Preble v. Centennial School Dist., No. 287

No. 244 May 10, 2023 777

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

Linda Jean PREBLE,
Plaintiff-Appellant,
v.
CENTENNIAL SCHOOL DISTRICT, NO. 287,
a Portland, Oregon, School District,
Defendant-Respondent.
Multnomah County Circuit Court
16CV10909; A174811

Leslie G. Bottomly, Judge.
Argued and submitted March 11, 2022.
Julene M. Quinn argued the cause and filed the briefs for
appellant.
Blake H. Fry argued the cause for respondent. Also on
the brief was Hart Wagner LLP.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Reversed and remanded.
778 Preble v. Centennial School Dist., No. 287

ORTEGA, P. J.
This appeal presents a question that was left open
the first time this case was before us, in Preble v. Centennial
School Dist. No. 287, 298 Or App 357, 447 P3d 42 (2019)
(Preble I): whether plaintiff’s civil negligence claim against
her employer, brought after her worker’s compensation
claim was deemed noncompensable, is foreclosed by our
holding in Alcutt v. Adams Family Food Services, Inc., 258
Or App 767, 311 P3d 959 (2013), rev den, 355 Or 142 (2014).
In Alcutt, we held that an injured worker could not pursue
a civil action following a noncompensability determination
as provided under ORS 656.019 where that injured worker
had not “failed to establish” that the work incident at issue
was the major contributing cause of his combined condi-
tion, having made no attempt to do so at the workers’ com-
pensation hearing. On remand in this case, the trial court
concluded that plaintiff’s claim, like the claim in Alcutt,
did not meet the parameters for pursuing a civil action set
forth in ORS 656.019, and granted summary judgment to
defendant. We disagree with the trial court; here, unlike
in Alcutt, plaintiff did attempt to and “failed to establish”
that the work incident was the major contributing cause of
her combined condition. Because we conclude that plaintiff
may pursue her claim under ORS 656.019, we reverse and
remand.
I. BACKGROUND
We state the following facts and case history as set
out in Preble I:
“Plaintiff worked as an educational assistant for defendant,
a public school district. On November 8, 2013, a child riding
a scooter crashed into plaintiff, injuring plaintiff’s knee.
Plaintiff filed a workers’ compensation claim for the work-
related injury to her knee. Defendant denied the claim on
the ground that hers was a combined condition resulting
from the scooter accident in conjunction with a long-term
degenerative knee condition, and the scooter accident that
occurred at work was not the major contributing cause of
the resulting combined condition. See ORS 656.005(7)(a)(B)
(a combined injury is compensable only if the compensable
injury is the ‘major contributing cause’). Plaintiff requested
a hearing at which she offered expert testimony that the
Cite as 325 Or App 777 (2023) 779

work-related scooter accident was the major contributing
cause of her condition. The Workers’ Compensation Board
(board) ultimately found that plaintiff’s evidence was not
as persuasive as defendant’s. On October 30, 2015, the
board upheld defendant’s denial because the work-related
scooter accident was not the major contributing cause of
her combined condition.
“On March 31, 2016, plaintiff filed a complaint for neg-
ligence against defendant for damages resulting from the
scooter accident at work. It is undisputed that plaintiff filed
that complaint within 180 days of the board’s denial of her
claim, but more than two years from the date of her injury.
Plaintiff alleged in her complaint that the action had been
timely commenced under ORS 656.019(2)(a). Defendant
responded with a motion to dismiss on the ground that
the action was time barred. According to defendant, the
two-year limitation period in ORS 30.075(9)—not the
longer limitation period of ORS 656.019(2)(a)—controls.
The trial court agreed with defendant and dismissed the
complaint.”
298 Or App at 359-60.
In plaintiff’s appeal in Preble I, we assumed that
either of two statutory limitation periods—one in ORS
30.070(9) and the other in ORS 656.019(2)—could apply to
plaintiff’s negligence claim against her employer. Because
the two statutes were irreconcilably different, we applied
standard rules of statutory construction to conclude that the
more specific and later-enacted ORS 656.019(2) took prece-
dence. 298 Or App at 368-70. As ORS 656.019(2) contained
the longer limitation period, under which plaintiff’s claim
would have been timely, we reversed and remanded on that
basis.
In Preble I, defendant, relying on Alcutt, also argued
that plaintiff could not pursue her claim under ORS 656.019.
We declined to address that alternative argument because
the issue had not been raised in the trial court. Preble I, 298
Or App at 369-70. On remand, the parties litigated whether
plaintiff’s claim is foreclosed by Alcutt’s construction of ORS
656.019; the trial court concluded that plaintiff’s claim was
not permissible under ORS 656.019, as construed in Alcutt,
and granted summary judgment to defendant.
780 Preble v. Centennial School Dist., No. 287

