author: Judge RULAND.

text:
    Edward ALBERICO, Plaintiff-Appellant, v. HEALTH MANAGEMENT SYSTEMS, INC., and Colorado Department of Health Care Policy and Financing, Defendants-Appellees.
    No. 99CA0800.
    Colorado Court of Appeals, Div. V.
    June 22, 2000.

      Cozier and Associates, LLC, Cliff Cozier, Englewood, Colorado, for Plaintiff-Appellant.
    Machol & Johannes, P.C., James A. Kap-lan, Denver, Colorado, for Defendant-Appel-lee Health Management Systems, Inc.
    Ken Salazar, Attorney General, Ann Hause, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee Colorado Department of Health Care Policy and Financing.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, sec. 53), and § 24-51-1105, C.R.$.1999.

   Opinion by

Judge RULAND.

In an action to determine the validity of certain 'real estate liens, plaintiff, Edward Alberico, appeals from the summary judgment in favor of defendants, Health Management Systems, Inc., (HMS) and the Colorado Department of Health Care Policy and Financing (DHF). We affirm.

As pertinent here, DHF is the state agency charged with administrating the Colorado Medical Assistance Act (CMAA), § 264-101, et seq., C.R.§8.1999. See § 26-4-104(1), C.R.S.1999. Pursuant to a contract with DHF, HMS assists in obtaining reimbursement for medical assistance payments made to Medicaid recipients.

In 1992, plaintiff's mother began residing in a nursing home. To qualify for Medicaid assistance, it was necessary that she have less than $2,000 in resources. However, the mother's primary residence was properly excluded in calculating the $2,000 resource requirement. See 42 U.S.C. § 18382b(a)(1)(2000); Department of Health Care Policy & Financing § 3.220.28, 9 Colo. Code Reg. 2503-1. DHF determined that plaintiff's mother was eligible and began paying her benefits.

In 1998, acting pursuant to a power of attorney, plaintiff conveyed his mother's residence by quitclaim deed to an inter-vivos revocable trust for nominal consideration. His mother was the initial beneficiary of the trust. Plaintiff recorded the deed, but neither plaintiff nor his mother informed DHF of the transfer. At that time, DHF had paid in excess of $16,000 in benefits on behalf of the mother. DHF continued to pay benefits following the conveyance.

In March of 1994, an attending physician determined that plaintiff's mother could not reasonably expect to return to her home to live. Accordingly, DHF directed HMS to file a lien on the mother's residence to secure reimbursement for benefits paid. HMS did so, and then it continued to file updated liens as additional benefits accrued. During this time, plaintiff periodically completed applications for benefits on behalf of his mother. However, he failed to disclose the transfer of the residence notwithstanding the written requirement on the application forms that he "report any changes ... in resources, etc. as soon as they happen."

At her death in 1996, Medicaid payments on behalf of plaintiffs mother exceeded $100,000. The residence was sold and $112,839 of the proceeds was placed in escrow pending resolution of the issues in this case.

Plaintiff commenced this action seeking a determination that defendants' liens were invalid. Plaintiff also brought a tort claim against HMS for interference with his inheritance. Defendants filed counterclaims requesting that their liens be declared valid and enforceable.

Following submission of eross-motions for summary judgment, the trial court granted judgment in favor of defendants on the basis that the conveyance of the residence was void as to defendants under § 38-10-111, C.R.S. 1999. On this basis, the court ruled that DHF'"s liens were valid. The court also granted defendants' motion to dismiss plaintiffs tort claim. On appeal, plaintiff challenges only the trial court's ruling on the validity of the liens.

In resolving the issues on appeal, we must independently review the record and evaluate the motions for summary judgment in the same manner as the trial court. See Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995). Entry of summary judgment is proper if, as here, there are no disputed issues of material fact, and the only issues for decision present legal questions. See Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo.1987).

I.

Plaintiff contends that the trial court erred in its ruling because, he argues, defendants' liens were invalid under the applicable federal statute and regulations. Specifically, plaintiff asserts that his mother became ineligible for Medicaid payments as a result of the conveyance of her residence to the trust. According to plaintiff, in order to enforce any lien based upon ineligibility, defendants were required first to obtain a court judgment to recover "incorrect payments" under 42 U.S.C. § 1896p(a)(1)(A)(2000).

Defendants respond that the liens are valid to secure repayment of benefits under 42 U.S.C. § 1896p(a)(1)(B)(2000) because the transfer of the property into the trust was void as to them under § 38-10-111. Hence, they argue the benefits were correctly paid under the federal statute. We agree with defendants and the trial court's ruling.

States participating in the federal Medicaid program must comply with certain federal requirements. See 42 U.S.C. § 19862 (2000). Colorado participates in Medicaid pursuant to the CMAA. See § 26-4-101, et seq.

Under the Medicaid program, the residence of a beneficiary formerly could lose its exempt status and become a countable resource if it was transferred into a trust as defined in the former version of 42 U.S.C. § 1396a(k). See Consolidated Omnibus Budget Reconciliation Act of 1985, Pub.L. No. 99-272, $ 9506, 100 Stat. 82 (1985)(codified at 42 U.S8.C.1986a(k))(repealed 1998). Under 42 U.S.C. § 1396p(b)(2000), a state agency can recover benefits paid from either the recipient's estate or from the sale of property subject to a lien. See § 26-4-408.3(8), C.R.S. 1999; Department of Health Care Policy & Financing § 8.068.13, 10 Code Colo. Reg. 2505-10.

In order to secure any recovery, DHF must comply with the federal provisions regarding "liens, adjustments and recoveries of medical assistance correctly paid, transfers of assets, and treatment of certain trusts." 42 U.S.C. § 1896a(a)(18)(2000).

Under 42 U.S.C. § 1396p, only two exceptions exist to the general prohibition against imposing liens upon an individual's property prior to death. The first exception permits an agency to file a lien "pursuant to the judgment of a court on account of benefits incorrectly paid" for that individual. See 42 U.S.C. § 1896p(a)(1)(A)(emphasis supplied). The second exception authorizes state agencies to file liens on the real property of an individual:

[WJlith respect to whom the state determines, after notice and opportunity for a hearing ... that he cannot reasonably be expected to be discharged from the medical institution and to return home.

See 42 U.S.C. § 1396p(a)(1)(B)(i). Although the language in this provision does not distinguish between incorrect and correct payments, the relevant federal regulation limits this provision to recovery of correctly made payments. See 42 C.F.R. § 488.36 (2000).

Here, after it was determined that plaintiff's mother would not return to live in her residence, defendants were authorized to file a lien against her residence to secure recovery for benefits correctly paid. See 42 U.S.C. § 1896p(a)(1)(B)@M). Accordingly, plaintiff does not dispute that defendants' lien is valid as to the approximately $16,000 in benefits paid prior to the conveyance .of the residence.

