YRC Worldwide, Inc. v. Corrigan

No. 488 July 10, 2024 751

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

In the Matter of the Compensation of

Maribeth T. Corrigan, DCD, Claimant.

YRC WORLDWIDE, INC.,

Petitioner,

v.

Maribeth T. CORRIGAN, DCD,

Respondent.

Workers’ Compensation Board

2100343; A177768

Argued and submitted June 14, 2023.

Daniel Sato argued the cause and filed the brief for

petitioner.

Jodie Anne Phillips Polich argued the cause for respon-

dent. Also on the brief was Law Offices of Jodie Anne Phillips

Polich, P.C.

Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,

Judge.

JACQUOT, J.

Reversed and remanded.

752 YRC Worldwide, Inc. v. Corrigan

Cite as 333 Or App 751 (2024) 753

JACQUOT, J.

This workers’ compensation case involves a dispute

over claimant’s entitlement to survivor benefits after his

spouse was fatally injured in the course of her employment.

The employer, YRC Worldwide, issued a denial of benefits

on the ground that claimant fell within an exception to the

definition of “beneficiary” because, although legally married

to the decedent at the time of the fatal injury, claimant and

the decedent were “living in a state of abandonment for more

than one year at the time of the injury or subsequently.” ORS

656.005(2)(b)(A) (2019).1 The Workers’ Compensation Board

set aside the denial, based on a finding that claimant and

the decedent were “living separate and apart” for less than

one year before the fatal injury.

Employer now petitions for review of the board’s

order. For the reasons explained below, we conclude that the

board erred in focusing exclusively on whether claimant and

the decedent shared a residence at any time during the one-

year period preceding the injury. Although “living separate

and apart” is a requirement under a related sentence of ORS

656.005(2)(b)(A), the legislature did not make it a prerequi-

site for “living in a state of abandonment,” the exception at

issue in this case. We therefore reverse and remand for the

board to consider more broadly whether claimant and the

decedent were “living in a state of abandonment for more

than one year”—that is, whether the parties had, through

their conduct, demonstrated an intent to forsake the mari-

tal obligations for a period of more than one year.

I. BACKGROUND

We draw the background facts from the board’s fac-

tual findings, which the parties do not challenge on judicial

review. See King v. SAIF, 300 Or App 267, 268, 452 P3d 1039

(2019) (where factual findings are not challenged, those are

the facts for purposes of judicial review).

Claimant and the decedent were married in 2001.

In February 2019, the decedent filed a petition for separation

1

ORS 656.005(2)(b) has since been amended, and this exclusion is no longer

part of the statute. See Or Laws 2022, ch 6, § 5. Unless otherwise noted, all refer-

ences to ORS 656.005(2)(b) are to the 2019 version of the statute.

754 YRC Worldwide, Inc. v. Corrigan

of marriage. Her listed residence was the same as claim-

ant’s, an Oregon City address. Claimant filed a response to

the petition in March 2019, which noted that he and the

decedent lived at the same residence.

On June 19, 2019, the decedent filed a motion for

an immediate danger order, in which she listed a contact

address in Sandy, Oregon. In order to avoid contact with

claimant, she noted that she avoided going home and worked

at night.

The following month, the decedent filed declarations

stating, under penalty of perjury, that claimant earned more

than $115,000 per year, while the decedent earned only $16

per hour, and that she had a gross monthly income of $2,771.

The decedent noted that she had no access to funds other

than her paycheck, that she could not withdraw from claim-

ant’s account, and that claimant had kept their finances

hidden. The decedent stated that she was living in her car

and at women’s shelters.

The decedent also filed a motion for leave to amend

her separation petition, and the amended petition stated,

again under penalty of perjury, that claimant and the dece-

dent’s children lived with both claimant and the decedent at

the Oregon City address from 2001 until June 14, 2019.

In various filings from the summer of 2019 through

January 2020, the decedent represented that her address

was in Sandy, Oregon, and that she had resided there since

July 2019. She also filed another declaration regarding

her finances, this time demonstrating a monthly income

of $4,327, explaining that she was working unsustainable

but necessary overtime because claimant was not providing

child or spousal support.

