- Will the Insurance Policy Limits be Enough Money to Pay My Damages?
Is there enough insurance to pay all of your damages for personal injury after a wreck? Fairness requires that you be given an honest answer about how much insurance there is to pay for your injuries. But insurance companies are not required by law to tell you how much the responsible party has in insurance coverage. And for all you know there may be a million dollars of coverage as part of a comprehensive Auto/Personal Liability Umbrella policy package, or as little as $25,000 which is the Oregon minimum bodily injury insurance limit that is required by law. But $25,000 barely pays for an overnight stay in the hospital. If you ask an insurance adjuster for the policy limit available to pay your damages the usual answer you will receive is a vague reference to whether it is a small limit policy or something like “The policy limit should be adequate to pay your damages.” Well what does this mean? If you press for an answer you are usually told that this information may only be released with the consent of the insured party. If you say to ask the insured to release the limit information in the majority of cases the information is still not released. In our office we tell the claims adjuster that when this happens we cannot advise our client to settle without knowing what sums are available to pay damages. We always succeed in forcing the insurance company to release policy limits information because we tell the insurance company to tell their insured that if the policy limit is not voluntarily disclosed we will file a lawsuit, likely for an amount above the policy limit, and force disclosure because the Oregon Rules Of Civil Procedure (ORCP 36(B)(2) requires disclosure of insurance limits available to pay the damages claimed in a filed lawsuit. We tell the insurance company that by failing to persuade the insured to voluntarily disclose the policy limits they exposed their insured to a possible “excess verdict” above the limits of their insurance. After hearing this analysis it has never been our experience that the policy limits were held back. Knowing the policy limits in advance of negotiation gives us the information we need to properly evaluate the amount of “skin in the game” this insurance company has, and to give us advance warning that insurance limits may be insufficient to cover the full damages and that we need to conduct an asset investigation of the at fault party to find out if they have the financial ability to contribute funds or assets to any settlement
- Should I give a statement to an insurance company after I was hurt in a collision?
Whenever someone is hurt in a collision with an at fault insured driver there is a standard protocol automobile insurance companies follow in having a claim adjuster contact the parties and witnesses to find out what happened, usually just a few days after the collision. The purpose of the investigation is to attempt to determine fault and set the “reserves” on a personal injury case. What most folks are not told when they get one of these calls is what information from witnesses, other parties, or the police the insurance company has already collected. Further, before the call is made for an interview the insurance adjuster will usually examine the applicable legal requirements from the state traffic law. Thus, the “interview” is not an informed interview or one that is a fair and complete exchange of information. Instead it is a chance for the insurance company to subject the victim of a collision to a cross examination without the benefits of a full briefing of the applicable laws and legal issues in advance. While a person has a right to decline one of these interviews, most folks try to be cooperative and provide their side of the story.
It is our advice to follow the same applicable considerations experienced witnesses or participants in traumatic events are usually advised to obtain and consider before an interview:
Applicable Considerations Before An Interview
1. obtain a briefing on the applicable law before the interview
2. find out what other witnesses have said
3. review the police reports
4. do not give an interview when you are still in pain or upset from the wreck, and not when you are under the effects of any pain medication
5. find out whether you can delay the interview until after you have adequately prepared yourself
6. find out what happens if you decline to give an interview
In our experience after we find out about the applicable considerations we often decide that an interview of our client will not have an effect on the insurance company’s decision on liability as they have already concluded our client was mostly at fault. In that instance the interview only gives the insurance company another point of attack in a case they are not intending to settle any way. Other times, after reviewing the applicable considerations, we decide that our client can contribute to a favorable liability determination and we help to set up the interview. Even where we see a likely valid situation for an interview we usually agree to participate only on the condition that the interview not be recorded. Most insurance company interviewers do not tell the witness that the interview does not have to be recorded. Instead the insurance company interviewer can take notes and use those notes to summarize what the party says in a report to the company. This way the interview recording will not be later used against the witness in court.
And the interview process exists for the benefit of the insurance companies, not the injured parties. If it were otherwise then the insurance would not refuse to share their interviews of other witnesses and other parties with the person making an insurance claim. Our requests for witness interviews of others are almost always met with a “Work Product” based refusal to share. We are able to obtain any interviews of our own clients, but not other witnesses or other parties, even when we are not able to have access to the folks the insurance company has already interviewed.