Plaintiff again appeals, arguing, among other things,
that this case is distinguishable from Alcutt so she may
assert her claim under ORS 656.019. In Alcutt, the plaintiff
offered no evidence at the workers’ compensation hearing
that would have supported a compensability determination;
here, plaintiff did offer evidence that her work injury was
the major contributing cause of her combined condition. In
plaintiff’s view, an injured worker who offers evidence at the
worker’s compensation hearing that is ultimately regarded
as unpersuasive has tried but “failed to establish” compen-
sability and thus may pursue a civil negligence claim under
ORS 656.019. As to that argument, defendant responds that
(1) it was not preserved, (2) plaintiff conceded below that
Alcutt applies, and (3) Alcutt applies only to occupational
disease cases, not to injury cases like this one. As explained
below, we agree with plaintiff and reject each of defendant’s
counterarguments.
II. DISCUSSION
This case turns on the construction of ORS 656.019:
“(1)(a) An injured worker may pursue a civil negli-
gence action for a work-related injury that has been deter-
mined to be not compensable because the worker has failed
to establish that a work-related incident was the major con-
tributing cause of the worker’s injury only after an order
determining that the claim is not compensable has become
final. The injured worker may appeal the compensability of
the claim as provided in ORS 656.298 (Judicial review of
board orders), but may not pursue a civil negligence claim
against the employer until the order affirming the denial
has become final.
“(b) Nothing in this subsection grants a right for a per-
son to pursue a civil negligence action that does not other-
wise exist in law.
“(2)(a) Notwithstanding any other statute of limita-
tion provided in law, a civil negligence action against an
employer that arises because a workers’ compensation
claim has been determined to be not compensable because
the worker has failed to establish that a work-related inci-
dent was the major contributing cause of the worker’s injury
must be commenced within the later of two years from the
date of injury or 180 days from the date the order affirming
Cite as 325 Or App 777 (2023) 781

that the claim is not compensable on such grounds becomes
final.
“(b) Notwithstanding paragraph (a) of this subsection,
a person may not commence 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, if the period within which such
action may be commenced has expired prior to the filing of
a timely workers’ compensation claim for the work-related
injury.”
To recount background with which many readers
are already familiar, in Smothers v. Gresham Transfer, Inc.,
332 Or 83, 135, 23 P3d 333 (2001), the Supreme Court held
that the exclusive remedy provisions of ORS 656.018 were
unconstitutional under Article I, section 10, of the Oregon
Constitution, as applied to a combined condition workers’
compensation claim that had been denied under the major
contributing cause requirement.1 Shortly after Smothers
was decided, the legislature added the provision that ulti-
mately became ORS 656.019 to an already-pending work-
ers’ compensation bill, using the same description of the
still-viable negligence claim as that used by the Supreme
Court: a negligence action for a workplace injury denied
for failure to meet the major contributing cause standard.
Bundy v. Nustar GP LLC, 317 Or App 193, 204, 506 P3d 458,
rev allowed, 370 Or 197 (2022) (Bundy III).2
As we explained in Bundy III, 317 Or App at 195,
202-06, ORS 656.019(1) creates a procedural limit on when
the claims described in the statute may be brought; it does
not provide a substantive exception to the exclusive remedy

1
The parties do not argue, and we do not perceive, that the Supreme Court’s
decision in Horton v. OHSU, 359 Or 168, 376 P3d 998 (2016), affects the analysis
or decision of this case. See Bundy v. NuStar, GP LLC, 362 Or 282, 289 n 10, 407
P3d 801 (2017) (Bundy I):
“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’s ultimate holding that injured workers who ‘receive no compen-
sation benefits’ have a constitutional right to pursue a civil action for their
injury.”
2
Bundy had previously been before this court and before the Oregon Supreme
Court for reasons unrelated to the issues presented by this appeal.
782 Preble v. Centennial School Dist., No. 287

