A two-vehicle accident involving a Portland police officer earlier this month merits special attention because of what it can teach us about civil options beyond workman’s comp available to people injured on the job.
The Oregonian reports that “a Portland police officer and another driver were seriously hurt” in a crash in I-205 earlier in March. “The officer was working a ‘static detail’ at a construction site on the northbound interstate south of Southeast Division Street when a driver hit the officer’s vehicle from behind. The officer was pinned in the vehicle and was extracted,” the newspaper writes. Injuries to both the officer and the driver of the SUV that allegedly struck his car are described as serious but not life-threatening.
From a legal perspective the officer now has some important choices to make. At this point most readers will rightly assume that the officer, having been injured on the job, will be covered under the police department’s workers’ compensation insurance program. That is true, but it is not the whole story. Under Oregon law the officer also has the right to hire his own attorney and can seek to recover non-economic damages related to the accident. “Non-economic damages” is a broad legal category that includes things such as pain and suffering and changes to the victim’s life. They do not include things like medical bills and lost wages and, as the legal resource website Justia explains “are less concrete than economic damages and are subjectively evaluated” whether by a judge or jury. (see link below) This element of subjectivity makes it especially important for anyone who has been injured in an accident to consult an experienced attorney who can walk victims and their families through the options and the evaluation process.
It is also important to understand that when pursuing a private case the victim still has some legal responsibilities to the insurance company. In the event of a court victory or a settlement the workers’ comp insurer must be reimbursed for whatever it paid out and costs it incurred in relation to the accident. Court costs and attorney’s fees will also come out of the settlement or award. But Oregon law offers plaintiffs some important protections. Notably, ORS 656.592, Section 1b, requires that “the worker or the beneficiaries of the worker must receive at least 33-1/3 percent of the balance of the recovery.” This is an important limitation to the legal doctrine called “subrogation.” In some other states insurance companies use this concept to claim significantly larger shares of an injured worker’s settlement.
The catch is that the officer and his family will need to make a choice. He can allow the insurance company to take the lead in pursuing a claim against the at-fault party (in this case the driver who struck his stationary police car). Hiring a private attorney and building his own case against the at-fault party, however, would offer the officer the opportunity to recover damages for a wider range of injuries. The insurer would have a claim on some of those funds (I have written about subrogation in earlier blogs in the context of health insurance).
As a Portland attorney working on car crash cases throughout Oregon I hope this officer and others in similar situations will carefully consider their legal options before simply allowing their workers’ comp carriers to take over the management of their cases. The state’s Workers’ Compensation Division offers a free calculator on its website (see link below) which can be a very useful starting place for injured people and their loved ones trying to sort through their options in the wake of an accident. Do your own research, and talk to an attorney – don’t just take the insurance company’s word for things.
Oregon Workers’ Compensation Division: Insurers and service companies