T R I A L Summer 2022 OREGON TRIAL LAWYERS ASSOCIATION In the Service of Justice Representing Workers
1 Trial Lawyer • Summer 2022 Board of Governors Summer 2022 The views expressed in Trial Lawyer are solely those of the authors and do not necessarily reflect the policies or opinions of the Oregon Trial Lawyers Association, its members, Board of Governors or staff. Trial Lawyer is a quarterly publication of the Oregon Trial Lawyers Association and is distributed as a membership benefit. For permission to reprint articles, contact Michael Kesten at 503-246-1126, michael@kestenmedia.com. For advertising rates, contact law@llmpubs.com or 503-445-2240. Publications Committee Co-Chairs — Barb Long, barb@vogtlong.com. 503-228-9858; Faith Morse, faith@andersenlaw.com, 541-773-7000 Editor — Michael Kesten, KestenMedia, michael@kestenmedia.com, 503-804-0668 Oregon Trial Lawyers Association, 812 SW Washington Ste. 900, Portland OR 97205, 503-223-5587, otla@oregontriallawyers.org, www.oregontriallawyers.org Dedicated to protecting people, holding wrongdoers accountable, and promoting a fair and equitable justice system through advocacy and education. Articles Toxic Employees in the workplace Mitra Shahri.................................................................................................... 6 Crash Course when workers’ comp and cars collide Jovanna Patrick. ........................................................................................... 10 Accomplices to Discrimination: Aiding and abetting in employment law Michael Owens............................................................................................. 16 Equal Pay for Equal Work Jennifer Middleton........................................................................................ 19 Violence in the Classroom Rebecca Cambreleng .................................................................................... 22 NDA Coersion Shenoa Payne................................................................................................ 28 Unauthorized workers in employment discrimination Quinn Kuranz .............................................................................................. 32 Unwanted Conduct Meredith Holley............................................................................................ 36 COMP & COVID what we think we know Keith Semple ................................................................................................ 40 Pregnant or Trying to Conceive: Challenges facing Oregon employees Talia Yasmeen Guerriero ............................................................................... 43 Departments President’s Message: We help others, together Lara Johnson................................................................................................... 2 View from the Bench: Preparing for a judicial settlement conference Judge Shelley Russell....................................................................................... 4 Annual Partners . .................................................................................................................... 15 OTLA Guardians of Civil Justice . .................................................................................................................... 26 Comp Corner: The worker you find Julene Quinn. ............................................................................................... 48 Between the Sheets Cody Hoesly, Lisa T. Hunt, Nadia Dahab....................................................... 49 Officers President Lara Johnson President-elect Blair Townsend Secretary-Treasurer Rob Kline Parliamentarian Melissa Bobadilla Immediate Past President Tim Williams District Governors Talia Guerriero — District 1 Nathan Sosa — District 1 Kelly Andersen — District 2 Brian Dretke — District 2 Rob Beatty-Walters — District 3 Neil Jackson — District 3 Derek Johnson — District 4 Robert Johnson — District 4 Ryan Jennings — District 5 Brent Barton — District 5 Governors-at-Large Steve Berman Erin Christison Diego Conde Ronn Elzinga Sonya Fischer Quinn Kuranz Paul Loving Jeremiah Ross Thanh Tran Greg Zeuthen New Lawyer Governors Ron Cheng Emily Johnson AAJ Governors Kathryn Clarke Tom D’Amore Nadia Dahab AAJ State Delegates Shenoa Payne Michael Wise Apolinar Montero-Sánchez OTLA Staff Email, (firstname)@oregontriallawyers.org Main phone, 503-223-5587 Kathleen Bergin, 503-223-5587 x108 Membership Director Beth Bernard, 503-223-2558 Chief Executive Officer Nora Fogarty, 503-223-5587 x104 Development Dir. & Publications Mgr. Caroline Greenlaw, 503-223-5587 x100 Education Director Arthur Towers, 503-345-0045 Political Director/Lobbyist
2 Trial Lawyer • Summer 2022 By Lara Johnson OTLA Guardian In September 2020, wildfires swept through Oregon, burning a million acres of land, destroying thousands of homes and displacing tens of thousands of Oregon residents. It was one of the worst wildfire seasons in Oregon history. As residents here, we saw how people suffered. As trial lawyers, we understood how vulnerable those displaced by the fires would be to predatory insurance practices. In response, OTLA volunteers stepped up. Over the course of several months, OTLA set up a hotline and held eleven in-person pro bono legal clinics across the state to help those affected by wildfires. It took a whole team of people to pull the program together. All in all, 80 members volunteered. Community involvement One of my favorite things about OTLA’s wildfire program was learning about other OTLA members and how they volunteered in other ways. Faith Morse practices in Medford, an area profoundly affected by wildfires. She helped out at a clinic set up in the Jackson County Expo Center where agents, adjusters and attorneys made themselves available to read insurance policies, and to direct people to programs and We help others, together services. Morse said the work could be heartbreaking. There were 2,800 homes destroyed in the area, most of which were occupied by low-income Oregonians, and many of those with three or four generations in a single home. For two to three months, all Morse did was work, volunteer and sleep. Melissa Bobadilla has provided support and assistance to migrant farm workers and their families for years. Being displaced because of fire, without time to pack a bag, meant some of these families had nothing. Bobadilla turned to OTLA and asked for help. She asked for donations and within a short time she had raised ove $30,000, which would go to much needed basic supplies. She said it was very meaningful to her that she could turn to some of her fellow OTLA members and ask for money, that they said yes without hesitation, and trust the money would get to the right people. Bobadilla is generous with her time and she also