If you were hurt on the job in Oregon, you’ve probably been told that workers’ compensation is your only option. When it comes to your own employer, that’s usually true. But many workplace injuries are caused by someone else: a subcontractor on a construction site, the company that built a defective machine, or a driver who ran a red light while you were on the clock.
When that happens, you may have two claims: a workers’ comp claim and a separate personal injury claim against whoever was at fault. That second claim, called a third-party claim, can pay for losses workers’ comp never covers, including pain and suffering. Here’s how third-party claims work in Oregon, what they can be worth, and what happens to your workers’ comp benefits if you recover.
The Short Answer
In most cases, you can’t sue your Oregon employer for a workplace injury. Workers’ compensation is your exclusive remedy against them. But you can pursue a claim against a third party: any person or company other than your employer or co-workers whose negligence caused or contributed to your injury. You can collect workers’ comp benefits and pursue a third-party claim at the same time. If you recover, the workers’ comp insurer is entitled to be repaid part of what it paid out, but Oregon law guarantees you a minimum share.
Why You Usually Can’t Sue Your Employer
Oregon’s workers’ compensation system is a trade-off. You get medical care and wage-replacement benefits without having to prove anyone was at fault. In exchange, an employer that carries workers’ comp insurance is generally immune from being sued over the injury (ORS 656.018). That protection also extends to your co-workers and to the employer’s workers’ comp insurer.
There are narrow exceptions:
- Your employer didn’t carry workers’ comp. An employer that was required to have coverage and didn’t (a “noncomplying employer”) can be sued.
- Your employer deliberately intended to injure you. This requires proof that the employer specifically intended to cause harm (ORS 656.156). Carelessness, even gross negligence or ignoring safety rules, usually isn’t enough.
Because those exceptions are hard to meet, the real question for most injured workers isn’t “Can I sue my employer?” It’s “Was anyone else responsible?”
Who Else Can Be Responsible for a Workplace Injury?
Oregon law allows an injured worker to seek a remedy against a “third person not in the same employ” whose negligence or wrongdoing caused the injury (ORS 656.154). Common examples include:
- General contractors and other subcontractors. Construction sites usually involve several companies working side by side. If a general contractor or another subcontractor created the hazard (an unguarded floor opening, an unsafe trench, a crane operated carelessly), that company can be responsible even though it doesn’t sign your paycheck. Learn more about construction accident claims.
- Equipment and product manufacturers. If a machine, power tool, ladder, scaffold, or vehicle failed because of a design or manufacturing defect, or was sold without proper guards or warnings, the manufacturer or seller may be liable.
- At-fault drivers. If you drive for work (deliveries, service calls, a company truck) and another driver causes a crash, you can bring a claim against that driver and their insurer. See our truck accident and car accident
- Property owners. If you were hurt on someone else’s property while doing your job, such as a delivery driver who falls on an unsafe stairway or a technician injured by a dangerous condition at a customer’s facility, the property owner may be responsible. Read about premises liability claims.
- Maintenance and service contractors. Companies hired to inspect or maintain equipment, elevators, or a building can be liable if their negligent work caused your injury.
Oregon’s Employer Liability Law
For people who work in construction and other dangerous jobs, Oregon has an additional tool: the Employer Liability Law (ORS 654.305 to 654.336). It requires a heightened level of care from companies that control or take part in risky work. It can’t be used against your direct employer, but it can apply to a general contractor, property owner, or other company that shares in the project or controls how the dangerous work is done. These claims turn on the details of how the jobsite was run, and the law in this area is always developing, so they deserve a close look from a lawyer.
What a Third-Party Claim Pays That Workers’ Comp Doesn’t
Workers’ comp pays for medical treatment and replaces only part of your lost wages, subject to state limits. It pays nothing for the human side of an injury.
A third-party claim is a regular personal injury claim. You can seek full compensation, including:
- Your full lost wages and lost future earning capacity, not just a percentage
- Pain and suffering
- Loss of enjoyment of life: the work, hobbies, and time with family the injury took from you
- Permanent impairment, scarring, and disfigurement
- Loss of consortium for your spouse
- Wrongful death damages for a family that lost someone on the job
For a serious injury, the third-party claim is often worth far more than the workers’ comp claim.
Can I Get Workers’ Comp and Sue a Third Party at the Same Time?
Yes. Bringing a third-party claim doesn’t stop your workers’ comp benefits, and you should keep your comp claim moving. Comp benefits help now, while the injury claim, which can take a year or more, is built.
Will I Have to Pay Workers’ Comp Back?
This is one of the most common questions injured workers ask. The answer is: partly, but Oregon law protects you.
When you recover from a third party, the workers’ comp insurer (the statute calls it the “paying agency”) has a lien, meaning a right to be repaid from your recovery for what it spent on your claim. ORS 656.593 sets the order for dividing the money:
- Attorney fees and case costs are paid first.
- You receive at least one-third of what’s left.
