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Allen Canning Co. v. Woodruff9/7/2005
ntending that he remained in his healing period after July 18, 2003, and therefore should be awarded temporary-total disability from July 8, 2003, until a date yet to be determined. We hold that there was no error in the Commission's determination that appellee's temporary-total disability benefits terminated as of July 18, 2003.
In order to be entitled to temporary-total disability benefits, a claimant must prove by a preponderance of the evidence that he remained in his healing period and suffered a total incapacity to earn wages. Arkansas State Highway & Transp. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). In the present case, the Commission found that appellee failed to prove by a preponderance of the evidence that he was totally incapacitated from earning wages after July 18, 2003, and there is substantial evidence to support this finding. In arriving at this conclusion, the Commission relied upon several factors that were set forth in its opinion - the physical therapist's August 8, 2003 discharge report that stated that as of July 18, 2003, the last day appellee was seen, "significant improvement was noted"; the fact that appellee filed for and began receiving unemployment compensation benefits shortly after July 18, 2003; appellee's own testimony at the hearing that he believed that he could return to some type of work at Allen Canning and that he had made several job inquiries; and the fact that there was no medical evidence indicating that appellee was totally incapacitated from working after July 18. Obviously, if appellee was applying for jobs, he was holding himself out as able to work. All of these findings support the Commission's decision that appellee was not totally incapacitated from earning wages after July 18, 2003, and therefore was no longer entitled to temporary-total disability benefits.
Furthermore, as pointed out by appellant, appellee's receipt of unemployment compensation benefits makes him ineligible to receive temporary-total disability benefits. Arkansas Code Annotated section 11-9-506(a) (Repl. 2002) provides in pertinent part that "no compensation in any amount for temporary total disability shall be payable to an injured employee with respect to any week for which the injured employee receives unemployment benefits under the Arkansas Employment Security Law." The Commission's determination that appellee's temporary-total disability benefits terminated as of July 18 is also affirmed.
Affirmed on direct appeal and on cross-appeal.
Griffen and Roaf, JJ., agree.
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