OTLA Trial Lawyer Fall 2021

48 Trial Lawyer • Fall 2021 Comp Corner order. The allowable reduction is prescribed in ORS 656.234. Different benefits may be reduced. Temporary disability may be reduced by 25% for current support. For back support, 15% may be taken. How- ever, a full one-half of settlements, PTD and PPD payments may be taken. For child support reductions, ORS 656.234 allows reduction of “[o]ne-half of the net proceeds paid to the worker in a disputed claim settlement under ORS 656.289 (4).”The same is true of a settle- ment by claim disposition agreement under ORS 656.236 (CDAs). When the insurer fails to advise the worker of a pending child support order, it can be a nasty surprise to the worker of this sub- stantial reduction of settlement proceeds. Better to inquire of the worker directly and before any settlement agreement to avoid the difficulty. Once a settlement is signed and approved, it is often too late to undue the reduction. Disputed amounts While the assignment of compensa- tion is barred, the assignment of monies from a disputed claim settlement (DCS) is not. Wanda D. Gangle , 55 Van Natta 3655 (2003). This is because monies paid pursuant to a DCS settlement are for a claim that has not yet been determined compensable. Thus, the monies paid are not compensation. In addition, ORS 656.234 now pro- vides a specific exception. A worker may assign monies in a DCS, in addition to child support obligations reducing settle- ment proceeds. For example, a worker may assign the repayment of litigation costs, health insurance payments and By Julene Quinn OTLA Guardian O RS 656.234 is very clear: “No moneys payable under this chap- ter on account of injuries or death are subject to assign- ment prior to their receipt by the ben- ef iciar y ent i t l ed thereto, nor shall they pass by opera- tion of law. All such moneys and the right to receive them are exempt from seizure on execution, attachment or garnishment, or by the process of any court.” This bar of assignment is echoed in ORS 18.784, the statute that prevents a financial institution from garnishing monies deposited in an account, when the origin of the monies is certain benefit payments, including workers’ compensation benefits. This statute protects an injured worker’s proceeds when deposited into a bank. Except for The exception to this rule, how- ever, is very important to understand as it can affect different aspects of a person’s claim. ORS 656.234 provides one exception allowing assignment, for payment of child support obligations under ORS 25.378. Generally, this requires the insurer to have on file a current support order showing the obligation. It is unclear under the statutes whether the injured worker must be aware of the child support Nonassignment of Benefits Issues & Topics for theWorkers’ Compensation Attorney Julene Quinn medical providers. See Theron E. Hutchings , 69 Van Natta 623 (2017); Robert D. Surina , 40 Van Natta 1855 (1988); Theodule Lejeune, Jr. , 40 Van Natta 493 (1988). However, a worker may not assign more than the statu- tory allotment of attorney fees, unless extraordinary circumstances are estab- lished in the settlement. OAR 438- 015-0050 and -0052. Note that a CDA is not the same. Assignments may not be made for costs or other monies, with the exception of child support. See Debbie K. Ziebert , 44 Van Natta 51 (1992). Other effects The limitation on assignment of benefits creeps into the discussion of the terms allowed in a CDA. For ex- ample, in George D. Smith , 55 Van Natta 256 (2003), the Workers’ Com- pensation Board wrestled with the assignment of an annuity created by a CDA should the worker die before receiving all payments. The Board allowed the beneficiary assignment as it occurred after death. ORS 656.234 prevents any payments from the CDA settlement other than the allowed attorney fees and child support reduc- tions, with the remaining proceeds going to the injured worker. 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.