Knapp v. City of North Bend

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: RICHARDSON
• Citation: Knapp v. City of North Bend, 732 P.2d 31, 83 Or.App. 350 (Or. App. 1987)
• Decision Date: 10 April 1987
• Parties: David L. KNAPP, Respondent, v. CITY OF NORTH BEND, Appellant. 85-919; CA A38486.

Page 31

732 P.2d 31

83 Or.App. 350

David L. KNAPP, Respondent, v. CITY OF NORTH BEND, Appellant.

85-919; CA A38486.

Court of Appeals of Oregon.

Argued and Submitted Dec. 5, 1986.

Decided Jan. 28, 1987.

Reconsideration Denied April 10, 1987.

Daniel M. Spencer, Coos Bay, argued the cause for appellant. With him on the briefs was Foss, Whitty & Roess, Coos Bay.

Michael R. Stebbins, North Bend, argued the cause for respondent. With him on the brief was Hayner, Stebbins & Coffey, North Bend.

Larry K. Amburgey and Craig A. Crispin, Portland, filed a brief amici curiae for Food Employers, Inc.; Gourmet Brands, Inc.; Lynden Farms/Belozer's Hatchery; McCracken Motor Freight, Inc.; Mid-Columbia Medical Center; Nike, Inc.; Northwest Packers Industrial Associations, Inc.; Oregon Self-Insurers Association; Oregon Trucking Association, Inc.; PayLess Drug Stores Northwest, Inc.; Portland Chamber of Commerce; The Port of Portland; Rogue Valley Medical Center; Silver Eagle Industries; Stayton Canning Company; Timber Operators Council; Truitt Brothers, Inc.; and Trus Joist Corporation.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

RICHARDSON, Presiding Judge.

Plaintiff was employed as a police sergeant by defendant city and suffered an on-the-job injury in January, 1983, for which he received workers' compensation benefits. His physician released him for regular work in November, 1984. Between those dates, defendant promoted another officer to fill his former position. When plaintiff requested reinstatement to the position, defendant refused on the ground that the position was not available. Defendant later rehired him as a patrolman. The principal issue is whether defendant's failure to reinstate plaintiff to his former position violated ORS 659.415(1), ¹ which provides:

"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, provided that the position is available and the worker is not disabled from performing the duties of such position. If the former position is not available, the worker shall be reinstated in any other position which is available and suitable. A certificate by a duly licensed physician that the physician approves the worker's return to the worker's regular employment shall be prima facie evidence that the worker is able to perform such duties."

In Shaw v. Doyle Milling Co., 297 Or. 251, 683 P.2d 82 (1984), the Supreme Court answered essentially the same question under the statute as it read before it was amended by Oregon Laws 1981, chapter 874, section 14. The statute construed by the Supreme Court provided:

"A worker who has sustained a compensable injury shall be reinstated by the worker's employer to the worker's former position of employment or employment which is available and suitable upon demand for such reinstatement, provided that the worker is not disabled from performing the duties of such position. A certificate by a duly licensed physician that the physician approves the worker's return to the worker's regular employment shall be prima facie evidence that the worker is able to perform such duties."

The court concluded:

"The main purpose of ORS 659.415 is to guarantee that an employer shall not discriminate against a disabled worker for exercising the worker's rights under the Workers' Compensation Law. This statute is but one of a set of statutes reflecting the legislature's concern to prohibit employment discrimination on the basis of handicap. * * * Where the position still exists, although filled by another employee, the returning employee is entitled by the statutory text to reinstatement. To hold otherwise would permit an employer unilaterally to vitiate the mandate of ORS 659.415 and to thwart the broader legislative scheme to afford employment opportunity and security to the handicapped." 297 Or. at 255, 683 P.2d 82.

Defendant and amici argue that the present statute cannot be interpreted as its predecessor was in Doyle, because the 1981 amendment added the proviso to the reinstatement requirement that the former position be "available." They maintain that "available" means existing and vacant; plaintiff contends that a worker's former position is "available" if it exists, whether or not it has been filled by another employe between the time when the worker was injured and the time when he qualifies for and demands reinstatement.

