dissenting.
I respectfully dissent. I have a deep concern that the majority opinion misconstrues ORS 659.415(1) and the intent of Oregon’s laws that prohibit employment discrimination against disabled workers who file workers’ compensation claims.
As I see it, the issue in this case is when, if ever, did plaintiffs claim for relief under ORS 659.415(1) accrue? The beginning point in this inquiry is that statute, which, at the relevant time, provided in part:
“A worker who has sustained a compensable injury shall be reinstated by the worker’s employer to the worker’s former position of employment upon demand for such reinstatement, provided that the position is available and the worker is not disabled from performing the duties of such position. If the former position is not available, the worker shall be reinstated in any other position which is available and suitable. * * *” (Emphasis supplied.)
The majority opinion accepts the employer’s argument that plaintiffs previous discharge terminated his reinstatement right and that plaintiffs claim for relief accrued when he was terminated. The problems with this interpretation are threefold.
First, it ignores the plain wording of ORS 659.415(1), which states that the worker “shall be reinstated * * * upon demand for reinstatement, provided that the position is available and the worker is not disabled.” (Emphasis supplied.) Under defendant’s interpretation, plaintiff would have to have demanded reinstatement when he was terminated, but that occurred while he was still disabled. Thus, defendant could have correctly refused to reinstate plaintiff, because he would have been unable to perform his former duties. Common sense dictates that an employe should not be forced to demand reinstatement before he has recovered from his disability. See Carney v. Guard Publishing Co., 48 Or App 147, 153 n 4, 616 P2d 548, modified 48 Or App 927, 630 P2d 867, rev den 290 Or 171 (1980).
The second problem with the majority’s opinion is that it ignores the relationship between ORS 659.415(1) and *395659.410. ORS 659.410 prohibits an employer from discriminating against workers who file workers’ compensation claims, and ORS 659.415(1) requires the employer to reinstate the recovered worker. Although ORS 659.415(1) is narrower in scope than ORS 659.410, the legislature, in enacting both sections, intended to create separate and independent remedies. Assuming that the other requirements of ORS 659.415(1) are met, the statute requires reinstatement unless the employer has just cause to terminate the employe. It may be that defendant had just cause for terminating plaintiff in 1977; however, that issue must be raised as an affirmative defense in the pleadings, which was not done. See Vaughn v. Pacific Northwest Bell Telephone, 289 Or 73, 90-92, 611 P2d 281 (1980); Millsap v. Eugene Care Center, 68 Or App 223, 228, 682 P2d 795 (1984); and Stocking v. Fred Meyer, 68 Or App 598, 683 P2d 1021 (1984) (Richardson, J., specially concurring).
Third, and finally, if the majority’s interpretation is accepted, an employer could unilaterally preclude a worker from any relief under either ORS 659.410 or 659.415(1). For example, if a worker sustains a compensable injury which will disable him for over one year, the employer could terminate the injured worker without any notice. If the worker does not discover that he was terminated within one year, then any cause of action under ORS 659.410 would be time barred under ORS 659.121(3). Once the worker is able to return to work and demands reinstatement, pursuant to ORS 659.415, the employer would argue that no reinstatement right survived the discharge. Thus, the employer could manipulate and control the worker’s statutory right.1 In Shaw v. Doyle Milling Co., 297 Or 251, 683 P2d 82 (1984), the Supreme Court held that employers cannot act “unilaterally to vitiate the mandate of ORS 659.415.” 297 Or at 255.
The majority’s reliance on Dobie v. Liberty Homes, 53 Or App 366, 632 P2d 449 (1981), is misplaced, because there is a critical distinction between Dobie and this case. In Dobie, the demand for reinstatement and the termination were simultaneous. Here, however, plaintiff made his demand for reinstatement two years after he was “terminated.” The *396reason for this delay is obvious. Until plaintiff demanded reinstatement, he was physically unable to work at his former position. Furthermore, there was no reason in Dobie to distinguish between termination and refusal to reinstate, because they were simultaneous. The essence of our holding in Dobie is that, for Statute of Limitations purposes, a claim for relief under ORS 659.415 accrued when the employer refused to reinstate the plaintiff. 53 Or App at 371. Here, it is undisputed that plaintiff made a timely filing with the Bureau of Labor and Industries in May, 1980, after defendant refused to reinstate him.
The majority attempts to distinguish Vaughn v. Pacific Northwest Bell Telephone, supra. I agree that the two scenarios the court discussed are only dicta, but they do suggest that a worker’s statutory reinstatement right under ORS 659.415 cannot be lost due to fortuitous timing. The majority quotes one sentence of Vaughn. 69 Or App at 393. However, taken in the proper context, the quoted sentence supports plaintiff. The full quote is:
“* * * It might seem that ORS 659.415 requires reinstatement of the worker even if the employer has just cause to ‘discharge’ by refusing to reinstate, but, as will appear later, nothing in ORS Chapter 659 prevents an employer from discharging a worker for just cause. If the worker is discharged for just cause, the employer can prove this in the grievance proceeding or as a matter of defense in a suit pursuant to ORS 659.121. The worker’s right to bring suit for injunctive relief pursuant to ORS 659.121(1) must be based on reasoned policy rather than fortuitous timing.” 289 Or at 79-80.
Plaintiffs complaint alleged a claim for relief under ORS 659.415(1). Whether defendant has an affirmative defense to reinstating plaintiff must be decided at trial and not on summary judgment. Therefore, I would reverse the trial court.
I dissent.
The only difference between this example and the facts in this case is that plaintiff indirectly discovered that he was discharged in 1977.