FILED: June 19, 2002

In the Matter of the Compensation of
Vernon T. Smith, Deceased.

WILLA ALLEN,

Petitioner,

v.

PAULA INSURANCE
and PORTABLE ROCK PRODUCTION CO., INC.,

Respondents.

Judicial Review from Workers' Compensation Board.

Argued and submitted May 9, 2002.

Robert D. Carlson argued the cause for petitioner. With him on the brief was Kryger, Alexander, Egan & Elmer, P.C.

David P. Levine argued the cause for respondents. On the brief were Richard D. Barber, Jr., and Sheridan, Bronstein & Levine.

Before Landau, Presiding Judge, and Brewer and Schuman, Judges.

LANDAU, P. J.

Affirmed.

LANDAU, P. J.

Claimant seeks judicial review of a final order of the Workers' Compensation Board (board) upholding employer's denial of survivor's benefits. We affirm.

The relevant facts are not in dispute. Claimant and Vernon Smith lived together for approximately 15 years. They were never married to each other. In 1986, the six-year-old son of claimant's second cousin began living with claimant and Smith. Claimant adopted the boy the following year. Smith did not.

In 1998, Smith died as a result of injuries sustained in an employment-related accident. Claimant filed a claim for survivor's benefits. Employer accepted the fatality as work-related, but it denied the claim for survivor's benefits. The board upheld the denial. According to the board, under ORS 656.226, survivor's benefits are available only when a man and a woman cohabit as husband and wife for the requisite period of time "and children are living as a result of that relation." In this case, the board held, there are no children "living as a result of that relation" between claimant and Smith; therefore, the board concluded, claimant is not entitled to benefits under that statute.

On review, claimant argues that the board erred in concluding that there are no "children living as a result of that relation" between her and Smith. According to claimant, the child that she adopted qualifies. Employer argues that we already have determined that the statute applies only to children who are born of the relationship between the claimant and the worker. Employer is correct.

ORS 656.226 provides:

"In case an unmarried man and an unmarried woman have cohabited in this state as husband and wife for over one year prior to the date of an accidental injury received by one or the other as a subject worker, and children are living as a result of that relation, the surviving cohabitant and the children are entitled to compensation under this chapter the same as if the man and woman had been legally married."

In Thomas v. SAIF, 8 Or App 414, 417-18, 495 P2d 46 (1972), we addressed the history and intended meaning of an earlier version of that statute in the following terms:

"An examination of the legislative history of ORS 656.226 shows that this statute was first enacted as Oregon Laws 1927, ch 414, and that it has continued in force down to the present date in substantially the identical language in which it was originally enacted. The statute is narrowly drawn and purports to give death benefits only to those women who have cohabited in Oregon with a workman for at least one year prior to his death, and who have given birth to children who are now living."

(Emphasis added.) See also Kempf v. SAIF, 34 Or App 877, 882, 580 P2d 1032, rev den 284 Or 521 (1978) ("[a] claimant who satisfies the requirements of cohabitation for more than a year plus having living children" is entitled to survivor benefits under ORS 656.226) (emphasis added). The statute was amended in 1983 to change gender references. Or Laws 1983, ch 816,