Errand v. Cascade Steel Rolling Mills, Inc.

888 P.2d 544, 320 Or. 509, 1995 Ore. LEXIS 3

• Court: Oregon Supreme Court
• Decided: February 2, 1995
• Docket: CC CV91283; CA A80487; SC S41195
• Status: Published

Opinions

VAN HOOMISSEN, J.

Plaintiff filed a complaint in circuit court against defendant, his employer, alleging statutory and common law negligence claims and seeking damages for economic losses, past and future medical bills, lost wages, and impairment of earning capacity. The trial court granted defendant’s motion for summary judgment on the ground that defendant is immune from liability and that plaintiffs exclusive remedy is under the Workers’ Compensation Law. ORS 656.018.¹ The Court of Appeals affirmed. Errand v. Cascade Steel Rolling Mills, Inc., 126 Or App 450, 454-55, 869 P2d 358 (1994). For the reasons that follow, we reverse.

Plaintiff, a worker at defendant’s manufacturing plant, had a preexisting condition of chronic infectious para-nasal sinusitis that was not caused by his current work experiences or environment. That preexisting condition, which predisposes plaintiff to experience airway irritation, became symptomatic due to his inhalation of substances in the workplace. Plaintiff sought treatment for his symptoms and filed a workers’ compensation claim. The insurer denied the claim, explaining that “it does not appear your condition was worsened by or arose out of and in the course of your employment, either by accident or occupational disease.” Plaintiff appealed that denial.

A referee defined the issue as whether plaintiffs work exposure caused or worsened his chronic infectious paranasal sinusitis or “caused a complex of symptoms that would be recognized in workers’ compensation law as a disease.” After noting that plaintiffs sinusitis predisposed him to experience airway irritation, the referee found:

“Claimant does not have a reactive airway disease or occupational asthma. He does have transient irritation of the upper respiratory tract and paranasal sinuses as a result of inhalation of substances found in his workplace.

“Claimant’s work exposure is not the major cause of his chronic infectious paranasal sinusitis.”²

The referee upheld the insurer’s denial of the claim. In its final order, the Workers’ Compensation Board adopted the referee’s order and held that plaintiff had not established that his condition was compensable, because work was not the “major cause” of his condition. Plaintiff did not seek judicial review of the Board’s order.

Plaintiff then brought this action in circuit court against his employer, based on inhalation of and exposure to particulates in the workplace, alleging statutory and common law claims. Defendant moved for summary judgment, arguing that plaintiffs exclusive remedy is under the Workers’ Compensation Law and that, under ORS 656.018, defendant is immune from liability. The trial court granted defendant’s motion. The Court of Appeals affirmed, holding:

“With certain exceptions not involved here, if the Workers’ Compensation Act is applicable, and if the employer has satisfied its obligation to comply with the requirements of the Act, then the employer’s liability to the worker for the worker’s work-related injury or condition is exclusively under the Act, and the Act is also the exclusive remedy for the injured worker. That is one part of the quid pro quo that underlies our workers’ compensation system; the other part requires the employer to assume liability for work-related injuries without fault.

“The exclusivity of the Act is not limited to claims that are ultimately determined to be compensable.” Errand v. Cascade Steel Rolling Mills, Inc., supra, 126 Or App at 453-54 (emphasis in original).

Plaintiff argues on review that the exclusivity provisions of ORS 656.018 do not apply because, although his respiratory symptoms occurred in and were caused by the workplace, he did not have a “compensable injury,” as defined in the Workers’ Compensation Law and, therefore, he is not entitled to compensation for his condition. See ORS 656.005(7)(a) (defining “compensable injury”); ORS 656.018(1) (limiting complying employer’s liability to that “arising out of compensable injuries”). From this, plaintiff further argues that the undisputed fact that he was not entitled to compensation under the Workers’ Compensation Law demonstrates that his injury did not fall within the exclusivity provision of ORS 656.018. That is, plaintiff is arguing that even if he is a subject worker and defendant is a complying employer, ORS 656.018 does not apply in this case because, as a matter of law, his condition is not compensable.

