Bundy v. NuStar GP LLC

220 July 7, 2023 No. 18

IN THE SUPREME COURT OF THE

STATE OF OREGON

Danny BUNDY,

Petitioner on Review,

v.

NUSTAR GP, LLC,

Respondent on Review,

and

SHORE TERMINALS LLC,

Defendant.

(CC 110810280) (CA A169235) (SC S069448)

On review from the Court of Appeals.*

Argued and submitted December 1, 2022.

John Burgess, Law Offices of Daniel Snyder, Portland,

argued the cause for petitioner on review. Carl Post filed the

brief for petitioner on review.

Daniel R. Bentson, Bullivant Houser Bailey PC, Seattle,

argued the cause and filed the brief for respondent on review.

James S. Coon, Thomas, Coon, Newton & Frost, Portland,

filed the brief for amicus curiae Oregon Trial Lawyers

Association.

Before Flynn, Chief Justice, and Duncan, Garrett, and

DeHoog, Justices, and Balmer and Walters, Senior Judges,

Justices pro tempore.**

DeHOOG, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

______________

* Appeal from Multnomah County Circuit Court, Christopher J. Marshall,

Judge. 317 Or App 193, 506 P3d 458 (2021).

** Nelson, J., resigned February 25, 2023, and did not participate in the

decision of this case. Bushong and James, JJ., did not participate in the consider-

ation or decision of this case.

Cite as 371 Or 220 (2023) 221

222 Bundy v. NuStar GP LLC

DeHOOG, J.

This case considers whether the legislature intended

to create an exception to ORS 656.018, the so-called “exclu-

sive remedy” provision of the Workers’ Compensation Law,

for injured workers whose claims have been deemed noncom-

pensable on “major contributing cause” grounds.1 Plaintiff,

who brought the negligence action at issue here against

his employer (defendant), acknowledges that the Workers’

Compensation Law generally immunizes covered employ-

ers against civil liability for injuries arising out of a work-

er’s employment. Plaintiff argues, however, that his case falls

within a statutory exception to that rule and that the trial

court and Court of Appeals, both of which ruled in defendant’s

favor on that legal question, erred in concluding otherwise.

We conclude that plaintiff’s statutory argument fails, and

that the trial court and Court of Appeals therefore did not err.

At issue in this case is whether ORS 656.019, which

imposes certain procedural requirements on cases such as

plaintiff’s, also serves as a “substantive exception” to ORS

656.018’s exclusive-remedy provision—that is, does ORS

1

ORS 656.018 provides, in part:

“(1)(a) The liability of every employer who satisfies the duty required by

ORS 656.017 (1) is exclusive and in place of all other liability arising out

of injuries, diseases, symptom complexes or similar conditions arising out

of and in the course of employment that are sustained by subject workers,

the workers’ beneficiaries and anyone otherwise entitled to recover damages

from the employer on account of such conditions or claims resulting there-

from, specifically including claims for contribution or indemnity asserted by

third persons from whom damages are sought on account of such conditions,

except as specifically provided otherwise in this chapter.

“* * * * *

“(2) The rights given to a subject worker and the beneficiaries of the sub-

ject worker under this chapter for injuries, diseases, symptom complexes or

similar conditions arising out of and in the course of employment are in lieu

of any remedies they might otherwise have for such injuries, diseases, symp-

tom complexes or similar conditions against the worker’s employer under

ORS 654.305 to 654.336 or other laws, common law or statute, except to the

extent the worker is expressly given the right under this chapter to bring suit

against the employer of the worker for an injury, disease, symptom complex

or similar condition.

“* * * * *

“(7) The exclusive remedy provisions and limitation on liability provi-

sions of this chapter apply to all injuries and to diseases, symptom complexes

or similar conditions of subject workers arising out of and in the course of

employment whether or not they are determined to be compensable under

this chapter.”

Cite as 371 Or 220 (2023) 223

656.019 provide a statutory exception that permits a civil neg-

ligence action to proceed under plaintiff’s circumstances, or

does it merely impose an exhaustion requirement for actions

that are otherwise permitted?2 In answering that question,

we apply our familiar approach to discerning legislative

intent. We note at the outset, however, that we must also

take into account the somewhat complex interplay between

two bodies of case law that intersect at ORS 656.019: our

case law regarding workers’ compensation, and our case law

regarding the “remedy clause” found in Article I, section 10,

of the Oregon Constitution. We specifically must determine

whether, in enacting ORS 656.019, the legislature intended

to provide the remedy required by Smothers v. Gresham

Transfer, Inc., 332 Or 83, 23 P3d 333 (2001), overruled in

part by Horton v. OHSU, 359 Or 168, 376 P3d 998 (2016), or,

instead, intended only to establish procedural requirements

for the type of claims identified in Smothers. As discussed

below, we conclude that the legislature intended to estab-

lish procedural requirements for claims that it then believed

were constitutionally required under our case law, but that it

did not intend to create its own substantive exception appli-

cable to cases such as plaintiff’s. Accordingly, we affirm.

I. BACKGROUND

A. Facts and Procedural History

Having previously come before this court, this case

has a lengthy procedural history. The Court of Appeals

accurately described that history in full. Bundy v. Nustar

GP LLC, 317 Or App 193, 195-200, 506 P3d 458 (2022)

(Bundy III). We limit our recitation of the facts and proce-

dural history to the most salient points for the purposes of

this opinion.

2

ORS 656.019 provides, in part:

“(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.

“(b) Nothing in this subsection grants a right for a person to pursue a

civil negligence action that does not otherwise exist in law.”

224 Bundy v. NuStar GP LLC

In the current round of litigation, plaintiff appeals

a judgment dismissing his complaint for failure to state

a claim, ORCP 21 A(1)(h). Thus, on review, we accept the

facts alleged in the operative complaint as true. Philibert v.

