Answer
You may have a claim against the person or business that caused her injury in some cases.
Introduction
Oregon Workers’ Compensation is a statute that requires employers to provide coverage for workers who are injured on the job. If an injured worker proves that the need for medical care or disability from work arose from an on-the-job injury, certain benefits are available.
These benefits are limited to certain coverages.
Available Benefits
While the claim is open, the injured worker is eligible for medical services and temporary disability (wage replacement) benefits. The need for medical care and any disability must be related to the medical condition the insurer accepted as part of the claim.
When an injured worker is found to be “medically stationary,” this means they no longer require medical care to restore their ability to work. When an injured worker is found medically stationary, the insurance company gathers information to close the claim and issue a Notice of Closure. At this point, the insurance company decides whether the injured worker is entitled to a cash benefit called “permanent partial disability.” This benefit is designed to compensate an injured worker for any permanent loss of earning capacity. However, it is not based on the actual future lost earning capacity for the injured worker, but instead application of findings and medical reports to the rules that govern calculation of the benefit. If an injured worker is unable to return to the exact job they were working, and other kind of permanent partial disability benefit is available, and is called “work disability.”
At about the same time, the insurance company will evaluate the injured worker’s eligibility for vocational rehabilitation services. An injured worker is eligible for vocational benefits when they are no longer able to return to the work at injury and meet other requirements. If qualified, and injured worker may be eligible for job training with the goal of getting them back to a job paying nearly the same as the job at injury.
After the claim is closed, if the injured worker experiences an “actual worsening” of the accepted on-the-job injury, the treating doctor can ask the insurer to reopen the claim. This is known as an “aggravation” claim. Only the treating physician can make the claim, and the option of filing an aggravation claim is good for five years after the claim is closed.
Even after the claim is closed beyond five years, the injured worker may still qualify for medical benefits and temporary disability if the accepted on-the-job injury condition actually worsens, or if the injured worker suffers a new medical problem that is a direct consequence of the accepted medical problem. For example, people who suffer serious knee injuries that go to surgery sometimes develop posttraumatic osteoarthritis in the same injured knee joint, requiring further surgery or a total knee replacement. In addition to proving the relationship between the worsening condition or the new medical condition, the injured worker must require significant article care, like surgery. The injured worker also must be a member of the workforce at the time they seek these benefits.
Why These Benefits are Limited
In exchange for having to provide these benefits to their employees, Oregon employers are generally immune from any other claims from their employees. This is true even if the employer is negligent in causing the employee’s injury. For example, an employer may ask an employee to perform a dangerous task, knowing that the employee was inadequately trained. Even if the employee can prove that the employer knew or should have known that they were putting the employee in a dangerous situation, there is no lawsuit or claim against the employer for personal injury damages. Of course, there are exceptions, but this is the general rule.
On the other side of the same coin, if an employee is negligent in causing their own injury, they are still covered in most cases for workers’ compensation benefits. Again, there are exceptions, including injuries that are due a major part to an employee’s intoxication or being under the influence of drugs.
The fact that the injured worker cannot sue their employer (generally) and that even negligent employees are covered makes the workers’ system in Oregon a “no-fault” system. This means that a claim cannot be denied because somebody was at fault in causing the injury.
Compensation Not Available to Injured Workers
The injured worker cannot recover any of their actual losses as if they were pursuing a personal injury negligence claim in Oregon. If so, the injured worker would be able to recover actual past and future medical expenses, and past and future lost income. Oregon law defines these losses as “economic” losses because they are objective and can be demonstrated with the actual medical bill or wage stub.
Although the Oregon Workers’ Compensation system provides similar benefits, there are often more requirements involved in qualifying for these benefits. In some cases, an injured worker could easily prove that the on-the-job injury is a significant factor in causing the disability or need for treatment but will not qualify for medical or wage replacement benefits.
