Bundy v. NuStar GP, LLC

282 December 29, 2017 No. 67

IN THE SUPREME COURT OF THE

STATE OF OREGON

Danny BUNDY,

Petitioner on Review,

v.

NUSTAR GP, LLC;

and Shore Terminals, LLC,

Respondents on Review.

(CC 110810280; CA A152918; SC S064188)

On review from the Court of Appeals.*

Argued and submitted May 08, 2017.

Carl Post, Portland, argued the cause and filed the briefs

for the petitioner on review.

Thomas W. Songdag, Lane Powell PC, Portland, argued

the cause and filed the brief for the respondents on review.

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

filed the brief amicus curiae Oregon Trial Lawyers Association.

David L. Runner, Salem, filed the brief amicus curiae

SAIF Corporation, Timber Products Company and BDI

Staffing.

Before Balmer, Chief Justice, and Kistler, Walters, Landau,

Nakamoto, Flynn, and Duncan, Justices.**

FLYNN, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

______________

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

Judge. 277 Or 785, 373 P3d 1141 (2016)

**  Brewer, J., retired June 30, 2017, and did not participate in the decision of

this case.

Cite as 362 Or 282 (2017) 283

Case Summary: Plaintiff attempted to allege civil negligence claims against

his employer for harm arising out of plaintiff’s exposure to gasoline vapors at

work. He sought to rely on ORS 656.019 to avoid the exclusive remedy provision

of ORS 656.018 by alleging that the conditions for which plaintiff seeks recovery

in the negligence action were determined to be not compensable under the work-

ers’ compensation laws on the basis that plaintiff failed to prove the work inci-

dent was the major contributing cause. The trial court denied plaintiff’s motion

to amend based on its agreement with defendant’s argument that ORS 656.019

does not apply because plaintiff has a compensable initial workers’ compensa-

tion claim for the same work incident. The Court of Appeals issued a written

decision affirming the judgement of the trial court. Held: ORS 656.019 applies

to both denied initial and subsequent workers’ compensation claims. The court

reserves ruling, however, on whether ORS 656.019 functions as the exception to

ORS 656.018 that plaintiff assumes it does. Defendant did not challenge that

assumption below, and the issue is beyond the scope of the ruling on which the

court allowed review.

The decision of the Court of Appeals is reversed. The judgment of the cir-

cuit court is reversed, and the case is remanded to the circuit court for further

proceedings.

284 Bundy v. NuStar GP, LLC

FLYNN, J.

This case arises out of plaintiff’s attempt to allege

civil negligence claims against his employer, defendant

NuStar GP, LLC, for harm arising out of plaintiff’s exposure

to gasoline vapors at work.1 The trial court denied plain-

tiff’s motion to amend his complaint to allege those claims

after concluding that the claims are barred by the so-called

“exclusive remedy” provision of the Workers’ Compensation

Law, ORS 656.018, a provision that generally immunizes

employers from civil liability for injuries to a worker arising

out of the worker’s employment.2 Plaintiff contends that his

negligence claims are not barred by ORS 656.018 because

they are allowed by ORS 656.019, a statute that governs

negligence actions for an injury “that has been determined

to be not compensable [under the Workers’ Compensation

Law] because the worker has failed to establish that a work-

related incident was the major contributing cause of the

worker’s injury.” Although plaintiff alleged that he suffers

from medical conditions that were determined to be “not

compensable” under that major contributing cause stan-

dard, the trial court and Court of Appeals concluded that

ORS 656.019 does not apply to plaintiff’s negligence action

because the conditions on which plaintiff relies were denied

after defendant accepted a compensable workers’ compensa-

tion claim for plaintiff’s initial condition arising out of the

same workplace incident.