Kluser, 360 Or 698, 700, 385 P3d 1038 (2016). We stated the

underlying facts under the same standard in our previous

decision:

“While employed by defendant as a terminal operator,

plaintiff was assigned to stay and monitor the air quality

from malfunctioning machinery without being given safety

equipment, and he was exposed to dangerous levels of die-

sel, gasoline and ethanol fumes. After that incident, defen-

dant initially accepted a workers’ compensation claim for

‘non-disabling exposure to gasoline vapors.’ Later, plaintiff

asked defendant to accept and pay compensation for addi-

tional conditions arising out of the same incident, including

‘somatization disorder’ and ‘undifferentiated somatoform

disorder’ (which we refer to collectively as ‘somatoform dis-

orders’). Defendant specified that it was treating each of

plaintiff’s subsequent requests as a ‘consequential condi-

tion claim’ and was denying those claims on the basis that

plaintiff’s work exposure was not the major contributing

cause of the subsequent conditions. Plaintiff challenged

those denials through the workers’ compensation system,

but he was unable to establish that the work incident was

the major contributing cause of his somatoform disorders.

The Workers’ Compensation Board ultimately issued a final

order determining that the disorders were not compensa-

ble conditions because plaintiff failed to establish that his

work-related incident was the major contributing cause.”

Bundy v. NuStar GP, LLC, 362 Or 282, 285, 407 P3d 801

(2017) (Bundy II) (footnote omitted).

While plaintiff’s workers’ compensation claims

were pending, he initiated this civil action against defen-

dant, NuStar GP, LLC.3 During the first round of litigation,

plaintiff amended his complaint several times. After receiv-

ing the final order of the Workers’ Compensation Board,

plaintiff moved to amend his complaint a fourth time.

3

Although defendant Shore Terminals, LLC appears in the caption of this

case, only NuStar GP, LLC, is named as defendant in the negligence claims that

are at issue on review. Our references to “defendant” throughout this opinion are

therefore references to defendant NuStar GP, LLC.

Cite as 371 Or 220 (2023) 225

Plaintiff’s proposed fourth-amended complaint

would have added three negligence-related claims that,

in plaintiff’s view, would fall within an exception to the

immunity ordinarily afforded employers by ORS 656.018.

Specifically, plaintiff’s fourth-amended complaint would

have expressly alleged that the board’s determination—that

he had failed to establish that his work-related incident

was the major contributing cause of his injuries—brought

his negligence claims against defendant within the scope of

ORS 656.019. That statute provides, in part:

“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 determin-

ing 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.”

ORS 656.019(1)(a).

Defendant objected to the filing of plaintiff’s fourth-

amended complaint, arguing that ORS 656.019 did not

apply, because, although the board had determined that

certain of plaintiff’s medical conditions were not compen-

sable, his workers’ compensation claim as a whole had been

accepted. After responding to that argument, plaintiff

added that, if ORS 656.019 did not entitle him to pursue

damages for medical conditions deemed noncompensable

on major-contributing-cause grounds, then the workers’

compensation scheme violated Article I, section 10, of the

Oregon Constitution by effectively denying him a remedy.

Defendant responded to plaintiff’s remedy-clause argument

much as it had to his statutory argument, asserting that he

had not, in fact, been denied a remedy, because the board’s

decision had not denied him recovery as to his entire claim,

but only as to certain conditions.

The trial court agreed with defendant on both

points and denied plaintiff’s request to amend his complaint.

Plaintiff appealed. The Court of Appeals affirmed the trial

226 Bundy v. NuStar GP LLC

court’s ruling on both grounds. Bundy v. NuStar GP, LLC,

277 Or App 785, 806, 808, 373 P3d 1141 (2016) (Bundy I).

Plaintiff petitioned this court for review, present-

ing only his statutory argument that ORS 656.019 provided

an exception to ORS 656.018’s exclusive-remedy provision.

Bundy II, 362 Or at 284. We accepted review to determine

the scope of ORS 656.019. In our resulting decision, we deter-

mined that ORS 656.019 encompassed claims, like plain-

tiff’s, that had been accepted in part and denied in part.

Id. at 297 (holding that “the legislature used the terms

‘work-related injury’ and ‘the claim’ in the expansive sense

that encompasses claims—like plaintiff’s—for a condition

that is denied on major-contributing-cause grounds after an

initial claim acceptance has been issued”).

At the conclusion of our decision in Bundy II, we

briefly addressed an argument that defendant had raised for

the first time in its briefing to this court. In its respondent’s

brief, defendant had questioned the assumption that the

phrase “may pursue” in ORS 656.019 expressed a grant of

authority to pursue civil negligence actions that fell within

the scope of that provision, as opposed to merely establish-

ing procedural requirements for such claims if they were

otherwise available. We observed that both parties had

offered “plausible” textual interpretations of ORS 656.019.

Id. at 297-98. But we expressly reserved “the comprehensive

statutory analysis needed to resolve whether the legislature

intended ORS 656.019 to function as a substantive excep-

tion to the exclusive remedy provision.” Id. at 298. Our hold-

ing did not preclude the parties from arguing that issue on

remand. Id. at 299.

On remand, plaintiff filed his fourth-amended com-

plaint, again asserting both statutory and constitutional

grounds for his argument that he was entitled to pursue a

negligence claim notwithstanding ORS 656.018. Defendant

moved to dismiss that complaint, arguing, as it had in this

court, that ORS 656.019 did not itself provide a “substantive

exception” to ORS 656.018. Defendant additionally argued

that plaintiff’s constitutional argument had been rejected

by the Court of Appeals in Bundy I and that plaintiff had not

challenged that holding on review in this court, rendering

Cite as 371 Or 220 (2023) 227

that aspect of the Court of Appeals’ decision binding law of

the case.

The trial court again agreed with both of defen-

dant’s arguments, concluding that the legislature had not

intended for ORS 656.019 to serve as a substantive exception

to the exclusive-remedy provision, ORS 656.018, and that

plaintiff’s constitutional argument was barred on law-of-

the-case grounds. That court therefore granted defendant’s

motion to dismiss plaintiff’s fourth-amended complaint and

entered judgment for defendant.

Plaintiff again appealed. Plaintiff assigned error

to the trial court’s dismissal of the complaint, but he chal-

lenged only the trial court’s ruling that ORS 656.019 did not

provide a substantive exception to ORS 658.018. Following

an extensive examination of ORS 659.019’s text, context,

and legislative history, the Court of Appeals held that stat-

ute to be solely procedural—that is, not a substantive excep-

tion to ORS 656.018. Bundy III, 317 Or App at 200-06 (“[W]e

agree with the trial court that ORS 656.019(1)(a) has all the

hallmarks of a procedural statute that governs the time for

bringing a negligence action; it is not a substantive excep-

tion to the immunity provided in ORS 656.018.”).

