Temporary Compensation

1. Temporary Compensation

The purpose of temporary disability benefits is to replace wages lost during an employee's healing period. American Airlines v. Hervey, see note 1 at ¶12, supra; Farm Fresh, Inc. v. Bucek, 1995 OK 44, ¶8, 895 P.2d 719. Temporary total disability awarded pursuant to 85 O.S. 2001 §22(2) involves the time frame following an accidental injury when an employee is totally incapacitated for work. Upton v. State ex rel. Dept. of Corrections, 2000 OK 46, ¶1, 9 P.3d 84; Bodine v. L.A. King Corp., 1994 OK 22, ¶9, 869 P.2d 320; Bama Pie, Inc. v. Roberts, 1977 OK 100, ¶12, 565 P.2d 31.
B. E. & K. Construction v. Abbott, 2002 OK 75, 59 P.3d 38, fn 3.

There is no provision in the workers' compensation statutes for denying temporary total disability because the employee was fired after his injury. Two recent decisions [ Pierce v. Franklin Electric, 1987 OK 34, 737 P.2d 921 and B.E. & K. Construction v. Abbott, 2002 OK 75, 59 P.3d 38] by this Court have recognized that continued employment is not a statutory requirement for eligibility for workers' compensation benefits.
Patterson v. Sue Estell Trucking, 2004 OK 66, ¶8, 95 P.3d 1087

Temporary total disability compensation to replace the loss of wages during the healing period is a blend of two elements: 1) incapacity or loss of function in the physical or medical sense, which is established by medical evidence; and 2) inability to earn wages that is normally demonstrated by nonmedical evidence touching upon claimant's employment situation. Gray v. Natkin Contracting, 2001 OK 73, ¶¶14-15, 44 P.3d 547, 551.

For thorough discussion of temporary compensation holding that occasional, sporadic work is not grounds for termination of temporary compensation (although it will justify a credit for overpayment) see Gray v. Natkin Contracting, id.

However, evidence of continued employment in a second, part-time job may be sufficient to defeat TTD benefits but not necessarily TPD. A claimant's paid employment demonstrates that he has the ability to follow "continuously" some "substantially gainful employment," and his earning capacity has not been wholly destroyed. American Airlines v. Hervey, 2001 OK 74, 33 P.3d 47; AmeriResource Group v. Gibson, 2008 OK 33, 183 P.3d 1006 (claimant entitled to TTD although performing light housework and helping his wife in her home-based child day care business without pay).

A claimant receiving previously awarded TTD does not forfeit these benefits when a medical condition, not caused by claimant, requires that the treatment being provided be postponed. Yeatman v. Northern Oklahoma Resource Center of Enid, 2004 OK 27, 89 P.3d 1095; Thomas v. Burggraf Restoration, 2001 OK CIV APP 110, 31 P.3d 402 (claimant's inability to work resulted from her shoulder injury and not her low platelet count that had to be treated before she could undergo surgery). See also, Macklanburg-Duncan v. Wimmer, 1955 OK 24, 280 P.2d 1001 (pregnancy) and Jennings v. Express Temporary Services, 2000 OK CIV APP 39, 999 P.2d 1115 (pregnancy), both cited below.

An order for TTD or for extension of TTD coupled with an order reserving overpayment of TTD does not alter the binding effect of an unappealed order for TTD and renders the overpayment a nullity. Yeatman v. Northern Oklahoma Resource Center of Enid, supra.

1.1. TTD in Excess of 300 Weeks

An injured worker who has exhausted his temporary benefits (300 weeks) under 85 O.S. §22(2)(c), may still be entitled to temporary compensation for consequential injuries.

Claimant suffered a consequential neck injury received during physical therapy for his original injuries. He had received the maximum compensation for his original injuries under 85 O.S. §22(2). The Court held he was entitled to temporary total compensation because the neck injury was a "new injury" which arose out of a separate incident. It arose as a consequence of treatment for the original injury and caused additional disability. Phillips v. Duke Manufacturing, Inc., 1999 OK 25, 980 P.2d 137.

