Petock v. Asante

This case involves the interplay between the "Unlawful Discrimination Against Injured Workers" statutes, ORS 659A.040 to 659A.052, and workers compensation law. The anti-discrimination statutes require an employer to reinstate or reemploy an injured worker who has recovered from a "compensable injury" if the worker applies within three years from the "date of injury." ORS 659A.043(3)(a)(F) (reinstatement); ORS 659A.046(3)(f) (reemployment). Plaintiff was injured in an accident while working for defendant in 2002, and she was injured by a second accident in 2005, also while employed by defendant. The second injury was processed under workers compensation law as an "aggravation" of the first injury. She applied for reemployment or reinstatement in 2008, within three years of the second accident but not within three years of the first. Defendant refused. The primary issue in this case is whether a compensable aggravation of a prior compensable injury is itself a new injury for purposes of starting a new three-year limitation period. We hold that it is not. That conclusion raises the second issue: whether there is a disputed question in this case as to whether the second event was, in fact, a new injury or an aggravation as processed. We hold that there is such a fact dispute. For that reason, the trial court erred in granting defendants motion for summary judgment. We reverse and remand.