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United States Steel Corp. v. McBrayer3/4/2005
Is this a "rare case" where the date of maximum medical improvement should not be used as the terminal date of a TTD award? We conclude that this appeal does present such a case. Dr. Berchuck performed an anterior cervical diskectomy and fusion upon the employee's neck on February 8, 2002, and continued to review the employee's progress for several weeks after that procedure. As we have noted, Dr. Berchuck ultimately determined that the employee reached the point of maximum medical improvement on May 3, 2002. However, an evidentiary exhibit admitted at trial indicates that Dr. Berchuck completed a work-status form concerning the employee on March 13, 2002, in which he opined that the employee "may return to work w/no limitations on 3/25/02 from the standpoint of his neck injury only" (emphasis in original). The transcript of Dr. Berchuck's deposition, which was admitted into evidence, indicates that he was visited by the employee on March 13, 2002; Dr. Berchuck testified that the employee had recounted at that time having suffered a strain in a motor-vehicle collision during the preceding weekend but that Dr. Berchuck had returned the employee to regular duty as of March 25, 2002, with no work restrictions as to his neck. At his deposition, Dr. Berchuck classified the employee's May 3, 2002, visit as "just a follow-up visit" at which he determined that the employee's graft and incisions appeared to have fully healed.
Thus, in this case, the evidence is susceptible to only one conclusion: the employee's temporary work-related disability under § 25-5-57(a)(1) arising from his cervical-disk herniation ended on March 25, 2002, rather than on May 3, 2002. The trial court, therefore, erred to reversal in awarding TTD benefits beyond the earlier date.
Based upon the foregoing facts and authorities, the trial court's judgment is reversed. The cause must be remanded for the trial court to enter a judgment consistent with this opinion. As an aside, however, although we see no need to require any particular form of judgment on remand, so long as our appellate mandate is followed, we would be remiss in failing to note that a judgment in conformity with the terms of the trial court's December 22, 2003, order purporting to grant the employer's postjudgment motion would be sufficient.
REVERSED AND REMANDED.
Crawley, P.J., and Thompson J., concur.
Murdock, J., concurs in the result, with writing, which Bryan, J., joins.
MURDOCK, Judge, concurring in the result.
Section 25-5-57(a)(1), Ala. Code 1975, is limited in its scope. It governs the payment of disability benefits only during the time that an employee is temporarily, totally disabled. Specifically, § 25-5-57(a)(1) provides that the compensation payable thereunder "shall be paid during the time of the disability," meaning the "time" during which the employee suffers from "total disability," as referenced previously in that subsection.
Thus, any period of time during which an employee is not totally disabled is not a period of time governed by § 25-5-57(a)(1). Accordingly, if an employee previously has been totally disabled, but even before reaching MMI recuperates to the extent that, during some meaningful period of time, he or she is only partially disabled (during which time his or her benefits would be governed by § 25-5-57(a)(2) rather than by § 25-5-57(a)(1)) or is fully capable of returning to his or her regular employment at his or her normal wage, such period could not be considered a "time of [temporary total] disability" governed by § 25-5-57(a)(1).
I see no reason in any statutory language, in any existing judicial precedent, or in logic for limit
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