Denton v. EBI Companies

679 P.2d 301, 67 Or. App. 339, 1984 Ore. App. LEXIS 2799
CourtCourt of Appeals of Oregon
DecidedMarch 14, 1984
Docket81-08510; CA A26737
StatusPublished
Cited by2 cases

This text of 679 P.2d 301 (Denton v. EBI Companies) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Denton v. EBI Companies, 679 P.2d 301, 67 Or. App. 339, 1984 Ore. App. LEXIS 2799 (Or. Ct. App. 1984).

Opinion

RICHARDSON, P. J.

In this workers’ compensation case, claimant and his employer’s compensation insurer (EBI) both appeal from an order distributing proceeds of a third party action. Claimant suffered a compensable injury January 24,1978, when one leg was amputated above the knee and the other was crushed by machinery while he was working for Northside Lumber Company. He filed products liability actions against two manufacturers of equipment involved in the accident. By July, 1981, both actions were settled for a total of $275,000.

EBI, as the. paying agency, claimed a lien on the settlement proceeds pursuant to ORS 656.593(1)(c), which allows a carrier to retain certain amounts from third party recoveries. That statute provides in part:

“* * * The proceeds of any damages recovered from an employer or third person by the worker or beneficiaries shall be subject to a lien of the paying agency for its share of the proceeds as set forth in this section and the total proceeds shall be distributed as follows:
<<* * * * *
“(c) The paying agency shall be paid and retain the balance of the recovery, but only to the extent that it is compensated for its expenditures for compensation, first aid or other medical, surgical or hospital service, and for the present value of its reasonably to be expected future expenditures for compensation and other costs of the worker’s claim under ORS 656.001 to 656.794. * * *’1

A dispute arose regarding the amount EBI was entitled to reserve for expected future expenditures on behalf of claimant, because claimant contended that the amount should be reduced to present value. Claimant requested that [342]*342the Board order EBI to produce documents relating to interest rates available to it; the request was denied. Following the settlement in the third party action, claimant and EBI entered into an “Agreement and Stipulation” which provided, inter alia:

“Pursuant to ORS 656.593 Employee Benefit Insurance Company claims a lien in said settlement in the sum of $55,630.84 for monies advanced and $40,361 for expected future expenditures.”

It was stipulated that claimant’s counsel would retain $45,000 of the settlement proceeds in a trust account pending resolution of the dispute by the Workers’ Compensation Board.

Pursuant to ORS 656.593(1)(d) the Workers’ Compensation Board resolved the dispute. At the hearing, EBI claimed a distribution from the proceeds of the settlement in the amount of $68,545 in addition to the $55,630.84 already received pursuant to the agreement. The claimed amount includes $43,844 for future medical expenses and $24,701 for time loss payments made and expected to be made to claimant pursuant to ORS 656.728. $21,988.34 of the latter amount represents time loss payments made by EBI before the “Agreement and Stipulation.” The Board found that EBI had proved anticipated future medical costs of $37,675 and held that EBI was not entitled to reimbursement for the claimed time loss payments made before the stipulation, because they were not included in the agreement as a part of the lien. EBI was entitled, the Board said, to reimbursement for any time loss payments made after the stipulation, but the total amount of the lien could not exceed the stipulated figure of $40,361 for future medical expenses and time loss. The Board also held that the reserve for future expenses did not have to be reduced to its present value.

Claimant assigns as error the Board’s refusal to reduce the reserve to present value. EBI, in its cross-appeal, argues that it should be entitled to recover all time loss payments whenever made and that it is not bound by the stipulated amount of the lien or responsible to reimburse the Department. We have jurisdiction to consider appeals of Board orders regarding such distributions. Schlecht v. SAIF, 60 Or App 449, 653 P2d 1284 (1982).

[343]*343We first consider claimant’s appeal. He argues that the amount paid to the insurer as its “reserve” for expected future expenditures should be reduced to present value, i.e., the amount of money which, if invested now at available interest rates, would yield the total amount of money required for future expenditures relating to his claim. He relies principally on the wording of the statute, which provides that the insurer shall be paid

“* * * the present value of its reasonably to be expected future expenditures for compensation and other costs of the worker’s claim * * ORS 656.593(l)(c). (Emphasis supplied.)

Claimant argues that fairness requires that the insurer only be paid as much now as it will cost to maintain a fund to meet future expenses. Without reduction to present value, claimant contends, the insurer could invest its reserve at a high rate of return and reap an amount far greater than required to meet its expenses, thereby receiving a windfall that properly belongs to claimant. He asserts that such a windfall should not be the result of a claimant’s pursuit of a third party action.

EBI argues that the words “present value” in the statute mean “current cost.” It contends that the current practice among carriers is for estimates of future expenses to be made according to the values of medical care and other expenses in today’s market, without figuring in likely increases in the cost of such services due to inflation. It argues that, even if inflation were taken into account, figuring the reserve on a present value basis would produce substantial administrative problems. The length of claimant’s course of medical treatment, EBI argues, is speculative, and the carrier bears the risk that the medical problems will be greater than or occur sooner than anticipated. It argues that claimant’s interpretation of the statute will put the carrier to the further risk that available interest or investment return rates will drop and that unanticipated needs of claimant may consume the principal before it can yield a return sufficient to cover the carrier’s expenses.

We conclude that the statute requires the reserve for future expenses to reflect a reduction to actuarial present value. The statute is clear; the words “present value” should be given their natural, plain and obvious meaning. See Perez v. [344]*344State Farm Mutual Ins. Co., 289 Or 295, 613 P2d 32 (1980). EBI’s interpretation contradicts the normal meaning of the term.2 The statute refers to “present value,” not “present cost.”

Such a reduction of damages is common practice. Although we are unaware of an Oregon case holding that the amount of a damage award for anticipated medical expenses should be reduced to present value, it has been held that other kinds of damage awards must be so reduced. See, e.g. Osborne v. Bessonette/Medford Mtrs.,

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Cite This Page — Counsel Stack

Bluebook (online)
679 P.2d 301, 67 Or. App. 339, 1984 Ore. App. LEXIS 2799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denton-v-ebi-companies-orctapp-1984.