Alcutt v. Adams Family Food Services, Inc.

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FILED: October 09, 2013 IN THE COURT OF APPEALS OF THE STATE OF OREGON 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. Umatilla County Circuit Court CV091364 A147515 Garry L. Reynolds, Judge. Argued and submitted on October 10, 2012. 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. Judgment reversed as to plaintiff's second and third claims for relief; otherwise affirmed. 1 SERCOMBE, J. 2 Plaintiff, after suffering injuries while working at defendant's McDonald's 3 restaurant, filed a workers' compensation claim that was ultimately denied on the ground 4 that, due to preexisting degenerative disc disease, plaintiff's work activities were not the 5 major contributing cause of his disability or need for treatment. See ORS 6 656.005(7)(a)(B); ORS 656.266. Subsequently--and on the basis of the same underlying 7 events--plaintiff filed this civil action against defendant, alleging negligence and 8 violation of workplace-safety rules. The trial court then granted defendant's motion to 9 dismiss for lack of subject matter jurisdiction under ORCP 21 A(1), ultimately reasoning 10 that the exclusive remedy provision of the Workers' Compensation Law, ORS 656.018, 11 barred plaintiff's civil action.1 Plaintiff appeals, arguing that the trial court, in granting 12 defendant's motion, violated plaintiff's rights under the remedy clause of Article I, section 13 10, of the Oregon Constitution, as interpreted by the Supreme Court in Smothers v. 14 Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001),2 and misinterpreted ORS 1 ORS 656.018 provides that, where a worker's injury "aris[es] out of and in the course of employment[,]" the worker's remedy is limited to that provided by Oregon's workers' compensation scheme "except to the extent the worker is expressly given the right under [ORS chapter 656] to bring suit against the employer of the worker for an injury, disease, symptom complex or similar condition." 2 Oregon's remedy clause under Article I, section 10, provides that "every man shall have remedy by due course of law for injury done him in his person, property, or reputation." The Supreme Court summarized the requisite analysis under the remedy clause in Smothers: "[I]n analyzing a claim under the remedy clause, the first question is whether the plaintiff has alleged an injury to one of the absolute rights that 1 1 656.019--a statute enacted soon after Smothers was decided.3 See Or Laws 2001, ch 865, 2 § 15; see also Hudjohn v. S&G Machinery Co., 200 Or App 340, 346 n 3, 114 P3d 1141 3 (2005) (noting that the legislature enacted ORS 656.019 "in response to the Supreme 4 Court's holding in Smothers"). Thus, the question presented on appeal is ultimately 5 whether, under Article I, section 10, or ORS 656.019, plaintiff was entitled to bring his 6 civil action against defendant, notwithstanding the exclusive remedy provision of ORS 7 656.018. For the reasons that follow, we hold that plaintiff was constitutionally entitled 8 to do so and, accordingly, reverse the trial court's judgment of dismissal as to plaintiff's 9 negligence claims.4 Article I, section 10 protects. Stated differently, when the drafters wrote the Oregon Constitution in 1857, did the common law of Oregon recognize a cause of action for the alleged injury? If the answer to that question is yes, and if the legislature has abolished the common-law cause of action for injury to rights that are protected by the remedy clause, then the second question is whether it has provided a constitutionally adequate substitute remedy for the common-law cause of action for that injury." 332 Or at 124; see also Klutschkowski v. PeaceHealth, 354 Or 150, ___, ___ P3d ___ (Sept 26, 2013) (reaffirming that analysis) (slip op at 20-21). 3 ORS 656.019 provides, in relevant part: "An injured worker may pursue a civil negligence action for a workrelated 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 * * *." (Emphasis added.) 4 As set forth below, plaintiff's action includes three claims for relief, two of which pertain to negligence and one of which alleges that defendant violated the Oregon Safe Employment Act (OSEA). We qualify our disposition because, although plaintiff's right to bring his second and third claims (those alleging negligence) is constitutionally 2 1 On September 28, 2007, plaintiff was working at defendant's restaurant, 2 loading ice from a large cooler into the top of a soft-drink dispenser. In order to lift the 3 cooler full of ice into position above the dispenser, plaintiff used a small footstool 4 provided by defendant in order to step up and shift his weight onto the counter where the 5 drink dispenser was located; however, the stool slipped backward, and plaintiff fell to the 6 floor. He subsequently sought treatment for neck and back pain, pain radiating into his 7 arms, and muscle spasms. Imaging revealed disc herniations at L4-5 and C6-7, and 8 plaintiff eventually underwent two surgeries to address those conditions. He filed a 9 workers' compensation claim on October 15, 2007. 