122 April 9, 2015 No. 14

IN THE SUPREME COURT OF THE

STATE OF OREGON

In the Matter of the Compensation of

Gary D. Sather, Claimant.

Gary D. SATHER,

Petitioner on Review,

v.

SAIF CORPORATION

and Polk County Farmers-AG West Supply,

Respondents on Review.

(Agency No. 10-01494; CA A149547; SC S062466)

En Banc

On review from the Court of Appeals.*

Argued and submitted January 13, 2015.

Donald M. Hooton, Hooton Wold & Okrent, LLP, 

Beaverton, argued the cause and filed the briefs for petitioner on review.

Holly C. O’Dell, Appellate Counsel, SAIF Corporation, 

Salem, argued the cause and filed the brief for respondents 

on review.

Sara Ghafouri, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association. With her on the brief 

was Jodie Phillips Polich, Milwaukie.

BREWER, J.

The decision of the Court of Appeals is reversed, and the 

case is remanded to that court for a determination of the 

merits of the petition for judicial review.

______________

* Judicial review from Amended Opinion and Order from Workers’ Compensation Board dated January 20, 2011. 262 Or App 597, 325 P3d 819 (2014).
Cite as 357 Or 122 (2015) 123

The personal representative of claimant’s estate sought to be substituted 

as the real party in interest for purposes of judicial review of claimant’s workers’ compensation claim. The Court of Appeals held that claimant’s estate was 

not authorized to pursue a claim to final determination under ORS 656.218(3), 

and, therefore, denied the motion for substitution and dismissed the petition for 

judicial review. Held: In the absence of persons who would have been entitled to 

receive death benefits if the injury causing a deceased worker’s disability had 

been fatal, an award of permanent partial disability benefits that is finally determined after the worker’s death pursuant to ORS 656.218(3) is payable to the 

worker’s estate under ORS 656.218(5).

The decision of the Court of Appeals is reversed, and the case is remanded 

to that court for a determination of the merits of the petition for judicial review
124 Sather v. SAIF

BREWER, J.

The question before us in this workers’ compensation 

case is whether, under ORS 656.218(3) and (5),1

 claimant’s 

estate is authorized to pursue a request for hearing seeking 

an award of permanent partial disability (PPD) benefits that 

claimant filed before his death, when the cause of his death 

was unrelated to the work injury. The Court of Appeals held 

that claimant’s estate, through his personal representative, 

was not authorized to pursue the claim to final determination 

under ORS 656.218(3) on the grounds that (1) the estate is not 

one of the “persons” described in ORS 656.218(5), and (2) the

phrase “unpaid balance of the award” in the second sentence 

of subsection (5) restricts an estate’s entitlement to PPD 

benefits that were awarded before a worker’s death. Sather 

v. SAIF, 262 Or App 597, 325 P3d 819 (2014). The court 

therefore denied the motion for substitution and dismissed 

the petition for judicial review. We review those determinations for errors of law, ORS 183.482(8), and, for the reasons explained below, we reverse the decision of the Court of 

Appeals and remand to that court for a determination of the 

merits of the petition for judicial review.

FACTS AND PROCEDURAL HISTORY

In 2009, claimant sought workers’ compensation benefits for a work-related injury. Before the date of 

his injury, claimant had preexisting multilevel degenerative disc disease and a history of intermittent low back 

pain with some bilateral radiation to his legs. SAIF, the 

employer’s workers’ compensation insurer, accepted a claim 

for a lumbar strain. Claimant subsequently sought acceptance of a combined condition, which SAIF ultimately 

denied on the ground that the accepted injury was no longer the major contributing cause of the combined condition. 

Claimant filed a request for hearing on the denial under 

ORS 656.283(1), which authorizes parties to file requests 

for hearings on matters concerning a claim.2

 The Workers’

1 We quote ORS 656.218 below.

2 ORS 656.283(1) provides:

“Subject to ORS 656.319, any party or the Director of the Department of 

Consumer and Business Services may at any time request a hearing on any 

matter concerning a claim, except matters for which a procedure for resolving 

the dispute is provided in another statute, including ORS 656.704.”
Cite as 357 Or 122 (2015) 125

Compensation Board upheld SAIF’s denial, and claimant 

sought judicial review in the Court of Appeals. Before that 

court, claimant conceded that the accepted lumbar strain 

was no longer the cause of his combined condition. However, 

claimant contended that, in determining the compensability of his claim, the board erroneously had framed the 

inquiry in terms of whether the accepted condition continued to be the major contributing cause of his disability or 

need for treatment. In claimant’s view, the proper inquiry 

was whether his accidental injury continued to be the major 

contributing cause of his combined condition. Claimant contended that there was no evidence that that injury was no 

longer the major contributing cause of his disability or need 

for treatment.

While judicial review was pending before the Court 

of Appeals, claimant died of causes unrelated to his workplace injury, without a surviving spouse or other beneficiary entitled to a death benefit under ORS 656.204. See 

also ORS 656.005(2) (defining “beneficiary” to mean “an 

injured worker, and the husband, wife, child or dependent 

of a worker, who is entitled to receive payments under this 

chapter”). After claimant’s death, SAIF moved to dismiss 

the petition for judicial review; in response, the personal 

representative of claimant’s estate sought to be substituted 

as the real party in interest for purposes of judicial review. 

