Oregon Injury Attorney Blog

Fatal Collision in Scappose Under Investigation

Tue, 18 Jun 2013 17:29:17 -0800

The Oregonian and other Portland news outlets report a fatal collision involving an SUV and a Mazda sedan has closed Highway 30 near Scappose. It's obvious why the highway is closed, but what really happens on the ground when this kind of horrible tragedy occurs?

When working on cases involving fatalities, I have sifted through many police reports, witness statements, photographs, and even cell phone video footage. There is a lot of investigation going on right now on Highway 30.

Unlike most collisions, a fatal collision will certainly result in the Oregon State Police conducting an accident reconstruction. A Trooper with special training and knowledge will go to the collision scene, and gather physical evidence, observing measurements, gouge marks in the road, and property damage. Another component of the investigation involves witness statements and collision scene photographs. Taking all this information, the accident reconstructionist will work backwards from the point of collision, and prepare a report that attempts to reconstruct the events leading up to the collision. The obvious intent is to find a cause of the collision.

On another front, investigators will look at the condition of the driver crossing the center lane, to determine what human factors may have contributed to failing to keep the SUV and the proper lane of travel. The obvious suspicion is driving while intoxicated, but in some cases, a driver may have a medical event, or an unexpected mechanical issue that caused the car to drift into the opposite lane of travel.

The local and state authorities provide this information to the District Attorney, which in this case is the District Attorney for Columbia County. The District Attorney then decides whether any criminal charges are filed against the allegedly responsible driver.

Alongside the criminal case, if any is filed, is a potential civil claim on behalf of the estate of the deceased driver. Although this is a separate proceeding, the civil claim and the criminal claim are certainly linked, and the outcome of one can affect the other.

It is much too early to determine whether such a claim even exists.

Can I Add New Medical Conditoins to My Oregon Workers Compensation Claim?

Tue, 18 Jun 2013 12:58:45 -0800

I have probably commented on this issue before, but it is worth re-visiting.

A client came in to see me in the past week with an older claim that had been closed a few years ago. He had a flare up of his symptoms, which happens from time to time, and wanted the claim re-opened for medical care.

There a few ways you can access medical care after a claim has been closed, but the general rule is that the medical care has to be related to the accepted condition.

What is the "accepted condition?"

This is the medical condition or diagnosis that the insurance company accepts when it issues a letter called a notice of acceptance.

Why is this such a big deal?

The Notice of Acceptance is a big deal because all of the benefits that you are entitled to are limited to the accepted condition. The medical treatment required for a knee strain is a heck of a lot different than a torn meniscus or a torn ACL (anterior cruciate ligament). Sometimes, however, an injured worker is not really aware of what has been accepted, and what has not.

Why?

Because an insurance company can accept just the knee strain, but pay for the injury to repair that torn ligament, and legally, is not binding itself or taking any responsibility for that more serious torn ligament.

What Can You Do?

You can, at any time, even years after your claim has been closed, make a request to the insurance company, in writing, to modify the notice of acceptance to include all of the medical problems that resulted from the injury in the first place. Depending on the date of the injury, the insurance company has a limited time to respond, and if that request is denied, you can seek a hearing with the Workers Compensation Board. Of course, it is a good idea to have a doctor's opinion supporting the connection between the work injury and the medical condition, and it can be a challenge, but it is possible.

What About New Conditions?

That is also an option. You may have one injury, a knee ligament tear, and over time, it may cause another problem, knee arthritis. If there is a strong enough connection between the original medical condition, and the new medical condition, you may be able to have that condition added to your notice of acceptance.

We have helped clients add new conditions to his notice of acceptance so they can get medical benefits to cover a knee replacement surgery.

The Role of Life Care Plans in the Serious Injury Case

Mon, 10 Jun 2013 17:34:15 -0800

Most of the time we are looking into the past to help someone with an injury claim. We find out what it cost to fix what could be fixed, i.e. medical expenses, or make up for what was lost; think lost wages. But sometimes the medical providers cannot fix everything right away, and sometimes certain things cannot be fixed, but there are "work arounds." These are the tools that will help the client move forward, and realize their potential.

Of course these work arounds cost money, and probably a lot more in the future than what they cost today. For example, the wheelchair bound client is going to need some remodeling, not only at the house, but also with the car, to get from here to there, and back. The traumatically brain injured client may need some ongoing training or coaching to help them be the best they can be. There could be certain specific medical care in the horizon. This is where the life care planner can help.

