Oregon Personal Injury Lawyer Blog

Oregon's Court of Appeals ruled that cognitive impairment from hypoxia caused by sleep apnea was more like a "sickness" than an "injury." That distinction allowed the disability insurer to cut off benefits at age 65, instead of continuing them for life under the particular disability insurance policy.

In Boly v. The Paul Revere Life Insurance Co, Jeff Boly, an attorney, gradually lost his ability to work because of sleep apnea. Initially, he suffered daytime sleepiness and reduced productivity. He applied for benefits, and received partial disability payments. Over time, Mr. Boly noticed cognitive impairments and saw a specialist who confirmed the problems and the cause, which was chronic, nocturnal hypoxia from sleep apnea.

The disability insurance policy distinguished between disability from accidents and disability from "injury" and disability from "sickness." The contract did not define those terms, so it was up to the court to decide. To win against an insurance company, the insured need only show that the language is unclear, and the insured's interpretation is "plausible." Mr. Boly's lawyers argued that sleep apnea is not a sickness and that the brain damage could have been prevented if Mr. Boly's doctors had diagnosed the problem sooner. It was more like injury from malpractice than from a sickness, they argued.

The court agreed that the issue was not clear cut. The court, itself, could not define "injury." However, in this situation, the court seemed persuaded that the progressive nature of the problem tipped the scale to say Mr. Boly's situation was more like a sickness than an injury.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

In legal malpractice cases, one must prove not only that the lawyer screwed up, but also that the attorney's mistake would have made a difference. Today's Oregon Supreme Court opinion in Kelly v. Hochberg, illustrates that point and many others.

Sam Hochberg is a well-regarded attorney. He represented Mike Kelly, who was injured while riding his motorcycle during a "poker run." They sued the county for not properly maintaining vegetation near the road, which obscured visibility. The trouble was, it was not a county road. The Bureau of Land Management owned and maintained the road. By the time they figured that out, the statute of limitations had expired.

In his defense, the attorney argued that the lawsuit was worthless and should never have been filed in the first place. Oregon has a recreational immunity statute, which says that if someone allows you to use their property for recreational purposes, you cannot sue them if you get hurt. The Josephine County Court held that even if Mr. Hochberg had sued the BLM, the BLM would have won the lawsuit because it was immune from suit because Mr. Kelly used the BLM road for recreational use.

The opinion raised big issues. Did it mean that whether a person may sue for bad road maintenance depends on whether he is driving to work or driving to a movie? So this was a big case, complete with "friend of the court" briefs.

Oregon's Supreme Court calmed those fears. Although the court agreed that the recreational immunity applied to the BLM road, it said that public roads differ. While BLM may close its roads whenever it wants, people have a "right" to use public roads. In other words, if the road had been a county or state road, then the analysis would differ from the BLM road at issue in this case.

So, although Mr. Kelly lost his legal malpractice case, the clever defense did not undermine future personal injury cases alleging that bad road maintenance caused a personal injury.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Some restaurant owners in Oregon violate wage and other employment laws that protect workers. I had a case involving a restaurant that required waitresses to be at the restaurant, but "off the clock," until it got busy. That's illegal. If the employer demands your time, then it must pay you. Two press releases from the Oregon Bureau of Labor and Industries (BOLI) reminded me of the problems facing some restaurant workers.

BOLI determined that Stanich's, a Portland landmark known for its burgers, violated wage laws. BOLI also criticized Stanich's for not being forthcoming during the investigation. BOLI also reported that two employees filed suit alleging the restaurant wrongfully terminated them in retaliation for asserting their rights under wage laws.

In another case, BOLI alleged that Typhoon Restaurant mistreated its workers from Thailand. The restaurant paid Thai workers less, provided them less vacation, and denied raises. When workers complained, the employer threatened to fire them worse.

Most recently, a teenager came to me who worked at a coffee shop. The owner asked if she was pregnant, and then fired her after she said, "yes." Duh! An employer may not fire a worker because she is pregnant.

My take on all of this is that some restaurant owners are dumb. Others know precisely what they are doing, but hope that their workers - often young - will not know better, or be too scared to complain. This post shows that both BOLI and private lawyers are here to help Oregon restaurant workers oppose illegal practices.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Today, the Safe Kids Committee on which I serve held a community forum on understanding and preventing window falls among children. Hosted by Legacy Emanuel Children's Hospital and emceed by KOIN TV's Kasey Montoya, the conference gathered numerous stakeholders from Oregon and around the United States who want to reduce the epidemic number of children injured by falling out of windows.

Presentations included the following:

• Considering "human factors" in identifying solutions.
• The tragic stories from two moms, one who lost a child, and the other whose child survived with a severe brain injury.
• Data on window falls from Oregon, Chicago and around the United States.
• As an attorney, I spoke about my clients whose lives were changed by window falls. I also spoke about my efforts trying to pass an Oregon law to provide for window guards in rental properties. (See the Bill and legislative history.)
• Safety products were described. In addition to bars, window protection devices include steel screens, curtain-like mesh, and a variety of window stops.
• Existing efforts at education rules and codes, including Oregon's Building Code that requires window fall protection.

Continue reading "Oregon Window Fall Forum Was a Great Success!" »

Today, the Oregon Court of Appeals ruled that a worker injured in a car accident while on the job may obtain underinsured motorist insurance benefits without having to pay back the workers' compensation insurer.

In Longstreet v. Liberty Northwest Insurance, Dean Longstreet was injured as a passenger in a car while working. Workers' compensation paid medical bills and other benefits. The general rule is that when a worker sues a "third party" (someone other than the employer), then the worker must spend some of the money to pay back the workers' compensation insurer.

Previously, I explained why a worker may and should obtain workers' compensation AND sue third parties, if you want more information.

Here's the new twist with the Longstreet case. First, Mr. Longstreet obtained workers' compensation. Second, he recovered money from the at-fault driver, who had only $50,000 of insurance. Longstreet shared the recovery with the "comp" insurer, as he must. Next, he sought underinsured motorist ("UIM") coverage from the insurer of the car he was in, but he did not want to share that with that settlement with comp insurer.

The court agreed with Mr. Longstreet. A specific statute (ORS 742.504(4)(c)) says the injured worker keeps UIM benefits. This specific statute trumps the general statute that requires paying back the workers' compensation insurer.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.