Nero v. City of Tualatin
This text of 873 P.2d 390 (Nero v. City of Tualatin) 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.
Opinion
Claimant seeks review from an order of the Workers’ Compensation Board. He assigns error to the Board’s decision not to award a penalty under ORS 656.268(4)(g), which provides:
“If, upon reconsideration of a claim closed by an insurer or self-insured employer, the department orders an increase by 25 percent or more of the amount of compensation to be paid to the worker for permanent disability and the worker is found upon reconsideration to be at least 20 percent permanently disabled, a penalty shall be assessed against the insurer or self-insured employer and paid to the worker in an amount equal to 25 percent of all compensation determined to be then due the claimant.”
We reverse.
Claimant suffered a work related injury in March, 1991, that affected his lower back and right leg. In November, 1991, employer issued a Notice of Closure that found no permanent disability. ORS 656.268(4)(a). 1 Claimant requested reconsideration by the Department of Insurance and Finance (DIF), ORS 656.268(4)(e), 2 and sought apenalty pursuant to ORS 656.268(4)(g). The order on reconsideration granted claimant an unscheduled award of 12 percent, which was equivalent to a 38.40-degree loss for his back, and a scheduled award of 11 percent, which was equivalent to a 16.50-degree loss for his right leg. The order on reconsideration did not award a penalty.
*461 Subsequently, employer requested a hearing. ORS 656.268(6)(b). 3 At that hearing, claimant renewed his request for a penalty under ORS 656.268(4)(g). 4 The referee reduced claimant’s unscheduled award to 5 percent and eliminated the scheduled award. On review, the Board reinstated the award provided for in DIF’s order. It, too, denied claimant’s request for a penalty. It noted that, although the separate awards are less than 20 percent each, together they are equivalent to 23 percent permanent disability. It then framed the issue as whether the scheduled and unscheduled awards could be combined in order to achieve the 20 percent permanent disability requirement for a penalty under ORS 656.268(4)(g).
The Board concluded that ORS 656.268(4)(g) is ambiguous. It said:
“We do not find that the statute clearly and unambiguously resolves the question, since it does not address the situation where 20 percent permanent disability may be achieved by a combination of scheduled and unscheduled awards.”
When the legislative history proved unhelpful, the Board looked to the director’s rules concerning the reconsideration process. Ultimately, it relied on OAR 436-30-050(13), which provides that, for the purpose of assessing a penalty under ORS 656.268(4)(g),
‘ ‘a worker who receives a total sum of 64 degrees of scheduled and/or unscheduled disability shall be found to be at least 20% disabled.”
Although the Board acknowledged that there could be circumstances in which the director’s rule could be inconsistent with the statute, the Board used it as a basis for its analysis in *462 this case. 5 It then concluded that, because the sum of claimant’s scheduled and unscheduled disability was 54.9 degrees, he was not entitled to a penalty.
We review the Board’s order on review to determine whether it correctly interpreted the statute. ORS 656.298; ORS 183.482(8)(a); PGE v. Bureau of Labor and Industries, 317 Or 606, 608, 859 P2d 1143 (1993). In PGE v. Bureau of Labor and Industries, supra, the court provided an analytical framework for interpreting a statute. In determining the intent of the legislature, we are to examine both the text and context of the statute. The court went on to say:
“In this first level of analysis, the text of the statutory provision itself is the starting point for interpretation and is the best evidence of the legislature’s intent. In trying to ascertain the meaning of a statutory provision, and thereby to inform the court’s inquiry into legislative intent, the court considers rules of construction of the statutory text that bear directly on how to read the text. Some of those rules are mandated by statute, including, for example, the statutory enjoinder ‘not to insert what has been omitted, or to omit what has been inserted.’ ORS 174.010. Others are found in the case law, including, for example, the rule that words of common usage typically should be given their plain, natural, and ordinary meaning.” 317 Or at 610. (Citations omitted.)
The parties agree that DIF’s order increased by 25 percent or more the amount of compensation for permanent disability. Claimant asserts that the language of the statute “indisputably covers situations [when] more than one award combines to meet the requirement of 20 percent disability, or [when] scheduled and unscheduled awards combine to meet the requirement of 20 percent disability” and argues that there is no “hint of ambiguity” in the statute. Employer argues that the statute is ambiguous because it “does not address the situation [of when the] 20 percent permanent disability may be achieved by a combination of scheduled and unscheduled awards.”
We perceive no ambiguity in the language of ORS 656.268(4)(g). ORS 656.005(6) defines a claim as a written *463 request for compensation. Under ORS 656.005(8), “compensation” includes all benefits for a compensable injury.
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Cite This Page — Counsel Stack
873 P.2d 390, 127 Or. App. 458, 1994 Ore. App. LEXIS 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nero-v-city-of-tualatin-orctapp-1994.