Errand v. Cascade Steel Rolling Mills, Inc.

Argued 2, 1994, September and submitted Appeals decision of the Court of judgment reversed; of the circuit court case remanded to the circuit court for further 2, 1995 proceedings February

Edwin ERRAND, M. Review, Petitioner on CASCADE STEEL MILLS, INC., ROLLING

an Oregon corporation, Respondent on Review.

(CC S41195) CV91283; CA A80487; SC Keizer, Stevens, Stevens, Callahan C. and Sharon petition cause and filed the petitioner argued review. Williams, Atwood, & Atwood, of Peck Zografos, W.

Ronald on review. With Portland, respondent the cause for argued Brad G. Garber. him on the briefs was Bruun, Wollheim, Wollheim, Welch, Green & Robert brief on behalf of amici curiae Oregon Trial Portland, filed a Oregon Association Lawyers Attorneys. &.Grey, Jones Sather, Boley L. of Stoel Rives

Deborah on behalf of amicus curiae Self- Portland, Oregon filed a brief Insured Association. Roberts, Reinisch, MacKenzie, Healey Keene, P.

Jerald of amici a brief on behalf Portland, filed P.C., Wilson, & Restaurant Oregon curiae Industries Oregon Associated Association. HOOMISSEN, J.

VAN in which filed an opinion, J., dissented Graber, J., Carson, joined. C. HOOMISSEN,

VAN J. a complaint Plaintiff filed in circuit court defendant, his and common law employer, alleging losses, for economic seeking damages claims and negligence bills, and impairment and future medical lost of past wages, capacity. The trial court defendant’s motion earning granted for on the that defendant summary judgment ground and that liability plaintiffs remedy immune from exclusive Law. ORS 656.018.1 The under Rolling affirmed. Errand Cascade Steel of Appeals Court (1994). Mills, Inc., For 450, 454-55, App follow, we the reasons that reverse.

Plaintiff, manufacturing a worker at defendant’s para- had a condition chronic infectious plant, preexisting work not caused his current by nasal sinusitis that was condition, That preexisting or environment. experiences irritation, airway to experience plaintiff which predisposes inhalation substances due to his became symptomatic his treatment for sought symptoms Plaintiff workplace. The insurer denied claim. filed a workers’ condition claim, appear your “it does not explaining of your out and in the course or arose by was worsened disease.” occupational or by accident employment, either denial. Plaintiff appealed part: provides in ORS 656.018 by “(l)(a) duty required every who satisfies the 656.017(1) liability arising place out of all other is exclusive and workers, subject workers’ beneficiaries and injuries account damages anyone entitled to recover otherwise therefrom, including specifically claims resulting claims

such damages persons are from whom indemnity third asserted contribution or injuries, specifically provided otherwise except as sought on such account chapter. worker they might ORS 654.305 extent the worker <<* * “(2) for the * * otherwise compensable ^[*] rights to 654.335 is given expressly have of the worker to a or other for such subject given under this injuries against the worker’s laws, for an the worker common right injury.” chapter are in lieu of and the under this law or beneficiaries of statute, except chapter employer under any remedies to the bring subject to suit the complying subject was a and defendant plaintiff was worker undisputed a It purposes of 656.018. employer for ORS A referee defined the issue as plaintiffs whether work exposure caused or worsened his chronic infectious paranasal sinusitis or “caused a of complex symptoms be in recognized would workers’ compensation law as a dis- ease.” After noting plaintiffs sinusitis him predisposed to irritation, experience airway the referee found:

“Claimant does not have airway a reactive occupa- disease or tional asthma. He does have transient irritation upper respiratory paranasal tract and sinuses as a result of inhala- of tion substances found in workplace. his “Claimant’s exposure major work is not the cause his paranasal chronic infectious sinusitis.”2 656.005(7) provides part: “(a) ‘compensable injury’ injury, A injury anis accidental or accidental to prosthetic appliances, arising employment requiring out of and in the course resulting disability death; or injury medical services or is accidental if accident, means, result is an whether or not due to accidental if it is established by objective supported by subject medical findings, following evidence to the limitations: “ (A) consequence No or disease is as a aof compensable injury major contributing unless the is the cause of the consequential condition. “(B) compensable injury If preexisting combines with a disease or condi- disability prolong treatment, or tion cause or a need for the resultant compensable only compensable injury condition is extent major contributing disability remains the cause of the or need for treatment.

“(b) injury’ ‘Compensable not include: does “(A) Injury any participant active in assaults or which are not combats job assignment and which amount to a deviation from custom- connected ary duties; “(B) Injury engaging performing, while in or incurred or as the result of engaging performing, any primarily in or recreational social or activities personal pleasure; worker’s or “(C) major Injury contributing by cause of which is be demonstrated to injured convincing consumption clear evidence worker’s alcoholic substance, beverages any consumption or the unlawful controlled unless ’’ permitted, encouraged knowledge consumption. or had actual of such provides parallel provisions regarding “occupational 656.802 disease”: “(1) chapter, ‘occupational any or As used disease’ means disease arising employment by out of and in the or infection course caused substances ordinarily employee subjected exposed than activities to which an during is not or other therein, period employment regular requires actual and which * * disability medical services or results or death *. * * * * “(2) major prove employment The worker must conditions were the worsening. contributing or disease its Existence of disease cause by worsening preexisting disease must be established medical evidence of a objective findings.” supported upheld The referee the insurer’s denial of the In its claim. Compensation adopted the order, final referee’s the Workers’ Board plaintiff order held that had not established compensable, his was condition was because work not judicial “major of Plaintiff did not seek cause” his condition. review the Board’s order. brought then this action in circuit court

Plaintiff exposure employer, to his based on inhalation workplace, alleging particulates in and common summary judgment, argu- for law Defendant moved claims. plaintiffs remedy ing that exclusive is under the Workers’ Compensation 656.018, that, under ORS defendant Law liability. granted defendant’s is The trial court immune holding: Appeals affirmed, motion. The Court here, if not involved the Workers’ exceptions “With certain is and if the has Compensation applicable, Act requirements of obligation comply with the satisfied its to Act, liability the worker for the employer’s then the to is injury exclusively condition worker’s work-related Act, remedy is the exclusive for and the Act also under the quid quo injured pro That is one part worker. system; part the other compensation underlies our workers’ for assume work-related requires fault. injuries without that are limited to claims the Act is not exclusivity

“The v. Cas- compensable.” Errand determined to be ultimately Inc., Mills, at 453-54 App supra, Rolling cade Steel original). (emphasis exclusivity provi- argues review that the

Plaintiff although apply his because, not do of ORS 656.018 sions by symptoms respiratory in and were caused occurred “compensable injury,” as workplace, not have he did therefore, he and, Law in the Workers’ defined compensation See ORS condition. for his entitled not injury”); (defining provides: ORS 656.804 656.802, disease, is considered an defined in ORS occupational “An except as chapter, under employers have come employees who to 656.807.” provided in ORS 656.802 otherwise 656.018(1) (limiting to that complying employer’s liability out “arising compensable injuries”). this, From plaintiff further argues fact that he was undisputed entitled under the Workers’ Law demonstrates that his did not fall within the exclusivity of ORS That is, 656.018. plaintiff even if arguing subject he is a worker and defendant is a complying employer, ORS 656.018 not apply does in this case because, law, as a matter of his condition is not compensable.

