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 contributing cause of the worker’s injury' such that the worker may pursue a civil action under the limitations set out in ORS 656.019." Preble v. Centennial School Dist., No. 287.

Plaintiff appealed the trial court’s grant of summary judgment to defendant. Plaintiff assigned error to the trial court's finding that her claim was foreclosed under ORS 656.019. Plaintiff argued that her case was distinguishable from Alcutt v. Adams Family Food Services, Inc., 258 Or App 767, 311 P3d 959 (2013), rev den, 355 Or 142 (2014), which held that an injured worker had no right to sue under ORS 656.019 after a determination of noncompensability where he had not “failed to establish” that the work incident at issue was the major contributing cause of his combined condition. Plaintiff argued that an injured worker who offers evidence at the worker's compensation hearing that is ultimately deemed unpersuasive may pursue a civil negligence claim under ORS 656.019 if they failed to establish compensability. Appellee argued that Plaintiff did not preserve the error and that Alcutt does not apply in an injury case like the one at bar. When a worker provides evidence of work being the major contributor to a combined condition and the ALJ or board finds that evidence less persuasive than the employer's contrary evidence, the worker may pursue a civil action under the limitations set out in ORS 656.019 because he or she has failed to establish the work-related incident was the major contributing cause of the worker's injury. The Court found that Plaintiff’s case was distinguishable from Alcutt because she offered unpersuasive evidence that work was the major contributor to her combined condition. 258 Or App at 771. Therefore, the Court held that Plaintiff was entitled to bring a civil suit under ORS 656.019. Reversed and remanded.