Defendant responds that a mechanical application of the statutory definition of “compensable injury” to ORS 656.018 would defeat the legislative intent behind the exclusivity provision by allowing anyone whose claim is found not to be compensable to sue the employer in a civil action. Defendant asks this court to interpret ORS 656.018 as exclusive and in place of all other liability that an employer either has or might have if the employee’s condition in question is “work-related” or “occurring at work.” We first turn to the text of ORS 656.018 and to the definition of “compensable injury,” ORS 656.005(7)(a), in the context of the Workers’ Compensation Law, to discern whether the legislature intended that a civil claim such as plaintiffs be barred. See PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993) (to discern intent of legislature, court first examines the text and context of statute).

ORS 656.018(1) provides that a complying employer’s liability “is exclusive and in place of all other liability arising out of compensable injuries to the subject workers * * ORS 656.018(2) likewise provides that the “rights given to a subject worker * * * for compensable injuries under this chapter are in lieu of any remedies they might otherwise have for such injuries against the worker’s employer under ORS 654.305 to 654.335 or other laws, common law or statute, [except as otherwise provided in the Workers’ Compensation Law].” (Emphasis added.)

ORS 656.003 provides that, “[e]xcept where the context otherwise requires, the definitions given in this chapter govern its construction. ” We turn to the issue whether the statutory definition of compensable injury applies to ORS 656.018. The wording of ORS 656.005(7)(a)(A), that “[n]o injury or disease is compensable as a consequence of a com-pensable injury,” and the language of ORS 656.005(7)(a)(B), that certain conditions may be “compensable only to the extent the compensable injury is and remains the major contributing cause,” provide, in essence, that certain injuries, diseases, or conditions, although related to work, may not be “compensable” under certain circumstances, i.e., unless the “major contributing cause” criteria found in sub-paragraph (A) or (B) are met.³

From the foregoing description of the text of the definition of “compensable injury” in ORS 656.005(7)(a), it appears to us that the legislature was using the word “com-pensable” to convey different meanings. In the main part of ORS 656.005(7)(a), the “compensable injury” referred to may be simply an “accidental injury” “arising out of and in the course of employment.” However, the limitations set forth in subparagraphs (A) and (B) of ORS 656.005(7)(a) make it clear that one who suffers an “accidental injury” “arising out of and in the course of employment” as described in paragraph (a) nevertheless may have an injury that is not “compensable,” unless the “major contributing cause” test has been met. ORS 656.005(7)(a)(A), (B); see also SAIF v. Drews, 318 Or 1, 8-9, 860 P2d 254 (1993) (“compensable injury” encompasses an application of the criteria found in ORS 656.005(7)(a), including the limitations found in sub-paragraphs (A) and (B) of that statute, in making initial determination of compensability).

The question is whether the legislature intended the exclusivity provision of ORS 656.018 to refer to some definition of compensable injury other than that set forth in ORS 656.005(7)(a), as qualified and limited by subparagraphs (A) and (B). Cf. Dethlefs v. Hyster Co., 295 Or 298, 309-10 & n 10, 667 P2d 487 (1983) (in cases decided before the addition of subparagraphs (A) and (B) to ORS 656.005(7) (a), court indicated that legislative intent behind Workers’ Compensation Law was to avoid common law litigation and to grant employers immunity against liability for compensable injuries, but also recognized that it “is arguable that an action for damages may be maintained against an employer of the worker if a disease or injury is not ‘compensable’ ”).

The definition of “compensable injury” found in ORS 656.005(7)(a), which includes the limitations found in subparagraphs (A) and (B), governs statutory construction of that term as used in the Workers’ Compensation Law “[ejxcept where the context otherwise requires.” ORS 656.003; see also Astleford v. SAIF, 319 Or 225, 232-33, 874 P2d 1329 (1994) (under ORS 656.003, a given statutory definition does not apply when the context, which includes the structure and purpose of the workers’ compensation system as a whole, demonstrates that the use of the definition would be inappropriate); PGE v. Bureau of Labor and Industries, supra, 317 Or at 611 (use of same term throughout a statute generally indicates that the term has the same meaning throughout the statute).