provisions of the workers’ compensation scheme.3 Put simply,
injured workers who fall within ORS 656.019 must pursue
their workers’ compensation claims to finality before pursu-
ing a civil action; the time limitations in ORS 656.019(2)(a)
then apply to those civil claims. And, as we explained in
Alcutt, not all injured workers fall within ORS 656.019, only
those who “fail[ ] to establish that the work incident was the
major contributing cause” of their combined condition. 258
Or App at 782. In this case, the parties dispute whether
plaintiff falls within ORS 656.019(1)(a); to resolve that dis-
pute, we must ascertain the meaning of that provision.
Before embarking on that endeavor, we address
two preliminary arguments raised by defendant, namely
that plaintiff either has already conceded or has failed to
preserve the argument she makes on appeal. First, defen-
dant argues that plaintiff conceded to the trial court that
Alcutt’s construction of ORS 656.019(1)(a) controls the dis-
position of this case. Our review of the record reveals no
such concession. While the bulk of plaintiff’s arguments on
summary judgment address her contention that Alcutt was
wrongly decided, she did not state that her case depends on
our agreement with that contention.
Second, defendant argues that we do “not have
the discretion to consider” an argument for construing
ORS 656.019(1)(a) that plaintiff raises for the first time on
appeal. Appellate courts have a duty to correctly interpret
a statute, and we are responsible for identifying the correct
interpretation regardless of the arguments and interpreta-
tions offered by the parties, even when the correct interpre-
tation is not offered by any party. See, e.g., State v. A. B. K.,
323 Or App 246, 248, 522 P3d 894 (2022) (citing Strasser
3
At least two cases that preceded Bundy III contain dicta that could be read
in a vacuum to assume that ORS 656.019(1)(a) authorizes a claim. See Preble I,
298 Or App at 369 (noting that defendant had argued that “ORS 656.019(1) did
not authorize her to file the claim in the first place”); Alcutt, 258 Or App at 780-82
(discussing whether ORS 656.019(1) “entitled” the plaintiff to bring a civil neg-
ligence action; concluding that ORS 656.019 did not provide a “basis for subject
matter jurisdiction” for the plaintiff’s claims). Neither Preble I nor Alcutt pre-
sented the question whether ORS 656.019(1) authorizes a claim or only imposes
procedural requirements on claims authorized elsewhere. Under the current
understanding of ORS 656.019(1), that provision cannot independently authorize
claims. Any suggestion in previous cases that ORS 656.019(1) creates or autho-
rizes a cause of action does not survive Bundy III.
Cite as 325 Or App 777 (2023) 783

v. State of Oregon, 368 Or 238, 260, 489 P3d 1025 (2021);
Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997)). Moreover,
although contesting preservation, defendant has responded
to the substance of plaintiff’s arguments about the proper
construction of ORS 656.019(1)(a), such that considering the
parties’ arguments does not violate the purposes of fairness
and efficiency. See State v. McDonald, 168 Or App 452, 458,
7 P3d 617, rev den, 331 Or 193 (2000) (considering alterna-
tive argument raised for the first time on appeal).
Although this matter was resolved on summary
judgment, the facts are undisputed, and we accordingly
review for errors of law. Chaimov v. Dept. of Admin. Services,
314 Or App 253, 256, 497 P3d 830 (2021), aff’d, 370 Or 382,
520 P3d 406 (2022). When addressing an issue of statutory
construction, we follow the analytical framework described
in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009), with
the “ ‘paramount goal’ of discerning the intent of the legis-
lature.” Simi v. LTI Inc. - Lynden Inc., 368 Or 330, 336, 491
P3d 33 (2021) (quoting Gaines, 346 Or at 171-72). We primar-
ily consider the text and context of the provision at issue, as
the legislature’s words are the best expression of its intent;
we also consider legislative history when it appears useful
to our analysis. Simi, 368 Or at 336.
ORS 656.019(1)(a) expressly applies when a “worker
has failed to establish that a work-related incident was the
major contributing cause of the worker’s injury.” Plaintiff
contends that a worker “fail[s] to establish” that when she
offers evidence that a work-related incident was the major
contributing cause of her need for treatment, but the tri-
bunal finds her evidence less persuasive than the employ-
er’s contrary evidence. Defendant argues that plaintiff’s
proposed construction is foreclosed by Alcutt; under that
case, defendant urges, the only workers who can “fail[ ] to
establish” are those who assert that occupational disease,
not workplace injury, is the major contributing cause of their
need for treatment.
In Alcutt, the plaintiff fell off a stool at work and
subsequently sought treatment for back and neck pain.
258 Or App at 770. We noted that all four medical experts,
including the plaintiff’s own expert, opined at the hearing
784 Preble v. Centennial School Dist., No. 287