We allowed review to consider whether the Court of

Appeals correctly construed the scope of ORS 656.019, and

we conclude that “the claim” to which ORS 656.019 refers

includes subsequent claims. In responsive briefing in this

court, defendant suggests for the first time that it disputes

the premise that underlies plaintiff’s argument, contending

that, regardless of the scope of ORS 656.019, the statute

does not confer a “substantive right” but merely establishes

1

Although plaintiff has designated defendant Shore Terminals, LLC as an

additional respondent on review, only NuStar GP, LLC, is named as defendant in

the negligence claims that are at issue on review. Our references to “defendant”

throughout the opinion are, thus, references to defendant NuStar GP, LLC.

2

Unless otherwise noted, all statutory references are to the 2011 version of

the Oregon Revised Statutes. There have been no amendments to the pertinent

language.

Cite as 362 Or 282 (2017) 285

procedural requirements for filing actions that are other-

wise exempt from the exclusive remedy provision. That con-

tention is beyond the scope of the statutory construction

ruling that we allowed review to consider, and we expressly

reserve a ruling on the issue for a future appeal in which the

briefing provides the court with fully developed arguments

on the issue.

BACKGROUND

While employed by defendant as a terminal opera-

tor, plaintiff was assigned to stay and monitor the air qual-

ity from malfunctioning machinery without being given

safety equipment, and he was exposed to dangerous levels of

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

dant initially accepted a workers’ compensation claim for

“non-disabling exposure to gasoline vapors.”3 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

disorders”). Defendant specified that it was treating each

of plaintiff’s subsequent requests as a “consequential con-

dition claim” and was denying those claims on the basis

that plaintiff’s work exposure was not the major contribut-

ing 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 compensable

conditions because plaintiff failed to establish that his work-

related incident was the major contributing cause.

In the meantime, plaintiff also filed this civil action

against defendant in which he attempted to allege a claim

for relief that would come within an exception to the immu-

nity afforded by the exclusive remedy provision. To that end,

3

We are ultimately asked to decide whether plaintiff’s allegations state a

negligence claim for which relief is available, so we accept as true the facts that

plaintiff has alleged. Philibert v. Kluser, 360 Or 698, 700, 385 P3d 1038 (2016).

We also describe additional facts that are undisputed and were set out in exhibits

that plaintiff attached in support of his motion to amend.

286 Bundy v. NuStar GP, LLC

plaintiff filed multiple amended complaints, each of which

defendant successfully moved to dismiss. When defendant

moved to dismiss plaintiff’s Third Amended Complaint,

plaintiff sought leave to file a Fourth Amended Complaint to

allege that he had received the board order described above.4

Plaintiff argued that the board’s determination brought his

civil negligence claims within the scope of ORS 656.019 and,

therefore, precluded defendant from relying on the exclusive

remedy provision to defeat plaintiff’s negligence claims.

Defendant did not dispute plaintiff’s premise that claims

within the scope of ORS 656.019 are statutorily exempt

from the exclusive remedy provision, but it contended that

ORS 656.019 does not apply when the injured worker has an

accepted workers’ compensation claim.

The trial court agreed with defendant that plain-

tiff’s allegations—including the negligence claims that he

proposed to plead in a fourth amended complaint—failed to

state a claim for relief that could avoid the exclusive remedy

provision of ORS 656.018. In the Court of Appeals, plaintiff

assigned error to several rulings of the trial court, including

the court’s ruling that ORS 656.019 does not allow plaintiff to

bring his civil negligence claims.5 Plaintiff argued that ORS

656.019 is not limited to “entire claims” and, instead, applies

to any claim for an injurious condition that is determined to

be not compensable under workers’ compensation law on the

basis that the worker failed to establish that a work-related

incident was the major contributing cause. Thus, plaintiff

argued, ORS 656.019 applied to his somatoform conditions.

The Court of Appeals rejected that argument, emphasizing

that ORS 656.019 provides that the injured worker may

pursue the action “ ‘only after an order determining that

the claim is not compensable has become final.’ ” Bundy v.