As to the other benefits paid, § 38-10-111 provides, in relevant part:

[A] deeds of gift, all conveyances, and all transfers ... verbal or written, of ... real property, made in trust for the use of the person making the same shall be void as against the creditors existing of such person.

We conclude that the express language of § 88-10-111 invalidates the conveyance to the trust as to DHF because it was a creditor at the time of the transfer. See In re Baum, 22 F.3d 1014 (10th Cir.1994)(§ 38-10-111 invalidates transfer to a trust as to creditors existing at the time). Because the conveyance was invalid as to DHF, title to the residence remained in plaintiff's mother. See Concord Corp. v. Huff, 144 Colo. 72, 355 P.2d 73 (1960)(a void deed conveys no title). It necessarily follows that the benefits were thus correctly paid on behalf of plaintiff's mother and the liens to secure those payments were valid under 42 U.S.C. § 18396p(a)(1)(B)().

In so concluding, we reject plaintiff's argument that § 38-10-111 conflicts with the Medicaid Act. Defendants complied with the applicable state and federal laws in determining eligibility and imposing a lien based on the information supplied to them by plaintiff. Conversely, § 88-10-1111 does not provide additional or conflicting requirements for eligibility or recovery. Instead, the statute simply invalidates a conveyance to a trust made when creditors have outstanding claims at the time of the conveyance. Indeed, at least one other court has held that a public welfare official is not precluded from using state debtor and creditor law to set aside an allegedly fraudulent transfer so as to recover under social services law. See Crabb v. Mager's Estate, 66 A.D.2d 20, 412 N.Y.S.2d 508 (N.Y.A.D.1979).

Because we find no conflict between the federal and state statutes, we view Gorman v. Tucker ex rel. Edwards, 961 P.2d 1126 (Colo.1998), inapplicable here in resolving the issues on appeal.

To the extent plaintiff asserts that defendants are not entitled to enforce the lien because they failed to follow their own regulations in determining his mother's eligibility, we note that it was plaintiff's failure to disclose the trust conveyance on the application forms that deterred DHP from properly reassessing eligibility. We find nothing in the statutes or regulations that obligates DHF to search the public records for information that it is authorized to require an applicant for benefits to supply. Thus, we conclude that defendants' liens are valid and enforceable against the mother's residence.

IL.

We also reject plaintiff's contention that the Uniform Probate Code non-claim statute, § 15-12-8083(B8)(a), C.R.S.1999, bars defendants' claims. As holders of a valid lien, defendants were secured creditors and, thus, were not required to file a claim against plaintiffs mother's estate. See Willis v. Neilson, 32 Colo.App. 129, 507 P.2d 1106 (1973)(where lien attaches to property before decedent's death, the lien may be enforced without filing a claim against the estate).

IIL

Lastly, we reject plaintiff's remaining contention that there is insufficient information in the record to support several of the trial court's findings. Plaintiff has not demonstrated how any of these findings, even if erroneous, either impact the result reached or preclude entry of summary judgment.

The judgment is affirmed.

Judge CASEBOLT and Judge STERNBERG concur.


source: Caselaw Access Project

author: LAVENDER, J. SUMMERS, C.J., OPALA, J., HODGES, J.,

license: Public Domain

text:
    2000 OK 40
    Odilia DANK, Member of the Oklahoma House of Representatives, Petitioner, v. The Honorable Loyd BENSON, Speaker of the Oklahoma House of Representatives, Respondent.
    No. 94,166.
    Supreme Court of Oklahoma.
    May 23, 2000.

      Gary W. Gardenhire, Norman, OK, for the petitioner.
    W.A. Drew Edmondson, Attorney General of Oklahoma; Andrew Tevington, Asst. Atty. Gen.; and Neal Leader, Sr. Asst. Atty. Gen., Oklahoma City, OK, for the respondent.
    Lee Slater, Oklahoma City, for amicus.
   LAVENDER, J.

{1 Dank [petitioner] asks this Court to decide whether the custom and practice employed in the House of Representatives when proposed legislation is brought up for final vote offends the provisions of Okla. Const. art. 5, § 34. She also asks that, if current legislative procedure is found to be constitutionally deficient, the Court mandate what procedure the House should follow. Before the merits of Dank's petition can be reached, the Court must decide if her claim is "justiciable," i.e., whether it is susceptible of judicial resolution. We conclude that her claim-presented, as it is, in the context of an intra-House dispute-is nonjusticiable.

FACTS AND PROCEDURAL HISTORY

12 Petitioner Odilia Dank, a member of the Oklahoma House of Representatives [House] since 1994, today asks the Court to review how the House procedurally conducts itself when pressing for the final passage of a bill. She asserts that the House has "never" caused proposed legislation to be "read at length" before a final vote is taken on it-a process which, according to her, is constitutionally mandated. Dank contends the constitutionally-deficient legislative procedure persists in spite of several efforts on her part to change it. On past occasions petitioner has sought to have the House change its rules to comport with her understanding of the "read at length" requirement and she has raised (with limited success) points of order contesting the leadership's failure to comply with Okla. Const. art. 5, § 34's provisions. Dank has also secured an Oklahoma Attorney General's opinion on the meaning of the pertinent constitutional provision in an attempt to heighten the House's understanding of and compliance with the "read at length" provision.

T3 Petitioner would have the Court (1) construe Okla. Const. art. 5, § 34's phrase "read at length" to mean "reading each and every word of the bill proposed to be finally passed from beginning to end, without omission and not in summary form" and (2) to condemn the House's internal custom and practice currently used to bring measures to a final vote (when these procedures do not require proposed legislation to be "read at length"). Petitioner's application does not challenge any specific, enrolled legislation as being constitutionally flawed. Rather the sole focus of her quest is reformation of the legislative process used to inform House members of a bill's content before a final vote is taken on the same. Lastly, petitioner's paperwork does not draw the Court's attention to any specific procedural infractions of a constitutional dimension in the current legislative session but rather predicts that the same will occur since they have in the past.

114 Loyd Benson [respondent], the House Speaker, asserts absolute immunity to the petitioner's suit premised upon the protection afforded by the Speech and Debate clause to his conduct while presiding over the House. Since we find that the petitioner's application does not present a justiciable cause and hence decline to assume original jurisdiction over the same, it is not necessary to reach the merits of the respondent's claim of immunity.

II

DANS APPLICATION PRESENTS A NONJUSTICIABLE CLAIM

A

115 As we begin our analysis today, we are mindful of the Court's holding in City of Sapulpa v. Land, 101 Okla. 22, 223 P. 640, 644 (1924), that:

"The judiciary system of this state is the creature of the Constitution and the statute laws of the state. The Supreme sovereign power of this state rests in the people of the state."

