Petock v. AsantePetock v. Asante
Argued and submitted June 7, decision of Court of Appeals affirmed; judgment of circuit court reversed, and case remanded to circuit court for further proceedings December 30, 2011
Nancy E. PETOCK, Petitioner on Review, v. ASANTE, formerly known as ASANTE Heath System dba Rogue Valley Medical Center, a domestic nonprofit corporation, Respondent on Review.
(CC 08104117; CA A141216; SC S059046)
268 P3d 579
Craig Crispin, Crispin Employment Lawyers, Portland, argued the cause and filed the brief for petitioner on
Robyn Ridler Aoyagi, Tonkon Torp LLP, Portland, argued the cause and filed the brief for respondent on review.
Amy Joseph Pedersen, Stoel Rives LLP, Portland, filed the brief for amicus curiae Associated Oregon Industries, Inc.
Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.**
KISTLER, J.
** Landau, J., did not participate in the consideration or decision of this case.
KISTLER, J.
A worker who suffers a “compensable injury” may seek compensation for the injury and, for three years follow-ing the injury, also may demand reinstatement to his or her former position of employment. See Armstrong v. Rogue Federal Credit Union, 328 Or 154, 161, 969 P2d 382 (1998). Additionally, for five years following the injury, the worker may seek compensation if the condition resulting from the injury worsens.
The trial court held that it could not and granted defendant‘s summary judgment motion. The Court of Appeals reversed and remanded for further proceedings. Petock v. Asante, 237 Or App 113, 240 P3d 56, adh‘d to as clarified on recons, 238 Or App 711, 243 P3d 822 (2010). Although the Court of Appeals agreed with the trial court that an aggravation of an earlier injury cannot give rise to new reinstatement rights, it concluded that there was a dis-puted issue of fact as to whether plaintiff had sustained a “new and separate injury” in 2005 that would give rise to those rights. See 238 Or App at 714 (clarifying holding on reconsideration).
On review, plaintiff argues primarily that the Court of Appeals erred in holding that an aggravation of an earlier injury cannot give rise to a right to reinstatement under
Defendant owns and operates the Rogue Valley Medical Center in Medford.1 Plaintiff “began [her] employ-ment at the Rogue Valley Medical Center in 1993 and * * * was employed there * * * as a dietary aid in Emilia‘s Coffee Shop,” a cafe within the medical center. On September 17, 2002, plaintiff injured her knee at work. As she explained, she “started working at 8:30 am” and was “[t]he only waitress at that time.” At some point, “[a] lot of people all came in at the same time,” and plaintiff had to “move around quickly.” When she “was on [her] way back to the register, [her] knee made a loud popping noise” and she “couldn‘t walk.”
Plaintiff‘s injury caused her to leave work for a short period of time. She underwent knee surgery, after which her doctor diagnosed her with “chondrosis of the patellofemoral joint and the trochlear groove.” Plaintiff‘s knee specialist, Dr. Versteeg, later explained that that condition is “basically an arthritis under [the] kneecap.”2 As a result of her 2002 injury, plaintiff filed a workers’ compensation claim, which defendant accepted.3 After plaintiff had been “off work for a few weeks after surgery,” she recovered from her injury suf-ficiently to “retur[n] to work on light duty[.]” Finally, on March 5, 2003, plaintiff‘s doctor determined that she was “medically stationary,” and she “returned to [her] former position” at that time. On March 26, 2003, defendant closed plaintiff‘s workers compensation claim. See
improvement would reasonably be expected from medical treatment, or the passage of time“).
In April 2005, plaintiff injured her knee a second time while working in Emilia‘s Coffee Shop. According to plaintiff, at some point during that month, she “was walking quickly in [her] work area, [she] felt [her] knee pop,” and she felt “severe pain in [her] knee and
Following her second knee injury, plaintiff was “placed on light duty [work] in the Medical Records Office.” After approximately five months, defendant denied plaintiff‘s aggravation claim and removed her from light-duty work. As plaintiff explained:
“On September 15, 2005, the Human Resources Depart-ment called me in the Medical Records Office and told me to come down to the workers’ compensation office. The woman who met me there informed me that my workers’ compen-sation claim had been denied. She told me that this would be my last day, and that I should go home.”
