against his organs text or discrimination claim to find that he had not done that organ statute or a six point nine zero four zero prohibits an employer from terminating an employee because the employer has either invoke under the alternative way of and of protection of the statute one alternative way besides invoking is to apply for benefits under that system the definition an organ statute as to what constitutes a worker's compensation claim it includes a written request for compensation from a subject worker therefore by virtue of him being an organ subject worker and submitting a document which  it at the top says fill this form to apply for workers come for some benefits because of a work injury list that in oregon document generally for workers compensation claims there is a process a state process with  normally how they start doing that but i don't think it's limited to that at all anyway so he invoked the system by repeatedly telling his employer that he had been in  job injury during a business trip counsel counseling i know you're losing me because the minute ago i thought you were saying that he invoked yes by filling out the form now you're saying he invoked by telling his employer he was going to so what's what  that he made the phone call and then there he was directed to mr f right to get information about workers comp and i'm just trying to figure out exactly what it is because that when i look at the deposition testimony describing and including your client's deposition testimony it seems pretty unequivocal that he he was asked the question at that point were you contemplating filing in new york with that conversation about filing in new york and he said yes not org and i really want to make sure not missing w so i think your case would be different or if if he had called his employer and indicated there gave this even if it was ambiguous but gave that the employer some reason to think you know on the job injury and i'm going to file worker's comp but my understanding of the record you notified his employer at best that he was contemplating filing in new york and that's what strikes me as unprotected i think he came out of his mouth your honor he said he has been contacted by the insurance company pressuring him to file risk compensation claims oregon law is is is it is this court is said and show interprets invoking very broadly right and i agree with that but when you say it didn't come out of his mouth and let you move on i don't mean to belabor the point but are you talking about you don't think he said that in the phone conversation or you don't think he said that in the deposition really late in the phone conversation i don't recall him ever since limiting president of the company so he did tell people in a high position of authority that he was injured on the job i guess the sticking point he had that troubles me is that why did he file i think give an explanation but he seemed to invoke the new york compensation laws and not the oregon compensation laws and i guess that's a sticking point if he didn't really involve himself this imbruglia oh and all that crazy story about why he did this or he did that in one write to oregon we might have a different case but you know you seem to a business filing in new york had any relevancy at all to this litigation or was it just the red herring well your honor if you look at the oregon statute of what constitutes a request a written  claim for benefits or not we're going to have any written request for compensation on the form of your form says it's there it's for the formal for workers compensation benefit as well as he had an option he could have gone to new york and he could have gone to oregon he had those choices to make or my scene this wrong well ultimately it's a judicial decision which stays worker's compensation laws apply to him in oregon has been determined to be that state's laws when he chose to go to new york isn't that some sort of an election made these phone calls and he spoke to supervisors and he said i was in jail while he was being trained in new york he's in oregon to work and that's sufficient to invoke the oregon law exactly on lane as simple as that right yes exactly i'd reserve this much crippled my back is completely out i could not have gotten on a plane this week and i do appreciate your allowing me to do it this way i would like to respond to first of all when you're pointing out his deposition testimony at  forty three there's also a place in many texts that pages two sixteen into seventeen where he specifically said that he did not inform anybody at meditating about his intention to file a claim in oregon so there's no question here that was never put on notice that he intended to file a claim in oregon he said to med tech i was not injured in the course of my employment i i does all words at pages one eighty eight of the  record and he testified his deposition at pages two zero seven and to aid of the record that these were his words and his words alone and nobody told him what to say his own words were we had just left the customer and were on our own way for some personal errands it was my first time to new york city and wanted to see the statue of liberty we were not working out the time now to the accident now i'm sorry forgive me but we read that and it will be helpful so you understand allegedly an auto is sure of pressured him to file a worker's comp claim when in fact he really didn't have one under under new york law as was later determined by the new york workers comp board sheet filed the new york worker's comp claim it made no indication he was going to invoke oregon law made no indication that it was a work related accident and if you look in our brief we cite to several cases from both oregon and new york which hold that  really go to when you're on the job when you suffer an on the job injury and when you don't so let me ask you right so if you don't no one would have if we don't know there's a claim there's an on the job injury how we ever apprised that there's any possibility he's going to vote he's go related injury but because of a no fault carers pressuring you to do it how in the world are we ever presupposed to know that in fact you're going to later claim that you had a work related injury and that you're going to later file in oregon worker's comp claim for months after you were terminated that somehow we are charged with a violation of oregon statute by doing so particularly when it would appear to me that that the case is interpreted in the oregon statute say quote organs worker question ok i'm going to ask it again so if i can sue maybe we can communicate because i'm i'm not doubting any of the authorities you're citing my question is if he had if this if this record so that he informed his employer that he was going to file a worker's comp claim and had not mentioned filing under new york law then what would your position be if he had said i'm going to file a worker's comp ok so we're going to try to third time here my question certainly ari it's a hypothetical pretend if you would that the record is just a phone call to his employer saying i'm going to file a worker's comp claim and it's going to be sorted out later whether it's really an on the job injury whether it's really a valid worker's comp claim just just a notice i've been hurt i'm going to file a worker's comp claim without mentioning new york