# Bundy v. NuStar GP LLC

> Oregon Supreme Court · July 7, 2023 · 371 Or. 220

URL: https://www.frixlaw.com/law-library/cases/10627592

## Case

- **Court:** Oregon Supreme Court
- **Decided:** July 7, 2023
- **Citations:** 371 Or. 220; 533 P.3d 21
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** DeHoog
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10627592. Public record. Not legal advice.