The enunciated legal principle rightly demands great respect for the people's will as expressed in the state's organic law. Though the resolution of causes often turn upon the law's minutiae, there are indeed conflicts-such as the one now before the Court-which find much of their resolution in broader constitutional principles.

16 Because Dank takes issue with the House procedure used to bring proposed legislation to a final vote, her action necessarily implicates the constitutionally-committed authority of each House to adopt its own rules of internal procedure. The requested relief asks the Court to interject itself into the legislative process constitutionally committed to the House of Representatives and render an opinion concerning how this body should conduct its business. While Oklahoma's Constitution gives the Supreme Court appellate jurisdiction to review and assess the lawfulness of legislative enactments and original jurisdiction over prescribed entities, only under the most exigent circumstances are we to intercede in the internal affairs of a coordinate branch of government when it exercises a function-i.e., legislative or executive-committed to it by the Constitution. The framers clearly intended a separation of power between the executive, legislative and judicial branch es of government. General constitutional order is offended when one department of government usurps power expressly delegat ed to another. Henee, it is with heightened consideration that the Court assays Dank's application for the relief (a declaratory judgment and writ of mandamus) which she asks the Court to grant.

B

17 Petitioner claims there is a likelihood that the House (through its elected leadership, ie., the Speaker) will engage in future procedural conduct which will be vio-lative of Okla. Const. art. 5, § 34. In essence her claim-which is not based on actual, reported procedural acts of the current Legislature and does not assert constitutional flaws in enacted legislation-asks the Court to address a hypothetical situation which may or may not arise. It is not the business of the Court to give advisory opinions on hypothetical questions. [Were it different legislators could pose questions to the Court about proposed legislation-a process which today lies without the seope of the Court's jurisdiction.]

T8 To be justiciable Dank's claim must be suitable for judicial inquiry. This requires determining whether the controversy (a) is definite and concrete, (b) concerns legal relations among parties with adverse interests and (c) is real and substantial so as to be capable of a decision granting or denying specific relief of a conclusive nature. Petitioner's claim fails to satisfy the enunciated test in two regards.

19 First, the petitioner's claim fails to satisfy the test's initial criterium, ie., is the claim fixed and substantive and not of a hypothetical character. For the Court to assume original jurisdiction and to grant the requested form of relief the cause must be of sufficient immediacy and reality as to warrant the pronouncement of judgment. The asserted claim implicates neither (a) enrolled legislation carrying the force of law nor (b) an imminent constitutional crisis which threatens governmental operation. When in Ethics Com'n v. Cullison, 1993 OK 37, 850 P.2d 1069, the Court assumed original jurisdiction, the case clearly satisfied the justicia-bility criterium of "immediacy and reality" since it raised the specter of an "intolerable conflict" between co-ordinate branches of government which possessed the potential for governmental gridlock. Because no such immediacy or reality exists in the present cause, the test for justiciability remains unmet and original jurisdiction cannot be assumed.

110 Secondly, because Dank's claim comes solely in the guise of an intra-House dispute, its justiciability must also be assessed in conjunction with the separation-of-powers doctrine. Dank's "application to assume original jurisdiction" asks the Court to issue mandamus to force the Legislature's compliance with the "read at length" provision. This the Court cannot do. Oklahoma's extant jurisprudence clearly delimits the Court's power over the Legislature. In Jones v. Freeman, 193 Okla. 554, 146 P.2d 564 (1944), it was held:

"The Legislature, being a co-ordinate branch of the government, may not be compelled by the courts to perform a legislative duty, even though the performance of that duty be required by the Constitution."

Generally speaking, the separation-of-powers doctrine prevents the Court's intrusion by writ of mandamus into the House's exercise of its constitutionally-assigned legislative function. Because of the context in which the petitioner brings her application-an in-tra-House dispute-her cause is not susceptible of resolution through specific relief of a conclusive nature. Because there is no adequate relief which can be crafted to resolve Dank's claim [at least in the context in which it comes to the Court], petitioner's claim is not justiciable, ie., suitable for judicial ingqui-ry. It fails to satisfy the third element of the enunciated test for justiciability.

III

CONCLUSION

{11 By her application petitioner would have the Court assume original jurisdiction over an intra-House dispute, construe the "read at length" provision of Okla. Const. art. 5, § 34, and mandate rules of procedure to be used in the House to implement the Court's construction of the constitutional provision.

112 The declaratory relief which Dank seeks is not available under the facts of her application because it does not present circumstances imbued with the immediacy and reality required under Oklahoma's extant jurisprudence to grant a declaratory judgment. Further, the Court is without authority to interject itself into the legislative process [assigned by the constitution to the House] by directing how that body shall conduct its business. While not giving the petitioner the judicial solution she seeks, the Court's pronouncement does give efficacy to the limitations on governmental function posited with each governmental branch by the people of Oklahoma under the separation-of-powers doctrine.

{13 Petitioner's application presents a nonjusticiable controversy. Hence, her "application to assume original jurisdiction" is denied.

14 SUMMERS, C.J., HARGRAVE, v.C.J., OPALA, KAUGER, WATT, BOUDREAU, and WINCHESTER, JJ., concur.

{ 15 HODGES, J., dissents.

SUMMERS, C.J.,

Concurring, and joined by KAUGER and WATT, JJ.

111 Although I agree with the opinion, it is my additional observation that the Speech or Debate Clause of the Oklahoma Constitution insulates Speaker Benson from suit in this case. Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d 1069 is clearly distinguishable. See separate opinion of Opala, J., concurring in result therein, 850 P.2d at 1083-1085. There the Speaker and President Pro Tem were but nominal defendants; the suit was against the state itself to invalidate specific legislation. Here the acts of the Speaker in conducting business within the chamber of the House of Representatives are called into question; no attack is made against the validity of any particular legislation. The clause has been applied to acts of a legislative nature as well as to speech narrowly defined. Powell v. McCormack, 395 U.S. 486, 502, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). The Speaker is immune from suits of this sort.

OPALA, J.,

concurring.

¶1 The court declines today to take original cognizance of this cause which tenders a claim against the Speaker of the House of Representatives by a member-legislator who seeks judicial declaration that certain internal procedures for processing bills to final passage contravene the provisions of Art. 5, § 34, Okl. Const. The petitioner urges that the offending procedures be declared infirm and be replaced by those-to be crafted by this court -which would be made conformable to the mandates of that section. I write separately in concurrence to add my own analysis of some points in contest.

