OTLA Trial Lawyer Fall 2020

49 Trial Lawyer • Fall 2020 Comp Corner jured at work — this limitation dis- criminates against older workers. The law has developed (I believe be- yond legislative intent) that an insurer can process one diagnosis at a time, dol- ing out benefits in a delayed and medi- cally detrimental fashion. See Karla R. Olsen-Smith , 69 Van Natta 541 (2017) (temporary disability must relate to compensable condition); Jesus Pena , 72 Van Natta 680(2020) (permanent dis- ability limited to accepted conditions); but see Garcia-Solis v. Farmers Ins. Co. , 365 Or 26 (2019) (medical benefits are based on accident, not accepted condi- tion). Workers with access to health in- surance can seek benefits elsewhere. Workers in lower paying jobs often do not have access to separate health care. Without the ability to obtain both medical services and paid time off to obtain medical treatment, poorer work- ers spiral downward economically. Overt discrimination There is overt discrimination in the system. Several statutes have the direct effect of discriminating against workers coming fromMexico and Central/South America, who are often invited by em- ployers to come to Oregon to pick crops, work in food processing plants or per- form other work. The statutes discrimi- nate by separating out “aliens” and per- sons legal to work in the U.S. from others. In particular, ORS 656.325(5)(c) al- lows temporary disability to be cut off for a “person present in the United States in violation of federal immigration laws.” A person may be legal when an em- ployer sponsors him or her, but become in violation later when a worker is injured and unable to work. That worker may believe he or she is legal, but learn later By Julene Quinn OTLA Guardian W orkers’ compensation is a study in systemic discrimination. Workers’ com- pensation provides the employer with complete immunity from a direct law- suit for all damages caused by a work injury. In exchange, it does not take care of the entire work injury, and it does not fully compen- sate the worker, not even to cover the economic loss. Many people do not have $400 to fall back on in an emer- gency. When a worker cannot work from an injury, any loss of income can snowball into unmanageable debt. Since persons of color make up pro- portionately more of the working poor, the system exacerbates racial discrimi- nation in our society. Temporary disability is paid at two- thirds of wages earned at injury. ORS 656.210. It is non-taxable, and the one-third reduction seems to be based on the theory that amount represents the taxes deducted from a normal wage. However, since lower income workers often pay taxes at a rate less than one-third of their gross wages, this reduction is a true reduction in take- home pay. Pre-existing conditions prevent any compensation for the work injury. ORS 656.005(7)(a)(B), (24). Because pre-existing conditions include “de- generation” — the natural aging we all suffer in our backs, knees and shoul- ders, body parts that are typically in- Systemic Discrimination Issues & Topics for the Workers’ Compensation Attorney Julene Quinn he or she paid legitimate fees for fraudulent documents. That person performed the same work that resulted in the injury, is just as injured, and has the same needs to eat and feed a fam- ily. The employer has benefited from the labor upon which the same insur- ance premiums were paid, but now does not have to pay the same benefits. Vocational retraining is restricted by legal status. OAR 436-120-0145. Essentially, coupled with ORS 656.325(5)(c), this law forces a foreign worker into a low-ball settlement, because he or she is injured and cannot receive temporary partial disability, and the value of the claim will never include vocational retraining. “Dependent” does not include fam- ily members who are citizens of an- other country living in that country, while for U.S. citizens, family members are included. ORS 656.005(10). If a worker comes fromMexico and works inOregon legally, sending money every month to support a grandmother, the grandmother will not receive death benefits, but a dependent grandmoth- er of a U.S. citizen living in another state will receive benefits. The discrimination in workers’ compensation favors employers’ profits over workers and favors citizens over non-citizens, while these same workers work side-by-side producing the same goods and services. Julene Quinn is an appellate attorney who focuses on workers’ compensation. She contributes to OTLA Guardians of Civil Justice at the Sustaining Member level. Her firm is Julene M. Quinn LLC, Box 820087, Portland, OR 97282. She can be reached at 971-259-8141 or julene.m.quinn@gmail.com.