In plaintiffs workers’ compensation case, the referee denied compensation because plaintiffs symptoms were not the major contributing cause of his condition. Under ORS 656.802 (defining occupational disease), ORS 656.804 (occupational disease considered “injury” for purposes of Workers’ Compensation Law), ORS 656.005(7)(a) (as interpreted by this court in Drews), and the facts as found by the referee and adopted by the Board, it has been established that plaintiff did not have the right to be compensated under the Workers’ Compensation Law for the injury he suffered, as that term is defined and used in ORS 656.005(7)(a), in the light of the “major contributing cause” limitations found in ORS 656.005(7)(a)(A) and (B). The exclusivity provision of ORS 656.018 specifies that the liability of employers under the workers’ compensation scheme “is exclusive and in place of all other liability arising out of compensable injuries to the subject workers[.]” ORS 656.018(l)(a) (emphasis added). In plaintiffs workers’ compensation case, it was established that the employer had no liability to compensate plaintiff under the Workers’ Compensation Law. By providing for an employer’s freedom from “other” liability, it may be inferred from the exclusivity provision that there must exist, as a predicate for that freedom, some actual liability under the Workers’ Compensation Law before the exclusivity provision may protect the employer from “all other liability. ” Thus, the text of the exclusivity provision, specifically its use of the term “liability,” further supports the conclusion that the statutory definition of “compensable injury” applies to ORS 656.018.

We turn to the question of what the definition of “compensable injury” means. The dissent relies on the fact that specific types of injuries are excluded under ORS 656.005(7)(b), quoted supra at note 2, to try to demonstrate that the context requires that ORS 656.005(7)(a)’s definition of “compensable injury” covers every work-related injury that ORS 656.005(7)(b) does not exclude. The dissent argues, in effect, that the definition of “compensable injury” stops after the words “or resulting in disability or death” in ORS 656.005(7)(a), and that the balance of the text merely establishes conditions that may lead to non-payment of compensation for what otherwise is a compensable injury. We disagree. To the extent that the dissent is suggesting that unless something is specifically codified as “not a compensable injury” for purposes of ORS 656.005(7)(b), it therefore is a compensable injury for purposes of the exclusivity provision, the context certainly does not demonstrate that this is the only permissible construction of the statutes.⁴ The entire text of the statute is the legislature’s definition of “compensable injury.” The definition includes the limitations in subparagraphs (A) and (B). That is, unless the major contributing cause standard is satisfied, consequential conditions (sub-paragraph (A)) and resultant conditions (subparagraph (B)) are not ‘ ‘compensable injuries.” When the legislature, in ORS 656.005(7)(a)(A), declares that “[n]o injury or disease is compensable” as a consequential condition, absent compliance with the major contributing cause proof standard, it is defining a compensable injury, not merely announcing further conditions under which a compensable injury will be paid. We apply the entire text, not only one part, of subsection (7) (a) as the relevant definition.

The dissent says that, if the legislature intended the “major contributing cause” limitations to apply to “compen-sable injuries” as used in the exclusivity provision, it would have put those limitations in ORS 656.005(7)(b) rather than in ORS 656.005(7)(qXA) and (B). The context does not necessarily lead to this conclusion. ORS 656.005(7)(b) is part of the context of ORS 656.005(7)(a). The exclusions in ORS 656.005(7)(b) do not demonstrate that ORS 656.005(7)(a)(A) and (B) are merely limitations on “a subclass of‘compensable injuries’ for which workers will not receive benefits,” as the dissent asserts. 320 Or at 528. The conditions described in subparagraphs (7) (a) (A) and (B) are compensable injuries if their major contributing cause is a compensable injury, whereas the conditions described in subsection (7)(b) are not compensable injuries despite the existence of a causal link to an injury described in (7)(a). That distinction explains why the legislature defined the conditions under which “consequential” or “resultant” conditions are compensable injuries in ORS 656.005(7)(a)(A) and (B), rather than in the context of the conditions categorically excluded from “compensable injury” under ORS 656.005(7)(b).

