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Alcutt v. Adams Family Food Services, Inc.

Court of Appeals of Oregon

October 9, 2013

DAN ALCUTT, Plaintiff-Appellant,
v.
ADAMS FAMILY FOOD SERVICES, INC. an Oregon corporation, nka Adams Oregon Enterprises, Inc., an Oregon Corporation, dba McDonald's Restaurant, Defendant-Respondent.

Argued and submitted on October 10, 2012.

Umatilla County Circuit Court CV091364 Garry L. Reynolds, Judge.

Nelson R. Hall argued the cause for appellant. With him on the briefs was Bennett, Hartman, Morris & Kaplan, LLP.

Bruce H. Orr argued the cause for respondent. With him on the brief was Wyse Kadish, LLP.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

SERCOMBE, J.

Plaintiff, after suffering injuries while working at defendant's McDonald's restaurant, filed a workers' compensation claim that was ultimately denied on the ground that, due to preexisting degenerative disc disease, plaintiff's work activities were not the major contributing cause of his disability or need for treatment. See ORS 656.005(7)(a)(B); ORS 656.266. Subsequently--and on the basis of the same underlying events--plaintiff filed this civil action against defendant, alleging negligence and violation of workplace-safety rules. The trial court then granted defendant's motion to dismiss for lack of subject matter jurisdiction under ORCP 21 A(1), ultimately reasoning that the exclusive remedy provision of the Workers' Compensation Law, ORS 656.018, barred plaintiff's civil action.[1] Plaintiff appeals, arguing that the trial court, in granting defendant's motion, violated plaintiff's rights under the remedy clause of Article I, section 10, of the Oregon Constitution, as interpreted by the Supreme Court in Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P.3d 333 (2001), [2] and misinterpreted ORS 656.019--a statute enacted soon after Smothers was decided.[3] See Or Laws 2001, ch 865, § 15; see also Hudjohn v. S&G Machinery Co., 200 Or.App. 340, 346 n 3, 114 P.3d 1141 (2005) (noting that the legislature enacted ORS 656.019 "in response to the Supreme Court's holding in Smothers"). Thus, the question presented on appeal is ultimately whether, under Article I, section 10, or ORS 656.019, plaintiff was entitled to bring his civil action against defendant, notwithstanding the exclusive remedy provision of ORS 656.018. For the reasons that follow, we hold that plaintiff was constitutionally entitled to do so and, accordingly, reverse the trial court's judgment of dismissal as to plaintiff's negligence claims.[4]

On September 28, 2007, plaintiff was working at defendant's restaurant, loading ice from a large cooler into the top of a soft-drink dispenser. In order to lift the cooler full of ice into position above the dispenser, plaintiff used a small footstool provided by defendant in order to step up and shift his weight onto the counter where the drink dispenser was located; however, the stool slipped backward, and plaintiff fell to the floor. He subsequently sought treatment for neck and back pain, pain radiating into his arms, and muscle spasms. Imaging revealed disc herniations at L4-5 and C6-7, and plaintiff eventually underwent two surgeries to address those conditions. He filed a workers' compensation claim on October 15, 2007.

Following plaintiff's first surgery, defendant arranged an independent medical examination (IME), after which Drs. Neumann and Radecki diagnosed plaintiff with "multilevel degenerative disc disease in the cervical and lumbar spine preexisting the work incident" in addition to the herniated discs at L4-5 and C6-7. Defendant denied plaintiff's workers' compensation claim shortly thereafter, and plaintiff requested a hearing.

Prior to the hearing, defendant arranged another IME, after which Dr. Bergquist diagnosed degenerative change of the cervical and lumbar spine, disc herniation at L4-5, and "C7 radiculopathy secondary to foraminal stenosis." Bergquist opined that preexisting degenerative changes in plaintiff's cervical and lumbar spine constituted the major contributing cause of plaintiff's disability and need for treatment. Moreover, Neumann and Radecki--although each had initially opined that the work incident constituted the major contributing cause of plaintiff's disability and need for treatment--reviewed additional evidence, received additional explanation from defendant's counsel as to the legal meaning of "major" (as opposed to "precipitating") cause, and opined that plaintiff's preexisting degenerative disc disease was the major contributing cause of his disability and need for treatment.[5] Finally, in November 2008, plaintiff's surgeon, Dr. Gehling--after performing both aforementioned surgeries-- reviewed the medical evidence and likewise opined that plaintiff's "preexisting degenerative condition" was the major contributing cause of plaintiff's disability and need for treatment.

