§ 5.2 Benefits of Employer Compliance
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§ 5.2-1 Limitation of Remedies against Complying Employer
§ 5.2-1(a) In General
For a complying employer, subject workers incurring compensable injuries and their beneficiaries are limited to compensation as provided in ORS chapter 656. All common-law and other statutory remedies are barred. ORS 656.018. The exclusive-remedy provision covers temporary service providers as that term is defined in ORS 656.850(1)(c), as well as the clients to whom the workers are provided when the temporary service provider complies with ORS 656.017. ORS 656.018(5)(a). The exception from liability given to a client under ORS 656.018(5)(a) is also extended to the client's insurer; the self-insured client's claims administrator; the Department of Consumer and Business Services (DCBS); and the contracted agents, employees, officers, and directors of the client, the client's insurer, the self-insured client's claims administrator, and the DCBS. ORS 656.018(5)(b). The exception from liability enjoyed by these parties is limited by the same conditions delineated in ORS 656.018(3).
Except as specifically provided in ORS chapter 656, the liability of every employer who satisfies the duty required by ORS 656.017(1) is exclusive and in place of all other liability arising out of compensable injuries to the subject workers. ORS 656.018(1)(a); Blacknall v. Westwood Corp., Developers & Contractors, 307 Or 113, 117, 764 P2d 544 (1988); Robinson v. Omark Industries, Inc., 46 Or App 263, 269, 611 P2d 665, rev dismissed, 291 Or 5 (1981). A complying employer is not liable for contribution or indemnity to third persons who are held responsible for injury to the employer's subject worker. ORS 656.018(1)(a). Contractual agreements or warranties to the contrary are void. ORS 656.018(1)(c). However, this exclusive liability does not apply to claims for indemnity or contribution asserted by a railroad (as defined in ORS 824.020), or by a corporation or individual regulated under ORS chapter 757 (utilities) or ORS chapter 759 (telecommunications utilities). ORS 656.018(1)(b). Except as otherwise provided in ORS 656.018(3)(a) to (d) and ORS 656.019, a subject worker may not pursue a civil negligence action against its employer for work-related injuries.
In VanDrimmelen v. Berlin, 148 Or App 21, 939 P2d 59, rev den, 326 Or 62 (1997), the court held that an injured worker employed by a noncomplying employer cannot sue a coworker for negligently causing an on-the-job injury. In such cases, coworkers are generally exempt from liability as if the employer had complied with the workers' compensation law by providing compensation coverage.
In Turnbow v. K.E. Enterprises, Inc., 155 Or App 59, 962 P2d 764 (1998), the court held that a workers' compensation claim does not preclude a worker from seeking additional damages for discrimination suffered during employment. The plaintiff in an employment-discrimination case had received benefits under the workers' compensation law for his back injury. He was still entitled to seek additional noneconomic damages that he suffered during his employment due to the defendant's discrimination.
In Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001), overruled on other grounds by Horton v. Oregon Health & Science University, 359 Or 169, 376 P3d 998 (2016), the Oregon Supreme Court examined the origin and meaning of the Remedy Clause of the Oregon Constitution, and held that, because Article I, section 10, guarantees a remedy for an injury to absolute common-law rights respecting person, property, or reputation, the legislature does not have the authority to deny a remedy for such injuries. The court explained that, although it had held that the Remedy Clause preserves common-law rights of action, it never had held that the Remedy Clause prohibits the legislature from changing a common-law remedy or form of procedure, attaching conditions precedent to invoking the remedy, or perhaps even abolishing old remedies and substituting new remedies. Smothers, 332 Or at 119. Thus, the exclusive-remedy clause and the limits it places on civil actions filed against employers by employees for workplace injuries is not unconstitutional. That said, the court agreed that if the workers' compensation system fails to provide an injured worker with a remedy because the worker is unable to prove that their work was the major contributing cause of an injury, Article 1, section 10, of the Oregon Constitution allows the workers to pursue a remedy through a civil suit against the employer. The court concluded:
As we have explained, plaintiff believed that he had suffered an injury at work, albeit not a compensable injury as defined under present workers' compensation law. Therefore, after his workers' compensation claim was denied [and plaintiff had followed the procedures prescribed by the workers' compensation statutes] plaintiff filed this action to seek redress for his injuries. For the reasons that we have explained, the remedy clause mandates that a remedy be available to all persons—including workers—for injuries to "absolute" common-law rights for which a cause of action existed when the drafters wrote...
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