THE PROCESS APPLIED IN THIS CAUSE DID NOT ABRIDGE THE SPEAKER'S CLAIMED IMMUNITY

T2 The Speaker moved that he be dismissed from the cause because he "cannot be haled before the Supreme Court to answer for his legislative activities...." His motion unmistakably invokes the "absolute immunity" claimed to be conferred by the so-called Speech or Debate Clause in Art. 5, § 22, OKI. Const. The Speaker's motion has not been reached for disposition. It remains pending. The court's opinion explains that "it is not necessary to reach the respondent's claim of immunity" because we "decline to assume original jurisdiction" over this cause and grant no relief against the claimed-to-be-immunized Speaker.

3 The immunity interposed by the Speaker, if indeed his due in this cause, does not free him of the law-imposed responsibility to move this court for his dismissal from the suit. The duty to determine whether a movant's invoked legislative immunity applies to the action is cast on the court entertaining the case. Even if the Speaker's fundamental-law exemption were deemed to be inmunity from suit as well as from Hability, he is immune neither from the court's process nor from its service. The court's refusal to reach the motion to dismiss is hence free from constitutional flaws.

II

TODAY'S PRONOUNCEMENT DOES NOT SIGNAL A RETREAT FROM THE COURTS FUNDAMENTAL-LAW RESPONSIBILITY TO REVIEW GOVERNMENT ACTIONS THAT ARE CHALLENGED IN THE FRAMEWORK OF A JUSTICIABLE CONTROVERSY FOR LACK OF CONFORMITY TO THE COMMANDS OF THE CONSTITUTION

14 No one need be alarmed by today's refusal to accept a nonjusticiable claim. The public must be protected against the judiciary's excessive intrusion into day-to-day conduct of government by operating an on-demand answering service for questions about constitutional orthodoxy.

T 5 Today's pronouncement does not decide that all intracameral controversies over internal procedures are unsuitable for judicial testing. Neither does it settle the notion that a legislator's claim-based on his/her severely impaired capacity to participate in an informed deliberation before final passage of a bill-may not be fit for judicial relief. The court's rejection of petitioner's challenge rests solely on its conclusion, in which I coneur, that nonjusticiability makes this controversy unsuitable for judicial cognizance.

16 Judicial cognizance cannot be invoked by pressing a nonjusticiable controversy-one that presents nothing more than an academic or abstract issue. Unlike the State's Attorney General, this court cannot serve government officials by routinely answering their requests for guidance on the conformity of contemplated or taken actions to the Constitution's mandate. The barriers of justici-ability prevent judges from roving outside the judicial role and giving voice to abstract grievances. Courts are not roving commissions assigned to pass Judgment on the validity of internal legislative procedures. Constitutional judgments are justified only out of the strict mecessity generated in particular cases in which rights between the litigants brought before the court must be adjudicated. Mere intracameral disagreement over the constitutional norms that chart the boundaries of internal procedures is not enough to supply the critical element of justi-ciability. Much more is required of this claim by a legislator who seeks judicial declaration that certain internal procedures for processing bills to final passage contravene the provisions of Art. 5, § 34, Ok. Const.

T7 No one should assume from today's pronouncement that under no ctreumstances can a legislator's claim be remediable when it is rested on a deprived or impaired opportunity to participate in the "informed deliberative process." Extant federal jurisprudence persuasively demonstrates that relief must be crafted to vindicate the claim of an individual legislator who also tenders a public right. In at least two cases found justiciable, a wrongly expelled lawmaker was reinstated to his legitimate office-holder status. If pre sented in a justiciable posture, a significant impairment of a lawmaker's access, in a legislative assembly, to informed deliberation could be argued as akin to pro tanto expulsion from office. Im short, judicial self-restraint is not without limil.

18 At the core of petitioner's complaint are certain internal procedures alleged to give her too little time for informed deliberation before complex bills are processed to final passage. If the handicap dealt her by these procedures could be said to diminish her effect on the bill's progress in a manner akin to a legislator's pro tanto exelusion from participating in the work of the assembly or be found similar in result to reduction of her vote's weight in an assembly tainted by geographic maldistribution of representatives, the negative impact on her effectiveness and the ensuing harm to the constituency would be apparent. In short, internal procedures may produce adverse extracam-eral consequences not only upon passage of bills to final adoption but also upon full-breadth participation of a chamber's membership.

SUMMARY

T9 The court did not abridge the Speaker's claimed immunity nor did it abdicate its duty to test the legality of those government actions that stand presented in a posture suitable for judicial relief.

HODGES, J.,

dissenting:

1 I dissent to this Court's pronouncement in this matter. Because this dispute is based on a constitutional mandate, see Okla. Const. art. V, § 34, rather than the internal operating procedures of the Oklahoma House of Representative, this Court is presented with a justiciable controversy.

      . The terms of Okla. Const. art. 5, § 34 provide:
      "Every bill shall be read on three different days in each House, and no bill shall become law unless, on its final passage, it be read at length, and no law shall be passed unless upon a vote of a majority of all the members elected to each House in favor of such law; and the question, upon final passage, shall be taken upon its last reading, and the yeas and nays shall be entered upon the journal." [Emphasis added.]

      . The relief which the petitioner seeks in her application is at variance with the position she advanced during oral argument where she indicated that a declaratory judgment would suffice. Nonetheless, she has not amended her paperwork filed in this cause where a writ of mandamus directed to the House is sought.

      . For the terms of Okla. Const. art. 5, § 34 see supra note 1.

      . Attorney General's Opinion No. 98-38.

      . Petitioner offers that while it is the House's custom and practice to furnish Members with a printed form of the bill before the final vote is taken, bills are often lengthy and time constraints prevent her from reading the same at length before she is required to vote. Petitioner's counsel also acknowledged during oral argument that it would be physically impossible for the House to "read at length" [as Dank has defined the phrase] the volume of legislation pending before the House in the current legislative session.

      . Counsel for respondent in oral argument before the Court offered-and the petitioner did not controvert-that the House's journal reflects that during the 1999 legislative session the Members were not asked to vote on proposed legislation solely on the basis of bill summaries and were in fact provided with full copies of all bills before voles were taken upon the same. Respondent did acknowledge that the complained of procedures were used in earlier legislative sessions.

      . See Okla. Const. art. 5, § 22.

      . See Okla. Const. art. 5, § 30, which provides in pertinent part:
      "Each House may determine the rules of its proceedings...."

      . See Okla. Const. art. 5, § 1, whose pertinent terms provide:
      The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives...."

      . See Okla. Const. art. 7, § 4, whose pertinent terms provide:
      'The appellate jurisdiction of the Supreme Court shall ... extend to all cases at law and in equity.... The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all Agencies, Commissions and Boards created by law."

