ORDER ON REVIEW:

THE SELF-INSURED EMPLOYER REQUESTS REVIEW OF REFEREE SPANGLER'S ORDER THAT: (1) FOUND CLAIMANT ENTITLED TO TEMPORARY TOTAL DISABILITY BENEFITS FOR THE PERIOD FROM SEPTEMBER 1, 1993 TO NOVEMBER 8, 1993; AND (2) AWARDED A PENALTY FOR ITS ALLEGEDLY UNREASONABLE TERMINATION OF TEMPORARY DISABILITY. ON REVIEW, THE ISSUES ARE ENTITLEMENT TO TEMPORARY DISABILITY AND PENALTIES.

WE ADOPT AND AFFIRM THE REFEREE'S ORDER, WITH THE FOLLOWING SUPPLEMENTATION.

UNDER ORS.656.268(3)(C), TEMPORARY TOTAL DISABILITY MAY BE TERMINATED IF THE "ATTENDING PHYSICIAN GIVES THE WORKER A WRITTEN RELEASE TO RETURN TO MODIFIED EMPLOYMENT, SUCH EMPLOYMENT IS OFFERED IN WRITING TO THE WORKER AND THE WORKER FAILS TO BEGIN SUCH EMPLOYMENT." WE HAVE PREVIOUSLY CONCLUDED THAT, IN STATING THAT MODIFIED EMPLYMENT MUST BE "OFFERED," THE STATUTE CONTEMPLATES THAT THE WORKER IS AVAILABLE FOR SUCH WORK. DOUGLAS G. REED, 44 VAN NATTA 2427, 2428 (1992). FURTHERMORE, IN STATING THAT THE WORKER MUST "FAIL TO BEGIN SUCH EMPLOYMENT," WE HAVE CONCLUDED THAT THE STATUTE CONTEMPLATES THAT IT MUST BE WITHIN THE WORKER'S DISCRETION NOT TO ACCEPT THE EMPLOYMENT. ID.

HERE, AS IN DOUGLAS REED, SUPRA, THE EMPLOYER DID NOT "OFFER" MODIFIED EMPLOYMENT TO CLAIMANT, BUT MERELY INFORMED HIM OF A JOB THAT WOULD HAVE BEEN AVAILABLE HAD HE NOT BEEN FIRED. FURTHERMORE, CLAIMANT DID NOT "FAIL" TO BEGIN EMPLOYMENT BECAUSE, HAVING BEEN FIRED, HE HAD NO CHOICE AS TO WHETHER HE WOULD ACTUALLY PERFORM SUCH WORK. THE FACT THAT MODIFIED WORK WAS NEVER ACTUALLY OFFERED IS DETERMINATIVE; THE REASON FOR THE "PRE-OFFER" FIRING IS IRRELEVANT. ACCORDINGLY, WE CONCLUDE HERE, AS WE DID IN REED, THAT THE REQUIREMENTS OF ORS 656.268(3)(C) WERE NOT SATISIFIED, AND THE EMPLOYER WAS NOT JUSTIFIED IN UNILATERALLY TERMINATING PAYMENT OF TEMPORARY DISABILITY.

CLAIMANT IS ENTITLED TO AN ASSESSED Counsel FEE FOR PREVAILING OVER THE SELF-INSURED EMPLOYER'S REQUEST FOR 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 SERVICES ON REVIEW CONCERNING THE TEMPORARY DISABILITY ISSUE IS $500, TO BE PAID BY THE SELF-INSURED EMPLOYER. IN REACHING THIS CONCLUSION, WE HAVE PARTICULARLY CONSIDERED THE TIME DEVOTED TO THE ISSUE (AS REPRESENTED BY CLAIMANT'S RESPONDENT'S BRIEF), THE COMPLEXITY OF THE ISSUE, AND THE VALUE OF THE INTEREST INVOLVED.

ORDER

THE REFEREE'S ORDER DATED JANUARY 10, 1994, AS RECONSIDERED FEBRUARY 22, 1994, IS AFFIRMED. FOR SERVICES ON REVIEW, CLAIMANT'S Counsel IS AWARDED A $500 Counsel FEE, PAYABLE BY THE SELF-INSURED EMPLOYER.

