FILED: MAY 10, 2001

TERRY L. SMOTHERS,

Petitioner on Review,

v.

GRESHAM TRANSFER, INC.,
an Oregon corporation,

Respondent on Review.

On review from the Court of Appeals.*

Argued and submitted November 8, 1999.

Michael A. Gilbertson, Ransom & Gilbertson, Portland, argued the cause and filed the briefs for petitioner on review.

Thomas W. Sondag, Lane Powell Spears Lubersky LLP, Portland, argued the cause and filed the brief for respondent on review.

Chess Trethewy, Garrett, Hemann, Robertson, Paulus, Jennings & Comstock, P.C., Salem, filed a brief on behalf of amicus curiae Associated Oregon Industries. With him on the brief was Paul J. Weddle.

Lawrence Baron, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association. With him on the brief was Daniel L. Keppler.

Kathryn H. Clarke, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association. With her on the brief were Maureen Leonard and Matthew Whitman.

David L. Runner, Salem, filed a brief on behalf of amicus curiae SAIF Corporation and Timber Products Company.

G. Kenneth Shiroishi, Dunn Carney Allen Higgins & Tongue, Portland, filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel.

Before Carson, Chief Justice, and Gillette, Durham, Kulongoski, Leeson, and Riggs Justices.**

LEESON, 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.

**Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case. De Muniz, J., did not participate in the consideration or decision of this case.

*Appeal from Multnomah County Circuit Court, Henry Kantor, Judge. 149 Or App 49, 941 P2d 1065 (1997).

LEESON, J.

Plaintiff filed this negligence action against defendant, his employer, after an administrative law judge (ALJ) of the Workers' Compensation Board upheld the insurer's denial of plaintiff's workers' compensation claim. The ALJ found that plaintiff's exposure to sulfuric, hydrochloric, and hydrofluoric acid mist and fumes at work was not the "major contributing cause" of plaintiff's respiratory condition and other ailments and, therefore, that plaintiff had not suffered a "compensable injury" under the workers' compensation statutes. Nonetheless, plaintiff believed that he had suffered an injury at work. Accordingly, he brought this action against his employer for negligence. The trial court dismissed plaintiff's complaint for failure to state a claim, ORCP 21 A(8), reasoning that ORS 656.018 (1995) makes workers' compensation law the "exclusive remedy" for work-related injuries, whether or not a claim is compensable. The Court of Appeals affirmed. Smothers v. Gresham Transfer, Inc., 149 Or App 49, 941 P2d 1065 (1997). This court allowed review to address plaintiff's contention that he has been denied a remedy for the injuries that he suffered at work, in violation of the remedy clause in Article I, section 10, of the Oregon Constitution. For the reasons that follow, we hold that, if a workers' compensation claim alleging an injury to a right that is protected by the remedy clause is denied for failure to prove that the work-related incident giving rise to the claim was the major contributing cause of the injury or condition for which the worker seeks compensation, then the exclusive remedy provisions of ORS 656.018 (1995) are unconstitutional under the remedy clause. Applying that holding to the facts of this case, we reverse the decision of the Court of Appeals and the judgment of the trial court and remand the case to the trial court for further proceedings.

A. Facts

Plaintiff's job as a lube technician for defendant's trucking company required him to work in a pit more than four feet deep in a mechanics' shop where trucks were serviced. A truck-washing area was located outside the shop. Defendant's employees cleaned the exteriors of trucks by spraying them with a chemical mixture of diluted sulfuric acid and small amounts of hydrochloric and hydrofluoric acids. When the doors to the shop were open, acid mist and fumes from the truck-washing area drifted into the shop and down into the pit where plaintiff worked. For many months, plaintiff experienced headaches, as well as itching, burning, and watering eyes.

In January 1993, plaintiff contracted an upper respiratory infection that developed into pneumonia. He was hospitalized for five days, and he was unable to work for a month. Plaintiff returned to work, but he suffered another episode of pneumonia in February 1993. In November 1993, his physician diagnosed him with bronchitis. In December 1993, plaintiff's coworkers found him so ill that he was lying on the lunchroom floor. He was sent home, where he was bedridden with bacterial bronchitis for most of the holiday season.

Plaintiff returned to work in January 1994, but his physician expressed concern about his slow rate of recovery. Plaintiff called in sick several times between March and mid-June 1994. In June 1994, claimant stopped working for defendant because of his illness.

Thereafter, plaintiff filed a workers' compensation claim for his lung condition. Defendant's insurer denied plaintiff's claim. At a hearing before an ALJ, the issue was whether plaintiff had a compensable occupational disease. See ORS 656.802(1)(a) (defining "occupational disease"). After the hearing, the ALJ upheld the insurer's denial, because plaintiff had failed to prove that his work exposure was the major contributing cause of his lung disorder. See ORS 656.802(2)(a) ("The worker must prove that employment conditions were the major contributing cause of the disease."). (1)

B. Legal Context for Plaintiff's Negligence Action

In Errand v. Cascade Steel Rolling Mills, Inc., 320 Or 509, 525, 888 P2d 544 (1995), this court held that the exclusive remedy provisions in ORS 656.018 (1993) did not preclude workers whose workers' compensation claims had been denied from bringing civil actions against their employers in an effort to recover damages for their work-related injuries. In this case, after the ALJ had upheld the denial of plaintiff's workers' compensation claim, plaintiff, relying on Errand, filed this action against defendant. His complaint alleged that defendant's negligence in subjecting him to the acid mist and fumes at work had caused permanent injury to his lungs; skin blisters, pain and swelling in the joints of his hands, elbows and knees; degeneration of his toenails, fingernails, and teeth; and other physical ailments.

Meanwhile, in response to this court's decision in Errand, the 1995 Legislature amended ORS 656.018 and added subsection (6) to provide that workers' compensation is the exclusive remedy for work-related injuries, even if a claim is not compensable. Or Laws 1995, ch 332,