4

Plaintiff’s proposed Fourth Amended Complaint alleged that numerous

injuries were determined by the order to be not compensable and did not specify

that he was seeking damages only for the somatoform disorders. In this court,

however, plaintiff contends that he is relying on ORS 656.019 only to pursue a

negligence action for damages related to the somatoform disorders.

5  Plaintiff also argued in the Court of Appeals that his allegations stated

a claim for intentional injury and that he has a constitutional right to bring his

negligence action. Bundy v. NuStar GP, LLC, 277 Or App 785, 786, 373 P3d 1141

(2016). The Court of Appeals rejected both arguments, and plaintiff has not chal-

lenged those determinations on review.

Cite as 362 Or 282 (2017) 287

NuStar GP, LLC, 277 Or App 785, 806, 373 P3d 1141 (2016)

(quoting ORS 656.019; emphasis in original). Because plain-

tiff conceded that defendant accepted plaintiff’s initial claim

for the work-related incident, the Court of Appeals agreed

with the trial court that “plaintiff could not bring his negli-

gence claims based on ORS 656.019.”

DISCUSSION

On review, plaintiff urges this court to conclude

that the Court of Appeals and trial court misconstrued the

scope of ORS 656.019.6 Plaintiff relies on the first sentence

of ORS 656.019(1)(a), which provides:

“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.”

Defendant responds that there is one workers’ compensation

claim for any given work incident, which is either accepted

or denied entirely, and that the Court of Appeals correctly

construed ORS 656.019 as applying only when that initial

claim is denied.

A.  Historical Context for ORS 656.019

We begin by describing the historical context out

of which ORS 656.019 arose, because that context is signif-

icant to the issue of statutory construction that we address.

Since inception, the workers’ compensation laws have con-

tained a provision specifying that benefits for work-related

injuries are “in lieu of” other claims against the employer.7

6

Plaintiff does not contend that he had a right to file a Fourth Amended

Complaint. See ORCP 23A (providing that “[a] pleading may be amended by a

party once as a matter of course,” subject to certain exceptions but “[o]therwise

* * * only by leave of court or by written consent of the adverse party”). However,

the trial court denied his motion to amend entirely on the basis of its construc-

tion of ORS 656.019, and we review that determination for legal error. See Alfieri

v. Solomon, 358 Or 383, 391, 365 P3d 99 (2015) (explaining that, even when a

decision is a matter of discretion for the trial court, “where a court’s exercise of

discretion turns on a legal question, such as the meaning of a statute, we review

that determination as a matter of law”).

7

When the workers’ compensation system was initially enacted, participa-

tion was “not compulsory”; an employer was “free to accept the provisions of the

288 Bundy v. NuStar GP, LLC

Or Laws 1913, ch 112, § 12. When the workers’ compensa-

tion laws were recodified in 1965, that provision was set out

at ORS 656.018, which specified that a complying employer

“is relieved of all other liability for compensable injuries,”

except as specifically provided otherwise. ORS 656.018

(1965) (emphasis added). In 1995, however, the legislature

amended ORS 656.018 to provide 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, § 5.8 That expansion of the

exclusive remedy provision created a category of injury for

which the workers’ compensation laws barred a civil negli-

gence 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 sunset date

in 1999 as part of a compromise package of amendments

to the workers’ compensation laws. Or Laws 1999, ch 6,

§§ 1, 4, 5.

In the meantime, at least one injured worker was

challenging the expanded exclusive-remedy bar as a viola-

tion of the right to a remedy that is guaranteed by Article I,

section 10, of the Oregon Constitution, at least when applied

to certain work-related injuries for which the workers’

compensation laws provided no compensation. Smothers v.

Gresham Transfer, Inc., 149 Or App 49, 53, 941 P2d 1065

(1997), rev’d, 332 Or 83, 23 P3d 333 (2001). This court was

considering Smothers at the same time that the 2001 legis-

lature began hearings on another comprehensive package of

amendments to the workers’ compensation laws, including

act or to reject them as he may see fit,” and an employee elected at the time of

employment “whether or not he will come under the terms of the act.” Evanhoff v.