The one exception is when the collision victim’s own insurance company conducts interviews of the injured person. Not only will the injured person’s company release their interview, but usually the insurance company for the hurt person will also release the interviews they conducted of others.
At the very least every person should have the benefit of a briefing of their rights and the applicable facts and laws before an insurance company interview.
- How do I find a good doctor?
You should see if your primary care doctor will help you. However, many primary care doctors no longer deal with Workers’ Compensation. If that’s the case, look for a reputable doctor. Check reviews, ask other injured workers who their doctor was or check with a workers’ compensation attorney. Finding a good attending physician is the single most important thing you can do to get the care you need and benefits you are entitled to for your injury.
- 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 initially present for treatment at an urgent care clinic or the emergency room, you will often be directed to a follow up appointment. You are not obligated to follow up with that doctor but rather can choose to find another doctor of your choosing. Because your attending physician is so important to your claim, it is important to find a doctor you trust that is supportive of your claim.
- Can my employer tell me where to get medical treatment?
No, it is against the law for your employer to direct your medical care. Instead, you are free to seek medical care with a provider of your choosing. If you don’t know where to go, your primary care doctor is often times a good place to start. If the employer has directed your care, alert the ombudsman for injured workers at 503-378-3351.
- I’m doing modified work for my employer but what do I do when they give me work beyond my restrictions?
Unfortunately, this is a common problem. The best way to handle this is to have a copy of your doctor’s work restrictions with you at work. If you are asked to do work that is outside of your restrictions, politely point out that what you are being asked to do is outside your doctor’s restrictions. Make clear that you want to do modified work, but that you cannot physically do what is being asked of you. Talk with your attending physician about any problems you are having to see if the doctor can clarify or further restrict the work you are being released to. It is very important that your doctor and employer do not think you just don’t want to work. If the doctor thinks you are trying to shirk work, it creates real problems with your claim.
- What if I get injured on the job but I’m not sure I want to file a workers’ compensation claim?
You should document an injury sustained on the job in writing and notify a supervisor immediately, even if you do not plan to file a workers’ compensation claim. While initially a tweak or a strain sustained on the job may not seem like a big deal, you protect your right to file a workers’ compensation claim in the future.
- Should I do a recorded statement with the insurance company?
The insurer is entitled to investigate your claim and it often requires the worker to give a recorded statement to the adjuster or an investigator for the insurance company. You are obligated to cooperate in their investigation. If you refuse, they can deny your claim. A recorded statement can impact whether your claim is accepted and how it is processed. It is in your best interest to have an attorney help prepare you for and participate in the recorded statement. The insurer is required to pay your attorney to help you with this statement.
- Can I sue my employer if I get hurt on the job?
You cannot sue your employer for your injury. Your only remedy from your employer is your workers’ compensation claim. This is a “trade off” in the law that came about when state workers’ compensation laws were adopted 100 years ago. You do not have to show that anyone was at fault in causing your injury, but the trade-off is that the only remedy you have is a workers’ compensation claim. HOWEVER, if your work injury was caused by someone or something other than your employer (examples: a worker from a different employer or a defective product) you may have a right of action against that “third party” in addition to your workers’ compensation claim.
- What happens if my workers’ compensation claim is denied?
If your workers’ compensation claim is denied, you should consult with a lawyer to see if it can be reversed. You have a strict 60-day deadline for requesting a hearing on a denial, so act promptly. Your lawyer’s fee will be paid by the insurer if you win. If you lose there is no lawyer’s fee.
- Do I have to pay a lawyer to represent me?
No, under the Oregon Workers’ Compensation laws an attorney cannot charge you for working on your case. Depending on the type of dispute involved, your lawyer gets paid either a percentage of the increased compensation awarded, or the insurer is required to pay the lawyer a fee.
- What if I can’t do the same kind of activities I could do before my injury?
Sometimes an on-the-job injury can permanently impact your life. Under the workers’ compensation laws, you may be entitled to a permanent disability award if you have permanent impairment as a result of your injury and may be entitled to a work disability award if your doctor finds you cannot return to your same job. You may also qualify for vocational benefits. However, the workers’ compensation laws do not provide for any monetary award for pain or suffering, or for the loss of the ability to do other non-work related activities.
- What if I can’t do the job I was doing at the time I was injured?
