Vsetecka v. Safeway Stores, Inc.

• Court: Oregon Supreme Court
• Writing for the Court: KISTLER, J.
• Citation: Vsetecka v. Safeway Stores, Inc., 337 Or 502, 98 P3d 1116 (Or. 2004)
• Decision Date: 14 October 2004
• Parties: In the Matter of the Compensation of Buzz Vsetecka, Claimant. Buzz VSETECKA, Petitioner on Review, v. SAFEWAY STORES, INC., Respondent on Review.

98 P.3d 1116

337 Or. 502

In the Matter of the Compensation of Buzz Vsetecka, Claimant.

Buzz VSETECKA, Petitioner on Review, v. SAFEWAY STORES, INC., Respondent on Review.

(WCB 00-02916; CA A113353; SC S49908).

Supreme Court of Oregon, En Banc.

Argued and submitted September 9, 2003.

Decided October 14, 2004.

J. Michael Casey, Portland, argued the cause and filed the briefs for petitioner on review. With him on the briefs was Edward J. Harri, Salem.

Ken Kleinsmith, of Meyers, Radler, Bohy, Replogle & Miller, Lake Oswego, argued the cause and filed the briefs for respondent on review.

G. Duff Bloom, of Cary, Wing, Bloom & Edmunson, P.C., Eugene, filed the brief for amicus curiae Oregon Trial Lawyers Association.

KISTLER, J.

In this workers' compensation case, the Workers' Compensation Board (board) ruled that claimant had failed to give his employer sufficient written notice of a workplace injury and therefore did not reach the question whether the injury caused claimant's condition. The Court of Appeals agreed that the notice was insufficient and affirmed. Vsetecka v. Safeway Stores, Inc., 183 Or.App. 239, 51 P.3d 688 (2002). We hold that the board and the Court of Appeals read the notice statute too narrowly and that claimant's notice was sufficient. We reverse the Court of Appeals decision and the board's order and remand for further proceedings.

Claimant works in a grocery warehouse. On April 30, 1998, a 50-pound box of apples fell from the top of a pallet stacked high with boxes of produce. Claimant raised his right arm to deflect the falling box, which hit his wrist. Claimant immediately felt soreness and stiffness in his wrist.

Claimant's employer requires its employees to report workplace injuries orally to their supervisors and also to record them in an injury log. Consistently with employer's policy, claimant immediately told his supervisor that a "box fell and hit [his] wrist, and that [he] had pain in [his] wrist." That same day, claimant recorded the injury in employer's injury log, which contains spaces for the employee's name, the date of the injury, and a description of the injury. Claimant wrote in the injury log: "Buzz V," "4/30/98," and "pain in right wrist."

Twice within the next month, claimant told his supervisor that he continued to experience pain in his wrist. Both times, he recorded that problem in the injury log. On May 8, he wrote his name, the date, and "right wrist pain." On May 29, he wrote, along with his name and date, "right wrist pain again." Although he continued to experience pain in his wrist, claimant did not seek medical treatment because he believed that he had suffered a sprain that would improve over time.

In 1999, claimant's right wrist symptoms increased, and he spoke with the company nurse, who suggested that he was suffering from tendinitis. Claimant's symptoms continued to worsen, and he sought medical treatment from Dr. Lisook on January 17, 2000. Lisook referred claimant to a specialist, who diagnosed him as suffering from "a non-union of the scaphoid fracture, right wrist." The specialist performed surgery to correct that condition.

After claimant saw Lisook on January 17, 2000, he filed a workers' compensation claim for the April 30, 1998, injury. Employer denied the claim on the ground that claimant had failed to give it timely written notice in accordance with ORS 656.265.¹ That statute provides, in part:

"(1) Notice of an accident resulting in an injury or death shall be given immediately by the worker or a dependent of the worker to the employer, but not later than 90 days after the accident. The employer shall acknowledge forthwith receipt of such notice.

"(2) The notice need not be in any particular form. However, it shall be in writing and shall apprise the employer when and where and how an injury has occurred to a worker. A report or statement secured from a worker, or from the doctor of the worker and signed by the worker, concerning an accident which may involve a compensable injury shall be considered notice from the worker and the employer shall forthwith furnish the worker a copy of any such report or statement.

"(3) Notice shall be given to the employer by mail * * * or by personal delivery to the employer or to a foreman or other supervisor of the employer. If for any reason it is not possible to so notify the employer, notice may be given to the Director of the Department of Consumer and Business Services and referred to the insurer or self-insured employer.

