Saif Corp. v. Herron

WARREN, J.

Employer seeks review of a Workers’ Compensation Board order holding that claimant’s award of scheduled permanent partial disability (PPD) should be paid at the rate of $305 per degree, pursuant to ORS 656.214(2), as amended by Or Laws 1990, ch 2, § 7.¹ We reverse.

Claimant suffered a compensable injury in June, 1989. Employer accepted the claim, and it was closed by a determination order in January, 1990, with an award of 8.10 degrees scheduled PPD. By a stipulated order dated June 4, 1990, claimant was awarded an additional 6.75 degrees scheduled PPD. The Board determined that claimant should be paid $305 per degree for that additional award because of the 1990 amendment to ORS 656.214(2), rather than $145 per degree, which was the rate at the time of the injury.

ORS 656.202(2) provides that,

“[e]xcept as otherwise provided by law, payment of benefits for injuries or deaths under this chapter shall be continued as authorized, and in the amounts provided for, by the law in force at the time the injury giving rise to the right to compensation occurred.” (Emphasis supplied.)

In May, 1990, the legislature enacted a revision of the workers’ compensation laws, including an amendment to ORS 656.214(2) that increased the rate of compensation for scheduled disabilities to $305 per degree.

Oregon Laws 1990, chapter 2, section 54, provides:

“(1) Except for amendments to ORS 656.027, 656.211, 656.214(2) and 656.790, this 1990 Act becomes operative July 1, 1990, and notwithstanding ORS 656.202, this 1990 Act applies to all claims existing or arising on and after July 1, 1990, regardless of date of injury, except as specifically provided in this section.

“ (2) Any matter regarding a claim which is in litigation before the Hearings Division, the board, the Court of Appeals or the Supreme Court under this chapter, and regarding which matter a request for hearing was filed before May 1, 1990, and a hearing was convened before July 1,1990, shall be determined pursuant to the law in effect before July 1, 1990.

“(3) Amendments by this 1990 Act to ORS 656.214(5), the amendments to ORS 656.268(4), (5), (6), (7) and (8), ORS 656.283(7), 656.295,656.319,656.325,656.382 and 656.726 shall apply to all claims which become medically stationary after July 1, 1990.” (Emphasis supplied.)

Section 55 provides:

“This Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this Act takes effect on its passage.”

The parties agree that May 7,1990, is the date when the law was passed. They also agree that the amendments to ORS 656.214(2) became effective on that date. The issue is whether amended ORS 656.214(2) applies to awards made after the effective date of the amendment, regardless of the date of injury, or whether the applicable rate is the one in effect at the time of the injury.

The Board concluded that section 54 is unambiguous:

“Section 54(1) consists of two grammatically independent clauses. The first clause establishes the operative date (when those sections become effective) of four particular amended sections, ORS 656.027, 656.211, 656.214(2) and 656.790. The second independent clause establishes the applicability (to which claims the amendments apply) of the entire 1990 Act. Clearly, the subject matter of the two clauses is entirely different. We find no grammatical or logical reason to conclude that a portion of the first independent provision of Section 54(1), fixing the operative date of four specific sections, should modify the clearly stated provision controlling the applicability of the entire 1990 Act.

“We can discern no other reasonable reading of Section 54(1) than the one we have stated. It is clear, unambiguous and susceptible on its face to only one reasonable reading.” (Footnotes omitted; emphasis in original.)

Notwithstanding its conclusion that the statute is clear on its face, the Board considered the legislative history and found that it was not “clearly contrary to the section’s plain meaning.” Thus, it concluded that the amendment to ORS 656.214(2) applies to all awards of scheduled disability made on or after May 7, 1990, regardless of the date of injury.

Employer argues that the Board’s analysis is grammatically and logically flawed. It asserts that the initial phrase, “[e]xcept for amendments to ORS * * * 656.214(2),” can just as well modify both of the independent clauses: the effective date clause and the applicability clause. It points out the illogic of the Board’s reading, which would have the amendment to ORS 656.214(2) apply to any scheduled disability award made after May 7, but not unless the claim continued to exist on July 1.

In construing a legislative enactment, our first task is to discern the legislature’s intent. See ORS 174.020. If the language is unambiguous, ordinarily we apply it according to its plain meaning, without resort to legislative history. Satterfield v. Satterfield, 292 Or 780, 782, 643 P2d 336 (1982). If, however, the legislative purpose is unclear from the language of the enactment, we may consider legislative history as an aid in determining legislative intent. State v. Leathers, 271 Or 236, 531 P2d 901 (1975).

