Opinion
No. 78-2391, CA 15485
On respondent's reconsideration filed October 2, 1980 Former opinion filed September 8, 1980
Reconsideration allowed, modified October 27, 1980
Appeal from Circuit Court, Lane County.
F. Gordon Cottrell, Judge.
David Jensen and Hammons Jensen, Eugene, for petition.
Before Schwab, Chief Judge, and Thornton and Richardson, Judges.
THORNTON, J.
Reconsideration allowed. Former opinion adhered to as modified.
In this action for back pay for failure to reemploy a worker who sustained a compensable injury, we reversed plaintiff's damage award and remanded on the ground that the trial court erred by failing to give two of defendant's requested jury instructions. Carney v. Guard Publishing Co., 48 Or. App. 147, 616 P.2d 548 (1980). Plaintiff petitioned for review in the Supreme Court, and under Rule 10.10, Rules of Appellate Procedure, the case is automatically before us on petition for reconsideration.
The facts of the case are fully set out in our former opinion and need not be repeated here. Carney v. Guard Publishing Co, supra. Plaintiff contends that defendant, in oral argument before this court, specifically abandoned its third assignment of error regarding the question of what constitutes suitable reemployment of an injured worker under ORS 659.420(1). Plaintiff is correct that we inadvertently overlooked this concession on the part of defendant. Accordingly, since defendant's third assignment of error was not properly before us on review, we now withdraw that portion of our former opinion which addressed that issue. Carney v. Guard Publishing Co., supra, at 154-55.
Plaintiff's other contention involves a factual matter which was dealt with in footnote 4 of our earlier opinion, Carney v. Guard Publishing Co., supra, at 153. We conclude that further discussion at this point is unnecessary.
Reconsideration allowed. Former opinion adhered to as modified.