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Brister v. Sears Authorized Retail Dealer12/8/1999
as improved to the point that continued, regular treatment by a physician is not required, or six months after the injury, whichever first occurs. If the claimant contends that his disability is of a temporary nature, but extends beyond this six-month period, he must submit a claim for extension of the period of temporary total disability under R.S. 23:1310.3. (We note that La.R.S. 23:1221(1)(d) was amended by Acts 1999, No. 702, § 1, effective August 15, 1999, to delete the following language: "or six months after the injury, whichever first occurs. If the claimant contends that his disability is of a temporary nature, but extends beyond this six-month period, he must submit a claim for extension of the period of temporary total disability under R.S. 23:1310.3.")
The defendants contend that the workers' compensation judge was clearly wrong in determining that Brister was temporarily totally disabled since he had reached maximum medical improvement and was not adjudicated to be permanently and totally disabled. The defendants cite Mason v. Auto Convoy, 27,444 (La.App. 2 Cir. 11/1/95); 662 So.2d 843, writ denied, 95-2905 (La. 2/2/96); 666 So.2d 1103; Bradley v. Justiss Oil Co., 618 So.2d 646 (La.App. 2 Cir. 1993); and Holmes v. International Properties, 611 So.2d 773 (La.App. 4 Cir. 1992), for the proposition that when a claimant has reached maximum medical improvement and has been released to return to work, temporary total disability benefits are no longer due. Citing Ross v. St. Paul Fire & Marine Insurance Co., 556 So.2d 891 (La.App. 2 Cir. 1990), the defendants also urge that Brister was no longer in a healing and recovery period and therefore his disability could not be considered temporary. They argue that because the workers' compensation judge did not adjudicate Brister permanently and totally disabled and his disability cannot be considered temporary, the only remaining category of benefits is supplemental earnings benefits under the evidence in the record.
Importantly, in Mason, the court explained that the reason temporary total disability benefits are no longer due in a case in which the claimant reaches maximum medical improvement and is released to return to work is because when the employee is released to return to work he is deemed to be able to engage in some occupation for wages as contemplated by La.R.S. 23:1221(1). In Mason, the claimant had not only reached maximum medical improvement but had also been released to return to work. Additionally, in Bradley and Holmes, the claimant had not only reached maximum medical improvement but had also been approved for sedentary duties. We agree that once a claimant reaches maximum medical improvement and has been released to return to work, temporary total disability benefits are no longer due. However, in the instant case, Brister has not been released to return to work.
In Ross, 556 So.2d at 895, the court stated that "when a satisfactory degree of healing is reached, the claimant's condition will be deemed `permanent' and he will no longer be entitled to temporary total disability benefits." The defendants would have Brister defaulted into the supplemental earnings benefits category because the workers' compensation judge did not find him to be permanently totally disabled and because he is no longer in a healing and recovery period, despite the fact that Dr. Steiner was of the opinion that Brister would not be able to function at even a sedentary level. We note that the facts of Ross occurred prior to the effective date of Acts 1988, No. 938, § 1, which added the language found in current La.R.S. 23:1221(1)(d) that provides for cessation of benefits "when the physical condition of the employee has resolved itself to th
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