recogn i z e s t ha t “we c an a l l he l p i n different ways.” Volunteering can take different forms, but doing it, taking some step, helping in the way you can, is what counts. For Morse and Bobadilla, volunteering did not begin or end with OTLA’s wildfire efforts. Morse is the regional coordinator of Oregonians against Human Trafficking (OATH). This is a volunteer education and outreach arm of the Oregonian Human Trafficking Task Force. Morse gives presentations to public defenders, prosecutors, community groups, classrooms and church groups. She shares with her audiences that human trafficking is not a problem in some far-away place. It is right here. She says the average age for entry in human trafficking is 12 to 14 years old. The kids who are trafficked are often, but not always, “throw away” kids — kids who are homeless, who are in foster care or whose parents are absent. Morse has a passion and a commitment to these children. She says she has never refused an invitation to give a presentation. Bobadilla has done tremendous work with the migrant farmworker community in Oregon for a long time. She collected donations of bikes and helmets, money to buy new ones, and she also distributed them. She partners with churches and other organizations to collect new coats, scarfs and gloves, blankets and snacks. She even puts a collection box in her office, and her clients donate. She says sometimes she feels guilty, “I have so much.” She says, “I was once there in my life. I can relate. I had a used coat.” Bobadilla describes seeing a kid receive and put on a new coat for the first time as “magical.” President’s Message Lara Johnson
3 Trial Lawyer • Summer 2022 Classroom Law Project The Classroom Law Project brings civics and law-related educational programs into Oregon schools. It has a variety of activities under its umbrella, but the program most of us are familiar with is the mock trial program. If you are looking for an opportunity to volunteer locally, being a coach to a high school mock trial team may be a great choice. Before COVID, Ron Cheng volunteered as a coach to the Jefferson High School mock trial team for several years and plans to return to coaching soon. Every high school program is different in terms of howmany coaches there are and how often or when the team meets. For Jefferson High School, for example, the mock trial team has been an afterschool program that met for an hour or two once a week for eight weeks or so. J e f f e r s o n Hi g h S c h o o l h a s a diverse student body with many students having no attorney in their circle of acquaintances. Cheng spoke enthusiastically about the students he worked with and what he learned from them. He spoke of their creativity, their idealism and their hopefulness. His favorite things were seeing students come up with sound arguments that he would not have conceived and seeing them develop confidence. Rhett Fraser coaches a mock trial team with fellow OTLA member Barb Long at Wilson High School. He recommends coaching to other attorneys. He says it makes him a better lawyer. “If you can teach a hearsay objection to high school students, you understand it.” Fraser also recognizes this is a way lawyers can build a legacy — putting seeds in the ground and growing our future lawyers. For those who do not have the time to coach or assistant coach a high school mock trial team, consider being a judge at the mock trial competitions. Reaching out to law students OTLA has made an increased effort these last several years to engage with law students at Oregon’s three law schools. It is our goal to let law students know about the rewarding work our members do and welcome and support young lawyers of all backgrounds. For example, this past fall, several board members attended the Multicultural Law Student weekend at the University of Oregon Law School. It was a wonderful opportunity to meet law students and to share what we do as trial lawyers. It is a yearly event, and includes a social, dinner and football tailgater. Any OTLA member who would like to attend this event or others like it at the other law schools, please keep an eye out for the List Serv postings or reach out to me. Individual OTLA members have also dedicated time and energy in mentoring law students. This is an opportunity for our members to provide support and direction to local law students on an individual basis. It is not just our more experienced members who should consider themselves as qualified to be mentors. There is a plus to be a newer lawyer mentor. A newer attorney is closer to the experience of law school. They have a better memory of the rigors of law school, the challenges of balancing work and life, and the professors to seek out for classes. Suzanne Johnson, an associate at our firm and a 2019 graduate of Willamette Law School, began as a mentor to fellow law students one year out of law school. She is now a mentor to two Willamette Law students and to one University of Oregon law student. Johnson says she is matched up with a law student in September and from that point forward she tries to spend about one to two hours a month connecting with them as their schedules allow. She usually gets together with her mentees in October for a casual get together, like going to a pumpkin patch or meeting for tea or coffee. She later meets with them closer to finals in November to talk about test preparation. Over the course of the mentorship, she talks with her mentees about class selection, job searches and real-life problems. She helps them prepare for first year appellate arguments and mock trial competitions. She shared with me that students are not taught how to draft a direct examination in class and she can provide that real world support. Listening to her, I thought, “I wish I had a Suzanne Johnson as a mentor in law school.” Johnson had her own influential attorney mentor as a law student, OTLA member Wes Gracia, and they continue to remain in contact. Offering help together Muhammad Ali said, “Service to others is the rent you pay for your room here on earth.”There is not enough space here to tell the stories of each of you, of each OTLA volunteer, and the service you have given. We are defined by our careers to want to help others. We are highly educated, motivated and with access to resources not available to others. I am thankful to each of you for the good work you do. Lara Johnson is a shareholder in the Corson & Johnson Law Firm. She specializes in mo t o r veh i c l e c o l l i s i on s , nur s ing home abuse and neglect, and medical negligence. She contributes to the OTLA Guardians of Civil Justice at the Guardians Club Level. Her office is located at 940 Willamette St., Ste. 500, Eugene OR 97401. She can be reached at 541-4842525 or ljohnson@corsonjohnsonlaw.com.
