Pilgrim v. Clatskanie People's Utility District , 149 Or. App. 234 ( 1997 )

LANDAU, J.

Plaintiff appeals a summary judgment entered in favor of defendant in this action for failure to reinstate employment following a compensable work injury. We reverse and remand.

The facts are not in dispute. In 1993, plaintiff was employed by defendant as a lineman. On March 29 of that year, plaintiff injured his knee on the job. He did not work for approximately nine months while recovering from knee surgery. Plaintiff was released by his attending physician to modified work with instructions to do limited lifting, squatting, kneeling and the like. In May 1994, defendant’s workers’ compensation carrier obtained a second opinion confirming that plaintiff probably could not return to work as a lineman. Defendant had no other available and suitable positions for plaintiff. On May 18, 1994, defendant terminated plaintiff. The following week, plaintiff’s attending physician changed his opinion about plaintiffs medical status, concluding that plaintiff should be returned to his previous position without restrictions. Defendant sought an independent opinion from a third physician and, on the basis of that opinion, adhered to its termination decision.

Plaintiff initiated this action for reinstatement under ORS 659.415(1), which provides, in part:

“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, if the position exists and is available and the worker is not disabled from performing the duties of such position.”

Defendant answered, denying that the statute afforded plaintiff a basis for relief.

Defendant moved for summary judgment, arguing that it is not subject to the reinstatement statute by virtue of ORS 659.415(3)(b)(D), which provides, in relevant part:

“(3) Notwithstanding subsection (1) of this section:

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“(b) The right to reinstatement under this section does not apply to:

* *

“(D) A worker whose employer employs 20 or fewer workers at the time of the worker’s injury and at the time of the worker’s demand for reinstatement.”

In support of the motion defendant offered evidence that, at the time of plaintiffs injury and at the time of his request for reinstatement, it employed 20 and 19 people, respectively, not counting its publicly elected board of five directors. According to defendant, because it employed no more than 20 workers, the reinstatement statute does not apply. Plaintiff opposed the motion on the ground that the five members of the board also count as workers; therefore, because defendant employed at least 24 workers at the relevant times, the reinstatement statute does apply. In support of his contentions, plaintiff relied on the administrative rule promulgated by the Bureau of Labor and Industries defining the statutory term “worker” for the purpose of implementing ORS 659.415:

“ Worker’ means any person, including a minor whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, subject to the direction and control of any employer and includes salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts and other public corporations * *

OAR 839-06-105(4)(a) (1996) (emphasis supplied). According to plaintiff, because the rule expressly defines the statutory term “worker” to include elected officials, the five board members must be added to the employee total. Defendant replied that, because the rule defines “worker” to mean one who works “subject to the direction and control” of an employer, the five board members do not count because they are not subject to the control of any employer. The trial court granted defendant’s motion.

On appeal, plaintiff offers a single, brief argument:

“The definition of ‘worker’ [in the administrative rule] specifically includes elected officials of public agencies and corporations. Defendant is a public utility district. Its Board of Directors is comprised of five elected officials. As such, defendant’s Board members are ‘workers’ under OAR 839-06-105, and as that term is used in determining reinstatement rights under ORS 659.415. Consequently, defendant did not have ‘20 or fewer workers’ at the time of plaintiffs compensable injury, nor at the time of the reinstatement request.”

Defendant’s argument similarly is narrowly focused:

“Even though the definition [in OAR 839-06-105] specifically includes salaried, elected and appointed public officials as potential workers, this reference is not mutually exclusive and such individuals still must be subject to the direction and control of an employer to be ‘workers’ of that employer under the law.”

Thus, we observe at the outset the narrow focus of the issue before us. It is limited to whether the definition of “worker” in OAR 839-06-105(4)(a) includes “elected officials,” regardless of whether they are supervised by an employer. The parties do not argue — and we have no proper occasion to address— other potential issues such as whether the rule applies only to salaried officials, whether defendant’s board members actually are salaried within the meaning of the rule or whether defendant is a public corporation within the meaning of the rule.

In addressing the limited issue before us, we attempt to ascertain, if possible, the meaning of the rule that the promulgating agency intended. Perlenfein and Perlenfein, 316 Or 16, 20, 848 P2d 604 (1993). In so doing, we apply the same interpretive principles that apply to the construction of statutes. See Dept. of Land Conservation v. Lincoln County, 144 Or App 9, 14-15, 925 P2d 135 (1996), rev den 324 Or 560 (1997). That means that we first examine the text in its context, and, if that inquiry does not reveal the intended meaning of the rule, we examine extrinsic evidence and relevant rules of construction. See PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993).

In this case, the rule defines “worker” both in terms of what the word means and what it includes. As we noted in State v. Haynes, 149 Or App 73, 76-77, 942 P2d 295 (1997), it is fairly common for the law to specify what a word definitely includes and then provide a more general definition of what the word means apart from those things specifically enumerated. The statute at issue in that case illustrates the point. ORS 164.325 defines first-degree arson to mean intentionally setting afire “protected property,” defined by ORS 164.305(2) to mean “any structure, place or thing customarily occupied by people,” and defined to specifically include churches and forestland, without regard to whether they are customarily occupied. Id. at 78. We held that proof that a church was customarily occupied at the time it was burned down was not required under the statute.

