 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
American Airlines v. Hervey9/18/2001
__ P.3d __
ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION 4
Petitioner sustained a back injury while working as an aircraft cleaner. Employer paid temporary total disability (TTD) compensation without an order of the court. Employer sought a credit for overpayment of TTD compensation against the permanent partial disability award because petitioner worked on a part_time, on_call basis as a child counselor during the time he received TTD compensation. The Honorable Kenton W. Fulton, Judge of the Workers' Compensation Court, ordered a credit for overpayment of TTD compensation. Petitioner sought review of the findings and order relating to TTD before a three_judge panel of the Workers' Compensation Court. The three_judge panel vacated the trial judge's order allowing a credit for overpayment of TTD, substituted its finding of fact, and denied the credit. Employer sought appellate_court review. The Court of Civil Appeals sustained the panel-altered order. Employer filed a petition for writ of certiorari.
CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS, DIVISION 4, VACATED; WORKERS' COMPENSATION COURT ORDER VACATED IN PART; CASE REMANDED TO THE WORKERS' COMPENSATION COURT WITH INSTRUCTIONS TO RECALCULATE THE CREDIT CONSISTENT WITH THIS OPINION.
This is a review proceeding from an order of the Workers' Compensation Court making an award for permanent partial disability and denying a credit for overpayment of temporary total disability compensation. At issue is the three_judge panel's finding of fact that Dale K. Hervey was temporarily and totally disabled from November 4, 1998 to May 5, 1999, because he was unable to return to work for American Airlines, notwithstanding his ability to continue to work at his other side job . We conclude that the three_judge panel's finding is contrary to law. We vacate the opinion of the Court of Civil Appeals and the order of the three_judge panel and remand this case for further proceedings consistent with this opinion.
I. Background
On April 15, 1998, Dale K. Hervey (claimant) injured his shoulders when he fell some twelve to fourteen feet from a ladder onto a metal grating. At the time of the injury, claimant was working for American Airlines (employer) as an aircraft cleaner. Employer did not dispute that claimant's injury was accidental and work related. Employer commenced payment of temporary total disability (TTD) compensation as of November 4, 1998, without an order of the court.
As a result of the work_related injury, claimant underwent surgery on his left shoulder in September, 1998, and his right shoulder in December, 1998. Claimant's treating physician released him to return to light_duty work in May, 1999, but employer did not have a light_duty assignment for claimant. In June, 1999, claimant's physician released him to return to work with permanent restrictions against any overhead work and any lifting of more than fifty pounds.
At trial on the permanent disability claim, employer sought a credit for overpayment of TTD compensation from November 4, 1998 through May 11, 1999, because claimant worked as a child counselor during the time he received TTD compensation. Claimant admitted that he worked at Christopher Youth Center on a part_time, on_call basis during the time he received TTD compensation.
Claimant testified that he has a bachelor's degree in education and that he worked a second job as a child counselor at Christopher Youth Center for the past nine years. His duties at the youth center, counseling and supervising children, were not physically strenuous. In addition to his full_time job as an aircraft cl
Page 1 2 3 4 Oklahoma Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|