Defendant that a responds mechanical application definition statutory to ORS “compensable injury” 656.018 would defeat the legislative intent behind the exclu- sivity allowing anyone whose claim found to be to sue the in compensable employer a civil action. Defendant asks court to ORS as 656.018 exclu- interpret and in sive all other that an place either liability has or have if the condition in might employee’s question “work-related” or at “occurring work.” We first turn to the text of ORS 656.018 and to the definition of “compensable injury,” 656.005(7)(a), in ORS the context of the Workers’ Law, discern whether the legislature intended a civil claim such as plaintiffs be barred. See Industries, PGE v. Bureau Labor and 317 Or 606, (1993) (to P2d discern intent of court first legislature, statute). examines text and context of 656.018(1) ORS provides complying in employer’s “is exclusive all other liability place arising out of compensable injuries to the subject * * 656.018(2) provides workers ORS likewise * * * “rights to a given subject inju- worker for compensable ries under this in lieu chapter they are remedies any might otherwise have for such the worker’s laws, under ORS 654.305 to 654.335 or other or in the statute, [except common law as otherwise provided added.) Compensation Law].” (Emphasis that, 656.003 where the provides “[e]xcept ORS in this given chap- context otherwise definitions requires, ” We turn to issue whether govern ter its construction. to ORS injury of compensable applies definition 656.005(7)(a)(A), “[n]o ORS wording 656.018. consequence injury pensable of a com- or disease is 656.005(7)(a)(B), injury,” language and the of ORS may “compensable only that certain conditions be major extent the is and remains the contributing provide, inju- cause,” essence, in that certain although may conditions, ries, diseases, work, or related to “compensable” circumstances, i.e., under certain not be “major contributing cause” criteria in unless found sub- (B) (A) paragraph are met.3 foregoing description From the of the text of the 656.005(7)(a), injury” it definition of appears using to us that the was the word “com- meanings. convey part pensable” different main 656.005(7)(a), “compensable injury” referred to ORS may simply injury” “arising an “accidental out of and in

be employment.” However, the course of the limitations set (A) (B) subparagraphs of ORS forth in injury” that one who suffers an “accidental make clear employment” “arising of and in the course of as described out (a) may paragraph that is not nevertheless have an “major contributing “compensable,” test unless the cause” 656.005(7)(a)(A), (B); see also SAIF has been met. ORS (1993) (“compensable 1, 8-9, Drews, 318 encompasses application of the criteria found 656.005(7)(a), including found sub- the limitations (A) (B) making paragraphs in initial statute, of that and compensability). determination of question intended is whether the exclusivity provision defini to refer to some of ORS 656.018 injury in ORS that set forth other than tion of 3 (1993), Drews, 1, 8, stated: P2d 254 this court In SAIF v. Or 860 “ application in ORS injury’ encompasses of the criteria found ‘Compensable an (A) (B) 656.005(7)(a), subparagraphs of that in and including limitations found compensability.” here statute, Defendant making in an initial determination 656.018(1), ‘compensable’ interpret in ORS argues the word “this court should ” Drews, 8-9, supra, at to mean ‘accidental.’ v. recently SAIF it did as Drews, not find ruling in Drews. In this court did court’s misreads this Defendant interchangeable used in as “compensable” were and “accidental” the words “compen 656.005(7)(a). applying definition of setting In the test for forth ORS injury in Drews described 656.308, this court of ORS in the context sable However, injury.” part as an “accidental of ORS in the first discussed was injury” so described the “accidental to make clear that went on this court 656.005(7)(a)(A) (B), applicable, if limitations unless compensable, ORS Id. at 8-9. were satisfied. 656.005(7)(a), (A) qualified by subparagraphs and limited (B). Hyster and Co., v. 298, 309-10 295 Or 10,& n Cf.Dethlefs (1983) (in cases decided before the addition of (A) (B) 656.005(7) subparagraphs (a), to ORS court indi legislative cated Compensation intent behind Workers’ litigation grant Law was to avoid common law employers immunity against liability and to compensable inju

for recognized arguable ries, but also that it “is that an action for damages may be maintained ”). ‘compensable’ worker if a disease or is not “compensable injury”

The definition of found in 656.005(7)(a), ORS which includes the limitations found in (A) subparagraphs (B),governs statutory construction of Compensation term as used in the Workers’ Law “[ejxcept requires.” where the context otherwise ORS 656.003; see SAIF, also 225, 232-33, Astleford (1994) (under given statutory P2d 1329 656.003, ORS apply definition does not when the context, which includes purpose compensation the structure and of the workers’ system whole, as a demonstrates that the use ofthe definition inappropriate); would be PGE v. Bureau Labor and Indus- (use supra, tries, throughout 317 Or at 611 of same term generally statute indicates that the term has the same mean- statute). ing throughout the plaintiffs compensation case, workers’ the ref compensation plaintiffs symptoms

eree denied because were major contributing not the cause of his condition. Under ORS (occu (defining disease), occupational 656.802 ORS 656.804 pational “injury” purposes disease considered of Workers’ 656.005(7)(a) (as Law), interpreted by ORS Drews), this court in and the facts as found the referee and adopted by plaintiff Board, it has been established that did right compensated not have the to be under the Workers’ suffered, Law for the he as that term is 656.005(7)(a), light defined and used in “major contributing cause” limitations found 656.005(7)(a)(A) (B). exclusivity provision of ORS specifies employers 656.018 that the under the place scheme “is exclusive and in liability arising compensable injuries all other out of added). 656.018(l)(a) subject (emphasis workers[.]” ORS case, it was established plaintiffs had no liability that compensate plaintiff By under the Workers’ Law. for an providing freedom from “other” be inferred employer’s liability, may exist, that there must as a exclusivity provision freedom, for that some actual under the predicate Law before the exclusivity provision ” may Thus, from “all other protect liability. text of the exclusivity provision, specifically its use of the term further “liability,” supports conclusion that the statu- definition of tory “compensable injury” applies to ORS 656.018.

We turn to the of what the definition of question means. The dissent relies on the fact “compensable injury” that are excluded under ORS specific types quoted supra 656.005(7)(b), try at note to demonstrate 656.005(7)(a)’s that the context that ORS definition requires covers work-related “compensable injury” every injury 656.005(7)(b) that ORS does not exclude. dissent argues, effect, in the definition of “compensable injury” stops disability after the words “or or death” ORS resulting the text estab 656.005(7)(a), merely and that the balance of lishes conditions that lead to may non-payment compensa is a We compensable injury. disagree. tion for what otherwise that unless suggesting the extent the dissent is To “not is codified as a something specifically it therefore is 656.005(7)(b), ORS for injury” purposes exclusivity provision, purposes demonstrate this is the context does not certainly The entire text of the statutes.4 construction only permissible is the definition of legislature’s “compensable of the statute includes the limitations subpara injury.” definition (B). (A) is, contributing unless the major That graphs (sub- satisfied, conditions consequential cause standard (B)) (A)) (subparagraph and resultant conditions paragraph ‘ legislature, injuries.” When ‘compensable are not disease is 656.005(7)(a)(A), “[n]o declares (b) part of the context of ORS Although are both ORS 656.005(a) 656.018, helpful of what ORS 656.018 is more to a determination 656.005(7)(b) is, injury” means, “compensable while ORS what a because it states not, under the described only at least states what conditions. condition, compli- absent consequential as a compensable” standard, it is cause major contributing proof ance with the fur- merely announcing defining compensable injury, will be under which a injury ther conditions compensable text, not one of subsection only part, We the entire apply paid. (7)(a) the relevant definition. that, legislature if the intended the says