4 Trial Lawyer • Summer 2022 By Judge Shelley Russell Multnomah County Circuit Court Since the onset of the global pandemic two years ago, it has been difficult to get civil cases to trial. One of the most useful tools for resolving cases during this time has been the judicial settlement conference. While we are hopefully nearing the end of rising case View From The Bench Hon. Shelley Russell Preparing for a judicial settlement conference counts, rapidly developing variants, social distancing and getting back to civil jury trials, judicial settlement conferences remain a viable method of reaching a quicker resolution of cases. Judicial settlement conferences have advantages and disadvantages as compared to private settlement conferences. For one thing, judicial settlement conferences are far less costly. They are also less time consuming as they are generally limited in duration, which, depending on your perspective, is either an advantage or a disadvantage. As a former employment lawyer, I tend to think employment cases lend themselves particularly well to judicial settlement conferences. They provide employee plaintiffs an opportunity to “have their day in court” with a judge
5 Trial Lawyer • Summer 2022 and they can provide the closure that employee plaintiffs need to move forward with their lives. Here are some tips to help make your judicial settlement conference as productive and successful as possible. Most of the advice provided is applicable to any civil case. Analyzing potential Take a long hard look and analyze your case for its settlement potential. • Is your client desperately wanting to present their case to a jury or are they wanting to resolve the case short of trial? • Are the parties seeing the facts clearly and recognizing their weaknesses as well as their strengths? • Is there outstanding discovery that would be helpful in that understanding? • Are you facing an opponent that is notorious for a scorched earth, no holds barred, trial or die defense? • Or is the defense more reasonable and willing to talk about a realistic resolution? • Is this the right time to have a settlement conference or is it too early? Understanding possibilities Be real with your client. Have a conversation with your client well before your conference date about what they hope to accomplish and how those goals can or cannot be met through a settlement conference. Make sure your client has a good understanding of what is possible both in terms of monetary recovery and non-monetary considerations. There are things you may be able to secure through settlement that are simply not available at trial. For example, policy change may be on the table during a settlement conference. So might a neutral reference letter, which is a far more attainable goal than getting a glowing recommendation. Likewise, few if any defendants are willing to provide a letter of apology. The best you may get is an expression of regret. Confidentiality Follow your judge’s instructions as to what they expect to see in your confidential settlement statement and get that statement to your judge a couple of days before your conference to allow them to be prepared. Again, be realistic when discussing the strengths and weaknesses of your case. If there are particularly difficult factual or evidentiary issues for one side, let your judge know and tell them your plan for overcoming the sticky wicket if you have one. If you anticipate that dispositive motions might be successful for either side, let your judge know that as well. Remember, your confidential settlement memorandum and all conversations you have with the judge in your individual sessions remain confidential and will not be disclosed to your opponent. Your judge will not share any information you provide with the other side unless instructed to do so by you. Address the law Have a good grasp on the law relevant to your case and devote a section of your confidential settlement memorandum to setting out how those laws operate with your facts. Be prepared to address the interplay of federal and state law. Not only will it help you focus your analysis, but it will help your judge understand the issues. The chances of your judge having a background in employment law are slim. Not many of us on the bench are intimately familiar with the ins and outs of state and federal employment statutes or common law claims. Employment law changes rapidly. The pandemic has accelerated those changes and even those of us with extensive employment law experience have difficulty keeping up. The better we understand your case, the better we are able to work with the parties toward resolution. Know your numbers This may be common sense, but you would be surprised at how many attorneys either do not know the numbers or cannot access the numbers during their conference. Have a good working knowledge of your client’s lost wages (past and future), medical expenses (if any are attributable to their employment claims), and attorney fees and costs incurred to date. Know what offsets are likely to be argued by the defense and how your client’s subsequent employment may affect the numbers. It is difficult, if not impossible to have an effective settlement discussion without that knowledge. If you are comfortable doing so, share your calculations with opposing counsel prior to the conference. Keep an open mind Take a creative approach. If you have reached the end of the day and are close to resolution but cannot quite get there, consider asking your judge for a “mediator’s proposal” in which the judge gives both parties a number. If both parties say yes to the number, the case is resolved. If one party says no, the case does not settle and the declining party is not told that the other party said yes. Judicial settlement conferences are an underutilized tool, but they are a viable and cost-effective method for resolving those cases that can be resolved. Settlement conferences give the parties the opportunity to control the resolution of their disputes. Creative solutions can oftentimes put the parties in a better place than taking the case to trial where there will be a winner, a loser and the potential for years of appeals. If your case is in Multnomah County and you wish to schedule a judicial settlement conference, contact Chief Civil Judge Marshall’s chambers for assignment. Judge Shelley Russell serves at Multnomah County Circuit Court, 1200 SW 1st Ave. Portland, OR 97204. She can be reached at 971-274-0626 or shelley.d.russell@ojd. state.or.us.
