11 Trial Lawyer • Summer 2022 656.154. The most common third-party claims are MVCs, but they also apply to products liability (if the product is made by a third-party), premises liability (if the premises is owned by a third-party), Employer Liability Law (ORS 654.305– 654.336) and medical malpractice. However, the worker does not have a third-party claim against any party granted immunity by ORS 656.018 or by the Oregon Tort Claims Act. When a worker believes they have been injured on the job, they should immediately notify their employer, although the law gives them up to 90 days (one year from treatment/disability/ knowledge for occupational diseases, which are conditions that gradually arise). Waiting to report can cause the employer and insurer to doubt that the injury occurred. Once filed, the insurer has 60 days (“deferred status”) to investigate and accept or deny. During the deferred period, wage loss is paid, but not medical services, with exceptions. The worker must cooperate with the insurer; return paperwork, participate in a recorded statement and attend an IME. So many people no longer open their mail, but injured workers must be diligent in this, or they can miss important documents and be denied for noncooperation. Compensable injury In deciding whether to accept or deny a claim, the question is whether there is a “compensable injury,” defined as an accidental injury arising out of and in the course of employment requiring medical services or resulting in disability or death. ORS 656.005(7)(a). Most disputes are whether medical services were required and related. Sometimes insurers challenge the worker’s credibility, especially if there was a delay or the mechanism of injury was minimal. It is surprising how many insurers have claimed that my clients who were in MVCs did not even need to go to the doctor! There may also be a dispute about whether the worker was actually at work when injured. The inquiry of “arise out of ” and “in the course of ” are two elements of a single inquiry into whether an injury is work-related. For example, a worker’s commute is generally excluded under the “going and coming rule.” But there are exceptions, such as the “personal comfort doctrine” (the worker has not actually left work when they engage in an activity that is not the appointed work task, but has a sufficient connection to employment); the “parking lot exception” (injury while traveling to or from work, on or near the employer’s premises, where the employer exercises some control) and the “greater hazard” exception (employment exposes worker to hazards in a greater degree than the common public). For example, my client, Ella, worked in a suite in a high-rise building and routinely walked around the building for fresh air on her breaks. One such day, as she was reentering the lobby, she slipped on water and fell backwards. The insurer denied her claim under the “going and coming rule,” disavowing control over the area where she fell. But we prevailed under the “personal comfort doctrine” as it was a paid break encouraged by the employer, and she did not do any personal tasks. If she had crossed the street to check her ATM balance and fallen there, the claim likely would not have been compensable. Regardless of what happened with this work injury, Ella could still sue the building under premises liability. See Crash Course p 12 It is surprising how many insurers have claimed that my clients who were inMVCs did not even need to go to the doctor!
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