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Ameriresource Group9/2/2005
Mandate Issued: 09/29/2005
SUSTAINED IN PART, VACATED IN PART
Petitioners, AmeriResource Group, Inc. and Compsource Oklahoma (collectively Employer), seek review of a Workers' Compensation Court (WCC) order, which, among other things, found Respondent, Richard Alexander (Claimant) temporarily totally disabled (TTD) and ordered additional medical evaluation and treatment.
Employer concedes Claimant sustained accidental personal injury to his neck and back on March 27, 2003, such injury arising out of and in the course of Claimant's work with Employer. When the case was first tried on August 26, 2003, Claimant sought TTD benefits and medical treatment for his injuries. Employer denied the injuries resulted in TTD and that Claimant required medical treatment because of the injuries.
In its September 15, 2003 order, the WCC ordered Employer to provide Claimant with "reasonable and necessary medical care, to include evaluation and treatment, if necessary, with Dr. , independent medical examiner (IME)." The WCC further found "the evidence fails to establish , however, Dr. will determine the claimant's current status." The court also found (a) Claimant worked for Employer for 21/2 months after his injury until he was discharged for violation of company policy, (b) Claimant acknowledged he continued to do computer work, mowed lawns and maintained two rental properties after the injury, and (c) video tapes of Claimant after the injury showed him doing such things as walking, bending, driving and carrying various items without apparent difficulty. Neither party appealed this order.
After Claimant was examined by the IME, the WCC, on June 2, 2004, again heard Claimant's request for TTD. Claimant asserted he was TTD from October 14, 2003, the date of his visit with the IME, who had found him TTD unless there was work available "within his restrictions." Claimant also asked the court to direct Employer to provide him with a "discogram", which had been recommended by the IME.
Employer denied liability for TTD, arguing Claimant, who "was an employee of AmeriResource Group placed through Mitchell Communications," was terminated for cause prior to Claimant's IME visit, and therefore Employer was not required to offer Claimant light duties. Employer also denied its liability for the discogram because Claimant's "activities since his firing would have resulted in an aggravation of his condition and need for that treatment."
The WCC found Claimant TTD from May 7, 2004, the date the IME "recommended a cervical disography with possible resulting surgery (regardless of availability of light duty)." The WCC also ordered the discogram and medical treatment, finding Claimant "did not aggravate his condition in personal or work activity after his accidental injury at" Employer.
Both parties appealed the later order to a three-judge panel of the WCC. Claimant contended the trial court should have found he was TTD from October 14, 2003. Employer questioned the trial court's findings that Claimant was TTD and that he had not aggravated his condition in personal or work related activities after his date of injury. In its order of September 8, 2004 the three-judge panel unanimously affirmed the trial court's order without modification. Employer seeks review from that order.
The single issue raised for review by Employer is that the WCC erred in finding Claimant TTD. Employer asserts the question presented is one of law, citing American Airlines v. Hervey, 2001 OK 74, 33 P.2d 47, and that our review is under a de novo standard. We agree. In Hervey, at 51, the Court notes the case was decided on "uncontrov
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