71 Van Natta 590 (2019)
In the Matter of the Compensation of RONALD D. MCALLISTER, Claimant
WCB No. 18-00489
Oregon Worker Compensation
June 5, 2019
Ronald
A Fontana, Claimant Attorneys
Reinisch Wilson Weier, Defense Attorneys
Reviewing Panel: Members Woodford and Ousey.
ORDER ON REVIEW
The
insurer requests review of that portion of Administrative Law
Judge (ALJ) Mills’s order that awarded additional
temporary disability benefits. In his respondent’s
brief, claimant contests that portion of the ALJ’s
order that did not assess a penalty and related attorney fee
for allegedly unreasonable claim processing. On review, the
issues are temporary disability, penalties, and attorney
fees. We affirm in part and reverse in part.
FINDINGS
OF FACT
We
adopt the ALJ’s “Findings of Fact.”[1]
CONCLUSIONS
OF LAW AND OPINION
The ALJ
found that claimant had not been terminated for a work rule
violation or other disciplinary reason. Accordingly, the ALJ
awarded temporary disability benefits. However, the ALJ also
found that the insurer had a legitimate doubt as to its
liability and, as such, did not assess a penalty or related
attorney fee.
Temporary
Disability
On
review, the insurer challenges the ALJ’s reasoning
regarding the validity of claimant’s termination. The
insurer contends that claimant was terminated for violating
the employer’s “return to work” policy and
“no call/no show” policy for a failure to report
to work after three consecutive days. (Ex. 7A). Claimant
responds that: (1) he did not violate a work rule; (2) the
record does not support the existence of a “no call/no
show” policy; and (3) he complied with the
employer’s “return to work” policy by
providing his work release within 24 hours of his receipt of
the release.
[71 Van
Natta 591] For the following reasons, we adopt and affirm
this portion of the ALJ’s order with the following
supplementation.[2]
A
worker’s termination for 'violation of work rules
or other disciplinary reasons” is a condition precedent
to the application of ORS 656.325(5)(b); i.e., a
carrier’s authorization to cease temporary total
disability (TTD) benefits pursuant to ORS 656.210, and begin
temporary partial disability (TPD) benefits under ORS
656.212.[3] See Robert P. Krise, 54 Van
Natta 911, 915 (2002), aff’d on other grounds, SAIF
v. Krise, 196 Or.App. 608 (2004) (based on a factual
finding that the claimant had not violated a work rule, the
carrier was not authorized under ORS 656.325(5)(b) to
terminate TTD benefits); Dustin E. Hall, 68 Van
Natta 1465, 1473 (2016) (same).
Although
we are not authorized to resolve the propriety of a
worker’s employment termination, we are required by ORS
656.325(5)(b) to examine the factual reasons for the
termination to determine whether the claimant was, in fact,
terminated for a work rule violation or other disciplinary
reason. Id.
Here,
the record does not support a conclusion that claimant was
terminated for violation of the employer’s work rules.
We reason as follows.
The
employer’s “return to work” policy applies
to eligible injured workers by means of implementing
temporary modified duty when workers are provided
restrictions. (Ex. 1A-1). The employee’s physician must
provide written work restrictions/release to specific tasks
that are reviewed for potential accommodation. (Id.)
Under the policy, injured workers are required to provide a
medical release/work...
