dissenting.
I agree with the majority that “total disability” as used in ORS 656.210(1) means
“the loss, including preexisting disability, of use or function of any scheduled or unscheduled portion of the body which incapacitates the worker from regularly performing work at a gainful and suitable occupation.”
I further agree that when the loss is permanent the worker is permanently totally disabled and that when the loss is only temporary the worker is temporarily totally disabled. I further agree that our decision in Bono v. SAIF, 298 Or 405, 692 P2d 606 (1984), does not govern the case at bar.1 also agree that if the total disability is permanent, payment is made according to ORS 656.206 and that if the total disability is temporary, payment is made according to ORS 656.210.1 have now listed all that is in the majority opinion with which I can agree.
First, I wish to draw attention to the main theme underlying the majority opinion. The rest of the opinion is nothing but an attempt to find an underpinning for the result *303already expressed. The majority states that the “purpose” of temporary total disability compensation is to replace wages lost by a worker who is still in the labor market. One would expect to find some decision of this court, some words of the statute or some legislative history for that statement. One searches the majority opinion in vain for that support. The statement is pure ipse dixit. If that is legislative policy, the statement should be made by the legislature after an opportunity of the people of this state to present their divers views to the legislature. It surely cannot be a statement by this court, in its infinite wisdom, on the basis of briefs by none but the parties (and their supporters, linked in interest).
The majority questions the teaching of this court’s pronouncement 35 years ago in Lindeman v. State Indus. Acc. Comm., 183 Or 245, 192 P2d 732 (1948), where this court stated:
“The Oregon Workmen’s Compensation Act provides primarily for three types of compensation to be paid to employees covered by the act (or to their beneficiaries or dependents in case of death) for injuries arising out of and in the course of their employment. They are:
“(1) Compensation for disability, dependent as to amount upon whether the injury produces a permanent total, a temporary total, or a temporary partial disability. §§ 102-1756,102-1758, and 102.1759, O.C.L.A.
“(2) Compensation in stipulated amounts for loss of some part of the body, such as an arm, a leg, or an eye, and ‘other cases of injury resulting in permanent partial disability’. § 102-1760, O.C.L.A.
“(3) Compensation for death. §§ 102-1755,102-1757, and 102-1761, O.C.L.A.
“The statute provides no compensation for physical pain or discomfort. It is limited to the loss of earning ability. The loss of capacity to earn is the basis upon which compensation should be based. Weber v. American Silk Spinning Co., 38 R.I. 309, 95 A. 603, Ann. Cas. 1917E 153; Gillen v. Ocean Accident & Guarantee Corp., 215 Mass. 96,102 N.E. 346, L.R.A. 1916A 371.” (Emphasis added.)
183 Or at 249-250. Even if it be argued that the quoted material was dictum or the same kind of statement of policy made by the majority in this case, it was a statement that *304governed the trials of some 17 years of workers’ compensation cases. It was a statement embodied in the charges to juries. It was a statement that purported to interpret the statute. It was a statement accepted as a premise both by those in favor of, and those opposed to, the 1965 revision of the law. Regard for the doctrine of stare decisis should persuade the majority to abandon its holding.
In Lindeman this court noted that under § 102-1752, OCLA, a worker injured on the job was to be compensated for his disability. That section provided:
“Every workman subject to this act while employed by an employer subject to this act who, while so employed, sustains personal injury by accident arising out of and in the course of his employment and resulting in his disability * * * shall be entitled to receive from the industrial accident fund * * * the sum or sums hereinafter specified * * (Emphasis added.)
A related section, § 102-1754, provided:
“If any workman while he is subject to this act and in the service of an employer * * * shall sustain a personal injury by accident arising out of and in the course of his employment caused by violent or external means, he * * * shall receive compensation as hereinafter provided.”
Then followed the sections providing, in order for the calculation of benefits to be paid for death, permanent total disability, death during permanent total disability, temporary total disability, temporary partial disability and permanent partial disability.
The majority states that the “loss of earning capacity,” to which Lindeman refers, is only a factor with respect to temporary partial disability and permanent partial disability. I respectfully draw the attention of the majority to the language above quoted from Lindeman. The language is not limited to partial disability.
