Chavez v. Boise Cascade Corp.

• Decision Date: 18 April 1989
• Docket Number: J-2
• Citation: 307 Or. 632,772 P.2d 409
• Parties: Tony CHAVEZ, Respondent on Review, v. BOISE CASCADE CORPORATION, a Delaware Corporation, Petitioner on Review. TC 86-0774-; CA A43559; SC S35580.
• Court: Oregon Supreme Court

Page 409

772 P.2d 409

307 Or. 632

Tony CHAVEZ, Respondent on Review, v. BOISE CASCADE CORPORATION, a Delaware Corporation Petitioner on Review.

TC 86-0774-J-2; CA A43559; SC S35580.

Supreme Court of Oregon.

Argued and Submitted March 9, 1989.

April 18, 1989.

H. Scott Plouse, of Cowling & Heysell, Medford, argued the cause and filed the petition for petitioner on review.

Daniel C. Thorndike, of Blackhurst, Hornecker, Hassen & Thorndike & Ervin B. Hogan, Medford, argued the cause and filed responses for respondent on review.

Scott P. Monfils, Nelson D. Atkin II, and Jeffrey S. Love, of Spears, Lubersky, Bledsoe, Anderson, Young & Hilliard, Portland, filed an amicus curiae brief on behalf of Associated Oregon Industries, Tri-County Metropolitan Transp. Dist. of Oregon, Associated General Contractors, Roseburg Forest Products Co., RSG Forest Products, Inc., and Pacific Coast Ass'n of Pulp and Paper Mfrs.

Thomas M. Christ, of Mitchell, Lang & Smith, Portland, filed an amicus curiae brief on behalf of Oregon Self-Insurers Ass'n and Oregon Ass'n of Workers' Compensation Defense Attorneys.

Before PETERSON, C.J., and LINDE, CARSON, JONES, GILLETTE and FADELEY, JJ.

LINDE, Justice.

After suffering an industrial accident at defendant's plant, plaintiff obtained an award of 30 percent permanent partial disability from the Workers' Compensation Board. Defendant refused plaintiff's demand for reinstatement in his former position pursuant to ORS 659.415, which makes it an unlawful employment practice to deny reinstatement to a worker who has sustained a compensable injury if the position is available "and the worker is not disabled from performing the duties of such position." Defendant asserted that the Board's finding of disability precluded plaintiff from claiming that he was not disabled from returning to his former position, and the circuit court granted summary judgment on that basis. The Court of Appeals reversed, holding that the Board's order did not necessarily establish plaintiff's inability to perform his previous job. Chavez v. Boise Cascade Corporation, 92 Or.App. 508, 759 P.2d 297 (1988). We affirm the decision of the Court of Appeals.

The Court of Appeals followed this court's recent opinion in North Clackamas School Dist. v. White, 305 Or. 48, 750 P.2d 485, modified on other grounds 305 Or. 468, 752 P.2d 1210 (1988), "assuming," though with some uncertainty, "that an administrative determination can be used as a basis for collateral estoppel in a later civil judicial proceeding." 92 Or.App. at 510, 759 P.2d 297. The assumption is correct, at least for judicial proceedings like this case. ¹

North Clackamas School Dist. involved the effect of a prior ruling by the Workers' Compensation Board on a subsequent claim that claimant's condition had worsened. This court applied a rule earlier stated in State Farm Fire and Casualty v. Reuter, 299 Or. 155, 158, 700 P.2d 236 (1985), that "[i]f a claim is litigated to final judgment, the decision on a particular issue or determinative fact is conclusive in a later or different action between the same parties if the determination was essential to the judgment." 305 Or. at 53, 750 P.2d 485. The opinion quoted the statement in Restatement (Second) of Judgments § 83(1) that, with exceptions, a valid and final administrative adjudication has the same preclusive effects as a court's judgment. 305 Or. at 52, 750 P.2d 485. The court did note that not only the quality of proceedings and opportunity to litigate were the same in both cases, but also the forum, making it unnecessary to consider the relative competence and responsibility of two different forums. Compare State v. Ratliff, 304 Or. 254, 744 P.2d 247 (1987) (motor vehicle department's license suspension procedure too informal for preclusive effect). But an identical forum is not essential for giving preclusive effect to necessary findings in a formal administrative adjudication if the parties had both a full opportunity and the incentive to contest the point at issue on a record that also was subject to judicial review. Cf. Convalescent Ctr. v. Dept. of Income M., 208 Conn. 187, 544 A.2d 604 (1988). We therefore examine what the present Board order decided regarding plaintiff's ability to perform the work he previously had done.

In the compensation proceeding, plaintiff (claimant) appealed an order awarding him 15 percent unscheduled disability benefits. The extent of disability was the only issue. The referee's findings noted that claimant was employed as a grader offbearer when he sustained a low back injury. The findings then recited the medical history leading up to the treating physician's decision to release claimant for work, restricted to the extent of "never lifting or carrying over twenty pounds, occasionally bending, crouching, kneeling, crawling and climbing ladders, and never twisting at the waist." The next two findings stated:

"(4) At the employer's request, Drs. Yamodis and Morrison viewed a number of potential work activities in person and on video tape respectively. They indicated their agreement with Dr. Dunn's last stated restrictions, but indicated that all of the potential positions: dryer puller, dryer feeder, raiman operator, green chain puller and cleanup would place Mr. Chavez at risk for reinjury or incapacitation.

"(5) The personnel manager for Boise Cascade testified that his company has approximately 850 employees in three different divisions in Southern Oregon. The restrictions imposed on Mr. Chavez by Dr. Dunn preclude employment in any of the approximately 70 job classifications with his company. Reemployment has not been offered Mr. Chavez."

The referee further found that all examining and treating physicians found claimant's physical condition to be normal and that claimant did not testify to any low back limitation and considered the treating physician's restrictions to be unrealistically limiting. The referee then stated, under the heading "Opinion," that claimant had no impairment within the agency's guidelines:

"What he has is a history of a rupture[d] disc and restrictions that have been imposed to prevent reinjury. Within those restrictions, he is precluded from returning to work in the wood products industry. He is retrainable, but has not been retrained. Even with the retraining that has been authorized by the employer, he will not be able to return to near the wage at time of injury level. He has a significant loss of earning capacity."

The opinion concluded that the resulting loss of earning capacity justified increasing the claimant's permanant partial disability benefits to 30 percent. Neither side appealed this award.

The questions in this action for reinstatement are whether the referee found as a fact that plaintiff is disabled from performing his previous work and if so, whether the finding was necessary to the compensation decision. The answer to the first question is somewhat obscured by the form of the referee's order. The so-called "Findings" mix recitals of the medical history and some facts found by the referee with recitals of testimony. Recitals of evidence, such as what was reported or "indicated" by the claimant, employer, or physicians, are not findings of fact. The referee's ultimate finding, that claimant had no "impairment as defined by the guidelines," but that within ...