SAIF objected to the proposed substitution on the ground 

that claimant’s estate is not a “person” entitled to pursue a 

claim under ORS 656.218(3).

As discussed, the Court of Appeals agreed with 

SAIF and dismissed the petition for judicial review. That 

court initially observed that, under the pre-2009 version of 

the statute, it had held in several cases that the persons 

entitled to pursue a claim under ORS 656.218(3) after a 

worker’s death were the same persons entitled to receive 

death benefits under ORS 656.204, and did not include the 

worker’s estate or personal representative. See, e.g., Cato v. 

Alcoa-Reynolds Metals Co., 210 Or App 721, 729-30, 152 P3d 

981, rev den, 343 Or 115 (2007) (former ORS 656.218(3) and 

(5) limited the right to pursue a hearing after the death of 

a worker to persons entitled to death benefits under ORS 

656.204).
126 Sather v. SAIF

The Court of Appeals concluded that a 2009 amendment to ORS 656.218 did not fundamentally alter the 

analysis:

“[T]the only amendment of ORS 656.218 in 2009 was to 

subsection (5), by the replacement of the subsection’s former second sentence (‘In the absence of persons so entitled, 

a burial allowance may be paid not to exceed the lesser of 

either the unpaid award or the amount payable by ORS 

656.204.’) with a new second sentence—‘In the absence of 

persons so entitled, the unpaid balance of the award shall 

be paid to the worker’s estate.’”

Sather, 262 Or App at 604. The court reasoned:

“ORS 656.218(3) continues to describe the persons who may 

pursue a claim as ‘the persons described in subsection (5).’

The first sentence of ORS 656.218(5) continues to state that 

the payments required by the statute are to be made to ‘the 

persons who would have been entitled to receive death benefits[.]’ The most straightforward reading of the text is that 

those are the ‘persons’ to whom ORS 656.218(3) refers, and 

they do not include the worker’s estate or personal representative. The new second sentence’s requirement that, in 

the event that there are no ‘persons so entitled,’ ‘the unpaid 

balance of the award’ is to be paid to the estate does not 

alter our conclusion. That sentence reveals two factors central to its application: (1) an estate is not among the ‘persons 

so entitled,’ and (2) there exists a previous award with an 

‘unpaid balance,’ that is, the worker’s entitlement to benefits has been previously determined. In other words, the 

second sentence is applicable when the deceased worker’s

eligibility for benefits or the amount of benefits has been 

determined—when there has been an award. In the 

absence of persons entitled to receive death benefits, the 

estate receives the remaining unpaid balance of an award 

previously determined. But, contrary to the dissent’s reasoning, that sentence does not provide independent authority for the estate to pursue a claim that has not yet been 

determined.”

Id. at 605.

The Court of Appeals also noted that, when the 

2009 legislature amended subsection (5) by eliminating the 

provision for a burial allowance and authorizing a worker’s 

estate to receive unpaid awards, it made a similar change 
Cite as 357 Or 122 (2015) 127

to ORS 656.204(1)(b), which previously had provided for 

payment of the cost of “burial.” Id. at 606. According to the 

court, “Those changes, together with the amendment to 

ORS 656.218(5), reflect a consistent intention that, when an 

award has been made and there are no surviving statutory 

beneficiaries of the worker as defined in ORS 656.204, the 

estate must receive any previously awarded benefits.” Id.

(emphasis added).

In sum, the Court of Appeals’ holding hinged on two 

legal conclusions: First, for purposes of subsection (3), “the 

persons described in subsection (5)” include only the “persons” described in the first sentence of subsection (5), not a 

worker’s estate under the second sentence of subsection (5); 

and second, the phrase “unpaid balance of the award” in the 

second sentence of subsection (5) restricts an estate’s entitlement to PPD benefits that were awarded before a worker’s 

death.3

 This court accepted review to address the personal 

representative’s challenge to those conclusions.

STATUTORY OVERVIEW

A brief overview will be helpful in understanding 

the key statutory terms. ORS 656.218 governs the survival 

of claims for benefits after the death of an injured worker as 

a result of causes unrelated to the accidental injury. That 

statute provides:

“(1) In case of the death of a worker entitled to compensation, whether eligibility therefor or the amount thereof 

have been determined, payments shall be made for the 

period during which the worker, if surviving, would have 

been entitled thereto.

“(2) If the worker’s death occurs prior to issuance of 

a notice of closure under ORS 656.268, the insurer or the 

self-insured employer shall determine compensation for 

permanent partial disability, if any.

“(3) If the worker has filed a request for a hearing pursuant to ORS 656.283 and death occurs prior to the final 

disposition of the request, the persons described in subsection (5) of this section shall be entitled to pursue the matter 

3 Judge Egan, in dissent, disagreed with both conclusions.
128 Sather v. SAIF

to final determination of all issues presented by the request 

for hearing.

“(4) If the worker dies before filing a request for hearing, the persons described in subsection (5) of this section 

shall be entitled to file a request for hearing and to pursue 

the matter to final determination as to all issues presented 

by the request for hearing.

