The opinion
VAN HOOMISSEN, J.,
dissenting.
I would hold that SAIF is entitled to credit amounts paid, pending the appeal, on the permanent total disbility awarded by the referee against the final award of 50 percent permanent partial disability. Therefore, I respectfully dissent.
This case involves a single claim and a single final award of permanent disability. The referee awarded claimant permanent total disability. SAIF requested review. Pending review, SAIF paid benefits. ORS 656.313(1). By the time this court finally fixed the permanent disability award at 50 percent, SAIF had paid less than the 50 percent which we awarded. SAIF seeks credit for that amount. 1 SAIF argues that, because it has not paid an amount equal to the award of 50 percent permanent partial disability, claimant is entitled only to the balance of that award. That makes sense to me. To hold otherwise is to give claimant a windfall that, in my view, is not mandated by the authorities cited in the majority’s opinion.
I see a clear distinction between requiring a claimant to give back benefits already received and allowing a carrier to have a credit for benefits paid. The former takes money out of a claimant’s pocket — money that the claimant has probably *570 already spent and, therefore, does not have to give back. The latter merely recognizes that the claimant is entitled to an award and has already received partial payment of that award. Thus, the claimant gets everything to which she is entitled. That is fair and does no violence to the intent of ORS 656.313(2), which only addresses repayment of benefits paid pending appeal.
SAIF concedes that, had it already paid more than the 50 percent finally awarded, it would not have been able to recoup the excess payments. ORS 656.313(2).