Armstrong v. Rogue Federal Credit Union

*270WARREN, P. J.

The issue in this case is whether an employer commits an unlawful employment practice, within the purview of ORS 659.415, by rejecting an injured worker’s demand for reinstatement during the pendency of litigation over whether the worker’s injury is compensable. We affirm the judgment for defendant.

The facts are undisputed. On May 25, 1990, plaintiffs physician ordered her off work due to work-related stress and depression. On November 6, 1990, SAIF Corporation, on behalf of defendant, Rogue Federal Credit Union, denied plaintiffs claim for workers’ compensation benefits. Plaintiff challenged the denial and an administrative law judge (ALJ) held a hearing on the matter. On May 22, 1992, before the ALJ had issued a decision, plaintiff was released to work by her physician. Plaintiff informed defendant of the release and demanded reinstatement under ORS 659.415. In response, defendant terminated plaintiffs employment effective June 15, 1992. On September 10, 1992, the ALJ issued an order upholding SAIF’s denial of the claim, on the ground that her injury was not compensable. On September 27, 1993, the Board reversed the ALJ’s decision and held that plaintiffs claim was compensable. Defendant did not seek judicial review of the Board’s decision.

Following the Board’s order, plaintiff filed this action, asserting, inter alia, that defendant had violated ORS 659.415 by failing to reinstate her. Before trial, and on stipulated facts, the court granted defendant’s motion for partial summary judgment on plaintiffs claim under ORS 659.415. The court then entered judgment for defendant under ORCP 67 B, dismissing that claim:

“The court hereby FINDS that at the time plaintiff made her demand for reinstatement pursuant to ORS 659.415, her work-related injury or disease was not compensable, and did not become compensable until some time later, after contested litigation in the administrative hearings process. Taking the facts in the light most favorable to plaintiff, her demand for reinstatement was premature and could not, as a matter of law, give rise to a cause of action under the statute.”

*271ORS 659.415 provides, in part:

“(1) 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, if the position exists and is available and the worker is not disabled from performing the duties of such position. * * *
* * * *
“(4) Any violation of this section is an unlawful employment practice.”

On appeal, plaintiff contends that the statute is not clear that the claim must be determined to be compensable when demand for reinstatement is made.1 Defendant argues that the plain meaning of ORS 659.415 shows that plaintiffs injury must have been determined to be compensable by the time she demanded reinstatement in order for the failure to reinstate to constitute a violation. Defendant is correct. We agree with plaintiff that her suggested reading is plausible, but in context it is clear she is incorrect.

The Bureau of Labor and Industries (BOLI) is charged with the administration of the employment discrimination law. ORS 659.040 to ORS 659.103. That statutory scheme reveals that the legislature delegated broad authority to BOLI to develop the concept of reinstatement. ORS 659.103. Accordingly, BOLI promulgated OAR 839-06-120, stating that, “[t]o have rights under ORS 659.415 * * * a person must be an injured worker as defined in OAR 839-06-105(5).” OAR 839-06-105(5), effective March 12, 1996, defines “injured worker” as a worker who has had a compensable injury as determined by acceptance of the claim under the Oregon Workers’ Compensation Statutes. Although OAR 839-06-105(5) does not address the precise issue presented in this case, it supports the conclusion that the determination *272that an injured worker’s injury is compensable is a condition precedent to the right to reinstatement.

An injured worker’s right to reinstatement cannot be violated, and, thus, a claim for an unlawful employment practice under ORS 659.415(1) cannot accrue, until the employer fails to reinstate after the worker is released to return to work. Barnes v. City of Portland, 120 Or App 24, 28-29, 852 P2d 265, rev den 317 Or 583 (1993). The question is not, then, as the parties have framed it, whether plaintiffs claim was compensable when reinstatement was denied, but whether defendant’s conduct was wrongful when it occurred. Turning to the text of the statute, ORS 659.415 provides that an employer shall reinstate an injured worker upon demand when: (1) the worker has suffered a compensable injury; (2) the worker’s former position “exists,” and (3) the worker’s former position is “available,” as the term is later defined in the statute. At the time defendant denied plaintiffs demand for reinstatement, plaintiffs claim had not yet been determined to be compensable. Defendant could not have known that plaintiffs claim was compensable and that she was entitled to reinstatement. Its conduct would not at that time have supported an action for an unlawful employment practice.

By reading other provisions in ORS 659.415 in context, and construing them as a whole, we are satisfied that defendant is correct. ORS 659.415(3)(a) limits a worker’s right to reinstatement by setting forth six grounds on which the right terminates. ORS 659.415(3)(a)(F) provides that a worker’s right to reinstatement terminates three years from the date of injury. It follows then, that an injured worker’s right to reinstatement may terminate notwithstanding the fact that the worker has sustained a compensable injury and that it may terminate before the worker can seek reinstatement. To recognize that an injured worker has a right to reinstatement pending the outcome of the contested litigation in the administrative hearings process would be inconsistent with the legislature’s statutory scheme. That the legislature used the word “compensable” in reference to the accrual of an injured worker’s right to be reinstated to her former position, but did not do so in relation to setting the date on which that right expires, persuades us that the right to reinstatement is dependent on the worker first sustaining a compensable *273injury. See Perlenfein and Perlenfein, 316 Or 16, 22-23, 848 P2d 604 (1993) (the legislature’s use of a particular term in one provision of a statute and omission of that term in a related provision leads to a conclusion that the legislature did not intend that the term apply in the provision from which the term is omitted).

The context in which ORS 659.415(1) occurs convinces us that the determination that a worker has sustained a compensable injury is a condition precedent to the right to reinstatement under ORS 659.415(1).2 The trial court did not err.

We have considered and reject, without discussion, plaintiffs other arguments.

Affirmed.

Plaintiff does claim in this case that employer terminated her, and thereby committed an unlawful employment practice, because she filed a claim for benefits. ORS 659.410. Plaintiff does contend that “reinstatement should be required pending the [outcome] of the administrative process.” We do not understand her contention to be that employer committed an unlawful employment practice because her request was continuing in nature, and, thus, the administrative determination that her injury was compensable triggered an affirmative duty on the part of employer to reinstate her.

Former OAR 839-06-105(4)(c) precisely addressed the present question by defining “Injured Worker” for the purposes of ORS 659.415(1) as

“a worker who has had a compensable injury as determined by the Employer’s acceptance of the claim under the Oregon Workers’ Compensation Law, by stipulation of the parties, by a finding of the Oregon Workers’ Compensation Board or by a judicial opinion regarding a finding of the Board.” (Emphasis supplied.)

BOLI’s amendment simplifies the language in the rule, and we do not understand BOLI to have intended any substantive changes in the way the rule is applied. We do not believe it rational to assume that BOLI intended reinstatement rights to apply only when acceptance is voluntary and not when acceptance is compelled by Board or judicial decision.