*1 (cid:127)351 petition Argued May September 10, for reversed rehearing 5, 1969 denied November v. LEECH, GEORGIA-PACIFIC Respondent, CORPORATION, Appellant.

458 P. 2d 438 460 P. 2d 359 .argued ap- Eugene, for E. the cause Wm. Flinn, Wheatley Jaqua, pellant. & On the briefs were Gard- Eugene. ner, argued Haugh, the cause re Portland,

John J. *2 spondent. Atchison, the & Pozzi, On brief were Wilson Tyler and Portland. Marshall, and Justice, Before Chief McAllister, Perry, and Holman, Sloan, O’Connell, Goodwin, Denecke, Justices. J.

GOODWIN, compensation employer appeals award which An 28-year-old if invalid child as the workman’s treated years age purposes of for the child under 18 were a she compensation. computing a widow’s of dispute about the facts. The deceased is no There injured fatally in an industrial accident. He left was totally dependent widow and a invalid as survivors age. years daughter of 656.204, Under ORS com- the widow at the rate of pensation was awarded $110 for allowance was made the per No month. years age. than child was more of the because child, through the award has contested the The widow proceedings statutory and in the circuit administrative construed the statutes in court her favor The court. per additional an month the widow $25.00 allowed and dependency of of the child and duration of for the eligibility 656.204. widow’s ORS. totally question for decision is whether de- a. years age, more who is than 18 of pendent invalid receivé in her own cannot who and can; surviving ¡widow, be' is a eonsidered there

(cid:127)353 of equivalent of a child under as the computing to the widow. purposes award of compensa- Washington, has a In state many respects own, to our similar in tion law provide relief in 1911 were amended statutes us. A similar the kind now before cases of expression elim- state would have intent in this problem in this case. inated the statutory present allocates death bene scheme Our any, surviving spouse, if of the deceased fits first workman. ‹ surviving spouse, If but one there is age, surviving or children under 18 more directly payable to such children until benefits are 18, › or, any they age of if such child is reach the handicapped physically mentally or and unable may reaching upon he continue to work long disability compensation so as his cont draw inues. ﬁ Where there surviving spouse is a or one *3 age of 18, more children under the then the children calculating payments. are included in the widow’s who and who invalid, A child over 18 is an other- ‹ ORS by 656.204(2) spouse, “If the workman is survived a surviving per paid spouse shall the month be until remar $110 riage. payment shall cease at the end of the month in surviving remarriage spouse paid occurs. The also shall the per be $25 for each child of the deceased until such month child becomes years age. 18 of › ORS 656.204(4) “If the workman leaves neither wife nor years age husband, a child under the of 18 other than but one (3) section, per in of this $70 subsection month shall described years age.” paid (Sub until he to each such child becomes custody (3) wife.) children in of a section deals with divorced ﬁ 656.204(8) “If a child is an at invalid ORS time he be payment age, to him shall continue comes while he he person payment If a is entitled to an invalid. remains is an invalid.” invalid, payment shall terminate when he ceases to be- an 656.002(10) ﬂ qualifies dependent,

wise as a ORS payments can receive in Ms own under OES 656.204(5); (cid:176) but when a widow survives, a child can qualify “dependent” payments not as a to receive in right. his own principal

In the ease at bar, the widow is the bene ficiary, governed by 656.204(2). and her award is ORS ineligibility

Given the of the child to claim com pensation right, in her own the trial court felt that the expression 656.204(8) in ORS concern for invalid children could be construed so as to avoid hardship a in this case. opinion

The trial court was of the that, OES 656.204(8) any practical meaning, to have it had to apply payments 656.204(2). to widows under ORS payments But since to a child in a case in which a principal beneficiary by child is the are covered ORS 656.204(4), (8) practical appli- subsection does have ﬂ ORS 656.002(10) “‘Dependent’ any following- means of the any named relatives of a workman whose death results from in jury surviving widow, and who leaves widower or child under age years: age years, of 18 father, Invalid child over the of 18 mother, grandfather, grandmother, stepfather, grand stepmother, son, granddaughter, sister, brother, sister, brother, half half niece nephew, accident, dependent or who at the time of the are part support upon earnings whole or in for their of the work * * man (cid:176) ORS 656.204(5) “If widow, the workman leaves neither years, widower nor child under of 18 but leaves a de monthly payment pendent, dependent shall be made to each equal percent average monthly support actually to 50 re by dependent during ceived such from the workman the 12 months preceding next the occurrence injury, the accidental but payments dependents any total to all case shall not exceed $100 per month. If is under of 18 at the time *4 injury, payment dependent the accidental to the shall cease dependent age. payment such when becomes 18 any dependent shall cease under the same circumstances that dependency injury hap have terminated would pened.” had the not

n subsection payments to beneficiaries cation to of indirect bene- Payments account (4). on to widows 656.204(8), in OES covered have been could ficiaries not. but were (8), when read that subsection do not believe

