Has Oregon Worker’s Compensation Law Recently Changed?
Last week the Oregon Court of Appeals released an important opinion in a case impacting the rights of injured workers in Oregon. The case is called Dan Alcutt v. Adams Family Food Services Inc. You can find the opinion at the court’s website here:
http://www.publications.ojd.state.or.us/docs/A147515.pdf
The case delves into an important question of law regarding Oregonian’s rights under the Oregon Constitution and the Workers’ Compensation system. The Oregon Constitution contains an important provision at Article 1 section 10 which states that “every man shall have remedy by due course of law for injury done him in his person, property, or reputation”.
The Alcutt case is a successor to the groundbreaking decision in Smothers v. Gresham Transfer. http://www.publications.ojd.state.or.us/docs/S44512.htm The Smother’s case essentially found that the Workers’ Compensation system does not provide an adequate remedy under the Oregon Constitution for people who have a negligence claim against their employer but have their claims denied because their injury was not considered the “major contributing cause” of their condition. The Alcutt case reaffirms the court’s decision in Smothers and arguably expands it to cover a wider class of workers’ compensation cases.
To illustrate this I will briefly summarize what happened to the claimant’s in both the Smothers and Alcutt cases. The Smothers case concerned an injured worker who developed pneumonia and respiratory infection after being exposed to cleaning chemicals in a mechanics shop.
His workers’ compensation claim was denied and he was unable to meet the high standard of proof particular to workers’ compensation law which requires a claimant to prove that the work exposure is the “major contributing cause” of their injury. The claimant sued his
employer in civil court alleging that the employer created an unsafe workplace and failed to warn him about exposure to the cleaning chemicals.
In Alcutt, the claimant fell off a footstool as he was filling a soda machine full of ice with a heavy cooler. He required neck and back surgery for two herniated discs. His workers’ compensation claim was denied because multiple IME doctors (paid consultants for the insurance industry) said his back condition was caused by pre-existing degenerative spine disease. He sued his
employer in civil court for failing to provide a safe workplace by supplying an adequate ladder so that he could safely fill the ice hopper. After his case was dismissed by the trial court, the Court of Appeals ruled that the trial court violated his constitutional right by not allowing the case to go forward against the employer. This kind of case is quite common in Oregon workers’ compensation so injured workers and claimant’s attorneys should take note and consider bringing a civil suit in these circumstances when appropriate.
Talk with your workers’ compensation attorney about whether you may have a remedy outside
the workers’ compensation system. There are many advantages to bringing an injury claim in a civil court. Your workers’ compensation attorney should talk with you about the feasibility of bringing a civil case and whether it makes sense in your circumstances. If you feel that your work injury is due to your employer’s negligence and your workers’ compensation claim is being denied in whole or in part, talk with your attorney about the possibility of a civil
claim. At Shlesinger & DeVilleneuve we have the experience and resources to fully represent you inside and outside the workers’ compensation system.
Talk with your workers’ compensation attorney about whether you may have a remedy outside the workers’ compensation system. There are many advantages to bringing an injury claim in a civil court. Your workers’ compensation attorney should talk with you about the feasibility of bringing a civil case and whether it makes sense in your circumstances. If you feel that your
work injury is due to your employer’s negligence and your workers’ compensation claim is being denied in whole or in part, talk with your attorney about the possibility of a civil claim. At Shlesinger & DeVilleneuve we have the experience and resources to fully represent you inside and outside the workers’ compensation system.
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The above information is NOT a substitute for legal advice and should not be interpreted as the dissemination of legal advice. It is only meant as general guidance on various issues which may be applicable to your situation. It is critical that you consult with an experienced attorney before taking any legal action or have specific questions addressing your particular case answered