ORS 656.018
Effect of providing coverage; exclusive remedy


(1)

(a) The liability of every employer who satisfies the duty required by ORS 656.017 (Employer required to pay compensation and perform other duties) (1) is exclusive and in place of all other liability arising out of injuries, diseases, symptom complexes or similar conditions arising out of and in the course of employment that are sustained by subject workers, the workers’ beneficiaries and anyone otherwise entitled to recover damages from the employer on account of such conditions or claims resulting therefrom, specifically including claims for contribution or indemnity asserted by third persons from whom damages are sought on account of such conditions, except as specifically provided otherwise in this chapter.

(b)

This subsection shall not apply to claims for indemnity or contribution asserted by a railroad, as defined in ORS 824.020 (Definitions for ORS 824.020 to 824.042), or by a corporation, individual or association of individuals which is subject to regulation pursuant to ORS chapter 757 or 759.

(c)

Except as provided in paragraph (b) of this subsection, all agreements or warranties contrary to the provisions of paragraph (a) of this subsection entered into after July 19, 1977, are void.

(2)

The rights given to a subject worker and the beneficiaries of the subject worker under this chapter for injuries, diseases, symptom complexes or similar conditions arising out of and in the course of employment are in lieu of any remedies they might otherwise have for such injuries, diseases, symptom complexes or similar conditions against the worker’s employer under ORS 654.305 (Protection and safety of persons in hazardous employment generally) to 654.336 (Comparative negligence) or other laws, common law or statute, except to the extent the worker is expressly given the right under this chapter to bring suit against the employer of the worker for an injury, disease, symptom complex or similar condition.

(3)

The exemption from liability given an employer under this section is also extended to the employer’s insurer, the self-insured employer’s claims administrator, the Department of Consumer and Business Services, and to the contracted agents, employees, partners, limited liability company members, general partners, limited liability partners, limited partners, officers and directors of the employer, the employer’s insurer, the self-insured employer’s claims administrator and the department, except that the exemption from liability shall not apply:

(a)

If the willful and unprovoked aggression by a person otherwise exempt under this subsection is a substantial factor in causing the injury, disease, symptom complex or similar condition;

(b)

If the worker and the person otherwise exempt under this subsection are not engaged in the furtherance of a common enterprise or the accomplishment of the same or related objectives;

(c)

If the failure of the employer to comply with a notice posted pursuant to ORS 654.082 (Prohibiting use of equipment involved in violation) is a substantial factor in causing the injury, disease, symptom complex or similar condition; or

(d)

If the negligence of a person otherwise exempt under this subsection is a substantial factor in causing the injury, disease, symptom complex or similar condition and the negligence occurs outside of the capacity that qualifies the person for exemption under this section.

(4)

The exemption from liability given an employer under this section applies to a worker leasing company and the client to whom workers are provided when the worker leasing company and the client comply with ORS 656.850 (License) (3).

(5)

(a) The exemption from liability given an employer under this section applies to a temporary service provider, as that term is used in ORS 656.850 (License), and also extends to the client to whom workers are provided when the temporary service provider complies with ORS 656.017 (Employer required to pay compensation and perform other duties).

(b)

The exemption from liability given a client under paragraph (a) of this subsection is also extended to the client’s insurer, the self-insured client’s claims administrator, the department, and the contracted agents, employees, officers and directors of the client, the client’s insurer, the self-insured client’s claims administrator and the department, except that the exemption from liability shall not apply:

(A)

If the willful and unprovoked aggression by a person otherwise exempt under this subsection is a substantial factor in causing the injury, disease, symptom complex or similar condition;

(B)

If the worker and the person otherwise exempt under this subsection are not engaged in the furtherance of a common enterprise or the accomplishment of the same or related objectives;

(C)

If the failure of the client to comply with a notice posted pursuant to ORS 654.082 (Prohibiting use of equipment involved in violation) is a substantial factor in causing the injury, disease, symptom complex or similar condition; or

(D)

If the negligence of a person otherwise exempt under this subsection is a substantial factor in causing the injury, disease, symptom complex or similar condition and the negligence occurs outside of the capacity that qualifies the person for exemption under this subsection.

(6)

Nothing in this chapter shall prohibit payment, voluntarily or otherwise, to injured workers or their beneficiaries in excess of the compensation required to be paid under this chapter.

(7)

The exclusive remedy provisions and limitation on liability provisions of this chapter apply to all injuries and to diseases, symptom complexes or similar conditions of subject workers arising out of and in the course of employment whether or not they are determined to be compensable under this chapter. [1965 c.285 §6; 1975 c.115 §1; 1977 c.514 §1; 1977 c.804 §3a; 1987 c.447 §110; 1989 c.600 §1; 1993 c.628 §6; 1995 c.332 §5; amendments by 1995 c.332 §5a repealed by 1999 c.6 §1; 1995 c.733 §76; 1997 c.275 §§6,7; 1997 c.491 §§1,2; amendments by 1999 c.6 §4 repealed by 2001 c.865 §23; 2013 c.488 §1]

Notes of Decisions

In General

If Workmen’s Compensation Board has rejected claim on ground that injury or disease is not covered by chapter, and decision has become final, exclusivity provisions do not bar common law tort action on claim. Hubbard v. Reynolds Metals Co., 482 F2d 63 (1973)

Common enterprise requires that employee and third party be working in accomplishment of same or related purpose at time of injury. Metcalf v. Case, 278 Or 629, 565 P2d 736 (1977)

