Fletcher v. State Acc. Ins. Fund

• Decision Date: 13 October 1980
• Citation: 617 P.2d 945,48 Or.App. 777
• Parties: In the Matter of the Compensation of Giles L. FLETCHER, Claimant, Petitioner, v. STATE ACCIDENT INSURANCE FUND and Workers' Compensation Department, Respondents. WCB 79-1407; CA 16868.
• Court: Oregon Court of Appeals

Page 945

617 P.2d 945

48 Or.App. 777

In the Matter of the Compensation of Giles L. FLETCHER Claimant, Petitioner, v. STATE ACCIDENT INSURANCE FUND and Workers' Compensation Department, Respondents.

WCB 79-1407; CA 16868.

Court of Appeals of Oregon.

Argued and Submitted July 21, 1980.

Decided Oct. 13, 1980.

Ann Morgenstern, Portland, argued the cause and filed the brief for petitioner.

Richard D. Barber, Jr., Certified Law Student, Salem, argued the cause for respondent State Acc. Ins. Fund. On the brief were K. R. Maloney, Chief Counsel, James A. Blevins, Chief Trial Counsel, and Darrell E. Bewley, Associate Counsel, State Acc. Ins. Fund, Salem.

No appearance made by respondent Workers' Compensation Dept.

Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.

ROBERTS, Judge.

This is an appeal from a Workers' Compensation Board decision interpreting ORS 656.209. ¹ That statute provides:

"(1) With the authorization of the department, the amount of any permanent total disability benefits payable to an injured worker shall be reduced by the amount of any disability benefits the worker receives from federal social security.

" * * *

"(3) No reduction of benefits shall be authorized pursuant to this section except upon actual receipt of federal social security disability benefits by the injured worker.

" * * *." (Emphasis supplied.)

We take the following facts as stated in the referee's Opinion and Order:

"Claimant began receiving social security benefits in 1974 and was awarded permanent total disability under the Oregon Workers' Compensation Law in March 1977. The offset provisions of ORS 656.209 applied to claimant on July 1, 1978.

"Pursuant to authorization, SAIF applied offset to claimant's compensation beginning in July 1978. The offsets imposed were for varying amount, but it was finally determined and agreed by all parties that the correct amount of offset was $284 a month. The Social Security Administration (SSA) claimed it had overpaid claimant in the past in the amount of $1,616.50 and by letter dated May 8, 1978 indicated it would withhold benefits beginning in June 1978. Claimant testified and, I believe credibly, that he did not receive the letter until September 1978 * * *. The SSA did not pay claimant any benefits from July 1978 through October 1978 and a reduced benefit in November 1978.

"In August 1978 claimant contacted SAIF and informed them that he was not receiving monthly social security payments. SAIF continued to take its offset. In addition, in August 1978 the Fund advised claimant it had overpaid him in July and was reducing his payment by $31.06 a month to recoup the overpayment * * *. It did so for six months * * *. * * * Pursuant to Chapter 117 Oregon Laws 1979 claimant was refunded $199.70 on June 1, 1979. For the present and the past several months claimant has been receiving the correct amount of compensation."

The referee concluded SAIF was not entitled to assert an offset during the months claimant did not actually receive social security benefits. The referee stated:

" * * *

I believe ORS 656.209 provides that a worker must actually receive the social security benefits for the month the offset is claimed. Although theoretically claimant may have received the social security benefits some months or years before, the implementation of the change in the law as applied in this case resulted in claimant having to live through an unanticipated substantial reduction in his monthly income. Workers' compensation is intended to provide for the care and support of injured workers and their families. The actual receipt rule, while as pointed out by the Attorney General's brief, may provide administration problems in some instances, avoids the wide fluctuation in monthly income and resultant financial hardship that would otherwise be the case. * * *

" * * *."

The Board reversed the referee, stating:

" * * * Claimant, in this case, has been paid all the compensation he is entitled to. Claimant was overpaid or 'paid in advance' his Social Security benefits. The Social Security Administration acted by withholding payment of additional benefits from July 1978 through October 1978 and made only a part payment of benefits in November 1978 to balance out what claimant had been paid with what he was entitled to. The end result was that claimant was paid for this time in advance and the Fund was entitled to treat this claim as if claimant had been paid these Social Security benefits during this period. * * * "

We reverse the Board.

We conclude the language of the statute is clear and unambiguous and therefore does not require a determination of legislative intent. State v. Cooney, 36 Or.App. 217, 584 P.2d 329; School Dist. 24J v. Employment Div., 29 Or.App. 897, 565 P.2d 1102 (1977); Speck Restaurant v. OLCC, 24 Or.App. 337, 545 P.2d 601 rev. den., dismissed for want of a federal question 429 U.S. 803, 97 S.Ct. 35, 50 L.Ed.2d 64 (1976). Terms of a statute, unless defined in the statute, are to be construed in accordance with their ordinary meaning. Naumes of Ore. v. Employment Div., 23 Or.App. 57, 541 P.2d 141 (1975); Piazza v. Clackamas Water District, 21 Or.App. 469, 535 P.2d 554 (1975); Clatsop County v. Morgan, 19 Or.App. 173, 526 P.2d 1393 (1974). We hold that the words "actual receipt" means, in the context of this statute, that a person has in fact received social security benefits.

SAIF argues that this claimant did in fact receive the benefits and that therefore SAIF is entitled to an offset accordingly. We conclude, however, that as to this claimant the question is not the interpretation of the language of the statute but whether the statute operates retroactively. Generally, in the absence of any indication to the contrary legislative acts are not to be applied retroactively. Held v. Product Mfg. Co., 286 Or. 67, 592 P.2d 1005 (1979); Joseph v. Lowery, 261 Or. 545, 495 P.2d 273 (1972). We find no indication that this statute is to be applied retroactively.

In the case of injuries incurred prior to the effective date of the Act, October 4, 1977, the change in the way benefits were to be paid was effective July 1, 1978. Claimant's injuries were incurred prior to the effective date; therefore July 1, 1978 is the date the provisions of the Act are effective as to him. Claimant received overpayments from social security before the effective date of the statute allowing an offset....