“(5) The payments provided in this section shall 

be made to the persons who would have been entitled to 

receive death benefits if the injury causing the disability 

had been fatal. In the absence of persons so entitled, the 

unpaid balance of the award shall be paid to the worker’s 

estate.

“(6) This section does not entitle any person to double 

payments on account of the death of a worker and a continuation of payments for permanent partial disability, or to 

a greater sum in the aggregate than if the injury had been 

fatal.”

Regardless of whether a deceased worker’s claim 

for an award of benefits was finally determined before the 

worker’s death, subsection (1) provides that payments “shall 

be made” for the period during which the worker would have 

been entitled to such benefits if he or she had survived. When 

a worker dies after requesting a hearing on the denial of a 

claim but before the final determination of a request for judicial review, subsection (3) states that “the persons described 

in subsection (5) of this section shall be entitled to pursue 

the matter to final determination.” (Emphasis added.) The 

“persons” described in the first sentence of subsection (5) 

include those persons “who would have been entitled to 

receive death benefits if the injury causing the disability 

had been fatal.” Those persons, if any, are determined with 

reference to ORS 656.204,4

 which designates the deceased 

4 ORS 656.204 provides, in part:

“If death results from the accidental injury, payments shall be made as 

follows:

“(1)(a) The cost of final disposition of the body and funeral expenses, 

including but not limited to transportation of the body, shall be paid, not to 

exceed 20 times the average weekly wage in any case.

“(b) The insurer or self-insured employer shall pay bills submitted 

for disposition and funeral expenses up to the benefit limit established in 

paragraph (a) of this subsection. If any part of the benefit remains unpaid
Cite as 357 Or 122 (2015) 129

worker’s surviving spouse, dependent children, and other 

dependents as the recipients of “benefits” when the worker’s 

death resulted from accidental injury. If no person within 

the class of persons described in the first sentence of ORS 

656.218(5) exists who is authorized to pursue a deceased 

worker’s request for a hearing to a final determination, the 

second sentence of subsection (5) provides that “the unpaid 

balance of the award shall be paid to the worker’s estate.” 

The dispute between the parties depends, textually, on 

whether the worker’s estate is a person that may pursue a 

matter to final determination under subsection (3).

Although the current version of ORS 656.218 applies 

to the issues before us, the evolution of the statute into its 

current form is helpful context. The reference to an “unpaid 

balance of the award” in ORS 656.218(5) dates back to early 

versions of the statute, which provided that a deceased 

60 days after claim acceptance, the insurer or self-insured employer shall pay 

the unpaid amount to the estate of the worker.

“(2)(a) If the worker is survived by a spouse, monthly benefits shall be 

paid in an amount equal to 4.35 times 66-2/3 percent of the average weekly 

wage to the surviving spouse until remarriage. The payment shall cease at 

the end of the month in which the remarriage occurs.

“(b) If the worker is survived by a spouse, monthly benefits also shall be 

paid in an amount equal to 4.35 times 10 percent of the average weekly wage 

for each child of the deceased who is substantially dependent on the spouse 

for support, until such child becomes 18 years of age.

“(c) If the worker is survived by a spouse, monthly benefits also shall 

be paid in an amount equal to 4.35 times 25 percent of the average weekly 

wage for each child of the deceased who is not substantially dependent on the 

spouse for support, until such child becomes 18 years of age.

“* ****

“(4)(a) If the worker leaves neither wife nor husband, but a child under 

18 years of age, a monthly benefit equal to 4.35 times 25 percent of the average weekly wage shall be paid to each such child until the child becomes

18 years of age.

“* ****

“(5)(a) If the worker leaves a dependent other than a surviving spouse 

or a child, a monthly payment shall be made to each dependent equal to

50 percent of the average monthly support actually received by such dependent from the worker during the 12 months next preceding the occurrence 

of the accidental injury. If a dependent is under the age of 18 years at the 

time of the accidental injury, the payment to the dependent shall cease when 

such dependent becomes 18 years of age. The payment to any dependent shall 

cease under the same circumstances that would have terminated the dependency had the injury not happened.”
130 Sather v. SAIF

worker’s surviving beneficiaries were entitled to receive only 

benefits that finally had been determined before the death of 

the worker.5

 In 1973, the legislature amended ORS 656.218 

by adding to subsection (1) the phrase “whether his eligibility therefor or the amount thereof have been determined.” 

Or Laws 1973, ch 355, § 1. In the same amendment, the 

legislature added new subsections (2), (3), and (4), to provide 

for the survival—in favor of such beneficiaries—of claims 

that had not finally been determined before the worker’s 

death. Id. To effectuate its purpose, the 1973 legislature 

also amended former subsection (2), now subsection (5), to 

provide:

“The payments provided in subsections (1), (2), (3) and 

(4) of this section shall be made to the persons who would 

have been entitled to receive death benefits if the injury 

causing the disability had been fatal. In the absence of 

persons so entitled, a burial allowance may be paid not to 

exceed the lesser of either the unpaid award or the amount 

payable by ORS 656.204.”

Id.

In 1987, the legislature amended the first sentence 

of subsection (5) to read: “The payments provided in this 

section shall be made to the persons who would have been 

entitled to receive death benefits if the injury causing the 

disability had been fatal.” Or Laws 1987, ch 884, § 16. The 

second sentence of subsection (5) was not changed. Based on 

the word “may” in the second sentence, the Court of Appeals 

previously had held that payment of a burial allowance was 

discretionary; as a consequence, the Court of Appeals had 

determined that “there is no need to give personal representatives the right to pursue claims under ORS 656.218.” 