6 Trial Lawyer • Summer 2022 By Mitra Shahri Brandon was surprised when he arrived at work one day to find his big office filled with hundreds of colorful balloons. It was his 10th year anniversary at Acme Corp. and all four departments, despite their years-long strained relationships with each other, had managed to team up for the first time to surprise and celebrate him. Brandon had joined the company as a warehouse worker and had worked his way up to director of sales. He was smart, dedicated and very charming. Although managers at Acme generally only socialized with other managers, he socialized with employees of all levels. In fact, Brandon was so well-liked and trusted by everyone that throughout the years, he had become the communication link between various departments and the management team. The internal strugggle Acme, a successful company that had been in business for 25 years, had great products, good customer service and above-average sales. Despite its external success and good reputation in the industry, Acme was on the verge of an implosion. The turnover rate at Acme was at its highest, over 50%, and the company struggled to hold on to its talent, despite the competitive salaries and benefits it offered. The culprit: Acme suffered from an extremely toxic workplace. At exit interviews, each departing employee blamed other employees as the reason for leaving. Employees at Acme were burned out, felt underappreciated and disliked each other. At any given time, about 20% of the employees were on sick or stress leave. There were always complaints that various employees of each department had it out for the employees of other departments.With investigation after investigation, Human Resources (HR) could never figure out who the responsible offenders were for creating such toxicity. Each time they thought they identified and eliminated the problem employee, nothing changed and at times it even got worse. Despite the company’s repeated efforts in bringing third-party professionals in to build comradery among its various departments, each department remained a stand-alone with little to no teamwork with others. Acme was losing millions of dollars in opportunity costs by slowly losing its market share. In fact, it had gotten so bad that without Brandon as the intermediary, no one was willing to deal with anyone from another department. Acme’s one-person HR department had grown to three persons in five years despite the number of employees in each department remaining the same. Even HR was having trouble keeping its talent because dealing with one drama after another required long hours and was exhausting. Brandon became the glue that kept HR connected to the employees. No one knew how to fix the problem other than getting Brandon involved. The management revered his talents and labeled him, “the employee whisperer.” Brandon loved his role as a mediator and did not seem to mind the extra work, long hours or the stress of dealing with complaining employees. In fact, he seemed to thrive in stress, chaos and turmoil. Mitra Shahri In the Workplace Toxic Employees At any given time, about 20% of the employees were on sick or stress leave.
7 Trial Lawyer • Summer 2022 A sweet reward Brandon loved his job and enjoyed being needed so much he had never taken time off for vacation since he had joined the company. To reward him, for his 10th year anniversary, Acme gave Bandon a substantial pay raise and a twoweek vacation package to Hawaii. The company braced itself for a tough two weeks in Brandon’s absence but was hopeful he would come back refreshed and energized to continue his efforts in bridging the communication gaps between the various departments. Almost immediately after Brandon departed for Hawaii, HR was inundated with petty complaints from employees about each other. Each department refused to work with or communicate with other departments without HR’s involvement. In one short week, the company came to a standstill and no one in management knew how to solve the problem other than to pray for Brandon’s quick and safe return. A week before Brandon was scheduled to return, Jennie from the service department attended her cousin’s wedding. At the wedding, she was shocked to be seated at a table next to Kevin, her archenemy from the shipping department. Kevin was the groom’s cousin and had no idea that Jennie was related to the bride. Jennie and Kevin hated each other and often butted heads at work when they interacted. By the end of the night, Jennie confronted Kevin about his spreading rumors about her at work. Kevin confronted Jennie in return about disparaging him and his department. After some colorful and heated back-andforth, neither one was ready to admit to any wrongdoing and continued to blame the other. The following Monday, Kevin and Jennie continued their argument at work, but this time Jennie was armed with emails Kevin had written to Brandon which he had forwarded to her. Once Kevin looked at the emails, he was shocked by the content and denied writing them. To prove it, he showed Jennie the actual emails he had sent to Brandon. That is when they came to the shocking realization that Brandon had been altering each of their emails and making them appear derogatory and unkind. For example, Jennie had sent Brandon an email to share with Kevin: “When will they ship this out?” Kevin had responded, “We can’t ship more products to this customer unless accounting confirms receipt of funds for their last shipment. The program will not allow us to input the new shipment without a manual bypass, which is against company policy, and I won’t do that because it would be STUPID.” However, the email Brandon forwarded to Jennie from Kevin simply read, “I won’t do that, she is STUPID.” As they continued to compare more emails and rumors, they came to an undeniable conclusion. Brandon was playing each side against the other. Jennie and Kevin felt a deep sense of betrayal because each considered Brandon a trusted friend with whom they had shared personal and confidential information. Soon, each department began to compare notes with other departments, and it became painfully clear that Brandon for many years had single-handedly and covertly created a toxic work environment for everyone. Communication failure It was equally shocking to management to find out it was their golden boy, Brandon, who had been covertly spreading gossip and false rumors about everyone and, in the process, making others contributors to office gossip by repeating what they had heard from him. These systematic and calculated negative communications among various departments had adversely affected everyone’s relationship with each other, resulting in years of malicious tit-for-tat behaviors. By ingratiating himself to everyone, Brandon had gained the trust See Toxic Employees 8