A life care planner makes a life care plan, and it is exactly what it sounds like; a plan. A health care professional, often a nurse or physician, will review medical records, interview my client, and research local health-care resources in order to determine future needs, and estimate their cost. These folks, through their training, have a special lens that allows them to see what we cannot.

We have worked closely with life care planners to make sure both we, our client, the responsible party, and even the court, understand our client's down the road needs, long after the verdict is rendered, or the settlement is approved.

If you or a loved one is facing the hard decisions of future health care, here are some helpful links:

American Association of Nurse Lifecare Planners

Brain Injury Alliance Of Oregon

Insurance Carrier Claims Helmet Law Change Increases Costs

Mon, 03 Jun 2013 17:04:42 -0800

Northwest Cable News recently reported a study out of Michigan claiming that motorcycle insurance claim costs have risen over 20% after relaxation of mandatory helmet laws. Motorcycle riding groups dispute the finding, blaming increased claim costs on the increase of motorcycle riders without the benefit of a motorcycle safety course. Certainly, this is more common, as more more folks take to the road without the benefit of a safety course.

Oregon mandates helmets along with 19 other states. In addition, Oregon now requires on the riders to take the Team Oregon motorcycle safety course as a condition to obtaining a motorcycle endorsement. I wrote about the Team Oregon program, and took the course a few years back. I I recommended the course, and feel that mandating the safety course is a step in the right direction.

In representing motorcycle riders, I have seen first-hand the special issues a rider confronts. First, motorcycle insurance carriers are not required to cover medical expenses. As a result, an injured motorcyclist can face a serious injury without access to medical care, which can cause considerable emotional and financial stress. If at all possible, make sure you have insurance that will cover motorcycle related injuries.

The mandatory helmet law pits the notion of personal responsibility against the government interference. Certainly, the cost taxpayers bear in treating serious head injuries should also be in the mix.

Federal Judge Sanctions Tri Met

Tue, 21 May 2013 06:19:40 -0800

The Oregonian recently reported on developments in a wrongful death lawsuit pending against Tri-Met in the US District Court for Oregon. The Court found that the public transit agency was evading requests for information made by attorneys representing accident victims in a claim against Tri Met arising from a bus collision that killed two pedestrians. The judge found that the attorneys for Tri Met were relying upon "semantics" to conclude that documents discussing the fatal accident did not exist.

This story illustrates the importance of pre-trial discovery. The term "discovery" refers to the exchange of information between the plaintiff and the defendant prior to trial in a civil case. Discovery can take many forms. The most common is a request for production of documents. Parties can also conduct depositions, and if a person's health is at issue, request that that individual up your for medical exam. In federal court, parties can also submit written questions called "interrogatories."

In personal injury cases, the plaintiff will often request records regarding the driver, the facts surrounding the accident, and information about witnesses. Defendants will often seek the same material, in addition to medical information about the injured plaintiff.

For the most part, this exchange of information is routine. However, once in a while, a party in the lawsuit will evade request for documents. If there is a disagreement about which documents must be provided, on of the parties to the lawsuit can file a motion to compel production of the documents. The judge uses his or her discretion to determine how to rule on the motion.

In this particular case, the judge went one step further in sanctioning the defendant, Tri Met. The judge found that the attorneys purposely "sat on" documents that should have been provided to the attorneys representing the estates of the accident victims killed in this crash. Judges do not sanction parties for holding back information of very often, especially a public agency.

Most of the time, the attorneys representing the parties in a lawsuit will agree on which documents should be provided and exchanged. Even when there is a disagreement about which documents to provide, it is usually based upon a good faith position, and the judge is simply there to make a ruling.

Two Drivers Cause One Wreck: Then What?

Fri, 17 May 2013 09:01:23 -0800

I have recently handled cases where two separate drivers or parties share the responsibility for causing a collision and resulting injury. What happens if you're in a collision where two separate drivers share the fault?

In some cases, we may choose to deal directly with one responsible driver's insurance carrier, or their attorney. That attorney and insurer will then look to the other responsible party, negotiating an agreement on allocation of fault. For example, the two responsible parties may agree that each driver was equally at fault, and agree to pay 50% of the settlement or verdict. In other cases, we may decide to deal directly with both adverse parties and their insurance companies to resolve the issues of fault.

When a case is filed in court, our options are pretty much the same. We may choose to file a case against only one party, and if that defendant thinks someone else is to blame, then they can file a lawsuit against a "third party defendant." Who ever files the claim has to prove it, and in certain cases, it makes sense to go this route. In other cases, we may file our claim directly against two defendants, and carry the burden to prove each was at fault. In the end however, it may be a jury's job to sort out who was at fault, and if so, how much.