However, the July 1, 2005 legislative changes limit TTD to 300 weeks, inclusive of consequential injury.

1.2. Unreasonable Delay in Hernia Cases

Because the employer has an obligation to provide prompt medical attention to an injured employee, 85 O.S., §14, the failure to provide such treatment in hernia cases creates a liability for temporary disability compensation continuing up to the tender of medical treatment if the employee is temporarily and totally disabled. An award should be entered to provide temporary compensation to the date surgery is tendered, followed by payment of the limited hernia benefit when the trial court determines in its discretion that the following rule is satisfied:

The provisions of section 22, supra, limiting compensation to 14 weeks [now 6 weeks] and cost of operation in case of injury resulting in a hernia, presupposes that prompt medical attention in the nature of the necessary operation as provided in section 14, supra, will be given, and where such necessary operation, or the tender thereof, is long and unnecessarily delayed, the employer will be held liable for compensation during such delay where continual disability results from such hernia. The responsibility resting upon the employer to cause to be performed the necessary operation to cure hernia can only be relieved by the performance of such operation or by the tender thereof and the refusal of the employee to accept the same. Allen v. Elk City Cotton Oil Co., 1927 OK 78, 256 P. 898; Slick Oil Co. v. Sullivan, 1933 OK 589, 26 P.2d 926; Chapman v. Selby, 1943 OK 27, 136 P.2d 934. (Emphasis supplied.)

Patrick v. City of Tulsa, 1948 OK 192, 197 P.2d 994

One of the purposes of the Workmen's Compensation Law is to rehabilitate an injured employee, and this should be done without unnecessary delay.
Allen v. Elk City Cotton Oil Co., 1927 OK 78, 256 P. 898.

1.3. Temporary Partial Disability

¶12 From its inception, the purpose of temporary disability compensation has been, and is, to replace wages lost during the healing period. Under our statutory schedule of compensation, an injured worker who has no earning capacity after the injury is entitled to temporary total disability benefits to replace the total loss of wages and an injured worker with some earning capacity after the injury is entitled to temporary partial disability benefits to replace the partial loss of wages, for the time period allowed by the statute.

¶17 Temporary partial disability (TPD) pertains to that time during the healing period when the injured worker has some capacity to work.13 The statutory schedule [33 P. 3d 52] provides for TPD compensation at the rate of seventy percent (70%) of the difference between the employee's average weekly wages and the employee's wage-earning capacity thereafter in the same employment or otherwise. (Emphasis in original)

American Airlines v. Hervey, 2001 OK 74, 33 P.3d 47.

2. Termination of Temporary Compensation

"The burden of proof to terminate a continuing TTD award rests on the movant." Yeatman v. Northern Oklahoma Resource Center of Enid, 2004 OK 27, 89 P.3d 1095.

2.1. Light Duty Issues

An extended discussion of this topic, Light Duty Analysis, can be accessed by clicking here.

An employee's ability to perform light work is sufficient evidence to sustain a finding by the Workers' Compensation Court that the employee is not temporarily totally disabled. There is no provision in the law compelling an employer to continue offering light-duty work to an employee who has been terminated for cause. Akers v. Seaboard Farms, 1998 OK CIV APP 169, 972 P.2d 885 (claimant on light duty was fired for failing a drug test).

2.2. Non-Compliance with Medical Treatment

Moran v. Oklahoma Engineering & Machine & Boiler Co., 1923 OK 224, 214 P. 913, is one of the earliest cases to consider a claimant's disqualification to receive temporary total disability for refusal of or non-compliance with medical treatment. Moran observed that "the statutory obligation of the employer to pay compensation during the continuance of the disability is subject to the implied condition that the workman shall avail himself of such reasonable remedial measures as are within his power." Id. at 915. Moran further observes that disqualification from benefits "under this rule [occurs] where the workman unreasonably refuses to undergo a minor operation, simple, safe, and reasonably certain to effect a cure." Id. (emphasis added).

