The opinion
*416 JOSEPH, C. J.,
concurring in part; dissenting in part.
I concur with the lead opinion that claimant is entitled to total temporary disability benefits.
I dissent from the lead opinion in respect to the penalty assessed against employer for failure to pay temporary disability benefits. The lead opinion says that it was not unreasonable for employer to rely on the advice of its counsel that it was not required to pay benefits because claimant had retired. In the face of ORS 652.268, employer had no right to rely on bad legal advice. Its conduct in that respect was, therefore, unreasonable. The Board properly assessed the penalty.
Graber, J., joins in this opinion.