After she was removed from light-duty work, plaintiff requested a medical leave of absence under the Family and Medical Leave Act,
On October 20, 2005, plaintiff underwent surgery to treat her second knee injury. In the course of that operation, Versteeg discovered “a tear of the posterior horn of [plain-tiff‘s] medial meniscus.” It was not clear to the doctor exactly when plaintiff had sustained the tear to her meniscus. He explained, “I didn‘t see it the first time, so I don‘t think it was there, could it have been there, I suppose it‘s possible. I didn‘t see a tear of the meniscus then, so she developed one in the interim.” As to the condition with which Versteeg had diag-nosed plaintiff following her first knee injury in 2002—“the chondrosis of the patellofemoral joint and the trochlear groove“—he stated that “that [condition] was also noted the second time around too [i.e., during plaintiff‘s October 20, 2005 surgery,] and it is still there and it didn‘t look any worse, so that was encouraging and I think it actually looked a little better.”
In November 2005, after plaintiff recovered from her second surgery, Versteeg cleared her to return to work on a light-duty basis. Accordingly, plaintiff contacted defendant to notify it that she “had been released for light duty and could come back to work.” Defendant did not reemploy her at that time, however. Instead, as plaintiff explained, defendant “told me that I could not come back on light duty because I was not on workers’ compensation leave. [Defendant] told me [that] I was required to have a full release, and that I could come back to work only then.” Plaintiff received a full release on January 4, 2006. The next day, she went to Emilia‘s Coffee Shop “so that [she] could arrange to get back on the sched-ule.” When she arrived, she “was told that [her] job had been filled, and that [her] only option was to go through the jobs book and apply for other jobs.” She did so, but “the only avail-able jobs were for nurses and other positions” for which plain-tiff lacked “the required experience and education.” All of plaintiff‘s available leave expired on January 22, 2006, and on that date defendant sent her a formal notice of termination.5
In her complaint, plaintiff alleged that, following her April 2005 knee injury, defendant unlawfully refused her demands for reemployment and reinstatement. More specif-ically, plaintiff claimed that, in refusing to permit her to return to work on a light-duty basis after Versteeg cleared her to do so in November 2005, defendant failed to reemploy her “at employment which [was] available and suitable,” as
Defendant moved for summary judgment in response to plaintiff‘s claims. Defendant contended that plaintiff‘s rights to demand reinstatement and reemploy-ment had terminated on September 17, 2005, because the “date of [the] injury” from which plaintiff had three years to demand reinstatement or reemployment was September 17, 2002, the date on which plaintiff first had injured her knee at work. Plaintiff opposed summary judgment, arguing that, even though she had treated her April 2005 knee injury as an “aggravation” in seeking workers’ compensation benefits, nothing in
The trial court granted defendant‘s summary judg-ment motion. That court started from the proposition that, because plaintiff had filed an aggravation claim with her employer, she “cannot now argue [that] her 2005 injury was a ‘new’ injury rather than an aggravation claim.” It then rea-soned that, as a matter of statutory construction, an aggra-vation claim is distinct from a claim that a worker has suf-fered a compensable injury. It also reasoned that the “date of injury” from which a worker has three years to seek rein-statement or reemployment is the date that a worker suffers a compensable injury, not an aggravation of an earlier injury. It followed, the trial court concluded, that plaintiff‘s rein-statement and reemployment rights ran from September 17, 2002, the date she suffered a compensable injury. They did not run from April 2005, the date she suffered an aggravation of her 2002 compensable injury. The trial court accordingly granted defendant‘s summary judgment motion in part and entered a limited judgment
Plaintiff appealed, renewing her argument that nothing in
“First, * * * [a]ccording to plaintiff, the term ‘injury’ in the phrase ‘date of injury’ * * * is not limited to the techni-cal meaning of the term ‘injury’ under workers’ compensa-tion statutes, which distinguish between an injury and an aggravation. * * * Second, plaintiff argues that, even if the term ‘injury’ does not encompass the aggravation of an orig-inal injury, summary judgment was inappropriate because there was, at the very least, a question of fact as to whether the condition for which she received treatment in 2005 was not an aggravation, but a ‘new injury‘—namely, a tear of the meniscus that was not present earlier.”
