CLAIMANT REQUESTS REVIEW OF ADMINISTRATIVE LAW Court (ALJ) HOGUET'S ORDER WHICH: (1) DECLINED TO AWARD INTERIM COMPENSATION; AND (2) DECLINED TO ASSESS PENALTIES FOR THE SAIF CORPORATION'S ALLEGEDLY UNREASONABLE CLAIMS PROCESSING. ON REVIEW, THE ISSUES ARE INTERIM COMPENSATION AND PENALTIES. WE VACATE AND REMAND.

FINDINGS OF FACT

WE ADOPT THE ALJ'S FINDINGS OF FACT. WE DO NOT ADOPT THE ALJ'S "ULTIMATE FINDING OF FACT."

CONCLUSIONS OF LAW AND OPINION

CLAIMANT SUSTAINED A WORK-RELATED INJURY ON JULY 11, 1994. THAT DAY, CLAIMANT WAS SEEN AT A HOSPITAL EMERGENCY ROOM FOR A JAW INJURY. WHILE AT THE EMERGENCY ROOM, CLAIMANT WAS GIVEN A URINE DRUG TEST FOR WHICH HE TESTED POSITIVE FOR MARIJUANA USE. (EX. 5).

ON JULY 13, 1994, CLAIMANT WAS EXAMINED BY DR. LEWIS, WHO DIAGNOSED TMJ STRAIN AND SOFT TISSUE INFLAMMATION. (EX. 9). ON JULY 22, 1994, DR. LEWIS RELEASED CLAIMANT TO FULL TIME MODIFIED WORK.

THE EMPLOYER OFFERED CLAIMANT WORK CONSISTENT WITH DR. LEWIS' WORK RELEASE, WHICH CLAIMANT ACCEPTED. (EX. 12). ON JULY 25, 1994, CLAIMANT CAME TO WORK AND WAS FIRED FOR VIOLATING THE EMPLOYER'S ALCOHOL/DRUG POLICY.

CLAIMANT WAS PAID INTERIM COMPENSATION PRIOR TO HIS TERMINATION ON JULY 25, 1994. SAIF ACCEPTED CLAIMANT'S CLAIM FOR FRACTURE OF THE LEFT CORONOID PROCESS OF THE MANDIBLE ON JULY 27, 1994. (EX. 13). SAIF DID NOT PAY INTERIM COMPENSATION BETWEEN JULY 25, 1994 AND JULY 27, 1994.

THE ALJ FOUND THAT CLAIMANT WAS NOT ENTITLED TO TEMPORARY PARTIAL DISABILITY (TPD) FROM THE DATE HE WAS FIRED TO THE TIME SAIF ACCEPTED HIS CLAIM. RELYING ON VIKING INDUSTRIES V. GILLIAM, 118 OR APP 183, REV DEN 316 OR 529 (1993), THE ALJ REASONED THAT WHEN CLAIMANT CHOSE TO VIOLATE THE EMPLOYER'S ALCOHOL/DRUG POLICY, CLAIMANT IN EFFECT CHOSE TO VOLUNTARILY TERMINATE HIS EMPLOYMENT. FURTHER, THE ALJ DETERMINED THAT, PURSUANT TO OAR 436-60-030(11)(B), CLAIMANT WAS DEEMED TO HAVE FAILED TO BEGIN EMPLOYMENT FOR VIOLATING A NORMAL EMPLOYMENT STANDARD. SEE ORS 656.268(3)(C).

ON REVIEW, CLAIMANT CONTESTS THE ALJ'S FINDING THAT CLAIMANT "VOLUNTARILY" QUIT HIS JOB WHEN HE BREACHED THE EMPLOYER'S NO ALCOHOL/DRUG POLICY. AS SUCH, CLAIMANT ASSERTS THAT HE IS ENTITLED TO INTERIM COMPENSATION (WHICH WOULD CONSIST OF TEMPORARY DISABILITY BENEFITS FROM THE DATE HE WAS TERMINATED TO THE DATE HIS CLAIM WAS ACCEPTED). SEE BONO V. SAIF, 298 OR 405, 407 N.1 (1984) (INTERIM COMPENSATION IS TEMPORARY DISABILITY PAYMENTS MADE BETWEEN THE EMPLOYER'S NOTICE OF INJURY AND THE ACCEPTANCE OR DENIAL OF THE CLAIM). WE DECLINE TO ADDRESS AT THIS TIME THE PROPRIETY OF THE ALJ'S DECISION REGARDING WHETHER CLAIMANT "VOLUNTARILY QUIT" HIS EMPLOYMENT. WE REACH SUCH A CONCLUSION BECAUSE WE HOLD THAT REMAND IS WARRANTED.

SUBSEQUENT TO THE ALJ'S ORDER, THE 1995 LEGISLATURE AMENDED ORS 656.325(5)(B) TO READ: "IF THE WORKER HAS BEEN TERMINATED FOR VIOLATION OF WORK RULES OR OTHER DISCIPLINARY REASONS, THE INSURER OR SELF-INSURED EMPLOYER SHALL CEASE PAYMENTS PURSUANT TO ORS 656.210 AND COMMENCE PAYMENTS PURSUANT TO ORS 656.212 WHEN THE ATTENDING PHYSICIAN APPROVES EMPLOYMENT IN A MODIFIED JOB THAT WOULD HAVE BEEN OFFERED TO THE WORKER IF THE WORKER HAD REMAINED EMPLOYED, PROVIDED THAT THE EMPLOYER HAS A WRITTEN POLICY OF OFFERING MODIFIED WORK TO INJURED WORKERS." OR LAWS 1995, CH 332, SEC. 40 (SB 369, SEC. 40) (EMPHASIS ADDED).