8 Trial Lawyer • Summer 2022 that had allowed him to isolate each department from the others so he could become their only mouthpiece. Once he controlled all communication, he then selectively manipulated the information and at times even fabricated information to turn every department against the other. Once Brandon returned from his vacation, he met with HR and was asked Toxic Employees Continued from p 7 to resign immediately or be terminated. Brandon, realizing the jig was up, shrunk into himself, and opted to quietly resign. Almost immediately after Brandon’s departure, relationships at Acme began to improve. In a few short months, all departments began collaborating with each other and functioned as a team. Acme saw an immediate increase in its sales, even without ever filling Brandon’s position. Chaos at work If this story seems far-fetched, think again! Although the names have been changed to protect the company, the facts have not. Several months ago, I was hired to conduct an internal investigation for a company after the sales director was forced to resign. What I found was shocking to be sure, but also more common than one would expect. The real question should be why would someone like Brandon intentionally create chaos at work? Mental health professionals will likely label Brandon as a workplace psychopath. The word psychopath may conjure an image of a diabolical and deranged serial killer that we see in scary movies or hear about from prison or mental institutions. Although these people suffer from severe psychopathy that affects about 1% of the population, research suggests that close to 30% of American workers have some level of psychopathic traits. Employees on the psychopathy spectrum are impaired but exactly where a person lies on the spectrum depends upon just how devoid of empathy they are and what other problematic traits they also possess. Most are extremely smart, deceitful, manipulative, smooth-talking and charming. They see themselves as superior and will prey on those they regard as inferior, even if they hold higher positions. Understanding a psychopath It is important to understand that psychopathy is a personality disorder, not a mental illness. According to research, a psychopath’s brain is wired to seek rewards at almost any cost. In response to a reward, their brains can release up to four times as much dopamine as nonpsychopaths. Although these types of employees likely do not want to murder us in our sleep, they can drive us to depths of despair and dysfunction, and on exceedingly rare occasions even to suicide or homicide. The Bureau of Labor Statistics states that more people are
9 Trial Lawyer • Summer 2022 killed in the workplace than ever before because of their inability to cope with the stress of a toxic work environment. In extreme situations, people suffering from severe workplace toxicity turn their anger and frustration inward by hurting themselves but sometimes they can also turn on their coworkers before taking their own lives. Employees like Brandon need to retain special status and power by controlling people. They maintain multiple personas throughout the organization, presenting each colleague with a different version of themselves. They gain their peers’ trust and use the confidential information they gather from them to quietly undermine them. They spread or encourage the spread of rumors about their colleagues to create resentment among them and later feign friendship with their affected peers, elevating their status with them. When people dislike each other at work, they refuse to work as a team and even can go so far as sabotaging each other’s work, which creates tremendous distrust, stress and anxiety at work. Success or suffering As attorneys, we come across clients who are victims of toxic workplaces, but we never stop to consider if we ourselves are victims of such toxicity. In the last 30 years, I have come face to face with at least two Brandons in my own practice, one early in my career and one in recent years. On both occasions, I wholeheartedly trusted and relied heavily on these individuals. I gave them credit for my firm’s success and a substantial financial reward for allegedly being the glue that kept my business going. Each time one of them left on their own accord, I braced myself for a difficult transition but instead, my practice thrived, and the emotional roller coaster stopped. Although I never connected the dots at the time, I now realize that I have twice been a victim of workplace psychopaths. It is impossible to calculate the damage or the opportunity costs associated with these individuals, but, nevertheless, I am grateful for their departure. Perhaps you have been lucky and never had to work with a psychopath, but maybe you have, and just like me, had no idea. Psychopaths are smooth talkers who initially charm their way into your heart while doing severe damage to your practice and, if allowed, can even jeopardize your reputation or your license. Managing or working alongside a psychopath could also take a serious toll on your or your staff’s mental and emotional well-being. Being proactive about your approach in detecting them can help reduce some of the damage. The following are some signs to watch for in detecting this personality trait. • Psychopaths are experts at presenting themselves well. They are charming and great conversationalists who can easily engage in chit-chat and witty comebacks. They always share relevant, convincing stories to make themselves look good and more relatable. • They see themselves as the center of the universe and will go to great lengths to make you dependent on them by creating chaos that only they can control. They are control freaks! • They have an overabundance of confidence and often subtly or overtly boast about how great they are to others. At the same time, they will undermine and spread rumors about others to make them look bad while appearing to be supportive of them. • They are pathological liars and exceptionally good at it. They will convincingly lie and will easily cover up one lie with another. They will lie to you, about you and for you to gain your trust. They should never be put in charge of your trust account or your reputation. • They are single-minded. They only think of themselves and what would benefit them — like parasites. They may seem loyal and dedicated when it suits their needs but will not hesitate to turn their back on you without a moment’s notice. • They are masters of manipulation, deflection and deception. They’re very apt to accept credit for something when it goes right, but when something goes wrong, they look for a scapegoat to take the blame. • They don’t feel emotions like normal people but can adjust their responses accordingly when it suits their needs. They are often bored and restless when everything at work is running smoothly. They are risk-takers and thrive in chaos because drama excites them, especially if they can be the hero in the end. Beware and be aware Workplace psychopaths can do enormous damage to businesses, especially when they are in trusted roles. Their actions often cause a ripple effect throughout an organization and will have detrimental effects such as bullying, gas l ight ing, re l ent l es s gos s iping, conflicts, stress, low morale, high staff turnover, absenteeism and reduction in productivity. Toxic employees affect everyone around. When they spread negativity with a smile, other employees are affected, leading to emotional and physical illnesses, and overall loss of revenue. I encourage you to keep an eye out for this archetype. These carriers of toxicity can be anywhere — in your own firm or at the workplace of one of your clients. Because of their slippery nature, the Brandons can be difficult to spot, but once you find them, so much is explained. Mitra Shahri is an employment law attorney and founder of Laughter At Law™ CLE series. Her office is at 1500 SW First Ave., Ste. 800, Portland, OR 97201. She can be reached at 503-936-6127 or mitra@unlawfultermination.com.
