Rivera v. Perlo Constr.

1

336 Or.App. 307

Rafael Castillo RIVERA, an individual, Plaintiff-Appellant, v. PERLO CONSTRUCTION, LLC, a domestic limited liability company et al., and State Accident Insurance Fund Corporation, a state agency; Donna C. Wicher, PHD PC; Dr. Donna C. Wicher, an individual; and Integrity Medical Evaluations, Inc., a domestic corporation, Defendants-Respondents.

A179793

Court of Appeals of Oregon

November 20, 2024

Argued and submitted on May 15, 2024.

Multnomah County Circuit Court 21CV45221; Benjamin N. Souede Judge.

Quinn E. Kuranz argued the cause for appellant. Also on the briefs was The Offce of Q.E. Kuranz, AAL, LLC.

Rebecca A. Watkins argued the cause for respondent SAIF. Also on the brief was Randi J. Ensley.

Amanda Bryan argued the cause for respondents Donna C. Wicher Ph.D., P.C. and Dr. Donna C. Wicher. Also on the brief were Jacqueline Tokiko Mitchson, John M. Kreutzer, Amanda Bryan, and Bullivant Houser Bailey, PC.

Kim E. Hoyt argued the cause for respondent Integrity Medical Evaluations, Inc. Also on the brief was Ashley L. Brown.

Before Aoyagi, Presiding Judge, Egan, Judge, and Kistler, Senior Judge. ^[*] KISTLER, S. J.

Plaintiff appeals limited judgments dismissing three defendants in this employment discrimination case. The trial court ruled that plaintiffs claims against those defendants came within the exclusive jurisdiction of the workers' compensation system. We reverse the limited judgments and remand for further proceedings.

Because this appeal arises from defendants' motions to dismiss we take the facts from plaintiffs second amended complaint (the complaint).^[1] Plaintiff is originally from Chile, and his primary language is Spanish. In Oregon, he worked as a laborer for Perlo, a construction company. On Perlo's jobsite, the other employees repeatedly harassed plaintiff, improperly touched him, and attempted to intimidate him because of his nationality and limited English skills. When plaintiff reported those incidents to his supervisors and Perlo's risk management director Wood, they dismissed his complaints. They concluded, without an adequate investigation, that either the conduct had not occurred or that the sort of harassment plaintiff reported was par for the course on construction sites.

"As a result of the workplace harassment, mistreatment, assault, and discrimination [that plaintiff suffered at Perlo], [p]laintiff began experiencing emotional distress symptoms from his dormant PTSD."^[2] Those symptoms led to plaintiffs filing a workers' compensation claim "indicating that he was suffering from PTSD" caused by the working conditions at Perlo. After SAIF denied plaintiffs workers' compensation claim, he brought this employment discrimination action against Perlo, Wood, and three other defendants involved in processing his workers' compensation claim: SAIF, which provided workers' compensation insurance to Perlo; Integrity Medical Evaluations, Inc., which arranges medical examinations of claimants; and Wicher, a doctor who examined plaintiff. Given the issues raised on appeal, we focus on how, according to the complaint, defendants SAIF, Integrity, and Wicher processed plaintiffs workers' compensation claim.

After SAIF received plaintiffs workers' compensation claim, it directed one of its investigators to look into the claim. During her investigation, the investigator left a voice message on a potential witness's phone saying that she had uncovered "evidence that Perlo employees [had] harassed [p]laintiff." That message found its way to Perlo and Wood, who allegedly "had a great deal of influence at SAIF." Wood complained to SAIF, which initially replaced the investigator and later fired her "because of her investigation into [p]laintiff s claims."^[3]

On July 23, 2020, SAIF denied plaintiffs workers' compensation claim. Four days later, Wicher issued a letter opinion based on her review of plaintiffs file. She concluded that the working conditions at Perlo were not the major contributing cause of his PTSD. According to the complaint, the file that Wicher reviewed was incomplete, and the reasoning in her letter opinion deficient. The complaint alleged that Wicher's opinion reflected a larger practice in which workers' compensation insurers "hire certain doctors to perform a biased evaluation of a claimant and write a report, denying or challenging the claimant's purported workplace injury."

