Workers allowed to file civil suits against at-fault employees

April 11, 2014 (Press-News.org) Workers allowed to file civil suits against at-fault employees

Prior law

In Oregon, in many cases, in order to receive workers' compensation, you need to prove, in addition to the fact that the injury or disease occurred on the job, that the injury or disease is the "major contributing cause" (51 percent) of your condition. Prior to 2001, what this meant was, if you proved that the injury contributed to your condition, but was not the "major" contributor, you not only did not receive compensation, but, because of the exclusivity of the workers' compensation system pursuant to Oregon statute, you were not allowed to file a civil suit against your employer. In other words, you were without a remedy. Oregon is one of only a few states that has the "major contributing cause" requirement.

Landmark case

In 2001, the above situation drastically changed when the state supreme court, in Smothers v. Gresham Transfer, Inc., decided that a worker who is injured and fails to prove that the injury was the major contributing cause, and is therefore denied workers' compensation benefits, has, under the Oregon Constitution (which guarantees to any person a remedy for injury done in his or her "person, property, or reputation"), the right to file a civil claim against his or her employer for negligence. To put it another way, the court stated, "[The] exclusive remedy provisions are unconstitutional under the remedy clause [of the Constitution] to the extent that there now is a category of workers who have been injured at work but receive no compensation benefits, because they cannot prove that the work-related incident was the major contributing cause of their injury or disease."

To be more specific, the following conditions must be met:
-A claim for workers' compensation was filed, then denied.

-The denial was because the place of work was not the major cause of the condition.

-The work was a material cause of the injury, which was caused by the employer's negligence.

-There was a cause of action under the Oregon common law in 1857, when the state constitution was adopted.

Consequences

Following the Smothers decision, the legislature enacted a new statute which allows employees to file a civil suit against the employer in cases where the worker has not proven that the incident was not the major contributing cause of the injury. The civil action can be filed only after an order that the claim is not compensable under workers compensation procedures, and any appeal of that order.

The legislature also provided that, in the workers' compensation claim procedure, the employer must prove that the worker's condition was not the "major contributing cause" for treatment.

Conclusion

If you are injured in a workplace incident and file a workers' compensation claim, which is denied because of the lack of "major contributing cause," you should immediately contact an experienced workers' compensation attorney, who will investigate the facts of the case, to determine whether you can still file a negligence claim against your employer and receive the relief to which you are entitled.