In the Matter of the Compensation of Gary D. Sather, Claimant. Gary D. SATHER, Petitioner on Review, v. SAIF CORPORATION and Polk County Farmers-AG West Supply, Respondents on Review.
(Agency No. 10-01494; CA A149547; SC S062466)
IN THE SUPREME COURT OF THE STATE OF OREGON
April 9, 2015
357 Or 122 (2015)
BREWER, J.
En Banc. On review from the Court of Appeals.* Argued and submitted January 13, 2015. Donald M. Hooton, Hooton Wold & Okrent, LLP, Beaverton, argued the cause and filed the briefs for petitioner on review. Holly C. O’Dell, Appellate Counsel, SAIF Corporation, Salem, argued the cause and filed the brief for respondents on review. Sara Ghafouri, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.
The decision of the Court of Appeals is reversed, and the case is remanded to that court for a determination of the merits of the petition for judicial review.
* Judicial review from Amended Opinion and Order from Workers’ Compensation Board dated January 20, 2011. 262 Or App 597, 325 P3d 819 (2014).
The personal representative of claimant’s estate sought to be substituted as the real party in interest for purposes of judicial review of claimant’s workers’ compensation claim. The Court of Appeals held that claimant’s estate was not authorized to pursue a claim to final determination under
The decision of the Court of Appeals is reversed, and the case is remanded to that court for a determination of the merits of the petition for judicial review.
BREWER, J.
The question before us in this workers’ compensation case is whether, under
FACTS AND PROCEDURAL HISTORY
In 2009, claimant sought workers’ compensation benefits for a work-related injury. Before the date of his injury, claimant had preexisting multilevel degenerative disc disease and a history of intermittent low back pain with some bilateral radiation to his legs. SAIF, the employer’s workers’ compensation insurer, accepted a claim for a lumbar strain. Claimant subsequently sought acceptance of a combined condition, which SAIF ultimately denied on the ground that the accepted injury was no longer the major contributing cause of the combined condition. Claimant filed a request for hearing on the denial under
Compensation Board upheld SAIF’s denial, and claimant sought judicial review in the Court of Appeals. Before that court, claimant conceded that the accepted lumbar strain was no longer the cause of his combined condition. However, claimant contended that, in determining the compensability of his claim, the board erroneously had framed the inquiry in terms of whether the accepted condition continued to be the major contributing cause of his disability or need for treatment. In claimant’s view, the proper inquiry was whether his accidental injury continued to be the major contributing cause of his combined condition. Claimant contended that there was no evidence that that injury was no longer the major contributing cause of his disability or need for treatment.
While judicial review was pending before the Court of Appeals, claimant died of causes unrelated to his workplace injury, without a surviving spouse or other beneficiary entitled to a death benefit under
As discussed, the Court of Appeals agreed with SAIF and dismissed the petition for judicial review. That court initially observed that, under the pre-2009 version of the statute, it had held in several cases that the persons entitled to pursue a claim under
The Court of Appeals concluded that a 2009 amendment to
“[T]the only amendment of
ORS 656.218 in 2009 was to subsection (5), by the replacement of the subsection’s former second sentence (‘In the absence of persons so entitled, a burial allowance may be paid not to exceed the lesser of either the unpaid award or the amount payable byORS 656.204 .‘) with a new second sentence—‘In the absence of persons so entitled, the unpaid balance of the award shall be paid to the worker’s estate.‘”
Sather, 262 Or App at 604. The court reasoned:
”
ORS 656.218(3) continues to describe the persons who may pursue a claim as ‘the persons described in subsection (5).’ The first sentence ofORS 656.218(5) continues to state that the payments required by the statute are to be made to ‘the persons who would have been entitled to receive death benefits[.]’ The most straightforward reading of the text is that those are the ‘persons’ to whomORS 656.218(3) refers, and they do not include the worker’s estate or personal representative. The new second sentence’s requirement that, in the event that there are no ‘persons so entitled,’ ‘the unpaid balance of the award’ is to be paid to the estate does not alter our conclusion. That sentence reveals two factors central to its application: (1) an estate is not among the ‘persons so entitled,’ and (2) there exists a previous award with an ‘unpaid balance,’ that is, the worker’s entitlement to benefits has been previously determined. In other words, the second sentence is applicable when the deceased worker’s eligibility for benefits or the amount of benefits has been determined—when there has been an award. In the absence of persons entitled to receive death benefits, the estate receives the remaining unpaid balance of an award previously determined. But, contrary to the dissent’s reasoning, that sentence does not provide independent authority for the estate to pursue a claim that has not yet been determined.”