"(4) Failure to give notice as required by this section bars a claim under this chapter unless the notice is given within one year after the date of the accident and:

"(a) The employer had knowledge of the injury or death; [or]

"(b) The worker died within 180 days after the date of the accident * * *.

"* * * * *

"(6) The director shall promulgate and prescribe uniform forms to be used by workers in reporting their injuries to their employers. * * * The failure of the worker to use a specified form shall not, in itself, defeat the claim of the worker if the worker has complied with the requirement that the claim be presented in writing."

Claimant requested a hearing. Before the administrative law judge (ALJ) and again before the board, claimant and employer offered differing interpretations of ORS 656.265(2). Focusing on the second sentence in ORS 656.265(2), employer argued that notice must be in writing and "apprise the employer when and where and how an injury has occurred to a worker." Employer contended that the written entries in the injury log, although timely, identified only "when" the injury occurred. They did not identify "where" or "how" it occurred. It followed, employer reasoned, that the written notice was insufficient.²

Pointing to the third sentence in ORS 626.265(2), claimant contended that the question, properly understood, was whether the entries in the log put employer on notice that his workplace accident "may involve a compensable injury." He argued that the three entries that he made in the injury log gave employer timely notice that he had been experiencing recurring pain from his April 30, 1998, injury and thus that the injury may be compensable.

The ALJ ruled that the entries in the injury log constituted sufficient notice. Relying in part on an admission by claimant's supervisor, the ALJ concluded that the three notations of right wrist pain in the injury log would have put a reasonable employer on notice that claimant could have a compensable injury. Reaching the merits of the claim, the ALJ found the injury compensable.

Employer appealed to the board, which reversed. The board did not reach the question whether the injury caused claimant's wrist condition. Rather, the board ruled that claimant had failed to give his employer sufficient notice. The board started from the proposition that the notice must be in writing and state when, where, and how the injury occurred. It found that the initial entry stated "when" the injury occurred—April 28, 1998. It also found that, given the location and purpose of the injury log, a reasonable trier of fact could infer "where" the injury occurred—viz., in the workplace. The board concluded, however, that the phrase "right wrist pain" did not identify "how" the injury occurred. Because the written notice satisfied only two of the three statutory criteria, the board upheld employer's denial.

Claimant petitioned for review, and a divided panel of the Court of Appeals affirmed. Vsetecka, 183 Or.App. at 241, 51 P.3d 688. Starting from the proposition that the phrase "when and where and how" entails three separate inquiries, the majority agreed with the board that the written entries did not tell employer "how" the injury occurred; that is, the statement "right wrist pain" did not tell employer "in what manner" or "by what means or process" the injury occurred. Id. at 242-43, 51 P.3d 688. The dissent reasoned that claimant's act of noting the injury in the log implied that claimant had injured his wrist at work. Id. at 244, 51 P.3d 688 (Schuman, J., dissenting). That was sufficient, the dissent reasoned, to tell employer "how" claimant had injured his wrist—he had injured it at work—as well as "where" he had done so. Id. We allowed review to consider the level of specificity that ORS 656.265 requires.

On review, the parties' dispute reduces to a question of statutory interpretation. Focusing on the phrase "when and where and how," employer argues that that phrase requires three separate and discrete inquiries and that claimant's entries do not pass the third hurdle; they do not communicate "how" the injury occurred. Claimant, for his part, focuses on the context of the phrase "when and where and how," as well as its text. In claimant's view, the context makes clear that directing a worker to tell an employer when, where, and how an injury occurred is the same as asking a worker to explain generally what happened. He contends that the text, read in context, does not require three discrete inquiries but reduces instead to a single question: Does the writing contain enough details about the when, where, and how of an injury to put an employer on notice that the injury may be compensable?

In analyzing the parties' differing interpretations of ORS 656.265, we begin with the text and context of that statute. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993) (describing statutory construction methodology). ORS 656.265(1) requires that a worker give his or her employer notice of an accident that results in an injury or death. The first two sentences in ORS 656.265(2) address the form and contents of that notice. They provide: "The notice need not be in any particular form. However, it shall be in writing and shall apprise the employer when and where and how an injury has occurred to a worker." ORS 656.265(2).

Viewed in isolation, that text provides support for employer's position....