Table of Contents
In Oklahoma, an injured worker who is capable of doing light work is not totally disabled.
Gray v. Natkin Contracting, 2001 OK 73, ¶17, 44 P.3d 547.
1. General Rules
Light duty issues are triggered when an injured worker who is not at MMI is unable to work at his usual duties but is able to perform work that is less physically demanding:
- During the healing period claimant is physically incapacitated and suffers a resulting inability to earn wages at gainful employment.
- Treating physician reports to the employer that claimant is capable of “returning to modified light duty work” and identifies his work restrictions. 85 O.S. §14A(2).
- If light duty is not available or employer fails to serve worker with a §14A(2) light duty offer, claimant remains TTD. Hinton v. Labor Source, 1998 OK CIV APP 2, 953 P.2d 358; Akers v. Seaboard Farms, 1998 OK CIV APP 169, 972 P.2d 885; Smith v. Millwood Schools, 2004 OK CIV APP 41, 90 P.3d 564.
- If light duty is available, claimant is not TTD; and TTD compensation terminates when employer provides claimant with a §14A(2) light duty offer and claimant fails to object to termination pursuant to Court Rule 15A(2)(a). Wal-Mart v. Berg, 2004 OK CIV APP 89, 99 P.3d 1205.
- When claimant accepts light duty work, he is entitled to temporary partial disability (TPD) if his light-duty wages are less than his average weekly wage at the time of his injury.
- An injured employee is not obligated to continue to work if it will cause him to continuously suffer serious discomfort and pain while he is so engaged. Sweetwater Gin Co. v. Wall, 1931 OK 726, 5 P.2d 126; United States Gypsum Company v. Rauh, 1957 OK 299, 318 P.2d 864; or if the physical requirements of the work exceed the treating physician's restrictions.
- Prior light duty work by claimant is not evidence that claimant should have known that light duty work was subsequently available. Employer must give another §14A(2) notice when employee is again released to light duty. Hinton v. Labor Source, supra; Cummings v. Armin Plastics, 2000 OK CIV APP 61, 5 P.3d 1099.
1.1. Employer's Light Duty Notice (Offer)
Employer’s written offer must “be served” on the employee or his attorney and comply with 85 O.S. §14A(2) by stating the following:
- Light duty work is available within the treating physicians restrictions;
- Consequences of failure or refusal to accept light duty will be termination of TTD compensation;
- TTD will be terminated 15 days after the date of service of the offer if light duty is not accepted.
1.2. Burden of Proof
Employer has the burden of proving that light duty work was available, and that it complied with the §14A(2) notice requirements. Claimant has no obligation to prove that light duty is not available. Hinton v. Labor Source, supra; Cummings v. Armin Plastics, supra.
2. Effect of Termination of Employment
The requirement to offer light duty work to injured employees simply does not extend to former employees.
Tubbs v. Oklahoma Tax Commission, 2001 OK CIV APP 97, ¶5, 28 P.3d 624.
2.1. Employee Is Fired or Terminated by Employer
A terminated employee capable of light duty is not entitled to TTD if he is terminated for cause resulting from his post-accident misconduct; otherwise claimant is entitled to TTD. Patterson v. Sue Estell Trucking, supra; Akers v. Seaboard Farms, supra (claimant fired for failing drug test after starting light duty); Ameriresource v. Alexander, 2005 OK CIV APP 68, 120 P.3d 901 (worker discharged for violation of company policy).
Termination of light-duty claimant who volunteers for work force reduction is not good cause. BE&K Construction v. Abbott, 2002 OK 75, 59 P.3d 38.
No employee may be discharged for the purpose of avoiding payment of temporary total disability payments to the injured employee. 85 O.S. §5D.
2.2. Employee Retires or Voluntarily Resigns
Tubbs v. Oklahoma Tax Commission, supra: Claimant was released to light duty work, but none was available. He resigned and continued to draw TTD for 24 weeks. Overpayment granted by the trial court was affirmed by COCA.
Ford Motor Company v. Moore, 2006 OK CIV APP 108, 143 P.3d 223: While receiving TTD benefits, Claimant applied and qualified for disability retirement. After commencing retirement, his physician determined he could perform light duty work. Employer's attempts to terminate TTD were denied by the trial court and affirmed by the COCA.
2.3. Other Terminations
Smith v. Millwood Schools, 2004 OK CIV APP 41, 90 P.3d 564: Claimant who was awarded TTD was released to light work after her one-year teaching contract (which was not renewed) expired. She was no longer TTD.
3. Practice Pointers
- If light duty is available and worker fails to accept a verbal offer, serve worker with a written offer that complies with 85 O.S. §14A(2).
- Do not terminate a light duty worker unless there is good cause for the termination.
- If light duty worker complains that the work is aggravating his injury or increasing his pain, schedule him with his treating physician for reevaluation of his light duty status.
- To avoid forfeiture of TTD, claimant must attempt to perform light duty work or be prepared to offer persuasive evidence that the work offered exceeds claimant’s restrictions.
- Claimant should never, ever quit his job after an injury except to take age-related retirement or volunteer for work-force reduction. Ford Motor Company v. Moore, supra; BE&K Construction v. Abbott, supra.