The Court of Appeals also noted that, when the 2009 legislature amended subsection (5) by eliminating the provision for a burial allowance and authorizing a worker’s estate to receive unpaid awards, it made a similar change
to
In sum, the Court of Appeals’ holding hinged on two legal conclusions: First, for purposes of subsection (3), “the persons described in subsection (5)” include only the “persons” described in the first sentence of subsection (5), not a worker’s estate under the second sentence of subsection (5); and second, the phrase “unpaid balance of the award” in the second sentence of subsection (5) restricts an estate’s entitlement to PPD benefits that were awarded before a worker’s death.3 This court accepted review to address the personal representative’s challenge to those conclusions.
STATUTORY OVERVIEW
A brief overview will be helpful in understanding the key statutory terms.
“(1) In case of the death of a worker entitled to compensation, whether eligibility therefor or the amount thereof have been determined, payments shall be made for the period during which the worker, if surviving, would have been entitled thereto. “(2) If the worker’s death occurs prior to issuance of a notice of closure under
ORS 656.268 , the insurer or the self-insured employer shall determine compensation for permanent partial disability, if any.“(3) If the worker has filed a request for a hearing pursuant to
ORS 656.283 and death occurs prior to the final disposition of the request, the persons described in subsection (5) of this section shall be entitled to pursue the matter
to final determination of all issues presented by the request for hearing.
“(4) If the worker dies before filing a request for hearing, the persons described in subsection (5) of this section shall be entitled to file a request for hearing and to pursue the matter to final determination as to all issues presented by the request for hearing.
“(5) The payments provided in this section shall be made to the persons who would have been entitled to receive death benefits if the injury causing the disability had been fatal. In the absence of persons so entitled, the unpaid balance of the award shall be paid to the worker’s estate.
“(6) This section does not entitle any person to double payments on account of the death of a worker and a continuation of payments for permanent partial disability, or to a greater sum in the aggregate than if the injury had been fatal.”
Regardless of whether a deceased worker’s claim for an award of benefits was finally determined before the worker’s death, subsection (1) provides that payments “shall be made” for the period during which the worker would have been entitled to such benefits if he or she had survived. When a worker dies after requesting a hearing on the denial of a claim but before the final determination of a request for judicial review, subsection (3) states that “the persons described in subsection (5) of this section shall be entitled to pursue the matter to final determination.” (Emphasis added.) The “persons” described in the first sentence of subsection (5) include those persons “who would have been entitled to receive death benefits if the injury causing the disability had been fatal.” Those persons, if any, are determined with reference to
Although the current version of
worker’s surviving beneficiaries were entitled to receive only benefits that finally had been determined before the death of the worker.5 In 1973, the legislature amended
“The payments provided in subsections (1), (2), (3) and (4) of this section shall be made to the persons who would have been entitled to receive death benefits if the injury causing the disability had been fatal. In the absence of persons so entitled, a burial allowance may be paid not to exceed the lesser of either the unpaid award or the amount payable by
ORS 656.204 .”
Id.
In 1987, the legislature amended the first sentence of subsection (5) to read: “The payments provided in this section shall be made to the persons who would have been entitled to receive death benefits if the injury causing the disability had been fatal.” Or Laws 1987, ch 884, § 16. The second sentence of subsection (5) was not changed. Based on the word “may” in the second sentence, the Court of Appeals previously had held that payment of a burial allowance was discretionary; as a consequence, the Court of Appeals had determined that “there is no need to give personal representatives the right to pursue claims under
did not substantively change for purposes relevant to this matter until 2009.
The 2009 amendments to
”
ORS 656.218 states that if a worker dies before his or her permanent partial disability award is paid in full and the worker has a spouse or dependent children, the insurer pays the full remainder of theaward to them. However, the law also states that if the worker does not have a spouse or dependent children, the insurer only pays the statutory burial amount or the remaining permanent partial disability award, whichever is less. MLAC concluded that the insurer should be obligated to pay the full remaining award, whether or not the worker has a spouse or children.”
Workers’ Compensation Management-Labor Advisory Committee, Senate Bill 835 (2007) Death Benefit Study Report, Executive Summary (January 2009) (emphasis added). The body of the report essentially repeated the quoted description of the operative effect of the then-existing version of the statute, with the following variation on the first sentence: ”
Based on the MLAC study report, the 2009 legislature amended
disposition of the worker’s body and funeral expenses, but not to exceed 20 times the worker’s average weekly wage. It further provides that “any part of the [funeral] benefit [that] remains unpaid 60 days after claim acceptance” is to be paid to the estate of the worker.