State Indus. Acc. Com., 78 Or 503, 517, 518, 154 P 106 (1915) (describing Or Laws

1913, ch 112, § 12).

8

Oregon Laws 1995, chapter 332, section 5, added that language in a new

paragraph (6) to ORS 656.018. The language is identical to the current ORS

656.018(7).

Cite as 362 Or 282 (2017) 289

an amendment that would make the expansion of ORS

656.018 permanent. SB 485 (2001); Senate Journal, Regular

Session, SB 485, S-94 (2001). After that 2001 bill passed

out of the assigned Senate committee, and five days before

the bill was taken up by the House of Representatives, this

court issued a decision in Smothers that ruled in favor of

the injured worker. See Smothers v. Gresham Transfer, Inc.,

332 Or 83, 23 P3d 333 (2001), overruled by Horton v. OHSU,

359 Or 168, 376 P3d 998 (2016); Minutes, Senate Business,

Labor & Economic Development Committee, Mar 14, 2001, 2;

Minutes, House Business, Labor & Consumer Affairs Com-

mittee, May 15, 2001, 5.9

The worker in Smothers had sought to bring a neg-

ligence action for injuries that he suffered at work, after the

injuries were determined to be not compensable under the

workers’ compensation laws for the reason that the worker

“could not prove that the work exposure was the major con-

tributing cause of his injuries.” 332 Or at 135. This court

held that applying the exclusive remedy provision to bar

that worker’s negligence action would unconstitutionally

deny him the right to a remedy guaranteed by Article I,

section 10, of the Oregon Constitution.10 Id. at 135-36. In

the wake of Smothers, the 2001 legislature approved three

amendments to the pending workers’ compensation bill,

one of which became ORS 656.019. 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.). That

historical context is a significant focus of defendant’s argu-

ments.

90

SB 485 passed through two House committees before being passed to the

floor. On May 24, 2001, the House Speaker ordered the measure referred from

the House Business, Labor & Consumer Affairs Committee to the House Rules,

Redistricting and Public Affairs Committee “[w]ithout recommendation as to

passage.” Senate Journal, Regular Session, SB 485, S-94 (2001).

10

This court in Horton overruled the construction of the remedy clause on

which Smothers relied. 359 Or at 218. But Horton 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. See

Smothers, 332 Or at 125.

290 Bundy v. NuStar GP, LLC

B.  The Scope of ORS 656.019

The parties’ dispute regarding the scope of ORS

656.019 turns on the meaning of the first sentence of the

statute:

“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.”

ORS 656.019(1)(a). As we have emphasized, under the appro-

priate methodology for interpreting a statute, the first step

is to examine the statutory text and context. State v. Gaines,

346 Or 160, 171, 206 P3d 1042 (2009).

From plaintiff’s perspective, a plain reading of the

text of ORS 656.019 describes requirements that he has sat-

isfied: each of his two somatoform disorders, for which he is

pursuing a civil negligence action, is “a work-related injury”;

the conditions have “been determined to be not compensa-

ble because the worker has failed to establish that a work-

related incident was the major contributing cause”; and he

received a final “order determining that the claim [for each

condition] is not compensable.” Although defendant argues

that plaintiff cannot satisfy the requirement of a final “order

determining that the claim is not compensable,” we conclude

that plaintiff’s construction is more consistent with the text

and context of the statute than defendant’s construction.

1.  “The claim.”

We begin with the statutory language that the

Court of Appeals viewed as dispositive: “the claim.” Plaintiff

argues that the workers’ compensation law defines the term

“claim” expansively to mean any

“written request for compensation from a subject worker or

someone on the worker’s behalf, or any compensable injury

of which a subject employer has notice or knowledge.”

ORS 656.005(6). Under that definition, plaintiff contends,

a single work-place incident can give rise to multiple indi-

vidual “claims.” He argues that the legislature intended the

Cite as 362 Or 282 (2017) 291

expansive definition of “claim” when it used the term in ORS

656.019.

