Hinton v. Labor Source

• Decision Date: 16 December 1997
• Docket Number: No. 89894,No. 1,89894,1
• Citation: 953 P.2d 358,1998 OK CIV APP 2
• Parties: 1998 OK CIV APP 2 John Larry HINTON, Petitioner, v. LABOR SOURCE, Own Risk, and the Workers' Compensation Court, Respondents. Court of Civil Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 358

953 P.2d 358

1998 OK CIV APP 2

John Larry HINTON, Petitioner, v. LABOR SOURCE, Own Risk, and the Workers' Compensation Court Respondents.

No. 89894.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma Division No. 1.

Dec. 16, 1997.

J.L. Franks, Kathryn Burgy, Tulsa, for Petitioner.

Ronald E. Hignight, Tulsa, for Respondent.

OPINION

HANSEN, Presiding Judge:

¶1 The facts in this action are undisputed. This review arises from an order issued after a hearing in April of 1997 on the issue of Claimant's temporary total disability only. The only matter in dispute is whether an employer has the obligation to offer light duty to a claimant if it is available, or whether the burden is on a claimant to inform his employer he is available for light duty. Under the facts of this case, we hold an employer must inform an employee of the availability of light duty work in order to defend against responsibility for paying temporary total disability.

¶2 In 1994, Claimant sustained injuries to his back arising out of an accident which occurred during his course of employment with Respondent, Labor Source. Claimant underwent evaluation and physical therapy. He returned to light duty work for three or four days but found sitting caused him too much pain. The treating physician took him off work indefinitely.

¶3 In September of 1996, the court sent Claimant to Dr. R. for treatment and at the time of trial, he was still receiving treatment. Claimant stated Dr. R. did not mention light duty work to him. In his report sent to Respondent, Dr. R. opined Claimant was still temporarily totally disabled though light duty positions could be offered to him. At trial, a personnel officer for Respondent testified she handles light duty assignments. She admitted she received Claimant's medical records from Dr. R. but she never told Claimant light duty positions were available nor did she offer him any such work. Neither did she contact Dr. R. to determine the type of work Claimant would be able to perform.

¶4 The trial court awarded Claimant temporary total disability benefits from January 9, 1997 to April 29, 1997. It further found Claimant was provided and offered light duty in 1994, but that further light duty was not made available to him until April 29, 1997. He was ordered to present himself for light duty at that time.

¶5 Respondent appealed to the three judge panel seeking reversal of the order because the evidence showed light duty was "available" to Claimant. The panel agreed and vacated the award of temporary total disability from January 9 to April 27. Claimant seeks review of this order.

¶6 Claimant emphasizes Respondent did not offer him light duty work, he was unaware his physician had advised Respondent in his report that he could perform light duty work, and he did not know light duty work was available to him. Respondent argues because Dr. R. indicated in his report that light duty work would be appropriate, and that type of work was available, it is not liable for temporary total disability during that period. We disagree.

¶7 Oklahoma Courts have not previously addressed this problem. However, in other jurisdictions courts have held that because the employer provided light duty work on one occasion did not prove that it could or would be offered a second time. It held the employer had the burden to prove light duty was available to the injured employee and that the employer actually notified him of that...