In re Compensation of McAllister, 060519 ORWC, 18-00489

Docket Nº:WCB 18-00489
Case Date:June 05, 2019
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...

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