Reed v. State Accident Insurance Fund Corp. , 63 Or. App. 1 ( 1983 )

JOSEPH, C. J.

The issue in this workers’ compensation case is the amount of claimant’s permanent total disability benefits. The parties stipulated to the facts underlying the award.

Claimant worked full time as a draftsman. He worked 40 hours per week on that job and approximately 8 hours per week overtime. He also worked as a service station attendant about 15 hours per week. He was injured while working at the service station, and it is agreed that he is entitled to permanent total disability benefits. The referee and the Workers’ Compensation Board held that his benefits, calculated pursuant to ORS 656.206, are to be based only on his wages from the part-time employment. Claimant appeals, contending that his benefits should be based on his total wages from both jobs.

Permanent total disability benefits are based on a percentage of wages. ORS 656.206(2). That statute provides that: “ ‘Wages’ means wages as determined under ORS 656.210.” The latter statute, relating to temporary total disability benefits, provides:

“(2) For the purposes of this section, the weekly wage of workers shall be ascertained by multiplying the daily wage the worker was receiving at the time of the injury.”

The statute then includes a formula for determining the weekly wage by multiplying the daily wage by the days the worker is “regularly employed” during a week. The section concludes:

“As used in this subsection, ‘regularly employed’ means actual employment or availability for such employment.”

The Board noted that the term “wage” is not separately defined in either ORS 656.206 or 656.210, and it applied the general definition of that term found in former ORS ese.oosiso):¹

“ ‘Wages’ means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including reasonable value of board, rent, housing, lodging or similar advantage received from the employer. * * *” (Emphasis supplied.)

The Board concluded that that definition “could hardly be more clear in its terms” and held that “when calculating a claimant’s permanent total disability benefits, he will receive benefits based on his wages on the job he was working when injured.”

We concur in the Board’s analysis. ORS 656.005(30) expressly addresses the point in time when wages are to be determined and what is included in that calculation. It does not expressly address whether different wage contracts with different employers should be combined to determine the total wages for benefit calculation. Prior to 1965, permanent total disability benefits were determined on a flat rate based on the number of dependents of an injured worker and were not related to wages earned. The definition of wages in former ORS 656.005(30) has been in effect at least since 1959. See Or Laws 1959, ch 448, § 1. The survival of that definition after the wage base formulation was adopted, Or Laws 1965, ch 285, § 22A, is not necessarily a legislative determination that wages from concurrent employment are not the appropriate wage base for benefits, but the referee noted and claimant concedes that the past practice of the agency has been to award disability benefits based only on wages from the injury-producing employment if more than one employment contract is involved.² The practice reflects a fundamental policy of the compensation system that employers should bear directly or through insurance the cost of injuries to their employes incurred in their service.

Although that policy can indeed involve difficult problems of allocation of responsibility under some circumstances, see Bracke v. Baza’r, 293 Or 239, 646 P2d 1330 (1982), this is not such an instance. This employer was required only to protect this employe against the risk of industrial injury incurred in its employ, and that is all the insurance it was required to buy or that SAIF was required to sell.

Affirmed.

1 Subsequent to claimant’s injury the same definition of wages was renumbered and is presently found in ORS 656.005(27). Or Laws 1981, ch 723, § 3; Or Laws 1981, ch 854, § 2.

2 After the claim was filed in this case, the department adopted OAR 436-54-212(2)®, respecting dual employment:

“(2) The rate of compensation for workers employed with unscheduled, irregular or no earnings shall be computed on the wages determined in the following manner:

«* * * * *

“(f) Employed two jobs, two employers: Use only wage of job on which injury occurred if worker unable to work either job. * * *”

The Board correctly concluded that the regulation did not apply retroactively and instead based its decision on a construction of the statute.