In the Matter of the Compensation of Gary D. Sather, Claimant.
SAIF CORPORATION and POLK COUNTY FARMERS-AG WEST SUPPLY, Respondents GARY D. SATHER, Petitioner,
Argued and Submitted January 14, 2013.
Workers' Compensation Board. 1001494. On personal representative's motion to substitute as the real party in interest filed September 20, 2013, and respondents' response filed October 4, 2013; on respondents' motion to dismiss filed April 12, 2013, and personal representative's response filed October 4, 2013.
Donald M. Hooten argued the cause and filed the briefs for petitioner.
Holly C. O'Dell argued the cause and filed the brief for respondents.
Before Armstrong, Presiding Judge, and Hadlock, Judge, and Egan, Judge. Egan, J., dissenting.
[262 Or.App. 599] ARMSTRONG, P. J.
In this workers' compensation case, claimant, now deceased, sought benefits for a work-related injury. SAIF, the employer's workers' compensation insurance carrier, accepted a claim for a lumbar strain. Claimant subsequently sought acceptance of a combined condition, which SAIF accepted but then denied on the ground that the accepted injury was no longer the major contributing cause of the combined condition. The Workers' Compensation Board upheld SAIF's denial, and claimant sought judicial review.
SAIF has notified us that, while the petition for judicial review was under advisement, claimant died of causes unrelated to his claim, without a surviving spouse or other statutory beneficiaries. See ORS 656.204. SAIF asserts that the petition should therefore be dismissed, because there is no one entitled to pursue it. Claimant's personal representative, on behalf of claimant's estate, opposes the motion to dismiss and seeks to be substituted as claimant and to pursue the petition. SAIF opposes the personal representative's request to be substituted, contending that an estate is not a " person" entitled to pursue a claim under ORS 656.218(3). We agree with SAIF and dismiss the petition.
Several provisions of the Workers' Compensation Law pertain to the payment of benefits after the death of a worker. When the worker's death results from an accidental injury, ORS 656.204 describes the types of benefits payable, and to whom:
" If death results from the accidental injury, payments shall be made as follows:
" (1)(a) The cost of final disposition of the body and funeral expenses, * * * shall be paid, not to exceed 20 times the average weekly wage in any case.
[262 Or.App. 600] " (b) The insurer or self-insured employer shall pay bills submitted for disposition and funeral expenses up to the benefit limit established in paragraph (a) of this subsection. If any part of the benefit remains unpaid 60 days after claim acceptance, the insurer or self-insured employer shall pay the unpaid amount to the estate of the worker.
" (2)(a) If the worker is survived by a spouse, monthly benefits shall be paid in an amount equal to 4.35 times 66-2/3 percent of the average weekly wage to the surviving spouse until remarriage. * * *
" (b) If the worker is survived by a spouse, monthly benefits also shall be paid in an amount equal to 4.35 times 10 percent of the average weekly wage for each child of the deceased who is substantially dependent on the spouse for support, until such child becomes 18 years of age.
" (c) If the worker is survived by a spouse, monthly benefits also shall be paid in an amount equal to 4.35 times 25 percent of the average weekly wage for each child of the deceased who is not substantially dependent on the spouse for support, until such child becomes 18 years of age.
" (d) If a surviving spouse receiving monthly payments dies, leaving a child who is entitled to compensation on account of the death of the worker, a monthly benefit equal to 4.35 times 25 percent of the average weekly wage shall be paid to each such child until the child becomes 18 years of age or the child's entitlement to benefits under subsection (8) of this section ceases, whichever is later.
" * * * * *
" (5)(a) If the worker leaves a dependent other than a surviving spouse or a child, a monthly payment shall be made to each dependent equal to 50 percent of the average monthly support actually received by such dependent from the worker during the 12 months next preceding the occurrence of the accidental injury. If a dependent is under the age of 18 years at the time of the accidental injury, the payment to the dependent shall cease when such dependent becomes 18 years of age. The payment to any dependent shall cease under the same circumstances that would have terminated the dependency had the injury not happened."
Thus, under ORS 656.204(2) to (9), when a worker dies as a result of an accidental injury, the worker's statutory beneficiaries--the surviving spouse, minor children, and [262 Or.App. 601] other qualifying dependents--are entitled to monthly benefits as calculated under the statute. The insurer is also required to pay bills for " [t]he cost of final disposition of the body and funeral expenses," ORS 656.204(1)(a), until sixty days after ...