Roger D. Curtis, 65 Van Natta 171 (January 23, 2013). Claimant, a carpenter, was assigned by a temporary staffing agency to work at a cabinet shop in early October 2011. While on this assignment, claimant developed an infection in some of his fingers. Claimant underwent a post-accident drug screen test and failed. Claimant’s attending physician approved a “Modified Job Description” provided by the employer for an office assistant job position on November 7, 2011. The employer then terminated time loss based on available modified work under ORS 656.325(5)(b). Claimant requested a hearing, seeking temporary disability benefits from November 9, 2011 through December 5, 2011. The ALJ denied claimant’s request for additional time loss benefits for this period in question based on the finding that claimant had been terminated from his employment, and that the there was a modified job that would have been offered but for claimant’s termination for violation of a work rule.
The Board reversed. The Board examined the employer’s work policy in detail, and found the policy provided that a failure to adhere to the employer’s drug policy may result in discipline “up to and including” dismissal; however, termination of employment for a positive drug test was not automatic. In addition, claimant’s supervisor testified at hearing that claimant received no notice from the employer concerning his termination. Under the circumstances, the Board was not persuaded that claimant’s employment was in fact terminated. As such, the employer was not authorized to covert claimant’s TTD benefits to TPD benefits.