The foregoing discussion explains why, in our view, plaintiffs argument about the scope of the immunity provided in ORS 656.018 appears more likely to be correct than does the argument of defendant. That is not to say, however, that defendant’s construction of the relevant statutes is not plausible also. We conclude that, although the text and context of ORS 656.018 tend to support the conclusion that the legislature did not intend the exclusivity provision of that statute to bar a civil action where an injury has been determined not to be compensable because it was not a “major contributing cause” of a condition, the text and context of the relevant statutes do not settle the issue. We therefore turn to the legislative history of ORS 656.018 and ORS 656.005(7)(a) to aid in discerning the intent of the legislature. PGE v. Bureau of Labor and Industries, supra, 317 Or at 610.

The exclusivity provision of ORS 656.018 was amended essentially to its present form in 1977. See Or Laws 1977, ch 514, § 1. We have found no legislative history that indicates that the 1977 amendments were intended to alter the scope of the exclusivity provision in any way relevant to the issue at hand. Before 1977, the relevant provisions were in essentially the same form as when they were enacted in 1965, when a major overhaul of the Workers’ Compensation Law was undertaken, moving from elective to compulsory workers’ compensation coverage:

“Every employer who satisfies the duty required by subsection (1) of section 5 of this 1965 Act is relieved of all other liability for compensable injuries to his subject workmen, the workmen’s beneficiaries and anyone otherwise entitled to recover damages from the employer on account of such injuries, except as specifically provided otherwise in ORS 656.002 to 656.590.” Or Laws 1965, ch 285, § 6(1).

The 1965 Workers’ Compensation Law also introduced for the first time a statutory definition of “compensable injury”:

“A ‘compensable injury’ is an accidental injury, or accidental injury to prosthetic appliances, arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means.” Or Laws 1965, ch 285, § 1(21).

We have examined the legislative history of the 1965 enactments and the later amendments to the exclusivity provision and the definition of “compensable injury” before 1990, and have found nothing that sheds light on the issue at hand. However, in Cope v. West American Ins. Co., 309 Or 232, 236, 785 P2d 1050 (1990), a case decided before the 1990 amendments to ORS 656.005(7)(a), this court indicated that the statutory definition of “compensable injury” found in ORS 656.005(7)(a) applied to that term as it is used in the exclusivity provision of ORS 656.018(1)(a). See Stephens v. Bohlman, 314 Or 344, 350 n 6, 838 P2d 600 (1992) (this court’s interpretation of a statute becomes a part of the statute as if written into it at the time of its enactment).

The question is whether the 1990 legislature intended that its amended definition of “compensable injury,” found in the current version of ORS 656.005(7)(a), would apply to the exclusivity provisions of ORS 656.018. If the legislature intended the new definition of “compensable injury” to apply, then the exclusivity provision would apply when the ‘ ‘accidental injury’ ’ “arising out of and in the course of employment” was the “major contributing cause” of a resulting or consequential condition requiring medical services. ORS 656.005(7)(a)(A), (B).

We turn to the history of the 1990 amendments to the Workers’ Compensation Law, in which the definition of “compensable injury” was amended to include the “major contributing cause” limitations.⁵ It is clear from the text and the legislative history of the 1990 amendments that those changes were intended to have the effect of reducing the number of workers who could recover for work-related injuries under the workers’ compensation system. See Or Laws 1990, ch 2, § 3 (Spec. Sess.) (changing requirements regarding objective findings and compensable injuries); Exhibit E, Joint Interim Special Committee on Workers’ Compensation, May 5, 1990 (fiscal analysis showing cost savings expected from reducing number of compensable injuries); Joint Interim Special Committee on Workers’ Compensation, May 3, 1990, Tape 7, Side B (testimony from various witnesses regarding fewer compensable injuries).

