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
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