Plaintiff again petitioned for review, reprising

the statutory argument that he had made in the Court of

Appeals and the trial court, but not the remedy clause argu-

ment that those courts had rejected on various grounds.

We subsequently accepted review to consider whether ORS

656.019 provides a substantive exception to ORS 656.018’s

exclusive-remedy provision.

Thus, the current posture of this case can be sum-

marized as follows: At various stages of this litigation plain-

tiff has advanced two distinct arguments that, in his view,

support the conclusion that he is entitled to pursue his civil

negligence claims despite the exclusive-remedy provision of

the Workers’ Compensation Law. His statutory argument—

that ORS 656.019 provides a substantive exception to ORS

656.018—is squarely before this court. Significantly, how-

ever, plaintiff has effectively abandoned his second argu-

ment: that the remedy clause entitled him to bring those

228 Bundy v. NuStar GP LLC

claims. First, on remand, the trial court ruled that the law

of the case doctrine barred plaintiff’s constitutional argu-

ment, and plaintiff did not assign error to that ruling on

appeal. Second, and more simply, although plaintiff argues

that we must construe the Workers’ Compensation Law to

avoid constitutional concerns, he has not challenged—either

in the Court of Appeals or on review—the trial court’s rejec-

tion of his argument that he is constitutionally entitled to a

remedy.4

Plaintiff’s omission of that constitutional argu-

ment is noteworthy because an analysis of that issue would

require us to fully grapple with the implications of our hold-

ing in Horton, 359 Or 168, which overruled the reasoning

in Smothers, 332 Or 83, but left the underlying holding

intact. See Bundy II, 362 Or at 289 n 10 (noting that “Horton

overruled the construction of the remedy clause on which

Smothers relied” but “did not specifically overrule Smothers’s

ultimate holding that injured workers who ‘receive no com-

pensation benefits’ have a constitutional right to pursue a

civil action for their injury” (internal citations omitted)).

Rather than undertaking that inquiry, our task here is to

decide the only issue presented for this court’s review, which,

as noted, is whether ORS 656.019, standing alone, serves as

a substantive exception to the exclusive remedy provision,

ORS 656.018. We turn to that question.

B. Historical Background Surrounding the Enactment of

ORS 656.019

Resolving the question of legislative intent under-

lying this case requires us to apply our familiar statutory-

construction framework, in which we examine the relevant

text in context, together with any helpful legislative history.

State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).

However, because of the unique historical circumstances

surrounding the enactment of ORS 656.019 and the inter-

play between those events and our remedy-clause case law,

we provide context for our analysis by first outlining the his-

tory of ORS 656.019 before taking a closer look at the statu-

tory text.

4

We address plaintiff’s argument regarding the constitutional “avoidance

canon” below. 371 Or at 245.

Cite as 371 Or 220 (2023) 229

1. The Workers’ Compensation Law generally

In 1913, the Oregon legislature adopted the

“Workmen’s Compensation Act.” See Salem Hospital v. Olcott,

67 Or 448, 449-50, 136 P 341 (1913) (explaining adoption of

Workmen’s Compensation Act). Later, this court observed

that the purpose of the workers’ compensation statutes was

twofold: to afford workers protection in the form of compen-

sation for work-related injuries while at the same time pro-

tecting employers from costly litigation. See Bigby v. Pelican

Bay Lbr. Co., 173 Or 682, 692, 147 P2d 199 (1944). To further

those goals, the workers’ compensation system effectuates

a quid pro quo, with injured workers giving up the right to

pursue civil negligence actions against their employers and

those employers assuming liability for work-related injuries

without regard to fault. See Errand v. Cascade Steel Rolling

Mills, Inc., 126 Or App 450, 453-54, 869 P2d 358 (1994), rev’d

on other grounds, 320 Or 509, 888 P2d 544 (1995) (describing

the quid pro quo underlying workers’ compensation system).

In Oregon’s first workers’ compensation statute, the

provision relating to the surrender of civil claims by injured

workers specified that benefits received for work-related

injuries under the statute were “in lieu of” other claims

against the employer. Or Laws 1913, ch 112, § 12. That pro-

vision is the predecessor to—and original version of—the

exclusive-remedy provision now codified as ORS 656.018.

Notably, however, under the workers’ compensation

system as originally enacted, participation was “not compul-

sory”; an employer was “free to accept the provisions of the

act or to reject them” as the employer saw fit, and employees

chose at the time of employment “whether or not [to] come

under the terms of the act.” Evanhoff v. State Industrial Acc.

Com., 78 Or 503, 517, 518, 154 P 106 (1915) (describing Or

Laws 1913, ch 112, §§ 10-12). In other words, section 12, as

enacted, could not accurately be described as an exclusive-

remedy provision, because both parties to the workers’ com-

pensation system were free to opt into or out of the system.

2. Workers’ compensation as an exclusive remedy

In subsequent years, the Workers’ Compensation

Law was subject to several legislative changes. When that

230 Bundy v. NuStar GP LLC

law was recodified in 1965, the legislature removed the vol-

untary nature of the system and, subject to specific exclu-

sions, required all employers having at least one employee

and their workers to comply with the system. Or Laws 1965,

ch 285, §§ 8-9. Through that recodification, what had been

Oregon Laws, chapter 112, section 12, became ORS 656.018

and stipulated that, except as specifically provided other-

wise, a complying employer “is relieved of all other liability

for compensable injuries.” ORS 656.018(1) (1965) (emphasis

added). Over the next 35 years, the legislature continued to

make minor changes to ORS 656.018, as described in our

earlier decision in this case:

“In 1995, * * * the legislature amended ORS 656.018 to pro-

vide that the exclusive remedy provision would apply to all

work-related injuries ‘whether or not they are determined

to be compensable under this chapter.’ Or Laws 1995,

ch 332, § 5. That expansion of the exclusive remedy pro-

vision created a category of injury for which the workers’

compensation laws barred a civil negligence action but did

not provide compensation benefits in exchange.

“Initially, the legislature made the expansion of the

exclusive remedy provision temporary, providing in the

same 1995 law that the new language would be deleted

from ORS 656.018 on December 31, 2000 (metaphorically, a

‘sunset’ of the expanded exclusive remedy). Or Laws 1995,

ch 332, §§ 5a, 66. The legislature later postponed that sun-

set date in 1999 as part of a compromise package of amend-

ments to the workers’ compensation laws. Or Laws 1999,

ch 6, §§ 1, 4, 5.”

