OTLA Trial Lawyer Spring 2021

46 Trial Lawyer • Spring 2021 Comp Corner 69 Van Natta 1440 (2017), inter alia . The purpose of the statutory lien is to reimburse the costs of the claim from the damages obtained from the persons whose acts caused the injuries. See Allen v. American Hardwoods , 102 Or App 562, 567, rev den, 310 Or 547 (1990); Schlecht v. SAIF , 60 Or App 449, 456 (1982). The paying agency may only recover “expenditures for compensation, first aid or other medical, surgical or hospital service, and for the present value of rea- sonably expected future expenditures the paying agency makes for compensation and other costs of the worker’s claim under this chapter.” ORS 656.593(1). The estimate of future medical treatment may not be only a possibility, but must be reasonably certain and not based upon statistical generalities. Antonio Centurion , 51 Van Natta 2017, 2018 (1999). Curtis W. Phillips , 57 Van Natta 1852, 1856 (2005). What’s not included Litigation reports and claim evalua- tion reports are not to be included in a paying agency’s lien against a third party recovery. Pamela J. McKinney , 50 Van Natta 2385, 2386 (2010). Administra- tive costs are not allowed as part of the paying agency’s lien. Robert L. Proctor , 69 Van Natta 723, 726 (2017). Arbiter report costs are recoverable, but not IMEs, defense counsel costs, or litigation costs. Id. Out-of-compensation attorney fees may be included in the lien. David A. Steiner , 43 Van Natta 817 (1991). The proceeds subject to lien are those from a settlement involving only the injury that resulted in the workers’ com- pensation claim. A settlement for an employment matter and the emotional By Julene Quinn OTLA Guardian F air warning: this is not my spe- cialty. Nevertheless, I have done some research and given advice in the area and thought I would pass on the few tidbits I have learned. ORS 656.593 covers third party lien requirements. When a pay i ng agency has provided compensation, it may have the right to recover from a settlement of the injury. Costs and attorney fees for the injured worker are paid first. Then, the worker is allowed one-third of the balance. Next is reim- bursement to the paying agency for its expenditures, with the balance of the recovery going to the worker or ben- eficiaries. This formula is subject to a “just and proper” distribution and may be a l tered by the Board. ORS 656.593(3). Each on its merits The Court of Appeals in Urness v. Liberty Northwest Ins. Corp. , 130 Or App 454 (1994), held the Board may not use an “ ad hoc ” method of deter- mining what is just and proper under the formula set in ORS 656.593(1). Instead, the Board must determine each case on its own merits. Be careful with this, because the Board interprets the primary purpose of the “just and proper” distribution to make the in- surer whole first. See Robert L. Anlauf , Third Party Liability Liens Issues & Topics for the Workers’ Compensation Attorney Julene Quinn distress and trauma from the employ- ment issue, for example, is not subject to lien. Joel B. Ramirez , 69 Van Natta 1382 (2017), aff ’d Ramirez v. SAIF , 294 Or App 511 (2018) (affirmed without opinion). Where the settle- ment attributes the proceeds to non- workers’ compensation damages, there is no lien. Robertson v. Davcol , Inc., 99 Or App 542 (1989). Rules for insurers Insurers are not entitled to recover from UIM benefits. ORS 742.504(4) (c). As well, they may not recover from the proceeds of a spouse’s loss of con- sortium claim. See David J. Hanson , 68 Van Natta 67, 71 (2016). Insurers also may not recover from malpractice actions related to the workers’ compen- sation claim. Toole v. EBI Companies , 108 Or App 57 (1991). However, the Board has held that out-of-state settle- ments involving the same injury for which workers’ compensation benefits were paid is subject to lien. Larry R. Sullins , 69 Van Natta 1233 n 1 (2017). Sadly, there are no attorney fees for fighting a lien with the insurer under ORS 656.382(2). Lorraine I. Mckin- non , 62 Van Natta 459 (2010). A claim disposition agreement waives third party liens, unless ex- pressly reserved. Rash v. McKinstry Co. , 331 Or 665 (2001). Julene Quinn is an appellate attorney who focuses on workers’ compensation. She contributes to OTLA Guardians of Civil Justice at the Sustaining Member level. Her firm is Julene M. Quinn LLC, Box 820087, Portland, OR 97282. She can be reached at 971-259-8141 or julene.m.quinn@gmail.com.