Federal Preemption/Subject Worker

Walter H. Kreuzer, Dcd., 65 Van Natta 220 (February 4, 2013). Surviving spouse filed an Oregon workers’ compensation claim for death benefits for the deceased worker’s mesothelioma. The surviving spouse’s identical federal death benefit claim had already been accepted by the carrier under the Longshore and Harbor Workers’ Compensation Act (LHWCA). The carrier denied the Oregon claim under ORS 656.027(4). That statute provides that a person for whom a rule of liability for an injury or death arising out of and in the course of employment is provided by federal law is not a subject Oregon worker.

Claimant argued that although the federal claim was accepted, ORS 656.027(4) does not apply because the deceased worker also exposed to asbestos while working for the carrier’s insured during a period not subject to the LHWCA. The Board rejected claimant’s argument. The Board held that since the carrier accepted claimant’s death benefits claim under the LHCWA, allowing a separate death benefits claim for the same condition under ORS chapter 656 “cannot be squared” with ORS 656.027(4).