The Oregon Supreme Court has issued a decision that broadens the ability of a plaintiff receiving workers' compensation benefits to also sue his or her employer for negligence allegedly arising out of the same workplace incident.
The Case
While employed by NuStar GP, LLC, as a terminal operator, Danny Bundy alleged that he was assigned to stay and monitor the air quality from malfunctioning machinery without being given safety equipment, and that he was exposed to dangerous levels of diesel, gasoline, and ethanol fumes.
After that incident, NuStar initially accepted a workers' compensation claim from Mr. Bundy for "non-disabling exposure to gasoline vapors." Later, Mr. Bundy asked NuStar to accept and pay compensation for additional conditions arising out of the same incident, including "somatization disorder" and "undifferentiated somatoform disorder."
NuStar specified that it was treating each of Mr. Bundy's requests as a "consequential condition claim" and was denying those claims on the basis that his work exposure had not been the major contributing cause of the subsequent conditions.
Mr. Bundy challenged those denials through the workers' compensation system, but he was unable to establish that the work incident had been the major contributing cause of his somatoform disorders. The workers' compensation board ultimately issued a final order determining that the disorders were not compensable conditions because Mr. Bundy had not established that his work-related incident had been the major contributing cause.
In the meantime, Mr. Bundy also filed a civil action against NuStar for negligence. He argued that, under ORS 656.019, the board's order precluded NuStar from arguing that his negligence claim was barred by the workers' compensation law's exclusive remedy provision.
For its part, NuStar responded that there was one workers' compensation claim for any given work incident, which either was accepted or denied entirely, and that ORS 656.019 applied only when that initial claim was denied.
The trial court ruled that Mr. Bundy's negligence allegations failed to state a claim for relief that could avoid the law's exclusive remedy provision. An appellate court affirmed, construing ORS 656.019 as applying only when an initial claim was denied.
The dispute reached the Oregon Supreme Court. There, Mr. Bundy argued that he had satisfied the requirements of ORS 656.019: each of his two somatoform disorders, for which he was pursuing a civil negligence action, was "a work-related injury"; the conditions had "been determined to be not compensable because the worker has failed to establish that a work-related incident was the major contributing cause"; and he had received a final "order determining that the claim [for each condition was] not compensable."
Oregon Law
Oregon law provides:
An injured worker may pursue a civil negligence action for a work-related injury that has been determined to be not compensable because the worker has failed to establish that a work-related incident was the major contributing cause of the worker's injury only after an order determining that the claim is not compensable has become final.
ORS 656.019(1)(a).
The Oregon Supreme Court's Decision
The Oregon Supreme Court reversed, adopting Mr. Bundy's construction of ORS 656.019.
In its decision, the court decided that ORS 656.019 used the terms "work-related injury" and "the claim" in an "expansive sense" that encompassed claims such as Mr. Bundy's for a condition that was "denied on major-contributing-cause grounds after an initial claim acceptance [had] been issued."
Therefore, the court held, ORS 656.019 applied to a negligence action for injuries that were determined to be not compensable after an initial workers' compensation claim was accepted.
The case is Bundy v. Nustar Gp, LLC, No. SC S064188 (Ore. Dec. 29, 2017). Attorneys involved include: Carl Post, Portland, argued the cause and filed the briefs for the petitioner on review. Thomas W. Songdag, Lane Powell PC, Portland, argued the cause and filed the brief for the respondents on review. James S. Coon, Thomas Coon Newton & Frost, Portland, filed the brief amicus curiae Oregon Trial Lawyers Association. David L. Runner, Salem, filed the brief amicus curiae SAIF Corporation, Timber Products Company and BDI Staffing.