10 Trial Lawyer • Summer 2022 By Jovanna Patrick OTLA Guardian W hen I tell attorneys I practice workers’ compensation law, I get some version of, “I know nothing about that, but I heard it is really complicated and you cannot make any money.” This fear around workers’ compensation claims even leads some personal injury attorneys to shy away from taking a case that has a workers’ compensation aspect. But helping injured workers is a worthy and fulfilling endeavor if we can demystify these claims. I represented a worker, Andre, who was a passenger in his employer’s truck. They were driving between construction jobs when another driver pulled out from a side street and T-boned them at high speed. Andre suf f ered a s er ious injury to his low back, with a recommendation for disc surgery. The workers’ compensation insurer accepted his claim for a lumbar strain, and paid some medical treatment and wage loss. But it refused to accept the disc injury, blaming it on preexisting arthritis, even though Andre was young and never before experienced back pain. Unable to overcome the arthritis exclusion under the workers’ compensation system, we settled that claim on a denied basis. We then turned to the adverse driver for the portion of unpaid wage loss due to workers’ compensation limits, the aggravated disc condition that required surgery and, of course, his non-economic damages. Those included the pain he endured in his long daily commute to stoically continue working and the disruption in his family life from being unable to play with or carry his small children. The adverse driver paid the minimum policy limits, which had to be shared with the workers’ compensation lien. Luckily, his employer’s vehicle had UIM coverage and we were able to obtain a fuller recovery, so he could get the treatment he needed and return to being the playful, happy young father he had been before the crash. When someone like Andre is at work and is injured by the fault of a third party, they have both a workers’ compensation and a third-party claim. Chapter ORS 656 and administrative rules sections 436 (Workers’ Compensation Division) and 438 (Workers’ Compensation Jovanna Patrick Board) provide the framework for claims. The third-party recovery portion is ORS 656.576 through 656.596. Generally speaking, a workers’ compensation claim is the exclusive remedy for a worker injured on the job. ORS 656.018. A worker cannot sue their employer, its officers, directors, employees nor insurer. There are limited exceptions. If the employer did not purchase workers’ compensation insurance (non-complying); when the injury is caused by the wilful and unprovoked aggression by a person otherwise exempt (ORS 656.018(3); 656.156(2)); if the employer failed to comply with the “red tag” statute (ORS 654.082); or, in very limited circumstances, if the worker failed to prove the work activity was the major contributing cause of the worker’s condition (Smothers v. GreshamTransfer, 332 Or 83 (2001), ORS 656.019). Exclusive remedy Almost every injured worker tells me how their injury could have been prevented. Many fault their employer or coworkers for causing the injury or failing to prevent the circumstances that led to the injury, such as providing safety equipment or training. And almost every time, I have to give them the bad news that their only remedy is through the workers’ compensation claim, which does not provide for a full recovery. But a worker can sue almost any third party not in the same employment. ORS WhenWorkers’CompandCarsCollide Crash Course
11 Trial Lawyer • Summer 2022 656.154. The most common third-party claims are MVCs, but they also apply to products liability (if the product is made by a third-party), premises liability (if the premises is owned by a third-party), Employer Liability Law (ORS 654.305– 654.336) and medical malpractice. However, the worker does not have a third-party claim against any party granted immunity by ORS 656.018 or by the Oregon Tort Claims Act. When a worker believes they have been injured on the job, they should immediately notify their employer, although the law gives them up to 90 days (one year from treatment/disability/ knowledge for occupational diseases, which are conditions that gradually arise). Waiting to report can cause the employer and insurer to doubt that the injury occurred. Once filed, the insurer has 60 days (“deferred status”) to investigate and accept or deny. During the deferred period, wage loss is paid, but not medical services, with exceptions. The worker must cooperate with the insurer; return paperwork, participate in a recorded statement and attend an IME. So many people no longer open their mail, but injured workers must be diligent in this, or they can miss important documents and be denied for noncooperation. Compensable injury In deciding whether to accept or deny a claim, the question is whether there is a “compensable injury,” defined as an accidental injury arising out of and in the course of employment requiring medical services or resulting in disability or death. ORS 656.005(7)(a). Most disputes are whether medical services were required and related. Sometimes insurers challenge the worker’s credibility, especially if there was a delay or the mechanism of injury was minimal. It is surprising how many insurers have claimed that my clients who were in MVCs did not even need to go to the doctor! There may also be a dispute about whether the worker was actually at work when injured. The inquiry of “arise out of ” and “in the course of ” are two elements of a single inquiry into whether an injury is work-related. For example, a worker’s commute is generally excluded under the “going and coming rule.” But there are exceptions, such as the “personal comfort doctrine” (the worker has not actually left work when they engage in an activity that is not the appointed work task, but has a sufficient connection to employment); the “parking lot exception” (injury while traveling to or from work, on or near the employer’s premises, where the employer exercises some control) and the “greater hazard” exception (employment exposes worker to hazards in a greater degree than the common public). For example, my client, Ella, worked in a suite in a high-rise building and routinely walked around the building for fresh air on her breaks. One such day, as she was reentering the lobby, she slipped on water and fell backwards. The insurer denied her claim under the “going and coming rule,” disavowing control over the area where she fell. But we prevailed under the “personal comfort doctrine” as it was a paid break encouraged by the employer, and she did not do any personal tasks. If she had crossed the street to check her ATM balance and fallen there, the claim likely would not have been compensable. Regardless of what happened with this work injury, Ella could still sue the building under premises liability. See Crash Course p 12 It is surprising how many insurers have claimed that my clients who were inMVCs did not even need to go to the doctor!