A hearing was convened before an administrative law judge (ALJ) on November 21, 2008, and, on May 8, 2009, the ALJ issued an opinion and order upholding defendant's denial of plaintiff's workers' compensation claim. In reaching that conclusion, the ALJ reasoned:

"Dr. Neumann opined that the work event was a material cause of [plaintiff's] disability and need for treatment. Assuming that Dr. Neumann's opinion is correct, the record establishes that the work event combined with preexisting degenerative changes in [plaintiff's] spine to prolong disability and a need for treatment. All of the medical experts offering a causation opinion in this case (including Dr. Neumann) ultimately opined that the major cause of [plaintiff's] disability/need for treatment was the preexisting condition, not the work incident. Consequently, [defendant's] denial must be affirmed."

Thus, the ALJ concluded that plaintiff's otherwise compensable work injury had combined with his preexisting degenerative disc disease to form a "combined condition, " see ORS 656.005(7)(a)(B) (combined conditions), and that, as particularly pertinent here, defendant had met its burden to prove that "the otherwise compensable injury [was] not, or [was] no longer, the major contributing cause" of the disability or need for treatment stemming from that combined condition. ORS 656.266(2)(a) (for purposes of combined condition claims, "[o]nce the worker establishes an otherwise compensable injury, the employer shall bear the burden of proof to establish [that] the otherwise compensable injury is not, or is no longer, the major contributing cause" of the disability or need for treatment of the combined condition).

Plaintiff subsequently filed this civil action on September 30, 2009. The operative complaint contained three claims for relief, alleging that defendant had (1) violated the Oregon Safe Employment Act (OSEA);[6] (2) committed negligence per se based on those alleged OSEA violations; and (3) been negligent in "requiring the use of a ladder or step stool without adequate non-skid footings[, ]" in "failing to provide plaintiff with a ladder of adequate height such that plaintiff could [safely] access and fill the beverage dispenser with ice, " in failing to provide a safe means of loading the beverage dispenser with ice, and in requiring plaintiff "to carry, lift and unload an object in such a manner as to cause the employee to lose balance." Addressing ORS 656.018 and ORS 656.019, plaintiff pleaded that, "[a]t all times material, plaintiff suffered work-related injuries as set forth herein, which were determined, in a final order of a workers' compensation [ALJ], to be not compensable because the work-related incident was not the major contributing cause of plaintiff's injuries."

Defendant then moved to dismiss each of plaintiff's claims for lack of subject matter jurisdiction under ORCP 21 A(1). In support of its motion, defendant relied on the exclusive remedy provision of the Workers' Compensation Law, ORS 656.018, asserting that it was "immune from liability on [plaintiff's] claims for relief" under that statute. Addressing ORS 656.019, defendant argued that plaintiff was not entitled to bring a civil action because he had not "failed to establish that the work-related incident was the major contributing cause of his alleged injury" pursuant to the text of that statute. (Emphasis in original.) That is, because ORS 656.019 is phrased in terms of "the worker['s]" failure to meet his or her burden of proof as to major contributing cause, defendant emphasized that, before the ALJ, it was the employer's (i.e., defendant's) burden to prove that the work-related incident was not the major contributing cause of plaintiff's injury under ORS 656.266(2)(a). Defendant summarized its argument as to the applicability of ORS 656.019 as follows:

"Plaintiff's workers' compensation claim for the injury that is alleged in the First Amended Complaint was determined to be not compensable under Oregon's Workers' Compensation Law because Defendant satisfied its burden of proof as set forth in ORS 656.266(2), and it was not because Plaintiff failed to establish that the work-related incident was the major contributing cause of his alleged injury. Plaintiff's claim for benefits was denied because of what ...

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