Haret v. State Accident Insurance Fund Corp.

GILLETTE, J,

concurring in part, dissenting in part.

I agree with the majority’s treatment of when claimant made an aggravation claim and therefore concur in that part of the majority opinion. I disagree with the majority’s analysis of the key issue in this case is whether claimant is entitled to interest on the temporary total disability compensation she received after the hearing as the result of SAIF’s agreement to accept her aggravation claim as of June 11,1982, and on the additional amount of temporary total disability compensation she will receive as a result of our decision. I therefore dissent on that issue. We decided this question adversely to claimant in Button v. SAIF, 45 Or App 295 , 608 P2d 206 , rev den 289 Or 107 (1980), where we held that the claimant was not entitled to interest because “[t]here is no *675 statutory authority for such an award in the Workers’ Compensation Act. The only penalties available are those specified in ORS 656.262[(10)].” 45 Or App at 298 . (Emphasis supplied.) We today reconsider our position and determine that Button oversimplified the issue.

As the majority acknowledges, our quoted statement in Button misconstrued the nature of interest and the statutory basis for awarding it. Interest is not a penalty. Rather, it is “compensation for the use or forbearance of another’s money.” Portland Gen. Elec. Co. v. Dept. of Rev., 7 OTR 444, 445 (1978). An award of interest avoids the unjust enrichment of a debtor who retains the use of money that it should rightfully have paid to its creditor. We were mistaken, in Button, when we passed off requested interest as an unauthorized “penalty.”

The question remains, however, as to whether Button was legally correct, although its rationale was not. There is no statutory provision within the Workers’ Compensation law authorizing or requiring the payment of interest. The only interest provision arguably relevant is found outside the statutory scheme. ORS 82.010(2)(a) provides that interest at the statutory rate is payable on “[a]ll moneys after they become due * * *.” Interim compensation pending acceptance or rejection of a claim, and temporary or permanent total disability payments after acceptance, are due and payable at specific times and in readily calculable amounts. See ORS 656.206(2), 656.210(1), 656.262(4), 656.273(6). It may be argued that the situation is thus the same as that in Papadopoulos v. Bd. of Higher Educ., 48 Or App 739, 744-46 , 617 P2d 931 , rev den 290 Or 727 , cert den 454 US 803 (1981), in which the plaintiff was awarded unpaid salary for a school year. We held that he was also entitled to statutory interest on each month’s salary from the date during that school year on which it should have been paid. Workers’ compensation payments are payable in the same regular fashion; it is easy to argue by analogy that such payments are governed by the general provision for interest on moneys that are due and owing.

It may be argued with equal plausibility, however, that interest should not be awarded, because (a) the Workers’ Compensation law is a complete statutory scheme, so that *676 inclusion of penalties but not interest should be read as indicating legislative intent; and (b) the legislature in its two sessions since Button has not seen fit to change the rule we announced there.

On balance, I am persuaded by the former argument. Although the question is not an easy one, I perceive the penalty provisions of ORS 656.262(10) as additions to, not substitutes for, a litigant’s normal remedies. I cannot believe that, given the remedial purposes of the Workers’ Compensation law, the legislature would substitute penalties, whose award in a given case is problematical, for the just payment for use of a litigant’s money that an award of interest is supposed to represent.

I respectfully dissent from the failure to award claimant interest.