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Reinstatement and Workers' Compensation: A Recent Oregon Supreme Court Decision Prompts a Close Look at the Line Between Aggravation and a Compensable Injury
January 10, 2012
By Iris Tilley

The Oregon Supreme Court's recent ruling in Petock v. Asante signals important considerations for employers faced with reinstatement/reemployment questions following an employee's on-the-job injury.

Petock injured her knee at work on September 17, 2002 and filed a workers' compensation claim that her employer accepted. Petock sustained further injury to her knee while at work on July 13, 2005 and filed another workers' compensation claim for an aggravation of her prior compensable injury.

In January of 2006, Petock attempted to return to her position, but her employer refused arguing that the second injury was an aggravation and did not extend the three-year period for a demand of reinstatement that had begun to run when Petock injured her knee in 2002. (Under Oregon law, an employee must return to work within three years of the injury or else lose the right to reinstatement.) In response, Petock argued that the aggravation of the 2002 injury gave rise to a new three-year reinstatement/reemployment period or, in the alternative, that a reasonable inference could be made that the 2005 injury was a separate compensable injury, giving rise to a new three-year period.

The trial court determined that the aggravation did not give rise to a new reinstatement/reemployment period. Affirming the lower court's decision and remanding the case for further consideration, the Supreme Court held that only a "compensable injury" could give rise to reinstatement of employment. Thus, the Court determined that the proper question was whether a claimant suffered a compensable injury in 2005 and not whether aggravated injuries should or should not be excluded by the three-year period. The Court held that a reasonable juror could conclude that Petock had indeed suffered a compensable injury, and the case was remanded.

In light of the Supreme Court's decision, for purposes of determining reinstatement and reemployment rights of an employee recovering from a workers' compensation injury, employers should first ask whether the claimant suffered a compensable injury. This may require an independent inquiry that looks beyond the claimant's own classification of the injury to determine whether a separate compensable injury has occurred or whether the claimed injury is merely an aggravation. If such an injury has occurred (or a reasonable jury could conclude that it has), the employer must then determine if the injury took place during the three-year reinstatement/reemployment period. Where it has, the employee has a right to reinstatement or reemployment under Oregon law.

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