Bundy II, 362 Or at 288 (footnote omitted). Thus, as

amended in 1995, the exclusive-remedy provision set out

in ORS 656.018 no longer purported to limit liability only

as to workplace injuries deemed “compensable” under the

Workers’ Compensation Law.

3. Smothers

After that more expansive exclusive-remedy provi-

sion had gone into effect, at least one worker challenged its

constitutionality in court. That worker, whose case would

later come before this court in Smothers, 332 Or 83, had

Cite as 371 Or 220 (2023) 231

brought a negligence action for injuries he had suffered at

work. Those injuries had been determined to be noncompen-

sable under the Workers’ Compensation Law on the ground

that the worker “could not prove that the work exposure was

the major contributing cause of his injuries.” Id. at 135. The

trial court had granted the defendant’s motion to dismiss

the action based on the exclusive-remedy provision of the

Workers’ Compensation Law, and, on review in this court,

the worker argued that he had been denied a remedy for

the injuries suffered at work, in violation of the remedy

clause in Article I, section 10, of the Oregon Constitution.

Id. at 86.

4. Senate Bill 485 (2001)

While Smothers was working its way through the

courts, the state legislature continued its efforts to improve

various aspects of the workers’ compensation system:

“In January 2001, Senate Bill (SB) 485—a wide-reaching

bill providing for numerous changes to Oregon’s workers’

compensation system—was introduced as a result of col-

laboration between a group of ‘stakeholders’ to the work-

ers’ compensation system appointed by the Governor, the

Management-Labor Advisory Committee, and the Senate

Committee on Business, Labor and Economic Development.

Testimony, House Committee on Business, Labor and

Consumer Affairs, SB 485, May 15, 2001, Ex L (statement

of Workers’ Compensation Division Administrator John

Shilts).”

Alcutt v. Adams Family Food Services, Inc., 258 Or App

767, 777, 311 P3d 959 (2013), rev den, 355 Or 142 (2014). SB

485 (2001) passed from the State Senate to the House of

Representatives in March 2001. At the time, the bill did not

include section 15, which would later become ORS 656.019.

Or Laws 2001, ch 865, § 15.

Five days before the House took up SB 485, this

court announced its decision in Smothers, 332 Or 83. The

court, after conducting an extensive review of the histori-

cal underpinnings of Article I, section 10, agreed with the

plaintiff, holding that applying the exclusive-remedy pro-

vision in ORS 656.018 to bar his negligence claim would

232 Bundy v. NuStar GP LLC

unconstitutionally deny him the right to a remedy guar-

anteed by Article I, section 10, of the Oregon Constitution.

Id. at 135-36. In effect, the court held that an exception to

the exclusive-remedy provision in ORS 656.018 was consti-

tutionally required.

The Smothers decision represented a sea change in

our remedy-clause jurisprudence. See id. at 115-24 (discuss-

ing the court’s prior decisions interpreting Article I, section

10, before announcing new framework). The Smothers court

described a new analytical approach to analyzing claims

under that clause. Under that analysis, a court would first

determine whether a cause of action for the alleged injury

was cognizable under the common law of Oregon when the

Oregon Constitution was adopted in 1857. Id. at 124. If the

cause of action had existed at that time—and if the legis-

lature had subsequently abolished that common-law cause

of action, thereby abrogating rights presumably entitled to

protection under the remedy clause—then the next question

for the court would be whether the legislature had provided

a constitutionally adequate substitute for the common-law

cause of action. Id. Applying that framework to the case

before it, the court concluded that the plaintiff had the

right to pursue his negligence claim notwithstanding ORS

656.018 (1995). Id. at 136.

5. The legislature’s response to Smothers

In the House of Representatives, where SB 485

remained under consideration, the Smothers decision cre-

ated immediate turmoil amongst legislators and interested

parties. Because Smothers had held that a worker was con-

stitutionally entitled to bring a separate civil negligence

action for certain claims, the various groups that had been

involved in drafting SB 485 were concerned that that deci-

sion had upset the delicate balance of interests between

employers and workers, which the compromises reflected

in SB 485 had rested upon. We describe that reaction to

Smothers and the resulting changes to SB 485 in further

detail below; for now it should suffice to say that the legisla-

tors and interested parties quickly began “fixing” the issue

that Smothers had created, changing existing sections of SB

Cite as 371 Or 220 (2023) 233

485 and, in direct response to Smothers, adding a new sec-

tion, section 15, now codified at ORS 656.019.5 The 2001 leg-

islature then approved SB 485 as amended. Minutes, House

Rules, Redistricting and Public Affairs Committee, June 18,

2001, 5; Tape Recording, Third Reading to the House, SB

485, July 4, 2001, Tape 234, Side B; Tape Recording, Senate

Floor Proceedings, SB 485, July 5, 2001, Tape 277, Side A

(Senate concurred in House amendments and repassed bill.).

6. Our inquiry

The historical context surrounding the enactment

of ORS 656.019 helps frame our inquiry in this case. We

must determine whether the legislature’s purpose in enact-

ing ORS 656.019 was to codify the judicially recognized

exception to the exclusive-remedy provision of the Workers’

Compensation Law or, instead, to provide a procedural

exhaustion requirement for claims that fit the Smothers

exception and were therefore constitutionally entitled to

proceed.

II. ANALYSIS

With our inquiry thus framed, we turn to the com-

prehensive statutory analysis that we expressly reserved in

our previous decision. As noted, that requires us to examine

the relevant text in context, together with any helpful leg-

islative history. State v. Gaines, 346 Or at 171-72. “If, after

consideration of text, context, and legislative history, the

intent of the legislature remains unclear, then the court may

resort to general maxims of statutory construction to aid

in resolving the remaining uncertainty.” PGE v. Bureau of

Labor and Industries, 317 Or 606, 612, 859 P2d 1143 (1993).

In conducting our analysis, we address the parties’ various

arguments at the relevant steps of that analysis.

A. Text

We begin with the text. For purposes of our inquiry,

the relevant text is that found in the first sentence of ORS

656.019(1)(a), which reads in full:

5

Neither party disputes that ORS 656.019 was enacted in response to

Smothers. The parties disagree, however, as to what exactly the legislature

intended to accomplish in enacting the statute.