- The insurer is repaid from the remainder for what it has spent on medical bills and time-loss benefits, plus the present value of benefits it reasonably expects to pay in the future and certain other claim costs.
- Anything left after that goes to you.
A Simplified Example
Say a subcontractor’s negligence causes a fall, and the case resolves for $300,000. The workers’ comp insurer has paid $85,000 and expects to pay $15,000 more.
| Settlement | $300,000 |
| Attorney fees and case costs | − $110,000 |
| Balance | $190,000 |
| Your guaranteed minimum (one-third of the balance) | $63,333 |
| Left over and available to the insurer | $126,667 |
| Insurer’s lien ($85,000 paid + $15,000 expected future benefits) | − $100,000 |
| Remainder paid to you | $26,667 |
| Your total recovery ($63,333 + $26,667) | $90,000 |
This example is simplified, and every case is different. A few things it doesn’t show:
- Your comp benefits continue. What you keep from the third-party recovery is in addition to your workers’ comp benefits (ORS 656.593(2)). The insurer’s reimbursement for expected future costs is how the law accounts for benefits it will keep paying.
- Settlement approval. A settlement of a third-party claim is void unless the insurer approves it in writing or the Workers’ Compensation Board orders it (ORS 656.587). In a settlement, the insurer is entitled to a “just and proper” share, which could be negotiable. If you and the insurer can’t agree, the Workers’ Compensation Board decides.
How the lien is handled can make a real difference in what you take home. It’s one reason to choose a lawyer who handles both the injury claim and the workers’ comp lien.
Deadlines That Matter
- Report the injury to your employer right away.
- Two years for most injury lawsuits. The general deadline to file a personal injury lawsuit in Oregon is two years (ORS 12.110). Read more about Oregon’s statute of limitations.
- Three years for wrongful death (ORS 30.020).
- Much shorter notice if the third party is a government body. If a city, county, state agency, or other public body was responsible, you generally must give notice of the claim within 180 days, or within one year for a wrongful death claim (ORS 30.275).
- Defective product claims generally must be filed within two years after you discover the injury and its connection to the product, and in most cases no later than 10 years after the product was first purchased (ORS 30.905).
Evidence also disappears fast on worksites. Equipment gets repaired, scaffolding comes down, and video gets recorded over. Waiting rarely helps.
Will Suing Get Me Fired?
Oregon law prohibits employers from discriminating or retaliating against you for filing a workers’ compensation claim (ORS 659A.040). And a third-party claim isn’t against your employer at all. It’s against a different person or company. Your employer usually isn’t a party to the lawsuit, although co-workers may be asked to serve as witnesses.
What to Do If You Were Hurt at Work by Someone Else’s Negligence
- Get medical care, and tell every provider that the injury happened at work.
- Report the injury to your employer in writing and start your workers’ comp claim (Form 801 through your employer; Form 827 through your doctor).
- Write down who was there: other companies’ crews, supervisors, and witnesses.
- If you can do so safely, photograph the scene, the equipment involved, and your injuries.
- Ask in writing that any defective tool or equipment be preserved.
- Don’t give a recorded statement to the other company’s insurance adjuster until you’ve talked to a lawyer.
- Talk to a lawyer who handles third-party workplace injury claims, ideally before the workers’ comp insurer sends an election demand.
Frequently Asked Questions
Can I sue for pain and suffering if I was hurt at work in Oregon?
Not through workers’ comp, and usually not against your employer. But if a third party caused your injury, you can seek pain and suffering damages in a claim against them.
I’m a temp worker. Can I sue the company I was placed with?
Usually not. In most situations, Oregon extends the employer’s immunity to the client companies of temporary staffing agencies and worker-leasing companies, also called professional employer organizations (ORS 656.018). There are major exceptions to this rule that a lawyer will need to explore with you. Still, other contractors on the site, equipment makers, and other third parties can still be responsible.
Can I sue a co-worker who caused my injury?
Generally no. Co-workers share the employer’s immunity, with narrow exceptions such as a willful and unprovoked attack.
What if my workers’ comp claim was denied?
A denied comp claim doesn’t prevent a third-party claim. That third-party claim must be filed within two years of the injury or 180 days after the denial becomes final, whichever is later, so get advice quickly.
How much is a third-party workplace injury claim worth?
It depends on how serious and permanent the injury is, your lost earnings, how clear the other party’s fault is, the insurance available, and the size of the workers’ comp lien. A lawyer can give you a realistic range once the medical picture is clearer.
Do I have to pay a lawyer up front?
No. I handle injury cases on a contingency fee, so you pay no attorney fee unless we recover money for you.
Talk to a Portland Third-Party Injury Lawyer
I’m Neal Weingart, and I represent people across Oregon who were hurt at work because of contractors, equipment makers, drivers, and property owners. If you were hurt on the job and someone other than your employer may be responsible, request a free case evaluation or call 503-379-9933. You can also learn more on our workplace accident page.