The dissent cause” limitations to to contributing apply “compen- “major as used in the would exclusivity provision, sable injuries” 656.005(7)(b) than limitations in ORS rather have those put (B). 656.005(7)(qXA) The context does not neces- in and 656.005(7)(b) is of the part to this conclusion. ORS sarily lead 656.005(7)(a). The exclusions context of ORS 656.005(7)(a)(A) 656.005(7)(b) do not demonstrate that ORS (B) “a subclass merely of‘compensable are limitations on benefits,” workers will not receive as the injuries’ for which 320 Or at 528. The conditions described dissent asserts. (7)(a) (A) (B) if injuries are compensable subparagraphs injury, cause is a major contributing their (7)(b) are not conditions described in subsection whereas the link to the existence of a causal compensable injuries despite (7)(a). why That distinction explains an described in which “conse- defined the conditions under legislature are compensable injuries or “resultant” conditions quential” 656.005(7)(a)(A) rather than in the context of (B), in ORS from “compensable the conditions excluded categorically 656.005(7)(b). under ORS view, in our explains why, discussion foregoing of the immunity pro- about plaintiffs argument scope than more to be correct appears likely vided in ORS 656.018 however, not to say, of defendant. That is does the argument is not of the relevant statutes that defendant’s construction con- that, the text and although conclude also. We plausible the conclusion tend to support text of ORS 656.018 of that exclusivity provision not intend the did been deter- has action where statute to bar a civil a “major it was not because be compensable mined not to context of condition, the text and of a cause” contributing therefore turn issue. We not settle the do relevant statutes and ORS ORS 656.018 history the legislative discerning legislature. to aid in the intent of the PGE v. supra, Industries, Bureau Labor and 317 Or at 610. exclusivity provision of ORS 656.018 was essentially present amended to its form in Or Laws 1977. See § legislative history 1977, ch 1. We have found no that the amendments alter indicates were intended to scope exclusivity provision any way relevant to provisions the issue at hand. Before the relevant were essentially they the same form as when were enacted in major 1965, when a overhaul of the Workers’ moving compulsory undertaken, Law from elective was compensation coverage: duty required by who satisfies the sub- “Every employer (1) 5 of this 1965 Act is relieved of all other section of section workmen, subject his anyone otherwise entitled to workmen’s beneficiaries damages from the on account of such recover in otherwise ORS injuries, except specifically provided 6(1). 1965, 285, § Or Laws ch 656.002 to 656.590.” Compensation Law also introduced for The 1965 Workers’ statutory “compensable injury”: the time a definition of first or acci- injury’ injury, “A is an accidental ‘compensable arising out of and injury prosthetic appliances, dental to services or employment requiring of medical the course death; if the an is accidental resulting disability or accident, accidental whether or not due to result 1(21). 1965, 285, § Or Laws ch means.” history legislative enact of the 1965 examined the We have exclusivity provision amendments to the ments and the later and the definition injury” “compensable 1990, before of light nothing at hand. on the issue that sheds have found Cope 232, 236, Co., Ins. WestAmerican However, (1990), amend before the 1990 a case decided 656.005(7)(a), indicated that the court ments to ORS injury” “compensable found in ORS of definition 656.005(7)(a) applied the exclu used in term as to that 656.018(1)(a). Stephens v. Bohl sivity provision See of ORS (1992) (this court’s n P2d 600 6, 838 344, man, 314 part if statute as interpretation of the becomes a of a statute enactment). time of its it at the written into the is whether question “compensable its definition of intended amended 656.005(7)(a), in the current version found injury,” If the of ORS 656.018. exclusivity provisions to would apply definition “compensable intended the new the legislature apply then would exclusivity provision the apply, injury” ’ ‘ out the of and in course “arising when the ‘accidental injury’ “major was cause” contributing the employment” medical ser- requiring condition consequential resulting (B). 656.005(7)(a)(A), vices. ORS history turn to the 1990 amendments

We Law, in which the definition of “major was amended to include the cause” limitations.5 It is clear from the text and contributing 1990 amendments those history legislative to have the effect of reducing were intended changes inju- could recover for number of workers who work-related system. ries Or Laws under See Sess.) § 3 2, (Spec. (changing regard- ch requirements E, Exhibit ing findings compensable injuries); objective Joint on Workers’ Special (fiscal Compensation, Interim Committee May 5, showing savings expected cost analysis Joint number of reducing injuries); May Committee on Workers’ Special Compensation, Interim 7, Side B from various witnesses 1990, Tape (testimony compensable injuries). fewer regarding 1990 amendments legislative histoiy definition amendments committee joint reviewing reveals that in compen- of the change considered the potential impact Compen- sability exclusivity provision sation Law: WILLIAMSON, LAWYERS OREGON TRIAL CHARLES “* * * a may overlooking you I think be

ASSOCIATION: a having break or where worker is a coffee situation here by a loading gets and he run over on the dock cigarette break injured Any that is negligence. worker or some other forklift disease) (occupational were amended provisions parallel of ORS 656.802 occupational contributing for “major cause” standard at the time to state same Sess.). 2, § (Spec. ch Or Laws diseases. another, through the fault of going compen- it’s not to be if sable, going against employer, to have a lawsuit he’s that was And so to be negligent. you’re going the employee taking comp system putting cases out of the workers’ just system. completely, them into the court Not but when fault, else’s will take those cases out of the you it’s someone comp system.” workers’ — example

REP. EDMUNDSON: “The let’s use for was, If major cause test. work at something happened if condition, material in an but not the work was a factor factor, be a claim under the major would not it wouldn’t be covered under workers’ major cause test. So at work was laws. But if that material contribution comp act, failing negligent employer a coworker or the some floor, factory the oil on the then that negligence up clean for a lawsuit grounds would be the negligent care and control of his work- premises liability or recently ruled real that even Appeals force. The Court of work, at an at something happens injury happens though law, work, workers’ then all comp if it’s not covered under are available because there is no exclu- other civil remedies the act. So protection sive under every time we make work- exposing we are compensable, related condition not Special Interim Committee Joint liability.” civil employer to 3, 1990, B Tape Side Compensation, May on Workers’ added). (emphasis a* * * * the earlier assertion

REP. EDMUNDSON: “How about compen- not as a qualify condition does on-the-job anif liability claim, subject to would then be sable civil action?” KEENE, COMPENSATION WORKERS’ JERRY because “I to see that case need DEFENSE ATTORNEYS: in fact contrary, the law is to the understanding my see I need to contrary, so would cases to the I’ve won a few yet.” that case I haven’t seen talking about. you’re what “Well, Jerry, is my point, principal EDMUNDSON: REP. if comp under the laws ” “ - - civil

