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.
RkJQdWJsaXNoZXIy Nzc3ODM=