Workers’ Compensation

ORS 656.019
Civil negligence action for claim denied on basis of failure to meet major contributing cause standard

  • statute of limitations

(1)

(a)

An injured worker may pursue a civil negligence action for a work-related injury that has been determined to be not compensable because the worker has failed to establish that a work-related incident was the major contributing cause of the worker’s injury only after an order determining that the claim is not compensable has become final. The injured worker may appeal the compensability of the claim as provided in ORS 656.298 (Judicial review of board orders), but may not pursue a civil negligence claim against the employer until the order affirming the denial has become final.

(b)

Nothing in this subsection grants a right for a person to pursue a civil negligence action that does not otherwise exist in law.

(2)

(a)

Notwithstanding any other statute of limitation provided in law, a civil negligence action against an employer that arises because a workers’ compensation claim has been determined to be not compensable because the worker has failed to establish that a work-related incident was the major contributing cause of the worker’s injury must be commenced within the later of two years from the date of injury or 180 days from the date the order affirming that the claim is not compensable on such grounds becomes final.

(b)

Notwithstanding paragraph (a) of this subsection, a person may not commence a civil negligence action for a work-related injury that has been determined to be not compensable because the worker has failed to establish that a work-related incident was the major contributing cause of the worker’s injury, if the period within which such action may be commenced has expired prior to the filing of a timely workers’ compensation claim for the work-related injury. [2001 c.865 §15]

Notes of Decisions

Plaintiff with preexisting condition, who suffered injury at work and did not fail to establish that work incident was major contributing cause of disability and need for treatment, could not bring civil negligence action against employer under this section that provides cause of action when no other remedy is available because plaintiff was entitled to bring claim against employer under Article I, section 10, Oregon Constitution. Alcutt v. Adams Family Food Services, Inc., 258 Or App 767, 311 P3d 959 (2013), Sup Ct review denied

Approval of worker’s initial claim for compensation did not preclude civil negligence action after denial of additional claims based on different medical conditions resulting from same work-related incident. Bundy v. NuStar GP, LLC, 362 Or 282, 407 P3d 801 (2017)

Despite the conflict between limitation periods in ORS 30.275 and this section, longer limitation period in this section takes precedence over shorter two-year period in ORS 30.275 because this section is more specific and more recently enacted. Preble v. Centennial School Dist. No. 287, 298 Or App 357, 447 P3d 42 (2019)

This section provides procedural limitation governing timing for worker to bring negligence action against employer, rather than substantive exception to exclusive remedy provision in ORS 656.018. Bundy v. Nustar GP LLC, 317 Or App 193, __ P3d __ (2022)

Source

Last accessed
May 26, 2023

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