KEENE: “ — then, there agree would EDMUNDSON: you REP. ” —laws comp under the remedy no exclusive ” “ - - No, not true KEENE: that’s is, would liability EDMUNDSON: REP. therefore litigated any type injury.” be other have to so work- remedy applies long “Exclusive as it is KEENE: within, for we’ve had where an related, or decisions example, major disease not to be the contrib- proven was occupational work-related, but was still it fell outside uting partially cause liability liability applied. because exclusive And whether civil not, agree I good saying. result I’m not But don’t that’s of the law.” with assessment of that blanket statement your Chair, “Web, I, Chair, Mr. Madame REP. EDMUNDSON: [ORS I 656.018], to direct Keene to section 18 of the act just want Mr. who says liability any employer which the is duty place exclusive and all other satisfies arising subject There- compensable injuries out workers. fore, yet subject is but to a not is if worker, I submit that section 18 not that protect would does liability.” in, they “In the cases I’ve been involved inter- KEENE: preted as potentially compensable.” that “Web, clearly compen- if it was REP. EDMUNDSON: sable, your change?” would answer litigated

KEENE: “Once it and turned out not to be? was my that’s happened No. Because what case.” “Chairman, I SEN. SHOEMAKER: want to return Representative posed that Mannix to an earlier hypothetical ”— and I believe witness Interim “They didn’t Joint appeal, way.” KEENE: 3,1990, May on Compensation, Special Committee added). (emphasis B Tape Side indicates legislative history surprisingly, Not bar, claimant’s Williamson, a witness on behalf present in the arguing what essentially argued plaintiff behalf the insurance Keene, a witness case, and arguing what defendant bar, essentially argued defense above also However, exchanges quoted case. present legisla- Edmundson, one of Representative indicate that as the definition members, just tive believed committee exclusivity narrowed, so also of “compensable apply definition would narrowed, the new because in ORS 656.018. as used injuries” to the term During the debate, House floor Representative Edmundson made similar statements:

“[Speaking of major contributing cause limitation] That means that if an older worker for example has a heart attack and major its not the cause they get don’t cover- age, die, they may and their heirs family or their could have a lawsuit the employer that is now presently is not allowed Oregon under law. The federal courts have made it — — pretty clear that even something happens that at work if it’s not compensable under the workers’ laws, the comp employee can sue the employer. IAnd don’t think that business really has thought this one through. I predict, and as all you know I practice law, I predict we’re going to have some lawsuits going that are surprise some employers they when they find out don’t have insurance coverage So, for them. that’s the that, downside on I — don’t think I that know some insurance people are a little ’’ concerned about that Debate, too. House 7,1990, Floor May 2, Tape Side A. Moreover, during debate, floor Representative Dwyer commented:

“Representative Edmundson said it may subject a small employer, or an employer, action, to tort and I’m inclined to agree you can’t conceivably have an exclusive remedy that is no remedy at all and claim refuge Id., Tape under it.” 3, Side A. No other voiced legislator disagreement with Representative Edmundson’s and Representative Dwyer’s conclusions dur- debate, floor and ing neither the amended definition of “com- pensable injury” nor the exclusivity of ORS 656.018(1) were further amended to address the issue.

We conclude that this legislative history supports conclusion that the legislature intended the definition of as amended in “compensable 1990 to in the injury” apply 656.018(1). context of the exclusivity provision of ORS courts have Oregon long recognized trade-off, involves a compensation system offering certain well advantages, as to both disadvantages, e.g., See, Portland, Hale v. Port of employers employees. (1989) (“The 308 Or P2d 521-22, 783 scheme — some members of both those penalized camps plaintiffs who could prove actionable of their negligence employers, so obtain damages beyond their medical expenses, and other employers who could defeat liability either because had they been negligent or because could they show the worker was guilty contributory negligence or assumption risk.”); McGarrah v. SAIF, (1983) 160, 675 P2d 159 (“Workers’ compensation systems are founded on political com- promise.”). the 1990 Undoubtedly, legislature changed nature of the trade-off when it narrowed the definition of injury” ORS to reduce the number of injuries that would be compensated under Workers’ Compensation Law. The history available to us does not, however, justify a conclusion that the 1990 intended that change to work solely in favor of employers, thus relieving employers of liability while keeping workers’ end of the bargain unchanged.6 sum, we conclude that the 1990 legislature intended

the present definition of “compensable ORS 656.005(7)(a) to apply 656.018, because that result consistent with the text and context of those statutes, because the context does not otherwise require, 656.003, because the legislative history supports that Thus, conclusion. we conclude that the exclusivity provision of ORS 656.018 does not provide defendant with immunity from civil plaintiffs here, claims because plaintiff did not have a “compensable within injury” the of ORS meaning and ORS 656.018(1).7

The decision of the Court of is Appeals reversed. The of the circuit judgment court is reversed. The case is remanded to the circuit court for further proceedings. statutory grounds, Because we decide this case on we need not consider

plaintiffs arguments I, Oregon based on Article section of the Constitution (“every remedy by man shall have person, due course of law for done in his property, reputation”). or expresses interpreting exclusivity provision Defendant concern that the in a preclude noncompensable manner that does not civil actions for conditions could injured bypass compensation system lead entirely workers to the in order to juries that, legislature sought provide take their cases before had the to workers Law, proceed Compensation with such an election to outside the Workers’ such a policy Nothing choice would be evident from the law itself. our decision here supports may bypass a conclusion that workers elect to the workers’ system. case, procedural posture In view of the of this we do not decide whether a plaintiffs compensable injury prerequi Board determination that claim is not a is a site to this action in circuit court. dissenting.

GRABER, J., my majority view, I dissent. In misreads the doing applicable and, so, statutes undermines some of purposes Law. fundamental exclusivity application of the This case involves an 656.018, Law, of the Workers’ ORS part: provides which “ (1)(a) liability of every employer The who satisfies 656.017(1)

duty by and in required place ORS exclusive injuries arising all other out of subject workers, anyone oth- the workers’ beneficiaries damages employer entitled recover from the on erwise therefrom, injuries resulting spe- account of such or claims indemnity cifically including claims for contribution damages sought third from whom are persons asserted injuries, specifically provided oth- except account of such erwise this chapter. #

ti* “(2) subject and the bene- rights given to a worker subject worker for under ficiaries of might otherwise any they are in lieu of remedies chapter under injuries against employer for such the worker’s have laws, law or other common 654.305 to 654.335 or given extent worker statute, expressly except against suit right bring this chapter under injury.” for an worker exclusivity provision argues plaintiff does that the review, On although because, action his not bar a civil scope his symptoms plaintiffs the course and arose in plaintiff employment, have a does not 656.005(7)(a). majority agrees with in ORS as defined argument. plaintiffs wrong. majority Plaintiff has are

Plaintiff and the meaning “compensable injury” 656.005- within the carry proving (7)(a), though burden of did the he even majority blur Plaintiff receive benefits. that he should (the scope injuries” “compensable the distinction between (enti- Law) “compensation” the Workers’ benefits). statu- been has That distinction tlement to exclusivity inception now, the tory and, until from its scheme “compensable inju- has been construed to cover all payment ries,” even those do not result “compensation.” construing

This court has established a method of applies provisions question. statutes, which Our overriding legislature. aim is to discern the intent of the PGE v. Bureau Industries, Labor and 606, 317 Or 610, 859 P2d (1993). First, we examine the text and context of the reading statute. Id. at 610-11. When the text of a statute, principles apply, including principle certain that the text prior interpretation means what this court’s thereof states. Stephens v. Bohlman, 350 n (1992). The context of a statute includes its historical devel opment. (1994). Krieger Just, 328, 336, 876 P2d 754 meaning If the of a statute is unclear from the text and legislative history context, the court looks to if then, meaning “general unclear, still is maxims of legislature’s construction,” to determine PGE, intent. 317 Or at 611-12. present,

At defines injury.” provides, It as relevant here:

“A ‘compensable injury’ is an injury, accidental or acci- injury dental prosthetic appliances, arising out of and in the course of employment requiring medical services or resulting death; in disability injury is accidental if the accident, result is an means, whether or not due to accidental if it evidence, is established by medical supported by objective findings, subject to the following limitations:

“(A) injury No or disease is compensable as a conse- quence compensable injury of a unless compensable injury major is the contributing cause of consequential condition.

