State Accident Insurance Fund Corp. v. Casteel

YOUNG, J.

Claimant compensably injured her back and hip. A referee awarded permanent total disability. SAIF requested Board review, and the Board reduced the award to 10 percent unscheduled permanent partial disability. Claimant requested review by this court, and we modified the Board’s order and granted claimant an award of 50 percent unscheduled permanent partial disability. Casteel v. SAIF, 55 Or App 474, 638 P2d 1165 (1982). The issue is whether SAIF is entitled to credit the amounts paid pursuant to the referee’s award of permanent total disability against the final award of 50 percent unscheduled permanent partial disability. The Board held that ORS 656.313(2) prohibits recovery, by offset or other means, of amounts paid pending review.

ORS 656.313 provides:

“(1) Filing by an employer or the insurer of a request for review or court appeal shall not stay payment of compensation to a claimant.

“(2) If the board or court subsequently orders that compensation to the claimant should not have been allowed or should have been awarded in a lesser amount than awarded, the claimant shall not be obligated to repay any such compensation which was paid pending the review or appeal.” (Emphasis supplied.)

OAR 436-54-320 governed the recovery of overpayments of benefits:¹

“Insurers and self insured employers may recover over payment of benefits paid to worker on an accepted claim from benefits which are or may become payable on that claim. Payment of benefits paid during appeal pursuant to ORS 656.313 shall not be recoverable under this section. ” (Emphasis supplied.)

In Bekins Moving and Storage Co. v. Jordan, 68 Or App 57, 680 P2d 392 (1984), we affirmed, per curiam, the Board’s denial of the employer’s request to offset permanent total disability benefits paid claimant pending Board review against the permanent partial disability benefits awarded. The authority for our decision was Hutchison v. Louisiana Pacific, 67 Or App 577, 679 P2d 338 (1984), where we held that, under ORS 656.313, the claimant was entitled to payment of temporary partial disability from the time of the referee’s order and that the insurer was not entitled to an offset even if the referee’s order was later reversed. SAIF’s argument relies entirely on a distinction between “repayment” under ORS 656.313 and an “offset” or “credit.” In Hutchison, supra, and Bekins, supra, we refused to distinguish “offsets” from “repayment” under ORS 656.313(2). We agree with the Board that the legislature, in enacting ORS 656.313, has placed the burden of erroneously ordered compensation paid pending review or appeal on the employer and its insurer. SAIF is not entitled to an offset.

Affirmed.

1 The administrative rule was in effect at the times relevant to this appeal. The current administrative rule is renumbered OAR 436-60-170 and the quoted language has been deleted.