10 Following plaintiff's first surgery, defendant arranged an independent 11 medical examination (IME), after which Drs. Neumann and Radecki diagnosed plaintiff 12 with "multilevel degenerative disc disease in the cervical and lumbar spine preexisting 13 the work incident" in addition to the herniated discs at L4-5 and C6-7. Defendant denied 14 plaintiff's workers' compensation claim shortly thereafter, and plaintiff requested a 15 hearing. 16 Prior to the hearing, defendant arranged another IME, after which Dr. 17 Bergquist diagnosed degenerative change of the cervical and lumbar spine, disc 18 herniation at L4-5, and "C7 radiculopathy secondary to foraminal stenosis." Bergquist 19 opined that preexisting degenerative changes in plaintiff's cervical and lumbar spine protected under Article I, section 10, the same cannot be said for plaintiff's first claim for relief (alleging violations of the OSEA). 3 1 constituted the major contributing cause of plaintiff's disability and need for treatment. 2 Moreover, Neumann and Radecki--although each had initially opined that the work 3 incident constituted the major contributing cause of plaintiff's disability and need for 4 treatment--reviewed additional evidence, received additional explanation from 5 defendant's counsel as to the legal meaning of "major" (as opposed to "precipitating") 6 cause, and opined that plaintiff's preexisting degenerative disc disease was the major 7 contributing cause of his disability and need for treatment.5 Finally, in November 2008, 8 plaintiff's surgeon, Dr. Gehling--after performing both aforementioned surgeries-- 9 reviewed the medical evidence and likewise opined that plaintiff's "preexisting 10 degenerative condition" was the major contributing cause of plaintiff's disability and need 11 for treatment. 12 A hearing was convened before an administrative law judge (ALJ) on 13 November 21, 2008, and, on May 8, 2009, the ALJ issued an opinion and order 14 upholding defendant's denial of plaintiff's workers' compensation claim. In reaching that 15 conclusion, the ALJ reasoned: 16 17 18 19 20 21 22 "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 5 Neumann did, however, opine that the work incident was a material cause of plaintiff's disability and need for treatment. 4 1 2 treatment was the preexisting condition, not the work incident. Consequently, [defendant's] denial must be affirmed." 3 Thus, the ALJ concluded that plaintiff's otherwise compensable work injury had 4 combined with his preexisting degenerative disc disease to form a "combined condition," 5 see ORS 656.005(7)(a)(B) (combined conditions), and that, as particularly pertinent here, 6 defendant had met its burden to prove that "the otherwise compensable injury [was] not, 7 or [was] no longer, the major contributing cause" of the disability or need for treatment 8 stemming from that combined condition. ORS 656.266(2)(a) (for purposes of combined 9 condition claims, "[o]nce the worker establishes an otherwise compensable injury, the 10 employer shall bear the burden of proof to establish [that] the otherwise compensable 11 injury is not, or is no longer, the major contributing cause" of the disability or need for 12 treatment of the combined condition). 13 Plaintiff subsequently filed this civil action on September 30, 2009. The 14 operative complaint contained three claims for relief, alleging that defendant had (1) 15 violated the Oregon Safe Employment Act (OSEA);6 (2) committed negligence per se 16 based on those alleged OSEA violations; and (3) been negligent in "requiring the use of a 17 ladder or step stool without adequate non-skid footings[,]" in "failing to provide plaintiff 18 with a ladder of adequate height such that plaintiff could [safely] access and fill the 19 beverage dispenser with ice," in failing to provide a safe means of loading the beverage 20 dispenser with ice, and in requiring plaintiff "to carry, lift and unload an object in such a 6 The OSEA is codified at ORS 654.001 to 654.295, ORS 654.412 to 654.423, ORS 654.750 to 654.780, and ORS 654.991. 5 1 manner as to cause the employee to lose balance." Addressing ORS 656.018 and ORS 2 656.019, plaintiff pleaded that, "[a]t all times material, plaintiff suffered work-related 3 injuries as set forth herein, which were determined, in a final order of a workers' 4 compensation [ALJ], to be not compensable because the work-related incident was not 5 the major contributing cause of plaintiff's injuries." 