A jury is asked to allocate the percentage of fault for each party, which sometimes includes the plaintiff, and that can have a major impact on the case, depending upon the amount of fault, and the particular defendant.

As with most issues, early investigation often helps to clarify shared fault.

SUVs Do Not Fare Well in Crash Testing

Thu, 16 May 2013 08:42:02 -0800

It is natural to assume that the larger a car, the safer you are. However, CNN recently reported on several popular compact SUVs that did poorly on crash tests conducted by the Insurance Institute for Highway Safety.

The test, known as the "small overlap" frontal crash test involves the vehicle hitting a barrier at 40 miles an hour with just a quarter of the front bumper. This is so the impact can occur outside of the crash safety structures that are built on most newer cars. Conducting these tests also makes since given that small overlap collisions account for a quarter of all road collision fatalities. Another factor adding to the mix the vehicle's motion after impact. Because the off-center crash spins the vehicle, where the car goes, the occupants follow. Someone in the car is moving side to side, and that means they are not going to catch an air bag.

I have represented folks in side impact and front impact collisions. When the body, especially the head, is exposed to this force, the head is not thrown back and forth like in a rear end collision, but in a rotational manner. Many doctors will tell you that this makes for a more significant injury.

Almost at the same time I came upon the CNN article, the Oregonian reported a crash in downtown Hillsboro involving a compact SUV. This intersection crash resulted in a rollover of the SUV, with both parties claiming they had a green light. It sounds like someone was moving pretty fast, especially for a downtown intersection. Like many intersection collisions, liability is often contested, and often shared.

The Insurance Institute for Highway Safety has a great website, offering tips on crash ratings for older cars, booster seat ratings, and interesting information on young driver licensing systems throughout the United States.

Federal Judge Nixes Movie Download Lawsuit Tactic

Wed, 08 May 2013 08:29:53 -0800

I am often asked about lawsuit abuse, which is understandable, given my profession. Years ago, it was the tobacco litigation. People would often ask, and for good reason, "How can somebody sue a tobacco company when they knew the health risks of smoking, and voluntarily chose to use cigarettes?" I would share my experience in attending presentations by the attorneys who pursued these cases, and many times, the reaction was, "I didn't know about that." Some people still disagree with the theory of the case, but often they have a different opinion after knowing the facts.

One of my frustrations is that people don't really know the true nature of lawsuit abuse. The last time I checked, civil court filings have decreased steadily in the last 20 years. Most of the litigation in federal court involves huge corporations suing each other over copyright infringement and other commercial disputes. In fact, the Oregon Judicial Branch and others have enacted rules in order to encourage civil jury trials, and there are programs designed to allow younger lawyers to try jury cases because of the lack of opportunity that currently exists.

The Oregonian recently reported on a case that illustrates corporate law suit abuse. A Salem lawyer sued over 650 people, accusing them of illegally downloading Steven Seagal movie. Many of the defendants never heard of the movie, and have no recollection of downloading it. Some of them didn't even know about the program that allowed file sharing.

Aside from the factual issues, the plaintiff's lawyer attempted to join all of the defendants in one suit. In throwing out the suit, the court noted that the plaintiff avoided paying $215,250 and filing fees, instead paying only $1400. The court also chastised the plaintiff for seeking a $7500 settlement in exchange for dismissal of the lawsuit.

It's the "bad apple" analogy. There are many lawsuits that raise valid issues, and although it should be a last resort, those kinds of suits are appropriately before the court. Jurors hear these cases, and essentially act as a branch of the Government in deciding these disputes. In my mind, this is the most direct form of democracy we practice. We do not elect people to make these decisions, or push an agenda. We make the decision ourselves. Hopefully, courts will continue to stamp out these ridiculous suits so that the legitimate disputes can be resolved in a way that other nations of the world and envy. Those are lofty words, but true.

A Tough Week for Oregon Workers

Tue, 30 Apr 2013 09:15:47 -0800

It has been a tough week for workers in Oregon. Last week, the Oregonian reported a fatal workplace injury involving a cleaning contractor who fell into an industrial meet processing blender. The State of Oregon OSHA is investigating the cause of the accident.

On Monday, a highway flagger was struck by a vehicle on Highway 101 between Warrenton and Seaside. Details regarding the worker's condition are still developing.

These two accidents involve issues of Workers' Compensation and "third-party claims." The family who lost their loved one in the meat processing plant accident may claim death benefits under the Workers' Compensation Act. The surviving family members may also have a claim for wrongful death against the meat processing plant because the worker was not an employee of the meat processing plant, but worked for an independent contractor hired to clean the facility. This makes the processing plant a "third party," hence the "third party claim."

