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Ndy v. Nustar GP, LLC

Supreme Court of Oregon

December 29, 2017

Danny BU NDY, Petitioner on Review,
v.
NUSTAR GP, LLC; and Shore Terminals, LLC, Respondents on Review.

          Argued and submitted May 08, 2017.

         On review from the Court of Appeals CC 110810280, CA A152918 . [*]

          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.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, Nakamoto, Flynn, and Duncan, Justices. [**]

         [362 Or. 283] Case Summary:

         Plaintiff attempted to allege civil negligence claims against his employer for harm arising out of plaintiff's exposure to gasoline vapors at work. He sought to rely on ORS 656.019 to avoid the exclusive remedy provision of ORS 656.018 by alleging that the conditions for which plaintiff seeks recovery in the negligence action were determined to be not compensable under the workers' compensation laws on the basis that plaintiff failed to prove the work incident was the major contributing cause. The trial court denied plaintiff's motion to amend based on its agreement with defendant's argument that ORS 656.019 does not apply because plaintiff has a compensable initial workers' compensation claim for the same work incident. The Court of Appeals issued a written decision affirming the judgement of the trial court. Held: ORS 656.019 applies to both denied initial and subsequent workers' compensation claims. The court reserves ruling, however, on whether ORS 656.019 functions as the exception to ORS 656.018 that plaintiff assumes it does. Defendant did not challenge that assumption below, and the issue is beyond the scope of the ruling on which the court allowed review.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

         [362 Or. 284] FLYNN, J.

         This case arises out of plaintiff's attempt to allege civil negligence claims against his employer, defendant NuStar GP, LLC, for harm arising out of plaintiff's exposure to gasoline vapors at work.[1] The trial court denied plaintiffs motion to amend his complaint to allege those claims after concluding that the claims are barred by the so-called "exclusive remedy" provision of the Workers' Compensation Law, ORS 656.018, a provision that generally immunizes employers from civil liability for injuries to a worker arising out of the worker's employment.[2] Plaintiff contends that his negligence claims are not barred by ORS 656.018 because they are allowed by ORS 656.019, a statute that governs negligence actions for an injury "that has been determined to be not compensable [under the Workers' Compensation Law] because the worker has failed to establish that a work-related incident was the major contributing cause of the worker's injury." Although plaintiff alleged that he suffers from medical conditions that were determined to be "not compensable" under that major contributing cause standard, the trial court and Court of Appeals concluded that ORS 656.019 does not apply to plaintiff's negligence action because the conditions on which plaintiff relies were denied after defendant accepted a compensable workers' compensation claim for plaintiff's initial condition arising out of the same workplace incident.

         We allowed review to consider whether the Court of Appeals correctly construed the scope of ORS 656.019, and we conclude that "the claim" to which ORS 656.019 refers includes subsequent claims. In responsive briefing in this court, defendant suggests for the first time that it disputes the premise that underlies plaintiff's argument, contending that, regardless of the scope of ORS 656.019, the statute does not confer a "substantive right" but merely establishes [362 Or. 285] procedural requirements for filing actions that are otherwise exempt from the exclusive remedy provision. That contention is beyond the scope of the statutory construction ruling that we allowed review to consider, and we expressly reserve a ruling on the issue for a future appeal in which the briefing provides the court with fully developed arguments on the issue.

         BACKGROUND

         While employed by defendant as a terminal operator, plaintiff was assigned to stay and monitor the air quality from malfunctioning machinery without being given safety equipment, and he was exposed to dangerous levels of die-sel, gasoline and ethanol fumes. After that incident, defendant initially accepted a workers' compensation claim for "non-disabling exposure to gasoline vapors."[3] Later, plaintiff asked defendant to accept and pay compensation for additional conditions arising out of the same incident, including "somatization disorder" and "undifferentiated somatoform disorder" (which we refer to collectively as "somatoform disorders"). Defendant specified that it was treating each of plaintiff's subsequent requests as a "consequential condition claim" and was denying those claims on the basis that plaintiff's work exposure was not the major contributing cause of the subsequent conditions. Plaintiff challenged those denials through the workers' compensation system, but he was unable to establish that the work incident was 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 plaintiff failed to establish that his work-related incident was the major contributing cause.

         In the meantime, plaintiff also filed this civil action against defendant in which he attempted to allege a claim for relief that would come within an exception to the immunity afforded by the exclusive remedy provision. To that end, [362 Or. 286] plaintiff filed multiple amended complaints, each of which defendant successfully moved to dismiss. When defendant moved to dismiss plaintiff's Third Amended Complaint, plaintiff sought leave to file a Fourth Amended Complaint to allege that he had received the board order described above.[4]Plaintiff argued that the board's determination brought his civil negligence claims within the scope of ORS 656.019 and, therefore, precluded defendant from relying on the exclusive remedy provision to defeat plaintiff's negligence claims. Defendant did not dispute plaintiff's premise that claims within the scope of ORS 656.019 are statutorily exempt from the exclusive remedy provision, but it contended that ORS 656.019 does not apply when the injured worker has an accepted workers' compensation claim.

         The trial court agreed with defendant that plaintiff's allegations-including the negligence claims that he proposed to plead in a fourth amended complaint-failed to state a claim for relief that could avoid the exclusive remedy provision of ORS 656.018. In the Court of Appeals, plaintiff assigned error to several rulings of the trial court, including the court's ruling that ORS 656.019 does not allow plaintiff to bring his civil negligence claims.[5] Plaintiff argued that ORS 656.019 is not limited to "entire claims" and, instead, applies to any claim for an injurious condition that is determined to be not compensable under workers' compensation law on the basis that the worker failed to establish that a work-related incident was the major contributing cause. Thus, plaintiff argued, ORS 656.019 applied to his somatoform conditions. The Court of Appeals rejected that argument, emphasizing that ORS 656.019 provides that the injured worker may pursue the action "'only after an order determining that the claim is not compensable has become final.'" Bundy v. NuStar GP. LLC. 277 Or.App. 785, 806, 373 P.3d 1141 (2016) [362 Or. 287] (quoting ORS 656.019; emphasis in original). Because plaintiff conceded that defendant accepted plaintiff's initial claim for the work-related incident, the Court of Appeals agreed with the trial court that "plaintiff could not bring his negligence claims based on ORS 656.019."

         DISCUSSION

         On review, plaintiff urges this court to conclude that the Court of Appeals and trial court misconstrued the scope of ORS 656.019.[6] Plaintiff relies on the first sentence of ORS 656.019(1)(a), which 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."

         Defendant responds that there is one workers' compensation claim for any given work incident, which is either accepted or denied entirely, and that the Court of Appeals correctly construed ORS 656.019 as applying only when that initial claim is denied.

         A. Historical ...


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