10 Trial Lawyer • Summer 2022 By Jovanna Patrick OTLA Guardian W hen I tell attorneys I practice workers’ compensation law, I get some version of, “I know nothing about that, but I heard it is really complicated and you cannot make any money.” This fear around workers’ compensation claims even leads some personal injury attorneys to shy away from taking a case that has a workers’ compensation aspect. But helping injured workers is a worthy and fulfilling endeavor if we can demystify these claims. I represented a worker, Andre, who was a passenger in his employer’s truck. They were driving between construction jobs when another driver pulled out from a side street and T-boned them at high speed. Andre suf f ered a s er ious injury to his low back, with a recommendation for disc surgery. The workers’ compensation insurer accepted his claim for a lumbar strain, and paid some medical treatment and wage loss. But it refused to accept the disc injury, blaming it on preexisting arthritis, even though Andre was young and never before experienced back pain. Unable to overcome the arthritis exclusion under the workers’ compensation system, we settled that claim on a denied basis. We then turned to the adverse driver for the portion of unpaid wage loss due to workers’ compensation limits, the aggravated disc condition that required surgery and, of course, his non-economic damages. Those included the pain he endured in his long daily commute to stoically continue working and the disruption in his family life from being unable to play with or carry his small children. The adverse driver paid the minimum policy limits, which had to be shared with the workers’ compensation lien. Luckily, his employer’s vehicle had UIM coverage and we were able to obtain a fuller recovery, so he could get the treatment he needed and return to being the playful, happy young father he had been before the crash. When someone like Andre is at work and is injured by the fault of a third party, they have both a workers’ compensation and a third-party claim. Chapter ORS 656 and administrative rules sections 436 (Workers’ Compensation Division) and 438 (Workers’ Compensation Jovanna Patrick Board) provide the framework for claims. The third-party recovery portion is ORS 656.576 through 656.596. Generally speaking, a workers’ compensation claim is the exclusive remedy for a worker injured on the job. ORS 656.018. A worker cannot sue their employer, its officers, directors, employees nor insurer. There are limited exceptions. If the employer did not purchase workers’ compensation insurance (non-complying); when the injury is caused by the wilful and unprovoked aggression by a person otherwise exempt (ORS 656.018(3); 656.156(2)); if the employer failed to comply with the “red tag” statute (ORS 654.082); or, in very limited circumstances, if the worker failed to prove the work activity was the major contributing cause of the worker’s condition (Smothers v. GreshamTransfer, 332 Or 83 (2001), ORS 656.019). Exclusive remedy Almost every injured worker tells me how their injury could have been prevented. Many fault their employer or coworkers for causing the injury or failing to prevent the circumstances that led to the injury, such as providing safety equipment or training. And almost every time, I have to give them the bad news that their only remedy is through the workers’ compensation claim, which does not provide for a full recovery. But a worker can sue almost any third party not in the same employment. ORS WhenWorkers’CompandCarsCollide Crash Course
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