Alana has extensive experience in the field of Oregon Workers' Compensation Law. She worked for several large defense workers' compensation law firms before opening her own practice and following her dream of representing injured workers. Her background as both a defense and claimant's attorney gives her particular insight into managing a successful workers' compensation case. She is dedicated to helping her clients obtain all the benefits they are entitled to under the law.
Alana lives in Portland, Oregon with her husband, son, and daughter. She enjoys helping her clients, painting, reading, and the outdoors.
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How do you know if your injury would be classified as a "work injury" under Oregon workers' compensation laws?
This is a tricky question and can be difficult for even attorneys and judges familiar with workers' compensation to answer. However, there are several basic concepts that are a good starting place. In Oregon, a work injury is described under the law as "arising out of and in the course of employment."An Oregon work injury "arises out of" employment when it was the employment itself that caused the injury. This portion of the legal requirement is met if your injury was the result of pretty much anything relating to your employment. This could mean all sorts of things from driving your car on a work errand to running and tripping in your office because you were late for a meeting.
An injury is "in the course of employment" when it happens while performing job-related duties. This means that you have a work injury if it was sustained while actually doing work. For example, if you were injured while lifting a box of office supplies at work, you have a work injury. But if you were injured while doing a handstand in the hallway, you probably do not have a work injury. (Unless your boss asked you to do the handstand, of course!)
With all this in mind, it is a good rule of thumb that if you were injured while on your employer's property or premises, it counts as a work injury under Oregon's workers' compensation laws.
If you are not sure if you have a work injury, check out additional information at www.oregonworkinjury.com or give me a call at (503) 975-5535.
Insurance companies deny workers' compensation claims for a variety of reasons. In my experience as a workers' compensation attorney, these fall into several categories.
Some claims are denied because the employer has a reason to believe (often incorrectly) that the injury did not occur at work. A good example of this might be that your boss knew you were moving furniture over the weekend and you report a back injury claim on Monday. They may believe you are lying about the back injury occurring at work. Although these types of denials are common, they are usually fairly easy to overcome. Workers' compensation judges will listen to your story and will believe your version of events unless there is a strong reason not to.
Another common reason for denying workers' compensation claims is when the insurer determines that work is not the main cause of your injury. Sometimes this is based upon the doctors' chart notes and sometimes it is really just a gut call by the insurance adjuster. The basis for these types of denials is not that you did not have a work injury, but that the major cause of the work injury is something aside from your work activities. A common example is when a worker lifts something heavy at work and injures his or her back. The doctor takes an MRI and finds a disc herniation, but also arthritis in the worker's back. If the insurance company can prove that the work injury "combined" with the arthritis in the worker's back, AND that the major contributing cause of the disc herniation and need for treatment was the arthritis, their denial will be upheld. However, keep in mind that these denials are overturned all the time. Also, even if you cannot get the denial overturned, a workers' compensation attorney may be able to help you negotiate a settlement.
So, you were injured at work and you have now received a denial in the mail and are wondering what to do. The denial will be in the form of a letter and will look something like this:
Dear Ms. Smith, After investigating your claim for an injury to your low back occurring on January 1, 2014, we are denying your claim for workers' compensation benefits....
Below this will be language in bold caps explaining how to appeal the denial. However, that language can be a little confusing. The most important thing to remember is that you have 60 days from the mailing date of the denial to appeal. You can technically appeal it on your own, but it is much smarter to retain a workers' compensation attorney. Oregon law requires that workers' comp attorneys work on contingency, which means they are not paid unless they obtain additional workers' compensation benefits for you. The attorney fee will not come out of your benefits when the attorney helps you overturn a denial. Because it will cost you nothing to have an attorney help you with your workers' compensation denial, it is very likely worth it to retain one.
If you would like to talk to an attorney, or have any questions about appealing your workers' compensation claim denial call the Alana C. DiCicco law firm at 503-975-5535 or post a response to this blog. All consultations with workers' comp attorneys are free. More information can also be found at www.oregonworkinjury.com
Hearing loss is a common form of occupational disease workers' compensation claim. The term "occupational disease" simply means that is develops over time as opposed to acutely from one accident.
The burden to prove an occupational disease falls on the injured worker in Oregon. The injured worker has to prove that his or her overall work activities are the major contributing cause of the occupational disease. In the case of hearing loss, this would mean the worker must prove his or her lifetime of employment was greater than 50 percent the cause of their hearing loss.