“(B) If compensable injury preexist- combines with a ing disease or condition prolong disability to cause or or a treatment, need for resultant condition is only to the extent the and remains the major contributing disability cause of the or need treatment.” 656.005(7)(a) supplies two-step analysis. step is to decide whether a worker’s falls within

first

528 — injury i.e., is a “com- definition whether the worker’s the injury “compensable pensable injury.” injury,” the workers’ is a If step is to take into consideration then the second (B). (A) subpara- subparagraphs and Those “limitations” injuries” “compensable graphs for a subclass of describe subpara- effect, In will not receive benefits. which workers graphs (B) (A) “compen- say a that, even if a worker has and “compensable prove injury,” that the the worker must sable compensated; establish the worker must should be injury compensable in fact caused the harm com- that the injury for plained Either the worker has of. benefits, or the worker has can receive which the worker injury can receive no which the worker every way, that is “an acci- however, Either benefits. * * * employ- arising in the course of out of and dental injury,” “compensable no matter how is a ment” (A) (B) ability subparagraphs affect the workers’ and benefits.1 collect 656.005(7)(a) reading foregoing is based of ORS

The logic paragraph. plain grammar, structure, and on the paragraph reading con- clearer when is even That 656.005(7)(b) 656.005(7)(b). provides: ORS trasted to ORS does not include: injury’ ‘Compensable “ “(A) or assaults participant active Injury any and job assignment to the are not connected which combats duties; customary from to a deviation which amount “(B) engaging performing, in or Injury incurred while any recre- performing, in or engaging result of or as the personal for the worker’s primarily activities or social ational pleasure; 1 limited definition recognized a more court majority argues that this The (1993). at 1, 8, 320 Or Drews, P2d 254 injury” in SAIF v. “compensable First, majority takes wrong, reasons. majority for three n 3. cautionary sentence majority omits the quotes of context. out that it sentence presented: “As we question narrow discussion the court’s limited as 656.308(1) they in this case together, work interpret and relatedly, the issue Second, did not decide Drews Drews, Or at 8. follows!.]” question that Drews, with the faced today. court was not decide that we must injuries.” range “compensable here, defining entire

we consider majority opinion, the Drews, theof in the remainder Third, in its discussion “compensable concepts of interchanging distinct freely the mistake makes “compensated.” “compensation,” and “compensable,” injury,” “(C) Injury major cause of which is contributing convincing demonstrated to be clear and evidence the injured consumption beverages worker’s of alcoholic or the substance, unlawful consumption any controlled unless employer permitted, encouraged knowledge or had actual added.) consumption.” of such (Emphasis (b) is, That contains a list of exclusions paragraph contrast, “compensable injury.” By definition of (A) (B) 656.005(7)(a), are worded as subparagraphs “limitations” what kinds of are “compensable injuries” (that is, the worker to receive bene- “compensable” entitling fits). (A) (B) limit Subparagraphs injuries” may that be to those “compensated” injuries that the worker can under a prove standard. specified They not, however, are excluded from the definition of “com- For the pensable injury.” of the Workers’ purposes Compen- sation Law, has legislature defined what is a 656.005(7)(a) in “compensable injury” ORS and what is not 656.005(7)(b). “compensable injury” in When uses in different terms different sections statute, of the same it is deemed to do so and we intentionally, give effect to the PGE, difference. See (statinggeneral Orat611 principle). Here, the has failed to majority effect to the distinction give between exclusions from the definition of “compensable (ORS 656.005(7)(b)) and limitations on benefits pay- (ORS 656.005(7)(a)(A) able for a and “compensable injury” (B)).

In short, ORS that simply recognizes some “compensable injuries” will not fact be compensated. We next must examine ORS 656.018. The pertinent part ORS 656.018 provides liability every employer “[t]he 656.017(1) who satisfies the ORS is exclu- duty required by sive and in of all other out place arising compen- added.) sable workers.” The subject (Emphasis that we are called on to is the phrase interpret emphasized one.

The of that covers all wording phrase injuries” terms; “compen- its it is not limited to those plain sable for which are The context of injuries” paid. benefits reading. ORS 656.018 likewise supports expansive Com- context includes the statement the Workers’ policy Law, at ORS 656.012 sug- codified ORS 656.012. pensation should to all injuries that the gests exclusivity provision apply leg- scope employment. arise in the course and expressed litigation, its decision reduce ORS islature 656.012(2)(b), 656.012(2)(c). expedite claims, and to resolution legislative

Those decisions resulted from the inju- legislature’s finding procedures concerning court scope employment arising in the lead ries unnecessarily course “long costly litigation” that detrimental 656.012(l)(b). society. to the economic welfare principle play in As Another comes into this case. statute, when con- above, noted struction becomes this court construes part of the statute construed. This court exclusivity provision construed of Workers’ Com- has essentially pensation Law, has which remained intact since 1913, cover work-related unless a all events enactment (such exception specific exception applies unprovoked aggression). willful Associates, R.A. Chambers and Martelli v. (1990), this court discussed 529, 533-35, 800 P2d history Law and of exclu- of the Workers’ sivity provision: Law first came into

“Oregon’s legislatively in 1913. Its being adopted as an innovation present antecedents of statu- original form included direct ** 1913, chapter section OregonLaws *. tory provisions part provided: “ workers’ [as receive sum or sums right ‘[T]he such his against be in lieu of all claims shall compensation] except as or death on account such employer specially provided.’ hereinafter **:!>'* the worker immunity granted employer, to his for “In return by in a way and defined employment,

injured in the course regardless whether act, compensation, guaranteed was caused the employer neglect part a fault or * * * injury. <(# ‡& “* * * revised in extensively law was compensation [T]he * * any worker’s immunity of an *. 1965 continued was claims, compensation, than for other * ** Act Act, in 1913 as worded 6 of the 1965

in section * * 656.018(1) terms, in ORS modern phrased now in and

531 213-14, P 1046 Olds, 209, 88 Or 171 In Olds v. (1918), exclusivity provision held that the the court special privi Law “confers 1913 Workers’ thereby releasing lege upon employer, him from the personal respond damages for a common-law by negligence, his unless he that has been caused formally bestowed.” That rule the benefits thus renounces Reynolds al, 586, et 232 Or et al v. Harbert was restated (1962); “[i]t that the 591, P2d 245 is our conclusion 375 provide statutory scheme was intended to that a workman by accept Chapter must the benefits thereof as his covered 656 remedy except in situations men exclusive the enumerated added.)2 Bigby (Emphasis in the statute.” See also tioned (1944) Bay 682, 147 P2d 199 Co., 689, Pelican Lbr. 173 Or (“When subject to the act he can not a workman has become by him, his for sustained recover from specified give exceptions rise to one of the unless the facts act.”); 406, 413-14, 407 P2d al, Ellis v. Fallert et 209 Or (1957) (“The Oregon Act Workmen’s 283 purview compensation who are within its offers to workmen non-negligent injuries provides negligent for and for compensation ‘in all claims his such employer’ except lieu of * * remedy [T]he provided *. under original)); (emphasis in Shoemaker v. John act is exclusive.” (“the (1965) rights 519, 241 son, 511, exclusive”). provided In some of those the act are remedies recognized explicitly Bigby, court cases, such as though plaintiff exclusivity could even barred the claim nothing scheme. under the workers’ obtain Bigby, Or at 685-92. exclusivity legislature “continued”