The parties' most persuasive arguments turn on their views of the policy and purpose of the statute. However, defendant and amici make a number of other arguments which we will address first. They rely on the legislative history of the statute as originally enacted by Oregon Laws, 1973, chapter 660, section 5, the history of the 1981 amending act, the legislature's decisions not to amend the statute in 1979 ² and 1983 and interpretations of the statute by the Bureau of Labor and Industries (Bureau). The thrust of the arguments is that, when it was originally enacted in 1973, the statute was intended to require reinstatement only if the employe's former position was vacant; that the Bureau has always so interpreted the statute, before and after the 1981 amendment; that that amendment was designed to clarify and restate the original intent and was not meant as a substantive change; and that the legislature's inaction in 1979 and 1983, like its action in 1981, reflected its awareness and acceptance of the Bureau's administrative interpretation. Those arguments defeat themselves, because they presuppose that before the 1981 amendment the statute meant the opposite of what the Supreme Court construed it to mean in Shaw v. Doyle Milling Co., supra.

Amici state:

"Plaintiff argued below that (1) the Legislature's 1981 amendment was not intended to change prior law, (2) Shaw v. Doyle Milling Co., supra, defined the plain language of the prior law, and (3) therefore, the Legislature intended its 1981 amendment to fall within the terms of the Shaw interpretation.

"This logic is a classic non sequitur. The erroneous logic fails because the Legislature intended to preserve what it believed to be prior law, not what the court some three years later read into the words of the prior statute. Far from intending no change from a Shaw interpretation, the 1981 amendments intended no change from requiring reinstatement--but only to an open or next available position." (Emphasis amici's.)

We think that the non sequitur is to be found in amici's argument rather than plaintiff's. The court in Shaw declared what the prior law meant; it is circular to argue that the prior law had a different meaning, or that the legislature so believed, before the court said what it meant. Stated otherwise, the law meant at the beginning of 1981 what the court in 1984 interpreted it to have meant at the beginning of 1981. ³

Defendant and amici contend that Shaw is not dispositive, because it construed ORS 659.415(1) before it was amended to add the language on which they rely. We agree that Shaw is not directly controlling regarding the meaning of that language. ⁴ However, Shaw is fatal to defendant's and amici's arguments based on legislative history and the Bureau's interpretations of the statute, because those arguments rest on the premise that, before the amendment, the statute meant what the court in Shaw held that it did not. We turn to whether the amendment changed that meaning.

The phrase "provided that the position is available" is ambiguous; "available" can reasonably be defined in two different ways, as the parties arguments demonstrate. The legislative history of the 1981 amendment is not helpful, much less decisive, in ascertaining which definition the legislature intended. As best we can discern, the principal purpose of the relevant portion of the amendment had little to do with the addition of the "available" proviso to the reinstatement requirement. The purpose was to make clear that reinstatement to a former position and placement in a different available and suitable position were sequential requirements rather than options between which employers could freely choose.

The question becomes which of the possible interpretations of "available" is more consistent with the statutory purposes and policies. See State ex rel. Cox v. Wilson, 277 Or. 747, 562 P.2d 172 (1977). Both parties offer persuasive arguments. Defendant contends:

"The purpose of the statute is to maintain the employment relationship. The employer must reinstate a worker to his former position if it is vacant. If it is not vacant, then the worker is to be reinstated to the next suitable vacancy. The statute does not require the employer to preserve a worker's former position, and reinstate the worker to that position regardless of how long the worker has been off, and regardless of whether the position has been filled by another worker.

"The proviso in ORS 659.415 ' * * * provided the position is available * * *,' limits the employer's obligation under the statute. It protects the employer by limiting the nature of the affirmative act required under the statute.

"To interpret the proviso ' * * * provided that the position is available' to mean ' * * * provided that the position is in existence * * *,' would require the...