6 Defendant then moved to dismiss each of plaintiff's claims for lack of 7 subject matter jurisdiction under ORCP 21 A(1). In support of its motion, defendant 8 relied on the exclusive remedy provision of the Workers' Compensation Law, ORS 9 656.018, asserting that it was "immune from liability on [plaintiff's] claims for relief" 10 under that statute. Addressing ORS 656.019, defendant argued that plaintiff was not 11 entitled to bring a civil action because he had not "failed to establish that the work-related 12 incident was the major contributing cause of his alleged injury" pursuant to the text of 13 that statute. (Emphasis in original.) That is, because ORS 656.019 is phrased in terms of 14 "the worker['s]" failure to meet his or her burden of proof as to major contributing cause, 15 defendant emphasized that, before the ALJ, it was the employer's (i.e., defendant's) 16 burden to prove that the work-related incident was not the major contributing cause of 17 plaintiff's injury under ORS 656.266(2)(a). Defendant summarized its argument as to the 18 applicability of ORS 656.019 as follows: 19 20 21 22 23 24 "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 6 1 2 3 denied because of what Defendant proved in the hearing before the ALJ and not because of what Plaintiff failed to prove at that hearing." (Emphases in original.) 4 Defendant also addressed Article I, section 10, and the Supreme Court's 5 decision in Smothers, 332 Or 83, arguing that the court's holding in that case was not 6 applicable because Smothers addressed an occupational disease claim, whereas plaintiff 7 had filed an injury claim governed by "a different standard of proof" than that applicable 8 to occupational disease claims. See ORS 656.266(2)(b); ORS 656.802(2)(a) ("The 9 worker must prove that employment conditions were the major contributing cause of the 10 [occupational] disease." (Emphasis added.)). In other words, defendant argued that 11 Smothers, given the distinct burden of proof as to major contributing cause applicable in 12 that case, simply did not apply, and, therefore, did not support plaintiff's argument that 13 dismissal of his claims on the basis of ORS 656.018 violated the remedy clause. 14 Finally, defendant argued that plaintiff's first and second claims for relief-- 15 those addressing defendant's alleged violations of the OSEA and alleged commission of 16 negligence per se, respectively--were not "'civil negligence' claims." Noting that ORS 17 656.019 addresses only an injured worker's right to "pursue a civil negligence action" and 18 that Smothers construed the remedy clause to protect only absolute common-law rights, 19 defendant argued, with respect to plaintiff's first and second claims, that "[o]ne is based 20 upon a statute and the other is based upon administrative regulations adopted pursuant to 21 a statute[,]" placing them outside the scope of both ORS 656.019 and Article I, section 22 10. 7 1 Plaintiff remonstrated that "the notion that Plaintiff did not fail to prove 2 'major contributing cause' but rather Defendant succeeded in proving 'major contributing 3 cause'" was irrelevant and did not preclude plaintiff from proceeding under ORS 656.019. 4 Pointing to the circumstances underlying the enactment of ORS 656.019 and the 5 legislature's simultaneous amendment of ORS 656.266 (shifting the burden of proof as to 6 major contributing cause to the employer in combined-condition injury cases), Or Laws 7 2001, ch 865, §§ 2, 15, plaintiff correctly noted--as discussed further below--that the 8 "amendments to ORS 656.266 * * * were adopted in the same bill that created ORS 9 656.019 * * *." Accordingly, plaintiff argued, "[t]o give effect to both provisions, to read 10 and apply both provisions harmoniously, the 'worker has failed to establish' major 11 contributing cause whether the burden of production/proof is shifted to the employer or 12 the injured worker." (Emphasis added.) 13 Addressing Article I, section 10, plaintiff argued that "[t]he Court's analysis 14 and holding in Smothers did not turn on ORS 656.019, which did not exist at the time of 15 the Court's decision, and did not turn on who carried the burden of proving major 16 contributing cause." Rather, plaintiff argued, the Supreme Court's holding in Smothers 17 "was based on the major contributing cause standard not existing at common law when 18 Oregon's constitution was adopted and the unconstitutional lack of remedy under ORS 19 Chapter 656 if and when the major contributing cause standard leaves an injured worker 20 without coverage for an otherwise compensable injury." In other words, plaintiff argued 21 that, because his workers' compensation claim was denied on the basis of major 8 1 contributing cause, he was entitled to bring his civil action under both ORS 656.019 and 2 the remedy clause as interpreted in Smothers, irrespective of which party carried the 3 burden of proof before the ALJ. 4 With respect to defendant's remaining arguments, plaintiff directly 5 challenged defendant's "notion that there is a material difference between an 'injury' and 6 an 'occupational disease' for purposes of Article I, Section 10 of the Oregon Constitution, 7 the Court's analysis and holding in Smothers * * *, or ORS 656.019[.]" Citing ORS 8 656.802(2)(c) and ORS 656.804,7 he argued, "That the instant case involves a specific 9 traumatic event (injury), and not a series of events or exposures over time, (occupational 10 disease) does not divest this Court of subject matter jurisdiction over Plaintiff's tort 11 claims arising out of Defendant's negligence." Finally, plaintiff asserted that his claim for 12 negligence per se was simply "a count of common-law negligence" and therefore fell 13 within the ambit of both ORS 656.019 and the remedy clause. He likewise asserted that 14 his OSEA claim was both statutorily permissible and constitutionally protected, arguing 15 that "the court may consider the statutory provisions of the [OSEA] as part of the 'legal 16 standard[s] of conduct' forming the basis of duties in plaintiff's negligence claim." 