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Gray v. Natkin Contracting9/18/2001
__ P.3d __
ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION 4
Petitioner sustained a work-related back injury. Employer commenced temporary total disability (TTD) payments without an order of the court. Employer sought a credit for overpayment of TTD against the permanent partial disability award because petitioner worked on a few occasions during the time he received TTD compensation . The Honorable Ellen C. Edwards, Judge of the Workers' Compensation Court, found that petitioner received an overpayment of TTD compensation and ordered a credit. Petitioner sought appellate-court review of the trial judge's findings and order relating to TTD. The Court of Civil Appeals vacated the credit and remanded with instructions to strike the credit. 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.
This is a review proceeding from an order of the trial judge of the Workers' Compensation Court making an award for permanent partial disability and ordering a credit for overpayment of temporary total disability compensation. At issue is the trial judge's finding that claimant's temporary total disability ceased on April 2, 1999. The dispositive question is whether the temporary disability period ceased when claimant performed some work during the healing period. Under the circumstances of this case, we answer in the negative. We vacate the opinion of the Court of Civil Appeals and we vacate part 3 of the Workers' Compensation Court order and remand this case to the Workers' Compensation Court with instructions.
I. Background
On October 9, 1998, petitioner, Richard A. Gray (claimant), injured his back when he lifted a 200-pound generator onto a trailer. At the time of the injury, claimant worked for Natkin Contracting (employer) as a supervising commercial plumber. Employer admitted that claimant's injury was accidental and work related. Employer commenced payment of temporary total disability (TTD) compensation as of October 14, 1998, without an order of the court.
As a result of the work-related injury, claimant underwent L4-5 discectomy surgery on October 26, 1998. Claimant suffered post-operative complications due to infections which extended the period of convalescence and treatment.
Claimant reached maximum medical improvement and the condition of his injury stabilized as of August 20, 1999, when claimant's medical expert evaluated him for a permanent impairment rating. Claimant's treating physician released him to return to work, with permanent restrictions, on September 9, 1999. Employer terminated claimant's TTD compensation as of September 21, 1999.
At trial on the permanent disability claim, employer sought credit for overpayment of TTD compensation . Claimant acknowledged that his TTD compensation should have been terminated on August 20, 1999, when his medical expert evaluated him for permanent impairment rating, and that he received an overpayment of TTD in the amount of $1,874.40. Employer sought additional credit for overpayment of TTD compensation for the period from April 2, 1999 to August 20, 1999, asserting that claimant worked at a local race car track during this time period.
At the hearing, claimant testified that, separate and apart from his plumbing work for employer, he operated a business providing security services at Tulsa Speedway. Claimant provided the security services on week-end nights during the racing season. Claimant informed the owners
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