Suing your employer for injury caused by negligence

The idea of Workers’ Compensation is that an injured worker should get compensation for injury suffered on the job without having to show that the employer was at fault in causing the injury. The cost of work injuries should be borne by the employer’s insurance and by the consumers who buy the employer’s product or services. The trade-off for not having to show employer fault is that the benefits the worker can get are limited to medical expenses, lost pay, permanent impairment and vocational rehabilitation. So injured workers can’t take their employers to a jury trial for work-related injury or disease; they’re limited to the remedies in the workers’ compensation system. There is no compensation for the impact of the injury on the worker’s life outside of work. In serious injury cases, that’s a pretty big deal. Lawyers call it the “workers’ compensation bar” because it bars the courthouse door against injured workers.

In 1995, the Oregon Legislature passed a law that said the workers’ compensation bar applies even when the workers’ claim for workers’ compensation is denied. So the employer gets protection from being sued in court, but doesn’t have to pay workers’ compensation. There’s no trade-off. If you think that sounds unfair, the Oregon Supreme Court agreed with you in a 2001 case called Smothers v. Gresham Transfer. The Oregon Constitution says every Oregonian is entitled to “remedy by due course of law for injury done him in his person, property, or reputation.” The court said you can’t take away the workers’ compensation remedy by denying a claim and still keep the injured worker out of the courthouse by barring him from suing his employer.

The legislature passed a law in response to the Smothers case, providing for an exception to the workers’ compensation bar where an injured worker’s claim for compensation was denied in certain circumstances. The Smothers decision has been undercut by a later supreme court decision, but the law the legislature passed based on it remains in effect. ORS 656.019.

On Friday, December 29, 2017, in Bundy v. Nustar, the Oregon Supreme Court decided that ORS 656.019 covers not only a worker’s initial claim for injury but also claims for other injuries that follow, caused by the same work incident. Mr. Bundy inhaled gasoline fumes at work, and the employer accepted a “non-disabling” workers’ compensation claim for the immediate effects, but denied his claims for conditions that arose later from the same exposure on the job. Mr. Bundy filed a claim in court, alleging that the employer was negligent in causing his injury and had denied his later claims. The trial court dismissed his case because his initial workers’ compensation claim had been accepted, although the later, long-term effects were denied. The supreme court reversed on appeal, ruling that the worker could sue his employer for negligence for any part of his claim that had been denied.  ♦


TCNF partner Jim Coon filed a friend-of-the-court brief in the supreme court for the Oregon Trial Lawyers’ Association, on the side of the injured worker.