In Bundy v. Nustar GP, LLC, 362 Or 282 (2017) (Flynn, J.), the Supreme Court reversed a trial court’s dismissal of a civil action by a worker against his employer, and remanded the case to the trial court for further proceedings. In doing so, the court construed ORS 656.019(1), the so-called “Smothers fix” statute adopted in 2001, to encompass actions based on new or omitted medical condition claims that are denied on major cause grounds. However, the court expressly left undecided the pivotal question of whether ORS 656.019(1) provides a substantive statutory exception to ORS 656.018, the exclusive remedy provision of the Workers’ Compensation Law, or whether such actions must be asserted and proved under some other source of law, such as Article I, section 10, of the Oregon Constitution.
The plaintiff in Bundy filed his civil action against his employer based on the partial denial of certain “somatoform” disorders claimed as new or omitted medical conditions. The employer had accepted the worker’s initial claim for workers’ compensation benefits for the condition of “non-disabling exposure to gasoline vapors.” The employer treated the worker’s subsequent claim for somatoform disorders as new or omitted condition claims for consequential conditions, and denied them on major cause grounds. The worker sought review of that denial through a hearing and board review, but the denial was upheld on the ground that the worker had failed to prove that the work-related incident was the major contributing cause of the somatoform disorders.
The trial court dismissed the worker’s subsequent civil action based on the somatoform disorders on the ground that ORS 656.019(1) allowed civil actions only on initial workers’ compensation claims denied on major cause grounds, and in this case there was an accepted initial claim. Hence, the court found the plaintiff’s claim barred under ORS 656.018, the exclusive remedy provision of the Workers’ Compensation Law. The Court of Appeals affirmed under that interpretation of ORS 656.019.
The Supreme Court disagreed with the Court of Appeals and the trial court, construing the expression “claim” in ORS 656.019(1) to refer not just to initial claims, but also to other claims for conditions denied on major cause grounds. In reaching this conclusion, the court relied in part on its construction of the term “injury” in Brown v. SAIF, 361 Or 241 (2017), which it had interpreted to refer to particular medical conditions rather than to the broader “work-injury incident.” The court remanded the case to the trial court under its more expansive reading of ORS 656.019(1) to encompass individual medical conditions, not just initial injury or disease claims.
Beyond that, the Supreme Court left it to the trial court and the parties on remand to address in the first instance whether ORS 656.019(1) provides a substantive exception to the exclusive remedy provision in ORS 656.018, or merely imposes certain procedural limitations on bringing a civil action, which must then be based on some other source of law, such as the remedy clause of Article I, section 10, of the Oregon Constitution, as ultimately interpreted by the Supreme Court in Horton v. OHSU, 359 Or 168 (2016). The court also left unanswered whether a civil action for a denied new or omitted medical condition can be based on the denied condition alone, or must take into consideration other benefits received on the accepted initial claim. Hence, the Supreme Court’s decision leaves many significant questions open for future litigation.
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David Runner is an attorney with SAIF Corporation who periodically provides updates of important Oregon workers’ compensation litigation; used with permission. Click here to contact David.