ORDER ON REVIEW:

THE INSURER REQUESTS REVIEW OF ADMINISTRATIVE LAW Court (ALJ) MCWILLIAMS

ORDER WHICH FOUND THAT CLAIMANT WAS ENTITLED TO TEMPORARY PARTIAL DISABILITY BENEFITS FROM MARCH 1, 1993 UNTIL JULY 20, 1993. ON REVIEW, THE ISSUE IS TEMPORARY DISABILITY COMPENSATION. WE MODIFY.

FINDINGS OF FACT

WE ADOPT THE ALJ'S FINDINGS OF FACT WITH THE FOLLOWING MODIFICATIONS.

THE JANUARY 26, 1994 OPINION AND ORDER DIRECTED THE INSURER TO PAY CLAIMANT TEMPORARY PARTIAL DISABILITY FROM MARCH 1, 1993 UNTIL JULY 20, 1993, NOT JULY 29, 1993.

THE INSURER'S JULY 20, 1993 PARTIAL DENIAL OF CLAIMANT'S MEDIAL MENISCUS TEAR WAS SET ASIDE BY AN AUGUST 15, 1994 OPINION AND ORDER. (EX. 20).

CONCLUSIONS OF LAW AND OPINION

PROCEDURAL POSTURE

THE ALJ ISSUED A JANUARY 26, 1994 OPINION AND ORDER WHICH DIRECTED THE INSURER TO PAY CLAIMANT TEMPORARY PARTIAL DISABILITY FROM MARCH 1, 1993 UNTIL JULY 20, 1993. IN AN OCTOBER 11, 1994 ORDER ON REVIEW (REMANDING), WE VACATED THE ALJ'S ORDER AND REMANDED THIS CASE TO THE ALJ FOR FURTHER DEVELOPMENT OF THE RECORD CONCERNING CLAIMANT'S "EARNING POWER AT ANY KIND OF WORK," IN LIGHT OF Court OF APPEALS' HOLDING IN STONE V. WHITTIER WOOD PRODUCTS, 124 OR APP 117 (1993); CHARLES CHAPMAN, 46 VAN NATTA 2323 (1994).

THE ALJ MADE FINDINGS CONCERNING CLAIMANT'S WORK HISTORY AND FOUND THAT MODIFIED WORK, AS APPROVED BY A PHYSICIAN, WAS NOT AVAILABLE. THE ALJ CONCLUDED THAT, THEREFORE, CLAIMANT WAS ENTITLED TO TEMPORARY TOTAL DISABILITY UNTIL THE DATE OF HIS TERMINATION ON MARCH 1, 1993, FOR REASONS UNRELATED TO THE INJURY, AT WHICH TIME HE BECAME ELIGIBLE FOR TEMPORARY PARTIAL DISABILITY. THE ALJ REMANDED THE CLAIM TO THE INSURER FOR THE CALCULATION OF TEMPORARY PARTIAL DISABILITY BENEFITS IN ACCORDANCE WITH STONE.

ENTITLEMENT TO TEMPORARY DISABILITY

WE BEGIN BY BRIEFLY SUMMARIZING THE FACTS OF THE CASE. FOLLOWING HIS COMPENSABLE DISABLING INJURY, CLAIMANT RETURNED TO WORK FOR THE EMPLOYER PERFORMING MODIFIED DUTIES. HIS WAGES WERE NOT AFFECTED BY THE CHANGE IN HIS WORK ASSIGNMENT. WHILE PERFORMING HIS WORK, CLAIMANT FELL SEVERAL TIMES WHILE TRYING TO NEGOTIATE HIS CRUTCHES OVER THE FLOOR, WHICH WAS STREWN WITH RIVETS, SCREWS, TRIMMINGS, MISCELLANEOUS DEBRIS, AIR HOSES, AND OCCASIONAL SPILLS OF RADIATOR, TRANSMISSION, HYDRAULIC AND DIESEL FLUIDS. ON FEBRUARY 22 AND 23, 1993, CLAIMANT INFORMED THE EMPLOYER THAT HE HAD REINJURED HIS KNEE WHEN HIS CRUTCHES SLIPPED AND WAS FEARFUL THAT HE WOULD CONTINUE TO INJURE HIS LEG BECAUSE OF THE CONDITION OF THE FLOOR IN HIS WORK AREA. CLAIMANT ASKED THE EMPLOYER TO PERMIT HIM TO RECUPERATE AT HOME UNTIL HE WAS OFF CRUTCHES. THE EMPLOYER INSTRUCTED CLAIMANT TO RELOCATE HIS WORK AREA TO ONE LESS CONGESTED AND CLOSER TO THE RESTROOM.

