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Little v. Little5/22/1991
COURT OF APPEALS OF OREGON
CA No. A66555
1991.OR.41225 ; 107 Or. App. 316; 811 P.2d 1384
Decided: May 22, 1991.
IN THE MATTER OF THE COMPENSATION OF E. EARLENE J. LITTLE, CLAIMANT. SAFEWAY STORES, INC., PETITIONER,
v.
E. EARLENE J. LITTLE, RESPONDENT
Judicial Review from Workers' Compensation Board. No. 87-19635.
Kenneth L. Kleinsmith, Portland, argued the cause for petitioner. With him on the brief was Meyers & Radler, Portland.
Dale C. Johnson, Eugene, argued the cause for respondent. With him on the brief was Malagon, Moore & Johnson, Eugene.
Richardson, Presiding Judge, and Deits and Edmonds, Judges.
Edmonds
Employer seeks review of a Workers' Compensation Board order that held that it had prematurely terminated claimant's temporary total disability (TTD) benefits in violation of OAR 436-60-030(5) and that, therefore, she is entitled to a penalty and attorney fees. We affirm.
In May, 1987, claimant sustained a compensable back injury, for which she received TTD compensation . She saw Dr. Womack, a chiropractor, Dr. Hendricks, an orthopedist, and Dr. Marier, her "regular" physician, for that injury and several unrelated conditions. She also saw Dr. Baker, another orthopedist, at the request of employer. On December 2, 1987, Marier notified claimant by letter that he had approved her return to light work. The letter stated, in part:
"I have been contacted by the Central Office at Safeway Stores, Inc. They have informed me that they are willing to offer you any sort of limited duty employment that you can tolerate.
"Thusly, I am approving you for limited duty to return to work."
Employer terminated claimant's benefits the same day.
On December 11, 1987, Baker released claimant to return to light work, and employer sent her an offer of employment that incorporated his statement. Claimant refused to accept the offered job on December 18, 1987, saying that Baker had told her that she could not return to work until she had had back therapy. Thereafter, she sought reinstatement of her benefits as of December 2, a penalty and attorney fees. The referee found that Baker was claimant's treating physician, held that the requirements of OAR 436-60-030(5) were met as of December 11 and awarded TTD benefits up to that date.
Claimant sought Board review. The Board first found that Baker was not claimant's attending physician. Then, it said:
"In this case, it is extremely difficult to determine whether Dr. Hendricks, Dr. Marier or Dr. Womack is the
attending physician. However, resolution of that factual issue is not necessary to determine whether claimant's temporary total disability compensation was improperly unilaterally terminated. The employer had the responsibility under the rule to resubmit the job offer to claimant after the treating doctor approved the job offer, especially in light of her response to the earlier job offer. Accordingly, whether the treating physician was Dr. Hendricks, Dr. Marier or Dr. Womack, the employer failed to comply with the procedural requirements of OAR 436-60-030(5).
"Since the triggering event is the worker's refusal of a job offer, and the employer terminated claimant's benefits prior to her refusal of a job offer based on Baker's authorization, we conclude that the employer unilaterally ceased payment in violation of the rule. Furthermore, becaus
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