Cameron v. Norco Contract Service

LEESON, J. Claimant petitions for review of a Workers’ Compensation Board order. He contends that the Board erred in concluding that claimant’s benefits for temporary total disability (TTD) were not due and payable after July 16, 1990. He argues that he is entitled to TTD until December 24,1990, the date his physician informed him that he was released for work. Both parties treat this as a termination case under ORS 656.262(4)(b). We reverse and remand. Claimant compensably injured his right wrist on October 15, 1987. A subsequent injury to his left wrist was accepted as part of his right wrist claim. On July 16, 1990, claimant saw his treating physician, Dr. Bitseff. Bitseff did not tell claimant that he had released him for work on that date. On September 17, 1990, however, Bitseff reported to insurer that claimant was medically stationary and had been released for regular work on July 16. Bitseff next saw claimant on December 24,1990, and gave claimant verbal authorization to return to work. He did not give claimant a written release. A determination order closed claimant’s claim on March 12, 1991, awarding him TTD through July 16, 1990. Claimant did not receive TTD after that date. The referee ordered that claimant be paid TTD through December 24, 1990, the date that he received verbal authorization to return to work. The Board concluded that claimant was entitled to TTD only until July 16, 1990. Claimant contends that once statutory entitlement to TTD is established, it continues until one of the three events specified in ORS 656.268(3) occurs: (1) The worker returns to regular or modified work; (2) the treating physician provides the worker with a written release to return to regular work; or (3) the treating physician provides the worker with a written release to return to modified work, such work is offered in writing to the worker, and the worker fails to begin work. Claimant did not return to regular or modified work, and never received a written release from his physician. Insurer argues that “an insurer may also unilaterally terminate temporary disability benefits under ORS [425] 656.262(4)(b), when the treating physician can no longer verify a claimant’s inability to work as a result of his injury.” (Emphasis in original.)1 Because TTD was not authorized by claimant’s attending physician, insurer contends that claimant was not entitled to TTD after July 16,1990. The Board agreed with insurer. It held that ORS 656.262(4)(b) provides “a mechanism whereby an insurer or self-insured employer may unilaterally terminate a claimant’s TTD when there is a continuing request for benefits and the insurer meets certain requirements.” In Sandoval v. Crystal Pine, 118 Or App 640, 643, 848 P2d 1224, rev den 317 Or 272 (1993), we held that the only means for an employer to unilaterally terminate TTD is pursuant to ORS 656.268(3). See also United Airlines, Inc. v. Brown, 127 Or App 253, 257, 873 P2d 326 (1994). Regarding the relationship between ORS 656.268(3) and ORS 656.262-(4), we said in Sandoval: “ORS 656.262(4)(a) contemplates that TTD benefits are being paid and describes when they are payable to a claimant. ORS 656.262(4)(b) provides that TTD is not ‘due and payable’ when the attending physician is unable to verify the claimant’s inability to work. In essence, it permits an insurer or self-insured employer to ‘suspend’ the payment of TTD until such verification is obtained. However, the suspension of benefits pursuant to ORS 656.262(4)(b) does not terminate claimant’s entitlement to TTD under ORS 656.268.” 118 Or App at 644. (Emphasis supplied.) The Board erred in holding that, under ORS 656.262(4), an insurer or self-insured employer may unilaterally terminate claimant’s TTD.2 Reversed and remanded for award of temporary total disability benefits through December 24,1990. Footnotes [1] ORS 656.262(4)(b) provides: ‘ ‘Temporary disability compensation is not due and payable for any period of time for which the insurer or self-insured employer has requested from the worker’s attending physician verification of the worker’s inability to work resulting from the claimed injury or disease and the physician cannot verify the worker’s inability to work, unless the worker has been unable to receive treatment for reasons beyond the worker’s control.” [2] Claimant’s other assignment of error is moot. Ferguson v. U.S. Epperson Underwriting, 127 Or App 478, 873 P2d 393 (1994).