concurring.
I agree with the majority’s result insofar as it holds that the Board erred in concluding that claimant was not entitled to TTD after July 16, 1990. I write separately, because I would analyze the issue somewhat differently than the majority does.
In Sandoval v. Crystal Pine, 118 Or App 640, 848 P2d 1224, rev den 317 Or 272 (1993), the employer, in October, 1990, requested that claimant’s attending physician verify the claimant’s continued inability to work. The attending physician’s response, on November 5,1990, did not verify the claimant’s inability to work but, instead, suggested that the employer have claimant examined by another physician. The claimant was then examined by another physician who reported to the employer that the claimant was capable of returning to work. The employer stopped paying TTD as of December 18, 1990.
We held that the Board had correctly concluded that TTD was not due and payable after November 5,1990, when the claimant’s attending physician did not verify the claimant’s continued inability to work. In discussing the relationship between ORS 656.268(3) and ORS 656.262(4), we said:
“ORS 656.268 provides for termination of TTD and claim closure. The only means for an employer to unilaterally ‘terminate’ TTD is pursuant to ORS 656.268(3); the entitlement to those benefits continues until the requirements of the statute are met. See Northrup King & Co. v. Fisher, 91 Or App 602, 757 P2d 855, rev den 307 Or 77 (1988) (construing an earlier version of ORS 656.268).
“ORS 656.262(4)(a) contemplates that TTD benefits are being paid and describes when they are payable to a claimant. ORS 656.262(4)(b) provides that TTD is not ‘due and payable’ when the attending physician is unable to verify the claimant’s inability to work. In essence, it permits an insurer or self-insured employer to ‘suspend’ the payment of TTD until such verification is obtained. However, the suspension of benefits pursuant to ORS 656.262(4)(b) does not terminate claimant’s entitlement to TTD under ORS 656.268. To read ORS 656.262(4)(b) as claimant suggests would read it out of existence. We hold that the Board was correct when it held that TTD was not due and payable after November 5, 1990.” 118 Or App at 644.
*427Here, had the insurer “suspended” claimant’s TTD payments following the receipt of Dr. Bitseff s report of September 17,1990,1 would hold that no TTD was “due and payable” after that date. However, the reality of this case is that the insurer never invoked the provisions of ORS 656.262(4) to “suspend” claimant’s TTD benefits. Therefore, I would hold that, because the insurer never “suspended” benefits pursuant to ORS 656.262(b)(4), the statute has no application here, and that claimant’s right to TTD continued until one of the provisions of ORS 656.268(3) was met. That occurred when claimant returned to work after December 24, 1990.