Ore. Supreme Ct. Refuses to Expand Exception to Exclusive Remedy

A law passed by the state legislature in 2001 to address a court decision that created an exception to workers’ compensation exclusive remedy did not create a new exception, the Oregon Supreme Court ruled.

In a unanimous decision Friday, the high court affirmed decisions by the Court of Appeals and the circuit court that found a worker could not pursue a civil complaint against his employer on grounds that some of the disabling conditions caused by his work injury were not compensable. The court rejected the worker’s argument that he could pursue a negligence lawsuit against his employer because work exposure was determined not to be a major contributing cause of his disability.

The opinion says”the legislature intended to establish procedural requirements for claims that it then believed were constitutionally required under our case law, but that it did not intend to create its own substantive exception applicable to cases such as plaintiff’s.”

Danny Bundy filed a lawsuit against his employer, NuStar GP, after he was exposed to dangerous levels of diesel, gasoline and ethanol fumes while he was assigned to monitor the air quality from malfunctioning machinery while employed as a terminal operator.

NuStar accepted a claim for “nondisabling exposure” the vapors, but denied a “consequential condition claim” for “somatization disorders,” which is essentially a mental disorder that causes pain despite the lack of any physical injury. The Workers’ Compensation Board issued a final order determining that the disorders were not compensable because Bundy failed to show that his work-related injury was a major contributing cause.

Generally, workers’ compensation is considered the exclusive remedy for workers who are injured on the job. In 2001, however, the Oregon Supreme Court ruled in Smothers v. Gresham Transfer that injured workers who receive no compensation benefits because work was not a major contributing cause of their injury have a constitutional right to pursue a civil action against their employers if their work contributed to the disorder in some degree.

The state legislature reacted by passing Oregon Revised Statute 656.019, which established a procedure for workers to pursue a civil action after their workers’ compensation claims are rejected on major contributing cause grounds.

After the Workers’ Compensation Board ruled that Bundy’s somatization disorders were not compensible, he filed a lawsuit arguing that 656.019 creates an exemption to exclusive remedy that allows negligence actions for any condition related to a work injury that is deemed noncompensablebecause work was not shown to be the major contributing cause.

The circuit court and Court of Appeals dismissed the lawsuit because Bundy’s work injury had been accepted. ORG 656.019 did not create a new exception from exclusive remedy, it just created a process for workers to pursue when their claims are rejected because work was determined not to be a contributing cause.

Bundy appealed, arguing that passage of 656.019 created a new right to compensation for any conditions that are not compensated through workers’ compensation.

But the Supreme Court said the legislative history shows that state lawmakers did not intend to expand the rights of workers to pursue compensation for their injuries. Proponents of the bill that was enacted into law as 656.019 repeatedly said they sought to “fix Smothers,” showing that they were concerned the ruling would disturb the delicate balance between a workers right to seek redress for injury and employers’ interest in avoiding expensive litigation.

The law established that a worker cannot pursue a civil claim until after a final order is issued rejecting his or her workers’ compensation claim, the court said. It did not create a new right for workers to pursue compensation.