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Dooley v. Dooley5/22/1991
COURT OF APPEALS OF OREGON
CA No. A63380
1991.OR.41210 ; 812 P.2d 18; 107 Or. App. 287
Decided: May 22, 1991.
IN THE MATTER OF THE COMPENSATION OF TIMOTHY E. DOOLEY, CLAIMANT. SAIF CORPORATION, PETITIONER,
v.
TIMOTHY E. DOOLEY, RESPONDENT
Judicial Review from Workers' Compensation Board. No. TP-89026.
Katherine H. Waldo, Assistant Attorney General, Salem, argued the cause for petitioner. With her on the brief were Dave Frohnmayer, Attorney General, and Virginia Linder, Solicitor General, Salem.
Gary K. Jenson, Eugene, argued the cause and filed the brief for respondent.
Richardson, Presiding Judge, and Newman and Deits, Judges.
Newman
SAIF petitioned the Workers' Compensation Board for a third-party distribution order, ORS 656.593(1)(d), that it was entitled to $5,481.43 of the proceeds from claimant's settlement of an action against a third party. ORS 656.593(3). The Board denied the petition, and SAIF seeks review. We reverse.
There is no challenge to the Board's findings of fact. We review for errors of law. In June, 1986, claimant suffered a back injury at work, which caused pain in his low back, left hip and neck. SAIF accepted the claim and paid him benefits for medical costs and time loss. In May, 1987, as he was nearing medically stationary status, and while he was still receiving temporary total disability benefits, he was involved in an automobile accident unrelated to his employment. The accident resulted in new injuries and worsened his compensable condition. His physician was able to distinguish both the medical costs and the time loss attributable to the automobile accident from those attributable to the original injury. SAIF did not pay the medical costs of the accident. It paid him, however, $5,481.43 for four months of additional temporary total disability benefits for his worsened condition. Later, he sued the other driver and, with SAIF's approval, entered into a settlement for $24,593.75. ORS 656.593(3). SAIF then asserted that, as the paying agent, it should receive, as its just and proper share, $5,481.43 of the settlement proceeds. ORS 656.593(3).
The Board held that claimant did not suffer a "compensable injury" in the accident. It also held that the accident was not the consequence of a compensable injury. It concluded, therefore, that SAIF was not entitled to a share of the settlement proceeds. SAIF asserts that the Board erred and that it may share in the proceeds that claimant recovered from the third person that are attributable to the injury for which SAIF paid benefits.
ORS 656.578 provides:
" f a worker receives a compensable injury due to the negligence or wrong of a third person * * *, entitling the worker under ORS 656.154 to seek a remedy against such third person, such worker * * * shall elect whether to recover damages from such employer or third person."
The Board erred as a matter of law when it ruled that claimant did not sustain "a compensable injury due to the * * * wrong of a third person." In Grable v. Weyerhaeuser Company, 291 Or 387, 631 P2d 768 (1981), the claimant suffered a compensable back injury at work and later suffered an injury at home that worsened his condition. The court said:
"If the claimant establis
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