The legislative histoiy of the 1990 amendments to the definition of compensable injury in ORS 656.005(7)(a) reveals that the joint committee reviewing the amendments considered the potential impact of the change in compen-sability on the exclusivity provision of the Workers’ Compensation Law:

CHARLES WILLIAMSON, OREGON TRIAL LAWYERS ASSOCIATION: “* * * I think you may be overlooking a situation here where a worker is having a coffee break or a cigarette break on the loading dock and he gets run over by a forklift or some other negligence. Any worker that is injured through the fault of another, if it’s not going to be compen-sable, he’s going to have a lawsuit against the employer, and the employee that was negligent. And so you’re going to be taking cases out of the workers’ comp system and putting them into the court system. Not completely, but just when it’s someone else’s fault, you will take those cases out of the workers’ comp system.”

REP. EDMUNDSON: “The — let’s use for example the major cause test. If work was, if something that happened at work was a material factor in an injury condition, but not the major factor, it would not be a compensable claim under the major cause test. So it wouldn’t be covered under workers’ comp laws. But if that material contribution at work was some negligent act, by a coworker or the employer failing to clean up the oil on the factory floor, then that negligence would be the grounds of a lawsuit against the employer for premises liability or negligent care and control of his workforce. The Court of Appeals ruled real recently that even though something happens at work, an injury happens at work, if it’s not covered under workers’ comp law, then all other civil remedies are available because there is no exclusive protection under the act. So every time we make a work-related condition not compensable, we are exposing the employer to civil liability.” Joint Interim Special Committee on Workers’ Compensation, May 3, 1990, Tape 7, Side B (emphasis added).

a* * * *

REP. EDMUNDSON: “How about the earlier assertion that if an on-the-job condition does not qualify as a compen-sable claim, the employer would then be subject to liability for civil action?”

JERRY KEENE, WORKERS’ COMPENSATION DEFENSE ATTORNEYS: “I need to see that case because my understanding of the law is to the contrary, and in fact I’ve won a few cases to the contrary, so I would need to see what you’re talking about. I haven’t seen that case yet.”

REP. EDMUNDSON: “Well, my principal point, Jerry, is

if an injury is not compensable under the workers’ comp laws

KEENE: “ - civil liability - ”

REP. EDMUNDSON: “ — then, you would agree that there is no exclusive remedy under the comp laws — ”

KEENE: “ - No, that’s not true - ”

REP. EDMUNDSON: and therefore liability is, would have to be litigated as any other type of injury.”

KEENE: “Exclusive remedy applies so long as it is work-related, or within, for example, we’ve had decisions where an occupational disease was proven not to be the major contributing cause but was still partially work-related, it fell outside civil liability because exclusive liability applied. And whether that’s a good result or not, I’m not saying. But I don’t agree with your assessment of that blanket statement of the law.”

REP. EDMUNDSON: “Web, I, Mr. Chair, Madame Chair, I just want to direct Mr. Keene to section 18 of the act [ORS 656.018], which says the liability for any employer who satisfies the duty is exclusive and in place of all other liability arising out of compensable injuries to subject workers. Therefore, if the injury is not compensable but is yet to a subject worker, I would submit that section 18 does not protect that employer from liability.”

KEENE: “In the cases I’ve been involved in, they interpreted that as potentially compensable.”

REP. EDMUNDSON: “Web, if it was clearly not compen-sable, would your answer change?”

KEENE: “Once it was litigated and turned out not to be? No. Because that’s what happened in my case.”

SEN. SHOEMAKER: “Chairman, I want to return to the hypothetical that Representative Mannix posed to an earlier witness and I believe — ”

KEENE: “They didn’t appeal, by the way.” Joint Interim Special Committee on Workers’ Compensation, May 3,1990, Tape 8, Side B (emphasis added).

Not surprisingly, that legislative history indicates that Williamson, a witness on behalf of the claimant’s bar, essentially argued what plaintiff is arguing in the present case, and that Keene, a witness on behalf of the insurance defense bar, essentially argued what defendant is arguing in the present case. However, the exchanges quoted above also indicate that Representative Edmundson, one of the legislative committee members, believed that just as the definition of “compensable injury” narrowed, so also the exclusivity provision narrowed, because the new definition would apply to the term “compensable injuries” as used in ORS 656.018.

