A Little History
The Employer Liability Law, also called the “ELL” first came upon the scene through an initiative in 1910. This statute was passed before Oregon’s predecessor to the modern Workers’ Compensation Statute.
The law applies to employers who conduct projects or work that involved “risk or danger.” The law survives today, despite significant changes to the workers’ compensation system.
To make out a claim under this statute, the injured worker must show 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.
There are two kinds of work activity considered “dangerous:”
Any work that is proven to involve risk or danger, and,
Work involving certain structures, machinery, electricity, and dangerous appliances and substances.
Sometimes, violation of an OSHA rule or regulation that results in injury will prove a violation of the Employer Liability Law. This is because the rules are aimed at making the work place safe to protect the worker. Depending on the rule and work involved, violation of the rule will prove the work involved a risk of danger, and that the employer's violation of the rule makes them responsible under the ELL.
Who is Responsible?
The Oregon Workers’ Compensation statute gives employers immunity from lawsuits for an on the job injury, even if the employer is negligent. There is an exception if the employer violates the law that requires it to provide workers’ compensation coverage for its workers. This employer is called a “non-complying employer,” and a worker can use the Employer Liability Law to recover for the loss and harm from an injury on the job.
The other “party” responsible under the statute is known as the “indirect employer.” This is a company or contractor that did not actually higher the worker but was in charge of risky and dangerous work. An indirect employer is responsible for a worker’s injury when the indirect employer is working with the injured worker’s employer on a common project or enterprise. When this happens, the injured worker must show that the two employers, direct and indirect, were working on a common project, the project involved risk or danger, the injured worker was adopted or “intermingled” with the indirect employer, and the indirect employer was in charge of whatever condition at work caused the injury.
Another way to prove responsibility as if the indirect employer controlled the way the work was done, and that control over how things were done caused the workers’ injury.
Who Has The Claim?
The worker injured can recover compensation for their harms and losses. If the injury causes a fatality, the surviving spouse and children may make a claim on behalf of the estate.
Who Does Not Have A Claim?
Generally, an independent contractor cannot make a claim under the statute. Sometimes, figuring out whether a worker on a job site is an independent contractor or an employee is complicated. The main factor courts look at is how much control the indirect employer had over the worker.
One analogy often used to distinguish an independent contractor from an employee is the “house painter” hypothetical. If somebody hires a person to paint their house, and the house painter provides her own tools, decides how to approach the job, and sets the schedule, that painter is probably an independent contractor. However, if a homeowner hires a painter, provides the paint, paintbrushes, ladders and drop cloths, sets the schedule, and directs the house painter, that person is more like an employee. Oregon statute sets out criteria to determine whether someone is an independent contractor, or an employee.
In the workers’ compensation arena, a worker on a construction site with their own Construction Contractor Board license bylaws considered an independent contractor, and even if their work is directed, they may not be able to pursue an Employer Liability Law claim
There Must Be A Connection
Lawyers and judges call this “causation.” There must be a connection between the indirect employer’s failure to take all practical measures to make the workplace safe and the resulting injury. Failing to make the workplace safe need not be the sole cause of the worker’s injury, but it must be a significant factor in the cause of injury. Like many other issues, this may come down to a jury’s opinion after looking at the facts.
Contributory “Negligence” Defense
The statute was amended so an employer can “point the finger” back at the injured worker and argue that the injured worker was at least partially at fault in causing the injury. This is known as “contributory negligence.”
When an employer makes this argument, the employer must prove that the worker was careless, and that the careless behavior contributed to the injury. A jury may decide that the worker was not at fault or may assign a certain percentage of fault to the injured worker. If a jury finds that the injured worker was at least partially at fault, the court will reduce any compensation the injured worker recovers by the injured worker’s percentage of fault. If the jury concludes the injured worker is over 50% at fault in causing their injury, the injured worker can recover no compensation for their losses.
Why Bring an ELL Claim?
There are many advantages in pursuing this claim.
First, it is easier to prove that the employer is responsible because this statute sets a higher standard for the employer to make the workplace safe. Instead of being reasonably careful, the employer must be really careful, and the cost to make things safe is not a consideration. This makes it easier to prove legal responsibility.
In other kinds of “negligence” claims, and injured person cannot bring up the fact that the other party (defendant) fixed the defective or dangerous condition at a trial. In this kind of case, the injured worker can show a jury how an employer fixed a dangerous condition to show that it was the cause of injury.
Another benefit for an injured worker is the compensation available. If someone is injured on the job, and files a workers’ compensation claim, the workers is only eligible for a limited schedule of benefits. The workers’ compensation carrier decides to accept or deny the claim, and even if the claim is accepted, the carrier may deny certain benefits. Although medical expenses and lost income are available benefits in the workers' compensation claim, there is no benefit for pain, suffering, loss of mobility, or other types of "non-economic” damage.
Whether you have a claim under this statute depends on your work, and your relationship to the responsible party. If you have questions, contact us. We can review your case, and let you know your options.