In analyzing the first issue, the Court of Appeals explained that the three-year period for seeking reinstate-ment and reemployment runs from the date that an employee suffers a compensable injury within the meaning of
The Court of Appeals concluded that, because plain-tiff had not sought reinstatement or reemployment within three years of her 2002 injury, she could assert a right to rein-statement or reemployment only if the 2005 injury resulted
in a “new and separate” injury, as opposed to an aggravation of the condition resulting from the 2002 compensable injury. See Petock, 238 Or App at 714 (on reconsideration). On that issue, the Court of Appeals reasoned that Versteeg‘s testi-mony that he had observed a tear in plaintiff‘s meniscus dur-ing the second surgery—one that he had not seen during plaintiff‘s first knee surgery in 2002—would permit a reason-able juror to find that plaintiff‘s April 2005 knee injury was “a new and separate” compensable injury that gave rise to a new three-year period in which plaintiff could seek reinstate-ment and reemployment. Id. Accordingly, the Court of Appeals held that the trial court had erred in granting defen-dant‘s summary judgment motion, reversed the trial court‘s judgment, and remanded the case for further proceedings. Petock, 237 Or App at 125.
On review, plaintiff raises primarily one argument. She acknowledges that the phrase “the date of injury,” from which a three-year period to seek reinstatement runs, refers to the date of a “compensable injury,” as that phrase is used in
We begin with the issue that plaintiff raises and first set out the text of
“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 rein-statement.”
Under the plain text of
Plaintiff does not dispute that proposition in this court. Rather, she argues that, because an aggravation or worsening of an existing condition is an “injury” for which
workers’ compensation benefits are available, her 2005 aggravation was a “compensable injury” within the meaning of
“the term ‘compensable injury’ has the same meaning that it has in the Workers’ Compensation Law,
ORS 656.005(7)(a) . Generally, a ‘compensable injury’ is an acci-dental injury that ‘arises out of and in the course of employ-ment.’ ”
Armstrong, 328 Or at 159 (quoting
The parties disagree whether the 2005 injury that plaintiff sustained met that standard. Plaintiff appears to take the position that every aggravation will be a compensa-ble injury that gives rise to a new three-year period in which she may seek reinstatement. Defendant appears to take the position that no aggravation can ever constitute a compen-sable injury. And there is a suggestion in the Court of Appeals’ opinion that a new injury will be compensable only if it is separate from the condition resulting from an earlier compensable injury. As explained below, we think that both parties err in attempting to convert what is, at bottom, a fact-specific issue into a question of law.
To the extent that plaintiff argues that every wors-ening that gives rise to benefits under
Conversely, to the extent that defendant argues that the same set of facts can never give rise to both an aggrava-tion claim and a compensable injury claim, its argument also sweeps too broadly. Suppose a worker suffers, at different times, two workplace injuries while working for the same employer, and the second injury aggravates a preexisting condition that resulted from the earlier compensable injury. If the later injury both combined with the preexisting condi-tion “to cause or prolong disability or a need for treatment” and was the major contributing cause of the disability or need for treatment, then the worker could bring a claim for a com-pensable injury. See
The worker also could bring an aggravation claim on the theory that the worsened condition resulted from the original compensable injury and that the major contributing cause of the worsened condition was not an injury that occurred outside the course and scope of employment. See
Finally, there is a suggestion in the Court of Appeals opinion that a second workplace
In our view, the parties err in arguing that, as a mat-ter of law, an aggravation either always will result in a com-pensable injury or never will do so. Rather, the question before the trial court on summary judgment was a simpler one: whether the facts that gave rise to plaintiff‘s 2005 work-place injury were sufficient to permit a reasonable inference that the injury was compensable within the meaning of
On that issue, plaintiff submitted evidence that, “while [she] was working at Emilia‘s” Coffee Shop in 2005, she “was walking quickly in [her] work area, [she] felt [her] knee pop,” and she felt “severe pain in [her] knee and up [her] leg.” As a result of that workplace injury, she required a sec-ond surgery on her knee. At first blush, it is difficult to see why that evidence is not sufficient to permit a reasonable juror to find that plaintiff suffered “an accidental injury * * * arising out of and in the course of employment requiring medical services[.]” See
Over the course of this litigation, defendant has advanced three arguments why it should prevail on sum-mary judgment. In the Court of Appeals, defendant noted that, when plaintiff filed a claim for workers’ compensation benefits in 2005, she checked a box on the claim form that states “[r]eport of aggravation of original injury.” It followed, defendant argued, that issue preclusion barred plaintiff from arguing in this action that her 2005 injury was a new com-pensable injury rather than an aggravation and that, as a matter of law, an aggravation and a compensable injury are mutually exclusive statutory categories. In defendant‘s view, if plaintiff‘s 2005 injury was an aggravation of an earlier injury, it cannot be a compensable injury and her reinstate-ment claim necessarily fails.