During the House floor debate, Representative Edmundson made similar statements:

“[Speaking of the major contributing cause limitation] That means that if an older worker for example has a heart attack and its not the major cause and they don’t get coverage, they may die, and their heirs or their family could have a lawsuit against the employer that is now presently is not allowed under Oregon law. The federal courts have made it pretty clear that — even something that happens at work — if it’s not compensable under the workers’ comp laws, the employee can sue the employer. And I don’t think that business has really thought this one through. I predict, and as you all know I practice this law, I predict we’re going to have some lawsuits that are going to surprise some employers when they find out they don’t have insurance coverage for them. So, that’s the downside on that, that I don’t think — that I know some insurance people are a little concerned about that too. ’ ’ House Floor Debate, May 7,1990, Tape 2, Side A.

Moreover, during that floor debate, Representative Dwyer commented:

“Representative Edmundson said it may subject a small employer, or an employer, to tort action, and I’m inclined to agree that you can’t conceivably have an exclusive remedy that is no remedy at all and claim refuge under it.” Id., Tape 3, Side A.

No other legislator voiced disagreement with Representative Edmundson’s and Representative Dwyer’s conclusions during floor debate, and neither the amended definition of “com-pensable injury” nor the exclusivity provision of ORS 656.018(1) were further amended to address the issue.

We conclude that this legislative history supports a conclusion that the legislature intended the definition of “compensable injury” as amended in 1990 to apply in the context of the exclusivity provision of ORS 656.018(1).

Oregon courts long have recognized that the workers’ compensation system involves a trade-off, offering certain advantages, as well as disadvantages, to both employers and employees. See, e.g., Hale v. Port of Portland, 308 Or 508, 521-22, 783 P2d 506 (1989) (“The scheme penalized some members of both camps — those plaintiffs who could prove actionable negligence of their employers, and so obtain damages beyond their medical expenses, and other employers who could defeat liability either because they had not been negligent or because they could show the worker was guilty of contributory negligence or assumption of risk.”); McGarrah v. SAIF, 296 Or 145, 160, 675 P2d 159 (1983) (“Workers’ compensation systems are founded on political compromise.”). Undoubtedly, the 1990 legislature changed the nature of the trade-off when it narrowed the definition of “compensable injury” in ORS 656.005(7)(a) to reduce the number of injuries that would be compensated under the Workers’ Compensation Law. The history available to us does not, however, justify a conclusion that the 1990 legislature intended that change to work solely in favor of employers, thus relieving employers of liability while keeping the workers’ end of the bargain unchanged.⁶

In sum, we conclude that the 1990 legislature intended the present definition of “compensable injury” in ORS 656.005(7)(a) to apply to ORS 656.018, because that result is consistent with the text and context of those statutes, because the context does not otherwise require, ORS 656.003, and because the legislative history supports that conclusion. Thus, we conclude that the exclusivity provision of ORS 656.018 does not provide defendant with immunity from plaintiffs civil claims here, because plaintiff did not have a “compensable injury” within the meaning of ORS 656.005(7)(a) and ORS 656.018(1).⁷

The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed. The case is remanded to the circuit court for further proceedings.

1 ORS 656.018 provides in part:

“(l)(a) The liability of every employer who satisfies the duty required by ORS 656.017(1) is exclusive and in place of all other liability arising out of compensable injuries to the subject workers, the workers’ beneficiaries and anyone otherwise entitled to recover damages from the employer on account of such injuries or claims resulting therefrom, specifically including claims for contribution or indemnity asserted by third persons from whom damages are sought on account of such injuries, except as specifically provided otherwise in this chapter.

<<* * * * *

“(2) The rights given to a subject worker and the beneficiaries of the subject worker for compensable injuries under this chapter are in lieu of any remedies they might otherwise have for such injuries against the worker’s employer under ORS 654.305 to 654.335 or other laws, common law or statute, except to the extent the worker is expressly given the right under this chapter to bring suit against the employer of the worker for an injury.”

It is undisputed that plaintiff was a subject worker and defendant was a complying employer for purposes of ORS 656.018.

