Opinion
WCB No. 84-13275; CA A39205
Argued and submitted March 25, 1987
Reversed and referee's order reinstated November 12, 1987 reconsideration denied December 31, 1987, petition for review allowed by opinion April 5, 1988
Judicial Review from Workers' Compensation Board.
James L. Edmunson, Eugene, argued the cause for petitioner. With him on the brief was Malagon Moore, Eugene.
Bradley R. Scheminske, Portland, argued the cause for respondents. With him on the brief was Davis, Bostwick, Scheminske Lyons, Portland.
Before Richardson, Presiding Judge, and Newman and Deits, Judges.
NEWMAN, J.
Reversed; referee's order reinstated.
Claimant seeks review of an order of the Workers' Compensation Board which reversed the referee's order requiring insurer to pay "interim compensation" pending Board review of an earlier referee's decision awarding interim compensation. ORS 656.313. We reverse.
ORS 656.313 provides:
"(1) Filing by an employer or the insurer of a request for review or court appeal shall not stay payment of compensation to a claimant.
"(2) If the board or court subsequently orders that compensation to the claimant should not have been allowed or should have been awarded in a lesser amount than awarded, the claimant shall not be obligated to repay any such compensation which was paid pending the review or appeal.
"* * * * *
"(4) Notwithstanding ORS 656.005, for the purpose of this section, `compensation' means benefits payable pursuant to the provisions of ORS 656.204 to 656.208, 656.210 and 656.214 and does not include the payment of medical services."
Claimant requested a hearing on employer's denial of his occupational disease claim. The referee upheld the denial but awarded interim compensation, relying on our decision in Bono v. SAIF, 66 Or. App. 135, 673 P.2d 558 (1983), where we held that a claimant could recover interim compensation, although she continued to work. Both parties requested Board review of the order. Pending review, insurer refused to pay interim compensation. Claimant requested a second hearing on that refusal.
In Bono, we stated that interim compensation is
"primarily to induce insurers to deny a claim promptly or be required to pay interim compensation, regardless of the validity of the claim. It is not really payment for a compensable loss; its function is to protect a claimant against unreasonable delay in processing the claim." 66 Or App at 143. (Emphasis supplied.)
The Supreme Court then decided Bono v. SAIF, 298 Or. 405, 692 P.2d 606 (1984), in which it reversed this court and held that a claimant could not recover interim compensation if he had no time loss. Following the Supreme Court's decision, the Board reversed the first referee's award of interim compensation, because claimant had no time loss due to an occupational disease.
The second referee then ruled that, regardless of Bono and the Board's decision, insurer must pay interim compensation. Insurer sought review, and the Board again reversed. The Board erred. Georgia Pacific v. Hughes, 85 Or. App. 362, 736 P.2d 602, rev allowed 304 Or. 55 (1987).
Reversed; referee's order reinstated.