dissenting.
Claimant sought review of the Board’s decision in this case arguing that our holding in Safeway Stores v. Owsley, 91 Or App 475, 756 P2d 48 (1988), was not applicable, because claimant’s termination was unlawful. In our earlier opinion in this case, we rejected that argument and held that the Workers’ Compensation Board was not the proper forum to determine the lawfulness of claimant’s termination. The majority’s opinion on reconsideration vacates the opinion without addressing that issue. I believe that it is necessary to our disposition of this case to decide that question. In my view, our previous analysis of that issue was correct, and I would not vacate that portion of the opinion.
The second argument made by claimant in her appeal, and the argument that she seeks our reconsideration of, is the question addressed by the majority on reconsideration. That question is whether the administrative rule, adopted by the Department of Insurance and Finance (DIF) and applied by the Board, that allows TPD to be calculated based on lost wages is consistent with ORS 656.212. The majority concludes that the agency’s rule is invalid and that the board erred in applying it. I disagree.
At the outset, it is important to keep in mind that the purposes of awards of permanent and temporary disability benefits to a worker are different. Temporary disability benefits are paid for the purpose of compensating a worker for the temporary loss of income during a period of temporary disability due to an injury, while permanent disability benefits are paid to compensate a worker for the rest of the worker’s life for total or partial permanent impairment resulting from *126an injury. I believe that in its adoption of the disputed rule here, OAR 436-60-030, DIF has acted consistently with the purpose of temporary disability awards and has not violated the terms of ORS 656.212.
As the majority notes, the governing statute is ORS 656.212 which provides:
“When the disability is or becomes partial only and is temporary in character, the worker shall receive for a period not exceeding two years that proportion of the payments provided for temporary total disability which the loss of earning power at any kind of work bears to the earning power existing at the time of the occurrence of the injury.”
DIF’s rule adopting a formula for the calculation of TPD provides in pertinent part:
“(1) The rate of temporary partial disability compensation due a worker shall be determined by:
“(a) Subtracting the post-injury wage earnings available from any kind of work; from
“(b) the wage earnings from the employment at the time of, and giving rise to the injuries; then
“(c) dividing the difference by the wage earnings in subsection (b) to arrive at the percentage of loss of earning power; then
“(d) multiplying the current temporary total disability compensation rate by the percentage of loss of earning power.
“(2) If the post-injury wage earnings are equal to or greater than the wage earnings at the time of injury, no temporary disability compensation is duel’ (Emphasis supplied.) OAR 436-60-030.
In two previous decisions of this court, we have considered the application of ORS 656.212 and DIF’s rule in calculating a claimant’s TPD award. In Fink v. Metropolitan Public Defender, 67 Or App 79, 676 P2d 934, rev den 296 Or 829 (1984), we considered a prior version of OAR 436-60-030, then codified as OAR 436-54-225. That case involved a situation where a claimant was partially disabled and was not able to work as many hours per week as before the injury. Despite working fewer hours after the injury, however, the claimant’s weekly wages were higher than at the time of the injury. We *127concluded that, under the applicable rule, the claimant was not entitled to TPD because her actual earnings had not been diminished:
“We construe ORS 656.212 to provide that compensation for temporary partial disability of a worker who is recovering from a compensable injury but is nonetheless capable of earning wages and is employed is to be proportionate to the decrease in the worker’s actual earnings.
“The formula established by former OAR 436-54-225, for computing loss of earning power comports with our construction of ORS 656.212. The rule provided for an adjustment of the compensation to be paid for the difference between the wages the worker would have received for temporary total disability under ORS 656.210 [which is computed on the basis of the claimant’s actual wages at the time of the injury]. If a claimant’s post-injury wages exceed the claimant’s preinjury wages, the claimant suffers no loss of earning power and is not entitled to temporary partial disability benefits.” (Emphasis supplied.) Fink v. Metropolitan Public Defender, supra, 67 Or App at 83.
Safeway Stores v. Owsley, supra, involved a similar issue. In that case, claimant was earning $3.67 per hour at the time that she was injured. Claimant returned to work and began receiving TPD. However, she soon received an increase in her hourly pay due to a renegotiation of the union contract. She was eventually fired for reasons unrelated to her injury. At the time that she was fired, she was earning more per week than at the time of her injury. The employer refused to continue to pay her TPD after she was fired arguing that, under OAR 436-60-030, she had not lost earnings due to her injury. In deciding Owsley, we cited ORS 656.212 and OAR 436-60-030 and quoted with approval from our decision in Fink. We then concluded:
“Although Fink involved interim compensation, the same analysis is applicable here. Claimant’s weekly wages were more during the period for which she seeks compensation than at the time of the injury. Therefore, she is not entitled to benefits for temporary partial disability. The Board’s order determining otherwise and assessing a penalty and related attorney fees is therefore reversed, and employer’s denial is reinstated.