and in that event what would your position be under those facts it's possible it's possible it's a stretch but it's possible that you might say medtech might be charged with knowledge she could potentially have filed the an organ worker's comp claim and maybe invoke the system that way but that's not the facts in this case your honor in this case we have a situation where he specifically chose new york workers compensation and under new yorkers compensation let me get involved let me hold him to good bait if i can and this is judge block can you hear me ok khurana so i just want to know factually did he did he not report that he had a injury on the job to mr for what you not want to anybody else yes or no did he report that he did not absolutely not  unclear to you telling me he had never said that he had an injury on the job to those pieces of a civically said many many times during that when we're talking about the time period when he was employed during that time period every single document he filed every single i told him it's was there a phone call or not that he made there was a job and it's the question that where he said that i've been injured on the his deposition testimony turns around and says well after that we were going to go back and do some more work but there's no indication that he ever told anyone unfortunate fortune out of that at the time this so that really goes to for otto having reason to think that he did not have a valid worker's comp claim its are correct well it also goes to whether or not he was terminated for following a worker's compensation claim because that the company was never notified that he was found in the workers compensation claim then the motivation could not be found in a worker's compensation claim that precipitated the terminations that's why this question is important to me honor and if you have the person tell you no i did not work related accident how can you wait wait wait wait wait wait here's how you could possibly i mean i prefer it that this is a hypothetical but it should be clear it surely is not your position valid claims or surely it's not your position that he could have had that conversation with mr fortune otto said that he had this injury was contemplating filing a worker's comp claim and that it would not have been a retaliation to be terminated for that reason you're really relying on the noticeably in york you're really relying on the notice having been that he was planning to file in new york right absolutely and also i'm relying on the fact that new york has a as a section worker's compensation section one twenty that is has been ruled many times by federal courts of appeals in federal district courts as the exclusive remedy for somebody who files a new york state worker's comp claim and then alleges he was fired in retaliation he f that is remedy he filed a new york city worker's comp claim she prefers he began to pursue that claim it was only four months after he was terminated that for the first time he filed an organ document that for the first time said no i was working at the time this was a work related accident and that's why i would argue you cannot say medic tech knew he was he was it was never going to do that there's no indication they did it was never going to know anything at all like they didn't need to know they would not have been free to fire him if he said he was going to file an invalid worker's comp claim that's not your that can't be your position that's not my position at all thank you but my position is for you to claim and to invoke oregon statute you have to have some indication that you're going to make an oregon claim not the new york claims not to do that's a little bit of a statute doesn't say that he just says that you have to report that you had an injury on the job and if he did that that is the fortunato and then there's this whole coll about whether or not it would hurt him to file the workers compensation claim but you say factually he never told this to fortunato anybody else that he had been injured on the job that's your position right that is my position and i think your further position is that in the plaintiff's deposition testimony actually in all the deposition testimony that i can find the report in that conversation that he was to contemplating filing in new york that is you have four minutes left it with anything else counsel the only thing that i would like to point out to reiterate is that we're not talking about a situation where  city was telling people they had a work related accident anywhere at this time period there are several documents filed some which are fall under penalty of perjury by mr quinn chancy starting as recently as three days after the accident and going all the way two months after he was fired all of which indicate this was not a work related accident and it would seem to me if you're going to claim that you notified your employer of a work related accident that's to report an injury that's how you invoke the statute but you're telling me that he never did that because he never had a conversation with anybody where he said he was injured on the job i've checked the record to find a where that's true or not it's a summary judgment motion there are factual issues that may have are chapter six fifty six no mention of another state staying thoughts i mark your honor there is no mention of another state in the statute and the case law seems indicated has to be name statute and other areas of the law they've limited the language to the oregon statute for example if a purposes of chapter six fifty six quarts of interpreted workers compensation benefits i only including application for organ worker's compensation benefits not federal disability awards or award made under other states compensation systems that's american building maintenance versus macleish not to ninety six organ seven seventy two there's several cases to that nature and it would appear to me that if you want to invoke a punitive statute under oregon law saying that you are your employer did something discriminatory to you if the statute says under this provision or under oregon section six fifty six it would seem to me you'd have to show some indication that you told your employer that you had built a work related injury and that you intended to invoke oregon law if you tell your employer that you were not injured in the course of your employment and you're going to file a new yorker's something only because of a worker a no fault adjuster told you to do so i don't believe you've informed your your employer about it you say basically this is an admission against judge was reversed in the shown case so this is this court reversed her her pinion in showing was going to was it was a lawsuit not a worse comes you claim that was the first lawsuit she brought and the court in showing said that before you leave i read the language that the statute in it seems to say it seems to include as an element that the worker have to apply for benefits or invoked no matter how broadly defined that or utilize the claim would invoke this statute i don't see how you get there well your honor it's very broadly interpreted in the herbert case you look at that case in our brief the injured truck driver in that case didn't say anything about funny workers compensation claim just talked about exposure to some harmful chemical in the truck she was driving