Opinion
93-07299; CA A84646
Submitted on petitioner's motion for reconsideration filed September 20, 1996 reconsideration allowed.
Opinion ( 136 Or. App. 612, 902 P.2d 137 (1995) modified; reversed and remanded for reconsideration February 14, 1996.
Judicial Review from Workers' Compensation Board.
Linda C. Love and Craine Love for motion.
Before Warren, Presiding Judge, and Edmonds and Armstrong, Judges.
PER CURIAM
Reconsideration allowed; opinion modified. Reversed and remanded for reconsideration.
Claimant moves for reconsideration of our decision, Petkovich v. Safeway Stores, Inc., 136 Or. App. 612, 902 P.2d 137 (1995), contending that we erred in determining that 1995 amendments to ORS 656.726(3)(f)(D) apply to her case. We allow the motion, modify our opinion and reverse and remand for reconsideration.
Claimant is correct that the amendments to ORS 656.726(3)(f)(D) do not apply to her case. See 1995 Or Laws, ch 332, § 66(4). Thus, we reexamine claimant's argument that the Workers' Compensation Board erred in calculating her permanent partial disability award. In calculating claimant's award, the Board applied OAR 436-35- 310(2) (March 13, 1992), which provided that, when a claimant had returned to regular work, the adaptability factor was assigned a value of zero.
Claimant argues that OAR 436-35-310(2) (March 13, 1992) conflicts with ORS 656.726(3)(f)(A) and is invalid. Claimant is correct. Carroll v. Boise Cascade Corp., 138 Or. App. 610, 910 P.2d 1111 (1996). Hence the Board erred in calculating claimant's permanent partial disability award.
Reconsideration allowed; opinion modified. Reversed and remanded for reconsideration.