Carney v. Guard Pub. Co.

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Before SCHWAB; THORNTON
• Citation: Carney v. Guard Pub. Co., 616 P.2d 548, 48 Or.App. 147 (Or. App. 1980)
• Decision Date: 08 September 1980
• Docket Number: No. 78-2391,78-2391
• Parties: Donald CARNEY, Respondent, v. GUARD PUBLISHING COMPANY, an Oregon Corporation, Appellant. ; CA 15485.

Page 548

616 P.2d 548

48 Or.App. 147

Donald CARNEY, Respondent, v. GUARD PUBLISHING COMPANY, an Oregon Corporation, Appellant.

No. 78-2391; CA 15485.

Court of Appeals of Oregon.

Argued and Submitted June 5, 1980.

Decided Sept. 8, 1980.

Phil Cass, Jr., Eugene, argued the cause for appellant. With him on the brief was Young, Horn, Cass & Scott, Eugene.

David Jensen, Eugene, argued the cause for respondent. With him on the brief was Hammons & Jensen, Eugene.

Before SCHWAB, C. J., and THORNTON and RICHARDSON, JJ.

THORNTON, Judge.

In this action for back pay for failure to reemploy a worker who sustained a compensable injury, defendant Guard Publishing Company appeals the judgment for plaintiff in the sum of $20,000. Defendant advances three assignments of error, each of which challenges the trial court's refusal to give a particular jury instruction:

1) Refusing to instruct the jury that if defendant offered plaintiff a specific suitable job and if plaintiff did not take it, defendant's obligation was satisfied.

2) Refusing to instruct the jury that plaintiff's measure of damages was not measured by the wages of his former employment.

3) Refusing to instruct the jury that a job which required a substantial training period was not a suitable job which defendant was required to offer plaintiff.

Plaintiff's action is based on defendant's alleged violation of the statutory duty to reemploy him. ORS 659.420. In essence, the statute provides that injured workers must, upon demand, be reemployed by their former employer at available and suitable work. We reverse and remand.

The essential facts are as follows:

Plaintiff was employed as a stereotyper (a preparer of stereotype printing plates) by defendant publishing company. On November 10, 1973, plaintiff sustained a compensable back injury. He was awarded temporary total disability through March 5, 1974, temporary partial disability through August 5, 1974, and permanent partial disability of 40 percent for unscheduled back injury.

Plaintiff requested reemployment from defendant on May 1 and October 5, 1974, but was not offered a position. Prior to those requests, however, plaintiff met with defendant's personnel manager on February 12, 1974, to discuss the possibility of returning to work. Defendant at that time offered plaintiff a position as an "opaquer," provided plaintiff could secure a release from his doctor. "Opaquing" is described by defendant as covering over imperfections or blank spots in a photographic negative of a newspaper page with a child's paint brush or a pen, prior to transferring the image from the negative onto a printing plate. Plaintiff immediately secured a release from his doctor and spent time observing workers in the opaquing room. The supervisor who showed plaintiff the opaquing job testified that plaintiff told him he could not do the job because his hand was not steady enough. Plaintiff denied making any such statement to the supervisor, but did not accept the job.

We note at the outset that ORS 659.121(1) ¹ recognizes a private cause of action for persons aggrieved by employment practices violative of ORS 659.420 and empowers the court to award "injunctive relief and * * * such other equitable relief as may be appropriate, including but not limited to reinstatement or the hiring of employes with or without back pay." Plaintiff, however, did not proceed under this statute. Plaintiff apparently believed he had an independent cause of action for damages for defendant's violation of ORS 659.420, because his complaint was denominated an action at law for damages and the case was tried to a jury. Because defendant has neither objected to the jury trial nor questioned whether the equitable remedy authorized by ORS 659.121(1) impliedly precludes a damages action for violation of ORS 659.420, we need not decide whether ORS 659.121 supplies the sole basis for a suit for violation of ORS 659.420, or, if so, to what extent it limits the remedies available. ²

Defendant first assigns as error the trial court's refusal to give the following requested instruction: ³

"In this case the Defendant claims that it did offer the Plaintiff work as an opaquer, which work was available and suitable for the Plaintiff and that the Plaintiff refused the work. If you find that such work was offered and that it was suitable and that Plaintiff did not take such work, then the Defendant has fulfilled its obligation under the statute and was not required to offer Plaintiff other work, even if such work was also suitable."