      . For examples of circumstances presenting crises of a constitutional dimension warranting the assumption of original jurisdiction, see Bellmon v. Barker, 1988 OK 79, 760 P.2d 813, and Ethics Com'n v. Cullison, 1993 OK 37, 850 P.2d 1069. Both cases involved "intolerable conflict" between co-ordinate branches of government which possessed the potential for gridlock. Id. at 1073.

      . The separation-of-powers doctrine is most appreciated when viewed in the context of governmental checks and balances. Mr. Justice Brandeis assessed the value of the separation-of-powers doctrine (as it relates to the federal government) when he observed:
      'The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among the three departments, to save the people from autocracy." Myers v. U.S., 272 U.S. 52, 47 S.Ct. 21, 85, 71 L.Ed. 160.

      . The terms of Okla. Const. art 4, § 1 provide:
      ''The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others." {Emphasis added.]

      . Tweedy v. Oklahoma Bar Ass'n, 1981 OK 12, 624 P.2d 1049, 1054.

      . Application of Fun Country Development Authority, 1977 OK 138, 566 P.2d 1167.

      . State of Okla. ex rel. Dept. of Transp., 1982 OK 36, 646 P.2d 605, 608-609.

      . Cullison, supra note 11 at 1703.

      . Petitioner asks that the sought declaratory relief be given "prospective" application. See Dank's Brief in Support of Application to Assume Original Jurisdiction, p. 14. Her request necessarily implicates the immediacy criterium enunciated in Keating v. Johnson, 1996 OK 61, 918 P.2d 51, 55. There the Court held:
      "[The present posture of the case as delivered to us by petitioners, particularly in light of their own request that we make any decision prospective to a future date to afford the Governor and Legislature time to enact curative legislation should we decide one or more of the challenged provisions are unconstitutional ... appears to counsel against a determination there is any need for our immediate attention. In our view, although the question(s) presented are important, petitioners have failed to show there is some immediacy involved in this controversy that would call for this Court to exercise its discretion to hear the matter at the present time." [Emphasis added.]

      . Puckett v. Cook, 1978 OK 108, 586 P.2d 721, 723.

      . Romang v. Cordell, 1952 OK 139, 206 Okla. 369, 243 P.2d 677, 680; City of Bethany v. District Court of Oklahoma County, 200 Okla. 49, 191 P.2d 187, 189.

      . See Okla. Const. art. 4, § 1 supra note 13.

      . Oklahoma Constitution, Art. V § 22 provides: Senators and Representatives shall, except for treason, felony, or breach of the peace, be privileged from arrest during the session of the Legislature, and in going to and returning from the same, and, for any speech or debate in either House, shall not be questioned in any other place. (emphasis added)

      . The terms of Art. 5, § 34, OKI. Const., are:
      Every bill shall be read on three different days in each House, and no bill shall become a law unless, on its final passage, it be read at length, and no law shall be passed unless upon a vote of a majority of all the members elected to each House in favor of such law; and the question, upon final passage, shall be taken upon its last reading, and the yeas and nays shall be entered upon the journal.
      (emphasis supplied).

      . Constitutional jurisprudence of long vintage and unimpeachable authority teaches with unmistakable clarity that under the separation of powers commanded by Art. 4, § 1, Okl. Const., the Supreme Court may neither claim for itself-nor exercise legislatively conferred-power to promulgate rules that would regulate the conduct of any organ of state government other than of judicial institutions inferior in rank. Sterling Refining Co. v. Walker, 1933 OK 446, 25 P.2d 312, 320. For my earlier description of the Sterling holding, see Nelson v. Nelson, 1998 OK 10, 954 P.2d 1219, 1233, n. 30 (Opala, J., dissenting in part); Petuskey v. Cannon, 1987 OK 74, 742 P.2d 1117, 1125 n. 4 (Opala, J., concurring); State ex rel. York v. Turpen, 1984 OK 26, 681 P.2d 763, 767 (Opala, J., concurring).

      . The text of Art. 5, § 22, OKI. Const., is:
      Senators and Representatives shall, except for treason, felony, or breach of the peace, be privileged from arrest during the session of the Legislature, and in going to and returning from the same, and, for any speech or debate in either House, shall not be questioned in any other place.

      . When immunity is granted but the controversy is deemed justiciable the case need not be over. See, e.g., Powell v. McCormack, 395 U.S. 486, 504-05, 89 S.Ct. 1944, 1955-56, 23 L.Ed.2d 491 (1969); Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.C. 1425, 1427-28, 18 L.Ed.2d 577 (1967); Kilbourn v. Thompson, 103 U.S. (13 Otto.) 168, 202, 26 L.Ed. 377 (1880), where the Court dismissed the actions against the congressmen but allowed them to proceed against substituted parties-legislative employees who implemented the legislators' unconstitutional orders and resolutions. I

      . It is unnecessary to pass here on the distinction between an immunity from suit and one from liability. For cases that recognize that distinction, see Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993); Bergner v. State, 144 Conn. 282, 130 A.2d 293 (Conn.1957); Handmaker v. Henney, 128 N.M. 328, 992 P.2d 879, 883-84 (1999); Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex.App.1999); Descant v. Administrators of the Tulane Educational Fund, 639 So.2d 246, 249 (La.1994); Cundiff v. Crider, 303 Ark. 120, 792 S.W.2d 604, 606 (1990); Ross v. Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641, 651-52 (1984); Guillaume v. Staum, 328 N.W.2d 259, 261 (S.D.1982); Miller v. Chou, 257 N.W.2d 277, 280 (Minn.1977); State v. F.W. Fitch Co., 236 Iowa 208, 17 N.W.2d 380, 384 (1945).

      . Powell, supra note 4, 395 U.S. at 505, n. 25, 89 S.Ct. at 1956; Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951); Gravel v. U.S., 408 U.S. 606, 618-21, 92 S.Ct. 2614, 2624-25, 33 L.Ed.2d 583 (1972).

      . Immunity from suit or liability presents for analysis a concept different from that of immunity from service of process. Bingham v. Bingham, 1961 OK 263, 366 P.2d 396, 398.

      . "'Intracameral", as used in the text, means occurring in and applicable to the internal operations of a legislative chamber. "Cameral" is defined as "of or relating to a legislative or judicial chamber,." Webster's Third New International Dictionary at 322 (1961). The term "intra" means "within", "during" or "internal." Id. at 1185.

      . Judicial intrusion upon internal procedures of a legislative assembly must be consistent with the autonomy of each chamber, which is commanded by Art. 5, § 30, OkIl. Const. The pertinent terms of § 30 are:
      Each House may determine the rules of its proceedings....

      . Hughey v. Grand River Dam Authority, 1995 OK 56, 897 P.2d 1138, 1143; Northeast Okl. Elec. v. Corporation Com'n, 1991 OK 28, 808 P.2d 680, 683; Westinghouse Elec. v. Grand River Dam Auth., 1986 OK 20, 720 P.2d 713, 718; Traders Compress Co. v. Board of Review, Okl. Employment Security Commission, 1950 OK 274, 224 P.2d 268. See also Application of Goodwin, 1979 OK 106, 597 P.2d 762, 765 n. 8.