In conjunction with a filing regarding spousal sup-

port in February 2020, the decedent signed a declaration

stating, under penalty of perjury, that she had relocated

from the family residence earlier than June—in February

2019. She stated that, since that time, she had received no

support from claimant, which required her to work up to 70

hours in a week. The decedent stated that she was unable

to earn enough to support her basic needs and the needs of

Cite as 333 Or App 751 (2024) 755

their children, and she requested temporary spousal sup-

port. Claimant, meanwhile, filed a response in which he

denied all of the decedent’s allegations.

In May 2020, the decedent was fatally injured in

the course and scope of her employment. The separation pro-

ceeding was dismissed, and an attorney was appointed to

administer the decedent’s estate.

One of the questions that arose in administering

the estate was claimant’s entitlement to workers’ compensa-

tion benefits. Employer’s claims processing agent, Sedgwick

Claims Management, hired an investigator to conduct

research regarding the decedent and determine the status

of her separation from claimant. The investigator deter-

mined that claimant and the decedent had stopping living

together around June or July 2019 and that the decedent

moved from the family residence to a residence in Sandy,

Oregon, in approximately July 2019. Sedgwick then advised

the decedent’s estate that, “[p]ursuant to the information in

our file, the surviving spouse is not a statutory beneficiary

entitled to monthly benefits due to separation at the time of

the compensable fatality.”2 Employer’s denial was based on

ORS 656.005(2)(b)(A), which provided that a “beneficiary”

does not include:

“[a] spouse of an injured worker living in a state of aban-

donment for more than one year at the time of the injury or

subsequently. A spouse who has lived separate and apart

from the worker for a period of two years and who has not

during that time received or attempted by process of law

to collect funds for support or maintenance is considered

living in a state of abandonment.”

Claimant filed a hearing request and contested

employer’s denial. An administrative law judge set aside

the denial, and the board affirmed the ALJ’s conclusion.

The board reasoned that, contrary to employer’s argument,

the decedent’s act of filing for separation did not establish

that she was living separate and apart from claimant for

purposes of showing a “state of abandonment.” Rather, the

board found “insufficient evidence in this record to establish

2

Employer accepted the claim with regard to the decedent’s eligible children.

756 YRC Worldwide, Inc. v. Corrigan

that claimant and decedent lived separate and apart for

more than one year.”

Employer now seeks judicial review of the board’s

order, arguing that the legislature intended “state of aban-

donment” to include “situations in which there is no longer

a viable marriage or in which the marriage between the

two parties has effectively ended,” particularly where one

party has filed for separation. Claimant defends the board’s

order, arguing that the board correctly reasoned that filing

for separation does not establish a “state of abandonment”

and that, in light of uncertain evidence as to when decedent

obtained her own residence, the board correctly ruled that

employer had not proved that the spouses had been living

“separate and apart” for more than a year prior to the dece-

dent’s death.

II. ANALYSIS

A. Standard of Review

We review the board’s order for substantial evidence

and errors of law. ORS 183.482(8)(a), (c); ORS 656.298(7).

“Whether the board correctly interpreted a statute is a ques-

tion that we review for legal error under ORS 183.482(8)(a).”

Cardoza v. SAIF, 332 Or App 72, 74-75, ___ P3d ___ (2024).

B. Interpretation of ORS 656.005(2)(b)(A)

Employer’s petition for judicial review puts at issue

the meaning of the phrase “living in a state of abandon-

ment” in ORS 656.005(2)(b)(A). To determine the mean-

ing of a statutory phrase, we generally use the framework

described in State v. Gaines, 346 Or 160, 171, 206 P3d 1042

(2009), discerning legislative intent by examining the text,

in context, as well as legislative history that appears useful

to the court’s analysis. Id. at 172. However, “depending on

the nature of the statutory term at issue, an administrative

agency’s construction of a statute * * * may be entitled to a

measure of deference.” OR-OSHA v. CBI Services, Inc., 356

Or 577, 585, 341 P3d 701 (2014). Whether that is the case

depends on whether the disputed terms are exact, inexact,

or delegative, which itself involves a question of statutory

construction, requiring us to examine the text of the statute

Cite as 333 Or App 751 (2024) 757

in its context. See Timber Town Living v. Dept. of Human

Services, 320 Or App 154, 159, 513 P3d 28, rev den, 370 Or

602 (2022).

