Workers’ Compensation: Oregon’s Exclusive Remedy Rule

By Tracy A. Johnson, Attorney at Law

The workers’ compensation system is the exclusive remedy for injured workers in Oregon. This means every employer who complies with ORS 656.017(1) and maintains workers’ compensation insurance cannot be sued by its employees for on the job injuries that occur within the course and scope of employment, whether or not compensable. See ORS 656.018(1)&(7). This exemption from suit extends to employer’s agents, employees, and partners, among others. The full list can be found at ORS 656.018(3). There are important exceptions that allow for legal action against employers, coworkers, or third parties. Understanding the scope of indemnity is critical for risk managers, insurers, and defense counsel.

Key Exceptions to Employer Immunity

Although the exclusive remedy rule is broad, there are exceptions. An employer or otherwise exempt person may lose immunity if:

• They engage in willful and unprovoked aggression that substantially causes the injury;
• They are not acting in a common enterprise with the worker;
• The employer fails to comply with a posted safety notice under ORS 654.082, and that failure contributes to the injury;
• A person’s negligence outside the role that grants them exemption is a substantial factor in the injury.

Another notable and very important exception can be found in ORS 656.019. A civil negligence action can be brought for a work-related injury that has been deemed not compensable because the worker failed to establish the work incident was the major contributing cause of the worker’s injury. Suit can only be filed after an order determining that the claim is not compensable has become final. This exception only relates to claims where initial compensability has been denied based on a major contributing cause standard, like occupational disease claims.

The exclusive remedy provision does not apply where compensability of an injury was denied because the incident was being outside the course and scope of employment. There are strategic considerations as to whether denying a claim creates exposure for a third party law suit.

As always, please do not hesitate to contact the attorneys at Reinisch Wilson P.C. with any questions or concerns related to this information.

Please Click Here for More Information on Oregon’s Exclusive Remedy Rule