The other compensation an injured worker does not qualify for is what is known as “non-economic” losses. This is often referred to as “pain and suffering” compensation. However, compensation for pain and suffering is only one part of the claim for non-economic losses. A claim for non-economic losses is a claim for compensation for the loss of the injured worker’s health. This includes pain, suffering, limited activity, and any permanent impairment resulting from the injury. Under the Oregon Workers’ Compensation system, a claim for non-economic damages is not permitted.
Although the permanent partial disability benefit may look like compensation for non-economic losses, it is considered compensation for future lost earning capacity. However, the permanent partial disability “award” rarely reflects the actual lost earning capacity. In a personal injury claim, this would be a form of “economic” damage, and in many cases, would be significantly greater claim.
The result is that an injured worker often ends up being undercompensated for the actual loss suffered. If we were to compare the compensation available to someone suffering the same injury in an auto collision, they may recover full compensation for their losses. This often is not the case in a workers’ compensation claim.
However, there are exceptions.
The Third Party Claim
The exception is the third-party claim. A third-party claim exists when somebody other than the employer or a co-worker negligently injures a worker. The most common example is an injured worker running and earned for the employer. While stopped at a traffic signal, somebody rear ends the worker, causing injury. This injury occurred on the job and is covered under the workers’ compensation system. However, because somebody other than the employer and a coworker carelessly caused injury, the injured worker has a claim against the other driver. That other driver is the “third party.”
Statutes and rules govern how an injured worker may pursue the third-party claim. This is because many of the damages the injured worker can claim are the same as those the workers’ compensation carrier provided. For example, the injured worker can make a claim for their medical expenses and their actual lost wages. The workers’ compensation insurer is providing benefits for these losses. Because the workers’ compensation carrier has paid benefits for these losses, the workers’ compensation carrier is in the same boat as the injured worker. They too have suffered a loss, although it is strictly a business loss.
Because the injured worker is making a claim for losses that the workers’ compensation insurer already paid, the injured worker is free to make a claim against the careless driver and their insurance company. However, out of any money the injured worker recovers, and must reimburse the workers’ compensation carrier for the benefits it provided.
Example:
Let’s say that an injured worker is rear ended by another driver while at work. The injured worker makes a claim against the careless driver and their insurer. Meanwhile, the workers’ compensation carrier has paid $3,000.00 in wage replacement and medical benefits. If the injured worker settles their claim against the at fault driver’s insurance company for $5,000.00, it must reimburse the workers’ compensation carrier for the $3,000.00 that the workers’ compensation carrier provided in benefits.
The first step in pursuing a third-party claim is to complete the “notice of election” form. This is a form submitted to the workers’ compensation carrier notifying it that the injured worker intends to pursue the claim on their own. The other option is to let the workers’ compensation carrier pursue the claim, but that does not happen in most cases, especially if the injuries are serious.
The workers’ compensation carrier also has some limited “veto” power on settlement negotiations. The third-party statute requires the injured worker to seek approval to accept a settlement offer before resolving the claim. If there is a disagreement about whether an offer should be accepted, or how much of a personal injury settlement should be reimbursed to the workers’ compensation insurer, the Oregon Workers’ Compensation Board reviews the matter.
Sometimes, there may be issues about whether the third party was at fault, and that could affect the amount the negligent third party’s insurer is willing to pay to resolve the case. In those cases, the workers’ compensation carrier may negotiate a reduced amount of reimbursement.
The Employer Liability Law
The Employer Liability Law, also called the “ELL” is a statute that has been on the books for about a century. This law applies to employers who conduct projects or work that involves a risk of danger.
Under this statute, an injured worker can recover actual losses by showing that the responsible party was engaged in dangerous or risky work, that the injured worker was an employee for the responsible party, and that the injury resulted from the dangerous or risky work. These kinds of claims occur when several contractors are working together on a common project or enterprise. There are special requirements involved in making this kind of claim. However, these claims have legal advantages because employers overseeing this work must be much more careful given the risk of harm involved.
Questions?
If you have questions about third party claims or Employer Liability Law claims, contact us. If we are not able to take on the case, we can at least provide resources so you know where you stand.