ON FEBRUARY 23, 1993, CLAIMANT RECEIVED A WRITTEN MODIFIED WORK RELEASE BY DR. FLETCHALL, WHOM HE HAD SEEN ON FEBRUARY 17, 1993. ALSO ON FEBRUARY 23, 1993, CLAIMANT SOUGHT TREATMENT FROM DR. JANSEN, WHO CONTINUED TO RELEASE CLAIMANT TO MODIFIED WORK. CLAIMANT DID NOT RETURN TO WORK ON FEBRUARY 24, 1994. ON MARCH 1, 1993, THE EMPLOYER TERMINATED CLAIMANT FOR TESTING POSITIVE FOR DRUG USE. CLAIMANT REQUESTED A HEARING ON THE EMPLOYER'S FAILURE TO PAY TEMPORARY DISABILITY COMPENSATION FROM MARCH 1, 1993 UNTIL JULY 20, 1993.

ON REVIEW, THE INSURER CONTENDS THAT CLAIMANT WAS NOT ENTITLED TO TEMPORARY DISABILITY DURING THE PERIOD IN DISPUTE BECAUSE HE HAD BEEN TERMINATED FOR REASONS UNRELATED TO THE INJURY. CLAIMANT CONTENDS THAT HE LEFT WORK BECAUSE HE WAS UNABLE TO PERFORM THE MODIFIED WORK.

TO BEGIN, WE NOTE THAT THE INSURER DOES NOT CONTEST THE ALJ'S CONCLUSION THAT CLAIMANT WAS ENTITLED TO TEMPORARY TOTAL DISABILITY BENEFITS FROM FEBRUARY 24, 1993 TO MARCH 1, 1993. IN ANY EVENT, WE AGREE WITH AND ADOPT THAT PORTION OF THE ALJ'S OPINION THAT CLAIMANT LEFT WORK ON FEBRUARY 24, 1993 AS A RESULT OF HIS INJURY. CONSEQUENTLY, CLAIMANT BECAME ELIGIBLE FOR TEMPORARY TOTAL DISABILITY AS OF THAT DATE. THE QUESTION THEN BECOMES WHETHER IT WAS APPROPRIATE FOR THE INSURER TO TERMINATE CLAIMANT'S TEMPORARY DISABILITY BENEFITS MARCH 1, 1993, WHEN THE EMPLOYMENT RELATIONSHIP WAS TERMINATED.

UNDER ORS 656.268(3)(C), *fn1 TEMPORARY TOTAL DISABILITY BENEFITS MAY BE TERMINATED IF THE "ATTENDING PHYSICIAN GIVES THE WORKER A WRITTEN RELEASE TO RETURN TO MODIFIED EMPLOYMENT, SUCH EMPLOYMENT IS OFFERED IN WRITING, AND THE WORKER FAILS TO BEGIN SUCH EMPLOYMENT."