17 (Citation omitted; second brackets in original; emphasis added.) 18 The trial court ultimately granted defendant's motion to dismiss, concluding 7 Those statutes provide, respectively, that "[o]ccupational diseases shall be subject to all of the same limitations and exclusions as accidental injuries under ORS 656.005(7)," ORS 656.802(2)(c), and,"[s]ubject to ORS 656.005(24) and 656.266(2), an occupational disease, as defined in ORS 656.802, is considered an injury * * * except as otherwise provided in ORS 656.802 to 656.807," ORS 656.804. 9 1 that, under ORS 656.018, it lacked subject matter jurisdiction over plaintiff's action. The 2 court agreed with defendant that ORS 656.019 was inapplicable, reasoning: 3 4 5 6 "All right. I think that [ORS] 656.019 is very clear. Plaintiff has clearly set it forth in paragraph 7 of his complaint that it's necessary, in order to be here, for the worker to have failed to establish that a workrelated incident was the major contributing cause of the worker's injury. 7 8 9 10 11 "That's not the case herein. The [ALJ], for all intents and purposes, found that the worker had shown that. But the [ALJ] also found that the employer had met [its] burden under [ORS 656.266(2)(a)], as it relates to [major contributing cause in combined-condition claims under ORS 656.005(7)(a)(B)]. 12 13 14 "The plaintiff in this case not having fit within the parameters of [ORS 656.019], the Court finds that it's without subject matter jurisdiction and grants the motion." 15 Plaintiff moved for reconsideration; however, the trial court denied that motion on 16 December 20, 2010, and entered a general judgment of dismissal on December 23. 17 On appeal, both parties reprise their arguments below. As noted, plaintiff 18 argues that both ORS 656.019 and the remedy clause, as interpreted by the Supreme 19 Court in Smothers, permit him to proceed with his civil action in circuit court, 20 notwithstanding the exclusive remedy provision of ORS 656.018. In advancing that 21 argument, he continues to assert that ORS 656.019 was intended to apply broadly, such 22 that "the 'worker has failed to establish' major contributing cause whether the burden of 23 production/proof is assigned to the employer or the injured worker." (Emphasis added.) 24 For the reasons set forth below, we conclude, based on the plain text of ORS 656.019, 25 that plaintiff was not entitled to bring his action under that statute. However, we 26 conclude that plaintiff's right to proceed with his negligence claims in circuit court was 10 1 constitutionally protected by the remedy clause, and that, therefore, the trial court erred in 2 dismissing those claims on the basis of ORS 656.018. 3 "We review the trial court's conclusion that it did not have subject matter 4 jurisdiction over [plaintiff's] claim[s] for errors of law." Merten v. Portland General 5 Electric Co., 234 Or App 407, 413, 228 P3d 623, rev den, 348 Or 669 (2010) (citing 6 Spada v. Port of Portland, 55 Or App 148, 150, 637 P2d 229 (1981)). Here, we first 7 consider whether plaintiff was entitled to bring his civil action under ORS 656.019. In 8 light of plaintiff's proffered construction of that statute, we begin with an overview of the 9 interrelated history of the enactment of ORS 656.019 and the Supreme Court's decision in 10 11 Smothers. In January 2001, Senate Bill (SB) 485--a wide-reaching bill providing for 12 numerous changes to Oregon's workers' compensation system--was introduced as a result 13 of collaboration between a group of "stakeholders" to the workers' compensation system 14 appointed by the Governor, the Management-Labor Advisory Committee, and the Senate 15 Committee on Business, Labor and Economic Development. Testimony, House 16 Committee on Business, Labor and Consumer Affairs, SB 485, May 15, 2001, Ex L 17 (statement of Workers' Compensation Division Administrator John Shilts). As pertinent 18 here, section 2 of SB 485--a crucial aspect of the bill subject to extensive discussion-- 19 amended ORS 656.266 such that the burden of proof regarding the major contributing 20 cause standard in combined condition cases, previously borne by the worker in all 21 instances, was shifted to the employer in injury (but not occupational disease) cases. As 11 1 noted above, the current version of ORS 656.266, as amended in 2001, provides that, 2 "[o]nce the worker establishes an otherwise compensable injury, the employer shall bear 3 the burden of proof to establish the otherwise compensable injury is not, or is no longer, 4 the major contributing cause" of the disability or need for treatment of the combined 5 condition. ORS 656.266(2)(a) (emphasis added). When SB 485 passed from the Senate 6 to the House in March 2001, what would later be added to the bill as section 15 and 7 subsequently become ORS 656.019, Or Laws 2001, ch 865, § 15, had yet to be 8 conceived. 