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Akers v. SeaBoards Farms11/20/1998
Petitioner, John Akers (Claimant), seeks review of a Workers' Compensation Court order denying his claim for temporary total disability compensation. Respondent, Seaboard Farms (Employer), stipulates Claimant sustained an injury to his ankle on July 21, 1997, while he was under its employ. Employer, however, denies liability for temporary total disability compensation because it asserts light duty was provided to Claimant until his termination for failing a drug test. Employer contends Claimant is not entitled to compensation because his lack of work is due to his own misconduct unrelated to his injury.
Claimant testified he was shocked when he fell back onto an electrical fence while unhooking a trailer at Employer's farm. He stated the current entered his shoulder and exited his right ankle. He was examined at the emergency room, given crutches and treated with ice on his ankle. The morning after his injury, Claimant's "toes were swollen together", so he went to see Dr. McM. Dr. McM. put on a walking cast and released Claimant back to light work with restrictions of no prolonged walking or standing, and "should be sitting 100% of time."
Claimant further testified he went back to work for Employer, missing the day after the accident to go to the doctor, his work kept him off his feet for the first two days back, it was painful walking about 1/4 mile across a parking lot to get to where he was assigned, after the first two days he was on his feet more, "sorting laundry and miscellaneous that they had to do in the supply room", he was about to say something about being on his feet too much when he was terminated, he worked part of the morning on Friday, July 25th, leaving for a doctor's appointment and not returning because of vehicle troubles, he was suspended on the following Monday morning, the 28th, for failing a post-accident drug test, he was terminated on July 30th because he was on probation for failing a pre-employment drug test, and at the time of trial on March 16, 1998, he had not worked since being terminated, although he had been looking, but "it's just kind of hard to find a job and tell the employer that you can't be on your feet very long at a time."
Claimant introduced the medical report of Dr. K., who opined Claimant was temporarily and totally disabled from July 22, 1997, the day following the accident, and continuing until Claimant's medical condition is stabilized. Employer introduced forms signed by Dr. McM., reflecting on July 22, 1997, Claimant was released to light work with 100% sitting; on July 25, 1997, Claimant was continued on 100% sitting; on August 21, 1997, Claimant was authorized light duty with 75% sitting and no squatting, kneeling, climbing, prolonged walking or standing; and on September 11, 1997, Claimant was continued on the same restrictions.
The trial court denied Claimant's request for temporary total disability compensation without further specific findings. Claimant appealed to a three Judge panel of the Workers' Compensation Court, alleging the relevant paragraph of the order denying compensation was "contrary to law and against the clear weight of the evidence." The three Judge panel unanimously affirmed the trial court's order. That order is now before us for review.
Claimant contends there is no competent evidence to support the Workers' Compensation Court's finding he was not temporarily and totally disabled "since no light duty was offered from and after the time of his termination". The question of temporary total disability is one of fact to be decided by the Workers' Compensation Court, and such determination will not be disturbed on review if it is supported by
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