Nelson v. SAIF Corp.

GILLETTE, P. J., Pro Tempore

Claimant seeks judicial review of a Worker’s Compensation Board order reversing the referee’s decision in claimant’s favor. The issue, one of first impression in Oregon, is whether employer-paid medical insurance and pension benefits should be included in the Workers’ Compensation Act definition of wages in the calculation of benefits. ORS 656.005(27).¹ The Board held that they are not encompassed by the definition. We agree.

Claimant suffered a compensable injury on October 11, 1983. At the time of the injury, he was a member of the Oregon Public Employees Union. Under the union’s negotiated labor contract with the state, he was entitled to employer-paid fringe benefits, including pension benefits and medical and dental insurance. The benefits were provided in lieu of a salary increase. Claimant argues that employer’s contributions to the pension fund and medical and dental insurance should be considered wages for purposes of calculating temporary total disability benefits due as a result of the compensable injury. ORS 656.210.

On review of the referee’s order to include employer paid benefits as wages, the Board stated:

“A general principle of statutory construction states that where general words follow an enumeration of specific items or classes, the general words will be construed as restricted by the specific designation so that they include only items of the same kind or class as those specifically enumerated. State v. Brantley, 201 Or 637 [271 P2d 668] (1954). In ORS 656.005(27) the general phrase ‘or similar advantage received from the employer’ follows a specific enumeration of ‘board, rent, housing [or] lodging.’ Thus, ‘similar advantages received from the employer’ must be of the same class as the specifically enumerated items. In [Morrison-Knudson Const v. Dir. Wkrs. Comp. Prog., 461 US 624, 103 S Ct 2045,76 L Ed 2d 194 (1983)], the court applied this principle to pension contributions.

“ ‘The narrow question is whether these contributions are a “similar advantage” to board, rent, housing or lodging. We hold that they are not. Board, rent, housing or lodging are benefits with a present value that can be readily converted into a cash equivalent on the basis of market values.’ Morrison-Knudson Const. v. Dir. Wkrs. Comp. Prog., supra, 76 L Ed 2d at 199.[²]

“The court concluded that pension benefits are of a different class because they cannot readily be converted into a cash equivalent on the basis of market values. We agree with the analysis and find that contributions to PERS are not ‘similar advantages’ under ORS 656.605(27) and are, therefore, not ‘wages’ under the worker’s compensation statutes.

“Further, the enumerated items in the statute are all benefits received by the employe from the employer. In other words, the employe has an immediate right to use and control them as soon as the employer makes them available. The PERS payments as well as the medical and dental premiums are benefits which are paid by the employer on the employe’s behalf. The employe does not immediately receive them because there is no immediate right to use and control these employer paid benefits. Accordingly, we conclude that neither the PERS contributions nor the medical and dental premiums are ‘similar advantages’ under ORS 656.055(27). Therefore, these employer paid benefits should not be considered as wages in computing claimant’s temporary disability rate.”

We agree with and adopt the Board’s reasoning.

Affirmed.

1 ORS 656.005(27) provides, in pertinent part:

“(27) ‘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 * *

2 Morrison-Knudson Const. v. Dir. Wkrs. Comp. Prog., supra, 461 US at 624, construed section 2(13) of the Longshoremen’s & Harborworkers’ Compensation Act, 33 USC 902(13), which defines wages as

“the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury, including the reasonable value of board, rent, housing, lodging or similar advantage received from the employer * * *.”

In Morrison-Knudson, the Court held that employer contributions required by a collective bargaining agreement of which the worker was a beneficiary are not “wages.”