make it clear you want to do modified work but you cannot physically do what is being asked of you.
It’s important to discuss with your physician about any problems you are having. Your doctor can clarify your work restrictions or further restrict the work you are released to do. Note: it’s important that your doctor and employer do not think you don’t want to work. Your claim could have issues if your doctor thinks you’re trying to avoid work.
What if my modified job pays less than what I earned at my regular job? Am I still entitled to time loss?
If you are earning less than you were before your injury either due to working fewer hours or earning less per hour than before your injury, you’re entitled to additional time loss benefits for the difference between your average weekly wage and your post-injury earnings.
What is my temporary disability pay rate based upon?
Temporary disability is paid at a rate of 66% of your average weekly wage. This is based on the job you are working at the time of your injury. If you think you’re being paid less than what you are entitled to contact a lawyer for assistance.
What if I can’t do the same kind of work activities I could do before my injury?
If you have a permanent impairment, you may be entitled to a permanent disability award. This happens when you have finished treatment for your injury, and is presented in a document titled Notice of Closure. It is important to understand that this document does not mean an end to your claim. After closure, claims can be opened and closed as many times as needed.
The permanent disability award is based upon impairment measurements made by your attending physician, and your ability to return to work activities. It is very important that if you are not returning to your full regular job, with all the things you used to do, that your doctor writes this the final release. This simple note can mean thousands of dollars of more compensation.
What if I can’t do the job I was doing at the time I was injured?
You may be entitled to a work disability award if your attending physician determines that you are unable to do some of the aspects of the job you were doing when you were injured. The insurer may ask you to review a description of the work you were doing when injured – you should ensure it is accurate, especially regarding the weight you had to lift prior to the injury. Inaccurate job descriptions can negatively impact your award.
What should I do if my medical bills aren’t being paid?
If you have an accepted workers’ compensation claim, workers’ compensation insurance should pay all your medical bills and should reimburse you for travel to all your medical appointments and pay for your prescriptions. If you receive notice that your bills are not being paid, you should contact the lawyer for assistance. Oregon law prohibits collection actions against injured workers based on medical bills.
What does claim closure mean?
Disabling claims are open while you recover from your injury. They must be ‘closed’ when you are medically stationary. If your claim has been classified as disabling injury, the insurer will issue a “Notice of Closure.”
If you disagree with your claim closure, you have the right to appeal by asking the Workers’ Compensation Division for reconsideration. You must ask for the reconsideration within 60 days from the mailing date printed in box 1 of the front of your notice of closure.
Can I reopen my claim after it has been closed?
Yes, you can open your claim if your accepted conditions get worse. This is called an aggravation claim and must be filed by the attending physician. You can also open a closed claim if you develop an additional problem related to the accepted conditions or injury. This is called a new or omitted medical condition.
Do I still get benefits after receiving a Notice of Closure?
The Notice of Closure is merely an end to an open period of the claim. The claim continues beyond the closure. In the Notice of Closure, you may receive an award of permanent disability. Typically you’ll receive monthly payments of this award. In addition, if you can not return to your regular work, you may be eligible for vocational assistance. If your get vocational retraining, your temporary disability will be paid to you while in training.
Should I settle my workers’ compensation claim?
A settlement means a negotiated agreement in which you give up your rights in exchange for money from the Worker’s Compensation insurance company. You do not need to settle your claim in order to get benefits. Still, sometimes a settlement is a good idea.
If you are considering a settlement, contact us today for a consultation.
How is a settlement different than receiving benefits?
On accepted claims, you can enter into a claim disposition agreement (CDA). This is a legal agreement where, in return for an agreed-upon amount of money, you give up your right to the following:
- Present and future time-loss benefits
- Present and future permanent partial disability awards
- Permanent total disability awards
- Vocational benefits
- Aggravation rights to reopen your claim
Should you settle, you cannot release your right to:
- Medical benefits for accepted conditions
- Eligibility for the Preferred Worker Program
Should you disagree with the insurer about whether you have a valid workers’ compensation claim, or new condition claim, you and the insurer may agree to a cash settlement for the claim or new condition claim. If you agree to a cash settlement:
- Your claim, or new condition claim, will be denied
- You give up all rights to future benefits for the denied medical conditions of your claim
- When you settle, all future medical expenses will be your responsibility.