Our review of the workers’ compensation laws

reveals multiple examples of the use of the term “claim” in

the expansive sense described by plaintiff—as including

subsequent requests for compensation that are filed after

the employer has accepted as compensable an initial claim

for a work-related incident. For example, ORS 656.273, pro-

vides than an injured worker must “file a claim for aggra-

vation” if, after the last award of compensation, the worker

experiences a worsened condition. (Emphasis added.) The

workers’ compensation laws also use the term “claim” to

describe the process that workers must follow “[t]o initiate

omitted medical condition claims * * * or new medical con-

dition claims,” for additional conditions that are “related to

an initially accepted claim.” ORS 656.267(1), (2)(a); ORS

656.262(7)(a) (emphasis added).

Defendant argues, however, that the workers’ com-

pensation statutes also use the term “claim” to refer to the

aggregate of all requests for compensation that relate to an

initial claim for a work-related incident. Defendant argues

that ORS 656.019, similarly, applies only when “the claim”

that is determined to be not compensable is the initial claim

that the injured worker files after the work-related incident.

Defendant is correct that the workers’ compensation laws

sometimes seem to use the term “claim” in that more lim-

ited sense. For example, an injured worker must give writ-

ten notice to the employer within 90 days after “an accident

resulting in an injury.” ORS 656.265(1). The notice of accident

resulting in injury is treated as a “claim” that the employer

must accept or deny within 60 days. ORS 656.262(6)(a). The

procedures for “claim closure” seem to use the term “claim”

to refer to the aggregate of all compensable conditions that

relate to the initial claim for a work-place incident. Those

procedures specify that the insurer “shall close the worker’s

claim” when the worker “has become medically stationary

and there is sufficient information to determine permanent

disability.” ORS 656.268(1). Once an insurer determines

that “the claim qualifies for claim closure,” the insurer must

issue “an updated notice of acceptance that specifies which

292 Bundy v. NuStar GP, LLC

conditions are compensable,” and, “[i]f a condition is found

compensable after claim closure, the insurer or self-insured

employer shall reopen the claim for processing regarding

that condition.” ORS 656.262(7)(c).

It, thus, appears that the workers’ compensation

laws sometimes use the term “claim” in the expansive sense

suggested by the definition that the legislature has given to

the term in ORS 656.005(6) and sometimes use the term in

the more limited sense that refers to all requests for com-

pensation that relate to the initial claim for injury arising

out of a single work-related incident. To determine which

meaning the legislature intended for the term “claim” in

ORS 656.019, we turn first to the context of the surrounding

words in that statute.

2.  “A work related injury that has been determined to be

not compensable”

As a threshold matter, we observe that, grammat-

ically, “the claim” that must be the subject of a final “order

determining that the claim is not compensable” refers back

to the injury that is described at the beginning of the sen-

tence as “not compensable”: “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[.]” ORS

656.019. Plaintiff contends that the phrase “work-related

injury” is generally an expansive term that includes each

separate condition that arises out of a work-related incident

and that the use of that term in ORS 656.019 provides con-

text for “the claim” to which the statute refers. We agree.11

We have observed that “an ‘injury’ can refer to an

incident that causes or results in harm, or it can refer to the

harm itself.” Brown v. SAIF, 361 Or 241, 254, 391 P3d 773

(2017). We also observed in Brown that examples of both

uses of the term “injury” can be identified in the workers’

compensation laws, so that the meaning of the term in a

11

Although defendant does not specifically dispute that each of claimant’s

conditions is a “work-related injury,” we specifically address that question

because,”[i]n construing a statute, this court is responsible for identifying the

correct interpretation, whether or not asserted by the parties.” Stull v. Hoke, 326

Or 72, 77, 948 P2d 722 (1997).

