Suing Over a Work Injury in Oregon

Generally no. An employer that provides workers' comp coverage has exclusive liability: workers' comp replaces all other remedies against the employer, including claims under the Employer Liability Law. The protection extends to the insurer, claims administrator and the employer's officers, employees and similar persons, except for their willful and unprovoked aggression, when not engaged in a common enterprise with the worker, failure to comply with a posted safety notice, or negligence outside the capacity that gives them immunity. If the employer deliberately intended to produce the injury or death, the worker may collect benefits and also sue the employer for damages above the benefits.

Yes. If the injury is caused by the negligence or wrong of a third person not in the same employ, the worker may elect to sue that person, and must give notice of the election to the insurer or other 'paying agency' by personal service or registered or certified mail. Benefits continue until damages are recovered, and the paying agency has a lien on the recovery. From the recovery, costs and attorney fees are paid first, the worker receives at least one-third of the balance, the paying agency is repaid for its claim costs and expected future costs, and any remainder goes to the worker. A settlement requires the paying agency's approval.

An injury to a worker of a noncomplying (uninsured) employer is compensable as if the employer had complied: the Department of Consumer and Business Services refers the claim to an assigned claims agent, which processes it, and the employer must repay all claim costs and can be assessed civil penalties. The worker may also sue the noncomplying employer for damages, and the employer cannot defend by blaming a fellow worker, the worker's own negligence or assumption of risk; the worker must elect whether to recover damages from the employer, and the paying agency has a lien on any recovery.