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McDowell v. State Accident Insurance Fund

May 31, 1973

MCDOWELL, RESPONDENT,
v.
STATE ACCIDENT INSURANCE FUND, APPELLANT



Appeal from Circuit Court, Linn County. Wendell H. Tompkins, Judge.

Al J. Laue, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

James B. Griswold, Portland, argued the cause and filed the brief for respondent.

Thornton, Judge. Schwab, Chief Judge, and Langtry, Judge.

Thornton

Two questions are presented by this workmen's compensation appeal:

(1) May a claimant who was awarded permanent total disability prior to the 1965 amendments to the Workmen's Compensation Law appeal from an own-motion order of the Workmen's Compensation Board issued in 1971 reducing claimant's award to permanent partial disability, and, if so, (2) may claimant prosecute such appeal against the State Accident Insurance Fund rather than the Workmen's Compensation Board?

Defendant, State Accident Insurance Fund (SAIF), appeals from a jury verdict which found the claimant permanently and totally disabled.

Claimant's compensable injuries occurred in 1946, 1953 and 1954. In 1955 claimant and the State Industrial Accident Commission entered into a stipulated judgment finding claimant to be permanently and totally disabled as a result of his accidents.

In 1971 the Workmen's Compensation Board, at the request of the State Accident Insurance Fund, re-examined claimant's case pursuant to the Board's own-motion power. The Board then entered an own-motion order finding claimant no longer permanently and

totally disabled, and reducing claimant's award to permanent partial disability equal to 145 degrees.

Claimant, being dissatisfied with the reduction in his award, sought review. The issues raised on this appeal center on the propriety of the review procedure followed by claimant.

In 1965 the Oregon legislature extensively revised the Workmen's Compensation Law. See, Oregon Laws 1965, ch 285, p 560. Before the 1965 amendments, the Workmen's Compensation Law was administered by a single agency, the State Industrial Accident Commission (SIAC).

In addition to its other functions, SIAC had the power to enter own-motion orders. See, former ORS 656.278 (1) (1953).

Under the revised law the administrative functions were divided between the State Compensation Department, now the State Accident Insurance Fund (SAIF), and the Workmen's Compensation Board. Essentially, SAIF now functions as an insurance fund, and also makes initial determinations on the compensability and extent of industrial accidents.*fn1 See, ORS 656.262, 656.268 (1), 656.632 to 656.646. So far as we are here concerned, the Board operates as a quasi-judicial agency reviewing the determinations made by SAIF, or by a direct responsibility employer. See, ORS 656.268 et seq.

Included within the Board's jurisdiction is the power to enter own-motion orders. See, ORS 656.278 (1) (1971).

The 1965 amendments included a provision intended to define the procedures applicable to claims arising before the fully effective date of the Act.*fn2 This provision, which was not included in Oregon Revised Statutes, states in pertinent part:

"(1) Subject to the provisions of subsections (2) to (5) of this section, all proceedings, rights and remedies with respect to injuries that occurred before the fully operative date prescribed by section 97 of this 1965 Act, shall be governed by the law in effect at the time the injury occurred.

"(2) The powers, duties and functions performed by the State Industrial Accident Commission under such law shall be performed by the manager of the department [now SAIF] except that the board shall exercise all powers, duties and functions imposed on the commission ...


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