Exact terms “impart relatively precise meaning[s],”

and “[t]heir applicability in any particular case depends upon

agency factfinding.” Springfield Education Assn. v. School

Dist., 290 Or 217, 223-24, 621 P2d 547 (1980). Inexact terms

“are less precise” and are “open to various interpretations,”

but they “embody a complete expression of legislative mean-

ing.” Coast Security Mortgage Corp. v. Real Estate Agency,

331 Or 348, 354, 15 P3d 29 (2000). Finally, delegative terms

“express incomplete legislative meaning that the agency is

authorized to complete.” Id. Examples of delegative terms

include “good cause,” “fair,” “undue,” “unreasonable” and

“public convenience and necessity.” Springfield Education

Assn., 290 Or at 228. If a term is delegative, then the court

reviews the agency decision to ensure that the board’s inter-

pretation is “within the range of discretion allowed by the

more general policy of the statute.” Id. at 229.

Claimant suggests that the term “state of abandon-

ment” is delegative, and that we must defer to the board’s

interpretation of that term. We disagree. As we will explain,

the phrase has a complicated history and is open to various

interpretations, but it draws from well-understood terms

of art and represents a complete expression of legislative

policy regarding when a spouse is excluded from the defini-

tion of “beneficiary.” The term is not delegative but inexact.

Thus, our task is to determine the intended meaning of the

phrase, applying the ordinary tools of statutory construc-

tion. OR-OSHA, 356 Or at 589 (where a phrase is “not so

precise as to require only factfinding” nor “an open-ended

phrase that necessitates further administrative agency pol-

icy making,” the court’s task is “to determine the intended

meaning of the phrase, applying the ordinary tools of statu-

tory construction”).

We begin with the history of inclusion and exclusion

of spouses as beneficiaries under the Workers’ Compensation

Act, because it provides necessary context for understand-

ing the legislature’s eventual inclusion of the phrases “state

of abandonment” and “living separate and apart” in the

758 YRC Worldwide, Inc. v. Corrigan

different sentences of ORS 656.005(2)(b)(A). See Montgomery

v. City of Dunes City, 236 Or App 194, 199, 236 P3d 750

(2010) (“Changes in the text of a statute over time are con-

text for interpreting the version at issue in a given case.”).

When the Workers’ Compensation Act was enacted

in 1913, it expressly recognized that its purpose was to more

fairly distribute the burden borne by workers, employers,

and taxpayers in providing care and support for injured

workers and their dependents. See Or Laws 1913, ch 112,

§ 1 (expressing the purpose and policy of the act). It defined

a “beneficiary” to mean “a husband, wife, child or dependent

of a workman, in whom shall vest a right to receive pay-

ment under this act.” Or Laws 1913, ch 112, § 14. However,

the act only provided death benefits to a widow or “invalid”3

widower of an injured worker. See Or Laws 1913, ch 112,

§ 21(a)(1) (outlining compensation upon death for a widow

or “invalid widower”). At that time, a husband was civilly

and criminally liable for his wife and children’s care, main-

tenance, and support; thus, there was a legal presumption

that a wife and children were dependent. But that presump-

tion went only one direction—a husband was not a depen-

dent unless he qualified as “invalid.”

In addition to limiting benefits to the widow or

“invalid” widower, the act also excluded the husband or wife

of an injured worker from “beneficiary” status under what

was the precursor to the exclusion in ORS 656.005(2)(B)(a):

“A husband or wife of an injured workman, who has deserted

said injured workman for more than one year prior to the

time of the injury or subsequently shall not be a beneficiary

under this act.”

Or Laws 1913, ch 112, § 21(j) (emphasis added).

The law did not define “deserted,” nor did it describe

what conduct would constitute “desertion.” However, at

that time, “desertion” had a well-understood meaning in

the context of marriage: “The act by which a person aban-

dons and forsakes, without justification, or unauthorized,

a station or condition of public or social life, renouncing

3

“Invalid means one who is physically or mentally incapacitated from earn-

ing.” Or Laws 1913, ch 112, § 14.

