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 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.”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.
NuStar GP, LLC, 277 Or App 785, 806, 373 P3d 1141 (2016)
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, 277 Or App at 786. The Court of Appeals rejected both
arguments, and plaintiff has not challenged those determinations on review.
Cite as 362 Or 282 (2017) 287
(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
act or to reject them as he may see fit,” and an employee elected at the time of
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
1, Section 10, of the Oregon Constitution, at least when
applied to certain work-related injuries for which the work-
ers’ 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
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
Committee, 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 1,
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 defen-
dant’s arguments.
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 condi-
tions 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
history 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
unquote, fix Smothers, but it does create a means for
296 Bundy v. NuStar GP, LLC
addressing 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 pur-
sue 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 com-
mittees 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
Tape Recording, House Floor Proceedings, SB 485, July 4, 2001, Tape 234, Side
B (statement of Representative Carl Wilson).
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.”).
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
298 Bundy v. NuStar GP, LLC
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
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
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
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.