Roseburg Forest Products v. Wilson
Decision Date | 04 December 1991 |
Citation | 110 Or.App. 72,821 P.2d 426 |
Parties | In the Matter of the Compensation of William J. Wilson, Claimant. ROSEBURG FOREST PRODUCTS, Petitioner, v. William J. WILSON, Respondent. WCB 89-09198; CA A68590. |
Court | Oregon Court of Appeals |
Adam T. Stamper, Medford, argued the cause, for petitioner. With him on the brief, were H. Scott Plouse and Cowling & Heysell, Medford.
Jim L. Scavera, North Bend, argued the cause and filed the brief, for respondent.
Before WARREN, P.J., and RIGGS and EDMONDS, JJ.
Employer seeks judicial review of a Workers' Compensation Board order that reversed the referee and required employer to pay claimant temporary total disability (TTD) benefits. We reverse and remand for reconsideration.
In September, 1988, claimant sustained a compensable injury. He was taken off work and began receiving TTD benefits. In March, 1989, employer offered claimant physician approved modified work. When claimant arrived at the designated job site, he encountered a labor dispute and refused to cross the picket line. Relying on former OAR 436-60-030(5), employer considered claimant's failure to report for work to be a refusal of wage earning employment and terminated TTD benefits. 1 Claimant sought a hearing, and the referee upheld employer's termination. The Board reversed. We review its order for errors of law and substantial evidence. ORS 183.482(7), (8).
Former OAR 436-60-030(5) provided:
An employer seeking to rely on that rule to justify a termination of TTD benefits must fully comply with its procedural requirements. Eastman v. Georgia Pacific Corp., 79 Or.App. 610, 613, 719 P.2d 1310 (1986). The Board found such compliance, and that finding is supported by substantial evidence. 2 Therefore, the issue here is whether claimant impermissibly refused wage earning employment.
Claimant argues that he did not impermissibly refuse wage earning employment, because it would have been unreasonable for him to cross the picket line. 3 He also argues that he could not be penalized with a loss of TTD benefits, because his refusal to report for work resulted from his participation in a labor dispute. Employer argues that it is irrelevant why claimant refused to work. It contends that, if approved work was available, claimant had to accept that work, unless his refusal was legally justified. We agree.
The legislature intended temporary disability benefits to provide replacement for wages lost because of a compensable injury. Cutright v. Weyerhaeuser Co., 299 Or. 290, 296, 702 P.2d 403 (1985). In the absence of a legislative direction to the contrary, TTD benefits are not available if the loss results from other than the compensable injury. When a claimant refuses physician approved modified work under former OAR 436-60-030(5), resulting wage loss is not caused by the compensable injury. Therefore, unless the legislature authorized that refusal, wage loss benefits are not available.
ORS 656.268(9) ( ) 4 provided:
"If the attending physician has approved the worker's return to work and there is a labor dispute in progress at the place of employment, the worker may refuse to return to that employment without loss of...
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...of specific matters in a statute may imply a legislative intent to exclude related matters not mentioned. Roseburg Forest Products v. Wilson, 110 Or.App. 72, 821 P.2d 426 (1991); see also Fisher Broadcasting, Inc. v. Dept. of Rev., 321 Or. 341, 353, 898 P.2d 1333 (1995) (applying maxim to t......
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...matter suggests a legislative intent to exclude related matters that are not mentioned. ORS 174.010; Roseburg Forest Products v. Wilson, 110 Or.App. 72, 76, 821 P.2d 426 (1991). In view of the legislature's failure to include language in ORS 163.095 making EED available and the language of ......
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