This claim would be brought under the Oregon wrongful death statute. The statute provides that a personal representative for the estate may pursue an action against the responsible party. The personal representative would have to show that the meet processing plant was somehow negligent in causing the accident. The pending OSHA investigation will have a lot to do with determining who or what caused this accident. If the personal representative is successful in establishing liability, the personal representative can make a claim on behalf of the estate for "pecuniary loss." This type of loss involves the earnings and support that the deceased worker would have provided to his family. Typically, we use economists to calculate and estimate this type of loss. The second loss the personal representative can claim is compensation for the loss of society and companionship with family members. This is the value of the loss of a family member and their contribution to the family unit.

The injured highway flagger is also covered under the Worker's Compensation statute if he or she was in the course and scope of their employment when the injury occurred. The Worker's Compensation claim includes payment of medical expenses, a disability benefit, permanent partial disability benefits, and possible vocational rehabilitation.

The injured flagger may also have a third party claim against the motorist who caused the injury. Again, the injured flagger will have to show that the motorist was responsible for causing the collision. If the injured flagger proves responsibility, or "negligence," then he or she will have a claim for past and future medical expenses, past and future lost wages, and a claim for compensation for the loss of his or her health.

One parting thought. It is hard to imagine how somebody could leave some of the comments appearing in the Oregonian article. I guess its price we pay for the right to free speech.

Federal Court Scolds Social Security Judge

Fri, 26 Apr 2013 15:11:59 -0800

A recent decision out of the Eastern District of Wisconsin harshly criticized the Social Security disability determination process. Using terms like "wholly dysfunctional," the Court went on to note the number of cases filed in federal court, and the ever rising rate of remand. According to the decision, the rate of cases being sent back to the Social Security Administration hearings office is that 83%. The average rate nationally is 45%. A basic primer on the remand process will help you appreciate the significance of this statistic.

If a person claiming Social Security disability receives an Unfavorable Decision from an Administrative Law Judge, the claimant can appeal their case to the Appeals Council. If the appeals Council refuses to review the case, the next appeal is a federal court claim.

A federal court may decide to uphold the hearings decision, grant benefits, or send the case back to the hearings office for further proceedings. Sending the case back to correct errors is called a "remand." Essentially, what is going on in Wisconsin is quite scary. This is because the District Court's finding that over 8 out of 10 times, Social Security is getting it wrong. Keep in mind, this is after the disability claim had been denied twice.

In Oregon I notice that the US Attorney will often agree to send the case back to the hearings level for further development. We work closely with attorneys who limit their practice to federal court appeals of Social Security disability claims. More often than not, the case is sent back for another hearing.

Oregon Department of Transportation Now A Defendant in Tour Bus Crash Case

Sun, 14 Apr 2013 13:44:11 -0800

The recently reported that The State of Oregon Department of Transportation (ODOT) has been named in a suit arising from the deadly tour bus accident on I 84 that killed nine, and injured 38. This suit also includes claims against the tour bus company.

The suit claims that ODOT failed to use strong enough barriers to keep the bus on the road, failed to adequately plow and sand the roadway, requiring an alternate route, and did property warn motorists about the unsafe conditions. There are special rules involved in making a claim against the government. Traditionally, the citizens of a government were prohibited from filing any claims in court against the government. This is known a sovereign immunity. Sometimes you hear the phrase, "you cannot sue the King." However, Oregon statute allows members of the public to bring claims against State and local governments under certain conditions.

In addition to monetary limits on recovery, and notice requirements, the State does enjoy some immunity from liability. In this case, the State will likely argue that it enjoys "discretionary immunity." This defense is available when the State's failure to act was based on a discretionary decision. The reason behind the rule is that the State government is dealing with a limited budget, and has to make choices as to where its funds will go. The plaintiffs will argue that the State past rules and standards regarding maintenance of its own roads, and in failing to follow those rules and standards, was negligent.

The article also mentions that the tour guide company is also a named defendant. If this case gets to a jury, the members of the jury will have to allocate responsibility amongst the several defendants.

What is a Third Party Case?

Mon, 08 Apr 2013 18:57:02 -0800

A Third Party case occurs when you are hurt on the job, but someone other than your employer or a co-worker causes an injury. For example, let’s say you are running an errand for your boss. You are driving back to the job, and some other driver runs into you, and injures you. Then, you have a workers’ compensation clam because you were on the job, and you were hurt. But you also have a claim against that person who ran into you. These are called Third Party Claims.