Cite as 333 Or App 751 (2024) 759

its responsibilities and evading its duties.” Black’s Law

Dictionary 360 (2nd ed 1910); see generally Comcast Corp.

v. Dept. of Rev., 356 Or 282, 296, 337 P3d 768 (2014) (when

“a term is a legal one, we look to its established legal mean-

ing as revealed by, for starters at least, legal dictionaries”

(internal quotation marks omitted)). The phrase “more

than one year prior to the time of the injury” also had sig-

nificance in the matrimonial and divorce law of the time:

“[W]illful desertion for the period of one year” was one

ground for divorce. See Lord’s Oregon Laws, title VI, ch VIII,

§ 507(5) (1910) (providing “willful desertion for the period of

one year” as a cause for divorce). “[W]illful desertion” within

the context of a divorce proceeding was understood to mean

“the voluntary separation of one of [the] married parties

from the other, or the voluntary refusal to renew a suspended

cohabitation without justification either in the consent or

wrongful conduct of the other.” Sisemore v. Sisemore, 17 Or

542, 545, 21 P 820 (1889); see also Black’s Law Dictionary

360 (2nd ed 1910) (defining “desertion in matrimonial and

divorce law” to require the same elements as “willful deser-

tion” in Oregon case law).4 An act was “willful” when “there

is a design to forsake the other spouse wrongfully or without

cause, and thereby break up the marital union.” See Ogilvie

v. Ogilvie, 37 Or 171, 179, 61 P 627 (1900).

Therefore, when the legislature first enacted the

workers’ compensation scheme, the legislature would have

understood a “husband or wife who has deserted” to mean

a husband or wife who had abandoned, without justification

or authorization, their marital responsibilities or duties for a

period that would be cause for divorce. However, because the

legislature omitted the word “willful” before “deserted,” it also

appears to have broadened “desertion” beyond what would

have been grounds for divorce at the time, sweeping up not

only “willful” desertions but also those separations to which

the spouse had consented or acquiesced. Cf. Luper v. Luper,

61 Or 418, 424, 96 P 1099 (1908) (“[I]f, either expressly or by

4

Specifically, Black’s Law Dictionary 360 (2nd ed 1910), defined “desertion

in matrimonial and divorce law” as “[a]n actual abandonment or breaking off of

matrimonial cohabitation, by either of the parties, and a renouncing or refusal

of the duties and obligations of the relation, with an intent to abandon or forsake

entirely and not to return to or resume marital relations, occurring without legal

justification either in the consent or the wrongful conduct of the other party.”

760 YRC Worldwide, Inc. v. Corrigan

implication from the circumstances, the complainant consents

to the original separation, or to its continuance, and that con-

sent is not revoked, there is no such desertion as warrants a

divorce[.]” (Internal citation omitted.)). Notably, in the case of

a “willful desertion,” the fact that the parties may have shared

a physical domicile was not necessarily dispositive. Cf. Baker

v. Baker, 99 Or 213, 195 P 347 (1921) (concluding that lack of

cohabitation, as defined by marital sexual relations, “consti-

tutes matrimonial desertion, though the deserting party con-

sents still to live in the same house with the other”).

In 1921, the legislature amended the Workers’

Compensation Act to remove the one-year requirement from

the spousal exclusion. But it inserted a requirement that the

deserting husband or wife be “living apart” from the injured

worker:

“(j) A husband or wife of an injured workman who has

deserted and is living apart from said injured workman at

the time of the injury shall not be a beneficiary under this

act.”

Or Laws 1921, ch 311, § 5. When the Workers’ Compensation

Act was codified in the Oregon Revised Statutes in 1953,

that same exclusion was moved into the definition of benefi-

ciary in ORS 656.002(1):

“Beneficiary means an injured workman, and the hus-

band, wife, child or dependent of a workman, who is enti-

tled to receive payments under ORS 656.002 to 656.590;

provided, that a husband or wife of an injured workman who

has deserted and is living apart from the injured workman

at the time of the injury shall not be a beneficiary.”

(Emphasis added.)

