Filename: m0014568Match Number: 8 of 26Score: 25Entry_Date: 030107Appellant: Hector SanchezAppellee: APEX Industries Inc.Jurisdiction: Court of Appeals of Oklahoma, Division No. 4Hearing_Date: March 12, 2007Text_of_Rule:( Gabbard )( Ellen C. Edwards )Not PublishedPROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS'COMPENSATION COURTSUSTAINED IN PART. VACATED IN PART, AND REMANDED WITH INSTRUCTIONSTerrel B. DoRemus, Tulsa, Oklahoma, For Petitioner Mark T. Hamby, Kymberly J. Watt, BONHAM & HOWARD, P.L.L.C., Tulsa, Oklahoma, For RespondentsOPINIONClaimant, Hector Sanchez, seeks review of an order by a three-judge panel of the workers'compensation court -in favor of Apex Industries, Inc., and its insurer, National American InsuranceCompany (collectively, Employer). The panel vacated a portion of the temporary total disability(TTD) benefits awarded by the workers' compensation trial judge and vacated the trial judge'sdirective that Employer provide vocational rehabilitation to Claimant.1 Based on our review of therecord and applicable law, we sustain in part, vacate in part, and remand with instructions.BACKGROUNDClaimant sustained a work-related back injury in August 2003, for which he received medicaltreatment. In May 2004, the workers' compensation court entered an order establishing all jurisdictional issues in the case and finding Claimant had sustained an injury to his lumbar spinearising out of and in the course of his employment.2 Claimant's court-appointed physicianreleased him on August 11, 2004, as having achieved maximum medical improvement, thoughthe medical records also reflect that Claimant had rejected the suggestion that he neededsurgery. In January 2005, however, after continuing to suffer pain, and on his physician'srecommendation, Claimant requested surgery. Surgery was performed on January 27, 2005.Claimant was disabled through August 14, 2005.The case was tried in December 2005. Counsel for the parties advised the trial court that theissues for trial were partial and permanent total disability, TTD, TTD overpayment (to whichClaimant agreed), and vocational rehabilitation. Employer denied that Claimant was "entitled to85 O.S. 16D benefits as he is not in the country legally."3 Employer's evidence also included avocational evaluation report by Professional Rehabilitation and Occupational Services (PROS),which found that Claimant was "a candidate for vocational rehabilitation" and recommended that job placement was "the most feasible vocational option to return" Claimant to the workforce.4In a Form 10 filed prior to trial, Employer listed a number of exhibits that apparently are related toits argument that Claimant is in the United States illegally and, thus, is not eligible for vocational

rehabilitation or light duty. None of these exhibits were offered or even mentioned at trial, andthey do not otherwise appear in the case file. Employer made no offer of proof after the followingexchange occurred during Employer's cross-examination of Claimant.5"Q. Are you in this country legally?"MR. UNTERSCHUETZ: Object, Your Honor, relevance grounds."THE COURT: Sustained."A. (Through the interpreter) No."THE COURT: Sustained. There's no answer.6"Q. (By Employer's counsel) What is your social security number?"A. (Through the interpreter:) No, I don't have it with me. I had it written down, but Jose took itwith him, his friend.7"Q. Where did you get your social security number? MR. UNTERSCHUETZ: Relevance, Your Honor."THE COURT: Sustained."(Emphasis added).The trial court, among other items not involved here, awarded Claimant TTD for a time period thatincluded January 5, 2005, to January 27, 2005. The trial court also directed Employer to providevocational rehabilitation for Claimant under the supervision of PROS.Employer appealed to the workers' compensation court panel, complaining of trial court error inthe TTD award. Employer's notice of appeal also claimed error in the award of vocationalrehabilitation, stating only that "the claimant is an illegal alien and respondent should not berequired to provide job placement services for a claimant who cannot legally be employed in thiscountry."The panel agreed that Claimant was entitled to TTD for approximately a one year period fromAugust 30, 2003, to August 11, 2004, and from January 27, 2005, to August 14, 2005. However, itvacated the portion of the trial court's order awarding TTD for .January 5, 2005, through January27, 2005, and also vacated the portion of the order requiring Employer to provide vocationalrehabilitation. Claimant seeks review of the ruling vacating the TTD and vocational rehabilitationawards, asserting that neither ruling is supported by competent evidence.STANDARD OF REVIEWWhether and how long a claimant is TTD are questions of fact. See Cherokee Industries, Inc. v.Alvarez, 2004 OK CIV APP 15, 13, 84 P.3d 798, 802; Ford Motor Co. v. Moore, 2006 OK CIV APP108, 4, 143 P.3d 223, 224-25. When this Court reviews the workers' compensation court'sresolution of fact issues, the any competent-evidence standard applies. Parks v. Norman Mun.Hosp., 1984 OK 53, 684 P.2d 548.The other issue presented in this appeal-the applicability of 85 O.S. 16 (2006) - presents aquestion of law. It is reviewed de novo. See Arrow Tool & Gauge v. Mead, 2000 OK 86, 6, 16 P.3d1120, 1122-23.Employer's appellate brief also addresses the question of whether an individual who is in this