When the legisla- wording by simply updating its knowledge effectively statute, with re-enacted the ture interpreted by See this court. had been of how that statute Billings 56, 357 P2d Com., Ind. Acc. v. State (1960) (this that, when assumes court knowledge of so with statute, it does a section of re-enacts statute).3 construing rulings by prior this court aggression, unprovoked statutory exceptions included willful (1961). example. 656.156 separate definí- 1965, Compensation Law contained no Before post-1965

This court has continued to read the exclu- sivity provision apply injuries. to to all work-related Those interpretations part post-1965 are of ORS 656.018 its Stephens, (stating principle). at n form. See 314 Or 350 6 Georgia-Pacific Corp., In Leech v. 161, 259 Or (1971), plaintiff, this court P2d 1195 dependent exclusivity provision concluded that a employee,

child of deceased was barred compensation of the workers’ statutes bringing reaching conclusion, from a civil action. court stated: (1) 656.018], however, “Subsection makes it clear [of * * * provides employer’simmunity byworkmen, actions beneficiaries, anyone their ‘and other- damages employer recover from the

wise entitled to * * * * * injuries, account of such This indicates provision remedy provided by that the intended the com- complyingemployers are pensation to be exclusive and that subject negligence bypersons nottobe the to actions omittedfrom compensation schedules.” 259 Or at 165-66 benefit added). (emphasis Bigby The court held that the rationale of survived the 1965 compensation and that amendments to the workers’ statutes on-the-job exclusivity claims related to continued bar plaintiffs who could obtain no workers’ events even for those at 164-66. benefits. Id. Meyer, Chung Inc., 809, Fred In Duk Hwan exclusivity (1976), argued a worker that the had acted control, because the should not causing injury to the or death intention of with the deliberate exceptions employee; therefore, one of the exclusivity provision applied. there concluded that This court suggest had acted with that the was no evidence to injure employee someone intention to the deliberate summary grant the trial court’s else, and it affirmed Rather, injury.” the definition was “compensable from 1913 to tion of 1965, the exclusivity provision. From 1913 until applicable within the contained * * * any employee an accidental exclusivity provision applied “who sustains * * * See, e.g., employment.” arising in the course of his out of and (so (1963) phrase used in ORS providing). That is the same 656.152 “compensable under injury.” scope covered define same; applied always it has since Compensation Law has been the Workers’ scope employment. injuries arising in the course and to accidental employer’s favor. 276 at 813-14. judgment Law pro- “[t]he court noted Workmen’s injuries by the sole and for remedy vides exclusive sustained in the when the scope employment workman course of his subject with fully complying provisions to the Act, unless the facts rise to one of the give exceptions the Blachly, also Nicholson v. See in the Act.” Id. at 812. specified (1988) (“The 581, P2d 955 578, remedy 305 Or 753 exclusive their suf- injured employes against employers injuries the receive fered in course and is to scope employment benefits.”).

This court has its construed ORS 656.018 and prede- with to all grant immunity cessors consistently respect that arise in the course and scope accidental i.e., all At the same “compensable injuries.” employment, time, has been true that a worker can sustain a always event) injury (on-the-job compen- but collect no (benefits). the this court years, recognized sation Over has that fact three cases. categories

One of such cases that a worker category recognizes no due to on-the-job injury can sustain an but collect benefits claim. Rohde reason, an such as untimeliness of extrinsic Com., v. State Industrial Acc. 426, 217 (1923),is P 108 Or 627 Rohde, In this court held that a worker earliest example. an accidental in the course and scope who suffered who failed adhere the procedural but employment, statutes, relief. The was not entitled to requirements stated: court case, accidents, presents pitiable many

“The like so other bring features, must but whosoever claims under statute done This claimant has not himself within its terms. instance, not to relief as a matter of law he is entitled Or 441. proceedings.” these 108 at holding and has never deviated from The court has See, v. Industrial State e.g., Dragicevic it repeatedly. restated (1924) (court will not Com., 571, 569, 112 Or 230 P 354 Acc. v. State Ind. filed); Rosell untimely claim that is “entertain” (1940) (same); Com., 192, P2d 726 164 95 Acc. Or P2d Com., Acc. 418, 421, Or 154 v. State Ind. 175 Landauer (1944) Department, Johnson (same); 189 (1967) (same); Colvin v. P2d 449, 452, 425 246 Or Industrial (1986) Indemnity, 743, 748, (“a claimant may avoid the notice if requirements has clear [employer] procedures for reporting accidents and injuries and the employe knows or should know of and is able not”). to follow procedures, but does A second of cases category that a recognizes worker can sustain an on-the-job injury but collect no benefits due to an reason, intrinsic such as failure to sustain the applicable Vale v. burden of State Ind. Acc. Com., proof. (1939),

P2d 956 is the earliest of a case in example this second Vale, category. survivor plaintiff, of a deceased worker, claimed that the worker’s death was caused accident in the course and arising scope worker’s employment. The plaintiff argued that the worker’s death had resulted from contaminated food that had provided to the worker. The court stated: vague “In view of the character of the evidence which * * *

furnished the hypothesis for the medical testimony we are constrained to hold that the plaintiff has failed to sustain the burden of that the proving decedent’s death was caused by contaminated food furnished by employers.” his 160 Or at 577. the court never has deviated from that

Again, and has holding See, e.g., McKay v. State Ind. Acc. restated it repeatedly. (“there (1939) Com., 191, 200, 161 Or P2d 87 202 is no evidence worker’s struck being by lightening [that course and scope of resulted employment in] decedent’s heart. It is a mere possibility lacking proof’); Com., v. State Ind. Acc 316, 323, 209 Or P2d 306 Dimitroff (1957) (“We 398 have held that a claimant under repeatedly Act has the burden of to show that he is entitled to proof Co., Grandell v. Lbr. 251 Roseburg 88, Or compensation.”); (1968) 91, 444 P2d 944 denial of benefits to (upholding a worker because “work was not material contribut activity Marston v. Com attack”); factor his heart ing producing (1969) 640, 644, 252 Or pensation Department, (“[s]ince testimony is a total lack of medical there caused or contributed to of claimant’s head either bumping award condition, support [an there is no evidence to his Carbide, v. Union 27, 30, 602 Weller compensation]”); (worker (1979) failed to offer sufficient evidence P2d 259