Cite as 362 Or 282 (2017) 293

particular provision must be determined by considering the

relevant statutory context. Id. at 253-54. In Brown, we con-

cluded that the statute at issue, ORS 656.005(7)(a), used

the term “injury” in a way that suggested a reference to “a

medical condition that is the result of an accidental incident”

rather than to the incident itself. Id. at 255 (emphasis in

original).

In ORS 656.019(1)(a), the legislature has also used

the term “injury” in a way that suggests a reference to

medical conditions. The statute specifies that it applies to

“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.” ORS 656.019(1)(a) (emphasis added).

That sentence has meaning only if the “work-related injury”

is something distinct from the “work-related incident.” We,

thus, conclude that the term “work-related injury” in ORS

656.019(1)(a) refers to a medical condition that is the result

of a work-related incident. That plaintiff’s medical conditions

are an “injury” within the meaning of ORS 656.019(1)(a)

suggests that his claim for those work-related injuries falls

within the statute’s reference to “an order determining that

the claim is not compensable.”

3.  Statutory context

The context provided by related statutes also sug-

gests that the legislature used “the claim” in ORS 656.019

in the expansive sense that encompasses subsequent

requests for compensation that are denied after an initial

claim has been accepted. The language that is codified at

ORS 656.019 was part of a bill that more comprehensively

modified the workers’ compensation laws. SB 485 (2001); Or

Laws 2001, ch 865. In other language added by the same

bill, the legislature repeatedly used the term “initial claim”

when it intended a meaning different from “claims” in the

expansive sense that includes a subsequent request for com-

pensation. See Or Laws 2001, ch 865, § 1 (amending defi-

nition of a “preexisting condition,” in ORS 656.005(24)(a),

to distinguish between the meaning of that term as used

“[i]n claims for an initial injury or omitted condition” and in

“claims for a new medical condition”); id. at § 3 (providing

294 Bundy v. NuStar GP, LLC

for different calculation of disability benefits if worker pro-

vided notice of employment in multiple jobs “within 30 days

of receipt of the initial claim”); id. at § 10 (specifying that

“[c]laims properly initiated for new medical conditions and

omitted medical conditions related to an initially accepted

claim shall be processed pursuant to ORS 656.262”); id. at

§ 14 (addressing payment for medical services “in response

to an initial claim for a work-related injury”). Given those

repeated references to an “initial claim” elsewhere in SB

485, the legislature’s failure to qualify the term “claim” in

that way in ORS 656.019 strongly suggests that it did not

intend the term “claim” to refer to only an “initial claim.”

See Northwest Natural Gas Co. v. City of Gresham, 359 Or

309, 323, 374 P3d 829 (2016) (“[I]f the legislature uses dif-

ferent terms in related statutes, it likely intended them to

have different meanings.” (Emphasis in original.)).

Nevertheless, defendant contends that the context

of preexisting case law demonstrates that ORS 656.019

applies only when an initial claim for compensation is

denied on major contributing cause grounds. Defendant

argues that the legislature’s use of the term “claim” in ORS

656.019 was necessarily informed by this court’s earlier dis-

cussion of claims in Johnson v. Spectra Physics, 303 Or 49,

733 P2d 1367 (1987), which described multiple conditions

arising out of single work incident as “aspects of a single

claim.” Id. at 56. According to defendant, the “legislature,

consistent with Johnson, understood that new and omitted

condition ‘claims’ * * * remained a part of that initial claim.”

(Emphasis in original.)

