Cummings v. Armin Plastics

• Decision Date: 07 April 2000
• Docket Number: No. 93882.,93882.
• Citation: 5 P.3d 1099,2000 OK CIV APP 61
• Parties: Wanda S. CUMMINGS, Petitioner v. ARMIN PLASTICS, OWN RISK, and The Workers' Compensation Court, Respondents
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

5 P.3d 1099

2000 OK CIV APP 61

Wanda S. CUMMINGS, Petitioner v. ARMIN PLASTICS, OWN RISK, and The Workers' Compensation Court, Respondents

No. 93882.

Court of Civil Appeals of Oklahoma, Division No. 3.

April 7, 2000.

John L. Harlan, Sapulpa, Oklahoma, For Petitioner.

Kimberly E. West, Andrew D. Downing, Tulsa, Oklahoma, For Respondent.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

OPINION

Opinion by CAROL M. HANSEN, Vice-Chief Judge:

¶ 1 Petitioner, Wanda Cummings (Claimant), seeks review of a Workers' Compensation Court order which, among other things, denied her request for temporary total disability (TTD) benefits.

¶ 2 Respondent, Armin Plastics (Employer), does not dispute Claimant suffered an employment related injury to her back on August 7, 1998. Employer, in fact, paid Claimant TTD benefits August 11-31, 1998, and from September 24th through October 9th, 1998, but denied TTD benefits for the period in controversy — November 5, 1998 through July 6, 1999. As the basis for its denial of benefits, Employer asserted at trial Claimant "was offered light duty and worked light duty for a portion." The trial court denied Claimant's TTD request, and a three judge panel unanimously affirmed the trial court's order without modification. Claimant now seeks our review, contending the Workers' Compensation Court erred in denying TTD benefits.

¶ 3 Whether a claimant is temporarily totally disabled from the performance of labor is a question of fact for the Workers' Compensation Court. Geary Mill. & Elevator Co. v. Andis, 1967 OK 9, 422 P.2d 466. We will not disturb a finding of fact by the Workers' Compensation Court if it is supported by competent evidence, and not otherwise contrary to law. Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548.

¶ 4 The following paragraph constituted the entire operative portion of the Workers' Compensation Court's order:

-4-

THAT claimant's request for temporary total disability benefits from November 5, 1998 to July 6, 1999 is denied, See Hinton v. Labor Source, 1997 OK CIV APP [2], 953 P.2d 358.

¶ 5 In Hinton, the Court of Civil Appeals held an employer, in order to avoid liability for temporary total disability benefits where an employee has been determined to be capable of light duties, has the burden to prove light duty was available to the employee and the employee was informed of the availability. In that case, the employer had been notified by the claimant's physician light duty would be appropriate, but there was no evidence the claimant had been advised he could go back to such work. The Court rejected the employer's argument the burden shifted to the claimant to "prove a negative, that there was no light duty available to him."

¶ 6 While the Workers' Compensation Court here failed to explain the applicability of Hinton, or to make the requisite findings of fact and conclusions of law,¹ we may reasonably presume, under the facts of this case, the court's holding is based on a finding Employer met the Hinton burden, as set forth above. We must look to the record to determine if that finding is supported by competent evidence. Parks, 684 P.2d at 552. ¶ 7 The record reflects the following facts relevant to the question in controversy. Claimant testified as to her light duty work for Employer. After her injury, Employer sent her to Dr. R., who released her to light duty work in September 1998. Dr. R. then released her to full duty on October 2, 1998. Claimant was assigned work "cutting cores", which required reaching over her head and lifting up to 30 pounds. This work increased the pain in her back. Claimant asked for different work, but was told there was none. Claimant returned to Dr. R. on November 2, 1998. Dr. R. told her there was nothing further he could do, and suggested she "look for different employment."

¶ 8 Claimant, on November 5th, went to Dr. S., a family physician, for a second opinion. She testified Dr. S. recommended light duty. Claimant further testified that after she saw Dr. S., she notified Employer of Dr. S.'s light duty recommendation by telephone. On cross-examination, Claimant stated she had talked to Paul Nieto, Employer's Director of Human Resources and Safety, about Dr. S.'s recommendation, and that she "always talked to Paul." She also stated she talked to a Caroline, at Crawford Insurance Company, about Dr. S.'s recommendation, but was told "he was not a company doctor, and they would not cover any of it." She acknowledged she had not actually presented Dr. S.'s written light duty recommendation to Employer.

¶ 9 On November 9, 1998, Claimant filed a motion for trial on a request for medical treatment by Dr. S., and certified thereon a copy of Dr. S.'s medical report had been sent, along with the motion, to Employer. Counsel for the parties met at a prehearing conference on December 31, 1998, to discuss Claimant's request for treatment by Dr. S. Treatment by Dr. S. was not authorized, but instead, on January 21, 1999, the Workers' Compensation Court appointed an independent medical examiner, Dr. G.

¶ 10 The court directed Dr. G. to make several determinations, including Claimant's TTD status. Dr. G.'s report, dated April 6, 1999, was admitted as Court's exhibit no.1. Dr. G. opined Claimant was then eligible for light duty, with listed restrictions. disabled from August 7-31, 1998, and eligible for light duty from that August 31st and continuing. The report was addressed to the Workers' Compensation Court, with copies to counsel for both parties.

¶ 11 Claimant further testified she went back to light duty work for Employer on July 6, 1999. At the time of trial on July 19, 1999, Claimant stated Employer was complying with the restrictions placed on her activities by Dr. G. Claimant does not contest Dr. G.'s opinion she was capable of light duties during the period she seeks TTD. Similarly, Employer does not argue Claimant was actually capable of full duties during that period. Both parties, in asserting their positions under Hinton, instead rely on arguments relating to the state of knowledge regarding Claimant's duty status, and their respective responsibilities concerning Claimant beginning light duties.

¶ 12 Claimant contends Employer should have been put on notice of her ability to do light duties by any of a series of events. The first of these events is the phone calls Claimant testified she made to Employer shortly after seeing Dr. S. Claimant was emphatic she talked to Mr. Nieto. Mr. Nieto testified Claimant had not called to inform him of Dr. S.'s light duty determination, nor had he received that information from any source. In response to the question whether Claimant had called "to say she was having difficulty doing the job", Mr. Nieto did say she had called the supervisor on duty, but not him. Thus, the evidence relating to Claimant's calls was sufficiently in conflict to justify a determination she had not made them, or that she had not related Dr. S.'s light duty determination....