SALEM, Ore. (Leagl Newsline) - Oregon law bars a worker from suing over exposure to toxic fumes for which he was already paid under the state’s workers’ compensation system, an appeals court ruled, in a case that previously made its way to the Oregon Supreme Court and drew strong interest from the state’s trial lawyers.
Danny Bundy was exposed to dangerous levels of diesel, gasoline and ethanol fumes as a terminal operator for Nustar, and the company paid his workers’ comp claim for non-disabling exposure to gasoline fumes. Bundy later sought compensation for additional medical conditions he attributed to the same incident, but Nustar rejected them, saying workplace exposure was not the major contributing cause.
Bundy challenged the denials through the workers’ comp system but lost. He then sued Nustar, filing multiple complaints in an effort to make claims that got around the near-total immunity from negligence suits provided to employers under the law. He argued ORS 656.019 allowed him to proceed with a lawsuit after his claims had been denied.
That section of the workers’ comp law had been passed after the Oregon Supreme Court, in Smothers v. Gresham Transfer, ruled an earlier version unconstitutional because it stripped workers of the right to sue over claims even if they weren’t compensable through the workers’ comp system. The revised law says a worker “may pursue” a negligence lawsuit “only after” a final order rejecting his claim under workers’ comp.
The trial court rejected Bundy’s argument and the Oregon Court of Appeals upheld the decision. Then the Oregon Supreme Court issued another decision overruling Smothers and affirming the authority of state legislators to fashion alternate remedies for tort claims.
Bundy appealed to the Oregon Supreme Court on the question of whether ORS 656.019 meant he could proceed with a negligence lawsuit after the Workers’ Compensation Board denied his claims. The high court agreed with Bundy that the appeals court had incorrectly considered his later illnesses to be part of “the claim” that he received compensation for already but declined to decide whether the law created an exception to the liability protection for employers.
The case went back to trial court, where Bundy lost again, and he appealed again, drawing briefs in support from the Oregon Trial Lawyers Association. But the Court of Appeals ruled against him again, stepping in to answer the question the Oregon Supreme Court had avoided.
“This case over the years has presented a kaleidoscope of shifting arguments involving the intersection of workers’ compensation statutes and remedies clause jurisprudence,” the appeals court said, in a Jan. 26 decision by Judge Bronson James.
The trial lawyers urged the appeals court to avoid interpreting the law in a way that created a potential conflict with the constitutional right to trial. But the appeals court said that argument had no relevance in this case, since the law was written to provide “a procedural pathway for constitutionally required claims.”
The appeals court interpreted the law to mean that workers can’t sue if their claim has already been addressed by the workers’ comp system. In support, it cited another section of the law that states it doesn’t provide a right to file a negligence claim “that does not otherwise exist in law.”
The Oregon legislature expanded the scope of workers’ comp law in 1995 to bar negligence lawsuits against employers regardless of whether they were compensable under workers comp, but after the state Supreme Court ruled that unconstitutional lawmakers discussed adding a provision requiring workers to exhaust their administrative remedies before resorting to court, the appeals court observed. As for potential constitutional arguments, the court said it will “leave for another day the more complex question of what is left” after the Oregon Supreme Court’s decisions.