Edwards v. Cherry City Elec., Inc., 141 Or App 578, 584, 919 

5 For example, ORS 656.218 (1959) provided, in pertinent part:

“(1) In case of the death of a workman receiving monthly payments on 

account of permanent partial disability, such payments shall continue for 

the period during which the workman, if surviving, would have been entitled 

thereto.

“(2) The payments shall be made to the persons who would have been 

entitled to receive death benefits if the injury causing the disability had been 

fatal. In the absence of persons so entitled, a burial allowance may be paid 

not to exceed the lesser of either the unpaid award or the amount payable by 

ORS 656.204.”
Cite as 357 Or 122 (2015) 131

P2d 501 (1996). After the 1987 amendment, ORS 656.218 

did not substantively change for purposes relevant to this 

matter until 2009.

The 2009 amendments to ORS 656.204 and ORS 

656.218 were part of Senate Bill (SB) 110 (2009), which 

was enacted in response to a Workers’ Compensation 

Management-Labor Advisory Committee (MLAC) study. 

The purpose of that study, which was submitted to the legislative committees that considered SB 110, was to examine the adequacy of death-related benefits that were available to a deceased worker’s survivors under the Workers 

Compensation laws. With regard to ORS 656.218, the executive summary of the MLAC report stated:

“ORS 656.218 states that if a worker dies before his or her 

permanent partial disability award is paid in full and the 

worker has a spouse or dependent children, the insurer pays 

the full remainder of the award to them. However, the law 

also states that if the worker does not have a spouse or 

dependent children, the insurer only pays the statutory 

burial amount or the remaining permanent partial disability award, whichever is less. MLAC concluded that the 

insurer should be obligated to pay the full remaining award, 

whether or not the worker has a spouse or children.”

Workers’ Compensation Management-Labor Advisory Committee, Senate Bill 835 (2007) Death Benefit Study Report, 

Executive Summary (January 2009) (emphasis added). The 

body of the report essentially repeated the quoted description of the operative effect of the then-existing version of the 

statute, with the following variation on the first sentence: 

“ORS 656.218 states what happens if a worker dies before 

his or her permanent partial disability award is paid in 

full.” Id. at 9.

Based on the MLAC study report, the 2009 legislature amended ORS 656.218(5) to eliminate the discretionary provision for a burial allowance and to provide that an 

estate “shall” receive the “unpaid balance of the award” if no 

eligible beneficiaries exist. Or Laws 2009, ch 171, § 2. The 

legislature made a similar change to ORS 656.204(1)(b),

which previously had provided for payment of the cost of 

“burial.” As amended by Or Laws 2009, ch 171, § 1, ORS 

656.204(1) requires an insurer to pay the expenses for 
132 Sather v. SAIF

disposition of the worker’s body and funeral expenses, but 

not to exceed 20 times the worker’s average weekly wage. 

It further provides that “any part of the [funeral] benefit 

[that] remains unpaid 60 days after claim acceptance” is to 

be paid to the estate of the worker. ORS 656.204(1)(b). With 

those changes, ORS 656.204 (as to disposition and funeral 

benefits) and ORS 656.218 (as to PPD benefits), for the 

first time, specifically required the payment of benefits to a

worker’s estate.

As elaborated below, an aspect of the parties’ disagreement about the meaning of ORS 656.218(3) and (5) 

appears to have its roots in the above quoted statements 

from the MLAC study report, which imprecisely described 

the operative effect of ORS 656.218 (1999). As noted, subsection (1), which was not altered by the 2009 amendment, 

had—since 1973—required the payment of benefits after 

the death of an injured worker, regardless of whether the 

worker’s eligibility for, or the amount of, such benefits had 

been determined before the worker died. Also since 1973, 

ORS 656.218(2), (3), and (4) had provided for the survival 

of pending claims that had not been finally determined 

before a worker’s death. The term “award” itself, as used 

in subsection (5), was an apparent holdover from pre-1973 

versions of the statute that provided for survivor payments 

only of benefits that finally had been determined before the

worker’s death. Thus, although the MLAC study report 

spoke in terms of an “award,” ORS 656.218, by its terms, 

imposed on insurers an obligation to pay benefits that had 

not finally been determined before a worker’s death. Against 

that statutory backdrop, the terminology used in that report 

was carried forward into ORS 656.218(5) (2009), which 

requires payment of the “unpaid balance of the award” to 

the worker’s estate if no eligible beneficiaries exist under 

ORS 656.204. With that background, we turn to the controlling statutory construction analysis.

