MARK D. BROTHERTON, Employee/Appellant, v. FEDERAL EXPRESS CORP., SELF-INSURED/SEDGWICK CLAIMS MGT. SERVS., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 28, 2011
TEMPORARY BENEFITS - FULLY RECOVERED. Where the employee had been released to work without any restrictions and his inability to return to his job was due solely to Department of Transportation regulations, it was not unreasonable for the compensation to conclude that the employee was not entitled to wage loss benefits, and the judge did not err in allowing discontinuance.
Determined by: Johnson, J., Stofferahn, J., and Milun, C.J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Thomas R. Longfellow, Longfellow Law Office, St, Paul, Park, MN, for the Appellant. Roderick C. Cosgriff and Britt M. Kringle, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge’s order discontinuing temporary total disability benefits. We affirm.
Mark Brotherton, the employee, sustained an injury on July 6, 2010, arising out of his employment as a driver for Federal Express, the employer, which was self-insured. The injury occurred as a result of a motor vehicle accident. The employer admitted liability for the employee’s personal injury.
Following the accident, the employee was taken to the emergency room and subsequently admitted to the hospital. He was discharged the next day with a diagnosis of post concussion syndrome, a contusion on the chest wall, and a lumbar sprain. On July 14, 2010, the employee saw Dr. Showkat Khan, complaining of dizziness, headaches, and an inability to focus. Dr. Khan concluded the employee was not fit to drive and removed him from work.
The employee saw Dr. Lynn Quenemoen, an occupational medicine specialist, on July 27, 2010, on referral from Dr. Khan. At the time, the employee complained that he had experienced neck and mid and low back pain, as well as blurred vision, since the accident. The employee also reported having had several episodes of significant vertigo. The doctor ordered physical therapy for the employee’s neck and back strain and vestibular therapy for the vertigo. Dr. Quenemoen continued the employee’s restriction of no driving. On August 6, Dr. Quenemoen noted that the employee’s vertigo had essentially resolved, and he released the employee to return to work without restrictions effective August 10, 2010.
The employer did not allow the employee to return to work on August 10, 2010, because the Department of Transportation, DOT, required further documentation that the employee had been medically cleared to drive. DOT regulations applicable to vertigo specifically require that an employee be without symptoms for a minimum of two months prior to resuming driving duties. The employee passed a DOT physical on September 28, 2010, at which point he was cleared to return to his job with the employer. The employee returned to full-duty work for the employer the next day.
The employer paid temporary total disability benefits to the employee from July 6 through August 9, 2010. The employer then filed a Notice of Intention to Discontinue Benefits, seeking to discontinue temporary total disability benefits effective August 10, 2010. The employee objected to the proposed discontinuance, and the matter was heard by Compensation Judge LeClair-Sommer. In a Findings and Order, the compensation judge found that, from August 10 through September 28, 2010, the employee had no disability, impairment of function or physical condition entitling him to temporary total disability benefits. The compensation judge further found that the employee’s delay in returning for work for the employer was necessitated by DOT regulations. Accordingly, the compensation judge concluded that the employer had reasonable grounds to discontinue temporary total disability benefits as of August 10, 2010. The employee appeals.
On appeal, the employee concedes that he was released to return to work without restrictions by his treating physician on August 10, 2010. Because of DOT regulations, however, he was obligated to remain off work until September 28, 2010, an additional seven weeks. The employee contends that he was totally disabled during this period because he was unable to find or hold employment due to his personal injury. Accordingly, the employee argues, the compensation judge’s denial of benefits should be reversed. We are not persuaded.
Pursuant to longstanding case law, an injured employee has no entitlement to continuing wage loss benefits if the employee is able to work without restrictions. Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987). That case law has been codified at Minn. Stat. § 176.101, subd. 1(h), which provides that “temporary total disability shall cease if the employee has been released to work without any physical restrictions caused by the work injury.”
The employee was released to work without restrictions effective August 10, 2010, but he was not able to return to his job until September 28, 2010. The compensation judge concluded the employee’s inability to work during this period was due to the requirements and procedures of the DOT and did not consider the DOT regulations to constitute a physical restriction within the meaning of Kautz. That is not an unreasonable inference to draw from the evidence in this case. While the DOT driving prohibition might be considered a physical restriction, based upon the evidence in this case, the compensation judge was not compelled to reach that conclusion. The compensation judge found the employee had no disability or impairment of function during the seven-week period. This finding is supported by the opinion of Dr. Quenemoen. The compensation judge’s decision is, therefore, affirmed.