that preexisting degenerative disc disease, not the workplace
incident, was the major contributing cause of the plaintiff’s
disability and need for treatment. Id. at 771. The ALJ, in
upholding the defendant’s denial of the claim, described the
state of the record:
“All of the medical experts offering a causation opinion in
this case (including [the plaintiff’s]) ultimately opined that
the major contributing cause of [the plaintiff’s] disability/
need for treatment was the preexisting condition, not the
work incident.”
Id. (internal quotation marks omitted). Under those circum-
stances—in which the plaintiff did not engage in an effort
at the hearing to demonstrate that his need for treatment
was work-related—we concluded that the plaintiff had not
“failed to establish” that a work incident was the major con-
tributing cause of his need for treatment. Id. at 782. Thus,
Alcutt held that workers who, at their hearings, do not
endeavor to show that work is the major contributing cause
of their need for treatment for a combined condition do not
fall within ORS 656.019.
Defendant characterizes the holding of Alcutt dif-
ferently. In its view, Alcutt held that ORS 656.019 applies
only to occupational disease combined condition cases,
because only in those cases does the worker retain—and,
accordingly, only in those cases could be said to “carry”—
the burden of proof. See ORS 656.266(2)(a) (once a worker
establishes an otherwise compensable injury, the employer
has burden of proof that the injury is not the major contrib-
uting cause of the combined condition). Defendant misreads
Alcutt.
Alcutt did not hold that ORS 656.019 applies only in
occupational disease combined condition cases. In response
to an argument of the plaintiff’s, we suggested in Alcutt that
ORS 656.019 would apply to occupational disease cases, 258
Or at 781-82, but did not hold that occupational disease
cases were the only cases in which ORS 656.019 could apply.
As to which party has the burden of proof, it is true
that, as a result of the same bill that led to the enactment
of ORS 656.019, the employer now has the burden to prove
Cite as 325 Or App 777 (2023) 785

that an otherwise compensable injury is not the major con-
tributing cause of a combined condition. ORS 656.266(2)(a).
It is also true that our opinion in Alcutt employed variations
on the term “carried its burden of proof”—but we did so only
when quoting the trial court ruling or quoting or summa-
rizing the parties’ arguments. 258 Or App at 772-77, 781,
783. By contrast, each time we stated our holding in Alcutt,
we were careful to use the statutory phrase “failed to estab-
lish”; we did not insert the “burden of proof” wording that
the legislature had not used. Id. at 780, 782, 785.

Notably, the legislature demonstrated that it knows
how to refer to which party has the burden of proof by
using that phrase in the same legislation that led to ORS
656.019. If the legislature had intended the application of
ORS 656.019 to turn on which party had the burden of proof
in the abstract, it could have said so. It did not. Nor did we
hold in Alcutt that workers, who never have the burden of
proof on major contributing cause in injury cases, never can
“fail to establish” that work was the major contributing case
of their need for treatment.

Simply because a party is not assigned the initial
burden of proof does not mean that the party cannot attempt
to prove their own position. That is, the party may produce
evidence on a particular fact in an attempt to convince the
trier of fact that the alleged fact is true. See Marvin Wood
Products v. Callow, 171 Or App 175, 179, 14 P3d 686 (2000)
(describing production and persuasion components of the bur-
den of proof). That is what happened at the hearing before
the ALJ here: Defendant met its initial burden of production
by offering evidence that plaintiff’s preexisting degenerative
knee condition was the major contributing cause of her need
for treatment. Plaintiff then had the opportunity to meet
defendant’s evidence—which she did, by producing her own
evidence that the work incident was the major contributing
cause. Therein lies the key distinction between this case and
Alcutt: At the hearing in Alcutt, the plaintiff did not engage
in an effort to establish a basis for his theory, while here
plaintiff did engage in such an effort. Because the board
found plaintiff’s evidence less persuasive, she ultimately
failed to establish her theory of causation.
786 Preble v. Centennial School Dist., No. 287

Where a worker offers evidence that work was the
major contributing cause of a combined condition, but the
ALJ or board finds that evidence less persuasive than the
employer’s contrary evidence, the worker has “failed to
establish that a work-related incident was the major con-
tributing cause of the worker’s injury” such that the worker
may pursue a civil action under the limitations set out in
ORS 656.019. Plaintiff falls within those who can pursue a
civil action in the manner described in ORS 656.019.
Reversed and remanded.