Stone v. Whittier Wood Products

DURHAM, J.

Claimant petitions for review of our opinion in Stone v. Whittier Wood Products, 116 Or App 427, 841 P2d 700 (1992). We treat it as a petition for reconsideration, ORAP 9.15(1), allow it, vacate our opinion and reverse.

We restate the pertinent facts. Claimant was discharged from her job on September 11, 1989. At that time, she was working in a light-duty job because of a February, 1989, injury at work. Employer had increased her wage from $6.97 per hour at the time of injury to $7.48 per hour at the time of her discharge. The parties dispute the reason for the discharge. Employer claims that it fired claimant because of her absenteeism and violation of a last chance agreement regarding non-use of drugs and alcohol. Claimant argues that she was fired because she has, or employer believes she has, a physical or mental impairment, in violation of ORS 659.425(1).1 She claims that she was entitled to temporary partial disability (TPD) after the discharge because the firing was unlawful, and her earning power at the time of discharge was not equal to or greater than her earning power at the time of injury.

We sustained the Board’s denial of benefits, concluding that the Board was not required to determine whether her discharge violated ORS 659.425 before deciding her eligibility for TPD. 116 Or App at 430. Claimant does not petition for reconsideration of that holding. We incorporate and adopt our discussion and holding on that issue from our earlier opinion.

We also rejected claimant’s earning power argument, holding that the Board properly considered her “actual wages at the time of the termination,” 116 Or App at 431, and that, *120 under Safeway Stores v. Owsley, 91 Or App 475, 756 P2d 48 (1988), she was not entitled to TPD after her termination. She seeks reconsideration of that holding, contending that, in determining her right to TPD under ORS 656.212, the Board must consider her proportionate loss of earning power at any kind of work, not her loss in actual wages from the time of injury. She also argues that the Board rule on this subject, OAR 436-60-030(2),2 is inconsistent with ORS 656.212. We allow reconsideration to address those arguments and conclude that she is correct.

ORS 656.212 provides:

“When the disability is or becomes partial only and is temporary in character, the worker shall receive for a period not exceeding two years that proportion of the payments provided for temporary total disability which the loss of earning power at any kind of work bears to the earning power existing at the time of the occurrence of the injury.” (Emphasis supplied.)

Employer contends that we should follow our ruling in Fink v. Metropolitan Public Defender, 67 Or App 79, 83, 676 P2d 934 (1984), that “ ‘[ejarningpower,’ as used in ORS 656.212, therefore, refers to a worker’s pre-injury wages.”3 Claimant contends that that ruling is inconsistent with the terms of ORS 656.212. In Fink, we said:

“ORS 656.212 provides:

“ ‘When the disability is or becomes partial only and is temporary in character, the worker shall receive for a period not exceeding two years that proportion of the payments provided for temporary total disability which [the] loss of earning power at any kind of work bears to [the] earning power existing at the time of the occurrence of the injury,’ * * *.

“As the statute indicates, compensation for temporary partial disability is to be calculated on the basis of payments for temporary total disability, which are provided by ORS 656.210.

*121 “Because of the interrelationship of the statutes, we look to the function and purpose of ORS 656.210 for guidance in construing ORS 656.212. Under ORS 656.210, temporary total disability is computed on the basis of the claimant’s actual wages at the time of the injury. ORS 656.210(1). The purpose of temporary total disability is to compensate a claimant for loss of income until the condition becomes medically stationary, not to compensate for the work-related injury and disability, which is a function of a permanent disability award. Taylor v. SAIF, 40 Or App 437, 440, 595 P2d 515, rev den 287 Or 477 (1979). Considering ORS 656.212 in the context of the statutory scheme, we conclude that it too is designed only to maintain a worker’s income at or near the worker’s pre-injury level of earnings. ‘Earning power,’ as used in ORS 656.212, therefore, refers to a worker’s pre-injury wages. We construe ORS 656.212 to provide that compensation for temporary partial disability of a worker who is recovering from a compensable injury but is nonetheless capable of earning wages and is employed is to be proportionate to the decrease in the worker’s actual earnings.” 67 Or App at 82. (Emphasis in original.)