234 Bundy v. NuStar GP LLC

“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 determin-

ing that the claim is not compensable has become final.”

As a threshold matter, we note that the legislature’s chosen

words—specifically the phrase, “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”—

mirror Smothers’s holding. 332 Or at 135 (“[I]f a workers’

compensation claim * * * is denied because the worker has

failed to prove that the work-related incident was the major

* * * contributing[ ] cause of the injury, then the exclusive

remedy provisions of ORS 656.018 are unconstitutional.”).

That choice of words reinforces the notion that the legis-

lature was specifically addressing the type of negligence

claims that, under Smothers, were constitutionally exempt

from the exclusive-remedy provision.

In arguing their respective views regarding the leg-

islature’s intent in enacting ORS 656.019, the parties high-

light differing portions of the first sentence of ORS 656.019

(1)(a). Plaintiff emphasizes the phrase “may pursue,” argu-

ing that it expresses a grant of authority to pursue actions

that fall within the scope of the statutory language—that is,

negligence actions for work-related injuries that are deemed

noncompensable because the work-related incident has not

been shown to be the major contributing cause of the injury.

Defendant, in turn, focuses on the phrase, “only after an

order determining that the claim is not compensable has

become final.” (Emphases added.) In defendant’s view, that

language indicates that what the legislature intended to do

was impose procedural requirements for workers seeking

to pursue “Smothers claims,” i.e., claims that the Workers’

Compensation Law does not authorize, but that Smothers

held workers were nonetheless entitled to pursue. And, as we

observed in our previous decision, each party’s textual read-

ing of ORS 656.019(1)(a) is plausible. See Bundy II, 362 Or at

297-98 (describing plaintiff’s construction of the statute as

“consistent with the ordinary meaning of the term ‘may’ as

Cite as 371 Or 220 (2023) 235

‘have permission to[,]’ ” while recognizing that defendant’s

“interpretation of the phrase is also plausible”). Nothing

that either party has argued in this round of appeal causes

us to question that conclusion. Thus, with that preliminary

understanding in mind, we now turn to the statutory con-

text for further guidance regarding the statute’s intended

meaning.

B. Context

The context of a statute “includes other provisions

of the same statute and other related statutes.” PGE, 317 Or

at 611. Defendant argues that the second sentence of ORS

656.019(1)(a) confirms that the limitations set forth in the

statute concern when a negligence claim may be brought,

and not whether such a claim can be brought in the first

instance. The second sentence of ORS 656.019(1)(a) provides:

“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.”

Defendant argues that the phrase “may not pursue” and the

word “until” in that sentence, when read together with the

phrases “may pursue” and “only after” in the first sentence

of the paragraph, indicate that the legislature was simply

describing timing restrictions for the types of claims rec-

ognized by Smothers. Consistent with that argument, the

Court of Appeals reasoned that the two sentences, read in

conjunction, “reinforce[d] the view that the words ‘may pur-

sue * * * only after’ and ‘may not pursue * * * until’ are alter-

native ways of describing a timing restriction.” Bundy III,

317 Or App at 202 (ellipses in original).

Plaintiff argues that the mere inclusion of an

exhaustion requirement for workers pursuing negligence

claims does not alter the plain meaning of ORS 656.019.

And, to some extent, we agree. That is, if the plain text of

that provision were to be unambiguous, then nothing about

the inclusion of an exhaustion requirement would necessar-

ily lead us to conclude that ORS 656.019(1)(a) did not also

provide a substantive exception to ORS 656.018. But the

plain text of ORS 656.019 is not unambiguous. As we have

236 Bundy v. NuStar GP LLC

already acknowledged, defendant’s reading of the plain text

as only establishing a timing requirement is plausible; thus,

defendant has not argued that we should disregard that

plain text. And, although it is not dispositive, we agree with

the Court of Appeals’ reasoning that the parallel wording

of the two sentences of ORS 656.019(1)(a) lends some sup-

port to the notion that ORS 656.019 is intended to govern

the timing of civil negligence claims, and not to create its

own exception to the exclusive-remedy provisions of ORS

656.018.

As further support for that understanding of ORS

656.019(1)(a), defendant points to the next paragraph of the

same subsection, arguing that ORS 656.019(1)(b) dispels

any doubt that the legislature intended for ORS 656.019

(1)(a) to establish procedural rules and not create substan-

tive rights. ORS 656.019(1)(b) provides:

“Nothing in this subsection grants a right for a person

to pursue a civil negligence action that does not otherwise

exist in law.”

In defendant’s view, that disclaimer clarifies that the leg-

islature did not intend for ORS 656.019(1)(a) to authorize

a claim for negligence without an independent source of

legal authority, namely, the remedy clause as construed

in Smothers. Plaintiff and amicus Oregon Trial Lawyers’

Association (OTLA) provide a nuanced response. In their

view, ORS 656.019(1)(a) does not “grant” any rights; rather

it “restores” a common-law right to bring a civil negligence

claim that is “granted” by the remedy clause. Thus, they

argue that recognizing the right to bring a civil negligence

action for work-related injuries under ORS 656.019(1)(a)

does not conflict with ORS 656.019(1)(b). Plaintiff’s argu-

ment rests on his understanding of the holding in Smothers.

According to plaintiff, that holding, which first identified

whether a cause of action existed in the Oregon common

law in 1857, recognized the common-law right to bring civil

negligence claims for work-place injuries. Plaintiff there-

fore argues that his construction of ORS 656.019(1)(a)—as

providing a substantive exception to ORS 656.018—is con-

sistent with ORS 656.019(1)(b) because ORS 656.019(1)(a)

Cite as 371 Or 220 (2023) 237

“restores” a right that “otherwise exists in law,” namely the

Oregon common law.

Plaintiff’s understanding—that ORS 656.019

cleared the way for workers to pursue “Smothers claims,”

the right to which was “grant[ed]” by other sources of law,

not ORS 656.019—may be plausible, but it at most explains

why ORS 656.019(1)(b) does not necessarily foreclose his

construction of ORS 656.019(1)(a). It does not advance his

argument that the legislature intended to create its own

exception to the exclusive-remedy provision. And in our

view, the better understanding of ORS 656.019(1)(b) is that

it was intended to clarify that ORS 656.019(1)(a) does not

grant a right to bring a civil negligence action beyond any

that Smothers might constitutionally require. That is, given

the historical context in which ORS 656.019 was enacted,

the legislature’s reference to a “right that does not other-

wise exist in law” appears to allude to the right addressed

in Smothers. And because the “right” at issue there was

the “right” of injured workers whose workers’ compensation

claims were denied on major-contributing-cause grounds

to bring civil negligence suits, the legislature appears to

have been acknowledging what Smothers required, while

“grant[ing]” nothing more.