We ambiguous. subsections, is other with the its context as a from 656.204 ORS assume, reasonable It is person legislature that intended that whole, regardless age, of health, of his state under 18 right any payments in his own not should receive beneficiary. eligible surviving an widow is where a healthy nor an invalid 18, child under neither a Since eligible compensation in would be 18, child under right long survives, as a widow there would his own so any “payments It to” a child in such case. never be 656.204(8) apply appear that can thus ORS would eligible only who for death benefits to a child became spouse had survived the in his own deceased workman. eligible for death

A child benefits under 656.204(5) 656.204(8), has no need for ORS but ORS qualify not follow that a child who does not it does (5) qualified intended to was as a under subsection calculating secondary beneficiary pay the widow’s ments. statutory carry construction to

Seasonable out in proper judicial legislative intent is a dicated function. (1966). 414 P2d S.I.A.C., Didier v. Or But legis situation in here is a what we have apparently payments was to cut off intent lative any child when that on behalf widows reaches Another of 18. intent was to treat under certain children, circumstances, invalid adult as right. in their own beneficiaries *5 age of the invalid child would immaterial if be surviving spouse the deceased workman left no and no age other children under of 18. In the case the where surviving spouse, the workman leaves a or children age legislature’s only of the the 18, however, ex- pressed dependent age intent toward children over the relegate secondary of 18 is to them to a class. may functionally dependent Such children remain for many years reaching pres- after the but 18, the statutory provision ent makes no scheme more for grandchildren it them than does for or other classes secondary 656.002(10). beneficiaries listed in ORS remedy hardship believe We that the for come has to the attention of the administrators compensation proper subject law in this case is a study. may possible for itWhile for the relieving courts to hardship work out a method for statutory presently in this case, scheme as written readily piecemeal judicial does not itself lend to way 656.002(10) amendment. The ORS defines “de pendents,” compensa we cannot affirm an enhanced creating for tion award the widow this case without variety problems of- new with reference to other dependents. classes of

Reversed. dissenting.

O’CONNELL, J., adopt dissenting opinion I would of Mr. Cal- Compensátion lahan, Chairman the Workmen’s construing 656.204(8) ORS Board, include as a ben- eficiary over if the child is an expressed Mr. Callahan invalid. his views the fol- ’ lowing opinion: Leech is not a “Janice under ORS de- 656.002(10) in this case reason that ceased workman left a widow. Hearing places inter an erroneous “The Officer regarding 656.204(8)

pretation when, on ORS payments of com that word pensation he states ‘continue,’ previously There commenced. must have requirement payments of that is reaching age begun prior must have nullify requirement would Compensation the basic construe such purposes Law. of the Workmen’s *6 beneficiaries under 18 are “Children is or not. There such a child is an invalid whether special provision for an invalid no need to have a age 18. child under making (8) purpose a for the is “Subsection beneficiary, if the child is an

child over 18 a long an and as as the child continues invalid, invalid. The payment to him shall continue while remains an invalid. he year old invalid child of Leech, a 28

“Janice Leech, a deceased is a bene- workman, E. Willis ficiary Law and entitled Oregon Compensation Workmen’s as child while an invalid.” remains she might that it is not reasonable assume that

I add legislature put upon intended construction majority opinion leaving by Act children under bears no widow or other relevance dependent over 18 should to whether be en- judgment to benefits. titled the trial court affirmed. should be join in this JJ., dissent. Holman,

Sloan ON PETITION FOR REHEARING *7 John Ilaugh J. and Wilson Pozzi, Port- & Atchison, land, for the petition. Wheatley &

Jaqua, Gardner, Eugene, contra. PER CURIAM.

In petition rehearing, plaintiff urges that we revise our opinion to provide that the portion attorney awarding fees judgment trial court’s of the judg- notwithstanding of the the reversal be affirmed (The increased had trial court the merits. ment on per compensation month because a widow’s $25.00 family presence invalid child over the of an in the attorney years, in fees and had awarded of 18 $1,500.) statu- held that the widow’s We the sum of tory right account of on to additional by did deceased workman left children compensation for children over the to not extend regardless facto condition of de- of their de pendency. holding reduced the trial court’s This by amount fixed award to widow to the board prior the circuit court review. 656.313, to Under ORS payments compensa- entitled the widow was to the by during tion at the rate ordered the trial court pendency appeal pay- to this court; these subject recapture ments are not refundable or in judgment the event the is reversed.

Because of the “vested” nature of the interim payments, plaintiff argues now that the at torney upon judgment fees based the circuit court subject also became vested and not to the usual con sequences upon appeal. argument of reversal This precedent. in cannot be sustained reason or attorney fees were awarded the circuit court 656.386(1), pursuant to ORS which makes such an contingent prevailing award on the claimant’s in an appeal deny- circuit to the court from a board order ing claim. When circuit court is reversed, the (except payments board order is restored for interim placed beyond specifically recapture). The circuit judgment nullity, court effect becomes a and it inappropriate attorney would seem allow fees that *8 had judi- been awarded on the basis of a successful cial judicial review to survive the reversal of that re- announcing view. It was our intent, the reversal of judgment, the trial court’s entirety, to reverse it in its including attorney the award of fees.

Petition denied.