Tennant v. Lyman Slack Chevrolet

794 P.2d 1248, 102 Or. App. 470, 1990 Ore. App. LEXIS 698

• Court: Court of Appeals of Oregon
• Decided: July 18, 1990
• Docket: WCB No. 87-00760; CA A50926
• Status: Published

Opinions

NEWMAN, J.

Claimant seeks review of an order of the Workers’ Compensation Board that denied his claim for his first three days of temporary total disability. We affirm.

Claimant, an auto mechanic, sustained a compensable injury to his neck on September 25,1985. As a result of the injury, he left work during that work day and was absent from work on September 26 and 27, on October 23 and 24 and on November 18 and 27. On January 6,1986, his treating doctor ordered him off work on account of the injury, and he was unable to return to work as an auto mechanic thereafter. After January 6, 1986, he missed at least 14 consecutive days of work as a result of the injury. He was not declared medically stationary until October 28,1986. The referee awarded him 30 percent unscheduled permanent partial disability.

ORS 656.210(3) provides:

“No disability payment is recoverable for temporary total disability suffered during the first three calendar days after the worker leaves work as a result of the compensable injury unless the total disability continues for a period of 14 days or the worker is an inpatient in a hospital. If the worker leaves work the day of the injury, that day shall be considered the first day of the three-day period.”

The referee held:

“The next issue concerns the claimant’s entitlement to three days of time loss. The claimant argues that the time loss should have been paid as soon as he missed 14 days of work. ORS 656.210(3) provides that no disability payment is recoverable for temporary total disability suffered during the first three calendar days after the worker leaves work as a result of the compensable injury unless the total disability continues for a period of 14 days. The claimant was not off work for 14 consecutive days until January 6, 1986. The claimant’s request for time loss prior to missing 14 consecutive days is denied.” (Emphasis supplied.)

The Board affirmed and adopted the order of the referee.

Claimant assigns as error that the Board denied him

“payment for the first three days of his total disability [September 25, 26 and 27] where his disability continued for more than 14 consecutive days, although this did not occur from the date of injury.”

He argues that ORS 656.210(3) requires payment of temporary total disability for the first 3 days as soon as an injured worker misses a total of 14 days of work as a result of the injury. Alternatively, he argues that, even if the statute requires that a claimant must miss 14 consecutive days as a result of the injury, that 14-day period need not begin with the date of the injury. He asserts that, if the legislature had meant to require that the 14-day period run consecutively from the date of the injury, the statute would have said so.

The Board correctly interpreted ORS 656.210(3), which says that temporary total disability benefits are not recoverable for the first three calendar days after the worker leaves work as a result of the compensable injury unless the total disability “continues for a period of 14 days.” We interpret the word “continues” to mean “to maintain without interruption a condition, course or action.” Websters Ninth New Collegiate Dictionary 284 (1985 ed). As did the Board, we interpret the statute to mean that claimant must miss a continuous period of 14 days, without interruption, from the first day of being off work by reason of a compensable injury in order to receive temporary total disability for the first three days.¹

Affirmed.

1 All that the legislative history shows is that the legislature intended to adopt a 3-day waiting period to save money in benefits and administrative costs in smaller claims. See Minutes, Senate Committee on Labor and Industries, March 8, 1965, 2.