ANALYSIS

As discussed, the first issue before us is whether “the 

persons described in subsection (5)” under ORS 656.218(3) 

include not only the “persons” described in the first sentence 

of subsection (5), but also a worker’s estate under the second 
Cite as 357 Or 122 (2015) 133

sentence of subsection (5). In addressing that issue, we 

examine the text of that statute in context and, where appropriate, consider legislative history and pertinent canons of 

statutory construction. State v. Gaines, 346 Or 160, 171-72, 

206 P3d 1042 (2009). As the term is used in ORS chapter 

656, “person” “includes [a] partnership, joint venture, association, limited liability company and corporation.” ORS 

656.005(23).6

 Although an “estate” is not expressly included 

in that definition, neither, for that matter, are individual 

human beings. The question is how broadly or narrowly the 

phrase “persons described in subsection (5)” was meant to 

be interpreted. As we now explain, we conclude that the legislature intended that phrase to include, where applicable, a 

deceased worker’s estate.

Our point of departure is the principle of ejusdem 

generis, which “serves to confine the interpretation of [a] 

general term according to one or more common characteristics of the listed examples.” State v. Kurtz, 350 Or 65, 74, 

249 P3d 1271 (2011); see also Lewis v. CIGNA Ins. Co., 339 

Or 342, 350-51, 121 P3d 1128 (2005) (under ejusdem generis

rule, court examines “basic characteristics” of enumerated 

items when construing more general words). When they precede a list of examples, statutory terms such as “includes” 

and “including but not limited to” typically convey an intent 

that the accompanying examples be read in a nonexclusive 

sense. Kurtz, 350 Or at 75. In that context, we “give interpretive weight to all the words that the legislature used,” 

including both the general term and any specific examples. 

Schmidt v. Mt. Angel Abbey, 347 Or 389, 404, 223 P3d 399 

(2009). As this court explained in Schmidt:

“That does not mean, of course, that the specific examples constitute the universe of items to which the general 

term refers; rather, it means only that our interpretation 

6 That definition is consistent with the definition of “person” in ORS 174.100, 

which provides, in part:

“As used in the statute laws of this state, unless the context or a specially 

applicable definition requires otherwise:

“* ****

“(5) ‘Person’ includes individuals, corporations, associations, firms, partnerships, limited liability companies and joint stock companies.”
134 Sather v. SAIF

of the general term includes consideration of those specific 

examples.”

Id.

We conclude that, by using the word “includes” in 

ORS 656.005(23), the legislature likely intended a nonexclusive meaning for the word “person.” Otherwise, as 

noted, the term necessarily would exclude an individual 

human being, which would make no sense. Instead, the 

word “person” more plausibly encompasses its ordinary 

meaning: “a human being, a body of persons, or a corporation, partnership, or other legal entity that is recognized 

by law as the subject of rights and duties.” Webster’s Third 

New Int’l Dictionary 1686 (unabridged ed 2002). If, as the 

term is used in ORS 656.218(3), “persons” is understood 

to include, in addition to the categories of entities listed in 

ORS 656.005(23), other entities that are recognized by law 

as subject to legal rights and duties, an estate, too, would 

qualify. Estates, acting through a personal representative, have numerous legal rights and duties in connection 

with the administration of a decedent’s affairs, including 

the payment of debts and distribution of property. As an 

example, a decedent’s estate is a “taxpayer” for purposes 

of Oregon’s income tax law. See ORS 316.022(7) (defining 

“taxpayer” to include an estate); see also Barber v. Dept. of 

Rev., 5 OTR 342, 344 (1973) (“A decedent’s estate is a legal 

entity separate and apart from the decedent. (See ORS 

ch 114.).”).

Definitions of “person” in statutes outside ORS chapter 656 are consistent with the understanding that an estate 

is a legal entity that can qualify as a “person.” For example, under the Uniform Adult Guardianship and Protective 

Proceedings Jurisdiction Act, ORS 125.802(10)(a),

“‘[p]erson’ means an individual, corporation, business 

trust, estate, trust, partnership, limited liability company, 

association, joint venture, public corporation, government 

or governmental subdivision, agency or instrumentality or 

any other legal or commercial entity.”

See also ORS 128.316(6) (“‘Person’ means an individual, corporation, business trust, estate, trust, partnership, limited 
Cite as 357 Or 122 (2015) 135

liability company, association, joint venture, public corporation, government or governmental subdivision, agency or 

instrumentality, or any other legal or commercial entity.”); 

ORS 646A.602(10) (“‘Person’ means any individual, private 

or public corporation, partnership, cooperative, association, 

estate, limited liability company, organization or other entity, 

whether or not organized to operate at a profit, or a public 

body as defined in ORS 174.109.”).7

 In each of the described 

statutes, the qualifying list of persons is more comprehensive than the list of examples in ORS 656.005(23), likely 

because the legislature used the restrictive word “means” 

in those statutes, rather than the broader word “includes.” 

However, those statutes show that the legislature often has 

expressly designated an estate as a person when, as in ORS 

656.005(23), it has defined “person” to mean any among an 

array of legal entities that are recognized by law as the subject of rights and duties.8

The difficulty with the Court of Appeals’ narrower 

interpretation of “person” in ORS 656.218(3) is that it fails to 

read subsections (3) and (5) in the context of the statute as a 

whole. As discussed, subsection (1) provides that payment of 

compensation to which a deceased worker was entitled shall 

be made “whether eligibility therefor or the amount thereof 

have been determined.” The Court of Appeals’ interpretation would result in the anomalous consequence that compensation for an undetermined permanent partial disability 

claim must be paid even if no surviving spouse or dependents 

exist, without providing a remedy to enforce the obligation if 

it is not voluntarily paid. Where, as here, neither claimant’s 

7 But see State v. Patton, 237 Or App 46, 50, 238 P3d 439 (2010), rev den, 350 

Or 131 (2011) (estate of victim was not entitled to restitution where statutory 

definition of “victim” referred to a “person,” and relevant statutory definition of 

“person” in ORS 161.015(5) was limited by its terms to “mean[] a human being, 

and, where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality”).