country illegally is entitled to vocational rehabilitation or retraining. This issue, and whether it isproperly before this Court, also present questions of law.ANALYSIS AND REVIEWClaimant was released as having achieved maximum medical improvement in August 2,004. Therecord contains no evidence that would support a fording that his status changed until January27, 2005, the date he underwent surgery. Therefore, the panel's decision vacating the TTD awardfor the period of January 5, 2005, until January 27, 2005, is supported by the record, and issustained.However, the panel's decision vacating the award of vocational rehabilitation benefits must bereversed. In their appellate briefs, the parties focus on whether the "vocational rehabilitation"awarded by the trial court is equivalent to "job placement," and whether an "illegal" immigrant isentitled to either benefit. Both parties appear to agree that the Workers' Compensation Act doesnot exclude illegal or undocumented workers from coverage. See Cherokee Industries, 2004 OKCIV APP 15, 84 P.3d 798. Both parties also couch their arguments under the assumption that thetrial panel found that Claimant is, in fact, illegally in this country.8The trial court made no such finding and the record does not support same. Even if we agreedthat the workers' compensation. court had authority to determine whether an individual is "legally"or "illegally" in this country - a proposition which we do not address at this time9 - the record doesnot support a finding that Claimant is in fact; illegal. Although Employer sought to ask Claimant if he was in the United States legally, and the court sustained an objection thereto, Employer doesnot now claim that the court improperly excluded such evidence, nor did it make an offer of proof of same at trial after the court's ruling. Simply put, there is a complete absence of admittedevidence to sustain a finding that Claimant was an illegal immigrant.Because there is no evidence supporting a finding that Claimant was an illegal immigrant, thisCourt cannot resolve the issue of whether such a person can qualify for vocational rehabilitationversus "job placement." When a question of law is presented and argued on appeal, but does nothave support in the trial court record, an appellate court may not consider and determine theissue. See e.g., State v. Torres, 2004 OK 12, 7, 87 P.3d 572, 588 (appellate court may "disregardsua sponte deficiencies in the legal theories pressed," but may not disregard deficiencies in therecord); Romney v. Davis, 1953 OK 33, 14, 253 P.2d 546, 548 (appellate court may not giveopinion since "such an issue . . . was not presented under the record and is not to be consideredor determined upon appeal"); Munger v. Elliott, 1940 OK 159, 100 P.2d 876 (syllabus no. 3)("aquestion of law presented and argued on appeal that is not shown to arise under the facts andrecord will not be considered and determined"). While Oklahoma law recognizes that stipulationsof facts and admissions "may serve as evidentiary substitutes" that dispense with the need for proof of conceded facts, "unsworn statements" of an advocate do not constitute evidence. Tomes,2004 OK 12 at 29, 87 P.3d at 585.Aside from Claimant's alleged illegal status, Employer does not present, and the record does notreveal, any other ground upon which to deny Claimant the vocational benefits recommended bythe PROS report and required by the workers' compensation court trial judge. Claimant meets thecriteria for such recommended benefits, as set forth in 85 O.S. 16 (2006) - i.e., since he is "anemployee who has suffered an accidental injury . . . covered by the Workers' Compensation Act."Thus, the panel's decision to vacate the award of those benefits is not supported by the law or theevidence.Should circumstances arise, not shown to exist in the record here, which result in Claimantbecoming ineligible for or unable to participate in a job placement program due to his status inthis country, then Employer may petition the workers' compensation court for relief. As it nowstands, however, the record provides no basis for the panel's decision to deny Claimantvocational benefits.