Neither the 1921 statute nor the 1953 version pro-

vided a definition of what it meant to be “living apart” from

the injured worker. But that phrase, too, had an under-

stood legal meaning in the context of matrimonial law that

tracked the ordinary understanding of the term: Black’s

Law Dictionary defined “living apart” as “[t]o live in a sepa-

rate abode.” Black’s Law Dictionary 1084 (4th ed 1951). So,

as of 1953, the exception appears to have contemplated an

act of desertion by the worker’s spouse that resulted in the

Cite as 333 Or App 751 (2024) 761

spouses living apart at the time of the workplace injury—

with no specific requirement as to how long the parties had

been living apart prior to that injury.

Then came the most significant change to the exclu-

sion, at least for purposes of this case. In 1957, the legis-

lature revised the exclusion again, introducing the phrase

“state of abandonment” and adding a new, separate sentence

to the statute addressing a “wife who has lived separate and

apart from her husband”:

“Beneficiary means an injured workman, and the hus-

band, wife, child or dependent of a workman, who is entitled

to receive payments under ORS 656.002 to 656.590; pro-

vided, that a husband or wife of an injured workman {who

has deserted and is living apart from the injured workman

at the time of the injury shall not be a beneficiary} living

in a state of abandonment for more than one year at

the time of the injury or subsequently is not a benefi-

ciary. A wife who has lived separate and apart from

her husband for a period of two years and who has

not during that time, received or attempted by pro-

cess of law to collect funds for her support or main-

tenance, is deemed living in a state of abandonment.”

ORS 656.002(1) (1957) (deleted language in italics and new

language in bold).

Because the terms “abandonment” and “desertion”

were often used interchangeably in the context of marriage

and separation, it is difficult to tell what the legislature may

have intended by that switch. See, e.g., Luper, 61 Or at 423

(“Desertion or abandonment consists in the voluntary sepa-

ration of one spouse from the other for the prescribed time,

without the latter’s consent, without justification, and with

the intention of not returning.” (Internal citations omitted.));

see also Webster’s Second New Int’l Dictionary 2 (unabridged

2nd ed 1952) (providing several definitions for “abandonment,”

including “1. Act of abandoning, or state of being abandoned

(in any sense); total desertion * * *; 2. Law : a Desertion by a

husband or wife of his or her consort with the intention of cre-

ating a permanent separation”).

However, the grammatical and structural changes

in the statute were significant legislative choices. First, by

762 YRC Worldwide, Inc. v. Corrigan

using the phrase “state of abandonment” rather than “who

has deserted and is living apart,” the statute turned the

focus to the state of the marriage rather than specific con-

duct or living situation of the spouse of the injured worker.

See Webster’s at 2461 (unabridged 2nd ed 1952) (providing

several definitions of “state,” including “1. Mode or condition

of being; position; nature; condition * * * 3. Condition with

reference to wealth, social position, etc.”).

Second, with the addition of the new sentence, the

legislature created a conclusive statutory presumption of

abandonment. Given the structure of the statute, that pre-

sumption—in the case of a wife “who has lived separate and

apart from her husband for a period of two years and who has

not during that time, received or attempted by process of law

to collect funds for her support or maintenance”—appears to

have been one way, but not the only way, that a spouse of an

injured worker might be in a “state of abandonment.”

The legislature’s removal of the “living apart”

requirement in the first sentence, coupled with its explicit

inclusion of the requirement of “living separate and apart”

in the second sentence, creates a measure of ambiguity as

to whether “living separate and apart” is a necessary pre-

requisite to a “state of abandonment.” The phrase “sepa-

rate and apart” was itself a term of art in the context of

marriage and referred to circumstances where “the spouses

have come to a parting of the ways and have no present

intention of resuming marital relations and taking up life

together under the same roof, not where they are residing

temporarily in different places for economic or social rea-

sons.” Black’s at 1084 (4th ed 1951). On the one hand, the

legislature may have understood “state of abandonment” to

necessarily include such a requirement; on the other hand,

it may have intended the parties’ residence to be one factor

to consider in determining whether the parties were “living

in a state of abandonment,” as opposed to a prerequisite.