That view is supported by a separate contextual

clue not noted by either party. See Dept. of Human Services

v. J. R. F., 351 Or 570, 579, 273 P3d 87 (2012) (addressing

court’s “obligation to interpret the statutes correctly, which

includes an obligation to consider relevant context, regard-

less of whether it was cited by any party”). In considering a

statute’s context, we examine all the law contained in the

session laws, including parts of session laws not codified

into the Oregon Revised Statutes. See Owens v. Maass, 323

Or 430, 434 n 5, 918 P2d 808 (1996) (examining uncodified

section of session laws as part of contextual analysis).

When the legislature enacted the foregoing changes

to the Workers’ Compensation Law, Oregon Laws 2001,

chapter 865, section 15, was codified as ORS 656.019. Two

subsections, (a) and (b), accompanied section 15 and were

passed into law by the legislature but not codified into the

Oregon Revised Statutes. Subsection 15a, in particular,

238 Bundy v. NuStar GP LLC

offers additional insight into the purposes of ORS 656.019.

That subsection reads, in full:

“To assist the Legislative Assembly in developing

a constitutionally adequate system of exclusive reme-

dies for workplace injuries, the Workers’ Compensation

Management-Labor Advisory Committee [MLAC] shall

recommend to the Seventy-second Legislative Assembly an

exclusive, no-fault, expeditious alternative remedy to civil

litigation for injured workers who have established that

their injuries were work-related but whose claims have

been denied because the workers have failed to establish

that work-related incidents were the major contributing

cause of their injuries.”

Or Laws 2001, ch 865, § 15a.

It is telling that the 2001 Legislative Assembly

directed MLAC to present for the very next legislature’s con-

sideration an exclusive, alternative remedy for injured work-

ers whose claims were denied on major-contributing-cause

grounds. That directive lends further support for defen-

dant’s understanding of ORS 656.019, because it strongly

suggests that the legislature envisioned a future in which

workers like the plaintiff in Smothers would have a remedy

within the workers’ compensation system. Because section

15a indicates that the legislature anticipated developing a

remedy within the Workers’ Compensation Law to replace

that required by Smothers, it is doubtful that the legislature

also intended to affirmatively authorize a judicial remedy by

creating a substantive exception to ORS 656.018.

C. Legislative History

We return to ORS 656.019’s legislative history.

Defendant considers the statements of various witnesses

and legislators regarding SB 485—especially those describ-

ing the new law as creating a process for pursuing Smothers

claims—to be essentially dispositive. Plaintiff responds that

the relevant legislative history is far less helpful than defen-

dant suggests. For support, plaintiff points to our previous

opinion, in which we first observed that “the legislative his-

tory reveals an intention to capture and limit the kind of

civil actions that the legislature believed Smothers would

allow,” but then ultimately concluded that the legislature

Cite as 371 Or 220 (2023) 239

may have intended that ORS 656.019 apply to a broader cat-

egory of claims than Smothers contemplated. Bundy II, 362

Or at 295-96.

Plaintiff is correct in observing that we previously

reviewed the legislative history of ORS 656.019, but our

focus at the time was on an issue other than the one now

before us. When reviewed in light of the question presented

at this stage of the litigation, the legislative history proves

to be less ambiguous and, ultimately, highly indicative that

the legislature intended to create a process by which claims

protected under Smothers could be judicially pursued, and

not a right to pursue such claims whether or not the consti-

tution guaranteed such a right.

As discussed above, the provision that became ORS

656.019 was added to an existing package of amendments

to the Workers’ Compensation Law after we issued our deci-

sion in Smothers. Thus, our review of the legislative history

focuses on what occurred in the legislature following our

announcement of that decision.

When we issued Smothers, SB 485 (by then SB

485A) was under consideration by the House Committee

on Business, Labor, and Consumer Affairs. Discussion

of the bill immediately turned to the impact of Smothers.

Witnesses disagreed as to that impact. Some described the

Smothers decision as “narrow,” only rendering a small por-

tion of the workers’ compensation scheme unconstitutional.

Tape Recording, House Committee on Business, Labor, and

Consumer Affairs, SB 485A, May 15, 2001, Tape 115, Side

A (statement of Jim Egan, representative of OTLA). Others

took a broader view. For example, although we expressly

stated in Smothers that “the constitutionality of the over-

all workers’ compensation statutory program is not in ques-

tion,” 332 Or at 125, at least one witness believed that our

decision in that case could cast doubt on the constitution-

ality of the entire concept of the exclusive remedy in the

workers’ compensation chapter. Tape Recording, House

Committee on Business, Labor, and Consumer Affairs, SB

485A, May 15, 2001, Tape 115, Side A (statement of attor-

ney Kevin Mannix). As a potential means of avoiding such

consequences, the same witness suggested a constitutional

240 Bundy v. NuStar GP LLC

referral that would enshrine the constitutionality of the

exclusive-remedy provision in the Oregon Constitution. Id.

Addressing the Smothers case on more narrow grounds, a

legislator questioned whether the legislature should remove

the “major contributing cause language” from the work-

ers’ compensation chapter, thereby removing the gap that

Smothers addressed. Tape Recording, House Committee on

Business, Labor, and Consumer Affairs, SB 485A, May 15,

2001, Tape 114, Side B (statement of Rep Randy Leonard).

Debate continued at the May 17, 2001, hearing of

the House Committee on Business, Labor, and Consumer

Affairs. Chris Davie of SAIF Corporation testified. After

discussing the possibility of a constitutional amendment or

a change to the major-contributing-cause standard, Davie

offered a measured response, opining that perhaps the leg-

islature should wait until it had seen the full impact of the

Smothers decision on the workers’ compensation system.

