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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