Updates & Posts
Cary Wing Edmunson, PC

Medical services and attorney fees after a claim release

February 22, 2010 | By Thomas Cary

The Oregon Supreme Court has ruled that, when an injured worker releases “all rights to compensation, attorney fees and penalties potentially arising out of claims”, the injured worker continues to have complete coverage for medical services, including the possibility of attorney fees that may be awarded when the worker is involved in a later dispute with the insurer over a medical service. Liberty Northwest Insurance v. Watkins. The court reached this decision by carefully analyzing the Oregon statutes that provide for continuing medical services in an accepted workers’ compensation claim. The court concluded that these statutes, ORS 656.236, 656.245, 656.327, and 656.385, include the potential for an injured worker’s attorney to be paid a fee out of the insurer’s pocket when the injured worker later succeeds in obtaining an order requiring the insurer to cover a disputed medical service. The supreme court held that the assessed attorney fee is an “ancillary” component of the medical services that cannot by law be released in a claim disposition agreement under ORS 656.236.

Continue Reading...

More on further medical care

April 23, 2009 | By Thomas Cary

In my first posting below, "Much ink from the Court," I discussed SAIF v. Sprague, a case concerning coverage for medical treatment in an Oregon workers' compensation claim. The Oregon Court of Appeals later relied on that case in SAIF Corp. v. Martinez, 219 Or App 182 (2008). Martinez upheld the Workers' Compensation Board's decision. The board rejected the insurer's argument that the injured worker must first obtain formal acceptance of another medical condition in his knee as a precondition of further surgery.

Continue Reading...

The hazards of future medical coverage

March 18, 2009 | By Thomas Cary

I usually tell clients with accepted workers' compensation claims to assume they continue to have medical coverage into the future for conditions caused by the work injury or work exposure, but I will also caution them that the insurer is free in the future to question whether it must pay for a particular medical service. A recent case shows the difficulties that an injured worker may face in the future. Mr. Fowler had sustained an L4-5 disc herniation in an 1992 work injury. He underwent low back surgery and later received a permanent partial disability award.

Continue Reading...

Prepare carefully for your social security hearing - what you say can make or break your case

February 25, 2009 | By James Edmunson

A social security disability hearing is an informal appearance before an administrative judge who has the power to order a claim accepted. The person applying for SSD insurance frequently is their only witness and their description of their disability is critical to their case.

But will a claimant's testimony be enough to win their claim? That depends largely on other medical or vocational evidence in their case.

Two recent decisions of the federal appellate court governing Oregon explain how a social security judge must evaluate a claimant's testimony, in particular when the judge can disregard what a person says about the severity of their symptoms and their ability to function in a job.

Continue Reading...

More on accidents arising out of the job

February 24, 2009 | By Thomas Cary

In an August 7, 2008 posting below, Jim Edmunson discussed cases that dealt with whether certain accidents were work-related. The Court of Appeals has issued another decision on this topic, SAIF Corp. v. Uptegrove (February 18, 2009). Jennifer Uptegrove sprained her ankle while walking down a flight of stairs at work. Her co-worker noticed after the accident that Ms. Uptegrove's high heel had come off her shoe. The insurer denied her workers' compensation claim and argued she did not prove that her injury was work-related. The insurer argued that, if the accident was caused because the heel came off, then it was caused by a personal matter and was not work-related.

Continue Reading...

Caused By Injury or Wear and Tear?

December 12, 2008 | By Thomas Cary

Do you have arthritis in your knee because of that old work injury from years ago? Or do you have arthritis in your knee because of the heavy work you have done for many years after that old injury? Or both? These questions came up in a recent case decided by the Workers' Compensation Board and then reviewed by the Court of Appeals. The court upheld the board's decision that, although according to doctors Mr. Pruitt's knee injury from 1976 was the major cause of knee arthritis, the arthritis was also caused by work activities over his lifetime, including the 1976 work injury. Because Mr. Pruitt presented his claim only as an "occupational disease" (that is, wear and tear over time) and not as a claim for a "consequential condition" of the 1976 injury, evidence supported the board's decision that Mr. Pruitt's last employer was responsible for the knee arthritis as an occupational disease. Waste Management v. Pruitt, __Or App__(December 3, 2008).

The court relied in part on a case that Jim Edmunson of this firm had earlier argued and won, Kepford v. Weyerhaeuser Co., 77 Or App 363 (1986).

Who gets the benefit of insurance write offs?

October 22, 2008 | By Jeffrey Wing

In two recent rulings by the Oregon Court of Appeals, the court stated the plaintiff may prove and recover the full amount of their medical bills, even when a portion of those bills have been written off. In White v. Jubitz, 219 Or App 62 (2008), Mrs. White was injured on Jubitz's property and received medical care for which Medicare paid the bills at its reduced rate. In addressing the question of who gets the benefit of the "write offs", the court first found the full amount of the medical bills were "reasonable charges necessarily incurred" regardless of any amounts written off by the medical provider. The court went on to hold that "amounts later written off by a medical provider are collateral source benefits as contemplated by ORS 31.580" and thus the fact of the write off is not admissable at trial.

Continue Reading...

Court reaffirms long-standing standard of proof

October 20, 2008 | By Thomas Cary

The Oregon Court of Appeals recently decided that a long-standing requirement in Oregon workers' compensation law has not changed. In Knaggs v. Allegheny Technologies, dba Wah-Chang, __P3d__(October 15, 2008), the court held that a person claiming an accidental work injury must prove the injury was at least a material contributing cause of the need for medical treatment or of the cause of disability from work. The requirement comes from the statute that defines a work injury as one "arising out of" employment.

Continue Reading...

Court distinguishes a predisposition from a cause

October 20, 2008 | By Thomas Cary

In Murdoch v. SAIF Corporation, __P3__(October 15, 2008), the Oregon Court of Appeals again found that diabetes was a condition that rendered an injured worker more susceptible to an infection that required medical treatment, but that the diabetes did not cause the infection. In Murdoch, the infection resulted from a blister caused by work activity. Because the diabetic neuropathy was a predisposition, but not a cause, the claim for the disease was compensable under the workers' compensation law.

Not all "work related" accidents are covered under Oregon work comp system

August 7, 2008 | By James Edmunson

Generally, any accident while at work is covered under Oregon's workers' compensation insurance protection -- but there are exceptions. Two decisions of the Workers Compensation Board in July 2008 show the difficulty deciding when, and why, an injury is "work related."

In the first case, Cheyenne J. Anderson (July 8, 2008), an administrative judge had denied a claim of a gas station attendant who broke his ankle while "play boxing" with a co-worker. Business was slow when Anderson grabbed the co-worker, fell, and was hurt.

Continue Reading...

Much ink from the Court

August 4, 2008 | By Thomas Cary

On July 30, 2008, the Oregon Court of Appeals used a lot of ink to reach an inconclusive result. The case is a good example of just how complicated the workers' compensation law has become in the last decade. In SAIF v. Sprague, the court decided that the Workers' Compensation Board was correct to hold SAIF Corporation responsible to cover the cost of gastric stapling surgery for a gentleman who had injured his knee in 1976 (when he weighed 225 pounds). Eventually the knee injury resulted in arthritis in the knee. Doctors wanted to do a total knee replacement, but by then Mr. Sprague weighed well over 300 pounds and the doctors said he must lose weight before a knee replacement could be done successfully.

Continue Reading...