Nicholson v. Blachly

740 P.2d 220, 86 Or. App. 645
CourtCourt of Appeals of Oregon
DecidedAugust 5, 1987
DocketA8511-07449; CA A40516
StatusPublished
Cited by3 cases

This text of 740 P.2d 220 (Nicholson v. Blachly) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nicholson v. Blachly, 740 P.2d 220, 86 Or. App. 645 (Or. Ct. App. 1987).

Opinions

JOSEPH, C. J.

Plaintiff appeals from judgments dismissing his complaint for breach of contract and negligence. ORCP 21A. The trial court based the dismissals on the ground that plaintiffs exclusive remedy is under the Workers’ Compensation Act. We affirm.

In reviewing an ORCP 21A dismissal, we assume the truth of plaintiffs allegations. Crosby v. SAIF, 73 Or App 372, 376, 699 P2d 198 (1985). He was employed by Pacific Fruit Express (PFE), a self-insured employer, earning $11 an hour. In August, 1981, he was injured on the job. PFE undertook to provide him with vocational rehabilitation services as part of his workers’ compensation benefits. In November, 1983, it contracted with International Rehabilitation Associates (IRA), of which Blachly is an employe. The contract provided that IRA would give plaintiff on the job training and that PFE would subsidize his wages during the training period. The base wage provided for in the agreement was $7 an hour. The parties orally agreed that plaintiff would receive a wage subsidy of $4 an hour.

Plaintiff alleges that PFE breached its contract by failing to subsidize his wages so that he would receive $11 an hour. He also alleged that PFE was negligent in acquiring or advising him about the rehabilitation services to be provided by Blachly and IRA. Against Blachly and IRA, he alleges breaches of contract by failing to obtain employment for him at $11 an hour and by negligently providing rehabilitation services.

We turn first to plaintiffs contention that the trial court erred in dismissing his claims against PFE. He argues that his contract claim against PFE is for breach of an oral contract made after he was injured, that PFE’s liability for that breach and for negligence is separate from its liability arising from his compensable injury and that the court erred in ruling that his exclusive remedy is in the workers’ compensation system. PFE argues that, as to employers and employers’ insurers, ORS 656.018 substitutes exclusive workers’ compensation liability for “all other liability arising out of compensable injuries.” It characterizes plaintiffs breach of contract and negligence claims as parts of a dispute over the amount of compensation to which he is entitled. As such, the [648]*648claims arise from a compensable injury and are within the exclusive ambit of the workers’ compensation system. PFE argues further that the workers’ compensation statutes provide that the forum for all disputes concerning a claim, including everything concerning an employer’s responsibility for vocational rehabilitation, is the workers’ compensation system.

Jurisdiction for “matters concerning a claim under ORS 656.001 to 656.794” is under the workers’ compensation system. ORS 656.708(3). Matters concerning a claim “are those matters in which a worker’s right to receive compensation, or the amount thereof, are directly in issue.” ORS 656.704(3); see also Hayden v. Workers’ Compensation Dept., 77 Or App 328, 331, 713 P2d 612 (1986). Compensation includes vocational rehabilitation assistance. ORS 656.005(9); ORS 656.340(3).1 At the time of plaintiff’s injury, ORS 656.3402 provided, in relevant part:

[649]*649“(2) * * * If the worker is not able to return to the previous employment, the insurer or self-insured employer shall assist the worker in obtaining similar or suitable employment.
“(3) Assistance under this section shall include, but not be limited to use of the insurer’s or self-insured employer’s placement and rehabilitation resources, job search, on-the-job placement and contracting with the Vocational Rehabilitation Division of the Department of Human Resources or with suitable private rehabilitation services for the purpose of reemploying the worker at a position or a wage as close as possible to the worker’s occupation or employment at the time of injury. All vocational assistance services provided to injured workers shall be in accordance with rules prescribed by the director.” (Emphasis supplied.)

Although plaintiff contends that PFE breached (and negligently performed) an obligation undertaken after he was injured by means of a statutorily authorized contract to provide benefits, the essential wrong alleged is the failure of PFE to provide adequate compensation, and that is subject to the Workers’ Compensation Act exclusively. Therefore, the trial court did not err in dismissing plaintiffs complaint against PFE.

Plaintiff also contends that the trial court erred in dismissing his claims against Blachly and IRA. He argues that the exclusivity of workers’ compensation remedies does not extend to them and that his claims are not barred by the Workers’ Compensation Act. Blachly and IRA argue that vocational rehabilitation assistance is one of the benefits provided to injured workers under the act in lieu of any other remedies that they otherwise might have had. They rely on [650]*650SAIF v. Harris, 66 Or App 165, 168, 672 P2d 1384 (1983). They are correct. ORS 656.018 states, in relevant 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 * *
<<* * * * *
“(2) The rights given to a subject worker and the beneficiaries of the subject worker for compensable injuries under ORS 656.001 to 656.794 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 * * (Emphasis supplied.)

Although Blachly and IRA are not plaintiffs “employer,” they are within the scope of the protection of 656.018 in providing a service the right to which exists only by reason of and pursuant to the Act.

At the time of his injury, OAR 436-61-1913 provided that, in addition to requesting a hearing on a vocational rehabilitation assistance question under ORS 656.283(1), a claimant could request the Rehabilitation Review Division to resolve a dispute with a vocational assistance provider:

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Related

Gordineer v. Bellotti
785 P.2d 362 (Court of Appeals of Oregon, 1990)
Nicholson v. Blachly
753 P.2d 955 (Oregon Supreme Court, 1988)
Nicholson v. Blachly
740 P.2d 220 (Court of Appeals of Oregon, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
740 P.2d 220, 86 Or. App. 645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nicholson-v-blachly-orctapp-1987.