SAIF Corp. v. Frias

8 P.3d 1005, 169 Or. App. 345, 2000 Ore. App. LEXIS 1337
CourtCourt of Appeals of Oregon
DecidedAugust 23, 2000
Docket97-03188; CA A101756
StatusPublished
Cited by2 cases

This text of 8 P.3d 1005 (SAIF Corp. v. Frias) 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
SAIF Corp. v. Frias, 8 P.3d 1005, 169 Or. App. 345, 2000 Ore. App. LEXIS 1337 (Or. Ct. App. 2000).

Opinion

ARMSTRONG, J.

Employer seeks review of an order of the Workers’ Compensation Board awarding claimant temporary disability benefits. Employer assigns error to the Board’s exclusion of periods during which employer had no work for claimant from the calculation of claimant’s average weekly wage. OAR 436-060-0025(5)(a)(A). We review for errors of law and reverse.

Most of the relevant facts are not in dispute. Claimant was employed as a construction worker for employer. The hours claimant worked were somewhat irregular. After he had been working for employer for about seven months, claimant slipped and fell from a roof while at work. The fall caused a fracture of one of his thoracic vertebrae, and claimant submitted a claim for temporary disability compensation. Employer accepted the claim.

Originally, employer calculated claimant’s time loss rate based on a 40-hour work week. Because claimant’s hourly wage was $12, his average weekly wage under employer’s initial calculation was $480.1 Apparently, employer initially assumed that claimant worked all 52 weeks of the year, which would make his yearly gross income $24,960. However, a few months after the initial acceptance, employer notified claimant that it had determined that he was entitled to a lower level of benefits than he had been receiving. Part of the reason for the change was employer’s realization that claimant had been employed for only part of the year, from May through the beginning of December, during which he had earned only $9,300 in gross wages. Employer divided that gross income by the number of weeks that claimant had worked for employer, which employer calculated to be 31.6 weeks, to produce an average weekly wage of $294.30 rather than $480. In calculating the number of weeks that claimant had worked for employer, employer [348]*348included in the calculation two time periods in which it had no work for claimant and one in which claimant was on vacation.2 Including the vacation period and the two periods in which employer had no work for claimant as part of claimant’s employment reduced claimant’s average weekly wage, because claimant earned no wages during those periods.

Claimant sought a hearing to challenge the reduction in his benefits. His principal contention at the hearing was that the periods during which he did no work for employer should be excluded under OAR 436-060-0025(5)(a)(A) from the calculation of his average weekly wage, because those periods constituted extended gaps in his employment.3 The administrative law judge (ALJ) agreed with claimant and ordered employer to recalculate claimant’s temporary disability benefits based on an employment period that excluded the weeks in which claimant did no work for employer. Employer sought review, and the Workers’ Compensation Board affirmed the ALJ, noting that, cumulatively, the gaps in claimant’s employment amounted to 15 percent of his total employment and concluding that the gaps were therefore “extended.”4

On review, employer argues that the Board erred in concluding that the two periods during which employer had no work for claimant were “extended gaps” under OAR 436-060-0025(5)(a)(A) and therefore subject to exclusion from claimant’s weekly wage calculation. Employer challenges the Board’s method of determining whether the gaps in a claimant’s employment are extended. To do so, the Board adds up all the gaps during the preceding year (or during a worker’s employment if less than a year) and then compares the sum to the span of the preceding year (or to the period of employment). If the sum of the gaps comprises a sufficiently high [349]*349percentage of the whole, then the Board deems the gaps “extended” and does not include them in the weekly wage calculation. Apparently, the Board does not have a set cutoff below which it will not consider a sum of gaps to be extended; it simply makes the determination on a case-by-case basis in light of the percentages that it has previously viewed as extended.

If employer’s position on appeal were accepted, claimant’s average weekly wage would be $325.17, based on employer’s stipulation to the Board that the vacation period was an extended gap. Under that stipulation, the vacation period of three weeks would be subtracted from the 31.6 total weeks of employment, leaving 28.6 weeks of employment. The gross earnings of $9,300 would then be divided by 28.6, making claimant’s average weekly wage $325.17. On the other hand, if we accepted claimant’s view that all of the periods of nonwork constitute an extended gap, his average weekly wage would be $394.07 ($9,300 in gross wages divided by 23.6 weeks of employment).

OAR 436-060-0025(5)(a)(A) provides, in part:

“(5) The rate of compensation for workers regularly employed, but paid on other than a daily or weekly basis, or employed with unscheduled, irregular or no earnings shall be computed on the wages determined by this rule. * * *
“(a) For workers employed seasonally, on call, paid hourly, paid by piece work or with varying hours, shifts or wages:
“(A) Insurers shall use the worker’s average weekly earnings with the employer at injury for the 52 weeks prior to the date of injury. For workers employed less than 52 weeks or where extended gaps exist, insurers shall use the actual weeks of employment (excluding any extended gaps) with the employer at injury up to the previous 52 weeks.”

OAR 436-060-0025 was promulgated by the Director of the Department of Consumer and Business Services (Director). We previously held that an earlier, similar version of the rule comported with the legislative intent of ORS 656.210(2)(b)(A) that “ ‘[t]he benefits of a worker who incurs an injury shall be based on the wage of the worker at the time of injury.’ ” Hadley v. Cody Hindman Logging, 144 Or App 157, 160-61, [350]*350925 P2d 158 (1996) (quoting ORS 656.210(2)(b)(A)) (emphasis omitted). As we explained in Hadley, the Board’s function in reviewing cases to which OAR 436-060-0025 applies is to “apply the methods prescribed by the Director in accordance with the intent of the legislature.” Id. at 162. ORS 656.210(2) delegates no authority to the Board to do otherwise. Id. at 161.

We interpret administrative rules according to their plain meaning, considering the text of the rule in context. SAIF v. Fitzsimmons, 159 Or App 464, 468, 978 P2d 404 (1999), rev den 329 Or 589 (2000). The dispute in this case centers on the meaning of the term “extended gaps.”5 “Gap” means “a break in continuity: INTERVAL, HIATUS.” Webster’s Third New Int’l Dictionary, 935 (unabridged ed 1993). “Extended” means “drawn out in length,” “lengthy,” “protracted,” or “prolonged.” Id. at 804. Finally, “drawn-out” means “stretched to great or greater length * * *[;] made to seem or be longer than desirable or normal.” Id. at 687.

To begin with, we note that nothing in the rule suggests that the gaps in a claimant’s employment, whether extended or not, should be added up and evaluated as a sum.

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Related

Tye v. McFetridge
112 P.3d 435 (Court of Appeals of Oregon, 2005)
Garcia v. SAIF Corp.
95 P.3d 1166 (Court of Appeals of Oregon, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
8 P.3d 1005, 169 Or. App. 345, 2000 Ore. App. LEXIS 1337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saif-corp-v-frias-orctapp-2000.