dissenting in part.
I dissent from that part of the majority opinion which reverses the Board’s order from which SAIF appeals. The policy question as to whether the purposes of the Act are more likely to be furthered by declining to permit a noncomplying employer to set-off against temporary total disability payments all sums the employer paid the injured employee prior to a determination order is well within • the legislative rulemaking power of the Board, ORS 656.726 (2) and (5), and even though we exercise de novo review (ORS 656.298(6)), we should not disturb such a policy judgment unless we can say that it is clearly wrong.
There are valid, rational bases for the Board’s order, which not only lead me to conclude that the Board is not clearly wrong, but that its policy decision is better than the one put forth by the majority. The choice is between benefitting an injured worker of a noncomplying employer or benefitting the errant employer.
The policy adopted by the majority would permit a noncomplying employer to lull an injured worker into . a false sense of security and deceive the worker into failing to file a claim under the Act. A noncomplying employer does not post the required notice advising *574the workers about benefits under the Act, including medical care, permanent disability awards, rights in the event of aggravation of the injury, etc., in addition to time loss benefits. To allow a noncomplying employer, when and if caught in a noncomplying status, to set off payments made to the injured worker as time loss payments under the Act might have a tendency to cause employers to take their chances in not complying with the Act. The fact that the noncomplying employer is subject to civil liability to its injured worker (ORS 656.020; 656.578) does not relieve the employer from paying the benefits otherwise provided in the Act until damages are recovered in a civil action. Those liabilities are strong incentives for a noncomplying employer to attempt to make the injured worker think the employer is being a good Samaritan by making payments to him or her voluntarily, and hope the worker will neglect to assert any claims against the employer.
A better rule would seem to be one which encouraged an employer to comply, but even if not complying, to advise an injured worker to file a claim under the Act immediately. If this were done, there would be no occasion for the noncomplying employer to be in the position of this employer. Even if the employer in good faith desired to help the injured employee pending time loss payments under the Act, there is no reason why the employer could not loan money to the worker. But to permit the employer to pay money to the injured worker in the hopes of avoiding any claims or lawsuits does not seem a desirable policy.
In balance, therefore, I would hold that claimant is entitled to temporary total disability payments for the period from May 12, 1976, to July 15, 1976. That rule, adopted by the Board, is not intended to be a penalty on the noncomplying employer. Penalties are specifically provided for in ORS 656.735. Rather, its function is to eliminate any incentive to an employer to fail to comply with the Act. It is not a penalty because the employer is left simply where he put himself. Further, *575he may avoid whatever adverse consequences that might result by:
(a) advising the injured worker to file a claim immediately;
(b) not paying the worker money, or
(c) loaning money, if necessary.
The penalties and attorney’s fees assessed and allowed by the Board are more problematical. However, SAIF’s refusal to make the time loss payments following the determination order that it do so, and without requesting a hearing to contest that determination, constitutes an unreasonable refusal to pay compensation, thereby subjecting SAIF to the penalty provisions of ORS 656.262(8), plus attorney’s fees which may be assessed under ORS 656.382. The Board was justified in assessing both in this case.
Accordingly, I would affirm. Therefore, I respectfully dissent.