dissenting.
Close compensation cases involving interpretation of the statute ought to be decided in favor of injured employees. Holden v. Willamette Industries, 28 Or App 613, 618, 560 P2d 298 (1977). Arguably, this is a close case. The majority decides this case in the wrong direction, and I dissent.
I agree with the majority that the legislative history contains no express help in deciding the case and that it shows only that the legislature put in a three-day waiting period to save money in benefits and minimize administrative expenses “in smaller claims.” That history seems to favor claimant in *473this case, because his is not in the category of “smaller claims.”
However, the case does not need to be decided on the basis of a guess about what the legislature intended, because it can be decided on the basis of what it said. See Whipple v. Howser, 291 Or 475, 481, 632 P2d 782 (1981). The dispute is very narrow. Claimant suffered a compensable injury, left work “the day of the injury” and “suffered” temporary total disability “during the first three days” after he left work. He returned to work after that initial period. He missed four more days of work later in the same year and was unable to continue working after January 6, 1986. There is no doubt that his “total disability continuefd] for a period of [more than] 14 days,” but he did not miss 14 consecutive days beginning on September 25. The case turns on the definition and application of “continues.”
I do not think that a dictionary definition, one of which is relied on by the majority, moves the deciding process very far, unless we agree on what needs to “continue.” The majority apparently would hold that claimant’s absence from work on account of his compensable injury is the thing that has to be maintained without interruption. The statute very plainly makes “the total disability” the thing. As a simple matter of indisputable fact, claimant’s “total disability” eventually compelled him to be away from work for 14 days. Therefore, he is entitled to compensation for the September days when he missed work.
That result is not an unreasonable resolution of the statutory ambiguity; neither is the majority’s. What the majority’s result lacks is fairness and adherence to the principle that a close case involving the meaning of the statute should be resolved in favor of the claimant.1
Buttler, Rossman and Riggs, JJ., join in this dissent.In a system that tends to encourage malingering, we should avoid further encouragement. The majority’s result hardly comports with the policy of encouraging workers to return to work.