Tape Recording, House Committee on Business, Labor, and

Consumer Affairs, SB 485A, May 17, 2001, Tape 117, Side

A (statement of Chris Davie). Meanwhile, he offered one

suggestion:

“There is one suggestion that I would make, though, and

that is that the Supreme Court didn’t clearly spell out the

procedure for a worker who wants to pursue this kind of

lawsuit. And we think it would be helpful if the legislature

could do that. * * * [T]he court did talk about a two-step

process. First, the worker files a claim. The claim is then

denied, and at that point the worker can pursue some legal

action against the employer if they choose to do so. The court

didn’t exactly say that that’s what you have to do. And to try

and resolve some of these procedural questions that might

come up, it might be useful for the legislature to just clarify

that in the law, so that as we go forward everyone will know

the road map for getting through this new system.”

Id. (emphases added). At the conclusion of the hearing, the

committee passed SB 485A to the House Committee on

Rules, Redistricting and Public Affairs.

At the June 18, 2001, hearing of the House Com-

mittee on Rules, Redistricting, and Public Affairs, the com-

mittee took up an amended version of SB 485A that included

the provision that is now ORS 656.019, section 15. John

Cite as 371 Or 220 (2023) 241

Shilts, the Workers’ Compensation Division Administrator,

testified that those amendments were produced by the

group of “stakeholders” in the workers’ compensation sys-

tem appointed by the Governor. See Testimony, House

Committee on Rules, Redistricting, and Public Affairs, SB

485A, June 15, 2001, Ex D (noting that “[t]he SB 485 group

met again recently to determine an appropriate response to

the Smothers decision. Their recommendations are found in

the -A11 amendments in front of you.”).

Because the SB 485 group was charged with pro-

posing the amendments that would lead to the final version

of SB 485A, that group’s explanation of the purpose of those

amendments is particularly significant. One member of the

group, Tim Nesbitt, testified at the June 15 hearing and

gave the following testimony regarding section 15:

“Despite our differences, we were asked to reconvene as a

labor-management work group and attempt to respond to,

if not ‘fix,’ the situation created by the Smothers decision.

And, after five meetings and much discussion, we have

come to an agreement on the following three courses of

action.

“We have clarified how and when workers must exhaust

their attempt to seek a remedy through the workers comp

system * * *;

“We have recommended that DCBS gather information

on the incidence and outcome of Smothers cases, so that we

can better assess their frequency and cost * * * and;

“We have agreed that MLAC should develop ‘an exclu-

sive, no-fault, expeditious alternative process and remedy’

for Smothers-type claimants as an alternative to the court

system and recommend such an alternative to the next

legislature.”

Testimony, House Committee on Rules, Redistricting, and

Public Affairs, SB 485A, June 15, 2001, Ex E (statement of

Oregon AFL-CIO President Tim Nesbitt) (emphases added).

Nesbitt’s three comments quoted above relate to SB 485A

sections 15, 15b, and 15a, respectively. At least two aspects

of those comments are noteworthy. First, the witness’s use

of the words “respond” and “fix” in reference to the Smothers

decision—terminology used repeatedly by witnesses and

242 Bundy v. NuStar GP LLC

legislators discussing that decision—provides some indica-

tion that Smothers was viewed as an obstacle whose effects

needed to be undone, or at least overcome. Given that sen-

timent, it is unlikely that the legislature or the proponents

of the -A11 amendments were interested in etching the

requirements of Smothers in stone.6 Second, and to similar

effect, Nesbitt’s explanation that section 15 clarified how

and when workers could bring the civil negligence claims

contemplated by Smothers indicates that the purpose of

section 15 was to establish a process for injured workers

to bring Smothers claims, and not to codify a substantive

exception.

On the House floor, prior to the vote, Representative

Carl Wilson described SB 485A, explaining that,

“the bill clarifies the process the injured workers must fol-

low to exhaust their workers’ compensation remedy, shield-

ing all parties from the extra cost of having to pursue both

the workers’ compensation claim and court case at the

same time.”

Tape Recording, House Floor Proceedings, SB 485A, July 4,

2001, Tape 234, Side B (statement of Rep Carl Wilson). SB

485A passed to the Senate. Before the Senate voted on the

bill, Senator Roger Beyer noted:

“This bill * * * says that a person has to go through the

workers’ compensation system prior to entering the court

system in a work—case of a workplace injury. They have to

go through the workers’ compensation system first before

they can do that.”

Tape Recording, Senate Floor Proceedings, SB 485A, July 5,

2001, Tape 277, Side A (statement of Sen Roger Beyer).

The foregoing legislative history supports several

conclusions. The proponents and legislators involved with

drafting the amendments that would become ORS 656.019

were deeply concerned with the impact that Smothers would

6

Indeed, Nesbitt’s statement that the amendments were an “attempt to

respond to, if not ‘fix,’ the situation created by the Smothers decision[,]” sug-

gests that he, at least, viewed section 15 as a means of accommodating claims

protected by Smothers until an adequate substitute remedy could be enacted,

and not as a means of making Smothers claims a substantive component of the

Workers’ Compensation Law.

Cite as 371 Or 220 (2023) 243

have on the entire workers’ compensation system. They were

offered various solutions designed to address the problem

that they felt Smothers had created. As noted, the legisla-

tive history is replete with comments by witnesses and leg-

islators seeking to “fix” Smothers. Given that almost unani-

mously negative response to Smothers, it is unlikely that the

legislature would immediately seek to codify the exception

that Smothers mandated. Rather, it is far more likely that

those involved in passing the amendments to SB 485 sought

to accommodate what Smothers required—a pathway for

injured workers to pursue relief for claims denied on major-

contributing-cause grounds—while leaving for another day

(perhaps as soon as the next legislative session) the issue of

a long-term “fix” for Smothers: the development of an exclu-

sive, alternative path within the existing system for injured

workers to pursue those claims.

D. Final Considerations

Plaintiff and OTLA make two additional arguments

in support of their interpretation of ORS 656.019, neither of

which we find persuasive. First, they rely on ORS 174.010

and its dictate that, “[i]n the construction of a statute, * * *

where there are several provisions or particulars[,] such con-

struction is, if possible, to be adopted as will give effect to

all.” Both plaintiff and OTLA argue that the practical con-

sequence of construing ORS 656.019 as a solely procedural

statute is that such a construction would render the statute

meaningless, contrary to ORS 174.010’s mandate that we

construe it, “if possible,” so as to “give effect to all” its pro-

visions. As we understand their reasoning, they argue that,

unless ORS 656.019 establishes a substantive exception to

ORS 656.018—that is, unless it affirmatively provides a

right of action—ORS 656.019 merely expresses procedural

requirements for a civil action that, at least post-Horton,

does not exist.