Exclusive liability provision does not unreasonably interfere with freedom to contract under Article I, section 20 of Oregon Constitution, nor deny third party remedy in violation of Article I, section 10 of Oregon Constitution. Roberts v. Gray’s Crane & Rigging, 73 Or App 29, 697 P2d 985 (1985), Sup Ct review denied

Exclusive liability provision does not violate federal equal protection or state privileges and immunities constitutional provisions. Rock v. Peter Kiewit Sons’ Co., 77 Or App 469, 713 P2d 673 (1986), Sup Ct review denied

Application of choice of laws provision to allow employer indemnity of third party was void as contrary to fundamental public policy. Young v. Mobil Oil Corp., 85 Or App 64, 735 P2d 654 (1987)

Exclusivity provision does not apply to prevent statutory claim for separate injury of discrimination. Palmer v. Bi-Mart Company, 92 Or App 470, 758 P2d 888 (1988); Seitz v. Albina Human Resources Center, 100 Or App 665, 788 P2d 1004 (1990)

Agreements to purchase liability insurance are independent contractual obligations that are not subject to prohibition against indemnity agreements. Montgomery Elevator Co. v. Tuality Community Hosp., 101 Or App 299, 790 P2d 1148 (1990), Sup Ct review denied

Fellow employee is not exempt in capacity as legally separate entity causing harm. Perkins v. Gehlar, 107 Or App 158, 811 P2d 650 (1991)

Where third party did not qualify as employer through relationship to claimant, employer immunity was not available to third party based upon intercorporate relationship with claimant’s employer. Osborn v. Crane Equipment Manufacturing Corp., 135 Or App 176, 897 P2d 1192 (1995), Sup Ct review denied

Where employee held dual employment partly under same employer as injured person, employee immunity as coworker of injured person did not extend to unshared employer. Perry v. Express Services, Inc., 143 Or App 321, 923 P2d 673 (1996), Sup Ct review denied

Exclusivity of workers’ compensation liability does not apply if injury is not “arising out of and in the course of employment.” Krushwitz v. McDonald’s Restaurants, 323 Or 520, 919 P2d 465 (1996)

Where decedent would have been prevented from asserting claim, preventing bringing of derivative claim does not improperly deny remedy. Kilminster v. Day Management Corp., 323 Or 618, 919 P2d 474 (1996)

Coworker exemption from liability exists regardless of whether employer is complying employer. Van Drimmelen v. Berlin, 148 Or App 21, 939 P2d 59 (1997), Sup Ct review denied

Government employee receiving workers’ compensation benefits for injuries from motor vehicle accident is not barred from also collecting benefits under uninsured motorist coverage provided by employer under ORS 278.215. City of Salem v. Salisbury, 168 Or App 14, 5 P3d 1131 (2000), Sup Ct review denied

Good faith filing of workers’ compensation claim does not estop worker from asserting contrary position in later civil complaint. Day v. Advanced M&D Sales, Inc., 336 Or 511, 86 P3d 678 (2004)

Member-manager of limited liability company that employed plaintiff who was injured while at work is not exempt from liability under this section, even where member-manager functions in manner similar to officer or director. Cortez v. Nacco Material Handling Group, 356 Or 254, 337 P3d 111 (2014)

Exceptions From Tort Immunity

Removal of safety switch is not act of “willful and unprovoked aggression.” Chung v. Fred Meyer, Inc., 276 Or 809, 556 P2d 683 (1976)

For purposes of determining whether action was “willful and unprovoked aggression,” provocation means incitement to action, not act providing legal justification. Virgil v. Walker, 280 Or 607, 572 P2d 314 (1977)

Person contracting with complying employer for services does not become immune from suit by employee. Martelli v. R.A. Chambers and Associates, 310 Or 529, 800 P2d 766 (1990)

Exemption from liability for complying employer is available to predecessor complying employer of injured person for alleged negligence that occurred during former ownership of business. Fields v. Jantec, Inc., 317 Or 432, 857 P2d 95 (1993)

Disputed claim settlement disposing of all claims raised or raisable relating to workers’ compensation claim did not preclude action against company officer for intentional tort. Terris v. Stodd, 126 Or App 666, 870 P2d 835 (1994), Sup Ct review denied

Claims for intentional or reckless infliction of emotional distress are not excluded by availability of workers’ compensation remedy. McMellon v. Safeway Stores, Inc., 945 F. Supp. 1402 (D. Or. 1996)

Wrongful discharge is separate injury from compensable injury, notwithstanding possible reliance on same facts. McMellon v. Safeway Stores, Inc., 945 F. Supp. 1402 (D. Or. 1996)

§§ 656.001 to 656.794

Law Review Citations

55 OLR 432-445 (1976); 16 WLR 519 (1979); 22 WLR 559 (1986)

Chapter 656

Notes of Decisions

Party having affirmative of any issue must prove it by preponderance of evidence unless legislature fixes some different quantum of proof. Hutcheson v. Weyerhaeuser Co., 288 Or 51, 602 P2d 268 (1979)

Amendments to existing statutes and enactment of additional statutes by 1995 legislation generally apply to pending cases and to orders still appealable on June 7, 1995, effective date. Volk v. America West Airlines, 135 Or App 565, 899 P2d 746 (1995), Sup Ct review denied

Amendments to existing statutes and enactment of additional statutes by 1995 legislation do not extend or shorten procedural time limitations with regard to actions taken prior to June 7, 1995, effective date. Motel 6 v. McMasters, 135 Or App 583, 899 P2d 1212 (1995)

Atty. Gen. Opinions

Benefit unavailability for inmates engaged in prison work programs, (1996) Vol 48, p 134

Law Review Citations

24 WLR 321, 341 (1988); 32 WLR 217 (1996)


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Last accessed
May. 15, 2020