9 However, on May 10, 2001, the Supreme Court decided Smothers, 332 Or 10 83, in which the plaintiff's civil negligence action had been dismissed on the ground that 11 it was barred by the exclusive remedy provision of ORS 656.018. Id. at 86. The 12 Supreme Court has since summarized its decision in Smothers as follows: 13 14 15 16 17 18 19 20 21 "Smothers involved an injured employee's challenge to the exclusive remedy provision of the workers' compensation law, [ORS 656.018,] which effectively denied a remedy to a worker in any case in which a worker's employment conditions were not the major contributing cause of the worker's disability or disease: The employee in Smothers had no remedy under the workers' compensation law, because workplace exposure was not the 'major contributing cause' of his debilitating lung condition, and he had no remedy otherwise, because a specific legislative enactment denied him the alternative of seeking a remedy through a tort action. 22 23 24 25 26 27 28 29 "The court reviewed the historical development of the remedy clause of Article I, section 10, and concluded that that clause protects 'absolute common-law rights' that existed when the Oregon Constitution was drafted by guaranteeing that a remedy always would be available for injury to those rights. In considering the plaintiff's claim in Smothers, this court began by noting that a common-law cause of action for negligence existed at the time that the Oregon Constitution was created. The court did not end its analysis there, however. Rather, the court stated that a more specific inquiry was 12 1 2 3 4 5 6 7 8 9 necessary, viz., whether the common law would have recognized a cause of action for negligence under the particular circumstances of that case. In Smothers, the particular circumstances that the court identified were that the plaintiff suffered a permanent injury because the defendant negligently permitted an unsafe condition to develop in the area where the plaintiff worked, that the defendant had been aware that exposure to that condition could harm the plaintiff, and that the defendant did not protect the plaintiff from exposure or warn the plaintiff that he would be exposed to that condition. 10 11 12 13 14 15 16 17 18 19 20 21 22 "After reviewing various sources in an effort to determine the content of the common law at the time that the Oregon Constitution was drafted, the court in Smothers concluded that, in 1857, the common law of Oregon would have recognized that a worker had a cause of action for negligence against his or her employer for failing to provide a safe work environment and for failing to warn of the dangerous conditions to which workers would be exposed. Consequently, the court concluded that the exclusive remedy provision of ORS 656.018 (1985) violated Article I, section 10, because that statute denied the plaintiff any remedy for a wrong with respect to which he would have been entitled to a remedy at the time that the Oregon Constitution was framed. The key consideration in the case was the fact that the statute left the plaintiff with no remedy at all, either through workers' compensation or a traditional tort action." 23 Lawson v. Hoke, 339 Or 253, 257-58, 119 P3d 210 (2005) (internal citations omitted; 24 emphasis in original). In sum, the Smothers court held that a plaintiff who has been 25 denied a workers' compensation remedy due to application of the major contributing 26 cause standard (i.e., where the work incident was a contributing cause, but not the major 27 contributing cause, of the plaintiff's disability or need for treatment) is entitled--if he or 28 she "alleges an injury to an 'absolute' common-law right" that existed when the Oregon 29 Constitution was drafted in 1857--to seek redress for that injury notwithstanding the 30 exclusive remedy provision of ORS 656.018. 332 Or at 135-36. 31 32 Following the Supreme Court's decision in Smothers, the House Committee on Rules, Redistricting and Public Affairs added section 15 (what would ultimately 13 1 become ORS 656.019) to SB 485. Or Laws 2001, ch 865, § 15; see Testimony, House 2 Committee on Rules, Redistricting and Public Affairs, SB 485, June 15, 2001, Ex D 3 (statement of Workers' Compensation Division Administrator John Shilts) (noting that 4 "[t]he SB 485 group met again recently to determine an appropriate response to the 5 Smothers decision" and opining that, although the resulting amendments would "not 'fix' 6 Smothers[,]" other parts of SB 485 would "lessen its impact" by, in part, "increas[ing] the 7 number of claims that will be accepted into the system[.]"). As enacted in 2001 and 8 unchanged to date, ORS 656.019 provides: 9 10 11 12 13 14 15 16 "(1)(a) 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. The injured worker may appeal the compensability of the claim as provided in ORS 656.298, but may not pursue a civil negligence claim against the employer until the order affirming the denial has become final. 