Oregon Supreme Court Allows Injured Workers To File Civil Actions Against Their Employers
Injured workers who found themselves without a remedy when their work injury claims were denied were given another option when the Oregon Supreme Court issued its opinion in Smothers v. Gresham Transfer, Inc. in May 2001.
Terry Smothers filed an “occupational disease” claim for a lung disorder developed after exposure to fumes and mist containing sulfuric acid and small amounts of hydrochloric and hydrofluoric acids (used to clean trucks) which drifted into the pit where he worked as a lube technician. His workers’ compensation claim was denied since he could not prove that this exposure was the “major contributing cause” of his lung condition.
1995 changes to the Oregon Workers’ Compensation law made workers’ compensation the “exclusive remedy” for work-related injuries, even if a claim was found not compensable. This left Smothers without any remedy at law for hospitalization and extensive lost time from work due to repeated episodes of pneumonia and bronchitis that eventually developed into a lung condition rendering him unable to return to work.
In a civil lawsuit, Smothers alleged his employer was negligent in subjecting him to acid mist and fumes that caused permanent injury to his lungs; skin blisters, pain and swelling in the joints of his hands, elbows and knees; degeneration of his toenails, fingernails and teeth; and other physical ailments. The circuit court and the Oregon Court of Appeals told him that due to the “exclusive remedy” provision, he had no legal remedy against his employer outside of Workers Compensation, despite the fact that his condition was clearly related to his exposure to chemicals at work.
Smothers argued that the “remedy clause” of the Oregon Constitution guaranteed him a remedy at law for his injuries. The Oregon Supreme Court agreed. It reversed the lower courts and authorized Smothers to pursue his injury action against his employer in the Circuit court. The Court’s lengthy and exhaustively researched opinion drew from sources ranging from Harvard Law Review articles, 19th century legal treatises and the original sources of the Oregon Constitution all the way back to Blackstone’s Commentaries on the Laws of England and the Magna Carta.
This case should be of interest to the medical community since it highlights the difference between the standard for proving medical causation in a work injury and proving causation in a negligence lawsuit. For his lung condition to be found compensable under Workers’ Compensation law, Smothers was required to show medical proof that work was its “major contributing cause.” By contrast, in suing his employer for negligence, Smothers need only prove that his work was a contributing cause of his condition.
In short, the Oregon Supreme Court found that the Workers’ Compensation laws hit Smothers with a “double whammy” — first, requiring him to prove his work was the major contributing cause of his lung condition; and, second, making the Workers’ Compensation law Smothers’ only (“exclusive”) avenue of legal relief, even after his Comp claim had been denied. The Supreme Court ruled that this double whammy not only violated his rights under the Oregon Constitution, but also ran against the grain of centuries of Anglo-American jurisprudence.
The Supreme Court of Oregon had ruled early in 1995 that injured workers with denied (non-compensable) claims could sue their employers, despite the exclusive remedy provisions of the Workers’ Compensation law at that time 2. In response, later in 1995, the legislature amended the law to provide that workers’ compensation is the exclusive remedy for work-related injuries, even if the claim is not compensable.
In the Smothers opinion, the Supreme Court states, in effect, that the incremental legislative reforms of the Workers’ Compensation Act (which have been shrinking compensability of work claims) have gone too far if they leave an injured worker with no remedy whatsoever:
“* * * just as the legislature cannot deny a remedy entirely for injury to constitutionally protected common-law rights, * * * [citing a 1901 Oregon case], neither can it substitute an ‘emasculated remedy’ that is incapable of restoring the right that has been injured, * * * [citing a 1925 Oregon case].” (Smothers, 332 Or at 119-20)
“* * * if a workers’ compensation claim for an alleged injury to a right that is protected by the remedy clause is denied because the worker has failed to prove that the work-related incident was the major, rather than merely a contributing, cause of the injury, then the exclusive remedy provisions of ORS 656.018 (1995) are unconstitutional under the remedy clause, because they leave the worker with no process through which to seek redress for injury for which a cause of action existed at common law.” (Id. at 135)
This does not change the status of the “major cause” requirement in many workers’ compensation cases. You will still be asked for your medical opinion as to whether work was the “major cause” of your patients’ injuries and occupational diseases.
What this does mean is that your patients with claims that are denied because they could not prove work was the major cause, may now sue their employers. If they are able to prove that their employers’ negligence contributed to – or was a substantial (even if not “the major”) contributing factor in — their work place injuries, the employer will be held liable for all resulting injuries in the same way as the driver at fault in an auto accident lawsuit.
Having rendered an opinion on major cause in a Workers’ Compensation claim, you may later be called upon for an opinion on a lower threshold of causation in a personal injury action involving the very same injury.
This article was prepared by Arthur W. Stevens III and Peter E. Yeager