SAIF Corp. v. Vanlanen , 127 Or. App. 346 ( 1994 )

DEITS, P. J.

Claimant requests reconsideration of our decision in this case, arguing that our reliance on Diamond Fruit Growers v. Goss, 120 Or App 390, 852 P2d 915, rev den 317 Or 583 (1993), was in error and that, in any event, our conclusion that payment of benefits awarded by a determination order was stayed under ORS 656.313 was wrong. We allow reconsideration and adhere to our former opinion.

In November, 1990, claimant filed a claim for a work-related back injury that was denied by SAIF. Claimant sought review of the denial, and the referee held that the claim was compensable. SAIF sought Board review of the referee’s order. Under Diamond Fruit Growers v. Goss, supra, because SAIF’s request for Board review of the compensability issue took place after July 1, 1990, the amended version of ORS 656.313 was applicable and SAIF was entitled to a stay of payment of compensation. While Board review was pending, claimant became medically stationary and her claim was closed. A determination order was issued awarding her TTD and PPD. SAIF did not appeal the determination order, but refused to pay benefits pending the Board’s resolution of the compensability issue. Claimant sought Board review of SAIF’s failure to pay. The Board agreed with claimant and ordered SAIF to pay her benefits. SAIF sought review of the Board’s order, and we concluded that SAIF was entitled to a stay pending resolution of the compensability question.

In her petition for reconsideration, claimant argues that our earlier opinion erred in relying on Diamond Fruit Growers v. Goss, supra, because the question presented here was not decided in that case. She also contends that our conclusion in that case, that the stay resulting from SAIF’s appeal of the compensability decision also stays payment of benefits awarded in a subsequent determination order, is wrong. She asserts that ORS 656.313, as amended, requires a separate appeal of the determination order in order for payment of benefits awarded there to be stayed, and that because SAIF did not appeal the determination order, it was required to pay those benefits.

Contrary to claimant’s assertions, this question was presented in Diamond Fruit Growers. The necessity of appealing a determination order in order to preserve a stay obtained under the amended version of ORS 656.313 was specifically considered both by the Board and by this court. As we explained in Diamond Fruit Growers, the Board initially took the position that it did in this case that, under amended ORS 656.313, it was necessary for an employer to separately appeal a determination order to obtain a stay of the compensation awarded in the determination order. However, the Board subsequently disavowed that holding. We explained in Diamond Fruit Growers:

“After its decision in this case, the Board, sitting in banc, disavowed a portion of its holding here in Felipe A. Rocha, 45 Van Natta 47 (1993). It held in Rocha that, when an employer is entitled to a stay of compensation under ORS 656.313, it is not necessary for the employer to seek review of a determination or closure order issued during the pendency of the appeal in order to preserve the stay. However, if the employer otherwise disagrees with the order, it would be necessary to appeal the determination order for those purposes.” 120 Or App at 393. (Emphasis supplied.)

In Diamond Fruit Growers, we also said:

“We agree with the Board’s reasoning in Rocha concerning the necessity of appealing a determination order in order to preserve a stay under ORS 656.313. Accordingly, the fact that employer here did not appeal the determination order issued in September, 1990, does not preclude its entitlement to a stay under ORS 656.313, if it was otherwise entitled to one. Whether it was entitled to one becomes the critical question.” 120 Or App at 394.

Claimant argues here that our conclusion is inconsistent with the Supreme Court’s decision in Georgia-Pacific v. Piwowar, 305 Or 494, 753 P2d 948 (1988). That case, however, is not controlling here. It concerned the interpretation of the old version of ORS 656.313, which provided that payment of compensation was not stayed pending appeal. Employer there argued that the prohibition of stays pending appeal did not extend to appeals of determination orders and that, therefore, they should be allowed to stay payment of compensation awarded under a determination order. The court rejected that argument and held that the prohibition of stays pending appeals of compensability extended to appeals of determination orders. That is not the same question presented here.

For all of the above reasons, we adhere to our previous disposition of this issue and conclude that SAIF was entitled to a stay of payment of compensation pending appeal.

Reconsideration allowed; opinion adhered to.