Can you get workers comp and unemployment at the same time?
Worker’s Compensation benefits are available at the same time as unemployment benefits in some cases. For example, if you are released to modified work and your employer is not offering you modified work but you are willing to do modified work you are eligible to collect unemployment. Unemployment does not require that you are able to perform all types of work, so in general, injured workers with modified releases can collect unemployment. If you are totally disabled from all work then you would be ineligible for unemployment.
Can you receive unemployment benefits while a workers’ comp claim is disputed?
If your employer’s insurance company has denied your workers’ comp claim, you might be able to receive unemployment compensation while you challenge that decision. However, most states have provisions for reimbursing the state by deducting the amount of those unemployment payments out of any workers’ comp benefits you eventually receive that cover the same period of time.
If someone contracts the coronavirus while at work, will this result in a compensable workers’ compensation claim?
It depends. If the employee is a healthcare worker or first responder, the answer is likely yes. For other categories of employees, a compensable workers’ compensation claim is possible, but the analysis would be very fact-specific.
It is important to note that the workers’ compensation system is a no-fault system, meaning that an employee claiming a work-related injury does not need to prove negligence on the part of the employer. Instead, the employee need only prove that the injury occurred at work and was proximately caused by their employment. Additionally, the virus is not an “injury” but is instead analyzed under state law to determine if it is an “occupational disease.” To be an occupational disease (again subject to state law variations), an employee must generally show two things:
- the illness or disease must be “occupational,” meaning that it arose out of and was in the course of employment; and
- the illness or disease must arise out of or be caused by conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.
The general test in determining whether an injury “arises out of and in the course of employment” is whether the employee was involved in some activity where they were benefitting the employer and was exposed to the virus. Importantly, special consideration will be given to health care workers and first responders, as these employees will likely enjoy a presumption that any communicable disease was contracted as the result of employment. This would also include nurses and physicians who are exposed to the virus while at the worksite.
As for other categories of employees, compensability for a workers’ compensation claim will be determined on a case-by-case basis. The key point will be whether the employee contracted the virus at work and whether the contraction of the disease was “peculiar” to their employment. Even if the employer takes all of the right steps to protect the employees from exposure, a compensable claim may be determined where the employee can show that they contracted the virus after an exposure, the exposure was peculiar to the work, and there are no alternative means of exposure demonstrated.
If someone contracts COVID-19 while on a business trip for a company. Is this a compensable workers’ compensation claim?
An employee who contracted disease while traveling for business may be eligible for Worker’s Compensation benefits of the analysis will be fact specific. In Oregon, there is a presumption that illnesses or injuries that occur while on a business trip or work-related travel have arisen in the course and scope of employment. So, it is sometimes easier to have injuries or diseases that arise on work-related travel covered by workers compensation in Oregon.
What are the likely benefits an employee will be eligible to receive if their coronavirus infection is found to be a compensable workers’ compensation claim?
Generally, except in rare situations, an employee diagnosed with the virus will have no significant long-term health care problems. Therefore, medical costs associated with the claim are likely to be limited to visits to the family physician and anti-viral medications. More significant cases may involve hospital stays of two to three weeks. It should be noted that Oregon workers’ compensation pays 100% of medical expenses, so there is no co-pay.
The compensation costs should also be limited to the lost time associated to any recovery time. They may also be associated with lost time due to quarantine as required by the employer or local, state, or federal government agencies.
There could be more significant costs in extreme and rare situations involving complications from the virus. However, these cases would usually be limited to claimants who are older or suffer from immune deficiencies.