The modern statement of this rule is found in the second syllabus of Macklanburg-Duncan v. Wimmer, 1955 OK 24, 280 P.2d 1001. Claimant's TTD benefits were affirmed during the course of her pregnancy. The Court stated:

An award of compensation to an employee who has sustained an accidental injury compensable under Workmen's Compensation Law may not be denied nor diminished on the ground of refusal to accept medical treatment tendered by the employer in the absence of a showing that such refusal was arbitrary or unreasonable.

Moran further provides that "[t]he burden of proof [is] upon the employer to establish all facts which would be necessary to warrant … discontinuing compensation." 214 P. at 915 (citation omitted). In addition, Moran states:

Whether or not the refusal to submit to operation and treatment was unreasonable was a fact which the employer must have established and the [workers' compensation tribunal] must have found … and they must have found further that the treatment would have relieved the trouble and thus benefited the employer. Id.

Jennings v. Express Temporary Services, 2000 OK CIV APP 39, 999 P.2d 1115

2.3. Refusal to Undergo Medical Treatment

An employer who complains of a worker's unreasonable refusal to undergo tendered treatment and who desires to compel his submission thereto, bears the burden of proving that the condition sought to be improved necessitates only a minor medical or surgical procedure which is simple, safe and reasonably certain to effect, either in whole or in some substantial part, a reduction in disability. Whether or not employee's action in refusing tendered medical or surgical measures was unreasonable presents a question of fact to be determined by the trial tribunal. A finding made on such issue by the State Industrial Court, when based on competent evidence adduced, is binding and conclusive upon this Court. Moran v. Oklahoma Engineering & Machine & Boiler Co., 89 Okl. 185, 214 P. 913; American Iron & Machine Works et al. v. Weatherman et al., 187 Okl. 260, 102 P.2d 604; E.L. Mendenhall Company v. Kell, 1961 OK 21, 359 P.2d 234.

2.4. Incarceration for Ninety Days or More

Any employee convicted of a misdemeanor or felony and sentenced to a term of incarceration of at least ninety (90) days in this state or in any other jurisdiction shall have all benefits for temporary total disability awarded by the Workers' Compensation Court forfeited by order of the Court on motion of the employer or the employer's insurer after confirmation of the employee's incarceration.
85 O.S. §22(13)(a)

2.5. Hold in Abeyance

3. Overpayment of TTD

The Act provides only one remedy for overpayments of temporary benefits: "a credit against any subsequent order for permanent disability." The statute does not contemplate any other method, for example a money judgment in favor of employer, for recouping an overpayment of TTD except as a credit against a future permanent disability award. Morris v. Manor, 1999 OK CIV APP 59, 984 P.2d 254 (overpayment order in excess of PPD award could not be reduced to judgment and certified to the District Court for collection procedures against the worker); 85 O.S. §203(E).

Employer who erroneously paid claimant temporary total disability (TTD) benefits at double the stipulated rate for 31 weeks was entitled to a credit against permanent partial disability (PPD) benefits for those overpayments, including a credit for overpayments attributable to periods occurring after date on which TTD ended. Walker v. Ind. School District No. 1 of Tulsa County, 1999 OK CIV APP 93, 989 P.2d 1054; 85 O.S. §203(E).

"The burden of proof rests upon the employer claiming the credit to establish the overpayment of temporary disability compensation and the amount of the overpayment." American Airlines v. Hervey, 2001 OK 74, ¶18, 33 P.3d 47; 85 O.S. § 1.1(B).

Payments deducted from earned vacation and sick leave time are not wages in lieu of compensation as contemplated by 85 O.S. 1971 § 41.1. Morris v. City of Oklahoma City, 1979 OK 174, 606 P.2d 1129.

An order for TTD or for extension of TTD coupled with an order reserving overpayment of TTD does not alter the binding effect of an unappealed order for TTD and renders the overpayment a nullity. Yeatman v. Northern Oklahoma Resource Center of Enid, supra.

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