      . York, supra note 2 at 766-67.

      . To be appropriate for judicial inquiry, a controversy must be justiciable. Included within the rubric of justiciability is a controversy which (a) is definite and concrete, (b) concerns legal relations among parties with adverse interests, and (c) is real and substantial so as to be capable of a decision granting or denying specific relief. Keating v. Johnson, 1996 OK 61, 918 P.2d 51, 60 (Opala, J., concurring); Hendrick v. Walters, 1993 OK 162, 865 P.2d 1232, 1238; Application of State ex rel. Dept. of Transp., 1982 OK 36, 646 P.2d 605, 609; Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240-242, 57 S.Ct. 461, 464-465, 81 L.Ed. 617 (1937); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 324-325, 56 S.Ct. 466, 472-473, 80 L.Ed. 688 (1936); Hatfield v. King, 184 U.S. 162, 165-166, 22 S.Ct. 477, 478, 46 L.Ed. 481 (1902). For a discussion of the justiciability doctrine in the federal judicial system, see Wright, Miller & Cooper, 13 Fed. Prac. & Proc. Juris.2d § 3529 (1984).

      . Keating, supra note 12 at 60 (Opala, J., concurring).

      . See Broadrick v. Oklahoma, 413 U.S. 601, 610-611, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973); In re Snyder, 472 U.S. 634, 642-643, 105 S.Ct. 2874, 2880, 86 L.Ed.2d 504 (1985); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-502, 105 S.Ct 2794, 2801, 86 L.Ed.2d 394 (1985); I.N.S. v. Chadha, 462 U.S. 919, 937, 103 S.Ct. 2764, 2777, 77 L.Ed.2d 317 (1983); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

      . Keating, supra note 12 at 61 (Opala, J., concurring), which states:
      "Justiciability" is defined in Ethics Commission v. Cullison, [1993 OK 37] 850 P.2d 1069, 1083 n. 19 (Opala, J., concurring in result) as follows: A justiciable controversy is a real and substantial cause which is appropriate for judicial determination, rather than a dispute or difference of hypothetical, abstract or academic nature.
      (emphasis in original).
      See also Aetna, supra note 12, 300 U.S. at 239-241, 57 S.Ct. at 463-464; WRIGHT, MILLER & COOPER, 13 Fed.Prac. & Proc. Juris 2d § 3529 at 282-283 n.14 (1984).

      . Cullison, supra note 15 at 1080 n. 2 (Opala, J., concurring in result)(declaratory relief is available under the rubric of original jurisdiction).

      . Powell, supra note 4, 395 U.S. at 550, 89 S.Ct. at 1979; Bond v. Floyd, 385 U.S. 116, 135-37, 87 S.Ct. 339, 349-50, 17 L.Ed.2d 235 (1966); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).

      . Powell, supra note 4, 395 U.S. at 550, 89 S.Ct. at 1979 (the U.S. House of Representatives acted unconstitutionally when it effectively expelled Adam Clayton Powell by a majority vote because of charges that he had misappropriated public funds and abused the process of the New York courts); Bond, supra note 17, 385 U.S. at 135-37, 87 S.Ct. at 349-50 (the Georgia House of Representatives acted unconstitutionally when it excluded Julian Bond for making statements criticizing the federal government's policy in Vietnam).

      . Powell, supra note 4, 395 U.S. at 507-12, 89 S.Ct. at 1956-59; Bond, supra note 17, 385 U.S. at 135-37, 87 S.Ct. at 349-50.

      . As I use it here, the phrase "pro tanto exclusion" means exclusion to the extent that a legislator is deprived of full-breadth participation by the absence of an informed deliberative process. The term "pro tanto" means "for so much; to a certain extent." Webster's, supra note 8 at 1822. Black's Law Dictionary defines "pro tanto" as [flor so much", "for as much as may be," or "as far as it goes." Id. at 1222 (6th Ed.1990). See First Bank of Turley v. Fidelity and Deposit Ins. Co. of Maryland, 1996 OK 105, 928 P.2d 298, 308 n. 40, citing Hart Industrial Supply Co. v. Craig, 1965 OK 108, 405 P.2d 93, 97 (Jackson, V.C.J., concurring specially).

      . Powell, supra note 4, 395 U.S. at 507-12, 89 S.Ct. at 1956-59; Bond, supra note 17, 385 U.S. at 135-37, 87 S.Ct. at 349-50.

      . Baker, supra note 17, 369 U.S. at 204, 82 S.Ct. at 703.

      . By "extracameral consequences" I mean that effect of an assembly's work which reaches beyond the four walls of a legislative chamber. For the definition of "cameral" see Webster's, supra note 8. The term "extra" means "outside" or "beyond." Id. at 806.


author: GOODMAN, C.J.

text:
    2000 OK CIV APP 54
    Larry Dean METCALF, Petitioner v. SPECIAL INDEMNITY FUND, and The Workers' Compensation Court, Respondents
    No. 93041.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    March 21, 2000.

      William J. Anton Tulsa, Oklahoma, For Petitioner.
    Georgiana Peterson, Gregory J. Crawford, Pray, Walker, Jackman, Williamson & Mar-lar, Oklahoma City, Oklahoma, For Respondents.
   GOODMAN, C.J.

1 This is a proceeding to review an order of the Workers' Compensation Court declaring the claimant to be permanently and totally disabled as a result of the combination of his latest injury and his pre-existing adjudicated injuries. The claimant had entered a joint petition settlement of his last injury. The trial court entered an order against the Special Indemnity Fund, and ordered the Fund to commence its weekly payments 244 weeks after the date of the joint petition settlement. The claimant seeks our review. Based upon our review of the record and applicable law, we sustain the order.

I

12 Claimant Larry Dean Metcalf suffered compensable injuries April 5, 1996, and entered a joint petition settlement of 45.5 percent permanent partial disability May 3, 1998. At the time of the latest injuries, the claimant was a previously impaired person. His pre-existing injuries had been adjudicated as follows:

January 12, 1988-80 percent body as a whole for injuries to the back and neck;
March 6, 1991-10.2 percent body as a whole for injuries to the back and legs;
July 9, 1992-7 percent material increase against the Special Indemnity Fund;
April 30, 1998-11.25 percent body as a whole for injuries to the neck, back and shoulders; and
April 28, 1994-5 percent material increase against the Special Indemnity Fund.