We interpret a statute by examining its text and context. ORS 174.010; Porter v. Hill, 314 Or 86, 91, 838 P2d 45 (1992). We should give effect to every word, phrase, sentence and section, if possible. Sanders v. Oregon Pacific States Ins. Co., 314 Or 521, 527, 840 P2d 87 (1992).

We note that Fink examined the context of ORS 656.212, but did not examine its words, particularly the references to “earningpower.” In Fink, we noted that TPD is calculated as a proportion of temporary total disability (TTD), which “is computed on the basis of the claimant’s actual wages at the time ofinjury,” under ORS 656.210(1). 67 Or App at 82. We proceeded from that statement to the conclusion that TPD was “designed only to maintain a worker’s income at or near the worker’s pre-injury level of earnings.” We did not attempt to interpret the statutory phrase “which his loss of earning power at any kind of work bears to his earning power existing at the time of the occurrence of the injury.” 67 Or App at 82. The failure to consider all of the statute’s words was an error, because they are the primary manifestation of the legislature’s intent.

The language of ORS 656.212 demonstrates that the legislature chose to measure TPD by determining the *122 proportionate loss of “earning power,” rather than proportionate loss of pre-injury wages. Moreover, TPD is measured by the loss of earning power ‘ ‘at any kind of work, ’’not only at the job held at injury. If the legislature had intended TPD to measure only the worker’s proportionate decrease in preinjury wages, it could have said so. It did not. The worker’s decrease in wages may control the TPD calculus in most cases. However, the statute protects the parties’ right to prove that actual wage loss does not reflect the proportionate loss of earning power at any kind of work.

The discussion in Fink about ORS 656.210, which we described as the context of ORS 656.212, does not logically compel the conclusion that we drew. Under ORS 656.210, TTD is calculated as a percentage of lost wages. As we said in Fink:

“The purpose of temporary total disability is to compensate a claimant for loss of income until the condition becomes medically stationary, not to compensate for the work-related injury and disability, which is a function of a permanent disability award.” 67 Or App at 82.

However, in the context of TPD, the claimant is partially, not totally, disabled. The claimant is capable of earning a wage, but the extent of her disability, age, education and adaptability to perform a job may reduce or enhance the worker’s earning power in any given case. The determination of the extent of a partially disabled worker’s lost earning power is often a complex task. Nothing in ORS 656.212 or its context suggests that the legislature intended to avoid that task by using the amount of TTD payments under ORS 656.210 as the starting point for determining TPD. Moreover, the purpose of TPD as partial wage replacement, rather than as compensation for disability, does not relieve the Board of the duty to measure the extent of the disability by the proportionate loss of earning power at any kind of work. We now consider both the text and context of ORS 656.212 and conclude that the legislature did not intend to confine “earning power” to the wage at injury, and overrule Fink v. Metropolitan Public Defender, supra.

The Supreme Court’s reasoning in England v. Thunderbird, 315 Or 633, 848 P2d 100 (1993), supports our conclusion. In England, the court invalidated a series of *123 Department of Insurance and Finance (DIF) rules relating to permanent partial disability that barred consideration of the worker’s age, adaptability and education if the worker returned to work. 315 Or at 639. The applicable statute, ORS 656.214(5),4 required the Board to rate permanent partial disability by determining the “permanent loss of earning capacity due to the compensable injury” and, in making that determination, to consider “such factors as age, education, impairment and adaptability to perform a given job.” As the court explained, the administrative rules rested on the false assumption that a worker who returns to the pre-injury job and, therefore, suffers no permanent loss of earnings, has not lost earning capacity. The court rejected that assumption:

“[Ljoss of earning capacity extends beyond the mere ability to retain the same job or earn the same wage to the ‘ability to obtain and hold gainful employment in the broad field of general occupations.’ Former ORS 656.214(5). As the Court of Appeals has observed, the fact that one employer has been accommodating and the employee retains the same job or earns the same wage is ‘no indication that other potential employers would be as accommodating.’ Howerton v. SAIF, 70 Or App 99, 103, 688 P2d 422 (1984). That is, post-injury employment may establish earnings, but it does not necessarily establish earning capacity:

“ ‘ “Earning capacity must be considered in connection with a [worker’s] handicap in obtaining and holding gainful employment in the broad field of general industrial occupations and not just in relationship to his occupation at any given time. A [worker’s] post-injury earnings is evidence which, depending upon the circumstances of an individual case, may be of great, little, or no importance in determining loss of earning capacity.” ’ Smith v. SAIF, 302 Or 396, 401-02, 730 P2d 30 (1986) (quoting Ford v. SAIF, 7 Or App 549, 552-53, 492 P2d 491 (1972)).

“Through statutory directive and historical interpretation, a person’s post-injury earnings cannot solely determine the person’s earning capacity.” 315 Or at 639. (Emphasis in original.)

England v. Thunderbird is not directly controlling here, because it construed the statute that specified the *124 criteria for rating permanent, not temporary, partial disability. However, England v. Thunderbird is helpful, because it acknowledges the legislature’s effort, which is evidenced in ORS 656.212, to require the Board to consider the worker’s position in the job market, and not merely the reduction in wages, when it evaluates the loss from a partial disability. In restricting TPD, i.e., the proportionate loss of earning power at any kind of work, to the actual wage loss, if any, on returning to work, our prior decision followed the same false assumption that England v. Thunderbird rejected in the PPD context.

To paraphrase Howerton v. SAIF, supra, 70 Or App at 103, the fact that one employer has been accommodating and has allowed claimant to retain her pre-injury wage even though she is disabled from performing her pre-injury work is “no indication that other potential employers would be as accommodating.” The post-injury wage is evidence that, depending on the circumstances, may be of great, little, or no importance in determining whether the worker has a diminished “earning power at any kind of work” under ORS 656.212. See Ford v. SAIF, supra, 7 Or App at 552. The Board should determine the proportionate diminution in “earning power at any kind of work” by evaluating all of the relevant circumstances that affect the worker’s ability to earn wages. One employer’s willingness to pay the pre-injury wage does not necessarily establish that the claimant has no lost earning power “at any kind of work.”

Applying the correct test here could make a substantial difference to claimant. After her surgery, employer restored her to a lower-paying job but voluntarily continued her pre-injury higher wage. She correctly notes that that was the equivalent of an employer-paid TPD program. When employer terminated her after a few months, she was still disabled from performing her pre-injury job, Taut the Board denied claimant any amount of TPD, to which she otherwise would have been entitled for up to two years.5 Other *125 employers might not be as accommodating as her employer at the time of injury. The Board should not terminate her statutory entitlement to two years of TPD because one employer was willing to re-employ her after surgery at her former wage.

Reconsideration allowed; opinion vacated; reversed and remanded.

ORS 659.425(1) provides, in part:

“For the purpose of ORS 659.400 to 659.460, it is an unlawful employment practice for any employer to refuse to hire, employ or promote, to bar or discharge from employment or to discriminate in compensation or in terms, conditions or privileges of employment because:

“(a) An individual has aphysical or mental impairment which, with reasonable accommodation by the employer, does not prevent the performance of the work involved;

iisjs :*s $ sH 5}8

“(c) Am individual is regarded as having a physical or mental impairment.”

OAR 436-60-030(2) provides, in part:

“Temporary disability payments are not due if post-injury wages are equal or are greater than the wages earned at the time of injury.”

The holding in Fink v. Metropolitan Public Defender, supra, was recited without analysis in dictum in Safeway Stores v. Owsley, supra, 91 Or App at 479.

The statute has since been amended. Or Laws 1990, ch 2, § 7.

The dissent argues that our holding conflicts with Safeway Stores v. Owsley, supra. Claimant contends that Owsley should be overruled. Owsley disqualified a worker for temporary benefits after a termination because the firing was unrelated to the injury and the worker was earning the same or higher wages, at the time of termination, than before the injury. Because the Board must determine on remand whether the partial disability caused a proportionate loss of earning power at any *125 kind of work, we do not decide the applicability of Owsley, and do not address claimant’s criticisms of it.