EXCEPT AS PROVIDED OTHERWISE, SB 369 APPLIES TO MATTERS FOR WHICH THE TIME TO APPEAL THE BOARD'S DECISION HAS NOT EXPIRED OR, IF APPEALED, HAS NOT BEEN FINALLY RESOLVED ON APPEAL. VOLK V. AMERICA WEST AIRLINES, 135 OR APP 565, 572-73 (1995). BECAUSE AMENDED ORS 656.325(5)(B) IS NOT AMONG THE EXCEPTIONS TO THIS GENERAL RULE, SEE SB 369, sec 66 (LISTING EXCEPTIONS TO GENERAL RETROACTIVITY PROVISION), AND BECAUSE THIS MATTER HAS NOT BEEN FINALLY RESOLVED ON APPEAL, THE AMENDED VERSION OF THE STATUTE APPLIES HERE. N1

1 UNDER SEC. 66(6) OF SB 369, AMENDMENTS THAT ALTER PROCEDURAL TIME LIMITATIONS WITH REGARD TO ACTION ON A CLAIM TAKEN BEFORE THE EFFECTIVE DATE OF THE ACT DO NOT APPLY RETROACTIVELY. CIGNA INSURANCE CO. V. MCMASTERS, 135 OR APP 583, 587 (1995). BECAUSE ORS 656.325(5)(B) DOES NOT ALTER A PROCEDURAL TIME LIMITATION, SEC. 66(6) DOES NOT APPLY TO THIS CASE.

WE MAY REMAND A CASE FOR FURTHER EVIDENCE TAKING IF WE FIND THAT THE CASE HAS BEEN IMPROPERLY, INCOMPLETELY OR OTHERWISE INSUFFICIENTLY DEVELOPED. ORS 656.295(5). REMAND IS APPROPRIATE ON A SHOWING OF GOOD CAUSE OR OTHER COMPELLING BASIS. KIENOW'S FOOD STORES V. LYSTER, 79 OR APP 416, 420 (1986). A COMPELLING BASIS FOR REMAND EXISTS WHEN THE RECORD IS DEVOID OF EVIDENCE REGARDING A LEGAL STANDARD THAT GOES INTO EFFECT WHILE BOARD REVIEW OF A CASE IS PENDING. SEE, JAMES EDMONDS, 47 VAN NATTA 2283 (NOVEMBERT 29, 1995); HELEN M. CALLANDER, 47 VAN NATTA 1626 (1995) (THE RECORD WAS INCOMPLETE AND INSUFFICIENT TO DETERMINE WHETHER THE CLAIMANT'S LOW BACK CONDITION "ACTUALLY WORSENED," THEREFORE, A COMPELLING REASON EXISTED TO REMAND).

HERE, CLAIMANT ACCEPTED MODIFIED WORK. THEREFORE, CLAIMANT'S RETURN TO MODIFIED WORK IS A BASIS FOR TERMINATING TEMPORARY DISABILITY BENEFITS. ORS 656.268(3); STANLEY SMITH SECURITY V. PACE, 118 OR APP 602 (1993); MANUAL ALTAMIRANO, 47 VAN NATTA 1499 (1995). CLAIMANT WAS TERMINATED FOR VIOLATION OF HIS EMPLOYER'S ALCOHOL/DRUG POLICY. ORS 656.268(3).

UNDER AMENDED ORS 656.325(5)(B), SAIF COULD TERMINATE CLAIMANT'S TTD. HOWEVER, ORS 656.325(5)(B) ALSO STATES THAT SAIF WAS TO COMMENCE PAYMENT OF TPD TO CLAIMANT WHEN HIS ATTENDING PHYSICIAN APPROVED MODIFIED WORK (THAT WOULD HAVE BEEN OFFERED HAD CLAIMANT REMAINED EMPLOYED), PROVIDED THAT CLAIMANT'S EMPLOYER HAD A WRITTEN POLICY OF OFFERING MODIFIED WORK TO INJURED WORKERS. THE RECORD CONTAINS NO EVIDENCE OF WHETHER "THE EMPLOYER HAD A WRITTEN POLICY OF OFFERING MODIFIED WORK TO INJURED WORKERS." SEE ORS 656.325(5)(B). AS SUCH, WE CONSIDER THE RECORD TO BE INCOMPLETELY AND INSUFFICIENTLY DEVELOPED TO DETERMINE WHETHER CLAIMANT'S EMPLOYER COULD HAVE COMMENCED PAYMENTS OF TEMPORARY PARTIAL DISABILITY AFTER CLAIMANT WAS TERMINATED FOR BREACHING ITS EMPLOYMENT POLICY. MOREOVER, IN LIGHT OF THE RETROACTIVE APPLICATION OF THE AMENDED STATUTE, WE FIND THAT THERE IS A COMPELLING REASON TO REMAND THIS MATTER FOR THE SUBMISSION OF ADDITIONAL EVIDENCE REGARDING WHETHER THE EMPLOYER HAD A WRITTEN POLICY OF OFFERING MODIFIED WORK TO INJURED WORKERS. SEE JAMES EDMONDS, SUPRA.

ACCORDINGLY, WE VACATE THE ALJ'S ORDER AND REMAND THIS CASE TO ALJ HOGUET'S FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS ORDER. THOSE PROCEEDINGS MAY BE CONDUCTED IN ANY MANNER THAT THE ALJ DETERMINES WILL ACHIEVE SUBSTANTIAL JUSTICE. THEREAFTER, THE ALJ SHALL ISSUE A FINAL, APPEALABLE ORDER ADDRESSING ALL OF THE RELEVANT ISSUES.

IT IS SO ORDERED.

WORKERS' COMPENSATION BOARD

NELSON R. HALL, BOARD CHAIR

MARY C. NEIDIG, BOARD MEMBER