A[ 3 The claimant then sought compensation from the Special Indemnity Fund alleging that he had sustained permanent total disability as a result of the combination of his latest injury with his previously adjudicated injuries. The Fund stipulated to the extent of the claimant's disability, but argued that pursuant to 85 0.8. Supp.1998, § 172(B) and (E), "the claimant's benefits would commence from the date of temporary total disability paid on the underlying case which date was May 3, 1998 and 244 weeks would run from that date." Subsections (B) and (E) state:

B. If such combined disabilities constitute permanent total disability, as now defined by the Workers' Compensation Act, then the employee shall receive full compensation as now provided by law for the disability resulting directly and specifically from such subsequent injury. In addition, the employee shall receive full compensation for his combined disability, as above defined, all of which shall be computed upon the schedule and provisions of the Workers' Compensation Act. The employer shall be liable only for the degree of percent of disability which would have resulted from the latter injury if there had been no preexisting impairment. After payments by the employer or his insurance carrier have ceased, the remainder of such compensation shall be paid out of the Special Indemmity Fund provided for in Section 178 of this title, in periodic installments. ...
E,. All weekly payments for permament partial disability shall be paid before any claim for benefits against the Special Indemmity Fund may be paid. In the case of a Iump_sum permanent partial disability award or settlement, such award or settlement shall be divided by seventy percent (70%) of the employee's weekly wage up to a maximum of fifty percent (50%) of the state's average weekly wage, to determine the number of weeks which must elapse before a claim against the Special Indemnity Fund may be paid. (Emphasis added.)

T4 In an order filed April 21, 1999, the trial court found the claimant to be permanently and totally disabled, and awarded him benefits against the Fund. The court held that 244 weeks must elapse from the May 3,1998, date of the joint petition before the Special Indemnity Fund begins weekly payments to the claimant, less an attorney's fee. The court established the amount and duration of the award, and found that $16,400 was a reasonable attorney's fee. The claimant seeks our review.

II

15 The claimant contends the trial court erred in relying upon inapplicable legal authority and in finding "the benefits shall not acerue until the waiting period has elapsed." We disagree.

T6 First, nowhere in the order under review did the trial court refer to Special Indemmity Fund v. Virginia Lee Woods, No. 90,408, a Court of Civil Appeals opinion which the Oklahoma Supreme Court ordered withdrawn from publication when the court denied a petition for a writ of certiorari. Second, nowhere in the order did the trial court make a finding regarding accrual of the claimant's benefits. The subject of accrual was not an issue before the court. The court simply determined that, pursuant to § 172, 70 percent of the lump-sum permanent partial disability award the claimant received from his Joint Petition Settlement calculates to a 244-week period which must elapse before the Fund may begin making its weekly payments for a period of 5 years or until the claimant turns 65, whichever is longer. The claimant has not designated the Joint Petition Settlement as part of the appellate record, therefore we do not know the amount of such settlement in order to verify the trial court's calculation. Third, the claimant does not challenge the May 3, 1998, date which triggers the lapse period. We find the claimant's first proposition of error is without merit.

III

1 7 The claimant also alleges the trial court erred in calculating the number of weeks which must elapse before the Fund may begin payment of the award. He argues it was error to use the gross amount of the award, rather than the net amount remaining after payment of all expenses, fees, and costs. We disagree.

T8 Section 172 clearly states that "[iln the case of a lump-sum partial disability award or settlement, such award or settlement shall be divided...." (Emphasis added.) The Fund correctly concludes that the "statute makes no mention of division of the award or settlement amount based on anything other than the gross amount of the settlement." Had the Legislature intended that the net amount (after deduction of fees and taxes) be used, the statute would have so indicated. We agree, and find the claimant's second proposition of error is without merit.

IV

19 We find the claimant has failed to prove the trial court erred as a matter of law. We hold the order under review is supported by competent evidence and the law.

10 SUSTAINED.

111 STUBBLEFIELD, J., and REIF, J., concur.


author: CAROL M. HANSEN, Vice-Chief Judge:

text:
    2000 OK CIV APP 61
    Wanda S. CUMMINGS, Petitioner v. ARMIN PLASTICS, OWN RISK, and The Workers' Compensation Court, Respondents
    No. 93882.
    Court of Civil Appeals of Oklahoma, Division No. 8.
    April 7, 2000.

      John L. Harlan, Sapulpa, Oklahoma, For Petitioner.
    Kimberly E. West, Andrew D. Downing, Tulsa, Oklahoma, For Respondent.
   OPINION

Opinion by

CAROL M. HANSEN, Vice-Chief Judge:

T1 Petitioner, Wanda Cummings (Claimant), seeks review of a Workers' Compensation Court order which, among other things, denied her request for temporary total disability (TTD) benefits.

12 Respondent, Armin Plastics (Employer), does not dispute Claimant suffered an employment related injury to her back on August 7, 1998. Employer; in fact, paid Claimant TTD benefits August 11-81, 1998, and from September 24th through October 9th, 1998, but denied TTD benefits for the period in controversy-November 5, 1998 through July 6, 1999. As the basis for its denial of benefits, Employer asserted at trial Claimant "was offered light duty and worked light duty for a portion." The trial court denied Claimant's TTD request, and a three judge panel unanimously affirmed the trial court's order without modification. Claimant now seeks our review, contending the Workers' Compensation Court erred in denying TTD benefits.

13 Whether a claimant is temporarily totally disabled from the performance of labor is a question of fact for the Workers' Compensation Court. Geary Mill. & Elevator Co. v. Andis, 1967 OK 9, 422 P.2d 466. We will not disturb a finding of fact by the Workers' Compensation Court if it is supported by competent evidence, and not otherwise contrary to law. Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548.

T4 The following paragraph constituted the entire operative portion of the Workers' Compensation Court's order:

-4-
THAT claimant's request for temporary total disability benefits from November 5, 1998 to July 6, 1999 is denied, See Hinton v. Labor Source, 1997 OK CIV APP [2], 953 P.2d 358.

15 In Hinton, the Court of Civil Appeals held an employer, in order to avoid lability for temporary total disability benefits where an employee has been determined to be capable of light duties, has the burden to prove light duty was available to the employee and the employee was informed of the availability. In that case, the employer had been notified by the claimant's physician light duty would be appropriate, but there was no evidence the claimant had been advised he could go back to such work. The Court rejected the employer's argument the burden shifted to the claimant to "prove a negative, that there was no light duty available to him."

16 While the Workers' Compensation Court here failed to explain the applicability of Hinton, or to make the requisite findings of fact and conclusions of law, we may reasonably presume, under the facts of this case, the court's holding is based on a finding Employer met the Hinton burden, as set forth above. We must look to the record to determine if that finding is supported by competent evidence. Parks, 684 P.2d at 552.

