AMERICAN BLDG. MAINT. v. McLEES, 64 Or. App. 602 (1983)

669 P.2d 375

WCB No. 81-02113; CA A25521Oregon Court of Appeals.Argued and submitted March 7, 1983
Resubmitted In Banc August 3, 1983 Affirmed September 21, 1983 Reconsideration denied November 4 Petition for review allowed November 22, 1983 (296 Or. 120) See 296 Or. 772, 679 P.2d 1361 (1984)

In Banc

Judicial Review from Workers’ Compensation Board.

Ridgway K. Foley, Jr., Portland, argued the cause for petitioner. With him on the brief was Schwabe, Williamson, Wyatt, Moore Roberts, Portland.

Peter McSwain, Eugene, argued the cause for respondent. On the brief was David C. Force, Eugene.

WARDEN, J.

Affirmed.

Rossman, J., dissenting.

Page 603

Page 604

WARDEN, J.

In this workers’ compensation case, we are asked to decide whether Oregon law requires a referee to consider a previous Veterans’ Administration (VA) disability award when determining the amount of a later Oregon workers’ compensation award for injury to the same portion of the body. Both the referee and the Board concluded that claimant’s VA compensation should not be considered in calculating his disability award.

Claimant first injured his knee while playing basketball in the United States Marine Corps. He was discharged from the service with a 10 percent disability and subsequently underwent surgeries in 1974 and 1975. In November, 1977, as a result of its continuing yearly evaluations, the VA increased his disability award to a total of 20 percent. He reinjured his knee on April 6, 1977, while employed by petitioner. The Evaluation Division awarded 15 degrees for 10 percent loss of his right leg.

The findings of the Evaluation Division were reversed by the referee, who awarded 45 percent loss of the right leg equal to 67.5 degrees. The referee also held that claimant’s VA compensation should not be considered in calculating his workers’ compensation award. The Board affirmed the referee, holding that the term “compensation” found in ORS 656.222 is limited by ORS 656.005(9)[1] to benefits provided pursuant to Oregon Workers’ Compensation Law.

This case presents a narrow question of statutory construction. ORS 656.222 provides:

“Should a further accident occur to a worker who is receiving compensation for a temporary disability, or who has been paid or awarded compensation for a permanent disability, his award of compensation for such further accident shall be made with regard to the combined effect of his injuries and his past receipt of money for such disabilities.”

Page 605

The sole issue in this appeal is whether “compensation” as it is used in this statute includes benefits received from the VA.

In Nesselrodt v. Compensation Department, 248 Or. 452, 435 P.2d 315 (1967), the court applied ORS 656.222 to reduce an award of permanent partial disability of 100 percent loss of function of an arm by the percentage of permanent partial disability the claimant had been awarded previously for an earlier injury to the same arm. Both injuries were covered by Oregon’s workers’ compensation law. In Nesselrodt, the Supreme Court recognized that it had held in Green v. State Ind. Acc. Com., 197 Or. 160, 251 P.2d 437, 252 P.2d 545 (1953), that ORS 656.222 did not apply to unscheduled permanent partial disabilities.

In Harris v. SAIF, 55 Or. App. 158, 637 P.2d 1292 (1981), this court, without reference to Nesselrodt or Green, purported to apply ORS 656.222 to successive unscheduled injuries, the earlier of which was compensated under California workers’ compensation law.[2] Harris is doubtful authority in view of the Supreme Court’s holding in Green that ORS 656.222 does not apply to successive unscheduled injuries, even when both are covered by Oregon workers’ compensation statutes.

We are left with the conclusion that ORS 656.222 applies only to successive awards for disability for injuries to the same scheduled member — those enumerated in ORS 656.214(2) through (4) — when both awards are made pursuant to ORS ch 656, the Oregon Workers’ Compensation law. Our reading of ORS 656.005(9) confirms that conclusion. Accordingly, we hold that “compensation” as that term is used in ORS 656.222, does not include disability benefits received from the VA.

Affirmed.

Page 606

ROSSMAN, J., dissenting.

If we were deciding this case in a vacuum, I might well be able to agree with the majority’s conclusion that ORS 656.222
does not provide for consideration of VA compensation in calculating a workers’ compensation award. However, we are bound by our earlier decision in Harris v. SAIF, 55 Or. App. 158, 637 P.2d 1292 (1981). The majority does not attempt to distinguish Harris but merely states that it “is doubtful authority in view of the Supreme Court’s holding in Green [v. State Ind. Acc. Comm., 197 Or. 160, 251 P.2d 437, 252 P.2d 545
(1953)].” Green was decided in 1953, 24 years before this court’s decision in Harris. The majority appears to assume that Chief Judge Joseph wrote Harris without giving due consideration to the established law. I cannot agree with their assumption, and I do not believe Harris is distinguishable from this case. There is no legislative, judicial or logical reason for distinguishing between federal awards for injuries and state awards for injuries. Accordingly, in this case, I would hold that a prior veteran’s disability award should be given due consideration under ORS 656.222, when a claimant later seeks a workers’ compensation award for injury to the same portion of the body.

Therefore, I must respectfully dissent.

Joseph, Chief Judge, and Buttler and Warren, Judges, join in this dissent.

Page 607