We agree with employer that, grammatically, subsection (1) can reasonably be read in more than one way. The initial phrase, “[e]xcept for amendments to * * * ORS 656.214(2),” could modify either the entire sentence or only the first clause, which deals with the operative date of the 1990 act. Although it is easier to read it in the way that the Board did, it can also be read as employer asserts.² Therefore, we turn to the legislative history to determine what the legislature intended by the language that it used.

The first pertinent discussion of sections 54 and 55 was at the May 4, 1990, meeting of the Interim Special Committee on Workers’ Compensation. Representative Man-nix explained changes from an earlier draft to the draft that was finally enacted:

“I have been advised that there is some — there isn’t a change here — changes that — except for amendments to [ORS 6561.027, [ORS 656].211, [ORS 656].214(2), and [ORS 656].790: Those provisions are things which the group —Mahonia Hall group wanted to go into effect immediately— includes the Industrial Advisory Council to go into effect immediately. They’re also using, as an operative date, the standard that’s in .21, excuse me, that’s in [ORS 656].202 — the date of injury as the operative date for those provisions. That — in other words, we’re following the standard for that provision and then you jump into, after that exception, the Act becomes operative July 1 and it applies to all claims existing or arising on or after July 1, regardless of date of injury. We have the exception for litigation and then we have the exception for, what I’ll call claims processing —where medically stationary date is the provision; that is, you’ve got an open claim, it becomes medically stationary after July first — then those new laws will kick in. * * * And believe it or not that explanation reflects something that is actually simpler than it was in the original bill.” Tape Recording, Interim Special Committee on Workers’ Compensation, May 4, 1990, Tape 21, Side B at 192-225. (Emphasis supplied.)

The Board discounted that explanation, because Mannix used the term “operative date” when talking about the amendment to ORS 656.214(2). It concluded that he could not have meant to say “applicability date” instead, because both of those terms have precise legislative meanings. It reasoned that it was not authorized to rewrite legislative history and therefore disregarded that statement. Although neither we nor the Board is at liberty to rewrite legislative history, our task is to determine what the legislature intended by its use of certain words. In context, it is apparent that Mannix merely misspoke when he used the term “operative date” in relation to the four provisions in the exception phrase. He said, “That’s in [ORS 656].202 — the date of injury as the operative date for those provisions. ’ ’ ORS 656.202 has nothing to do with the operative date of anything, but has only to do with the applicability of the law to certain claims. Mannix’s explanation of section 54, except for his misuse of the term “operative date,” indicates that the drafters intended the section to be read as employer asserts.

Mannix again explained the provisions during the House floor debate:

“Finally, I should mention in terms of the effective dates, we’ve tried to come up with a three-tiered process here. The law will be effective on passage, but only four sections are effective immediately and they’re subject to the standards of 656.202. Those four sections are 656.027, .211, .214 sub (2), and . 790. Otherwise we have a general clause that says this law will be operative July 1, 1990, with a couple of specific exceptions, one having to do with claims which become medically stationary after July 1,1990. It allows those claims to then be processed under the new standards. And the other exception is the litigation exception. For once, our legislature has recognized that there are actually tens of thousands of cases in litigation and we’re not going to reinvent the wheel on those cases. We will let those cases proceed under the standards in which they were tried, so that you, again, will not be creating more work for lawyers.” Tape Recording, House Special Session, Floor Debate, May 7, 1990, Tape 2, Side A at 243-60. (Emphasis supplied.)

The emphasized statement makes clear that the amendments that were to be effective immediately on passage, including the amendment to ORS 656.214(2), are subject to the date of injury rule of ORS 656.202 and that the remainder of the amendments generally will be “operative” July 1. Mannix used the term ‘ ‘operative” in a way that is consistent with the language of section 54 but then said that the operative date is subject to two specific exceptions: subsections (2) and (3). Subsections (2) and (3) relate only to the applicability of the new act to certain claims; they have nothing to do with the operative date of the new act. Thus, although Mannix’s language was inaccurate, it is possible for us to glean his meaning.