Regarding defendant‘s issue preclusion argument, we note that issue preclusion is an affirmative defense, for which defendant bears the burden of persuasion. See ZRZ Realty v. Beneficial Fire and Casualty Ins., 349 Or 117, 138, 241 P3d 710 (2010) (so stating); Keller v. Armstrong World Industries, Inc., 342 Or 23, 38 n 12, 147 P3d 1154 (2006) (same). If defendant wanted to rely on issue preclusion as a basis for seeking summary judgment, it had the burden of producing evidence to establish that defense. See Keller, 342 Or at 38 n 12 (“On summary judgment, a party has the bur-den to produce evidence as to which it has the burden of per-suasion at trial.
Before this court, defendant acknowledges that, on this record, it cannot establish issue preclusion. However, it reiterates its argument that, as a statutory matter, aggrava-tion claims are distinct from and derivative of compensable injury claims. The point of defendant‘s argument is not com-pletely clear, however. To the extent that defendant argues that the fact that plaintiff characterized her 2005 injury as an aggravation on the worker‘s compensation claim form somehow precludes her from arguing in this action that her injury was a compensable injury within the meaning of
This court explained in Armstrong that an injured worker need not establish in a workers’ compensation pro-ceeding that he or she suffered a compensable injury before bringing a reinstatement claim under
from arguing in this action that her 2005 injury was a com-pensable injury. Even if defendant were correct that the same facts cannot give rise to an aggravation claim and a compensable injury claim (a proposition with which we have noted our disagreement), we fail to see the relevance of that proposition in the context of defendant‘s summary judgment motion. On this record, plaintiff was free to argue that her 2005 injury was a compensable injury within the meaning of
Finally, defendant argues that the Court of Appeals erred in concluding that the medical evidence was sufficient to permit a reasonable trier of fact to find that the 2005 injury caused the torn meniscus. That was not the ground on which the parties litigated the summary judgment motion before the trial court, however. Rather, the opening memorandum that defendant filed in the trial court assumed, without explaining the basis for the assumption, that the only com-pensable injury that plaintiff suffered was the 2002 injury. In its reply memorandum, defendant made that assumption explicit; it stated that, having filed aggravation claims for the 2005 injury, plaintiff “cannot now convert these aggravation claims into a new injury to suit her current litigation strate-gies.” Defendant accordingly contended that only the 2002 injury was a compensable injury that gave rise to reinstate-ment and reemployment rights; however, plaintiff did not demand reinstatement and reemployment until three years had elapsed from the date of that injury.
In the Court of Appeals, defendant argued both in its answering brief and also in its petition for reconsideration that, to the extent that plaintiff was arguing that she sus-tained a new compensable injury in 2005, the medical evi-dence in the record was not sufficient to support that conten-tion. In effect, defendant advanced a different ground for
sustaining the trial court‘s summary judgment ruling than it had advanced before the trial court.15 Defendant raises the same argument before this court in challenging the Court of Appeals’ conclusion that there was sufficient evidence of a compensable injury in 2005 to deny defendant‘s summary judgment motion.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.