Oregon Personal Injury Lawyer Blog

When defending Oregon lawsuits for whiplash following car accidents, insurance companies often hire "experts" to pooh-pooh the claims. Their reports all look the same: "no objective evidence" to support claims. That's like saying you can't see pain, which is true, but misses the point.

But do the insurance companies ever pay to look for objective evidence of the symptoms of chronic whiplash? Studies show that car accident whiplash patients suffer the following at a much higher rate than the general population: headache, migraines, tiredness, neck pain, upper back pain, sleep problems, thinking problems, low back pain, and many other issues. Insurance companies do not pay for tests to validate claims. Insurance companies pay for "doctors" to dismiss the claims and bad-mouth people who hurt, calling them liars, cheats, and / or crazy.

Scientists have found physical changes more prevalent among those suffering chronic whiplash-associated disorder than with the general population. I will discuss two of them.

The European Journal Of Pain reported a study of regional cerebral blood flow. Researchers C. Linnman and others used some super high-tech equipment to compare people, and, sure enough, they found changes in cerebral blood flow that matched up with their neck disabilities. So to those insurance company "doctors" I ask, "How do you fake cerebral blood flow?"

Other researchers have used Magnetic Resonance Imaging (MRI) to study obscure details in certain flexor muscles in the neck. The journal Spine reports the study by Elliott and other researchers of "fatty infiltrate" in muscles and the cross-sectional area (CSA) of key muscles. Sure enough, the study showed more fatty infiltrate and larger muscle CSA in car accident patients than in the general population.

Elliott's most recent study of flexor muscles is consistent with his earlier study of women suffering from whiplash, which showed higher fatty infiltration their neck extensor muscles.

These objective measures can only be used for comparison purposes. It would not make sense to use them in an individual case. What the studies show is that, despite all of the slurs that whiplash victims must endure from insurance company doctors, the bodies of car accident victims suffer physical changes that you cannot see with the naked eye.

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

The Oregon Court of Appeals clarified when a patient may sue a clinic or hospital alleging medical malpractice of a physician. In Eads v. Borman and Willamette Spine Center, Mr. Eads became partially paralyzed after a series of back surgeries by Dr. Timothy Borman. Mr. Eads sued Dr. Borman and also sued Salem's Willamette Spine Center, LLC, because he believed Dr. Borman was acting on behalf of the clinic. Oregon's Court of Appeals held that Mr. Eads's "subjective belief" was not enough without facts of certain conduct or control by Willamette Spine Center. It ruled that Willamette Spine Center was not responsible for the conduct of Dr. Borman. The court did not say whether Dr. Borman's medical practice was excellent or poor or had anything to do with Mr. Eads's injury.

Generally, when someone is acting on behalf of another and subject to his control, then you can sue both (1) the "agent" or employee and (2) the "principal." The Court held that there was no evidence that Willamette Spine Center controlled the work of Dr. Borman. It merely owned the building, leased the space, provided signage and a logo. In fact, Dr. Borman did not even pay rent to Willamette Spine Center. He paid one of the tenants in an office-sharing arrangement.

Although one of the owners of Willamette Spine Center referred Mr. Eads to Dr. Borman, the court found that the referral of a patient between doctors had nothing to do with the corporate landlord. It could be different if Dr. Borman were REQUIRED to accept any referrals from the clinic or from, say, a government agency. But Dr. Borman was free to accept or reject the patient.

The Oregon court also rejected the claim that Willamette Spine Center, in effect, tricked Mr. Eads into thinking Dr. Borman was acting on behalf of the clinic. "Apparent agency" exists only when the apparent principal acts to "hold out" the person as its agent and the injured party relies on that act when hiring the agent. Adding Dr. Borman's name to the building directory was not enough, held the court. Although the Willamette Spine Center name and logo appeared on Dr. Borman's business card, the court noted that was an act of Dr. Borman, not an act of Willamette Spine Center. Dr. Borman's use of the building's name and logo did not make Willamette Spine Center responsible for Dr. Borman's work.

According to this case, a clinic or hospital or other entity is responsible for physician malpractice when: (1) it employs the doctor, (2) it requires the doctor to accept patients, (3) it has the right to control the work of the doctor, or (4) it acts to make patients think that the doctor is the employee or agent of the clinic.

