Smothers v. Gresham Transfer, Inc.

• Decision Date: 10 May 2001
• Court: Oregon Supreme Court
• Parties: Terry L. SMOTHERS, Petitioner on Review, v. GRESHAM TRANSFER, INC., an Oregon corporation, Respondent on Review.

23 P.3d 333

332 Or. 83

332 Ore. 83

Terry L. SMOTHERS, Petitioner on Review, v. GRESHAM TRANSFER, INC., an Oregon corporation, Respondent on Review.

(CC 9505-02969; CA A90805; SC S44512)

Supreme Court of Oregon.

Argued and Submitted November 8, 1999.

Decided May 10, 2001.

Michael A. Gilbertson, Ransom & Gilbertson, Portland, argued the cause and filed the briefs for petitioner on review.

Thomas W. Sondag, Lane Powell Spears Lubersky LLP, Portland, argued the cause and filed the brief for respondent on review.

Chess Trethewy, Garrett, Hemann, Robertson, Paulus, Jennings & Comstock, P.C., Salem, filed a brief on behalf of amicus curiae Associated Oregon Industries. With him on the brief was Paul J. Weddle, Salem.

Lawrence Baron, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association. With him on the brief was Daniel L. Keppler, Portland.

Kathryn H. Clarke, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association. With her on the brief were Maureen Leonard and Matthew Whitman, Portland.

David L. Runner, Salem, filed a brief on behalf of amicus curiae SAIF Corporation and Timber Products Company.

G. Kenneth Shiroishi, Dunn Carney Allen Higgins & Tongue, Portland, filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, KULONGOSKI, LEESON, and RIGGS, Justices.¹

LEESON, J.

Plaintiff filed this negligence action against defendant, his employer, after an administrative law judge (ALJ) of the Workers' Compensation Board upheld the insurer's denial of plaintiff's workers' compensation claim. The ALJ found that plaintiff's exposure to sulfuric, hydrochloric, and hydrofluoric acid mist and fumes at work was not the "major contributing cause" of plaintiff's respiratory condition and other ailments and, therefore, that plaintiff had not suffered a "compensable injury" under the workers' compensation statutes. Nonetheless, plaintiff believed that he had suffered an injury at work. Accordingly, he brought this action against his employer for negligence. The trial court dismissed plaintiff's complaint for failure to state a claim, ORCP 21 A(8), reasoning that ORS 656.018 (1995) makes workers' compensation law the "exclusive remedy" for work-related injuries, whether or not a claim is compensable. The Court of Appeals affirmed. Smothers v. Gresham Transfer, Inc., 149 Or.App. 49, 941 P.2d 1065 (1997). This court allowed review to address plaintiff's contention that he has been denied a remedy for the injuries that he suffered at work, in violation of the remedy clause in Article I, section 10, of the Oregon Constitution. For the reasons that follow, we hold that, if a workers' compensation claim alleging an injury to a right that is protected by the remedy clause is denied for failure to prove that the work-related incident giving rise to the claim was the major contributing cause of the injury or condition for which the worker seeks compensation, then the exclusive remedy provisions of ORS 656.018 (1995) are unconstitutional under the remedy clause. Applying that holding to the facts of this case, we reverse the decision of the Court of Appeals and the judgment of the trial court and remand the case to the trial court for further proceedings.

I. BACKGROUND

A. Facts

Plaintiff's job as a lube technician for defendant's trucking company required him to work in a pit more than four feet deep in a mechanics' shop where trucks were serviced. A truck-washing area was located outside the shop. Defendant's employees cleaned the exteriors of trucks by spraying them with a chemical mixture of diluted sulfuric acid and small amounts of hydrochloric and hydrofluoric acids. When the doors to the shop were open, acid mist and fumes from the truck-washing area drifted into the shop and down into the pit where plaintiff worked. For many months, plaintiff experienced headaches, as well as itching, burning, and watering eyes.