8 Worth noting is that the term “estate” does not always refer to an entity 

recognized by law as having legal rights and duties. The term also can refer to 

the property of a decedent. See ORS 111.005(15) (so defining “estate” for purposes 

of the probate code); see also ORS 114.505(3) (so defining “estate” for purposes 

of small estate procedure). However, it is readily apparent from the text of ORS 

656.218(5), in context, that “estate,” as used in that provision, refers to a legal 

entity that is entitled to receive payment of benefits, not to the property of the 

decedent.
136 Sather v. SAIF

eligibility for—nor the amount of—permanent partial disability benefits finally had been determined at the time of 

his death, the matter can be much more complicated than 

simply making a payment or series of payments. As the parties’ dispute on the merits of the claim indicates, any number of factual and legal disagreements can arise that, in the 

absence of a forum with authority to adjudicate them, could 

end in impasse, thereby frustrating the legislature’s express 

purpose that unpaid benefits to which a deceased worker 

was entitled, whether finally determined or not, should be 

paid after his or her death. A broader interpretation of “person” in subsection (3) avoids that anomaly.

The fact that the legislature used the word “persons” in the first sentence of subsection (5), but did not 

expressly refer to an estate as a “person” in the second sentence of that subsection, does not alter our conclusion. As 

noted, the first sentence of subsection (5) refers to “persons 

who would have been entitled to receive death benefits if 

the injury causing the disability had been fatal.” That reference implicates ORS 656.204, which provides for payments 

where a workplace injury has caused the worker’s death. 

As noted, under ORS 656.204(1)(b), although an estate is 

entitled to payment of the costs of disposition and funeral 

expenses, an estate is not a person who would have been 

entitled to a “death benefit” under ORS 656.204. “Benefits” 

are payable under subsections (2) through (8) of that statute 

to a deceased worker’s spouse and dependents. The fact that 

a worker’s estate is not such a person is confirmed by the 

perceived need for the second sentence of ORS 656.218(5), 

which applies only when no “persons” described in the first 

sentence exist.

However, the fact that an estate is not a person 

described in ORS 656.204 does not mean that an estate 

is not a person at all. As used in the first sentence of subsection (5), “persons” refers to a specific category, not the 

entire universe, of persons. Although the second sentence 

of subsection (5) excludes the specific category of persons 

in the first sentence, it still may describe a “person” within 

the meaning of ORS 656.005(23). Whether an estate is such 

a person requires the more detailed analysis that we have 
Cite as 357 Or 122 (2015) 137

undertaken. Based on that analysis, which includes the text 

and context of ORS 656.218, including ORS 656.005(23), we 

conclude that “the persons described in subsection (5),” as the 

term is used in subsection (3), include a deceased worker’s

estate.9

We now turn to the Court of Appeals’ conclusion that 

the phrase “unpaid balance of the award” in ORS 656.218(5) 

restricts an estate’s entitlement to the payment of benefits 

that finally had been determined before the worker died. At 

one level, our determination that claimant’s estate is a person described in subsection (5) for purposes of subsection (3) 

could be deemed to fatally undermine that conclusion. That 

is, by its terms, subsection (3) provides that such persons, 

including a worker’s estate, are entitled to pursue a deceased 

worker’s request for hearing “to final determination of all 

issues presented by the request for hearing.” However, even 

though we have concluded that a worker’s estate is a person described in subsection (5), it is arguable that an estate 

nevertheless could have a restricted right to the payment of 

benefits, depending on the meaning of the phrase “unpaid 

balance of the award” in the second sentence of subsection (5).

Accordingly, it is appropriate to determine—using our customary statutory construction methodology—whether that 

phrase restricts a worker’s estate’s entitlement to the payment of benefits that finally had been determined before the 

worker died.

The word “award” and the phrase “unpaid balance 

of the award” are not defined in the Workers’ Compensation 

9 Before turning to the second ground of the Court of Appeals decision, we 

briefly note an aspect of ORS 656.283(1) that has peripheral bearing on the problem before us. As discussed above, that provision authorizes “any party” or the 

Department of Consumer and Business Services to “request a hearing on any 

matter concerning a claim.” “Party,” for purposes of the Workers’ Compensation 

Law, means “a claimant for compensation, the employer of the injured worker at 

the time of injury and the insurer, if any, of such employer.” ORS 656.005(21). 