Finally, during the Senate floor debate, Senator Kitzhaber said:

“The Act becomes operative July first, 1990 for all claims existing or arising on or after that date, regardless of the date of injury, except any claim already being heard in the Hearings Division or before the Board or courts which was filed before May first and had a hearing before July first shall be determined under the prior or existing law. The new earning capacity definition, the full application of the standards, the new procedures for terminating time loss, rating of impairment, including the medical arbiters, the reconsideration process and the independent medical evaluations shall apply to all claims which become medically stationary after July first of 1990. Section 55 makes all other sections of the bill, including the labor-management committee provisions and the increase in scheduled permanent partial disability, go into effect upon passage of the bill and will apply to injuries which occur after the effective date of this Act. ” Tape Recording, Senate Special Session, Floor Debate, May 7,1990, Tape 3, Side A at 79-92. (Emphasis supplied.)

That statement, too, consistently shows an intent to apply the increase in scheduled disability only to injuries that would occur after the effective date of the act, May 7, 1990. However, the Board also found fault with Kitzhaber’s comments, saying that they contradicted statements by Mannix and what it considered the clear language of section 54(1). We have already said that section 54(1) is not clear. Furthermore, we see no contradiction between the legislators’ statements. Kitzhaber said that, under section 55, the act was to become effective immediately on passage. Pursuant to section 54, however, only four amendments were to become operative on that date. Those amendments, he explained, were to apply to injuries that occur after the effective date of the act. He explained that the amendments that would become operative on July 1 would apply to all claims existing on that date, regardless of the date of injury rule in ORS 656.202. That reading of sections 54 and 55 is consistent with Mannix’s explanations.³

Our reading makes all parts of section 54 reasonable and harmonious. See Cal-Roof Wholesale v. Tax Com., 242 Or 435, 443, 410 P2d 233 (1966); Rivers v. SAIF, 45 Or App 1105, 1108, 610 P2d 288 (1980). First, all of the provisions that became operative on July 1, 1990, which includes all amendments other than those excepted by the initial phrase of subsection (1), apply to claims existing or arising on and after that same date, July 1, except as provided in subsections 54(2) and (3). The amendments that became operative May 7 are subject to ORS 656.202, which requires application of the law that existed at the time of the compensable injury. Thus, a scheduled disability resulting from an injury that occurred on or after May 7 will be compensated at $305 per degree, but an injury that occurred before May 7 will be compensated at the old, lower rate.

That reading also harmonizes with subsection 54(2). Whether or not “the law in effect before July 1,” referred to in that subsection, was intended to include the amendments that became effective May 7, our reading of subsection 54(1) consistently applies the law in effect on the date of injury for cases in litigation and for determining the rate of compensation for all other awards of scheduled disability, whether made before, on or after May 7.

We conclude that the legislature intended the date of injury rule of ORS 656.202 to apply to the amendment to ORS 656.214(2), so that the increased rate of compensation applies only to injuries that occurred on or after May 7, 1990. Claimant is entitled to be paid PPD at the rate in effect as of the date when he was injured, $145.

Because of our disposition of the petition, we need not address claimant’s cross-petition.

Reversed and remanded for reconsideration on petition; affirmed on cross-petition.

1 Department of Insurance and Finance (DIF) has intervened, pursuant to ORAP 4.40, to defend its rule, OAR 436-35-010(5), which provides that the 1990 amendment to ORS 656.214(2) applies only to injuries sustained after the effective date of the amendment. DIF joined in employer’s brief and does not raise any independent arguments. We will not separately discuss DIF’s position.

2 Claimant asserts that the final phrase of subsection (1), “except as specifically provided in this section,” somehow clarifies that the legislature intended the opening exception phrase to apply only to the operative date clause. We are not persuaded. The final phrase could be an indication that the only exceptions to the applicability clause are the two exceptions that follow that language, contained in subsections (2) and (3). However, it could also be an acknowledgment of the exceptions in subsections (2) and (3) and the exception in the initial phrase of subsection (1). The phrase does nothing to clarify the legislature’s intent.

3 The Board also noted that

“[s]ome of the sections which are subject to the exception created by the first clause of Section 54(1), ORS 656.211 and 656.790, are purely administrative in nature. They have nothing to do with a particular claim and, therefore, ORS 656.202 and the dates of injury of a claim are irrelevant to those sections. In other words, the subject matter of the second clause of Section 54(1) has no bearing on ORS 656.211 and 656.790.” (Emphasis in original.)

Even if that were so, it would not mean that the first phrase cannot modify the entire sentence. It merely means that the applicability date clause of the sentence is irrelevant to the two amendments that are unrelated to claims.