Chase v. Vernam

• Decision Date: 13 April 2005
• Citation: 110 P.3d 128,199 Or. App. 129
• Parties: Franklin E. CHASE, Appellant, v. David D. VERNAM and Deborah L. Vernam, dba VEMCO, dba Vernam Equipment Manufacturing Company, Inc., dba Vernam, Inc., an Oregon corporation, Respondents, and Richard D. Vernam, Defendant.
• Court: Oregon Court of Appeals

110 P.3d 128

199 Or. App. 129

Franklin E. CHASE, Appellant, v. David D. VERNAM and Deborah L. Vernam, dba VEMCO, dba Vernam Equipment Manufacturing Company, Inc., dba Vernam, Inc., an Oregon corporation, Respondents, and Richard D. Vernam, Defendant.

01-01-11862; A120876.

Court of Appeals of Oregon.

Argued and Submitted May 12, 2004.

Decided April 13, 2005.

Michael A. Gilbertson, Portland, argued the cause for appellant. With him on the brief was Ransom, Gilbertson, Martin & Lefkowitz, LLP.

Mona K. Williams, Enterprise, argued the cause and filed the brief for respondents.

Before HASELTON, Presiding Judge, and WOLLHEIM, Judge, and DEITS, Judge pro tempore. DEITS, J. pro tempore.

Plaintiff filed a complaint for unlawful discrimination against his employer,¹ asserting that his employment had been terminated in retaliation for pursuing a workers' compensation claim. ORS 659A.109; ORS 659A.043; ORS 659A.885(1).² Because the amount requested in plaintiff's complaint was less than $25,000, the action was subject to mandatory arbitration. ORS 36.405(1)(a); ORS 36.400(3). The arbitrator ruled in favor of defendant, as did a jury following plaintiff's subsequent appeal to circuit court. As the prevailing parties at trial, defendants sought attorney fees, relying on ORS 36.425(4) and ORS 659A.885(1). The trial court awarded defendants $15,492.91 in attorney fees. Plaintiff appeals the trial court's judgment, assigning error to the allowance of attorney fees. We conclude that defendants were entitled to only a portion of the attorney fees awarded and, accordingly, we modify the amount of attorney fees awarded.

Because defendants were the prevailing parties at trial, we would usually state the facts in the light most favorable to defendants. Or. Const., Art. VII (Amended), § 3; Jensen v. Medley, 336 Or. 222, 226, 82 P.3d 149 (2003). In this case, however, as we explain below, 199 Or.App. at 139-40, 110 P.3d at 134, we must evaluate whether plaintiff's claim was unreasonable or groundless as a matter of law. Accordingly, we focus on those facts that would have been supported by the evidence that plaintiff offered in support of his claim.

Defendants own a steel fabrication business in Enterprise. They first hired plaintiff as a laborer in 1999 to work on the demolition and rebuilding of a mill in Elgin. The job required plaintiff to work long hours, often ten or more hours a day, six days per week. Plaintiff began experiencing extreme arm pain at work on August 17, 1999. He reported his pain to defendant David Vernam, who asked him to stay on the job anyway. On August 18, he told Vernam that his arm hurt more than it had the day before, and Vernam sent him home. Plaintiff worked the next day, although his arm continued to hurt. On August 20, a roto-hammer that plaintiff was using completely twisted around his arm, causing him to drop it. Later that day, while driving a stake to hold concrete forms, his hand went numb and he experienced shooting pain in his arm. One of plaintiff's coworkers who was in the area at the time of the alleged roto-hammer accident did not recall such an event, although another coworker did. According to plaintiff, he reported those incidents to the foreman, Tom Roath, and asked him to fill out his time card when he left work that day because he was unable to write. Neither Roath nor Pete Beaudoin, plaintiff's crew supervisor, recalled plaintiff reporting the August 20 injury. Plaintiff admitted that he ultimately completed his time card for the 20th himself and marked a box indicating that no injury had occurred that day.

Plaintiff worked the following day, even though his arm continued to hurt. He thought that if he rested the next day, a Sunday, his arm would improve and he could return to work on Monday. He did not return to work on Monday, however, because he continued to be in pain. Plaintiff then made an appointment with his doctor, Dr. Neeley. Plaintiff told defendants that he would not be coming to work, told them why he was not coming in, and asked for the company's workers' compensation number. Deborah Vernam asked plaintiff to see the company doctor, Dr. Boyd, for a second opinion. Plaintiff saw both Neeley and Boyd. Plaintiff testified that, when he saw Boyd, Boyd told him that he should not go back to work until Boyd had told him that he could do so. Plaintiff stayed home the next day. Dave Vernam called him that day and, according to plaintiff, asked him "what he was trying to do to him" and why plaintiff had not told him about the work injury.