17 18 "(b) Nothing in this subsection grants a right for a person to pursue a civil negligence action that does not otherwise exist in law. 19 20 21 22 23 24 25 26 "(2)(a) Notwithstanding any other statute of limitation provided in law, a civil negligence action against an employer that arises because a workers' compensation claim 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 must be commenced within the later of two years from the date of injury or 180 days from the date the order affirming that the claim is not compensable on such grounds becomes final. 27 28 29 30 31 "(b) Notwithstanding paragraph (a) of this subsection, a person may not commence 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, if the period within which such action may be 14 1 2 3 4 commenced has expired prior to the filing of a timely workers' compensation claim for the work-related injury." (Emphases added.) In construing a statute, we examine the text of the statute in context, along 5 with any relevant legislative history, in order to discern and give effect to the legislature's 6 intent. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (setting forth 7 interpretive methodology). With respect to ORS 656.019, the unique timing of the 8 statute's addition to SB 485 in relation to the Supreme Court's decision in Smothers 9 invites speculation as to whether ORS 656.019 was drafted with the pre-SB 485 version 10 of ORS 656.266 in mind, and, consequently, speculation as to whether--consistent with 11 plaintiff's argument--the legislature intended that ORS 656.019 apply broadly irrespective 12 of which party carried the burden of proving (or disproving) major contributing cause. 13 However, regardless of the circumstances underlying its enactment, the text 14 of ORS 656.019 is plain. That is, as defendant repeatedly points out, the statute 15 unambiguously limits the circumstances under which an injured worker may bring a civil 16 negligence action to those where his or her work-related injury "has been determined to 17 be not compensable because the worker has failed to establish that a work-related 18 incident was the major contributing cause * * *." ORS 656.019(1)(a) (emphasis added); 19 see ORS 174.010 ("In the construction of a statute, the office of the judge is simply to 20 ascertain and declare what is, in terms or in substance, contained therein, not to insert 21 what has been omitted, or to omit what has been inserted[.]"); Gaines, 346 Or at 171 (text 22 and context "must be given primary weight in the analysis"); State v. Rodriguez-Barrera, 15 1 213 Or App 56, 62, 159 P3d 1201, rev den, 343 Or 224 (2007) ("If the wording of a 2 statute is truly capable of one, and only one, reasonable construction then, whatever the 3 legislative history may show, it cannot alter the unambiguous meaning of a statute."); 4 Fernandez v. Board of Parole, 137 Or App 247, 252, 904 P2d 1071 (1995) ("[W]e are 5 constrained by the reasonable construction of language that the legislature actually 6 enacted."). 7 In arguing that ORS 656.019 applies irrespective of which party carried the 8 burden of proof before the agency, plaintiff asserts that "[d]efendant's argument requires 9 finding that the legislature enacted a meaningless law[,]" because "no plaintiff could 10 qualify." However, our reservations regarding the legislature's intention in light of the 11 unique history of ORS 656.019 notwithstanding, and recognizing that we indeed "assume 12 that the legislature did not intend any portion of its enactments to be meaningless 13 surplusage[,]" State v. Stamper, 197 Or App 413, 418, 106 P3d 172, rev den, 339 Or 230 14 (2005), that statement is inaccurate. Because injured workers continue to hold the burden 15 of proof with respect to major contributing cause in occupational disease cases involving 16 combined conditions, ORS 656.802(2)(a); ORS 656.266(2)(b), situations will continue to 17 arise in which "the worker has failed to establish that a work-related incident was the 18 major contributing cause" of his or her disability or need for treatment--entitling him or 19 her to "pursue a civil negligence action" under ORS 656.019. Additionally, we note that, 20 although the statute refers repeatedly to the term "injury," that language does not limit the 21 statute's application. See ORS 656.804 ("Subject to ORS 656.005(24) and 656.266(2), an 16 1 occupational disease, as defined in ORS 656.802, is considered an injury * * * except as 2 otherwise provided in ORS 656.802 to 656.807." (Emphasis added.)). 