535 * * * disease”); a worsening underlying “establish (1982) (in SAIF, 689, P2d Harris v. 292 642 1147 Or Law, to collect under the Workers’ order disabled”). “has the burden of that he is so proving claimant A of cases that a worker category recognizes third but collect no benefits due on-the-job injury can sustain v. Leech limits on the nature benefits payable. (a case, Georgia-Pacific Corp. person is an example. worker) child of a deceased was omitted from dependent with to an respect on-the-job benefit schedule compensation above, dependent of the deceased worker. As noted exclusivity compensation child barred the workers’ was also 170. See at from civil action. 259 Or pursuing (benefici- Co., Bay v. Pelican Lbr. 173 at Bigby supra, Or noth- omitted from schedule could obtain ary compensation Law, still was under Workers’ but barred ing action). Hathaway a civil More bringing recently, Enterprises, Health Future 383, 386-87, Or P2d 549 Transit, and Nicholson v. Salem Area (1994), (1994), 395, 884 P2d 864 this court recognized “pallia- has though care” is not even a worker tive care is suffered for which the palliative a compensable injury given. cases, history which the whole foregoing span has show that this court compensation Oregon, the exclusive rem- that workers’

recognized Com- covered under the Workers’ available to workers edy that arise in course injuries Law for accidental pensation time at the same of their while employment, and scope in an result that not all recognizing focuses on words majority The compensation. award 656.018(l)(a), assert- ORS “liability” liability” and “other exist, as predicate there “that must they imply ing employer], part suit on the [from freedom civil under the Workers’ liability some actual analysis. errs in that at 518. The majority Law.” 320 Or to mean responsibility necessarily does not “liability” term action to refer to may money; pay defend to obliged ultimately claim, or not the whether rather reading, why the latter two reasons There are pay. First, one. reading, applicable is the the majority’s than 656.018(2) context suggests it. ORS contains a parallel to ORS 656.018(l)(a), which limits the worker to act under the workers’ compensation system for compensable * ** injuries; “the right suit bring against the employer,” not an obligation to pay is the money, core concern. Second, — — prior court’s cases which are part the statute uniformly have interpreted ORS 656.018 in a manner that is at odds with the majority’s interpretation.

To use a metaphor: the land of workers’ compensa- tion benefits that actually are available has never abutted the land of permissible civil actions. Between those lands has flowed a river of “compensable injuries” for which no benefits are available and for which no civil action may be brought. That river is formed by three streams described above (intrinsic reasons awhy compensable injury results in no compensation, extrinsic reasons for that result, and statutory limits on the nature of benefits payable). Today majority makes a radical departure from those established principles.

The majority bases that departure on the 1990 amendments 656.005(7)(a), when the legislature amended the definition of “compensable injury” include the “major contributing cause” “limitations” contained in 656.005(7)(a)(A) (B). The majority concludes that the 1990 amendments narrowed the definition of “compen- sable “so also the nar- exclusivity provision rowed.” 320 Or at 523. But the 1990 amendments did not narrow the exclusivity provision.

Before the Workers’ Compensation Law applied to all injuries accidental out of “arising course of The current employment.” definition of “compen- sable injury” likewise all accidental encompasses out of and in course of “arising Accord- employment.” ‘ ’ what ingly, is covered concept ‘compensable injury’ has not that has changed. only thing changed how much causation a worker needs to show to receive compensa- tion for certain A worker must now injuries. show that the is the compensable injury “major contributing condition, cause” of the or need for consequential disability, treatment in certain circumstances. Before there was Thus, change no such the 1990 was requirement. coverage change change degree, the of Workers’ not Compensation Law. metaphor, legislature

To the can return earlier boundary change contiguity time, create, for the the line and first compensation the of workers’ bene- between land actually permissible the civil that are available and land of fits can or widen the river actions. The also narrow — compen- lands river of now exists between those the available and for for which no benefits are sable maybe only brought (subject to constitu- which no civilaction limitations, which, below, as noted are not at issue tional case). changes question us is which of those The before 656.005(7)(a) my wrought. In the 1990 amendment ORS 656.005(7)(a) slight widening plainly view, ORS constitutes of the river.

As the text shows, the discussion above and context this court’s (including the Law of Workers’ development prior interpretations the and the historical statutes) “compensable injury” make clear the definition of 656.005(7)(a) applied contained in ORS and to ORS 656.018 legislative provisions. Thus, and the the intent behind those stop inquiry PGE, court’s should here. See Or at methodology). (explaining majority ambiguity in the statute where finds “compensable injuries” by confusing none,

there is with “compensation” ignoring between ORS and difference (b). 656.005(7)(a) alleged ambiguity, Because of history majority analyze legislative proceeds then “compensable the definition of the 1990 amendments to 656.005(7)(a). legislative injury,” his- From scant plaintiffs tory, majority claim not a concludes provided in ORS under the definition 656.005(7)(a) exclusivity therefore, that the and, legisla- majority apply. concludes that the thus does not geologic change the river that eliminated ture made a compensable injuries are available and no benefits

for which may brought. which civil action be no ambiguous Assuming are that the statutes history legislative inquiry the material for, is called into support majority its drastic result. not relies does which legislative history First, the of the 1990 amendment ORS Conflicting testimony is not clear. before Special Joint Committee on Workers’ concerning statements on House floor how federal courts interpreted have other workers’ statutes does provide legislative a clear indicator Further, intent. by Representative Dwyer, statement on the House floor — quoted by majority agree” that he was “inclined to that * ** major-contributing-cause “may subject test an — employer[] to ambiguity tort action” does not resolve this legislative heightens intent, but rather it. 320 Or 524 at added). (emphasis His is not of certitude; statement is a possibility. statement of addition, was no there amendment to ORS legislature. quoted

656.018 before Most of the discussion by majority legislators’ related to witnesses’ and under- standing of ORS 656.018. 320 Or at 521-24. To the extent legislators commenting understanding that were on their of long-existing provision, bearing their comments have no on what ORS 656.018 meant. See WPPSS, DeFazio 296 (1984) (“The legislators 550, 561, 679 P2d 1316 views of have existing may light enactment, law shed a new but it no is of ”). weight interpreting by predecessors. a law enacted their majority history legislative also discusses the 656.005(7)(a) giving legislative ORS history without effect to the package

of the whole of interrelated 1990 amend- Compensation ments to the Workers’ Law. The broader purposes Compen- of the 1990 amendments to the Workers’ legislative history by sation Law are revealed of the 1990 special extensively. during session which the revised law underlying theme of all the 1990 amend- system ments was to make more cost-effective employers Special B, more See Interim efficient. Exhibit (letter Compensation, May 3, Committee on Workers’ Compensation Manage- from the Labor Governor’s Workers’ Advisory ment proposing to Governor Neil Goldschmidt Committee

changes system, to Workers’ requested by Goldschmidt, to “control the costs Governor Oregon’s compensation program”); P, Exhibit May Compensation, Special Workers’ Interim Committee on (summary analysis by Legislative provided fiscal 3, 1990 premium concerning “anticipated reductions” Fiscal Office changes); proposed F, with the Exhibit Interim associated Special May Compensation, Committee on Workers’ provided by discussing (analysis Corporation SAIF cost sav- changes); Testimony ings proposed Hersee, Matt under Depart- Administrator, Division, Special Interim Committee Finance, ment of Insurance May Tape Compensation, A 7, 1990, 26, Side on Workers’ savings proposed (discussing anticipated will result changes). will more As the discussion below demonstrate fully, majority’s interpretation ORS is at odds with that theme.4 history legislative summarize, the itself

