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Errand v. Cascade Steel Rolling Mills Inc.2/2/1995
yer provides the required workers' compensation coverage and if those activities and conditions fall short of being willful and unprovoked aggression. See ORS 656.018(3) (exemption from liability does not apply when injury caused by willful and unprovoked aggression of person otherwise exempt). The majority's interpretation of the statutory definition of "compensable injury," however, guts the bargain. Every claimant will have the opportunity and the incentive to try to "opt out" of the workers' compensation system. The legislature did not intend that result.
Under a proper reading of ORS 656.005(7)(a), plaintiff has a compensable injury , because he has an "injury * * * arising out of and in the course of employment." The Board found that plaintiff has "transient irritation of the upper respiratory tract and paranasal sinuses as a result of inhalation of substances found in his work place." (Emphasis added.) The Board then held that " he medical evidence, however, does not support the Conclusion that [plaintiff] has a compensable disease," because " is symptomatic response to irritants is not a pathological process." In other words, although plaintiff's injury arose out of and in the course of his employment (was a compensable injury), the evidence adduced at the hearing did not entitle plaintiff to collect benefits.
Whether or not plaintiff received benefits, defendant's asserted liability here "arise out of compensable injuries" and, therefore, the workers' compensation system
"is exclusive and in place of all other liability." ORS 656.018(1). Plaintiff thus is foreclosed, under ORS 656.018(2), from pursuing the present action. Accordingly, the decision of the Court of Appeals and the judgment of the circuit court should be affirmed.
For the foregoing reasons, I respectfully Dissent.
CARSON, C.J., joins in this opinion.
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