There are multiple factors that can cause hearing loss. First, is genetics or a family history. Second, are injuries or illnesses such as very high childhood fevers. Third, is normal aging. This is often called presbycusis which is the Latin term for "aging ear." Finally, exposure to loud noise can cause hearing loss. This is usually from gun use (target practice, hunting, or military experience), riding motorcycles, or from work exposure. There are many types of jobs that have very high noise exposure levels. Common ones include truck driving, welders, firemen, pilots, and metal fabricators.
If you think you have hearing loss related to exposure to loud noise at work, it is important to file your workers' compensation claim as soon as possible. The longer you wait the more likely it is that you will also have aging of the ears making it more difficult to prove that the majority of your hearing loss is related to work.
Responsibility and Hearing Loss Workers' Compensation Claims
Once you have filed your workers' compensation claim for hearing loss, the insurer will do one of several things They may accept the claim. Or, they may deny the claim. A denial can be for several reasons.
The most common is called a compensability denial and is when the insurer is denying the claim because they do not think your hearing loss is related to your work exposure. But, they may also deny your workers' compensation claim because they do not think they are the insurer responsible for your hearing loss. In this scenario, the insurer is essentially acknowledging that your hearing loss is related to your employment, but they think a different insurer or employer should pay for it. This comes up quite often when an injured worker has worked for several different employers and had noise exposure at each job.
When this happens, you will need a workers' compensation attorney to help you file against the other employers and insurers and appeal your responsibility denial.
If you have any additional questions, or would like a free attorney consultation, call our office at 503-975-5575.
There are two main types of workers' compensation claims in Oregon. They are categorized by the type and length of harm.
The first is an work injury. An injury stems from an acute event. A good example is falling and breaking an arm, or bending over to lift a box and injuring a back. These types of injuries occur immediately and can be related to a specific event (i.e., a fall). The burden of proof for an acute injury is material contributing cause. Under Oregon law this means that the injured worker has to prove a preponderance of the evidence shows some relationship between the injurious event and the subsequent injury. In other words, if a roofer fell from a ladder and broke his wrist, he would only have to show that he was on the ladder at work and his wrist broke from the fall. This is often a relatively easy burden to meet, especially when there was an obvious injurious event. It can be more difficult when the event was less obvious. For example, if a worker developed back pain after lifting a truckload of heavy boxes, but was not sure if there was a specific moment when the injury occurred.
The second type of Oregon workers' compensation claim is an occupational disease. An occupational disease is something that develops over time. The most common examples are carpal tunnel syndrome and hearing loss. Stress claims are also considered occupational diseases, even when related to one event.
The burden of proof for an occupational disease claim is major contributing cause. This means the injured worker must prove that his or her overall employment (from their whole life) is the major contributing cause (greater than 50 percent) of the occupational disease. For example, if a truck driver developed hearing loss, it would be their burden to prove that their employment over their lifetime is the greater than 50 percent cause of the hearing loss. This burden can be difficult to prove and it is generally harder to prevail on an occupational disease claim than an injury claim.
In Oregon, a workers' compensation claim can be reopened for an aggravation within five years of claim closure.
For example, if a worker sustained a back strain on January 1, 2010, he may treat for six months, at which point he would be medically stationary. If the claim was then closed on June 1, 2010, he would have "aggravation rights" until June 1, 2015. "Aggravation rights" simply refers to the right to have a claim reopened for an aggravation for five years after claim closure.
However, a claim will not be reopened automatically. An aggravation claim must be filed. This is usually in via an 827 form which is completed at a doctor's office. The form is sent by the doctor to the insurer or the State of Oregon. The insurer then has 60 days to accept or deny the aggravation claim, just like an original injury.
The legal test for whether an aggravation has occurred is whether the accepted condition has "pathologically worsened." This is something the medical expert (i.e., your doctor) has to determine. A good example of an obvious aggravation would be a meniscus tear of the knee needing a new surgery because it re-tore.
One issue that commonly comes up is when the accepted condition is not something that can pathologically worsen. For example, if the claim was originally accepted for a lumbar strain, it can be very difficult to prove a worsening. This is because strains, by their medical definition, will heal within a period of 3 to 6 months. If you still have back pain a year or more after the injury, it is likely that you have a different condition, rather than a strain. So, if your workers' compensation claim was originally accepted for a strain and closed, it can be hard to have an aggravation because the strain should have fully resolved. In that situation, you likely have a new claim, rather than an aggravation of the original claim.
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