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Oregon's Employer Liability Law and Injured Workers

In pursuing a personal injury or wrongful death case, it is important to understand all of the available claims a victim may have.  When workers are injured or killed on the job in Oregon, more than one legal option may be available to them.  It is typical for the worker to have a workers compensation claim (which is processed through the employer’s worker’s comp insurance carrier).  If the worker’s employer or coworker is solely responsible for the worker’s injury or death, then a worker’s compensation insurance claim will likely be the only legal option available to the worker.  This is what’s known as “worker’s comp exclusivity.”  In this situation, the injured worker (or a deceased worker’s family) would be well served by calling a competent worker’s comp attorney to discuss their claim.  However, if someone other than the employee’s direct employer or coworker is responsible for the worker’s injury or death—or if the employer did not offer worker’s compensation insurance—the injured or killed employee may have a claim under Oregon’s Employer Liability Law.

Oregon’s Employer Liability Law requires Oregon’s employers to provide the safest possible work environment when the work being performed involves a risk or danger to the employee or the public.  This includes constructing a building.  See ORS 654.305; 654.310.  It requires that the employer use every device, care, and precaution that is practicable to use for the protection and safety of its workers, limited only be the necessity for preserving the structure, machine, apparatus, or device’s efficiency, and without regard to the additional cost of suitable material or safety appliance and devices.  ORS 654.305.  In other words, when dangerous work is involved, the employer must ensure that the work is performed safely—such as providing safe equipment or machinery, and inspecting the same.  See ORS 654.310; Thomas v. Foglio, 225 Or 540 (1961); Fields v. Fields, 213 Or 522 (1958). 

The Oregon Employer Liability Law applies to both employers who don’t provide worker’s comp insurance (known as “direct employers”) and other parties who may be responsible for a worker’s injury or death.  See, e.g., Spain v. Jones, 257 Or App 777 (2013).  In order to make a claim against someone other than a direct employer, that other party must have had charge of, control over, or responsibility for the dangerous work.  These parties are called “indirect employers.”  An indirect employment relationship is created in three different ways:

    1.           The worker’s direct employer and the indirect employer form a common enterprise during which the worker is injured.  See Sacher v. Bohemia, Inc., 302 Or 477 (1987);
    2.           The indirect employer retained the right to control the dangerous work that the worker was performing when they were injured.  See Woodbury v. CH2M Hill, Inc., 335 Or 154 (2003); and
    3.           The indirect employer actually controlled the manner or method in which the dangerous work was performed when the worker was injured.  See Yeatts v. Polygon, 360 Or 170 (2016).

At the end of the day, an injured worker may have legal options for their personal injury or wrongful death claims beyond worker’s compensation if the following circumstances exist: 

    1.            The injury occurred when performing work that involved a risk or danger to the worker or the public; and
    2.        The at-fault party was an indirect employer (or a direct employer who did not offer worker’s compensation insurance).   

 

If you or someone you know was injured or lost their life on the job because of someone other than your employer (or worker’s comp insurance was not offered to you), it is critical that you seek legal advice as soon as possible.  Call our office today for a free consultation: (503) 288-8000.  We do not handle worker’s compensation claims, but suggest to anyone dealing with such a claim that they call a worker’s compensation attorney to ensure that their claim is protected.

 

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