Safeway Stores, Inc. v. Smith
| Decision Date | 04 August 1993 |
| Citation | 122 Or.App. 160,857 P.2d 187 |
| Parties | In the Matter of the Compensation of Heather I. Smith, Claimant. SAFEWAY STORES, INC., Petitioner, v. Heather I. SMITH, Respondent. WCB 91-05062; CA A77600. |
| Court | Oregon Court of Appeals |
Kenneth L. Kleinsmith and Meyers & Radler, Tigard, filed the brief for petitioner.
Daryll E. Klein, Milwaukie, and Francesconi & Associates, Portland, filed the brief for respondent.
Before WARREN, P.J., and EDMONDS and LANDAU, JJ.
Employer seeks review of an order of the Workers' Compensation Board affirming the referee's award of unscheduled permanent partial disability. We reverse.
The only facts necessary to our opinion are that claimant was not employed at the time the determination order was issued, but was employed part time when the order on reconsideration of the determination order issued. In determining claimant's adaptability for purposes of rating disability, the Board considered claimant's work status as of the time the determination order issued. Employer argues that adaptability should be rated as of the date of the reconsideration order. We agree with employer.
Although the Board acknowledged the directive of ORS 656.283(7) to determine disability as of the date the reconsideration order is issued, it nonetheless rated claimant's adaptability as of the date of the determination order. It considered the legislative history of ORS 656.283(7), and concluded that the legislature did not intend that changes in a claimant's work status between the date of the determination order and the date of the reconsideration order should be taken into account in determining adaptability for purposes of rating the extent of disability. It also relied on ORS 656.268(5), which limits the evidence that may be submitted at the reconsideration proceeding. Because evidence of a change in a claimant's work status after the determination order cannot be submitted on reconsideration, the Board reasoned that that change cannot be considered by the referee at a hearing challenging the reconsideration order.
The Board erred. The statutory language is not ambiguous and, therefore, is not open to construction. It directs that the referee shall evaluate the claimant's disability "as of the date of the reconsideration order pursuant to ORS 656.268." Evaluation of disability includes the claimant's adaptability to perform a given job. ORS 656.726(3)(f)(A).
Further, the Board's reliance on ORS 656.268(5) is misplaced. Although the evidence that may be...
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