Some Thoughts on Oregon Workers' Compensation's Exclusive Remedy Law

Joe Di Bartolomeo
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Joe Di Bartolomeo is a top rated personal injury lawyer helping Oregon and Washington families

The Oregon Legislature recently amended the Oregon Workers’ Compensation law to extend the scope of the “exclusive remedy” provision of the statute.  This all came about after a 2012 Oregon Court of Appeals found that owners of a Limited Liability Corporation (also called "LLC") could be personally liable for damages stemming from a workplace injury. In an effort to close this “loophole,” the Legislature changed the statute to make sure that LLC owners cannot generally be sued for on the job injuries, much like sole proprietors or corporate shareholders.  This makes sense from a logical standpoint, but the exclusive remedy provision comes at a cost.

About 100 years ago, several states saw the problems associated with on the job injuries. Before workers’ compensation, an injured worker had no recourse for injuries suffered on the job, unless he or she could prove that the employer was somehow negligent in causing an on-the-job injury. As a result, employers were subject to lawsuits from injured workers, and if there was no negligence on the employer’s part, the injured worker was left with no access to medical care, and in many cases, disabled from work.

In an effort to find some common ground, many states, including Oregon, passed workers compensation statutes. This statute is a reflection of a social contract. In exchange for protection from lawsuits, employers were required to provide insurance benefits to its workers who suffered an on-the-job injury. The injured worker, in exchange for this benefit, generally gave up his right to file any lawsuits against the employer. In essence, a “no-fault” system was created, with employees enjoying access to medical care, and employers enjoining immunity from lawsuits.

That was the theory, anyway. A lot of things have changed over the past several decades. Years ago, an injured worker with a disagreement on a workers’ compensation claim could seek a jury trial. That is no longer available. The benefits available to an injured worker are limited. For example, an injured worker may not have a choice over who provides treatment, and there is no compensation for the hassle and limitations the injury causes the worker for her off work activities, and enjoyment of life. If a pre-existing condition contributes to the injured worker’s need for care, he or she may not have any access to workers’ compensation benefits at all, even if the injury is 49.9% of the cause of the need for treatment and disability. Finally, there have been some egregious cases where employers were downright reckless, causing injury and death to worker, but were not held accountable due to broad immunity.

There are some exceptions to this general rule of immunity, which we have documented in other articles. However, many of these cases require quick and thorough investigation, and may involve higher hurdles then a normal Oregon personal injury case.

If you have been injured on the job, and think you may have a claim against your employer, or someone who is working with your employer, call us at 503-325-8600. We can investigate your case, and let you know where you stand.

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