though benefits paid by insurer not subject to wage assignment, carrier acted reasonably in relying on circuit court order and case law
How later courts described this case
- though benefits paid by insurer not subject to wage assignment, carrier acted reasonably in relying on circuit court order and case law
Written by the judges who cited it.
The opinion
ROBERTS, J.,
dissenting.
I dissent from the majority opinion because in my opinion it is not necessary to decide whether workers’ compensation benefits are subject to wage assignments under ORS 23.777 in order to determine the only question appealed, whether SAIF "had a legitimate doubt, from a legal standpoint,” of its responsibility. Norgard v. Rawlinsons, 30 Or App 999, 1003 , 569 P2d 49 (1977).
The question of the application of ORS 23.777 to workers’ compensation benefits was not appealed to the Board, for claimant prevailed at the hearing level and, in fact, no person adversely affected by that decision is a party here. The Board did not decide that issue because, as its order states, "claimant seeks Board review of that portion of the Referee’s order which refused to grant penalties and attorney’s fees. * * *"
The majority believes it must decide the issue of the application of ORS 23.777 in order to decide the attorney fees and penalty question. I do not agree.
It is obvious that SAIF "had a legitimate doubt, from a legal standpoint” of its responsibility, Norgard *780 v. Rawlinsons, supra, because, as the majority points out, SAIF had claimed it was claimant’s employer for the purpose of withholding the money and it was faced with a circuit court order directing it to withhold the benefits; as well as the holdings of Calvin v. Calvin, 6 Or App 572 , 487 P2d 1164 (1971), and 38 Op Att’y Gen 1690 (Or 1978), discussed by the majority. Whether this legitimate doubt existed is all we need consider or decide.
For these reasons, I respectfully dissent.