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Menasha Corporation v. Crawford8/16/2001
Argued and submitted November 8, 2000.
The decision of the Court of Appeals is affirmed. The order of the Workers' Compensation Board is reversed, and the case is remanded to the Workers' Compensation Board for further proceedings.
The issue in this workers' compensation case is whether claimant is entitled to receive nearly two years' worth of temporary total disability (TTD) benefits, based on a physician's after-the-fact certification that claimant had been disabled for that period. An administrative law judge (ALJ) and the Workers' Compensation Board (Board) held that claimant was entitled to temporary compensation for the period in question. The Court of Appeals reversed. Menasha Corp. v. Crawford, 164 Or App 174, 988 P2d 451 (1999). We allowed claimant's petition for review and now affirm the decision of the Court of Appeals.
The facts are undisputed. On October 11, 1995, claimant reported to his employer that he had suffered an injury to his lower back. The next day, claimant saw Dr. Davis, who confirmed the back injury and released claimant to light work. Eight days later, Davis released claimant to regular work. In the meantime, employer fired claimant. On October 27, 1995, employer's insurer denied claimant's claim for compensation .
Claimant appealed the denial of his claim. On January 16, 1997, an ALJ reversed the denial. On July 15, 1997, the Board affirmed the ALJ's decision. Neither employer nor employer's insurer (collectively "employer") sought further review, and the merits of that adjudication are not before us. As the case comes to us, claimant is a worker who has had a valid claim for an on-the-job injury to his back, which claim was in accepted status after July 15, 1997.
Claimant was referred to and began treating with another physician, Dr. Bert, on December 13, 1995. On September 30, 1997, Bert performed surgery on claimant's back. On December 1, 1997, after an inquiry by claimant's lawyer, Bert certified retroactively that claimant had been unable to work for the period from October 20, 1995 (the date that Davis released claimant for regular work), until September 30, 1997 (the date of surgery).
On January 27, 1998, Bert released claimant for light work. On February 4, 1998, two physicians retained by employer concluded that claimant's back condition was "medically stationary." Bert concurred.
On March 9, 1998, employer's insurer closed the claim and awarded TTD benefits from September 30, 1997 (the date of surgery), until February 4, 1998 (the date on which claimant was determined to be medically stationary). A later modification added the period from October 12, 1995 (the date of injury), until October 20, 1995 (the date that Davis released claimant for regular work). Claimant was not awarded benefits for the nearly two-year gap between October 20, 1995, and September 30, 1997.
Claimant challenged the award, seeking compensation for the period from October 20, 1995, until September 30, 1997. An ALJ concluded that, although ORS 656.262(4)(g) restricts retroactive awards of TTD during the period of time in which the claim is open, a TTD award for the period from October 20, 1995, until September 30, 1997, nonetheless was appropriate. The ALJ explained:
"The payment of temporary disability 'pursuant to ORS 656.268,'" as provided in [former] ORS 656.262(4)(f) , concerns the payment of temporary disability during the carrier's processing of open claims to closure. Thus, ORS 262.268 refers to procedural temporary disability benefits which may accrue prior to claim closure. ORS 656.268 does not set forth the requirements for substantive entitlement to temporary disability;
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