Sometime before August 25, Neeley released plaintiff to light duty work. Neeley instructed him not to do work involving the use of his right arm and not to lift more than five pounds. Defendants wrote to Boyd, proposing to have plaintiff do painting with a hand-held brush "that would not consist of lifting anything over [five pounds] and would only require the use of his uninjured hand." Boyd signed off on the proposal, but noted that plaintiff should be reevaluated in two weeks. SAIF, on behalf of VEMCO, also sent Neeley a letter explaining the duties that it believed that plaintiff could perform within his restrictions, namely work that did not involve lifting more than five pounds or using his injured hand. Neeley agreed that those duties were appropriate.

On August 25, plaintiff filed a workers' compensation claim. On the same day, he also received defendants' offer of re-employment, which specified that he would be performing only light-duty work.³ Dave Vernam told plaintiff at that time that he was not to do anything outside his restrictions or he would be fired. Plaintiff worked that day but hurt his arm lifting some beams. Before leaving work, plaintiff told Dave Vernam that he would not be in the next day because he had to fill out workers' compensation forms. Also on August 25, Deborah Vernam told SAIF that she was concerned that plaintiff's workers' compensation claim was not legitimate.

On August 27, plaintiff returned to work. According to plaintiff, he was given work assignments that required him to get down on his hands and knees, which he could not do. He was also given work that required him to use a "man-lift," which he had trouble doing because his injured arm was in a sling. Dave Vernam testified that plaintiff was given a choice of light-duty assignments such as picking up trash. Plaintiff testified that, when he left work that day, he told Dave Vernam that they needed to come to an agreement about what work he would be able to do.

On August 28, plaintiff again did not go to work because he was in too much pain to work. Although he was taking pain medication, he said that he had slept poorly because of the pain. The parties disagree about whether plaintiff advised defendants that he was not coming in that day. Dave Vernam testified that they were not told that he was not coming in or given any reason for his absence. Plaintiff's fiancée testified that she called VEMCO to report that plaintiff was not coming in but that she was unable to reach anyone and did not remember if she left a message.

On August 30, plaintiff returned to work. Dave Vernam gave him a newer man-lift that was smoother to operate while he was painting. Despite the better equipment, plaintiff still experienced pain while painting. He left work at 4:30 p.m., telling Dave Vernam that he was going back to his doctor to obtain a clarification of his work restrictions.

Plaintiff returned to work on August 31, but went home early because he said that he could no longer do the work. Vernam told plaintiff that if he wanted to be paid, he would have to stay on the job site, even if it meant just sitting on the steps. Plaintiff left work anyway. That evening, plaintiff left a message on the Vernams' home answering machine telling them that he had a doctor's appointment on September 3 and that he would not be back until after that appointment. He testified that he also told them that he was unsure about whether they were working over the Labor Day weekend, that he had to attend a family reunion, and that he would not be coming in until September 7 unless he heard to the contrary.

Plaintiff did not report to work on September 1 or 2. On September 2, defendants notified plaintiff that he was being terminated. The termination letter stated:

"You did not show for work on 8/28/99. After asking David Vernam if VEMCO employees would be working 5 days a week/10 hours a day, you were told that we were working 6 days a week/10 hours a day, just as we have been doing since the beginning of your employment. Nothing had changed and you were to be there on 8/28/99.

"You were cleared for Light Duty Work by both Dr. Neeley and Dr. Boyd. You were given Light Duty Work which was consistent with the restrictions given by both doctors, yet you left early on 8/31/99 saying you could no longer do the work and you were going to see your doctor.

"On Tuesday, August 31, 1999, you left a message on David and Debra Vernam's home answering machine stating that you had a doctor's appointment with Dr. Neeley on Friday, September 3, 1999 at 2:00 p.m. and that you would not return to work until after you had seen your doctor.

"You did not show up for work on 9/1/99 or on 9/2/99. You had also stated on the answering machine that you would not be back to work until Tuesday, September 7, 1999. You stated that you did not know what Vemco's work schedule would be for the Labor Day weekend holiday, but that you had a family reunion anyway that you would be attending rather than being at work. You did not request this time off, you were simply taking it whether VEMCO needed you or not, which is in violation of the job offer you signed on 8/27/99."

(Emphasis in original.)

On September 2, SAIF sent plaintiff a letter notifying him that it was denying his workers' compensation claim on the ground that the injury did not occur in the course and scope of his employment.⁴ Plaintiff...