The majority states that the statute to which Lindeman spoke “no longer exists” and is “now defunct.” I invite the majority to compare ORS 656.202 to 656.214 with the sections of Oregon Compiled Laws Annotated to which Lindeman and I have referred, supra. ORS 656.202 provides that a *305subject worker who sustains a “compensable injury”2 shall receive compensation as provided in ORS 656.001 to ORS 656.794. Then follows, in order, just as in Oregon Compiled Laws Annotated, the method of calculating benefits to be paid for death, permanent total disability, death during permanent total disability, temporary total disability, temporary partial disability and permanent partial disability.
The majority is considerably taken with the fact that ORS 656.210 bases compensation for temporary total disability on a percentage of wages. Lo and behold! So did that “defunct” statute, § 102-1758, OCLA.
The statutes to which Lindeman spoke seem to be alive and well. The present codification is consonant. A worker is compensated for partial or total disability, temporary or permanent. ORS 656.210 provides explicitly that if the worker’s total disability is only temporary, the worker is to receive a certain percentage of weekly wage “the worker was receiving at the time of his injury.” The majority simply fails to address the fact that both of the workers with whom we are here concerned were actually working at the time of injury and that ORS 656.210 does no more and no less than to say that a worker who is temporarily totally disabled “shall receive” a percentage of the wage being earned at the time of the injury. No statute concerning temporary total disability states that the worker must “still be in the labor market” to receive compensation for that condition of unemployability resulting from industrial injury defined by both the majority and this opinion.
The majority justifies its usurpation of legislative function by resort to ORS 656.206(3), which requires a worker to prove “that the worker is willing to seek regular gainful employment and that the worker has made reasonable efforts to obtain such employment” in order to prove “permanent total disability status.” The majority says that ORS *306656.206(3) is an “explanation” of permanent total disability. ORS 656.206(3) is nothing more than a statement by the legislature that a worker must satisfy a certain condition precedent to achieve a “status” that will allow him to receive the compensation for permanent total disability to which he may be otherwise entitled.
Before turning to the possibility that these workers in the case at bar must satisfy the requirements of ORS 656.206(3), I desire to point out the total want of legislative indication that the subsection is to be considered in connection with compensation for temporary total disability.
The legislature has given some attention to offsetting certain social security benefits against the amount of compensation for permanent total disability to which a worker might be entitled. In ORS 656.209 the legislature has addressed the case of the worker who is receiving “disability” benefits from federal social security. Surely when that legislation was considered in 1977 and 1979, it could not have escaped legislative attention that there should be a similar offset for receipt of old age social security benefits by a worker who was permanently totally disabled, but the legislature did not provide for one to lose all or any part of compensation for permanent total disability because one was receiving old age social security benefits and, therefore, not “still in the labor market.”
If the legislature did not see fit to eliminate compensation for permanent total disability for old age “retirement” benefits, what suggests that the legislature intended to do so for those entitled to temporary total disability compensation by reason of being incapacitated to the extent mentioned at the outset of this opinion?
Because the majority desires to make ORS 656.206(3) a touchstone for entitlement to compensation for temporary total disability, I believe that the majority must have a longer, harder look at that subsection in order to reach the result that it does here.
That text requires that a worker must show his willingness and his efforts to find employment to gain the “status” of permanent total disability as defined in ORS 656.206(1). When must he show that? He must do so at the time he is seeking adjudgment that he is permanently totally *307disabled. This court has not addressed this condition precedent. The Court of Appeals has. That court has logically reasoned that a worker who is so incapacitated that motivation and seeking work would be “futile” need not undertake the fruitless task. See, for example, Brech v. SAIF, 72 Or App 388, 695 P2d 964 (1985), where the court held:
“The second basis for the referee’s denying permanent total disability is claimant’s alleged failure to comply with the requirement of ORS 656.206(3) that a claimant prove ‘that the worker is willing to seek regular gainful employment and that the worker has made reasonable efforts to obtain such employment.’ Claimant’s failure to seek employment is not unreasonable when, in view of his disabilities, such efforts would be futile. Hanna v. SAIF, 65 Or App 649, 654, 672 P2d 67 (1983); Looper v. SAIF, 56 Or App 437, 441, 642 P2d 325 (1982). The evidence establishes that claimant cannot perform regular gainful employment; because he is permanently totally disabled from a physical standpoint, it is unnecessary for him to undertake the futile effort of seeking employment.”