HERE, CLAIMANT WAS RELEASED TO MODIFIED WORK AND DID ATTEMPT TO PERFORM SUCH WORK. HOWEVER, DUE TO HIS COMPENSABLE INJURY, CLAIMANT WAS UNABLE TO PERFORM THE "OFFERED" MODIFIED WORK AND, AS FOUND BY THE ALJ, BECAME ENTITLED TO TEMPORARY TOTAL DISABILITY AS OF FEBRUARY 24, 1993. ONCE CLAIMANT BECAME ENTITLED TO TEMPORARY TOTAL DISABILITY BENEFITS, THE INSURER COULD TERMINATE SUCH BENEFITS ONLY IF THE REQUIREMENTS IN ORS 656.268(3) OR ORS 656.262(4) WERE MET. NEITHER OF THOSE STATUTES PROVIDE THAT TERMINATION OF THE EMPLOYMENT RELATIONSHIP IS A BASIS FOR TERMINATING TEMPORARY TOTAL DISABILITY BENEFITS. SEE JAMES EDMONDS, 47 VAN NATTA 230 (1995) (THE CLAIMANT'S TERMINATION OF EMPLOYMENT PRIOR TO BEING OFFERED MODIFIED WORK NOT RELEVANT WHERE THE EMPLOYER'S MODIFIED WORK OFFER DID NOT MEET THE REQUIREMENTS OF ORS 656.268(3)(C)).

SIMILARLY, WHILE CLAIMANT REMAINED RELEASED FOR MODIFIED WORK, THAT FACT IN AND OF ITSELF DOES NOT ALLOW A CARRIER TO TERMINATE TEMPORARY TOTAL DISABILITY BENEFITS. RATHER, THE WORKER MUST EITHER RETURN TO MODIFIED WORK, OR BE OFFERED MODIFIED WORK IN WRITING AND FAIL TO BEGIN SUCH EMPLOYMENT. ORS 656.268(3)(A) AND (C). AS NOTED ABOVE, CLAIMANT WAS OFFERED MODIFIED WORK, BUT COULD NOT PERFORM SUCH WORK DUE TO HIS INJURY. THE EMPLOYER DID NOT MAKE ANY FURTHER OFFER OF MODIFIED WORK TO CLAIMANT AND IN FACT HE WAS TERMINATED MARCH 1, 1993. IN LIGHT OF THIS, THE INSURER HAD NO BASIS FOR TERMINATING CLAIMANT'S TEMPORARY TOTAL DISABILITY BENEFITS, NOR FOR REDUCING SUCH BENEFITS TO TEMPORARY PARTIAL DISABILITY. CONSEQUENTLY, WE MODIFY THE ALJ'S OPINION AND FIND THAT CLAIMANT WAS ENTITLED TO TEMPORARY TOTAL DISABILITY BENEFITS FROM MARCH 1, 1993 THROUGH JULY 20, 1993.

CLAIMANT'S Counsel IS ENTITLED TO AN ASSESSED FEE FOR SERVICES ON REVIEW. ORS 656.382(2). AFTER CONSIDERING THE FACTORS SET FORTH IN OAR 438-15-010(4) AND APPLYING THEM TO THIS CASE, WE FIND THAT A REASONABLE FEE FOR CLAIMANT'S COUNSEL"S SERVICES ON REVIEW IS $950, PAYABLE BY THE INSURER. IN REACHING THIS CONCLUSION, WE HAVE PARTICULARLY CONSIDERED THE TIME DEVOTED TO THE CASE (AS REPRESENTED BY CLAIMANT'S RESPONDENT'S BRIEF), THE COMPLEXITY OF THE ISSUE, AND THE VALUE OF THE INTEREST INVOLVED.

ORDER

THE ALJ'S ORDER DATED DECEMBER 30, 1994 IS MODIFIED. CLAIMANT IS AWARDED TEMPORARY TOTAL DISABILITY BENEFITS FROM MARCH 1, 1993 THROUGH JULY 20, 1993. CLAIMANT'S Counsel IS AWARDED AN APPROVED Counsel FEE EQUAL TO 25 PERCENT OF THE COMPENSATION CREATED BY THIS ORDER, PAYABLE DIRECTLY TO CLAIMANT'S Counsel. HOWEVER, THE TOTAL "OUT-OF-COMPENSATION" Counsel FEE AWARD GRANTED BY THIS ORDER AND THE ALJ'S ORDER SHALL NOT EXCEED $3,800. FOR SERVICES ON REVIEW, CLAIMANT'S Counsel IS AWARDED AN ASSESSED Counsel FEE OF $950, PAYABLE BY THE INSURER.

WORKERS' COMPENSATION BOARD

SANDRA K. HAYNES, BOARD MEMBER

NELSON R. HALL, BOARD MEMBER