12 Trial Lawyer • Summer 2022 Crash Course Continued from p 11 Claim acceptance If the insurer accepts the claim, then it must pay defined benefits for the accepted condition. This can be a trap, as the insurer will accept the least serious condition, like the strain they did with Andre, as an attempt to limit benefits. Then, if the worker gets an MRI and it reveals there is another condition (such as a rotator cuff tear or a disc herniation), the worker must ask the insurer, in writing, to accept the additional condition. There is no time limit to make such a request after the claim is accepted. It is extremely common, especially with older workers, for insurers to deny the more serious condition, blaming it on age and arthritis, even when there is no history of prior problems. This is because workers’ compensation does not cover “preexisting conditions,” which means the major cause of the condition is arthritis or something the worker treated for before the injury. ORS 656.005(7) (b); 656.005(24)(a). The worker generally must prove the work injury was the cause of the actual condition, not just its symptoms. If the claim is denied, either completely or partially for a condition, the worker must request a hearing and must prove the work injury was the cause of the claim or condition. The standard is material cause or major cause depending on when the conditions arose and whether preexisting conditions are raised (which they almost always are). Insurers are also allowed to accept claims as combined conditions (accepted conditions + preexisting conditions) and then issue a current condition denial when they believe that the accepted conditions are no longer the major contributing cause of the need for medical treatment and disability. Eligibility and benefits So what does a worker get if their claim is accepted? (We love our acronyms!) • TD (temporary disability, partial or total) — while the worker is recovering, paid at 66.66% of the worker’s AWW (average weekly wage), if contemporaneously authorized by the AP (attending physician). • Medical treatment for the accepted conditions that is with the AP or referred from the AP. • Once the worker is Med Stat (medically stationary for accepted conditions), the claim is closed with a NOC (Notice of Closure). The worker is evaluated for potential eligibility for PD (permanent disability compensation, partial or total) and work impairment (compensation if the worker cannot return to their job at injury due to the accepted conditions). Here again, insurers use arthritis to get out of paying the full measure of impairment or to backdate the Med Stat date.
13 Trial Lawyer • Summer 2022 • If released to return to regular work, the employer must return the worker to their job at injury, with exceptions. If the worker is not released to return to regular work, the employer can offer them a permanent light duty position, or the worker is evaluated for Voc (Vocational retraining), which is education or job placement help if there isn’t a job they could do with their permanent limitations and still earn 80% of their wage at injury. • Death benefits — funeral expenses and continuing TD benefits for specified beneficiaries. • After closure, claims can be reopened for aggravation (actual worsening of the accepted condition), palliative care (non-curative treatment for a waxing and waning of symptoms and to keep the worker working), or new conditions. • Workers can also settle their claims with a Claim Disposition Agreement (CDA, keep medical rights), Disputed Claim Settlement Agreement (DCS, keep no rights for a claim or a condition that was never accepted), Current Condition Denial DCS (CCD, keep no rights on a claim that was once at least partially accepted), or Global (includes an employment release). Limitations Personal injury attorneys will note several things missing from this list that are common in negligence claims. The biggest is noneconomic damages. There is no compensation for pain and suffering within the workers’ compensation system. This is another question I receive from almost every worker. Workers also do not receive the full measure of their wage loss; it is always 66.66% of the AWW, and does not account for the loss of fringe benefits, such as pension, retirement and medical insurance. There is no compensation for loss of consortium or any other losses to the family outside of a death claim. There is no value for permanent impairments that do not impair the worker’s ability to work, for example, if they cannot play basketball anymore with their friends. Workers’ compensation attorney fees are limited by statute and must be approved, hence the commonly-held belief that lawyers cannot get paid to do this work. But that is not true, especially after 2015 when, with the help of OTLA’s political and lobbying efforts, the statute was overhauled to better pay workers’ attorneys for the work they were doing anyway for free or for a much-reduced fee. Fees are assessed (separate from the worker benefit) or out of compensation (10% to 25% of the worker’s increased compensation). Some but not all litigation costs are reimbursable by the insurer if the worker prevails against a denial. A good comparison between regular contingency work and a workers’ compensation claimwould be a $100,000 settlement: the PI attorney is likely to receive $33,333-$40,000, while the workers’ compensation attorney would be limited to $17,500 (it was $12,625 before the 2015 law change). Third party claims When it comes to third-party claims, the “paying agency,” the insurer paying benefits on an accepted claim, will have a lien against the third-party claim. The paying agency can require the worker to elect whether to pursue the claim themselves or allow the insurer to pursue it. In most cases, the worker should pursue it themselves. If the insurer pursues it, it will focus on repaying itself, giving the worker only the remaining balance after it is repaid, if there is any. If the worker pursues the claim, ORS 656.593(1) provides a strict statutory framework for repaying the lien from a judgment. Note that notice of the lawsuit must be given to the paying agency and f i l ed wi th the cour t c l erk. ORS 656.593(1). Recoverable costs and attorney fees of the third-party attorney are paid first, with fees limited to one third, absent extraordinary circumstances. Recoverable costs are limited to those necessary to the prosecution, such as travel