WORKERS' COMPENSATION BOARD

THOMAS C. GUNN, BOARD MEMBER

G. MARIE TURNER-CHRISTIAN, BOARD MEMBER

DISSENT-BY: BOARD MEMBER NEIDIG DISSENTING.

DISSENT: INASMUCH AS I DISAGREE WITH THE MAJORITY'S CONCLUSION THAT THE EMPLOYER IMPROPERLY TERMINATED CLAIMANT'S TEMPORARY DISABILITY, I RESPECTFULLY DISSENT. I BASE MY DECISION ON THE FOLLOWING REASONING.

THE MAJORITY ADOPTS THE REFEREE'S CONCLUSION WHICH RELIED ON DOUGLAS G. REED, 44 VAN NATTA 2427 (1992). IN REED, FOLLOWING A CLAIMANT'S COMPENSABLE INJURY AND HIS TERMINATION FROM EMPLOYMENT, A CARRIER "OFFERED" HIM A MODIFIED POSITION WHICH SATISFIED THE CRITERIA SET FORTH IN ORS 656.268(3)(C). IN EXTENDING THE "OFFER," THE CARRIER ALSO STATED THAT BECAUSE OF THE CLAIMANT'S TERMINATION, HE WAS NOT ELIGIBLE TO WORK. CONSEQUENTLY, IN CONJUNCTION WITH EXTENDING THE "OFFER," THE CARRIER ALSO TERMINATED THE CLAIMANT'S TEMPORARY DISABILITY.

IN DISAPPROVING OF THE CARRIER'S CONDUCT, THE REED BOARD CONCLUDED THAT NO "OFFER" WAS MADE BECAUSE NO JOB WAS AVAILABLE TO THE CLAIMANT DUE TO HIS FIRING. MOREOVER, THE REED BOARD REASONED THAT THE CLAIMANT COULD NOT "FAIL" TO BEGIN EMPLOYMENT THAT HE WAS PRECLUDED FROM ACTUALLY PERFORMING.

I CONSIDER THE PRESENT CASE TO BE DISTINGUISHABLE FROM REED. IN REED, THERE IS NO INDICATION WHY THE CLAIMANT WAS TERMINATED FROM HIS EMPLOYMENT. HERE, IT IS UNCONTESTED THAT CLAIMANT WAS DISCHARGED AS A RESULT OF A POSITIVE DRUG TEST IN VIOLATION OF HIS EMPLOYER'S EXPRESS DRUG POLICY. THUS, WHEN THE EMPLOYER EXTENDED ITS MODIFIED JOB OFFER, CLAIMANT WAS PHYSICALLY CAPABLE OF PERFORMING THE REQUISITE WORK ACTIVITIES. HOWEVER, AS A RESULT OF HIS VIOLATION OF THE EMPLOYER'S DRUG POLICY, CLAIMANT WAS NO LONGER ELIGIBLE TO PERFORM THOSE ACTIVITIES.

UNLIKE THE SITUTATION IN REED, CLAIMANT HAD A CHOICE CONCERNING WHETHER HE COULD ACTUALLY PERFORM THE MODIFIED JOB. HE MADE THAT CHOICE WHEN HE VIOLATED THE EMPLOYER'S DRUG POLICY. THE FACT THAT SUCH A VIOLATION PRECEDED THE EMPLOYER'S JOB OFFER DOES NOT ALTER MY ANALYSIS. CLAIMANT "FAIL[ED] TO BEGIN SUCH [MODIFIED] EMPLOYMENT" AS REQUIRED BY ORS 656.268(3)(C) BY VIRTUE OF HIS "DRUG-RELATED" TERMINATION. CONSEQUENTLY, THE EMPLOYER WAS AUTHORIZED TO TERMINATE CLAIMANT'S TEMPORARY DISABILITY ONCE HE RECEIVED THE MODIFIED JOB OFFER WHICH HAD BEEN APPROVED BY HIS ATTENDING PHYSICIAN.

MARY C. NEIDIG, BOARD CHAIR