McIntyre v. Wright

ROBERTS, J.,

concurring.

The majority bases its decision in this case on our conclusion in Sandstrum v. SAIF, 46 Or App 773, 613 P2d 96, rev den 289 Or 677 (1980). I dissented in that case because I did not feel it was necessary to reach the issue of whether SAIF is an employer for purposes of ORS 23.777. That issue is central to this case.

SAIF is not an employer in the sense that "the benefits payable to the injured worker are not compensation for personal services performed by the worker for SAIF.” Sandstrum v. SAIF, supra, 46 Or App at 779. However, the workers’ compensation system is intended to provide an injured worker with income while he or she is unable to work and to offset an injured worker’s reduced earning ability. There is no doubt that these payments are intended to be a substitute for wages. Nevertheless, I agree with the majority that, given the clear language of ORS 23.777, specifically entitling an employer or trustee of an obligor to a continuing garnishment order, it is not our role to import into the statute new reasoning that workers’ compensation benefits, because they are paid in lieu of wages, may also be subject to a continuing garnishment.

While we used the general policy language from the preamble to the workers’ compensation statute, ORS 656.004, to interpret, and seemingly contradict, another *253 portion of the workers’ compensation statute relating to garnishment in Calvin v. Calvin, 6 Or App 572, 577, 487 P2d 1164 (1971), there is no basis on which we might use that same legislative policy to interpret the provisions of a law outside the workers’ compensation statutes.1 Thus, while we remain fully cognizant of the declared legislative intent to "provide care and support for such injured workers and their dependents,” ORS 656.004, having said, in Calvin, that workers’ compensation benefits are garnish-able, we must await the Oregon Legislature’s declaration that such benefits may be continually garnished, removing from a former spouse having custody of minor children the burden of bringing a new action each month in order to receive child support from a worker who is receiving workers’ compensation benefits but refuses to pay a child support obligation.

Calvin itself has been criticized by other members of this court. Satterfield v. Satterfield, 54 Or App 184, 634 P2d 787 (1981) (Gillette, P. J., dissenting).