Oregon Live with: The Oregonian 11/9/99 http://www.oregonlive.com/news/99/11/st110904.html

Appeal heard that challenges workers' comp

The Oregon Supreme Court gives few clues as to how it leans in a case with huge consequences for workers and employers

Tuesday, November 9, 1999 By Ashbel S. Green of The Oregonian staff

SALEM -- The Oregon Supreme Court on Monday heard oral arguments in a case that challenges the constitutionality of the state's workers' compensation system.

The justices did not strongly indicate how they were leaning in the case, leaving the nearly 50 lobbyists and lawyers in attendance waiting anxiously for a decision that has enormous financial implications for Oregon employers and workers.

The justices' line of questioning suggested that they will consider whether legislative reforms in 1990 shut too many workers out of the system in an effort to cut costs.

The decision, which could come down next year, will be watched nationally, too, because Oregon is seen as a leader in workers' compensation.

The concept of workers' compensation is simple: Employers provide insurance that covers on-the-job injuries. In exchange, workers give up the right to sue.

In 1994, Terry Smothers, a lube technician for Gresham Transfer, filed for workers' compensation, claiming that he had breathed an acid-laden mist at work that triggered respiratory problems.

The company's insurer denied Smothers' claim, pointing to a 1990 change in the law that raised the standard for paying benefits.

So Smothers sued. A Multnomah County Circuit judge ruled that the workers' compensation law prohibited his suit, but Smothers appealed all the way to the Supreme Court.

His attorney, Michael A. Gilbertson, told the justices Monday that the Oregon Constitution guarantees everyone a remedy for injuries. If the workers' compensation system doesn't give Smothers benefits for his on-the-job injuries, he should be able to sue.

Thomas Sondag, representing Gresham Transfer, argued that the constitution does not guarantee a result but a process, which the workers' compensation system provides.

As long as the system is reasonable, the justices should not overturn it, Sondag said.

But Gilbertson argued that to evaluate whether the system provided a remedy, the justices should compare it with the court process that was available to employees when the workers' compensation system was enacted in 1913.

At the time, workers could sue if their employer's negligence contributed to a workplace accident, Gilbertson said.

Sondag said such a comparison was neither required by the constitution nor a good idea because the two systems are so different.

But several justices indicated that they would consider whether the workers' compensation system provided a substantial remedy for injuries compared with the legal system it replaced. That probably puts the focus on 1990 changes that prevented thousands of injured workers from receiving benefits.

Through the years, the Legislature has repeatedly tweaked the system, trying to balance the cost of premiums employers pay with the benefits workers receive.

Traditionally, the system covered any injury that occurred on the job. For example, it generally covered a worker with a bad back who reinjured it lifting a box at work.

But in a 1990 special session, the Legislature tried to fix what was widely viewed as a broken system by increasing benefits for injured workers but limiting the injuries covered.

It changed the standard so the system would pay benefits only when the on-the-job accident was 51 percent responsible for the injury.

Reinjuring a back probably would no longer be covered.

The 51 percent standard was the basis for denying Smothers' claim because a doctor said the mist merely triggered an underlying respiratory problem.

A ruling in favor of Smothers could trigger a quick response by the Legislature, but out-of-state observers are watching as well because Oregon's 51 percent standard is perhaps the highest in the nation.

You can reach Tony Green at 221-8202 or by e-mail at Tonygreen@news.oregonian.com.