3 That said, we acknowledge that the legislature's use of the term "injury" 4 throughout ORS 656.019, the unique nature and timing of the addition of that statute to 5 SB 485, see ___ Or App ___ (slip op at 11-14), and the legislative history's indication 6 that ORS 656.019 was designed to remedy the constitutional problem addressed in 7 Smothers suggest that the legislature may very well have intended that the statute apply 8 broadly consonant with plaintiff's proffered construction. Nevertheless, given that ORS 9 656.019, as enacted, is not "meaningless," and given that the plain text is susceptible to 10 only one interpretation, we simply cannot alter that interpretation--whatever the 11 legislative history may suggest. See Gaines, 346 Or at 173 ("When the text of a statute is 12 truly capable of having only one meaning, no weight can be given to legislative history 13 that suggests--or even confirms--that legislators intended something different."). 14 Accordingly, we conclude that plaintiff was not entitled to bring his civil 15 negligence action under ORS 656.019, given that, before the ALJ, he did not "fail[ ] to 16 establish" that the work incident was the major contributing cause of the disability or 17 need for treatment resulting from his combined condition. Rather, defendant succeeded 18 in proving, under ORS 656.266(2)(a), that "the otherwise compensable injury [was] not * 19 * * the major contributing cause" of plaintiff's disability or need for treatment. We 20 therefore reject plaintiff's reliance on ORS 656.019 as a basis for subject matter 21 jurisdiction and turn to his constitutional argument and the analysis set forth in Smothers. 17 1 2 3 4 5 6 7 8 9 10 11 As set forth above, Smothers enunciated a two-part test, to be applied on a "case-by-case" basis, applicable to potential remedy clause violations: "[I]n analyzing a claim under the remedy clause, the first question is whether the plaintiff has alleged an injury to one of the absolute rights that Article I, section 10 protects. Stated differently, when the drafters wrote the Oregon Constitution in 1857, did the common law of Oregon recognize a cause of action for the alleged injury? If the answer to that question is yes, and if the legislature has abolished the common-law cause of action for injury to rights that are protected by the remedy clause, then the second question is whether it has provided a constitutionally adequate substitute remedy for the common-law cause of action for that injury." 12 332 Or at 124. Applying that test, the court held that the plaintiff in Smothers--who had 13 suffered respiratory conditions and other ailments allegedly due to exposure to chemical 14 fumes at work, but who was left without a remedy under the workers' compensation 15 scheme due to his failure to prove that work was the major contributing cause of his 16 disability or need for treatment--having "alleged an injury of the kind that the remedy 17 clause protects, and having demonstrated that there was no remedial process available 18 under present workers' compensation laws, * * * should have been allowed to proceed 19 with his negligence action" notwithstanding ORS 656.018. Id. at 136. 20 Defendant, as an initial matter, argues that this case must be distinguished 21 from Smothers--relying again on the allocation of the burden of proof as to major 22 contributing cause in asserting that "the application of ORS 656.018 in this case would 23 not violate Article I, section 10." Specifically, defendant argues that, because plaintiff 24 brought an injury, rather than an occupational disease, claim, he was not "saddled by the 25 'major contributing cause' standard" applicable in Smothers. Further, citing Lawson, 339 18 1 Or 253, defendant analogizes ORS 656.018 to an "affirmative defense" and argues that 2 "[t]he Legislature's decision to provide employers with what is similar to an affirmative 3 defense does not violate Article I, section 10." (Footnote omitted.) However, in 4 advancing those arguments, defendant misses the essence of Smothers. Although that 5 case was decided prior to the aforementioned amendment to ORS 656.266 respecting the 6 burden of proof as to major contributing cause, its ultimate conclusion--that the exclusive 7 remedy provision of ORS 656.018 was unconstitutional as applied to a worker left "with 8 no process through which to seek redress for an injury for which a cause of action existed 9 at common law"--is no less applicable where the burden of proof before the agency is 10 shifted to the employer. 332 Or at 135; see also Olsen v. Deschutes County, 204 Or App 11 7, 20-21, 127 P3d 655, rev den, 341 Or 80 (2006) ("The relevant foundational principles 12 underlying the holding in Smothers * * * lead inevitably to the conclusion that any 13 legislation limiting a worker who alleges negligence against his or her employer for 14 failure to provide a safe workplace to the remedies afforded by the workers' 15 compensation system cannot constitutionally be applied when the workers' compensation 16 system provides no remedy at all."). Accordingly, we reject defendant's constitutional 17 arguments without further discussion. 