Diversified Rubber v. Harvey

• Decision Date: 20 June 2003
• Docket Number: No. 98,374.,98,374.
• Citation: 74 P.3d 619,2003 OK CIV APP 67
• Parties: DIVERSIFIED RUBBER, and Mega Life & Health Insurance, Petitioners, v. Clayborne HARVEY and The Workers' Compensation Court, Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

74 P.3d 619

2003 OK CIV APP 67

DIVERSIFIED RUBBER, and Mega Life & Health Insurance, Petitioners, v. Clayborne HARVEY and The Workers' Compensation Court, Respondents.

No. 98,374.

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

June 20, 2003.

Victor R. Seagle, Kelly M. Greenough, Perrine, McGivern, Redemann, Reid, Berry & Taylor, P.L.L.C., Tulsa, OK, for Petitioners. W.C. Doty, The Bell Law Firm, Norman, OK, for Respondent Clayborne Harvey.

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

Opinion by KENNETH L. BUETTNER, Judge:

¶ 1 Petitioner Diversified Rubber (Employer) seeks review of an order of a three-judge panel of the Workers' Compensation Court which affirmed in part and modified in part the order of the trial court. Employer challenges the panel's order regarding the length of time vocation rehabilitation payments must be made, and also the finding that Claimant Clayborne Harvey made a prima facie case that he is permanently totally disabled. Because we find the panel erred in awarding vocational rehabilitation payments for the period before Harvey was actively participating in a vocational training program, we vacate the order and remand for further proceedings.

¶ 2 Harvey filed his Form 3 January 18, 2000, in which he claimed his left hand was crushed by a rubber cutter while working for Employer October 12, 1999. Employer filed its Form 10 May 15, 2000, in which it admitted that Harvey sustained an accidental injury arising out of and in the course of employment. In its Form 10, Employer noted that it had paid temporary total disability (TTD) benefits to Harvey from October 15, 1999 until February 3, 2000. Pursuant to Harvey's request in his Form 9 filed May 11, 2001, the court granted Harvey an additional 52 weeks of TTD benefits June 15, 2001.

¶ 3 Harvey filed another Form 9 July 17, 2001, in which he sought trial on the issues of permanent disability, continued medical treatment and prescriptions, further surgeries, and a "functional capacity evaluation." Employer filed another Form 10 August 27, 2001, in which it claimed an overpayment of TTD from May 29, 2001 through June 11, 2001, and denied that Harvey was permanently totally disabled. Employer filed its objection to the vocational evaluation of Kathy Bottroff December 20, 2001.

¶ 4 The trial court issued its order April 26, 2002. The court found that Harvey had sustained an injury to his left hand arising out of and in the course of employment. The court found Harvey was TTD from October 16, 1999 until February 3, 2000, and also from August 1, 2000 until May 29, 2001. The court noted that Employer had paid TTD benefits to Harvey from October 16, 1999 until February 3, 2000, and from August 1, 2000 through June 11, 2001. The court therefore awarded Employer credit for overpayment of TTD for the period from May 29, 2001 through June 11, 2001. In paragraph 4, the trial court found that Harvey was "not permanently and totally disabled solely as a result of this accident." In paragraph 5, the court found that Harvey had sustained 40% permanent partial disability to the left hand and awarded 84.4 weeks of compensation. The trial court denied Harvey's request for continuing medical maintenance. In paragraph 7, the trial court reserved the issue of vocational rehabilitation for 60 days. In paragraph 8, the trial court denied Harvey's request for benefits under 85 O.S.Supp.1997 § 16(D).

¶ 5 Harvey appealed the trial court's order to a three-judge panel May 6, 2002. Harvey argued that the evidence supported a finding that he was PTD and was entitled to continuing medical maintenance. Harvey later amended his appeal to the panel to also challenge the denial of § 16(D) benefits and to argue that the finding of 40% disability was "grossly inadequate."

¶ 6 The panel issued its order September 23, 2002, in which it vacated paragraphs 4, 5, 7, and 8. The panel issued the following provisions in lieu of the vacated paragraphs:

-4-

THAT, but for the ability to be retrained, the claimant has established a prima facie case to support an award of permanent total disability.

-5-

THAT as a result of said injury, claimant has sustained 40 percent permanent partial disability to the LEFT HAND.

-7-

THAT within 90 days of the filing date of this order, the claimant is directed to advise C.A.R.E. of his desire to receive job placement assistance or to initiate a program of vocational retraining. C.A.R.E. is directed to coordinate the efforts to return the claimant to gainful employment. The respondent is directed to provide C.A.R.E. with a photocopy of this order.

-8-

THAT the claimant shall be entitled to Section 16D benefits (weekly compensation equivalent to temporary total disability) from MARCH 5, 2002 (date of trial) and continuing.

The panel also ordered that paragraphs 9, 10, and 12 be vacated and that the remaining paragraph, 11, be renumbered to be consecutive with the rest of the order.¹

¶ 7 We review factual determinations made by a three-judge panel using the any competent evidence standard; but for questions of law, our review of the panel's decision is de novo. B.E. & K. Const. v. Abbott, 2002 OK 75, 59 P.3d 38, n. 1

. In seeking review of the panel's order here, Employer asserts first that the panel erred in ordering it to pay benefits under § 16(D) beginning on the date of trial. Employer asserts that the plain language of § 16(D) states that vocational rehabilitation payments may only be paid "during the period when an employee is actively participating in a retraining or job placement program for purposes of evaluating permanent total disability status, ..." 85 O.S.Supp.1997 § 16(D). Employer argues that Harvey was not actively participating in a retraining or job placement program on the date of trial. We agree. Subsection 16(D) is unambiguous:

D. During the period when an employee is actively participating in a retraining or job placement program for purposes of evaluating permanent total disability status, the employee shall be entitled to receive benefits at the same rate as the employee's temporary total disability benefits computed pursuant to Section 22 of this title. No attorney fees shall be awarded or deducted from such benefits received during this period. All tuition related to vocational rehabilitation services shall be paid by the employer or the employer's insurer on a periodic basis directly to the facility providing the vocational rehabilitation services or training to the employee.

(Emphasis added).

¶ 8 Nothing in the record indicates that Harvey had begun any type of vocational training or job placement program at the time of trial or at the time of the panel's order.² Indeed, the panel's order gives Harvey 90 days in which to report for vocational retraining. The language "during the period when an employee is actively participating" in a retraining program is unambiguous. Taken in the context of the whole statute, this language does not include the initial evaluation process to determine if a vocational rehabilitation program is needed or practicable. The purpose of vocational rehabilitation is to restore the employee to gainful employment. The employee can only contribute to this purpose by undertaking the services or training offered by the employer or ordered by the court. To order § 16(D) benefits for a time period when a claimant is not actively involved in a retraining program would not only contravene the plain language of the statute, but would also allow the employee to collect the benefits and later elect not to participate in a retraining program— particularly in this case where the reports indicate few retraining options for Harvey.

¶ 9 The panel erred as a matter of law in ordering § 16(D) benefits to be paid beginning on the date of trial and continuing. On remand, the panel is directed to enter an order providing that § 16(D) benefits are to be paid, if at all, only during the time Harvey is actively participating in a vocational rehabilitation or job training program.³

¶ 10 Employer's remaining argument involves the panel's finding that Harvey has made a prima facie case to support an award of permanent and total disability. Employer's argument is first, that the panel erred in not making a finding as to the extent of disability due to a...