Exclusive-remedy provisions of workers' comp statute declared unconstitutional.

The Oregon Supreme Court recently held that the exclusive-remedy provisions of the state workers' compensation statute--where they deprive an employee of a common law cause of action--violate the remedy clause of the Oregon constitution. (Smothers v. Gresham Transfer, Inc., 23 P.3d 333 (Or. 2001).) The remedy clause guarantees every person a remedy "by due course of law" for personal injuries.

The case was brought by Terry Smothers, whose job as a lube technician for a trucking company exposed him to acid mist and fumes. Smothers developed respiratory problems and filed a workers' comp claim, which the company's insurer denied. The workers' comp board affirmed, finding that Smothers's job was not the "major contributing cause" of his injuries, as required for coverage under the statute.

Smothers then sued the company for negligence, but the trial court dismissed his complaint on the ground that the workers' comp statute is the exclusive remedy for all work-related injuries, even if a claim is not compensable. An appellate court affirmed, and Smothers took the case to the state high court, arguing that the statute's exclusive-remedy provisions violated the remedy clause by denying him an opportunity to recover damages for the injuries he suffered at work.

The state supreme court agreed with Smothers and reversed, holding that he should have been allowed to proceed with his negligence action. Writing for the court, Judge Susan Leeson concluded that the purpose of the remedy clause is to protect common law rights that existed when the state constitution was drafted. If the legislature abolishes a common law cause of action for a violation of one of these rights, Leeson said, it must provide a substitute remedy.

"When the drafters wrote the Oregon Constitution, [the] plaintiff would have had a negligence cause of action against his employer for his alleged injuries," Leeson wrote. She also noted that the major-contributing-cause standard in the workers' comp statute did not exist when the constitution was written, so a worker could recover for a work-related incident that was only a contributing cause of his or her injuries.

Now, however, because of the exclusive-remedy provisions of the statute, a worker who fails to satisfy the major-contributing-cause standard has no remedy. In these circumstances, the court concluded, the exclusive-remedy provisions violate the remedy clause by leaving the worker with no means of redress for injuries for which a common law cause of action existed.

Michael Gilbertson, a Portland, Oregon, attorney who represented Smothers, said the case signals the reversal of a trend to deny workers benefits for on-the-job injuries. "Because of the Smothers case, injured Oregonians will either receive their workers' compensation benefits or the employers will be called to answer for negligence through the Oregon court system," he said.