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Lackey v. Darrell Julian Construction6/19/1998
APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION JOSEPH N. WILTGEN, Workers' Compensation Judge
{1} The main issue raised by this case is under what circumstances a worker is entitled to temporary total disability benefits after he is fired from a light duty job for adequate cause not connected with the disability. A subsidiary issue is whether Worker became temporarily totally disabled as a result of his original accident or as a result of aggravation caused by a subsequent employment. We hold that: (1) as a matter of law, Worker is entitled to temporary total disability benefits despite his firing as long as he is not released to work by his physician and (2) as a matter of fact, the workers' compensation Judge could find no aggravation by the subsequent employment. Accordingly, we affirm in part and reverse in part the Judge's compensation order.
FACTS
{2} It is undisputed that Worker suffered two work-related accidents during his employment with Employer, a construction company, on December 6 and December 8, 1995. Worker returned to work with Employer, sometimes under light duty restrictions, specifically that he not engage in repetitive neck motions. Worker continued working for Employer during the winter, spring, and summer of 1996. He was fired from his job on August 12 or 13, 1996, for drinking beer during lunch on July 31, which was a violation of the Employer's rules. The Judge specifically found that Worker's firing was appropriate.
{3} Worker got a job with another construction company in November of 1996. There was a dispute in the testimony regarding the type of work Worker was performing for this construction company. Employer, based on the testimony of the owner of the construction company, portrays the work as overhead carpentry work, requiring repetitive neck motions. Worker, on the other hand, testified that he was a crew leader and could accommodate any restrictions that were put on him, including avoiding repetitive neck movements. The Judge made a specific finding that Worker's testimony concerning his employment with this company was credible.
{4} During Worker's entire time of working mainly with restrictions, he was seeing doctors and getting conservative treatment for his diagnosed disk herniation. Worker stopped working for the latter construction company in February 1997, and his doctor took him completely off work in March 1997, so that Worker could begin aggressive therapy. Worker has not worked in any capacity since then.
{5} There was also a dispute in the testimony regarding what caused Worker's worsening condition during the early part of 1997. Worker's treating physician testified that work "could" be worsening Worker's condition, but that the worsening could also be from the natural progression of the disease. Another doctor testified that it was his opinion that the worsening of Worker's condition was caused by the natural progression of the disease because Worker had not reported any aggravating events occurring at work and also because repetitive neck motion itself was not sufficient to cause the degree of deterioration in Worker's condition. The Judge made a specific finding that Worker did not suffer any work-related accidents while working for the latter construction company.
{6} The Judge conducted an extensive benefit analysis, with separate Conclusions as to various time periods. First, there was a 38-week period during which the Judge awarded $25.30 per week. This appears to be the period of time during which Worker was still employed with Employer before his firing, but was earning less money than previously, although the number of weeks appears erroneous. Some of the addit
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