We disagree with that argument for two reasons.

For one thing, we question its premise that the cause of

action required by Smothers no longer exists. True, in

Horton, this court overruled the remedy-clause analysis

announced in Smothers. 359 Or at 218-19 (expressly over-

ruling Smothers and noting that “Smothers clearly erred in

244 Bundy v. NuStar GP LLC

holding that the remedy clause locks courts and the legisla-

ture into a static conception of the common law as it existed

in 1857”). However, the facts of Horton did not implicate the

workers’ compensation system and, as we noted in our previ-

ous decision, although “Horton overruled the construction of

the remedy clause on which Smothers relied[,]” that decision

“did not specifically overrule Smothers’ ultimate holding

that injured workers who receive no compensation benefits

have a constitutional right to pursue a civil action for their

injury.” Bundy II, 362 Or at 289 n 10 (internal quotation

marks and citation omitted). Thus, an injured worker whose

workers’ compensation claim has been denied on major-

contributing-cause grounds may still argue that Article I,

section 10, entitles the worker to pursue a civil negligence

action notwithstanding ORS 656.018. And if that argument

were to succeed, the worker’s civil claim would be subject to

ORS 656.019’s procedural requirements, just as the enact-

ing legislature intended.7

For another thing, even if subsequent events had

effectively rendered ORS 656.019 moot, that would not impli-

cate the cited provision of ORS 174.010. As we have repeatedly

emphasized, our paramount goal in construing statutes is to

determine the intent of the legislature that enacted them.

By instructing us to give effect, “if possible,” to all provisions

of a statute, ORS 174.010, the legislature has provided us

with a tool for assessing that intent; that is, the legislature

has told us that it would not intend to enact a meaningless

provision. But as with all statutes, the most relevant time for

purposes of determining the intended effect of ORS 656.019

is the time of its enactment. See Holcomb v. Sunderland,

321 Or 99, 105, 894 P2d 457 (1995) (explaining that, when

discerning the legislature’s intent, the court “focuses on

what the legislature intended at the time of enactment and

7

As previously noted, plaintiff does not argue at this stage of the litigation

that, if ORS 656.019 does not provide an exception to ORS 656.018, then the

exclusive-remedy provision must, under Smothers, give way to his right to pursue

a negligence claim. We therefore do not consider that argument. We note, how-

ever, that the facts of this case are different from those that led to the holding in

Smothers; moreover, although we observed in Bundy II that we had not overruled

Smothers’s specific holding in Horton, it bears also mentioning that we also had

no occasion in Horton to consider that specific holding. Whether the application

of Horton’s remedy-clause analysis would lead to a different outcome in Smothers

is an issue we leave for another day.

Cite as 371 Or 220 (2023) 245

discounts later events”). And, as discussed above, the legis-

lature believed at the time of ORS 656.019’s enactment that

claims denied on major-contributing-cause grounds had to

be allowed, despite the exclusive-remedy provision in ORS

656.018. Thus, whether or not the provisions of ORS 656.019

all have continuing effect, there is no dispute that they were

effective when ORS 656.019 was enacted. Nothing in ORS

174.010 requires more than that.

Plaintiff and OTLA’s second and last remain-

ing argument is that the “avoidance canon”—under which

courts seek to avoid interpreting statutes in ways that would

render them unconstitutional—requires that we construe

ORS 656.019 as providing a substantive exception to ORS

656.018. They argue that defendant’s proposed construction

of ORS 656.019 would deny plaintiff the remedy for his inju-

ries that Article I, section 10, guarantees. Thus, they argue,

that construction would render the exclusive-remedy provi-

sion, and specifically ORS 656.018(7), unconstitutional as

applied.

The problem with that argument is that, under our

approach to statutory construction, we do not resort to gen-

eral maxims of statutory interpretation if a statute appears

unambiguous following an examination of the statute’s

text, context, and legislative history. See, e.g., Chaimov v.

Dept. of Admin. Services, 370 Or 382, 398 n 7, 520 P3d 406

(2022) (so observing). And, in our view, our foregoing review

of the text, context, and legislative history of ORS 656.019

removes any uncertainty regarding that statute’s intended

meaning. That is, we have no remaining doubt whether the

legislature intended to create its own substantive exception

to ORS 656.018 when it enacted ORS 656.019. As a result,

there is no ambiguity, and consideration of the avoidance

canon is not warranted.8

8

Even if that were not the case, plaintiff and OTLA’s reliance on the canon

would seem to be misplaced. Their argument appears to be directed at the consti-

tutionality of ORS 656.018, not ORS 656.019, the statute we are construing here.

We are aware of no case in which the goal of preserving the constitutionality of

one statute (here, ORS 656.018) has informed a court’s construction of another

statute (here, ORS 656.019). Finally, whether or not it would have been appro-

priate to apply the avoidance canon to resolve any ambiguity in ORS 656.019

that we might have found, it would not be appropriate for plaintiff to rely on that

canon to revive constitutional arguments that he has chosen not to maintain.

246 Bundy v. NuStar GP LLC

III. CONCLUSION

After Smothers, the legislature understood that

workers’ compensation claimants who were denied bene-

fits on major-contributing-cause grounds would be entitled

to pursue recovery in civil negligence actions, and the leg-

islature took steps to regulate that process, including by

dictating when such actions were to be initiated. The leg-

islature did not intend to codify an exception for such civil

negligence actions; indeed, the legislature that enacted ORS

656.019 anticipated rendering such actions unnecessary—

prohibited, even—as soon as the next legislative session.

We therefore conclude that the legislature did not intend for

ORS 656.019 to be a substantive exception to ORS 656.018’s

exclusive-remedy provision. Rather, it enacted ORS 656.019

as a procedural statute to regulate a process that, following

Smothers, the legislature believed it would be required to

accommodate until such time as it could provide claimants

with an adequate, substitute remedy.

As discussed above, plaintiff has not contended on

review that he is constitutionally entitled to an exception—

and we therefore express no view on that question—but we

conclude that plaintiff has not established the existence of

a statutory exception under ORS 656.019. The trial court

therefore did not err when it granted defendant’s motion to

dismiss plaintiff’s complaint.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.