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Ameriresource Group9/2/2005
erted evidence" the claimant performed remunerative employment during the period in which he received TTD benefits and thus was not entitled to such benefits. Here, the evidence is similarly uncontroverted Claimant had no employer-employee relationship with Employer at the time he was determined to be capable of work with restrictions. That fact is dispositive. Where there is no conflict in the material evidence, and no opposite inferences may be drawn from the undisputed proof, it is proper to treat such matters as questions of law. Lanman v. Oklahoma County Sheriff's Office, 1998 OK 37, 958 P.2d 795.
Employer's specific assertions here are that the record is devoid of medical evidence supporting a TTD finding and, on the other hand, the record is "replete with evidence that Claimant remains gainfully employed in multiple business ventures." Those assertions are consistent with the rule set forth in Hervey that proof of TTD has two elements, incapacity or loss of function in the physical or medical sense that is established by medical evidence, and an inability to earn wages that is normally demonstrated by non-medical evidence touching upon claimant's employment situation. A claimant who is gainfully employed, or who is able to work, is not entitled to TTD. Hervey, 33 P.3d at 51.
The IME, in his report of October 14, 2003, opined Claimant was TTD "unless there is a job available with a 20 pound weight lifting restriction with work at or above shoulder level, and no repetitive motion of the cervical spine." Work with such restrictions is commonly known as light duty. The IME did not express an opinion about Claimant's work status, or modify his stated opinion, in his subsequent reports.
In his May 7, 2004 report the IME merely noted Claimant felt his pain was becoming worse and recommended the cervical discography be performed. These statements cannot be read to imply a change in the IME's earlier explicit opinion that Claimant was able to work with restrictions. Thus, that opinion was still in effect and was the only medical evidence relating to the relevant period.
Generally, in order to avoid paying TTD benefits to an injured worker capable of light duties, it is the employer's burden to advise the employee that such work is available. Hinton v. Labor Source, 1997 OK CIV APP 2, 953 P.2d 358. Also, as a general rule, if the employer has no light duty work available, the injured employee is nonetheless entitled to TTD benefits. Smith v. Millwood Schools, 2003 OK CIV APP 41, 90 P.3d 564. However, the Court of Civil Appeals has also held that where, as here, there is no longer an employer-employee relationship at the time the employee is found capable of light duties, an employer is not legally obliged to offer that work. Smith, at 566; Tubbs v. Oklahoma Tax Com'n, 2001 OK CIV APP 97, 28 P.3d 624.
In Smith, the injured worker's contract with the school had expired before the light duty determination was made. The evidence here is uncontroverted that Claimant was fired on May 29, 2003. There was considerable evidence and argument regarding the circumstances of Claimant's employment being terminated, but that question is not relevant under Smith. The definitive fact is that Claimant had no employment relationship with Employer on or after October 14, 2003, when he was seen by the IME. Because of the lack of an employee-employer relationship, Employer had no legal duty to offer Claimant work with restrictions. Further, because the medical evidence established Claimant had some capacity for "remunerative employment", he could not be TTD. American Airlines v. Hervey, 33 P.3d at 51. The WCC erred in finding Claimant TTD from May 7, 2004.
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