When you have a third party claim, both you and the workers’ compensation carrier have suffered a loss. You have lost your health, and the workers’ compensation insurer is out money. Because of this, there are special rules that give the workers’ compensation carrier some say in what happens on your claim against the other party.

First, you have to decide whether you are going to pursue the claim, or if you want to leave it up to the Workers’ compensation carrier to pursue the claim for you. This is referred to as Third Party Election. I cannot think of a reason why you would turn the claim over to the Workers’ Compensation carrier, unless you are going to have a hard time proving the other party was at fault, or that you were actually injured.

If you chose to pursue the claim on your own, then you have to keep the Workers’ Compensation carrier informed, and you have to make sure that they are in agreement with any settlement proposals. In some cases, the Workers’ Compensation carrier will agree to taking less than it paid in benefits.

There are lots of rules dealing with this area of the Third Party claim, and if you have a significant injury, and lots of medical bills, it is a good idea to confer with an attorney before resolving the case.

The Phantom Driver and the Uininsured Motorist Claim

Fri, 22 Mar 2013 18:51:30 -0800

I have a case right now involving a pedestrian versus car collision. The only problem is that the car left the collision scene. There is also the case where someone is not hit, but run off the road, and injured. So what can you do? You can file an uninsured motorist claim, but:

There are special rules.

These are known as the “phantom vehicle” case, and the “hit and run” case. A phantom vehicle case is where another, unknown motorist cuts you off, pulls out in front of you, or somehow causes an accident, and leaves the scene. A "hit and run" is just that; someone hits you, and leaves, and you cannot determine the careless driver’s identity. In addition to showing that you were injured, here is what you need to do in order to preserve your UM claim in this situation:

1. Report the collision to the appropriate officer or department within 72 hours;

2. File, with your insurer, within thirty days of the collision, a statement under oath that you have a cause of action (lawsuit or claim) against the person who you are unable to identify, and what facts you are relying upon in claiming that you have a claim against the other unknown driver.
If you were hit by a hit and run driver, you also have to make your car available to your insurance company for inspection. In the case of a phantom vehicle, there has to be some evidence, other than your sworn statement, or a statement from another party with a UM claim, in order to preserve the phantom vehicle claim. This is known as “corroborating evidence.” The best example is a witness to the accident that is not involved in any claim.

This is a pretty tight time line for an injured party. I have often found myself scrambling to preserve a claim when the injured party contacts me at the last minute. It's a good idea to confirm the time limits to preserve these claims with the claims adjuster as soon as possible.

Ear Buds Raising Concern About Hearing Loss

Fri, 15 Mar 2013 09:29:31 -0800

Our office handles occupational hearing loss cases, and given the standards Oregon requires for benefits, these cases present special challenges. Essentially, a worker must show that the exposure to noise at work, more than any other causes combined, is the majority of the reason for the hearing loss. This means that injured workers are forced to contend with other causes of hearing loss, including age, and exposure to noise outside of work. In this part of the world, that means hunting, making fire wood, and yes, even a 60 year old client of mine attending a rock concert!

Another competing cause emerging with the younger set is the increased use of ear buds. I have a pair, and you may too. These are great, and convenient, but apparently, people are blasting the volume so high, that doctors are reporting a trend of younger and younger patients coming in with hearing loss. What used to be a problem that surfaced in patients in their 40's and 50's is now a problem with people in their 20's and 30's.

Generally, 85 decibels is the threshold noise level for potential noise induced hearing loss. Just to give you an idea, a lawnmower is 107 decibels. The ABC reporter went out onto the street in New York City, and tested folks wearing ear buds. He found decibel levels of 95, 105, and even a whopping 109.

I have been using ear buds more and more lately, but now, I am turning it down, and I will be encouraging my family to do the same. Go to www.ear-buds.org for more information.

New Compassionate Allowances for Social Security

Fri, 08 Mar 2013 19:23:00 -0800

Social Security maintains a list of serious health problems that, by their definition, are so severe, that Social Security does not need to fully develop the applicant's work history in order to make a decision on the case. These conditions involve cancers, neurological, immune system, and other serious health problems affecting adults and kids. Recently, the SSA announced the addition of 35 conditions to the Compassionate Allowance program. Social Security has good information, including the actual list, on its site.

Obviously, the intent of this program is to get the application processed more quickly for the most serious of conditions, but is is important to remember that a claimant can assert a condition that is on the list during an appeal. It's probably not too rare that this can happen, given the extraordinary wait for a hearing date.