The opinion
THORNTON, J.,
dissenting.
Throughout the sections of the Workmen’s Compensation Law dealing with the Second Injury Reserve *854 program, the statute uses the broad term "employer” to identify those who are entitled to benefits under the program. The word "employer” is defined in the Workmen’s Compensation Law (ORS 656.005(14)) as follows:
" 'Employer’ means any person, including receiver, administrator, executor or trustee, and the state, state agencies, counties, municipal corporations, school districts and other public corporations or political subdivisions, who contracts to pay a remuneration for and secures the right to direct and control the services of any person.”
Plainly, petitioner was an "employer” as defined by the above section. Therefore any disallowance of petitioner’s claim because he was a noncomplying employer has no statutory basis.
I can find nothing in the statutes dealing with the Second Injury Reserve restricting the availability of these funds to employers who were either direct responsibility employers or were paying premiums on their employes at the time of the industrial accident or injury. This is simply a restriction imposed by the Workmen’s Compensation Board on its own initiative. It is my conclusion that this restriction is without any statutory basis and therefore unauthorized. Gouge v. David et al., 185 Or 437 , 202 P2d 489 (1949); Sunshine Dairy v. Peterson et al., 183 Or 305 , 193 P2d 543 (1948); Hawkins v. Bd. of Medical Exam., 23 Or App 320 , 542 P2d 152 (1975).
The record reflects that petitioner was the proprietor of a small barber shop. He tried to help this handicapped worker by giving him a job and assisting him in learning how to barber. Unfortunately the work aggravated the workman’s pre-existing muscular dystrophy disease. This is what gave rise to the claim.
At the time this aggravation occurred the funds for the Second Injury Reserve program were provided by deductions from employes’ wages only and not from *855 employers’ premiums. For this reason a disallowance based on petitioner’s having been a noncomplying employer has no pecuniary basis.
In summary, I can find no legal basis for denying petitioner benefits under the Second Injury Reserve provisions of the Act.
I would reverse.