Jeff Merrick, Oregon Trial Attorney
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 Oregon, if the employer pays for workers' compensation insurance, then the worker may not sue the employer when he or she is hurt on the job. This "exclusive remedy" provision does not apply if either (a) the employer does not have workers' compensation coverage or (b) someone else -- or something else -- was at fault.

For example, we sued a printing press manufacturer for making a dangerous machine when a worker suffered a severe arm injury. The manufacturer was not the employer, so it was not immune from suit under Oregon law. A more typical example is someone hurt in a car or truck accident while on the job. The worker can sue the other driver that caused the wreck.

But there are special issues to be aware of involving who may sue and who gets the money.

If the workers' compensation insurer pays benefits, then it has a right to get paid back out of any lawsuit proceeds. In fact, the insurance company can force you to decide whether to file a lawsuit. If you do not sue, then the insurance company can sue in your name.

There's a big difference to Oregon workers depending on whether the worker sues or the insurance company files the lawsuit.

If the insurance company sues in your name, then it controls the litigation. It decides when to settle. If the insurance company sues and settles the case, then it gets paid before the worker. The formula is that the insurer gets paid in full before the worker gets even one penny.

If the injured worker sues, then the formula for distributing the money is very different. First, the costs of the lawsuit are paid, including the attorney fees. Next, the worker receives 1/3 of the balance. Only then does the insurance company get paid back. So, if the worker sues, he or she jumps ahead of the insurance company. If there is still money left after paying back the insurer, the balance goes to the worker. The key Oregon law is ORS 656.576 to 656.596.

Another consideration is this. If the insurance company sues, will it really care whether the worker receives any money? Will it settle too cheaply, making sure it gets repaid and not worry about winning monetary compensation for your disability?

So the lesson? If you are seriously injured at work because of someone other than a coworker or something like a dangerous machine, then it is in your interest to sue and not let the insurance company file a lawsuit in your name.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

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

Whiplash injuries refer to the process of the neck being flicked like a whip during a rear-end car or truck accident. Oregonians with severe whiplash injuries know that whiplash injuries are not laughing matters, despite comedies that dress actors in soft neck collars and suggest that everything is a fake. While it is true that an NFL receiver might be able to deal with a whiplash injury, most of us do not have their muscle mass, young spine, and loose ligaments. Today, I write about another aspect of whiplash injuries: what happens when the injured person has a previous neck fusion surgery?

The spine is an amazing creation. We have the bones (vertebrae) with a variety of holes to let the nerves get from the brain all the way to our fingers and toes. We have the disks in between the bones to give us flexibility.

The amount of injury anyone suffers from a rear-end collision depends on basically three factors: what physical condition are you in before the collision, what is the force that your body is subjected to, and what did your body actually go through during the collision (biomechanics). The force that actually impacts the body depends on many things including the speed of the trailing car or truck, its mass, and how much force is absorbed in the bumper and crush zones of the vehicles. Force, typically, is discussed in terms of "G" or multiples of gravity. That's the same measurement we use when we talk about astronauts blasting off into outer space.

Some victims of car or truck accidents are injured so severely that they have to repair their necks surgically. Occasionally, they have cervical fusions. When the surgeon fuses two vertebrae into one big one, the patient loses that flexibility between the vertebrae. Sometimes, the surgeon must fuse three disks together, reducing flexibility even further.

Then what happens with the next whiplash injury?

Well, when flexibility is reduced, then the force is even greater on the disk spaces that still move and perform their flexibility function - the ones above and below the fused bones and spaces. A medical study confirmed this. Researchers calculated the peak physical strain on the anterior longitudinal ligament, which goes along the cervical spine. They calculated what is likely to happen based on an 8G force collision.

The results: The average increase in strain in the part of the spine that still could move increased 15.5% when two vertebrae were fused. The strain was increased a whopping 40.8% with a two-level (three vertebrae) fusion. (A.B. Dang, Spine, 2008 Mar 15;33(6):607-11).

Despite what comedy writers tell you, whiplash injuries are no joke.

Jeff Merrick, Oregon Trial Attorney
503-665-4234