As elaborated below, an aspect of the parties’ disagreement about the meaning of
ANALYSIS
As discussed, the first issue before us is whether “the persons described in subsection (5)” under
sentence of subsection (5). In addressing that issue, we examine the text of that statute in context and, where appropriate, consider legislative history and pertinent canons of statutory construction. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). As the term is used in ORS chapter 656, “person” “includes [a] partnership, joint venture, association, limited liability company and corporation.”
Our point of departure is the principle of ejusdem generis, which “serves to confine the interpretation of [a] general term according to one or more common characteristics of the listed examples.” State v. Kurtz, 350 Or 65, 74, 249 P3d 1271 (2011); see also Lewis v. CIGNA Ins. Co., 339 Or 342, 350-51, 121 P3d 1128 (2005) (under ejusdem generis rule, court examines “basic characteristics” of enumerated items when construing more general words). When they precede a list of examples, statutory terms such as “includes” and “including but not limited to” typically convey an intent that the accompanying examples be read in a nonexclusive sense. Kurtz, 350 Or at 75. In that context, we “give interpretive weight to all the words that the legislature used,” including both the general term and any specific examples. Schmidt v. Mt. Angel Abbey, 347 Or 389, 404, 223 P3d 399 (2009). As this court explained in Schmidt:
“That does not mean, of course, that the specific examples constitute the universe of items to which the general term refers; rather, it means only that our interpretation
of the general term includes consideration of those specific examples.”
We conclude that, by using the word “includes” in
Definitions of “person” in statutes outside ORS chapter 656 are consistent with the understanding that an estate is a legal entity that can qualify as a “person.” For example, under the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act,
“‘[p]erson’ means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality or any other legal or commercial entity.”
See also
liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.“);
The difficulty with the Court of Appeals’ narrower interpretation of “person” in
eligibility for—nor the amount of—permanent partial disability benefits finally had been determined at the time of his death, the matter can be much more complicated than simply making a payment or series of payments. As the parties’ dispute on the merits of the claim indicates, any number of factual and legal disagreements can arise that, in the absence of a forum with authority to adjudicate them, could end in impasse, thereby frustrating the legislature’s express purpose that unpaid benefits to which a deceased worker was entitled, whether finally determined or not, should be paid after his or her death. A broader interpretation of “person” in subsection (3) avoids that anomaly.
The fact that the legislature used the word “persons” in the first sentence of subsection (5), but did not expressly refer to an estate as a “person” in the second sentence of that subsection, does not alter our conclusion. As noted, the first sentence of subsection (5) refers to “persons who would have been entitled to receive death benefits if the injury causing the disability had been fatal.” That reference implicates
However, the fact that an estate is not a person described in
undertaken. Based on that
We now turn to the Court of Appeals’ conclusion that the phrase “unpaid balance of the award” in
The word “award” and the phrase “unpaid balance of the award” are not defined in the Workers’ Compensation
statutes. However, “award” is used throughout the statutory framework—in particular, with reference to permanent partial disability—to describe the final disposition of a claim that is favorable, at least in part, to the claimant.10 Moreover, the term “unpaid balance” could be understood to indicate that part—but not all—of an existing award was paid before the worker’s death. Viewed accordingly, the Court of Appeals’ interpretation is, as a textual matter, plausible. That is, “the unpaid balance of the award” could refer to the unpaid amount of an award that finally was determined before the worker’s death.
However, there is another plausible interpretation of the disputed phrase. Under that interpretation, “the unpaid balance of the award” does not restrict an estate’s entitlement to previously awarded benefits. Instead, it was meant more broadly to capture—in a single provision—two scenarios. The first is the one that the Court of Appeals envisaged. In contrast, in the second scenario, the worker’s eligibility for, and the amount of, benefits would be determined after
unpaid balance of an award, regardless of whether the award finally had been determined when the worker died.11 That is, the estate is entitled to “the unpaid balance of the award” pursuant to subsection (5), regardless—in accordance with subsection (1)—of “whether eligibility therefor or the amount thereof” had been determined before the worker died.