In January 1993, plaintiff contracted an upper respiratory infection that developed into pneumonia. He was hospitalized for five days, and he was unable to work for a month. Plaintiff returned to work, but he suffered another episode of pneumonia in February 1993. In November 1993, his physician diagnosed him with bronchitis. In December 1993, plaintiff's coworkers found him so ill that he was lying on the lunchroom floor. He was sent home, where he was bedridden with bacterial bronchitis for most of the holiday season.

Plaintiff returned to work in January 1994, but his physician expressed concern about his slow rate of recovery. Plaintiff called in sick several times between March and mid-June 1994. In June 1994, claimant stopped working for defendant because of his illness.

Thereafter, plaintiff filed a workers' compensation claim for his lung condition. Defendant's insurer denied plaintiff's claim. At a hearing before an ALJ, the issue was whether plaintiff had a compensable occupational disease. See ORS 656.802(1)(a) (defining "occupational disease"). After the hearing, the ALJ upheld the insurer's denial, because plaintiff had failed to prove that his work exposure was the major contributing cause of his lung disorder. See ORS 656.802(2)(a) ("The worker must prove that employment conditions were the major contributing cause of the disease.").²

B. Legal Context for Plaintiff's Negligence Action

In Errand v. Cascade Steel Rolling Mills, Inc., 320 Or. 509, 525, 888 P.2d 544 (1995), this court held that the exclusive remedy provisions in ORS 656.018 (1993) did not preclude workers whose workers' compensation claims had been denied from bringing civil actions against their employers in an effort to recover damages for their work-related injuries. In this case, after the ALJ had upheld the denial of plaintiff's workers' compensation claim, plaintiff, relying on Errand, filed this action against defendant. His complaint alleged that defendant's negligence in subjecting him to the acid mist and fumes at work had caused permanent injury to his lungs; skin blisters, pain and swelling in the joints of his hands, elbows and knees; degeneration of his toenails, fingernails, and teeth; and other physical ailments.

Meanwhile, in response to this court's decision in Errand, the 1995 Legislature amended ORS 656.018 and added subsection (6) to provide that workers' compensation is the exclusive remedy for work-related injuries, even if a claim is not compensable. Or. Laws 1995, ch. 332, § 5. As amended, ORS 656.018 (1995) provides, in part:

"(1)(a) The liability of every employer who satisfies the duty required by ORS 656.017(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 * * *.

"(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 to 654.335 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.

"* * * * *

"(6) 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."

(Emphasis added.)³ Those amendments took effect on June 7, 1995, after plaintiff had filed his complaint, and they apply to "all claims or causes of action existing or arising on or after the effective date of this Act, regardless of the date of injury or the date a claim is presented[.]" Or. Laws 1995, ch. 332, § 66(1).

Relying on the "exclusive remedy" provisions of ORS 656.018 (1995), defendant moved to dismiss plaintiff's complaint for failure to state a claim. The trial court granted that motion.

On appeal to the Court of Appeals, plaintiff argued that, although he could not prove that the acid fumes and mist that he had inhaled at work were the major contributing cause of his lung condition and other ailments, he nonetheless had been injured at work. Before the 1995 amendments to ORS 656.018, he noted, workers' compensation was the exclusive remedy for only compensable work-related injuries. The 1995 amendments to ORS 656.018 made workers' compensation the exclusive remedy for all work-related injuries, whether or not a claim is compensable. Those amendments, plaintiff argued, left him with no remedy for the injuries that he had suffered at work, in violation of the remedy clause of Article I, section 10, which guarantees every person a remedy by due course of law for injury to person, property, or reputation. The Court of Appeals rejected plaintiff's argument. Smothers, 149 Or. App. at 54,941 P.2d 1065.

C. Parties' Arguments

Before this court, plaintiff repeats his contention that, under the mandate of the remedy clause of Article I, section 10, the legislature may not deprive a person of a remedy for an injury to person, property, or reputation that was recognized at common law, unless the legislature makes available an equivalent remedy. Defendant's response to plaintiff's constitutional argument is twofold. First, defendant contends that the legislature has plenary authority to define what constitutes a cognizable injury to person, property, or reputation. Second, defendant contends that the remedy clause does not limit the legislature's power to modify any common-law or statutory remedy.

In making...