SAIF argues that claimant’s estate is not a “party” for purposes of ORS 656.283 

because it is not an employer, insurer, nor “a claimant for compensation.” We need 

not decide whether an estate qualifies as a claimant for compensation because, as 

SAIF itself observes, by its terms ORS 656.283(1) does not apply to “matters for 

which a procedure for resolving the dispute is provided in another statute.” And, 

as SAIF also observes, ORS 656.218(3) is such a statute. Accordingly, whether 

or not claimant’s estate would qualify as a “party” under ORS 656.283(1) is not 

dispositive of the issue before us.
138 Sather v. SAIF

statutes. However, “award” is used throughout the statutory framework—in particular, with reference to permanent partial disability—to describe the final disposition of 

a claim that is favorable, at least in part, to the claimant.10

Moreover, the term “unpaid balance” could be understood 

to indicate that part—but not all—of an existing award 

was paid before the worker’s death. Viewed accordingly, 

the Court of Appeals’ interpretation is, as a textual matter, plausible. That is, “the unpaid balance of the award” 

could refer to the unpaid amount of an award that finally 

was determined before the worker’s death.

However, there is another plausible interpretation of 

the disputed phrase. Under that interpretation, “the unpaid 

balance of the award” does not restrict an estate’s entitlement 

to previously awarded benefits. Instead, it was meant more 

broadly to capture—in a single provision—two scenarios. 

The first is the one that the Court of Appeals envisaged. In 

contrast, in the second scenario, the worker’s eligibility for, 

and the amount of, benefits would be determined after the 

worker’s death. See ORS 656.218(2), (3), (4). In that scenario, 

if a deceased worker was determined to have been eligible 

for compensation, an award ultimately would be made, the 

entire balance of which would have been unpaid when the 

worker died. When understood in that way, the second sentence of subsection (5) refers to an estate’s entitlement to the 

10 For example, ORS 656.214 provides, in part:

“(2) When permanent partial disability results from a compensable 

injury or occupational disease, benefits shall be awarded as follows:

“(a) If the worker has been released to regular work by the attending 

physician or nurse practitioner authorized to provide compensable medical 

services under ORS 656.245 or has returned to regular work at the job held 

at the time of injury, the award shall be for impairment only.

“* ****

“(b) If the worker has not been released to regular work by the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 or has not returned to regular work at the 

job held at the time of injury, the award shall be for impairment and work 

disability.

“* ****

“(3) Impairment benefits awarded under subsection (2)(a) of this section 

shall be expressed as a percentage of the whole person.”

(Emphasis added.)
Cite as 357 Or 122 (2015) 139

unpaid balance of an award, regardless of whether the award 

finally had been determined when the worker died.11 That is, 

the estate is entitled to “the unpaid balance of the award” 

pursuant to subsection (5), regardless—in accordance with 

subsection (1)—of “whether eligibility therefor or the amount 

thereof” had been determined before the worker died.

Because both constructions of the phrase “unpaid 

balance of the award” are textually plausible, we consider 

them in the context of the other provisions of ORS 656.218 

to determine which construction better comports with the 

legislature’s probable intent. See, e.g., Bergmann v. Hutton, 

337 Or 596, 603, 101 P3d 353 (2004) (using context to resolve 

choice between two textually plausible constructions of statute). For several reasons, that inquiry favors the broader 

construction of the disputed phrase.

First, only that broader construction is consistent 

with our conclusion that an estate is a person described in 

subsection (5) that is authorized, under subsection (3), to 

pursue requests for hearing to a final determination after 

a worker’s death. Second, the broader construction is consistent with the plain text of ORS 656.218(1), which states 

that, if a deceased worker was entitled to compensation, 

“whether eligibility therefor or the amount thereof have 

been determined, payments shall be made for the period 

during which the worker, if surviving, would have been entitled thereto.” In contrast, the Court of Appeals’ narrower 

construction of the phrase “unpaid balance of the award” 

11 In reaching a different conclusion, the Court of Appeals emphasized that, 

as amended in 2009, ORS 656.204(1)(b), adopted a formula that, among other 

things, requires an insurer to pay an estate for the costs of disposition of the 

worker’s body and funeral expenses “that remain unpaid” 60 days after claim 

acceptance. From those changes, along with the amendment to ORS 656.218(5), 

the Court of Appeals inferred “a consistent intention that, when an award has 

been made and there are no surviving statutory beneficiaries of the worker as 

defined in ORS 656.204, the estate must receive any previously awarded benefits.” Sather, 262 Or App at 606. With respect, we fail to discern evidence in 

the provisions of ORS 656.204(1), as amended in 2009, for the inference that 

the Court of Appeals drew. Where a worker’s death results from an accidental 

workplace injury, ORS 656.204(1) requires an insurer to pay certain bills, and 

if they remain unpaid 60 days after claim acceptance, to pay the unpaid amount 

of the funeral and burial benefit to the worker’s estate. The fact that that fallback payment obligation involves “previously awarded benefits” is a function of 

the insurer’s primary obligation to pay the bills in the first instance. It does not 

materially inform our analysis of the issue at hand.
140 Sather v. SAIF

depends on one or both of two less plausible propositions: 

(1) ORS 656.218(1) requires an insurer to pay compensation 

for claims on which no award was made before an injured 

worker died, only where persons exist who would have 

been entitled to death benefits under ORS 656.204 if the

worker’s injury had been fatal; or (2) ORS 656.218(1) requires 

an insurer to pay compensation to which a deceased worker 

would have been entitled on claims on which no award was 

made before the worker died, but, in the absence of one or 

more eligible beneficiaries under ORS 656.204, the obligation is unenforceable.

