GRIFFITH v. UPS, INC.

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GRIFFITH v. UPS, INC.
2010 OK CIV APP 22
232 P.3d 482
Case Number: 106706
Decided: 11/13/2009
Mandate Issued: 02/19/2010
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

DONALD P. GRIFFITH, Petitioner,
v.
UPS, INC.; LIBERTY INSURANCE CORP.; and THE WORKERS' COMPENSATION COURT, Respondents.

PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL
OF THE WORKERS' COMPENSATION COURT

SUSTAINED

J.L. Franks, Raymond L. Lahann, FRASIER, FRASIER & HICKMAN, Tulsa, Oklahoma, for Petitioner,
James B. Cassody, McGIVERN, GILLIARD & CURTHOYS, Tulsa, Oklahoma, for Respondents.

BAY MITCHELL, CHIEF JUDGE:

¶1 Petitioner Donald P. Griffith (Claimant) seeks review of an order of a three-judge panel of the Workers' Compensation Court. The panel affirmed the trial court's award of temporary total disability (TTD) benefits, permanent partial disability (PPD) benefits, and denial of Claimant's request for additional compensation based upon actual loss of earning capacity. On review, Claimant contends the court erred in denying his claim for compensation for his loss of earning capacity.

¶2 Claimant is a 61-year-old, who worked for approximately 20 years as a route driver for UPS, Inc. (Employer). Claimant injured his neck, lumbar back and right hip as a result of a fall occurring on or about November 14, 2005.1 While Employer admitted Claimant sustained a single-event injury, it denied Claimant suffered permanent disability and denied the November 14th fall was the major cause of Claimant's injuries. Employer additionally denied Claimant was entitled to additional compensation for loss of earning capacity.

¶3 Claimant received physical therapy, steroid injections and medication until he was released from medical care in February 2007. Claimant testified he was placed on a lifting restriction of 35 pounds. According to Claimant, UPS has a lifting requirement of up to 150 pounds, so he has been unable to return to UPS.2

¶4 At trial, evidence was introduced concerning Claimant's diminished earning capacity.

¶5 The Workers' Compensation Court entered its order determining compensability, concluding Claimant's work activities were "the major cause of his resulting injuries." The trial court awarded fifty-one weeks of TTD. Additionally, Claimant was determined to have PPD to the neck, lumbar back and right hip. The trial court denied Claimant's request for additional compensation or damages based upon his loss of earning capacity as testified to by Kathy Bottroff.

¶6 The issue presented for our consideration - the legality of the denial of benefits for Claimant's loss of actual earning capacity - requires statutory construction. This is a question of law which we review de novo, meaning without deference to the trial court's reasoning. Arrow Tool & Gauge v. Mead,

¶7 Claimant contends the schedule of compensation found at

¶8 Where a statute's language is plain and unambiguous, no room exists for construction of its language. Oldham v. Drummond Bd. of Educ.,

¶9 While the statutory language permits consideration "of credible medical evidence that the ability of the employee to earn wages at the same level as before the injury has been permanently impaired," this is clearly (and only) for the purpose of determining the "existence" of permanent disability.

¶10 As an alternative to his strained interpretation of §22, Claimant cites a Louisiana statute in support of his claim for additional damages for actual loss of earning capacity.

¶11 The trial court correctly denied Claimant's request for compensation based upon his actual loss of earning capacity. The panel-approved Order of the Workers' Compensation Court is accordingly SUSTAINED.

HANSEN, P.J., and JOPLIN, J., concur.

FOOTNOTES

1 While the trial court's Order reflects the date of injury as November 14, 2005, the Claimant's Form 3 indicates December 15, 2005 as the date of injury. Neither party to this appeal raises an issue regarding the date of injury.

2 After Claimant's injury, he worked for Employer in a light duty capacity until December 27, 2005, when it was determined there was no longer light duty available.

3 At the time of Claimant's injury, he was earning $26 per hour ($54,433 annually).

4 Kathy Bottroff is a licensed professional counselor and a certified rehabilitation counselor in Oklahoma.

5 THE COURT: Well, I -basically what you're saying is that, based upon her report, she finds how much loss of future earning capacity?
Mr. Franks: The range would be 170,000 and some change to 204,000.
THE COURT: All right. And you're saying that that's what the court ought to award him, is the actual amount of that loss of earning capacity, instead of a rating of-
Mr. Franks: Permanent disability.
THE COURT: Yes. Permanent disability of the injured body parts?
Mr. Franks: Yes, sir. And that would also separate and-
THE COURT: That's really all I wanted you to say.
Mr. Franks: It's separate and apart from the TTD issue.

Tr. at 27-28.