On August 12, 2020, Wicher examined plaintiff in person. She administered a standard psychological test and conducted an in-person interview. Later that day, Wicher issued a 15-page draft report and a nine-page final report. In her reports, Wicher concluded that plaintiffs work at Perlo was not the cause of his PTSD. Her report also noted that plaintiff was "making threats toward Perlo and SAIF employees" but added that plaintiff "'did not appear to be actively at risk of harm to himself or others at the time of the examination.'" Wicher transmitted the draft report to Integrity, which forwarded it to SAIF.^[4] According to the complaint, Wicher's "report was a sham and failed to properly evaluate Plaintiffs condition and the causes of [his] condition."

On August 19, 2020, plaintiffs counsel notified SAIF that plaintiff was asserting "claims against SAIF for aiding, abetting, inciting, compelling, or coercing unlawful employment discrimination, including SAIF's actions in interfering with the investigation into [plaintiffs] workplace discrimination and harassment claims." The same day, plaintiffs counsel notified Perlo and Wood that plaintiff was asserting employment related claims against them and others who "may be implicated in the tortious, unlawful or discriminatory conduct and treatment of [plaintiff] in connection with his work at Perlo."

Five days later, "SAIF contacted Wood to inform Wood and Perlo that Integrity was contacting the Oregon State Police because of allegations Dr. Wicher made in the August 12, 2020, IME report." Two days after SAIF contacted Wood, SAIF sent a "heavily redacted" copy of Wicher's draft report to Perlo's attorney. The redacted copy of Wicher's report that SAIF sent Perlo included the threats that plaintiff had made against Perlo's employees but omitted Wicher's observation that plaintiff "did not appear to be actively at risk of harm to himself or others at the time of the [August 12] examination."^[5] Approximately two weeks later, Perlo's attorney sent plaintiff a termination letter for making "statements that threatened] physical violence towards Perlo personnel."

As noted, plaintiff brought this action against Perlo, Wood, SAIF, Integrity, and Wicher. The complaint alleged, among other things, that Perlo had subjected plaintiff to discrimination because of his race and national origin. Plaintiff claimed that Perlo had retaliated against him for reporting his coworkers' discriminatory conduct and for filing a workers' compensation claim. He also alleged that Perlo had unlawfully denied him certain statutory rights, such as disability protections and rights arising under the Oregon Family Leave Act. Finally, plaintiff alleged that SAIF, Integrity, and Wicher had aided and abetted Perlo's employment law violations, without alleging which violations defendants had aided and abetted or the theories on which plaintiffs aiding and abetting claims rested.^[6]

SAIF, Integrity, and Wicher moved to dismiss plaintiffs claims against them. Essentially, each defendant's motion started from the proposition that plaintiffs claims against them arose solely from their actions in processing his workers' compensation claim. It followed, they argued, that the workers' compensation system either provided the exclusive remedy for those actions or had exclusive jurisdiction over plaintiffs claims against them. Alternatively, defendants argued that their actions processing plaintiffs claims did not aid and abet Perlo's discriminatory conduct or at least that plaintiff had not pleaded ultimate facts showing that they did. Finally, SAIF attached a copy of a disputed claim settlement (DCS) to its motion and argued that the DCS barred plaintiffs claims against it.

Plaintiff responded that the exclusive remedy provisions of ORS 656.018 were limited to workplace injuries covered by the workers' compensation statutes and did not limit claims for aiding and abetting employment discrimination. Most of plaintiffs response to defendants' pleading arguments focused on the proposition that defendants could be liable for aiding and abetting Perlo's employment discrimination, without specifying the theory or theories on which his aiding and abetting claims were based. Finally, after noting briefly that the DCS was not properly before the court on SAIF's motion to dismiss, plaintiff argued at greater length that the DCS resolved only his workers' compensation claims.

After considering the parties' arguments, the trial court ruled that it lacked jurisdiction to decide plaintiffs aiding and abetting claims. Focusing initially on plaintiffs claims against SAIF, the court observed that "[a]ll of the * * * allegations against Defendant SAIF revolve around SAIF's investigation and processing of Plaintiffs worker's compensation claim." The court reasoned that plaintiffs allegations against SAIF constituted "matters concerning a claim" over which the workers' compensation system has exclusive jurisdiction. See SAIF v. Harris, 66 Or.App. 165, 672 P.2d 1384 (1983) (inferring from the structure of the workers' compensation statutes that the workers' compensation system has exclusive jurisdiction over matters concerning a claim). Citing Gordineer v. Bellotti, 100 Or.App 102, 105-06, 785 P.2d 362 (1990), the court concluded that it lacked jurisdiction to decide plaintiffs aiding...