The same interpretive problem is posed in this case. OAR 839-06-105(4)(a) provides that “worker” means, among other things, a person who works “subject to the direction and control of any employer.” The rule does not stop there, however. It also provides that “worker” specifically includes “salaried, elected and appointed officials.” The rule does not say that salaried, elected and appointed officials are workers only to the extent that they work subject to the direction and control of an employer. That only makes sense, at least so far as elected officials are concerned, given that elected officials are not subject to the direction and control of an employer. Indeed, to read the rule as defendant suggests would require us not only to read language into the rule that the promulgating agency — for whatever reason — chose not to include, but also to make the language that it did include entirely superfluous. Both consequences are inconsistent with basic principles of construction. ORS 174.010.

Examination of the broader context in which the rule was adopted confirms what the language of the rule itself strongly suggests. OAR 839-06-105(4)(a) defines the term “worker” for the purpose of implementing ORS 659.415, which applies to workers who have not been reinstated after sustaining compensable injuries under the terms of the Workers’ Compensation Law. See generally Shaw v. Doyle Milling Co., 297 Or 251, 255, 683 P2d 82 (1984) (describing purpose of ORS 659.415 “to guarantee that an employer shall not discriminate against a disabled worker for exercising the worker’s rights under the Workers’ Compensation Law”). The Workers’ Compensation Law defines “worker” in terms identical to the BOLI administrative rule’s definition of the same word:

“ “Worker’ means any person, including a minor whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, subject to the direction and control of an employer and includes salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts and other public corporations * * *.”

ORS 656.005(30). That definition, in relevant part, was enacted to address precisely whether elected officials who are not subject to direction and control of an employer are “workers” for the purposes of determining workers’ compensation coverage.

An earlier version of the statute defined “workman” in the following terms:

“[A]ny person who engages to furnish his services, subject to the direction and control of an employer * *

ORS 656.002(15) (1957). The Attorney General concluded that the law did not apply to elected county officials — specifically, clerks, judges, treasurers and commissioners— because, among other things, they were “not subject to the direction and control of the county, but only to the law.” 24 Op Atty Gen 20, 21 (1948). In 1959, the State Accident Insurance Commission proposed an amendment to the statute, specifically to include elected officials. Minutes, Senate Labor and Industries Committee, April 24, 1959, pp 1-2. Thus, the language “and includes salaried elected and appointed officials of the state, state agencies, counties, cities, school districts and other public corporations” was added to the statute.¹ See ORS 656.002(16) (1959). In the context of the Attorney General’s opinion, the legislature’s intentions cannot be mistaken.

We conclude that elected officials of the state, state agencies, counties, cities, school districts and other public corporations may be “workers” within the meaning of OAR 839-06-105(4)(a), even though they are not subject to the direction and control of a supervisor. The trial court therefore erred in allowing defendant’s summary judgment motion. We emphasize the limited nature of our holding, in particular, that we do not hold that the elected officials in this case are, in fact, workers within the meaning of the rule. That determination depends on proof as to other factors enumerated in the rule, matters that, as we have noted, the parties do not argue in this appeal and may or may not choose to address on remand.

Reversed and remanded.

1 In its original form, the added phrase contained no comma between the words “salaried” and “elected.” In 1973, a comma appeared when the legislature enacted other, unrelated amendments to the statute. Or Laws 1973, ch 620, § 1. We express no opinion on the effect, if any, of the appearance of the new punctuation, as it does not bear on the narrow issue properly before us.

The dissent takes us to task for failing to speculate on the effect, if any, of the correct punctuation of the statute. According to the dissent, the errant comma must be ignored, and the statute must be read to apply only to elected officials who are salaried. On that basis, the dissent contends, we should affirm the trial court’s decision to grant summary judgment in favor of defendants. In so arguing, the dissent concedes that the parties failed to raise that issue. It nevertheless insists that we must decide it, because to do otherwise results in “an advisory opinion” that gives an “incomplete” picture of the statute. 149 Or App at 242. We remain unpersuaded.

The issue before us is whether the trial court erred in granting summary judgment, not describing what the statute means in the abstract. Simply because we are required to construe one aspect of a statute in disposing of an assignment of error does not mean that, because we happen to be in the statutory neighborhood, we must express our opinion as to other matters not argued by the parties. That would be to render an advisory opinion. See, e.g., State ex rel Kane v. Goldschmidt, 308 Or 573, 590, 783 P2d 988 (1989) (“If we attempted to anticipate and resolve all the variations possible under the statute at this time, we would stray into giving an advisory opinion.”); see also SAIF v. Mize, 129 Or App 636, 640, 879 P2d 907 (1994); Clark v. Schumacher, 103 Or App 1, 7, 795 P2d 1093 (1990).

Even if the dissent were correct that we should address the significance of the inadvertently included comma, see 149 Or App at 243-44, and even if the dissent were correct as to the actual significance of the punctuation of the statute, the fact remains that the parties have not argued whether the elected officials in this case — who are paid a small stipend plus expenses — are “salaried.” The dissent simply assumes the very matter at issue; indeed, nowhere in the dissenting opinion is there even a discussion of whether the officials in this case are salaried. That is precisely the sort of issue that the parties should be allowed to argue and the trial court should be allowed to decide. No one is well served by our rushing in where the parties have failed to tread.