2 ORS 656.005(7) provides in part:

“(a) A ‘compensable injury’ is an accidental injury, or accidental injury to prosthetic appliances, arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means, if it is established by medical evidence supported by objective findings, subject to the following limitations:

“ (A) No injury or disease is compensable as a consequence of a compensable injury unless the compensable injury is the major contributing cause of the consequential condition.

“(B) If a compensable injury combines with a preexisting disease or condition to cause or prolong disability or a need for treatment, the resultant condition is compensable only to the extent the compensable injury is and remains the major contributing cause of the disability or need for treatment.

“(b) ‘Compensable injury’ does not include:

“(A) Injury to any active participant in assaults or combats which are not connected to the job assignment and which amount to a deviation from customary duties;

“(B) Injury incurred while engaging in or performing, or as the result of engaging in or performing, any recreational or social activities primarily for the worker’s personal pleasure; or

“(C) Injury the major contributing cause of which is demonstrated to be by clear and convincing evidence the injured worker’s consumption of alcoholic beverages or the unlawful consumption of any controlled substance, unless the employer permitted, encouraged or had actual knowledge of such consumption. ’ ’

ORS 656.802 provides parallel provisions regarding “occupational disease”:

“(1) As used in this chapter, ‘occupational disease’ means any disease or infection arising out of and in the course of employment caused by substances or activities to which an employee is not ordinarily subjected or exposed other than during a period of regular actual employment therein, and which requires medical services or results in disability or death * * *.

* * * *

“(2) The worker must prove that employment conditions were the major contributing cause of the disease or its worsening. Existence of the disease or worsening of a preexisting disease must be established by medical evidence supported by objective findings.”

ORS 656.804 provides:

“An occupational disease, as defined in ORS 656.802, is considered an injury for employees of employers who have come under this chapter, except as otherwise provided in ORS 656.802 to 656.807.”

3 In SAIF v. Drews, 318 Or 1, 8, 860 P2d 254 (1993), this court stated: “ ‘Compensable injury’ encompasses an application of the criteria found in ORS 656.005(7)(a), including the limitations found in subparagraphs (A) and (B) of that statute, in making an initial determination of compensability.” Defendant here argues that “this court should interpret the word ‘compensable’ in ORS 656.018(1), as it recently did in SAIF v. Drews, supra, 318 Or at 8-9, to mean ‘accidental.’ ” Defendant misreads this court’s ruling in Drews. In Drews, this court did not find that the words “compensable” and “accidental” were interchangeable as used in ORS 656.005(7)(a). In setting forth the test for applying the definition of “compensable injury” in the context of ORS 656.308, this court in Drews described the injury discussed in the first part of ORS 656.005(7)(a) as an “accidental injury.” However, this court went on to make it clear that the “accidental injury” so described was not compensable, unless the limitations in ORS 656.005(7)(a)(A) or (B), if applicable, were satisfied. Id. at 8-9.

4 Although both ORS 656.005(7)(a) and (b) are part of the context of ORS 656.018, ORS 656.005(a) is more helpful to a determination of what ORS 656.018 means, because it states what a “compensable injury” is, while ORS 656.005(7)(b) only states what a “compensable injury” is not, at least under the described conditions.

5 The parallel provisions of ORS 656.802 (occupational disease) were amended at the same time to state the “major contributing cause” standard for occupational diseases. Or Laws 1990, ch 2, § 43 (Spec. Sess.).

6 Because we decide this case on statutory grounds, we need not consider plaintiffs arguments based on Article I, section 10, of the Oregon Constitution (“every man shall have remedy by due course of law for injury done in his person, property, or reputation”).

7 Defendant expresses concern that interpreting the exclusivity provision in a manner that does not preclude civil actions for noncompensable conditions could lead injured workers to bypass the workers’ compensation system entirely in order to take their cases before juries and that, had the legislature sought to provide workers with such an election to proceed outside the Workers’ Compensation Law, such a policy choice would be evident from the law itself. Nothing in our decision here supports a conclusion that workers may elect to bypass the workers’ compensation system. In view of the procedural posture of this case, we do not decide whether a Board determination that plaintiffs claim is not a compensable injury is a prerequisite to this action in circuit court.