Because both constructions of the phrase “unpaid balance of the award” are textually plausible, we consider them in the context of the other provisions of
First, only that broader construction is consistent with our conclusion that an estate is a person described in subsection (5) that is authorized, under subsection (3), to pursue requests for hearing to a final determination after a worker’s death. Second, the broader construction is consistent with the plain text of
depends on one or both of two less plausible propositions: (1)
The proposition that subsection (1) requires an insurer to pay undetermined claims only when eligible beneficiaries exist under
which the worker, if surviving, would have been entitled, but designate no person to receive, much less enforce, the obligation to pay such benefits. SAIF downplays that quandary for two reasons. First, as discussed, it asserts that an estate is entitled to receive only an award of benefits that was determined before the worker died—a proposition that we already have rejected. Second, SAIF points out that the director of the Department of Business and Consumer Services has authority under
Finally, the broader construction of the phrase “unpaid balance of the award” is consistent with the legislative history of the 2009 amendment to subsection (5). As noted, the executive summary of the MLAC report indicated that “the insurer should be obligated to pay the full remaining award, whether or not [a deceased] worker has a spouse or children.” In making that declaration, there is no indication that the MLAC—much less the legislature that adopted its proposal—intended to distinguish between awards that had been finalized before, as opposed to after, a worker’s death.13
In short, we conclude that the phrase “unpaid balance of the award” in the second sentence of
determination a worker’s request for a hearing pursuant to
CONCLUSION
To summarize: we hold that, in the absence of persons who would have been entitled to receive death benefits if the injury causing a deceased worker’s disability had been fatal, an award of permanent partial disability benefits that is finally determined after the worker’s death pursuant to
The decision of the Court of Appeals is reversed, and the case is remanded to that court for a determination of the merits of the petition for judicial review.
Notes
“If death results from the accidental injury, payments shall be made as follows:
“(1)(a) The cost of final disposition of the body and funeral expenses, including but not limited to transportation of the body, shall be paid, not to exceed 20 times the average weekly wage in any case.
“(b) The insurer or self-insured employer shall pay bills submitted for disposition and funeral expenses up to the benefit limit established in paragraph (a) of this subsection. If any part of the benefit remains unpaid
60 days after claim acceptance, the insurer or self-insured employer shall pay the unpaid amount to the estate of the worker.
“(2)(a) If the worker is survived by a spouse, monthly benefits shall be paid in an amount equal to 4.35 times 66-2/3 percent of the average weekly wage to the surviving spouse until remarriage. The payment shall cease at the end of the month in which the remarriage occurs.
“(b) If the worker is survived by a spouse, monthly benefits also shall be paid in an amount equal to 4.35 times 10 percent of the average weekly wage for each child of the deceased who is substantially dependent on the spouse for support, until such child becomes 18 years of age.
“(c) If the worker is survived by a spouse, monthly benefits also shall be paid in an amount equal to 4.35 times 25 percent of the average weekly wage for each child of the deceased who is not substantially dependent on the spouse for support, until such child becomes 18 years of age.
“* * * * *
“(4)(a) If the worker leaves neither wife nor husband, but a child under 18 years of age, a monthly benefit equal to 4.35 times 25 percent of the average weekly wage shall be paid to each such child until the child becomes 18 years of age.
“* * * * *
“(5)(a) If the worker leaves a dependent other than a surviving spouse or a child, a monthly payment shall be made to each dependent equal to 50 percent of the average monthly support actually received by such dependent from the worker during the 12 months next preceding the occurrence of the accidental injury. If a dependent is under the age of 18 years at the time of the accidental injury, the payment to the dependent shall cease when such dependent becomes 18 years of age. The payment to any dependent shall cease under the same circumstances that would have terminated the dependency had the injury not happened.”
“(1) In case of the death of a workman receiving monthly payments on account of permanent partial disability, such payments shall continue for the period during which the workman, if surviving, would have been entitled thereto.
“(2) The payments shall be made to the persons who would have been entitled to receive death benefits if the injury causing the disability had been fatal. In the absence of persons so entitled, a burial allowance may be paid not to exceed the lesser of either the unpaid award or the amount payable by
“As used in the statute laws of this state, unless the context or a specially applicable definition requires otherwise:
“* * * * *
“(5) ‘Person’ includes individuals, corporations, associations, firms, partnerships, limited liability companies and joint stock companies.”
“(2) When permanent partial disability results from a compensable injury or occupational disease, benefits shall be awarded as follows:
“(a) If the worker has been released to regular work by the attending physician or nurse practitioner authorized to provide compensable medical services under
“* * * * *
“(b) If the worker has not been released to regular work by the attending physician or nurse practitioner authorized to provide compensable medical services under
“* * * * *
“(3) Impairment benefits awarded under subsection (2)(a) of this section shall be expressed as a percentage of the whole person.”
(Emphasis added.)