Fertig v. STATE COMPENSATION DEPARTMENT , 254 Or. 136 ( 1969 )

O’CONNELL, J.,

dissenting.

According to the majority opinion if a workman loses both hands, thus suffering permanent total disability, and dies before an award is made his widow is entitled to benefits under the Workmen’s Compensation Act but if a workman loses one hand, thus suffering permanent partial disability, and dies before the award is made his widow gets nothing.

There would appear to be no reason for - the legislature to make a distinction between these two types of cases. The majority opinion does not offer • any reason other than the difference in the wording of ORS 656.208 and ORS 656.218. It is reasoned- that since ORS 656.218 expressly refers to a workman “receiving monthly payments” and provides for the continuance of such payments this necessarily presupposes that an award had already been made. In the usual ease the award will have been made before the workman’s death and he will, therefore, be “receiving monthly payments.” Since this is so, it is very likely that the draftsman of the section was simply reciting the normal case when the section would be operative. I do not regard the language as an expression of a legislative intent to exclude cases in which the workman was not receiving payments before his death. ORS , 656.218 can be interpreted .as if it read, “In case of the death of a workman entitled to receive monthly payments” etc. I would so interpret the statute and affirm the trial court.

Pozzi, Wilson & Atchison, Donald B. Wilson and Baymond J. Conboy, Portland, filed a brief in support of the petition. No appearance contra. Before Perry, Chief Justice, and McAllister, Sloan, O’Connell, Goodwin, Denecke and Holman, Justices.