However, the point of Johnson is that each injury

or condition is considered on its separate merits and, thus,

that the insurer’s acceptance of the claimant’s back injury

claim did not preclude it from denying compensability of a

carpal tunnel syndrome condition that was diagnosed after

the claimant filed her initial claim. Id. at 58-59. Indeed,

the opinion specifically refers to the claimant’s subsequent

request for compensation for her carpal tunnel syndrome as

a “claim” that the insurer was required to accept or deny

within “60 days after the claim was filed.” Id. at 59. Johnson

thus adds nothing to the inquiry beyond illustrating that

Cite as 362 Or 282 (2017) 295

our case law has also used the term “claim” in varying ways,

to refer to both separate requests for compensation and to

the aggregate of all requests arising out of the same work-

related incident. Moreover, Johnson predates the statutory

amendments in 2001, in which the legislature authorized

employers to deny “new or omitted” conditions after previ-

ously accepting a claim for other conditions arising out of the

same work incident. ORS 656.267; Or Laws 2001, ch 865,

§ 10. In doing so, the legislature specifically identified those

requests to accept new and omitted medical conditions as

“claims.” Id. That is the more pertinent statutory context.

4.  Legislative history

Finally, defendant argues that the legislative his-

tory demonstrates that the legislature intended ORS

656.019 to address only the initial claim for injury arising

out of a work-related incident. As indicated above, the pro-

vision that became ORS 656.019 was added to an existing

package of amendments to the workers’ compensation laws,

SB 485, after this court held in Smothers that ORS 656.018

cannot constitutionally be applied to bar certain negligence

actions. According to defendant, the legislative history

demonstrates that the legislature intended ORS 656.019 to

reach only those actions that Smothers made exempt from

the exclusive-remedy bar. The plaintiff in Smothers filed his

negligence action after his employer denied the initial (and

only) workers’ compensation claim that the plaintiff filed

for injury arising out of the work-related incident, and the

opinion emphasizes that the court was addressing the cate-

gory of injured workers who “receive no compensation ben-

efits.” 332 Or at 125. Defendant argues that the legislature

intended ORS 656.019 to apply only to the circumstances

described in Smothers—an initial claim that is determined

to be not compensable.

Defendant is correct that the legislative history

reveals an intention to capture and limit the kind of civil

actions that the legislature believed Smothers would allow.

See Tape Recording, House Floor Proceedings, SB 485,

July 4, 2001, Tape 234, Side B (statement of Representative

Carl Wilson) (explaining that “[t]he bill will not, quote

296 Bundy v. NuStar GP, LLC

unquote, fix Smothers, but it does create a means for address-

ing this new and significant exposure for employers,” in

part because it would “lessen the impact of that decision” by

“shielding all parties from the extra cost of having to pursue

both the workers’ compensation claim and court case at the

same time,” through the exhaustion requirement); see also

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

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

(testifying that SB 485 “should keep more cases out of the

court system”).

It is not clear, however, that the legislature intended

to address those concerns by restricting the scope of ORS

656.019 to the factual circumstances of Smothers. A key

proponent of SB 485 advised one of the House commit-

tees considering the bill that “there are important ques-

tions that are left unanswered by the Smothers decision,”

including whether its rationale would “apply to subsequent

denials such as partials, aggravations and new conditions.”

Testimony, House Committee on Rules, Redistricting, and

Public Affairs, SB 485, June 15, 2001, Ex D at 2 (state-

ment of John Shilts, Administrator, Workers’ Compensation

Division, Department of Consumer and Business Services

(DCBS)). Shilts emphasized that the bill “provides a

means to address * * * [those] questions.” Id.; see also Tape

Recording, House Committee on Rules, Redistricting and

Public Affairs, SB 485A, June 15, 2001, Tape 150, Side A

(statement of Tim Nesbitt, president of Oregon AFL-CIO)

(explaining that there was “still a lot of uncertainty about

how the [workers’ compensation] world will look * * * under

Smothers,” and that the amendments would help to address

those questions). The uncertainty whether Smothers might

permit actions for injuries that were the subject of a subse-

quent claim denial and Shilts’ emphasis that the bill “pro-

vides a means to address * * * [those] questions” suggest that

the legislature may have intended to make the procedural

limitations of ORS 656.019 applicable to that broader cate-

gory of “claims.”12

12

Although Shilts and Nesbitt were witnesses, rather than legislators who

voted for the bill, their statements to legislators regarding the potential impact

of Smothers, inform our understanding of the type of actions that the legisla-

ture may have intended to reach in order to “lessen the impact” of Smothers. See

Cite as 362 Or 282 (2017) 297

Ultimately, the significance of the legislative history

is that it does not disclose a clear intent to limit the reach

of ORS 656.109 to initial workers’ compensation claims. We

have emphasized that the best evidence of what the legisla-

ture intended a statute to mean is the wording of the statute

that it adopted into law. See Brown, 361 Or at 249 (describ-

ing essential principle). Here, that best evidence persuades

us 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. The Court of Appeals erred in

construing the statute otherwise.