ORS 659.420 provides:

"(1) A worker who has sustained a compensable injury and is disabled from performing the duties of the worker's former regular employment shall, upon demand, be reemployed by the worker's employer at employment which is available and suitable.

"(2) A certificate of the worker's attending physician that the worker is able to perform described types of work shall be prima facie evidence of such ability.

"(3) Such right of reemployment shall be subject to the provisions for seniority rights and other employment restrictions contained in a valid collective bargaining agreement between the employer and a representative of the employer's employes.

"(4) Any violation of this section is an unlawful employment practice." (Emphasis supplied.)

Subsection (1) of the statute plainly requires that: (1) upon demand (2) the employer shall reemploy an injured employe (3) at work which is available and (4) suitable.

The policy of the Act is "the fullest employment of handicapped persons which is compatible with the reasonable demands of the job." Montgomery Ward v. Bureau of Labor, 280 Or. 163, 168, 570 P.2d 76, 78 (1977); ORS 659.405. Nevertheless, an employer's statutory duty to reemploy injured workers is not absolute. For example, the duty arises only "upon demand" and only if suitable work is available. Although injured workers occupy a preferred hiring position and must be reemployed if suitable positions are available, the Act does not require an employer to substitute an injured employe for a noninjured one, or to create positions specifically for previously injured workers.

Similarly, the Act cannot be read to bestow an indefinite preferential hiring status upon injured workers. The employer's statutory duty expires once it has offered a suitable position to the injured worker. An employer is neither obligated to offer a selection of equally suitable jobs nor to hold open its offer for an unreasonable period. Thus, defendant's requested instruction is a correct statement of the law. Here there was evidence from which the jury could have found that suitable work was offered and that plaintiff declined the position. ⁴ Therefore, the trial court's refusal to instruct the jury regarding the extinguishment of defendant's statutory duty to reemploy was reversible error. DeLashmitt v. Journal Pub. Co., 166 Or. 650, 661, 114 P.2d 1018, 135 A.L.R. 1175 (1951).

We next address defendant's remaining assignments since the questions they raise will be involved in the case on remand.

Defendant's second assignment is that the court erred by refusing to instruct the jury that plaintiff's recovery of lost wages is "not to be measured by the wages Plaintiff was earning before his injury." The court's instruction stated that plaintiff's recovery was to be measured by "the wages that Plaintiff lost from the date that he would have begun work in a job that was available and suitable * * *." That instruction is an accurate statement of the time period for which lost wages are measured. Defendant's requested addition to that instruction was merely cumulative and cautionary. In light of the fact that evidence of plaintiff's prior position and earnings was admitted on the issue of what would have constituted suitable employment, the court could properly have added defendant's cautionary language to its instruction. However, we cannot say that the failure to give the instruction probably created an erroneous impression of the law in the minds of the jury. Waterway Terminals v. P. S. Lord, 256 Or. 361, 370, 474 P.2d 309 (1970).

Defendant's third assignment raises the question of what constitutes suitable employment under ORS 659.420(1). Specifically, defendant contends that the court erred by refusing to give the following instruction:

"You are instructed that a job which Plaintiff could not perform without a substantial training period to determine if he could do the job is not a job which was suitable for Plaintiff and which Defendant was required to offer Plaintiff."

The court instructed the jury only that a suitable job within the meaning of the statute was one in which "there was a probability that he (plaintiff) could perform * * * (the) work in a satisfactory manner."

The question of what constitutes suitable work is a question of fact which depends on the circumstances of each case. Certain factors, however, will be relevant in determining suitability in all cases. These include the employe's educational background and work experience, his prior salary and level of responsibility, the nature and severity of his disability, and his record with the employer, as well as the employer's size, diversity, and hiring needs. Thus, suitability does not involve solely the question of whether an injured worker is physically capable of performing available work. We do not imply that an employer must offer the worker the most suitable job or a selection of jobs which are relatively...