We are not aware of any specific legislative his-

tory that sheds additional light on the 1957 changes, but

the statute is identical to an exclusion that existed under

Washington’s Workmen’s Compensation Act. See, e.g, Weyand

v. Dep’t of Lab. & Indus., 181 Wash 114, 115, 42 P2d 6, 6

Cite as 333 Or App 751 (2024) 763

(1935) (applying a statute providing, “A husband or wife of an

injured workman, living in a state of abandonment for more

than one year at the time of the injury or subsequently, shall

not be a beneficiary under this act. A wife who has lived sep-

arate and apart from her husband for the period of two years

and who has not, during that time, received, or attempted

by process of law to collect, funds for her support or mainte-

nance, shall be deemed living in a state of abandonment.”).

By the time Oregon adopted that same language,

the Washington Supreme Court had applied its statute on

two occasions, so we look to those cases for guidance as to

what the legislature might have intended when it borrowed

that language. See Jones v. General Motors Corp., 325 Or

404, 418, 939 P2d 608 (1997) (“If the Oregon Legislature

adopts a statute or rule from another jurisdiction’s legisla-

tion, we assume that the Oregon legislature also intended

to adopt the construction of the legislation that the highest

court of the other jurisdiction had rendered before adoption

of the legislation in Oregon.”).

In Johnson v. Dep’t of Lab. & Indus. of Washington,

3 Wash 2d 257, 258-59, 100 P2d 382, 383 (1940), the court

explained how the two sentences operate together:

“The first sentence [excluding the ‘wife of an injured work-

man, living in a state of abandonment for more than one

year at the time of the injury or subsequently’] * * * has

been a part of the workmen’s compensation act from the

beginning. The second sentence [which addresses when

a wife is ‘deemed living in a state of abandonment’] was

added [in 1927]. It provides a method, though not necessar-

ily an exclusive one, of proving the abandonment spoken of

in the first sentence.”

(Internal citations omitted; emphasis added.) That case law

is consistent with what can be gleaned from the text of the

statute, which is that the second sentence is not the exclu-

sive means of proving a “state of abandonment.”

Beyond that, the Washington cases provide only

limited guidance as to the meaning of specific statutory lan-

guage, but they are consistent with the view that the second

sentence is a narrower way of proving that the parties had,

for the requisite amount of time, demonstrated their intent

764 YRC Worldwide, Inc. v. Corrigan

to permanently sever the marital union and accompanying

obligations. For example, in Johnson, the court explained:

“It seems fair to presume that the legislature had in

mind that, when a husband and wife had lived separate

and apart for two years or more, proof that the husband

had contributed nothing to the wife’s support during that

period would raise a just inference that he had wholly aban-

doned her, and that proof that she had not attempted to

secure relief by legal means during that period would raise

an equally just inference that she had fully accepted the

situation, and the abandonment was, therefore, complete.”

3 Wash 2d at 263, 100 P2d at 385 (emphasis added). In that

case, the court held that “a payment by a husband to a wife

living apart and caring for their child, even though desig-

nated for the support of the child, may be deemed to be a

payment for the support of the mother as well.” Id. at 264,

100 P2d at 385. Thus, the court concluded that “appellant

received support from her husband within the two-year

period, and that abandonment was not proven.” Id.

In Weyand, the court considered the application of

the exception in the case of spouses who had been apart for

more than two years while one spouse looked for work. The

court stated, “It cannot be contended that, at the time men-

tioned, there was any breaking up of the family by a sepa-

ration which either party anticipated or desired would be

permanent.” 181 Wash at 117, 42 P2d at 7. The court held

that “[i]t cannot be the intention of this section that a wife

‘be deemed living in a state of abandonment’ while she is

being supported out of community funds voluntarily turned

over to her by her husband when he leaves her to search for

work, no facts appearing which would indicate any intention

on the part of either the husband or wife to break up the home

or to terminate the marital relation, either in fact or by legal

process.” Id. (emphasis added).

Based on the two-sentence structure of the statute

and the interpretation by the Washington Supreme Court, we

are persuaded that the Oregon legislature in 1957 intended

the second sentence to operate as one method of showing that

the parties had manifested an intention to forsake the mar-

ital relationship. We are further persuaded that, in light of

Cite as 333 Or App 751 (2024) 765

the statute’s enactment history and the removal of a “living

apart” requirement from the first sentence, the legislature

did not intend “living separate and apart” to be a prerequi-

site under the first sentence of the statute. See Belinskey v.