To majority relying on unclear. The errs it. finding ambiguity, majority

If were correct step interpretation (legislative statutory then, the second history) ambiguity. The level would not resolve such an third analysis required, application is, the would be maxims 317 Or at 612 PGE, construction. See majority’s (describing methodology). The result could reading level, survive at that 656.005(7)(a) third because its of principle a violates the statute should produce to an absurd result. be construed unreasonable or (1984) Garcias, P2d See State v. 298 690 497 (stating principle). already mentioned, As has been one objectives compensation is to chief of the workers’ statutes litigation having of workers and reduce the and social costs concerning workplace injuries. fully litigate employers claims compensation system, legislature By adopting the a workers’ hoped parties find a to for all involved and reduce costs on-the-job dealing comprehensive of with and efficient means 656.012(2)(d) objectives (stating injuries. the of See general use presents opportunity to a observation about the This an make case majority’s history. of two legislative discussion concerns statements Much of the of legislators. Much of the dissent’s discussion and of two witnesses before a committee enacting general the intention the the manifest of concerns general, of compensation an examination laws. the workers’ amendments to general the manifest history when it able to uncover legislative is most useful contrast, legislative By an of examination legislative an intent behind enactment. misconstruction, the misattribution history fraught potential with for the is most whole, body in the form a or abuse legislator to the as single a or witness beliefs of persons narrow only on a number of “padding when views of a small the record” the question can found. be Law); Bigby, see at also (stating purposes pre-1965 Compensa- version Workers’ Law). position by majority seriously tion The taken the objective by making undermines that the overall incentives compensation system topsy-turvy of the workers’ irrational. today, injured pursue

After worker will seek to a compensation limply possible, worker’s claim as as to so goal having the achieve the Workers’ Board noncompensable.5 noncompensability the declare claim Once bring determined, the worker can a then civilaction employer exclusivity provision altogether. the the avoid By creating system in which workers have an incentive to pursue litigation acquire damages inju- to for work-related majority jeopardizes receipt “prompt” ries, the the medical (contraxy treatment and the assurance of income benefits to (c)) policies 656.012(2)(a), the litigation (contraxy set out in ORS and increases 656.012(b)). policy to the set out ORS greater Indeed, the condition, more serious the worker’s pursue greater the incentive civil claim and the trespass legislatively policies. on the stated implications today’s employers

The decision for equally peculiar. employer, their insurers are who compensation has the to resist now incentive workers’ claims, up occupied injured position presently take will attempting claim worker, is, to have the declared com- pensable, protection so as of ORS to retain 656.018. carrier, insurance who now has claims, resist be same incentive as the opposed will employer’s interest and will instead have goal worker, same as the to have the claim declared noncom- — pensable, pay so the insurer will not have the claim happens to cover unless same carrier also general liability insurance. employers pay will non-meritorious Self-insured actions, the risk of civil and insured claims eliminate encourage employers That their insurers to do the same. will assumes, footnote, 320Orat525n7, by way majority blithely that an The of a compensation system,” injured bypass but the workers’ worker could not “elect dissent, however, accept purpose explain why Í of this fails to not. For assumption. although practice, present practices, than costlier a would be way greater potential costs, reasonable to avoid even and damages, litigation. greater awards of associated with passed employers. will be consumers, workers, costs on to and speedy, efficient, The concerning and cost-effective resolution of claims injuries,

on-the-job legislature, by desired will become more difficult. majority’s reading

In short, the of ORS compensation undercuts system. raison d’etre of the workers’ compensation system represents The workers’ legislatively “bargain” employers mandated between and system gives opportunity workers. workers the to seek injuries for work-related and diseases without prove part; employer’s exchange, the need to fault on the give right up workers related to sue the for work- diseases; Workers benefit from the secu- rity knowing they prove they that, of if claims, their will be compensated quickly; employers liability benefit from limited litigation bargain implicit and reduced costs. That policy accompanying statement the Workers’ recognized Law, 656.012, and has been this court. In Hale Portland, v. Port 521-22, (1989), bargain way: P2d 506 this court described the * * * Oregon legislature haphazard “[T]he eliminated the system liability employers employees some for some injuries occurring circumstances, under a limited number system replaced employers with a that made liable for injured expenses the medical of their without regard workers to fault. The scheme some members of both penalized camps — could plaintiffs prove negligence those who actionable beyond obtain employers, damages their and so their medical employers defeat expenses, those who could or they negligent they either because had been because guilty negligence could show the worker was of contributor assumption of the risk.” SAIF, 145, 160-61, See also McGarrah v. * * * (“In (1983) exchange for relief under this no-fault recovery system, employes are limited to fixed schedule any right recovery law action and must abandon common employers.”) their 542 bargain suggests

The overall that the is not civilly on-the-job liable for activities if and conditions the required compensation employer provides the workers’ cov- erage being and if those activities and conditions fall short of 656.018(3) unprovoked aggression. willful and See ORS (exemption liability apply injury from does not when caused by unprovoked aggression person willful and otherwise exempt). majority’s interpretation of the defi- “compensable injury,” guts bargain. however, nition of the Every opportunity will have the and the incentive claimant to try compensation system. “opt to out” of the workers’ legislature did not intend that result. 656.005(7)(a), reading plain- proper a Under of ORS * * * injury, “injury compensable an

tiff has arising because he has a employment.” and in The Board out of the course upper plaintiff has “transient irritation found that paranasal respiratory a inhala- tract and sinuses as result of place.” (Emphasis his work tion in substances found added.) “[t]he evidence, then held that medical The Board [plaintiff] support however, not the conclusion has does symptomatic “[h]is compensable disease,” a because process.” pathological response In other not a to irritants is although plaintiff’s out of and words, arose (was injury), employment a his course of hearing plaintiff did not entitle to evidence adduced at benefits.6 collect plaintiff benefits, defen- received or not

Whether “arise[es] out of here dant’s asserted system compensation injuries” therefore, the and, 6 10, I, contrary Article argues be to section a result would that such Plaintiff remedy Constitution, “every have provides part that man shall Oregon which reputation.” person, property, done him in his law for due course of below; therefore, argument this court should not preserve Plaintiff did (“The (1978) 119, 122, Sparkman, P2d 1247 Leiser v. 281 Or consider it. See theory upon tried] [the case was which parties appeal are restricted below.”). court note, however, scheme has withstood the workers’ I would Com., 78 Or State Industrial Acc. I, challenges since Article section Evanhoff v. Portland, 508, 523, (1915). Recently, v. Port in Hale 503, 517-18, 154 P106 that, party injured long is not (1989), as the again so stated P2d this court above, I, As discussed remedy, is not violated. Article section left without a remedy, had an he remedy. has because Plaintiff plaintiff left without is not simply compensable; has failed to he was prove his condition opportunity prove his case. place liability.” “is exclusive all other 656.018(1). Plaintiff thus is foreclosed, under ORS 656.018(2), pursuing present Accordingly, action. Appeals judgment the decision of the Court of and the circuit court should be affirmed. foregoing respectfully

For reasons, I dissent. joins opinion. Carson, J.,C. in this

Case Details

Case Name: Errand v. Cascade Steel Rolling Mills, Inc.

Court Name: Oregon Supreme Court

Date Published: Feb 2, 1995

Citation: 888 P.2d 544

Docket Number: CC CV91283; CA A80487; SC S41195

Court Abbreviation: Or.