665
203
Poland v. SAIF 30322,
April Or2020
App
Argued and submitted February 25, affirmed April 22 2020
In the Matter of the Compensation of
Richard Poland, Claimant.
Richard POLAND,
Petitioner,
v.
SAIF CORPORATION
and CGC Industries - Culver Glass Company,
Respondents,
and
STATE OF OREGON,
Intervenor.
Workers’ Compensation Board
1702589; A167132
465 P3d 302
Julene M. Quinn argued the cause and filed the briefs for
petitioner.
Allison Lesh argued the cause and filed the brief for
respondents.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Judy C. Lucas, Assistant Attorney
General, filed the brief for intervenor.
Before Lagesen, Presiding Judge, and Powers, Judge, and
Kamins, Judge.
PER CURIAM
Affirmed.
666 Poland v. SAIF
PER CURIAM
Claimant petitions for judicial review of a final
order of the Workers’ Compensation Board (board). In that
order, the board affirmed SAIF’s computation of petitioner’s temporary total disability (TTD) benefits. Because
claimant’s “remuneration is not based solely upon daily or
weekly wages,” SAIF computed those benefits under OAR
436-060-0025(4) (Feb 2, 2017), as it was required to do by
ORS 656.210(2)(e). ORS 656.210(2)(e); Tye v. McFetridge,
342 Or 61, 67-69,
149 P3d 1111 (2006). On review, claimant
does not dispute that SAIF correctly computed the rate of
his TTD benefits under the method specified in the rule.
Instead, he argues that the rule itself conflicts with ORS
656.210(2)(d)(A)’s requirement that TTD benefits be based
on a worker’s wage “at the time of injury.” ORS 656.210
(2)(d)(A).
Claimant, who is paid by the hour but works irregular hours, notes that he received an increase in his hourly
wage shortly before his injury. He contends that OAR 436-
060-0025(4) (Feb 2, 2017), which provides that TTD benefits
for a worker not paid a daily or weekly wage must be “based
on the weekly average of the worker’s total earnings for the
period up to 52 weeks before the date of injury,” results in a
benefit that is not based on his wage “at the time of injury”
because the averaging results in a TTD award based, in
effect, on an hourly wage less than claimant’s actual hourly
wage at the time of injury. Claimant argues that the board
erred in determining otherwise.
Our case law requires a contrary conclusion. As we
have explained, the legislature has recognized that computing a worker’s wage “at the time of injury” for a worker
not paid by the day or by the week is not an exact science.
For that reason, ORS 656.210(2)(e) grants the Director of
the Department of Consumer and Business Services “broad
authority to prescribe by rule ‘methods’ of approximating the
wage amount at the time of injury of those workers who are
not regularly employed.” Hadley v. Cody Hindman Logging,
144 Or App 157, 159-60,
925 P2d 158 (1996). Because
such methods necessarily result in approximations of such
workers’ wages, that means, at least for some workers, the
Cite as
303 Or App 665 (2020) 667
worker’s assumed wage under the rule will deviate from
what the worker’s actual wage would be. But the existence
of such a deviation does not, standing alone, establish that
the director’s rule is inconsistent with ORS 656.210. See
State Farm Ins. Co. v. Lyda,
148 Or App 424, 426-30,
939
P2d 1181 (1997) (concluding that one of the director’s previous rules for calculating TTD—based on the assumed wage
from the claimant’s premium—did not exceed the director’s
authority even when, as applied, the claimant’s TTD benefit
was based on an assumed annual wage of $18,000 instead
of the claimant’s actual annual wage of closer to $6,000).
Beyond the fact that the averaging required by the rule
effectively results in a TTD benefit based on an hourly wage
that is less than claimant’s actual hourly wage at the time
of injury, claimant has identified no other basis for concluding that OAR 436-060-0025(4) (Feb 2, 2017), exceeds the
broad authority given to the director by ORS 656.210(2)(e).
Accordingly, we affirm.
Affirmed.