72 Or App at 391.I find it difficult to believe that the majority would quarrel with the line of decisions that the Court of Appeals has developed in this respect.
The majority would apply ORS 656.206(3) to entitlement to compensation for temporary total disability. Although I do not believe that is the proper course, I invite the majority to carry its desire to the logical result forecast by the Court of Appeals decisions with respect to entitlement to compensation for permanent total disability.
The plain fact of the matter is that both of the claimants at bar will not be able to work at least during the time of surgery. It is during that time that these claimants ask for the compensation for their unemployability. It would be futile indeed for them to seek employment from the hospital bed. That is the time period with which these cases are concerned, not some time either before or after that period in which it is conceded and agreed that they will not be able to work because of worsening of their conditions resulting from their original injuries.
The majority has taken the policy statement contained in ORS 656.012(2), the definition of “worker” in ORS 656.005(28), ORS 656.287(1), an evidentiary section, and a *308section, ORS 656.340, mandating the employer to do certain things, and from that holds that these claimants are not entitled to compensation for a period of time during which their worsened conditions will make them totally disabled, as defined, at least temporarily.
As to ORS 656.012(2), I can only again express the idea that a preamble in general terms should not control over explicit textual language found elsewhere in the Workers’ Compensation Law.
As to definition of “worker,” the definition contained in ORS 656.005(28) is obviously for the purpose of triggering coverage under the law. ORS 656.003 explains that the definitions apply except where the context otherwise requires. The word “worker” is used throughout ORS 656.001 to 656.794 in senses that make it perfectly obvious that it is not used to mean one who is working. I am not going to list them all. Some of the sections with which we are here most closely concerned demonstrate the fact. ORS 656.206(2) to (5) speak to a “worker” who is permanently totally disabled. ORS 656.208 concerns the “worker” who dies during the period of permanent total disability. Even ORS 656.210 provides for a “worker” to receive compensation for temporary total disability. One who is totally disabled, permanently or totally, cannot meet the definition given in ORS 656.005(28).
ORS 656.287(1) does no more than to make admissible certain evidence where there is an issue regarding “loss of earning capacity,” something the majority contends is not involved in this case.
ORS 656.340 imposes a variety of duties on an employer or its insurer to assist a “worker,” who, incidentally, is obviously not working and, therefore, cannot meet the definition of “worker” in ORS 656.005(28).
The majority finds that “of greatest significance” is ORS 656.325(5), a subsection that entitles an employer to cease paying compensation for temporary total disability and commence paying compensation for temporary partial disability “when an injured worker refuses wage earning employment prior to claim determination” if the worker is capable of performing the employment offered.
*309This subsection is not applicable at all. Claim determination for these claimants occurred long ago. There is not one bit of evidence in the record that either of these claimants has been offered, and has refused, wage earning employment. I daresay that no employer of sound mind would offer wage earning employment to one confined to the hospital bed or its equivalent while undergoing or recovering from surgery.
Under statutory text these workers are entitled to the compensation they here seek. It is a mistake to inject into the statutory scheme the views of the majority of this court as to what the law ought to be, but is not.
Campbell, J., joins in this dissenting opinion.The majority’s quoted material from Bono v. SAIF, 298 Or 405, 410, 692 P2d 606 (1984), stops just short of an intendedly significant statement in Bono. Immediately following the majority’s quotation is the following sentence:
“Claimant did not establish that he had been absent from work nor that his earning power was diminished.” (Emphasis added.)
ORS 656.005(8) defines “compensable injury.”
“(a) A ‘compensable injury’ is an accidental injury * * * arising out of and in the course of employment requiring medical services or resulting in disability or death; * * *.
“(b) A ‘disabling compensable injury’ is an injury which entitles the worker to compensation for disability or death.”