If your attending physician determines that you are unable to some of the aspects of the job you were doing when you were injured, you may be entitled to a work disability award. The insurer may ask you to review a description of the work you were doing at the time of your injury. You should make sure it is accurate, especially regarding how much weight you had to lift before your injury. An inaccurate job description can negatively impact the amount of your award.
- What is an "Attending Physician" (AP)?
If you have an open workers’ compensation claim, you are required to have one doctor who is in charge of your medical treatment, called an attending physician (AP). This medical provider is very powerful in your claim. This provider is responsible for all of your medical care and for giving you work restrictions that allow you to receive wage replacement benefits (called Time-Loss benefits). Other critical decisions this doctor makes that determine your future are the following: what type of modified work you can return to while you are recovering; when you are “medically stationary (as good as you are going to get) after your injury, which triggers the closure of your claim; how much permanent impairment you have; and whether you can return to your regular job without any modifications (these determinations translate into your disability award and potential for vocational train).
- Can I have a chiropractor, a naturopath, a nurse practitioner or a physician assistant as an attending physician?
Yes, you can have a chiropractor, naturopath or physician assistant as your AP for a total of 60 consecutive days or 18 visits, whichever occurs first. However, they may not authorize time loss for more than 30 days. You can treat with a nurse practitioner for 180 days from the date of the initial visit and they can authorize time loss during that period. After these time frames, you must establish care with a medical doctor, doctor of osteopathy (or an oral or podiatric physician where applicable).
- Can I get treatment under my closed claim?
By law, you are entitled to treatment after your claim closes, but insurers stonewall the doctor and make this very difficult. By law, you are entitled to the following services for your work injury after your claim closes: prescription medication and services necessary to administer prescription medications; prosthetic devices, braces and supports; services necessary to diagnose your condition as it relates to your work injury; palliative care (such as physical therapy) if you need it to continue working; curative care to stabilize an acute waxing and waning of symptoms of your work related condition.
- How come I can't get the treatment my doctor has ordered?
Some insurers stonewall workers for diagnostic testing and physical therapy because they refuse to give the provider preauthorization and the provider won’t proceed without preauthorization. The law is slowly changing to give us a bigger stick to force insurers to authorize treatment so let your lawyer know as soon as possible if you are having difficulty accessing treatment. We can file a medical dispute to force the insurer to authorize treatment.
- The insurer told me I'm enrolled in an MCO. What does that mean?
MCO stands for “Managed Care Organization.” MCOs add an extra layer of bureaucracy and severely limit your choice of medical providers. In fact, if your doctor is not a member of the MCO, you are forced to drop this provider and find a new one who belongs to the MCO. The MCO is a different entity from the insurer and they have their own rules to keep medical providers in line. You can only go to a provider who has agreed to the MCO rules. If the MCO thinks you are taking too long to get better, they can call up your doctor and pressure them to alter their treatment course.
- What if my doctor takes me off of work for my injury?
The insurer has to pay you time loss (wage replacement benefits) when your doctor takes you off work for your work injury. The insurer must also pay you time loss when your doctor indicates you can do modified work, but your employer does not have modified work available and you remain off of work. You must obtain regular work restrictions from your doctor in order to be entitled to ongoing time loss benefits. In most situations, your doctor must update your work restrictions about every 30 days.
- If I am offered a modified or light duty job by my employer, do I have to take it?
When your doctor releases you to modified or restricted work, your employer may offer you modified work and pay you a wage. If you do not begin available modified employment, the insurance company does not have to continue paying time loss benefits. An offer of modified work must meet certain requirements. For example, your doctor must approve the modified job and your employer must provide you with notice of the job offer. There are some limited situations where you may not be obligated to accepted a modified job, such as 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 injury, or if the modified job is not with your employer at injury or at a work site of your employer at injury.
- What is my time loss rate based on?
Time loss is paid at a rate of 2/3 of your average weekly wage, or the average of what you earned working for your employer prior to your injury. In most situations, average weekly wage rate is based on what you earned in the 52 weeks prior to your work injury and should include any regular overtime worked and performance-based bonuses. There are other factors and considerations that go in to calculating your time loss rate. If you think you are being paid less than what you are entitled to, you may want to contact a lawyer.
- 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 performing modified work for your employer, but are earning less than you were before your injury either because you are working less hours or earning less per hour than before your injury, you are entitled to additional time loss benefits for the difference between your average weekly wage and your post-injury earnings.