ORDER ON REVIEW

CLAIMANT REQUESTS REVIEW OF REFEREE DAVIS' ORDER THAT DISMISSED CLAIMANT'S HEARING REQUEST FOR LACK OF JURISDICTION. ON REVIEW, THE ISSUES ARE JURISDICTION, INTERIM COMPENSATION, AND PENALTIES AND Counsel FEES. WE REINSTATE CLAIMANT'S HEARING REQUEST, BUT CONCLUDE THAT CLAIMANT IS NOT ENTITLED TO INTERIM COMPENSATION BENEFITS.

FINDINGS OF FACT

WE ADOPT THE REFEREE'S FINDINGS OF FACT.

CONCLUSIONS OF LAW AND OPINION

THE REFEREE REASONED THAT, BY SEEKING INTERIM COMPENSATION BENEFITS, CLAIMANT WAS ESSENTIALLY CONTENDING THAT HER CLAIM HAD BEEN MISCLASSIFIED AS NONDISABLING. THE REFEREE FURTHER CONCLUDED THAT THE DIRECTOR, NOT THE HEARINGS DIVISION, HAD JURISDICTION TO ADDRESS RECLASSIFICATION OF CLAIMANT'S CLAIM. ON THIS BASIS, THE REFEREE DISMISSED CLAIMANT'S REQUEST FOR HEARING.

WE BRIEFLY RECOUNT THE RELEVANT FACTS. ON AUGUST 28, 1993, A SUNDAY, CLAIMANT SOUGHT TREATMENT AT AN EMERGENCY ROOM FOR A CHEMICAL BURN ON HER RIGHT HAND. THAT SAME DAY, CLAIMANT WAS RELEASED TO MODIFIED WORK BY DR. WELLING. THE ONLY MODIFICATION WAS THAT CLAIMANT WEAR GLOVES AT WORK. CLAIMANT DID NOT WORK THE NEXT TWO DAYS BECAUSE THESE WERE SCHEDULED DAYS OFF. CLAIMANT DID NOT GO TO WORK ON WEDNESDAY BECAUSE HER RIGHT HAND HURT. CLAIMANT THEN WORKED FOUR DAYS WITH GLOVES. ON THE FOLLOWING MONDAY OR TUESDAY, THE EMPLOYER ASKED CLAIMANT TO HAVE A DRUG SCREEN. THE EMPLOYER HAD A POLICY WHICH PROVIDED FOR "SUSPICION" TESTING IF THE EMPLOYER SUSPECTED THAT AN EMPLOYEE HAS VIOLATED ITS ANTI-DRUG POLICY. CLAIMANT WAS TOLD NOT TO RETURN TO WORK UNTIL SHE HAD THE DRUG SCREEN. CLAIMANT BELIEVED THAT THE EMPLOYER WAS MAD AT HER FOR FILING A WORKERS' COMPENSATION CLAIM. CLAIMANT DID NOT HAVE A DRUG SCREEN AND HAS NOT BEEN BACK TO WORK EXCEPT TO PICK UP HER PAYCHECK ON MARCH 15, 1993. CLAIMANT'S EMPLOYMENT WAS TERMINATED ON THAT DATE. ON MAY 25, 1993, THE INSURER ACCEPTED CLAIMANT'S CLAIM AS NONDISABLING.

IN RALPH E. FRITZ, 44 VAN NATTA 1168 (1992), WE HELD THAT WE HAD JURISDICTION TO ADDRESS A CLAIMANT'S ENTITLEMENT TO INTERIM COMPENSATION BENEFITS IN A CLAIM THAT HAD BEEN ACCEPTED AS NONDISABLING. IN FRITZ, THE CLAIM HAD INITIALLY BEEN CLASSIFIED AS NONDISABLING. A NOTICE OF CLOSURE CLOSED THE CLAIM. THEREAFTER, THE CLAIMANT REQUESTED A HEARING SEEKING INTERIM COMPENSATION. WE HELD THAT WE DID NOT HAVE JURISDICTION OVER ISSUES PERTAINING TO THE NOTICE OF CLOSURE, BUT THAT WE DID HAVE JURISDICTION TO CONSIDER THE CLAIMANT'S ENTITLEMENT TO INTERIM COMPENSATION. WE ASSERTED JURISDICTION OVER THE INTERIM COMPENSATION ISSUE BECAUSE WE FOUND, RELYING ON STEVEN V. BISCHOF, 44 VAN NATTA 225, ON RECON 44 VAN NATTA 433 (1992), THAT THE ACTUAL ISSUE PRESENTED WAS THE CLAIMANT'S PROCEDURAL ENTITLEMENT TO TEMPORARY DISABILITY BENEFITS RATHER THAN THE DISABLING/NONDISABLING ISSUE WHICH WAS WITHIN THE DIRECTOR'S JURISDICTION.

