HENRY L. BROWN,			)
				)
Employee,			)	DECISION AND ORDER
Applicant,			)	AWCB Case No. 8822208
				)	AWCB Decision No. 90-0127
v.				)
				)	Filed with AWCB Anchorage
ALASKA BREAKFAST CLUB,		)	June 13, 1990
(Uninsured)			)
				)
Employer,			)
Defendant.			)
				)

We heard this claim in Anchorage on March 23, 1990. Employee was present and represented himself. The uninsured Employer, though properly noticed under the Alaska Workers' Compensation Act (Act) and regulations, failed to show up for the hearing. We left the record open to give Employee a reasonable time to provide us with additional medical information relating to the length of his alleged disability period. He never filed the requested information. Accordingly, we closed the record on May 16, 1990 after reviewing the record for completion.

Employee requests temporary total disability benefits from August 18, 1988 through September 16, 1988. Employee testified he was injured while working as a cook at Employer's restaurant. He stated that while making "home fries" with a cutting machine, he caught his left middle finger in the machine.

He went to Providence Hospital and was treated by Frank Moore, M.D., for an avulsion injury. (August 18, 1988 report). The hospital medical report (the only medical document in the file) indicates he was to stay off work four to five days and follow up with Michael Eaton, M.D. However, Employee asserted that the report should have instead stated he was off work for 14 or 15 days, and that he was off work until the 14th or 15th of the next month.

That same report also indicates Employee was supposed to make an appointment to see Dr. Eaton on September 2 or 3, 1988. Employee testified he did follow up and received two checkups from Dr. Eaton. Although we requested copies of these records "as soon as possible" to clear up the above apparent discrepancy, and to determine the specific medical costs for these treatments, Employee never produced them prior to the closing of the record.

We must first determine whether Employee is disabled.

The Alaska Workers' Compensation Act defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." AS 23.30.265(10). The Act provides for benefits at 80% of the employee's spendable weekly wage while the disability is "total in character but temporary in quality," AS 23.30.185, but doesn't define TTD. In Phillips Petroleum Co. v. Alaska Industrial Board, 17 Alaska 658, 665 (D. Alaska 1958) (quoting Gorman v. Atlantic Gulf & Pacific Co.., 178 Md. 71, 12 A.2d 525, 529 (1940)), the Alaska territorial court defined TTD as "the healing period or the time during which the workman is wholly disabled and unable by reason of his injury to work." The court explained:

17 Alaska at 666 (citations omitted). In Vetter v. Alaska Workmen's Compensation Board, 524 P.2d 264, 266 (Alaska 1974) the Alaska Supreme Court stated:

In Bailey v. Litwin Corp., 713 P.2d 249, 253 (Alaska 1986), the Alaska Supreme Court set out this same authority and then stated; "Our previous cases stress the claimant's ability to return to work and indicate that medical stability is not necessarily the point at which temporary disability ceases." (Emphasis in original). The court also quoted the following description of temporary disability; "Temporary disability may be total (incapable of performing any kind of work) , or partial (capable of performing some kind of work)." Id. at 254 n.12 (quoting Huston v. Workers' Compensation Appeals Bd., 95 Cal. App. 3d 856, 868, 157 Cal. Rptr. 355, 262 (Cal. App. 1979) (emphasis in original).

The Alaska Supreme Court has placed the burden of proving loss of earning capacity, at least in the area of permanent partial disability, on the employee. Brunke v. Rogers & Babler, 714 P.2d 795, 801 (Alaska 1986). We have also found that an employee bears the burden of proving whether or not he is disabled and the nature and extent of the disability. Keyes v. Reeve Aleution Airways, AWCB No. 85-0312 at 12-13 (November 8, 1985).

The evidence is uncontradicted that Employee was unable to work for a minimum of four to five days, and possibly up to 25 days, according to his testimony. In any case, we find Employee is disabled under our Act, and his claim for TTD benefits and medical costs is compensable.

Regarding the length of Employee's disability period, we find a reasonable inference in the record, based on Employee's testimony and the Providence Hospital medical report, that Employee was unable to work from August 18, 1988 until September 3, 1988. If Employee produces other medical evidence supporting a longer disability period, we will consider a modification of our finding under AS 23.30.130.

Since the length of this disability period is less than 28 days, Employer is not liable for the first three days of disability, in accordance with AS 23.30.150. Therefore, Employer shall pay Employee TTD benefits from August 21, 1988 through September 3, 1988.

Employee testified he had not provided Employer with documentary proof of his past wages. Under AS 23.30.175 (a), we order Employer to pay Employee TTD benefits at the rate of $110 weekly.

Further, Employee is eligible for medical benefits under AS 23.30.095. He shall present his medical costs to Employer who shall pay them. We retain jurisdiction to order payment of specific costs it Employee presents the billings to us and also serves Employer with these costs.

1. Employer shall pay Employee temporary total disability benefits at the rate of $110 weekly from August 21, 1988 through September 3, 1988. The total amount Employer shall pay at this time is $1,430. We retain jurisdiction to increase the length of this disability period when the appropriate evidence is filed.

2. Employer shall pay Employee's medical costs under AS 23.30.095. We retain jurisdiction to order payment of specific costs if Employee files the pertinent medical bills.

Dated at Anchorage, Alaska, this 13th day of June, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ MR Torgerson
Mark R. Torgerson, Designated Chairman

/s/ D.F. Smith
Darrell F. Smith, Member

MRT/mrt/jpc

If compensation is payable under terms of this decision, it is due on the date of issue and penalty of 25 percent will accrue if not paid within 14 days of the due date unless an interlocutory order staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in Superior Court brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

A compensation order becomes effective when filed in the office of the Board, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of Henry L. Brown, employee/applicant; v. Alaska Breakfast Club, uninsured, employer/defendant; Case No. 8822208; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 13th day of June, 1990.

Clerk

SNO