18 Applying the Smothers analysis here, we conclude that only plaintiff's first 19 claim for relief (violation of the OSEA) is not protected by the remedy clause; plaintiff's 20 remaining claims (which, as explained below, simply constitute two "counts" of 21 negligence) are both constitutionally protected and, pursuant to Smothers, are actionable 19 1 2 notwithstanding the exclusive remedy provision of ORS 656.018. First, plaintiff's third claim for relief (negligence) was undoubtedly 3 recognized at common law, and, given that it is nearly identical to the plaintiff's claim in 4 Smothers, we do not hesitate to conclude that it falls within the scope of Article I, section 5 10. See, e.g., Olsen, 204 Or App at 20-21 ("[A]t common law, a worker had a cause of 6 action for negligence, and hence a remedy for injury, against an employer for failure to 7 provide a safe workplace."). Plaintiff's claim for negligence, as noted, alleges in pertinent 8 part that defendant required plaintiff to use a footstool "without adequate non-skid 9 footings" and required that he perform his job in an unsafe manner. In other words, in his 10 third claim for relief, plaintiff effectively alleged that, as in Smothers, defendant "fail[ed] 11 to provide a safe workplace and fail[ed] to warn of dangerous working conditions to 12 which the employee would be exposed." Smothers, 332 Or at 129. Consequently, in this 13 case, as in Smothers, because the legislature--via the exclusive remedy provision of ORS 14 656.018--abolished plaintiff's right to seek redress for injury allegedly caused by 15 defendant's negligence, plaintiff was constitutionally entitled "to proceed with his 16 negligence action." Id. at 136. 17 Plaintiff's second claim for relief (negligence per se) is protected by the 18 remedy clause for the same reason; in fact, under our case law, plaintiff's "claim" for 19 negligence per se is simply a second "count" of negligence--not a separate claim for 20 relief. See Kim v. Multnomah County, 328 Or 140, 144 n 1, 970 P2d 631 (1998) ("[The] 21 [p]laintiffs' complaint alleges negligence and negligence per se, which are simply 20 1 alternative legal theories of liability for negligence. The complaint, therefore, properly is 2 viewed as stating two counts but not, as plaintiffs sometimes erroneously state, as stating 3 two separate claims for relief." (Citation omitted; emphasis in original.)). Although the 4 Supreme Court has expressly stated that "[t]he phrase 'negligence per se' can apply only 5 to cases brought on a theory of liability for negligence rather than liability grounded in 6 obligations created by statute[,]" Shahtout v. Emco Garbage Co., 298 Or 598, 601, 695 7 P2d 897 (1985), here, plaintiff's "theory of liability" is indeed negligence. That is, 8 although plaintiff's second "claim" relies in part on standards of care established by the 9 OSEA, it ultimately alleges, simply, that defendant failed to provide plaintiff with safe 10 equipment and required that plaintiff perform his work in a dangerous manner. Boiled 11 down to its essence, that "claim" effectively reiterates plaintiff's third claim alleging 12 negligence and, accordingly, is protected by the remedy clause. See Smothers, 332 Or at 13 129 (cause of action for "failure to provide a safe workplace and failure to warn of 14 dangerous working conditions" protected by the remedy clause). 15 Plaintiff's first claim (violation of the OSEA), however, does not fit within 16 the Smothers framework. Simply put, the OSEA is a statutory scheme, enacted in 1973, 17 Or Laws 1973, ch 833, that did not exist at common law. Plaintiff may well be correct in 18 contending that "the court may consider the statutory provisions of the [OSEA] as part of 19 the 'legal standard[s] of conduct' forming the basis of duties in plaintiff's negligence 20 claim." However, for purposes of the remedy clause, we look to the "cause of action" at 21 issue, Smothers, 332 Or at 129, and violation of a statute that postdates the drafting of the 21 1 Oregon Constitution by over 100 years is simply not a cause of action that would have 2 been available at common law. Accordingly, ORS 656.018 may properly be applied to 3 bar plaintiff's claim for defendant's alleged violation of the OSEA. 4 In sum, the plain text of ORS 656.019 leaves plaintiff outside of its scope 5 given that he did not "fail[ ] to establish" that the work incident was the major 6 contributing cause of the disability or need for treatment of his combined condition. 7 However, pursuant to the remedy clause of Article I, section 10, plaintiff was 8 nevertheless constitutionally entitled to bring his civil negligence claims in circuit court, 9 with the exception of his claim for defendant's alleged violations of the OSEA. The trial 10 court therefore erred in dismissing plaintiff's second and third claims for relief on the 11 ground that they were barred by ORS 656.018. 12 13 Judgment reversed as to plaintiff's second and third claims for relief; otherwise affirmed. 22

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