Smothers Decision - Get more info here on SB 369 which nullified a 1995 Court decision

Author Subject: Smothers Decision - Get more info here on SB 369 which nullified a 1995 Court decision
Del Posted At 11:50:33 05/14/2001
To prevent a repeat, we need to let Oregonians know, through letters to newspapers, etc., that the 1995 Legislature with SB 369 nullified an Oregon Supreme ruling of a few weeks earlier that ruled in favor of Oregon workers on the same basis as they have now. More info on this is at:
Sam Re: Smothers Decision - Get more info here on SB 369 which nullified a 1995 Court decision (Currently 0 replies)
Posted At 14:21:25 06/04/2001

Ruling backs injury claims

The Oregon Supreme Court re-examines workers' compensation system.

Statesman Journal
May 11

Thousands of injured workers may be able to sue for damages when their claims for compensation are denied as a result of an Oregon Supreme Court decision Thursday.

The decision carves out a limited exception to Oregon’s no-fault compensation system for 1.6 million workers who might become injured or ill on the job.

Business groups and Republican lawmakers criticized the ruling as a blow to employers and said it will trigger a flood of lawsuits. Trial lawyers, union leaders and Democratic officials said the ruling restores balance to a system that is favoring businesses over injured workers.

The court said the workers’ compensation system itself is not at issue. But the exception could lead to more lawsuits against more than 80,000 businesses that provide coverage.

The case involves a claim by Terry Smothers of Gresham, who developed respiratory problems in the mid-1990s after inhaling acid-laden mist while working on trucks for Gresham Transfer Co. His claim for workers’ compensation was denied because his exposure was not considered the “major contributing cause’’ to his illness. Recent legislative sessions have tightened eligibility for benefits and restricted appeals.

Smothers sued his employer for negligence. Two lower courts dismissed the case, but the Supreme Court said Smothers has the right to sue — and returned his case to Multnomah County.

“The court has reaffirmed that Oregonians have a right to justice when they are injured,’’ said Jennifer Webber, a lobbyist for the Oregon Trial Lawyers Association. “This is not about your right to win, but to seek a remedy.’’

Critics, including Senate President Gene Derfler, said the court overstepped its authority.

“For more than 80 years, employers and employees have agreed that the workers’ compensation system is the exclusive remedy for injuries, but now, that agreement is void,’’ said Derfler, a Republican from Salem who is a frequent critic of the courts. “The court chooses to make law instead of interpreting it.’’

Derfler said management and labor representatives should reconvene at the governor’s residence, similar to what they did at Mahonia Hall preceding major legislative changes to the system in 1990 and 1995. He said their recommendations should be considered at a special legislative session this fall.

But Gov. John Kitzhaber’s senior adviser on labor issues said he wants to assess how many claims would be affected before the Democratic chief executive reconvenes the group or recommends action.

“The ruling affects compensation for a certain number of cases,’’ Mark Gibson said. “But it leaves most of the system in place.’’

Even a critic said a low-key approach might be best.

“This is an injurious decision for small business, and I’m a little hot under the collar about it,’’ said J.L. Wilson, Oregon director for the National Federation of Independent Business.

“But my instinct is to say we probably should cool off a little, analyze what effect this will have on the system, then see what we can do. I think anything we can do quickly would be counterproductive.’’

Tim Nesbitt, president of the Oregon AFL-CIO, said the decision is similar to those affecting laws in Montana, New Mexico and Ohio.

“It is a balance that Oregon’s employers and lawmakers should be able to live with, just as employers do in many other states,’’ he said.

Oregon voters created the system in 1910 to ensure that workers would get compensation for disabilities and businesses would not be sued for every on-the-job injury. Until 1990, Oregon compensated workers if they could show that an on-the-job injury was a contributing cause of the disability.

But a growing number of claims from workers and soaring premiums paid by businesses in the 1980s prompted legislative changes in 1990. Injuries now must be a “major contributing cause,’’ a legal standard that makes it harder for workers to qualify for benefits.

As a state representative from Eugene, Jim Edmunson argued against the changes. He said then it would lead to what happened Thursday.

“A quick fix would be to repeal that language,’’ said Edmunson, a lawyer who has practiced in the field and the Democratic state chairman. “But whether there is the political will (from a Republican legislature) remains to be seen.’’

Five years later, after the Supreme Court ruled that the system did not preclude lawsuits by workers against their employers, the Legislature made the system the only remedy for workers.

Kevin Mannix of Salem said Thursday’s decision cancels key changes he shepherded through the 1995 session as a state representative.

“Lawsuits will be used as leverage to extract more money — and that is bad for employers and workers,’’ said Mannix, a lawyer who often defends businesses against claims.

Of 83,477 claims filed in 1999, the latest year reported by the state Department of Consumer and Business Services, 19,434 were denied.

Reasons vary, but a study commissioned for the state last year estimated that 40 percent fail to establish that an on-the-job injury is the “major contributing cause’’ of a disability — and that rejection rate has increased since the 1995 changes.

Experts say not all of those claims rejections would result in successful lawsuits.

“When there is a dispute about what the ‘major contributing cause’ is but there is no negligence by the employer, I doubt this would change the system,’’ said Sen. Tony Corcoran, D-Cottage Grove, a labor union representative. “If it affected all 40 percent of cases, the sky might not be falling — but we would be seeing some shards.’’

Peter Wong can be reached at (503) 399-6745.

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