“We reject claimant’s contention that employer was required to begin paying temporary partial disability benefits *128again after she was fired. See Noffsinger v. Yoncalla Timber Products, 88 Or App 118, 744 P2d 295 (1987), rev den 305 Or 102 (1988); Nix v. SAIF, 80 Or App 656, 723 P2d 366, rev den 302 Or 156 (1986). Even assuming that claimant’s termination did not preclude recovery of benefits for temporary partial disability, she would have been entitled only to the amount that she could have received on account of her disability had she not been fired. In this case, that is nothing.” Safeway Stores v. Owsley, supra at 479-80.
The majority acknowledges that it departs from our holding in Fink v. Metropolitan Public Defender, supra, but asserts that its conclusion is compelled by the Supreme Court’s recent decision in England v. Thunderbird, 315 Or 633, 848 P2d 100 (1993). I disagree. England involved the application of the statute governing awards of permanent disability, former ORS 656.214(5), and DIF’s rules establishing formulas to calculate such awards. The Supreme Court concluded that DIF’s rules were inconsistent with the statute. The language of the statute and rule involved here, however, are quite different than the language of the statute and rule considered in England. When the differing language of the statutes is considered, as well as the differing purposes of permanent and temporary disability benefits, I believe that the agency’s formula for calculating TPD was not inconsistent with the statute.
The statute considered by the court in England, former ORS 656.214(5), provides in pertinent part:
“In all cases of injury resulting in permanent partial disability, other than those described in subsections (2) to (4) of this section, the criteria for rating of disability shall be the permanent loss of earning capacity due to the compensable injury. Earning capacity is the ability to obtain and hold gainful employment in the broad field of general occupations, taking into consideration such factors as age, education, impairment and adaptability to perform a given job.” (Emphasis supplied.)
The rules that were challenged in England provided that, for workers who had returned to their usual and customary work, the factors of age, education and adaptability were not to be considered. The Supreme Court concluded that, because the statute explicitly directed the agency to consider the *129factors of age, education and adaptability, DIF’s rules providing that in certain circumstances these factors will not be considered were directly contrary to the statute and, therefore, invalid. Citing the specific factors included in the statute, the use of the term “earning capacity” and the definition of that term as the “ability to obtain and hold gainful employment in the broad field of general occupations,” the court concluded that the legislature intended the Board to consider more than an injured person’s post-injury wages in making a permanent disability award and that, accordingly, the rule was outside the agency’s authority to interpret the statute.
Similarly, the question in this case is whether the agency’s adoption of OAR 436-60-030, interpreting and implementing the inexact statutory terms of ORS 656.212, is consistent with the legislative intent in adopting the statute. Springfield Education Assn. v. School Dist., 290 Or 217, 621 P2d 547 (1980). In England, DIF’s rules clearly were inconsistent with the statutory directive to the agency. The statute explicitly directed the agency to consider particular factors in adopting the formula for calculation of permanent disability awards, and DIF’s rules provided that, in certain circumstances, those factors would not be considered.
Here, by contrast, the statute does not include particular factors to be considered. The statute directs the agency to base the award on “loss of earning power at any kind of work,” without further defining those terms. It is true that the statute at issue in England, ORS 656.214, uses the term “earning capacity” and the statute here, ORS 656.212, uses “earning power.” These terms considered alone are similar. However, when the additional language included in ORS 656.214 is considered together with the differing purposes of these two statutes, I would conclude that it was within the agency’s authority to decide that lost earning power may best be calculated by measuring lost wages. That is the reading of the statute that we have made in our previous decisions and, in my view, that holding is consistent ■with the statutory directive to the agency.
In reaching its conclusion, the majority expresses concern, relying on Howerton v. SAIF, 70 Or App 99, 688 P2d 422 (1984), that the fact that one employer is accommodating and continues to pay an injured worker at a higher salary *130should not prevent a worker from being properly compensated for a disability. When we are dealing with an award of permanent disability, as we were in Howerton v. SAIF, supra, that concern makes sense. A permanent disability award is designed to compensate a worker for an injury for the rest of the worker’s life. However, that concern is not so compelling when we are dealing with a temporary disability award that is designed to temporarily replace a worker’s wages during the time of an injury. If the worker is being paid the same or a higher salary after an injury, the worker is not being harmed by not being paid additional temporary wage replacement.
The majority concludes its opinion by stating that:
“When employer terminated her after a few months, she was still disabled from performing her pre-injury job, but the Board denied claimant any amount of TPD, to which she otherwise would have been entitled for up to two years. ”124 Or App at 124.
In making this statement, however, the majority again loses sight of our holding in Owsley. The majority forgets that, if claimant had not been fired, she would have continued to receive her full wages. It was not her injury that caused her to lose her entitlement to her wages, it was the fact that she was fired. I would hold that DIF’s rule was within its authority to implement the statute and that the Board’s application of the rule here was proper. For all of the above reasons, I respectfully dissent.
Richardson, C. J., and Warren and Edmonds, JJ., join in this dissent.