Moustachetti v. State

DURHAM, J. Plaintiff appeals from a summary judgment for defendants. The trial court held that, under ORS 30.265 (3)(a), defendants are immune from plaintiffs claim for wrongful termination. We reverse. Plaintiff worked at Fairview Training Center as a psychiatric security aide. Defendants are plaintiffs employer, a public body, and individuals who are employees or agents of the employer. In September, 1987, plaintiffs employer placed him on administrative leave and terminated him in January, 1988.1 In September, 1987, plaintiff filed a workers’ compensation claim for an on-the-job injury that he described as “stress.” He asserted that the stress arose from problems with his job and from his suspension. SAIF concluded that plaintiff suffered from “emotional stress due to anxiety over his employment, suspension and termination” and accepted the claim. Claimant received time loss and payment for medical expenses. In January, 1990, plaintiff filed a complaint for wrongful termination, alleging that defendants wrongfully terminated him with intent to cause severe emotional distress. Plaintiff sought damages for: “severe emotional distress, sleeplessness, loss of control over his emotions, alienation of his friends and family, [and] diminution and damages to his self-confidence and self-esteem, all to his non-economic damage in an unspecified amount.” The trial court granted defendants’ motion for summary judgment on the ground that there were no disputed issues of material fact and that, as a matter of law, defendants were entitled to immunity under ORS 30.265(3)(a). That statute provides in pertinent part: “(3) Every public body and its officers, employees and agents acting within the scope of their employment or duties * * * are immune from liability for: “(a) Any claim for injury to * * * any person covered by any workers’ compensation law.” [601] We examine the record in the light most favorable to the non-moving party to determine if there are no genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. ORCP 47C; Poirier v. United Grocers, Inc., 110 Or App 592, 595, 824 P2d 1158, rev den 313 Or 210 (1992). The controlling question is whether ORS 30.265 (3) (a) grants immunity to a public body and its agents for liability resulting from its intentional injury of a worker who is subject to a workers’ compensation law. Plaintiff argues that ORS 656.156(2) preserves his right to bring the action even though he is a worker “covered” by the workers’ compensation law. Defendant argues that the immunity applies to all claims by “persons” covered by the workers’ compensation law and that plaintiff is such a “person.” Our objective in construing ORS 30.265(3)(a) is to discern the legislature’s intention. ORS 174.020. We must construe the statute as a whole to determine that intention.2 The state enjoys immunity from “claims for injury to * * * any person covered by any workers’ compensation law.” The language requires us to resort to the workers’ compensation law as an initial matter to determine who and what that law “covers.”3 When we interpret several related statutes, we should adopt such construction “as will give effect to all.” ORS 174.010. In general, we “construe together statutes on the same subject as consistent with and in harmony with each other.” Davis v. Wasco IED, 286 Or 261, 272, 593 P2d 1152 (1979). [602] The general policy of Oregon’s Workers’ Compensation Law, as expressed in ORS 656.012, is to require “industry to bear the costs of injury or disease to workers, just as industry must do with respect to damage to machinery, and to avoid ‘common law’ litigation by granting to employers immunity against liability for ‘compensable injuries,’ ORS 656.018.” Dethlefs v. Hyster Co., 295 Or 298, 309, 667 P2d 487 (1983). In Wright v. Bekins Moving & Storage Co., 97 Or App 45, 49, 775 P2d 857, rev den 308 Or 466 (1989), we said: “The workers’ compensation system is purely a creature of statute and many of the provisions * * * involve political accommodations of the competing interests of employers and claimants and the need for an orderly litigation system.” The principal political accommodation compels the employee to give up the right to sue for negligence and the right to secure a potentially larger award of damages through a jury trial. The employer gives up its common law defenses to negligence and is exposed to liability regardless of fault for the limited compensation provided by statute. However, with regard to an employer’s intentional injury of an employee, the law strikes a different political accommodation. ORS 656.156(2) provides: ‘ ‘If injury or death results to a worker from the deliberate intention of the employer of the worker to produce such injury or death, the worker, the widow, widower, child or dependent of the worker may take under this chapter, and also have cause for action against the employer, as if such statutes had not been passed, for damages over the amount payable under those statutes.” The statute grants statutory compensation to the employee injured through the deliberate intention of the employer and guarantees that the employee has the right to pursue a cause of action against the employer as if the Workers’ Compensation Law had never been passed. We construe ORS 30.265(3)(a) and ORS 656.156(2) together to give effect to each. Davis v. Wasco IED, supra, 286 Or at 272. Plaintiff’s intentional tort claim is not “covered” by the workers’ compensation law, within the meaning of ORS 30.265(3)(a), because ORS 656.156(2) preserves his [603] common law tort remedies and compels us to assume that the legislature did not enact a workers’ compensation law regarding that claim.4 We do not ascribe to the legislature an intention to immunize the state or its agents from liability for intentional torts committed within the scope of employment. See Crosby v. SAIF, 73 Or App 372, 376, 699 P2d 198 (1985), reaching the same conclusion under ORS 30.265(3)(c), which creates immunity for discretionary acts. See also Clackamas Co. Fire Protection v. Bureau of Labor, 50 Or App 337, 353, 624 P2d 141, rev den 291 Or 9 (1981). Reversed and remanded. Footnotes [1] Plaintiff was reinstated in December, 1988, with an award of back-pay as the result of a grievance arbitration award. [2] The partial dissent is flawed because it begins and ends its analysis with the term “person” in ORS 30.265(3)(a), and disregards the other key phrases, “claims for injury” and “covered by any workers’ compensation law.” In contrast, we choose to construe ORS 30.265(3)(a) as a whole and to give effect to every word and phrase, if possible. Kankkonen v. Hendrickson et al, 232 Or 49, 67, 374 P2d 393 (1962). The partial dissent does not explain how it can discern whether an injury claim is covered by workers’ compensation law, and is, therefore, a claim for which the state is immune, without making any effort to interpret and apply the workers’ compensation law, as the text of ORS 30.265(3)(a) contemplates. [3] Coverage exists when the employer satisfies its duties under ORS 656.017 and thereby qualifies for the exclusive remedy protection in ORS 656.018. For purposes of ORS 30.265(3)(a), a claim is “covered” by the workers’ compensation law even if, due to insufficiency of evidence or an error on the part of the claimant or the claimant’s attorney, the Board rejects all or part of the claim or does not grant the requested relief. [4] Despite the partial dissent’s contrary suggestion, it is not mere coincidence that the scope of immunity under ORS 30.265(3)(a) parallels the immunity of employers from claims by injured workers under ORS 656.018 and ORS 656.156(2). Our construction of the two statutes effectuates the legislative intention that they be construed together to achieve a consistent application. The partial dissent’s construction would defeat that consistency by immunizing the state from its intentional torts against its employees even though, as to those claims, we are bound to assume that the workers’ compensation laws do not exist. ORS 656.156(2).