54 Van Natta 54 (2002). ENRIQUE L. BIRRUETE, Claimant.

• Case Date: January 16, 2002
• Court: Oregon

Oregon Worker Compensation 2002. 54 Van Natta 54 (2002). ENRIQUE L. BIRRUETE, Claimant 54In the Matter of the Compensation of ENRIQUE L. BIRRUETE, ClaimantWCB Case No. 01-01832ORDER ON REVIEWVick and Conroyd, Claimant AttorneysSheridan Levine LLP, Defense AttorneysReviewing Panel: Members Haynes, Bock, and Phillips Polich.Claimant requests review of Administrative Law Judge (ALJ) Howell's order that determined that he was not entitled to an increased temporary disability rate. On review, the issue is rate of temporary disability. We adopt and affirm the ALJ's order with the following supplementation. Claimant argued that the weekly wage (on which his temporary disability rate is determined) should have been computed on a five-day workweek and on an eight-hour workday. This would result in an average weekly wage rate of $560 a week, whereas the insurer had paid temporary disability based on a weekly wage of $300. The ALJ declined to increase claimant's temporary disability rate. In so doing, the ALJ noted the parties had agreed that claimant's temporary disability should be based on the intent of the parties at the time of hire because claimant was injured on the first day of work and, therefore, had no wage history with the employer. See OAR 436-060-0025(5)(a)(A). Finding that evidence produced at hearing did not establish the employer and claimant had reached an agreement at the time of hire for a 40 hour work week, the ALJ held that claimant had failed to prove that he was entitled to a higher temporary disability rate. On review, claimant argues that his testimony that he was hired to work 40 hours a week at $14 an hour was uncontradicted because the employer (Franco) did not know what his supervisor (Mora) agreed to when the latter hired claimant, and the insurer did not produce Mora as a witness at the hearing. Thus, claimant asserts that he proved his entitlement to temporary disability at the requested rate. We disagree. Claimant has the burden of proving the extent of his temporary disability. ORS 656.266. Therefore, if we were to construe the failure to produce Mora 54 Van Natta 54 (2002)55against anyone, it would be against claimant.1 See John Mahon, 47 Van Natta 1747 (1995); Gloria Vaneekhoven, 47 Van Natta 670 (1995). In any event, we agree with the ALJ that claimant's testimony regarding the...