IN THE PRESENT CASE, CLAIMANT'S CLAIM HAS BEEN ACCEPTED AS NONDISABLING. CLAIMANT HAS REQUESTED A HEARING SEEKING INTERIM COMPENSATION. WE FIND NO MATERIAL DISTINCTION BETWEEN FRITZ AND THE PRESENT CASE. FRITZ HOLDS THAT THE BOARD AND HEARINGS DIVISION HAVE JURISDICTION TO ADDRESS A CLAIMANT'S ENTITLEMENT TO INTERIM COMPENSATION BENEFITS BECAUSE THAT ISSUE CONCERNS THE CLAIMANT'S PROCEDURAL ENTITLEMENT TO TEMPORARY DISABILITY RATHER THAN WHETHER OR NOT THE CLAIM IS DISABLING OR NONDISABLING. ACCORDINGLY, BASED ON FRITZ, WE CONCLUDE THAT THE REFEREE HAD JURISDICTION TO ADDRESS CLAIMANT'S "PROCEDURAL" ENTITLEMENT TO INTERIM COMPENSATION.

ALTHOUGH THE REFEREE DISMISSED CLAIMANT'S HEARING REQUEST, TESTIMONY WAS TAKEN AND EVIDENCE WAS ADMITTED CONCERNING THE INTERIM COMPENSATION ISSUE. THUS, WE FIND THAT THE RECORD HAS BEEN FULLY DEVELOPED CONCERNING THE INTERIM COMPENSATION AND PENALTY AND FEE ISSUES. ACCORDINGLY, WE PROCEED TO ADDRESS THE INTERIM COMPENSATION AND PENALTY AND Counsel FEE ISSUES.

IN ORDER TO QUALIFY FOR INTERIM COMPENSATION, A CLAIMANT MUST ESTABLISH THAT HE OR SHE HAS LEFT WORK OR SUFFERED A LOSS OF EARNINGS AS A RESULT OF AN INJURY. BONO V. SAIF, 298 OR 405 (1977); RSG FOREST PRODUCTS V. JENSEN, 127 OR APP 247 (1994).

HERE, WE CONCLUDE THAT CLAIMANT HAS NOT ESTABLISHED THAT SHE LEFT WORK OR LOST EARNINGS DUE TO THE INJURY. FIRST, THERE IS NO EVIDENCE THAT TIME LOSS WAS EVER AUTHORIZED. IN FACT, DR. WELLING HAD RELEASED CLAIMANT FOR WORK. SECOND, THE RECORD INDICATES THAT CLAIMANT LEFT WORK BECAUSE SHE DECLINED TO TAKE A DRUG SCREEN AND WAS TERMINATED PURSUANT TO THE EMPLOYER'S DRUG TESTING POLICY. ON THIS RECORD, WE ARE UNABLE TO CONCLUDE THAT CLAIMANT LEFT WORK OR LOST EARNINGS AS A RESULT OF THE INJURY. ACCORDINGLY, CLAIMANT HAS NOT ESTABLISHED ENTITLEMENT TO INTERIM COMPENSATION BENEFITS. BECAUSE WE CONCLUDE THAT CLAIMANT IS NOT ENTITLED TO INTERIM COMPENSATION, WE LIKEWISE CONCLUDE THAT THE INSURER WAS NOT UNREASONABLE IN FAILING TO PAY THESE BENEFITS. THUS, NO PENALTIES OR Counsel FEES ARE WARRANTED.

ORDER

THE REFEREE'S ORDER DATED NOVEMBER 10, 1993 IS REVERSED. CLAIMANT'S HEARING REQUEST IS REINSTATED. THE RELIEF REQUESTED BY CLAIMANT IS DENIED.

WORKERS' COMPENSATION BOARD

SANDRA K. HAYNES, BOARD MEMBER

NELSON R. HALL, BOARD MEMBER