C.  Defendant’s Argument Regarding the Function of ORS

656.019

In their arguments regarding ORS 656.019 in the

trial court and Court of Appeals, both parties assumed that

a conclusion that ORS 656.019 applies to subsequent con-

dition claims would mean that plaintiff should have been

allowed to file his Fourth Amended Complaint. As indicated

above, the first sentence of ORS 656.019(1)(a) provides that

“[a]n 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.”

Plaintiff—and until now defendant—has assumed that the

phrase “may pursue” expresses a grant of authority to pursue

actions that fall within the scope of the statutory language.

That construction is consistent with the ordinary meaning

of the term “may” as “have permission to.” Webster’s Third

New Int’l Dictionary 1396 (unabridged ed 2002); see Gaines,

346 Or at 166 (A statute providing that a party “ ‘may’ offer

legislative history to the court” means the party “is statuto-

rily entitled, but not obligated, to offer the court legislative

history.”).

Tape Recording, House Floor Proceedings, SB 485, July 4, 2001, Tape 234, Side B

(statement of Representative Carl Wilson).

298 Bundy v. NuStar GP, LLC

In its respondent’s brief in this court, however,

defendant questions that assumption. Defendant argues

that the verb “may” should be understood as modified by

the final clause of the sentence, so that it expresses a single

proposition. Defendant excerpts the text to illustrate that

way of reading the statute: “An injured worker may pursue

a civil negligence action * * * only after an order determin-

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

(Emphasis in original.) According to defendant, the statute

read in that way merely explains “when an assumed right

may be exercised” without additionally creating the right.

(Emphasis in original.)

Defendant’s interpretation of the phrase is also

plausible. Although a statute providing that a person “may

pursue” a particular action “only after” a particular event

can imply that the legislature is also providing a right to

pursue the action after the particular event, the two prop-

ositions are not logically equivalent.13 Imposing procedural

limitations on a particular type of action may simply mean

that the legislature understood some external authority to

already authorize the type of action. Indeed, as explained

above, the legislature adopted ORS 656.019 at a time when it

understood that Smothers made at least some of the actions

described in ORS 656.019 constitutionally exempt from the

exclusive-remedy bar.

We expressly reserve for another day, however, the

comprehensive statutory analysis needed to resolve whether

the legislature intended ORS 656.019 to function as a sub-

stantive exception to the exclusive remedy provision. We

resolve only the single issue of statutory construction that

was raised by the petition for review and argued by the par-

ties below—whether ORS 656.019 applies if the negligence

action is for injuries that were determined to be not com-

pensable after an initial workers’ compensation claim was

accepted. Because the parties assumed in the trial court

that ORS 656.019 would allow plaintiff to file his Fourth

13

Rephrased as an if-then logical proposition, the statute provides: “if there

is not an order, then the worker may not pursue a civil action.” That proposition

is not logically equivalent to the proposition: “if there is an order, the worker may

pursue a civil action.” Both statements may be true, but not necessarily so.

Cite as 362 Or 282 (2017) 299

Amended Complaint if the statute applied to plaintiff’s neg-

ligence claims, we reverse the trial courts denial of plain-

tiff’s motion to amend. That limited holding is not intended

to preclude these or future parties from properly present-

ing an argument that the legislature did not intend ORS

656.019 to function as a substantive exception to the exclu-

sive remedy provision.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court for further proceedings.