Thursday, June 12, 2008

Termination of TTD: Light Housework

If a claimant's earning power is not wholly destroyed and he retains the capacity to perform remunerative work during the healing period, he is disqualified from receiving temporary total disability (TTD). A worker who performs substantial gainful employment during the healing period does not qualify for temporary total disability compensation although he may qualify for temporary partial disability. American Airlines v. Hervey, 2001 OK 74, 33 P.3d 47. If the worker is in the healing period, temporary total disability is not automatically terminated merely because the injured worker performs some occasional or sporadic work for a small amount of pay. Gray v. Natkin Contracting, 2001 OK 73, 44 P.3d 547.

These legal principles were used by Justice John F. Reif to craft the Oklahoma Supreme Court decision in AmeriResource Group v. Gibson, 2008 OK 33, __ P.3d __.

In March, 2005 Christopher Gibson claimed injury to his neck and left shoulder resulting from heavy lifting while installing audio-visual equipment for his employer. In April he sought medical treatment due to persistent pain and was terminated by his employer. At trial he testified that he was unable to perform his former work due to pain and muscle spasms in his neck and shoulder. After trying unsuccessfully to get another job, he filled his time helping his wife in her home-based child day care business, including doing light housework. The court appointed IME, Dr. Michael Wright, recommended neck surgery after an MRI showed a significant C5-6 disc herniation. Employer denied that Gibson was TTD alleging he retained the capacity to work. Trial court awarded TTD, COCA reversed, and Supreme Court reinstated the trial court decision.

Among other things, the Supreme Court in an 8-1 opinion held the following:
1. The ability to perform light housework must be sufficient in quality, quantity, or dependability to be marketable and this in turn, must be shown by competent evidence;
2. The daycare work was akin to light housework;
3. In this case, there is no evidence that wife paid claimant for his help or that claimant was generally employable as a daycare worker, nanny or housekeeper;
4. There is no evidence that his wife would or could have hired someone to help her if she had not had claimant's help;
5. Without such evidence, it is simply speculation that claimant's help "inured to his benefit because it enabled his wife to avoid paying someone else to perform the functions [claimant performed]" (employer's argument);
6. This case presents a question of disputed fact and the order is supported by competent evidence which will not be disturbed on appeal;
7. In deciding whether or not claimant has the ability to follow continuously some substantially gainful/remunerative occupation, "the court could properly consider whether claimant was capable on a regular and continual basis of even light work in the real labor market without experiencing serious pain and discomfort on a daily basis."

The key question is whether or not the work performed (volunteered services) represents the ability to follow continuously some substantially gainful employment. Gibson's "help in his wife's home-based day care business does not conclusively show such ability. . .[T]his issue was a question of fact and the resolution of that question of fact in favor of the claimant does not offend any policy of the Workers' Compensation Act."

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