T7 The record reflects the following facts relevant to the question in controversy. Claimant testified as to her light duty work for Employer. After her injury, Employer sent her to Dr. R., who released her to light duty work in September 1998. Dr. R. then released her to full duty on October 2, 1998. Claimant was assigned work "cutting cores", which required reaching over her head and lifting up to 30 pounds. This work increased the pain in her back. Claimant asked for different work, but was told there was none. Claimant returned to Dr. R. on November 2, 1998. Dr. R. told her there was nothing further he could do, and suggested she "look for different employment."

T8 Claimant, on November 5th, went to Dr. S., a family physician, for a second opinion. She testified Dr. S. recommended light duty. Claimant further testified that after she saw Dr. S., she notified Employer of Dr. S.'s light duty recommendation by telephone. On eross-examination, Claimant stated she had talked to Paul Nieto, Employer's Director of Human Resources and Safety, about Dr. S.'s recommendation, and that she "always talked to Paul." She also stated she talked to a Caroline, at Crawford Insurance Company, about Dr. S.'s recommendation, but was told "he was not a company doctor, and they would not cover any of it." She acknowledged she had not actually presented Dr. S.'s written light duty recommendation to Employer.

1 9 On November 9, 1998, Claimant filed a motion for trial on a request for medical treatment by Dr. S., and certified thereon a copy of Dr. S.'s medical report had been sent, along with the motion, to Employer. Counsel for the parties met at a prehearing conference on December 31, 1998, to discuss Claimant's request for treatment by Dr. S. Treatment by Dr. S. was not authorized, but instead, on January 21, 1999, the Workers' Compensation Court appointed an independent medical examiner, Dr. G.

110 The court directed Dr. G. to make several determinations, including Claimant's TTD status. Dr. G.'s report, dated April 6, 1999, was admitted as Court's exhibit no.l. Dr. G. opined Claimant was then eligible for light duty, with listed restrictions. disabled from August 7-31, 1998, and eligible for light duty from that August 31st and continuing. The report was addressed to the Workers' Compensation Court, with copies to counsel for both parties.

111 Claimant further testified she went back to light duty work for Employer on July 6, 1999. At the time of trial on July 19, 1999, Claimant stated Employer was complying with the restrictions placed on her activities by Dr. G. Claimant does not contest Dr. G.'s opinion she was capable of light duties during the period she seeks TTD. Similarly, Employer does not argue Claimant was actually capable of full duties during that period. Both parties, in asserting their positions under Hinton, instead rely on arguments relating to the state of knowledge regarding Claimant's duty status, and their respective responsibilities concerning Claimant beginning light duties.

112 Claimant contends Employer should have been put on notice of her ability to do light duties by any of a series of events. The first of these events is the phone calls Claimant testified she made to Employer shortly after seeing Dr. S. Claimant was emphatic she talked to Mr. Nieto. Mr. Nieto testified Claimant had not called to inform him of Dr. S.'s light duty determination, nor had he received that information from any source. In response to the question whether Claimant had called "to say she was having difficulty doing the job", Mr. Nieto did say she had called the supervisor on duty, but not him. Thus, the evidence relating to Claimant's calls was sufficiently in conflict to justify a determination she had not made them, or that she had not related Dr. S.'s light duty determination. Where there is conflicting evidence as to a question of fact, we defer to the findings below. Anglen v. E.L. Powell & Sons, 1991 OK 53, 812 P.2d 1364.

113 Claimant next asserts Employer should have been put on notice of her light duty status by her Motion to Set for Trial filed November 9, 1998. We disagree. Even presuming Dr. S.'s report was attached to the motion and received by Employer, and that question is put in issue by the evidence, the motion related only to medical treatment by Dr. S., and made no mention of Claimant's disability or duty status. The record instead reflects Claimant's disability status was not again put into question until Dr. G. was appointed independent medical examiner by order dated January 21, 1999. Dr. G. was directed to, inter alia, determine if Claimant was temporarily totally disabled, and if she had been so from August 7, 1998. We find nothing in the record to that point to establish by uncontradicted evidence that Employer had been put on notice of Claimant's light duty status. That changed, however, with Dr. (¢.'s report.

14 As noted above, Dr. G.'s report was provided to the Workers' Compensation Court, with copies to both parties, on April 6, 1999. That report clearly finds Claimant capable of only light duties from August 31, 1998, and continuing, thus covering the period for which Claimant seeks TTD. That Employer was aware of Dr. G.'s light duty determination is shown by its endorsement of Dr. G.'s report in its answer to Claimant's request for TTD. Dr. G.'s report was the only medical evidence admitted at trial for the purpose of proving Claimant's disability status. Employer disputes nothing in that report, nor does it contend it was not put on notice of Claimant's disability status thereby. In sum, there is no competent evidence Employer was unaware of Claimant's light duty status after Dr. C's report.

{15 Employer concedes in its Answer Brief its "burden to offer light duty would not arise until after they were made aware by a physician or the Claimant that a light duty restriction had been imposed". (Emphasis in original). By its own logic, Employer's burden to offer light duty arose when it was advised by Dr. G.'s report of April 6, 1999, that Claimant was capable of only light duty. The record shows Claimant was not offered light duty until July 6, 1999.

Employer argues it had no duty to offer light duty though because "Claimant had worked in such a light duty position for nearly two months following her accident". (Emphasis in original). This is the same argument the employer made in Hinton. The Hinton Court rejected that argument, noting that prior light duty in no way evidences the employee should have known light duty was subsequently available. The Hinton Court also rejected the employer's contention, where the employer is aware of the employee's change in status, the employee should have the burden of noticing the employer of that change. Even if there were such a burden, Employer admittedly was put on actual notice of Claimant's light duty status by Dr. G.'s report and could claim no prejudice. The Hinton Court refused to impose an employee's burden of proving the absence of light duty availability. Where a claimant cannot return to full duty, the availability of light duties is within the discretion of the employer. Therefore, it is properly the burden of the employer to affirmatively offer those light duties to the claimant. If a claimant rejects the offer of light duties, the burden then would shift to the claimant to explain the rejections.

117 There is no competent evidence of record to support the Workers' Compensation Court's denial of Claimant's request for TTD benefits between the time of Dr. G.'s report on April 6, 1999, and the time Claimant actually began light duties for Employer on July 6, 1999. Accordingly, so much of the Workers' Compensation Court's order which denies TTD benefits for that period is VACATED. The remainder of the order is SUSTAINED.

118 SUSTAINED IN PART, VACATED IN PART AND REMANDED to the Workers' Compensation Court for further action consistent with this opinion.

19 ADAMS, J., and JOPLIN, J., concur.

      . The procedural efficacy of the holding was not raised, but See, Benning v. Pennwell Publishing Co., 1994 OK 113, 885 P.2d 652.