The opinion
ROSSMAN, J.,
dissenting.
I dissent.
The way I see it, workers’ compensation is for “workers.” 1 Claimant is not a “worker.” Therefore, claimant is not entitled to compensation. 2 End of case. 3
*417 Accordingly, I dissent. 4
Perhaps the reason that I find this case so bothersome is that it epitomizes how worker’s compensation, which was intended to be an understandable and straightforward system, has been transformed into a complicated, legalistic maze.
The purpose of the Workers’ Compensation Act is to provide wage replacement and medical benefits for workers who sustain compensable injuries. Cutright v. Weyerhaeuser Co., 299 Or 290, 296 , 702 P2d 403 (1985). Because “a person who has withdrawn from the work force has lost no wages,” the person is not entitled to temporary total disability payments. Karr v. SAIF, 79 Or App 250, 253 , 719 P2d 35 , rev den 301 Or 765 (1986). In this case, it is undisputed that claimant had retired by May, 1983. It follows that, having ceased to be a worker, he became ineligible to receive temporary total disability benefits at that time.
It is difficult to be too critical of the majority, because Dawkins v. Pacific Motor Trucking, 308 Or 254 , 778 P2d 497 (1989), supports the conclusion that a claimant may be considered to be in the work force, notwithstanding retirement. Nevertheless, the opinion is disturbing in that it directs an employer to pay benefits to claimant for the same time period during which he received payment from Social Security and employer’s retirement plan. In my view, Dawkins should be distinguished on the basis that it did not involve a claimant who had accepted retirement benefits from his employer. The fact that claimant in this case has done so proves that he is no longer willing to work and has permanently withdrawn from the workforce.
1 agree with the majority that, given the ongoing confusion in the state of the law regarding when a retired worker is entitled to benefits for temporary total disability, the employer did not act unreasonably when it failed to pay claimant for the time after he retired. Therefore, assuming that claimant was entitled to the benefits, the Board should not have assessed it a penalty. I would not reach that issue, however, because, in my view, the Board should not have required the employer to pay the benefits in the first place.