Clooten, 237 Or App 106, 110, 239 P3d 251 (2010), rev den,

349 Or 601 (2011) (considering the significance of wording

changes between the current version and its predecessor).5

Rather, by removing “living apart,” the legislature gave the

first sentence a broader meaning, whereby a “state of aban-

donment” could include the concept of a “willful” desertion

or a desertion in which the parties have acquiesced. See

Springfield Utility Board v. Emerald PUD, 339 Or 631, 642,

125 P3d 740 (2005) (“[U]se of a term in one section and not

in another section of the same statute indicates a purpose-

ful omission[.]” (Internal quotation marks omitted.)). And, as

described earlier, the fact that parties may have been liv-

ing in the same physical domicile was an important factor,

but not necessarily a dispositive one, for purposes of “willful

desertion.” See 333 Or App at 759-60; see also Weatherspoon

v. Weatherspoon, 195 Or 660, 246 P2d 581 (1952) (explaining

that “the spouse remaining home whose acts or omissions

have caused the other spouse to leave the home may be guilty

of desertion entitling the other spouse to a divorce therefor

* * * [and] such desertion by the spouse remaining home [is

deemed] ‘constructive desertion’ ”); ORS 107.210 (1957) (wife

can file for separation from bed and board if husband fails

to provide support for six months or if husband has willfully

deserted for any time period).

Although the legislature later removed some of the

gendered language in the statute, replacing “husband” and

“wife” with “spouse,” Or Laws 1975, ch 556, § 4, and “work-

man” and “his spouse” with “worker,” ORS 1977, ch 109, § 2,

it did not otherwise substantively change the statute in the

years been 1957 and 2019. Specifically, the phrase “living in

a state of abandonment for more than one year at the time

5

We note that Washington subsequently added the living “separate and

apart” requirement to the first sentence in 1973. See RCW 51.08.020 (1973)

(“PROVIDED, That a husband or wife of an injured workman, living separate

and apart in a state of abandonment, regardless of the party responsible therefor,

for more than one year at the time of the injury or subsequently, shall not be a

beneficiary.”).

766 YRC Worldwide, Inc. v. Corrigan

of the injury or subsequently” carried through to the 2019

version.

Given that history, we understand the phrase “liv-

ing in a state of abandonment for more than one year at the

time of the injury or subsequently” in the first sentence of

ORS 656.005(2)(b)(A) to refer to circumstances in which the

parties have, through their conduct, forsaken the marriage

for a period of more than a year. The filing of a separation

petition is a relevant consideration, as is the financial inter-

dependence of the parties. And there is no question that the

fact of a separate domicile is a relevant consideration—and

perhaps the most significant one in many cases—but the

legislature did not make it a prerequisite for proving that

the parties had, for more than a year, renounced the mar-

riage and were living “in a state of abandonment” for pur-

poses of the first sentence of ORS 656.005(2)(b)(A).

In this case, the board erroneously treated “living

separate and apart” as a requirement under the first sen-

tence of ORS 656.005(2)(b)(A). Its ruling against employer

turned on its finding that claimant and the decedent lived

separate and apart for less than one year before the fatal

injury.6 Because the board looked only to whether the par-

ties were living separate and apart, it did not engage in the

broader inquiry contemplated by ORS 656.005(2)(b)(A) as

to whether the parties had, through conduct, demonstrated

an intent to forsake the marital obligations for a period of

more than one year. We therefore reverse and remand for

reconsideration.7

Reversed and remanded.

6

The board initially stated that there was “insufficient evidence in this

record to establish that claimant and decedent lived separate and apart for more

than one year.” Later, the board appeared to make an affirmative finding but

still relied exclusively on whether claimant and the decedent “lived separate and

apart”: “Under these particular circumstances, we find that claimant and dece-

dent lived separate and apart for less than one year before the fatal injury (i.e.,

from June 2019 until May 14, 2020). Thus, claimant is a ‘beneficiary’ and, there-

fore, is entitled to survivor benefits pursuant to ORS 656.204(2)(a).”

7

Because we reverse and remand, we do not reach claimant’s cross-

petition regarding the denial of attorney fees.