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Diversified Rubber v. Harvey6/20/2003
Mandate Issued: 08/01/2003
__ P.3d __
PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS' COMPENSATION COURT
VACATED AND REMANDED
Petitioner Diversified Rubber (Employer) seeks review of an order of a three-judge panel of the Workers' Compensation Court which affirmed in part and modified in part the order of the trial court. Employer challenges the panel's order regarding the length of time vocation rehabilitation payments must be made, and also the finding that Claimant Clayborne Harvey made a prima facie case that he is permanently totally disabled. Because we find the panel erred in awarding vocational rehabilitation payments for the period before Harvey was actively participating in a vocational training program, we vacate the order and remand for further proceedings.
Harvey filed his Form 3 January 18, 2000, in which he claimed his left hand was crushed by a rubber cutter while working for Employer October 12, 1999. Employer filed its Form 10 May 15, 2000, in which it admitted that Harvey sustained an accidental injury arising out of and in the course of employment. In its Form 10, Employer noted that it had paid temporary total disability (TTD) benefits to Harvey from October 15, 1999 until February 3, 2000. Pursuant to Harvey's request in his Form 9 filed May 11, 2001, the court granted Harvey an additional 52 weeks of TTD benefits June 15, 2001.
Harvey filed another Form 9 July 17, 2001, in which he sought trial on the issues of permanent disability, continued medical treatment and prescriptions, further surgeries, and a "functional capacity evaluation." Employer filed another Form 10 August 27, 2001, in which it claimed an overpayment of TTD from May 29, 2001 through June 11, 2001, and denied that Harvey was permanently totally disabled. Employer filed its objection to the vocational evaluation of Kathy Bottroff December 20, 2001.
The trial court issued its order April 26, 2002. The court found that Harvey had sustained an injury to his left hand arising out of and in the course of employment. The court found Harvey was TTD from October 16, 1999 until February 3, 2000, and also from August 1, 2000 until May 29, 2001. The court noted that Employer had paid TTD benefits to Harvey from October 16, 1999 until February 3, 2000, and from August 1, 2000 through June 11, 2001. The court therefore awarded Employer credit for overpayment of TTD for the period from May 29, 2001 through June 11, 2001. In paragraph 4, the trial court found that Harvey was "not permanently and totally disabled solely as a result of this accident." In paragraph 5, the court found that Harvey had sustained 40% permanent partial disability to the left hand and awarded 84.4 weeks of compensation. The trial court denied Harvey's request for continuing medical maintenance. In paragraph 7, the trial court reserved the issue of vocational rehabilitation for 60 days. In paragraph 8, the trial court denied Harvey's request for benefits under 85 O.S.Supp.1997 §16(D).
Harvey appealed the trial court's order to a three-judge panel May 6, 2002. Harvey argued that the evidence supported a finding that he was PTD and was entitled to continuing medical maintenance. Harvey later amended his appeal to the panel to also challenge the denial of §16(D) benefits and to argue that the finding of 40% disability was "grossly inadequate."
The panel issued its order September 23, 2002, in which it vacated paragraphs 4, 5, 7, and 8. The panel issued the following provisions in lieu of the vacated paragraphs:
THAT, but for the ability to be retrained, the claimant has established a prima facie case to
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