The proposition that subsection (1) requires an 

insurer to pay undetermined claims only when eligible beneficiaries exist under ORS 656.204 ignores the plain text of 

subsection (1) and requires rewriting it by inserting a reference to the beneficiaries listed under ORS 656.204. That 

interpretation would be inconsistent with a court’s duties 

not to insert into a statute what has been omitted, or to 

omit what has been inserted, and, where there are several 

provisions or particulars, to adopt a construction that will 

give effect to all parts of the statute whenever possible. ORS 

174.010.12

The alternative proposition that subsection (1) creates an obligation without a remedy fails to account for 

why—in the absence of eligible beneficiaries under ORS 

656.204—the legislature would create an obligation under 

ORS 656.218(1) to pay previously undetermined benefits to 

12 At oral argument, SAIF raised an additional argument in support of that 

first proposition that was not developed in its brief on review nor addressed by the 

Court of Appeals—namely, that an estate is not entitled to “compensation” pursuant to ORS 656.218(1), because, under ORS 656.005(8), compensation is only provided to a “subject worker or the worker’s beneficiaries.” The term “beneficiary,” 

the argument proceeds, is restricted to an injured worker and the worker’s spouse 

or dependents. ORS 656.005(2). The answer to that argument is straightforward: 

ORS 656.218(1) refers to the worker’s entitlement to compensation; it directs that 

payment be made based on that entitlement, a direction that does not depend on 

whether the worker was survived by a person who would have been entitled to 

death benefits under ORS 656.204 if the worker’s injury had been fatal. To the 

contrary, if SAIF were correct in asserting that only a subject worker or his or 

her statutory beneficiaries are entitled to receive payments under subsection (1), 

then SAIF’s own reading of subsection (5), under which a worker’s estate would 

be entitled to the unpaid balance of a pre-death PPD award where the worker 

died without qualifying beneficiaries under ORS 656.204, would be in direct tension with subsection (1).
Cite as 357 Or 122 (2015) 141

which the worker, if surviving, would have been entitled, but 

designate no person to receive, much less enforce, the obligation to pay such benefits. SAIF downplays that quandary for 

two reasons. First, as discussed, it asserts that an estate is 

entitled to receive only an award of benefits that was determined before the worker died—a proposition that we already 

have rejected. Second, SAIF points out that the director of 

the Department of Business and Consumer Services has 

authority under ORS 656.745(2)(b) to assess a civil penalty 

against an insurer that “[f]ails to comply with statutes *** 

or other requirements necessary to carry out the purposes of 

[ORS chapter 656].” Perhaps so, but that is a far cry from a 

direct remedy that can be sought by a person who is entitled 

to pursue a claim and receive payment.

Finally, the broader construction of the phrase 

“unpaid balance of the award” is consistent with the legislative history of the 2009 amendment to subsection (5). As 

noted, the executive summary of the MLAC report indicated 

that “the insurer should be obligated to pay the full remaining award, whether or not [a deceased] worker has a spouse 

or children.” In making that declaration, there is no indication that the MLAC—much less the legislature that adopted 

its proposal—intended to distinguish between awards that 

had been finalized before, as opposed to after, a worker’s 

death.13

In short, we conclude that the phrase “unpaid balance of the award” in the second sentence of ORS 656.218(5) 

does not restrict an estate’s entitlement to PPD benefits 

that were awarded before a worker’s death. Instead, in 

the absence of persons who would have been entitled to 

receive such benefits if the injury causing a worker’s disability had been fatal, an estate is entitled to pursue to final

13 The MLAC report did not refer to any particular subsection of ORS 

656.218; it simply purported to describe the operative effect of the statute. That 

is unsurprising in view of the fact, that—as discussed—the reference in subsection (5) to an “award” is directly traceable to a long-superseded version of the 

statute in which no survivor’s benefits were payable on claims that had not finally 

been determined before an injured worker’s death and, perforce, the first sentence of subsection (5) did not exist at all. At most, the history suggests that the 

MLAC and the legislature may not have actually considered how the two sentences of subsection (5) would work together now that, for the first time, a particular entity—the deceased worker’s estate—was designated to receive payment of 

a death benefit in the absence of eligible beneficiaries under ORS 656.204.
142 Sather v. SAIF

determination a worker’s request for a hearing pursuant to 

ORS 656.283 when the worker dies prior to the final disposition of the request.

CONCLUSION

To summarize: we hold that, in the absence of persons who would have been entitled to receive death benefits 

if the injury causing a deceased worker’s disability had been 

fatal, an award of permanent partial disability benefits that 

is finally determined after the worker’s death pursuant to 

ORS 656.218(3) is payable to the worker’s estate under ORS 

656.218(5). That conclusion follows from our first determination that, for purposes of subsection (3), “the persons 

described in subsection (5)” include a worker’s estate under 

the second sentence of subsection (5); and our second determination that the phrase “unpaid balance of the award” in 

the second sentence of subsection (5) does not restrict an 

estate’s entitlement to PPD benefits that were awarded 

before the worker’s death. It follows that the Court of Appeals 

erred in denying the personal representative’s motion for 

substitution as the real party in interest on review and that 

the court further erred in dismissing the petition for judicial 

review.

The decision of the Court of Appeals is reversed, 

and the case is remanded to that court for a determination 

of the merits of the petition for judicial review.