expenses, depositions, filing fees, mailing and copying charges. IMEs, evaluation reports, probate expenses and engineers’ reports have been found to be non-recoverable. After these deductions, the worker is entitled to at least one third of the balance of the recovery. The paying agency is then reimbursed for compensation benefits paid, plus the present value of reasonably expected future expenditures. If two thirds of the balance is sufficient to pay the lien completely, the worker receives the remainder. If not, the worker gets only that one third. Settlement In settlement, the statutory framework is generally used, but the actual standard is “just and proper” reimbursement to the paying agency, as long as the worker gets at least one third of the balance. ORS 656.593(3). This means there may be some room to negotiate for a larger share to the worker in settlement. It also means if the settlement is not sufficient to pay the lien completely, the worker must seek the paying agency’s permission to settle or the settlement is void. TheWorkers’ Compensation Board decides disputes on repayment of the lien, most commonly what goes into the lien or what can be claimed as reasonable future expenditures. There can be partial distributions if there is a continuing dispute on the work injury claim, or the third-party case can be abated while litigation continues on the workers’ compensation claim. Also, the paying agency offsets the workers’ compensation benefits if the worker settles their third-party claim before filing the work injury claim. ORS 656.596. Note that the distribution for death claims differs somewhat and is controlled by ORS 30.030 and ORS 656.593. There is also a way to limit the lien for See Crash Course p 14
14 Trial Lawyer • Summer 2022 future expenditures for third-party claims over onemilliondollars.ORS656.593(6). The framework for distributing the proceeds means the third-party attorney will often receive more money than the worker. This can lead to unhappy clients. It is important to explain to the worker how much of their compensation was pre-paid through the workers’ compensation claim. Of note, the one third fee to the attorney is a ceiling not a floor. An attorney should be able to claim the entire one third attorney fee in the distribution with the paying agency, but then reduce that fee for the client without sharing that reduction with the paying agency. The lien includes compensation paid for TD, medical services, PD, work impairment, voc, death, out of compensation fees paid to the workers’ compensation attorney, reasonable future expenditures and most money paid to anMCO (Managed Care Organization). The lien attaches to both economic and noneconomic damages of the third-party claim, regardless of what is pleaded in the case. For example, PD does not have a direct correlation to the third-party claim, although it may be claimed as future lost earning capacity. Also, the third-party claim does not have to be the same injury as the work injury. The paying agency can claim a lien on a prior or subsequent third-party claim if they pay compensation. My client, Anna, has an accepted lumbar strain and was then rear-ended, reinjuring her low back. The paying agency has a lien to the extent compensation was paid for the reinjury. Paying agencies often include charges that are not subject to liens, hoping to slip them by an unsuspecting PI attorney. Examples include assessed attorney fees incurred in obtaining benefits, any monies paid on the DCS (see recent case Sedgwick CMS, Inc. v. Dover, 318 Or App 38 (2022)), litigation expenses the paying agency paid, penalties and bill review charges. I almost always have to tell paying agencies to remove the DCS payments. Also, the lien does not attach to UM/UIM first-party claims. ORS 742.504(4)(c). Representation Injured workers should have attorneys representing them for both claims to maximize their recovery and protect their interests. If there is separate counsel, the attorneys should work together for the best result. The workers’ compensation attorney has early access to relevant and material claim documents (OAR 438007-0015), and hearings could contain useful testimony. The attorneys should stay in contact with the paying agency and prepare them for a reasonable result from the third-party claim, to avoid surprise disputes at the end. The paying agency may pay some litigation costs necessary for the third-party litigation. The attorneys should also discuss strategy between the two claims. In particular, Crash Course Continued from p 13 whether to request new conditions for the work injury claim, which could result in IMEs that are harmful to both cases. Watch out for concussions and mental health conditions, which are almost always denied or minimized. When settling the work injury claim, the workers’ compensation attorney can try to get the lien waived (rare) or can shift money onto the DCS. Another important consideration is knowing when to utilize PIP. For example, for medical treatment: when there is no referral from the correct type of AP (MD or DO are fine, chiropractor 60 days without a referral, nurse practitioner 180 days); when treatment is excluded (OAR 436-009-0010); or when the claim or a condition is denied. For wage loss, PIP can be used: to make up the 66.66% paid for TD versus the 70% paid for PIP; when the authorization comes from the wrong type of doctor (ER doctor 14 days, chiropractor 30 days, NP 180 days); when the authorization is written too late (14-days retroactive limitation, which will be 45 days in 2024 thanks to OTLA efforts) or when the wage loss is reduced at claim closure. Complete recovery While it can be scary as a PI attorney to take on a case with a workers’ compensation component, by understanding a little bit about how a workers’ compensation claim functions and by working closely with workers’ compensation counsel, you can successfully represent these workers and help them obtain a more complete recovery than what is possible with only a work injury claim. Jovanna Patrick is a partner at Hollander Lebenbaum Gannicott & Patrick, where she represents injured workers and car crash victims. She is an OTLA Guardian, cochair of OWCA and currently in OTLA Leadership Academy. Her office is located at 1500 SW 1st Ave., Ste. 700, Portland OR 97201. She cacn be reached at 503222-2408 or jovanna@hollanderlaw.com.
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