Although Dr. LaBore stated at the July 19, 2005, visit that he believed employee had reached maximum medical improvement, he also conflictingly recommended that employee not return to work. This combined with employee's continued problems, treatment, and eventual surgery that took place after this July 19, 2005, visit, convinces us to find that employee is entitled to temporary total disability benefits for this period.
For the second period, August 2, 2005 through August 20, 2007, the administrative law judge denied temporary total disability benefits, with the exception of the eight week period following the surgery of March 12, 2007. However, as employee argues in his brief, the factual evidence, and opinions from the vocational experts, establishes that employee should be entitled to total disability benefits during the entirety of this time.
From August 2, 2005 to October 4, 2005, employee was off work due to Dr. LaBore's disability certificate on July 19, 2005. During that period, employee was also still receiving physical therapy and was scheduled for a follow-up appointment with Dr. LaBore.
On October 4, 2005, Dr. LaBore released employee to perform his normal job, so long as he was willing to tolerate the pain that would come with doing so. Employee testified that the only reason Dr. LaBore released him on that date was because employee had requested Dr. LaBore do so to allow him to "put some food on the table." Employee's testimony seems logical; especially when you consider that Dr. LaBore released employee to full duty, while also recommending vocational rehabilitation.
Although employee had been released to work by Dr. LaBore, employee knew that something was still wrong, so he sought treatment from Dr. Feinberg on October 11, 2005, and advised employer of the same. Dr. Feinberg took employee off work until his pain levels could be reduced. Dr. Feinberg's physical therapy notes mention a great deal of ongoing complaints including increased periods of pain, difficulty sleeping, difficulty arising from bed, fatigue with telephone use, pain with driving, etc.
Vocational expert Timothy Lalk testified at the hardship hearing on March 20, 2006, that if employee had tried to obtain employment at that time, he would have been met with reluctance because he left his career occupation due to a chronic medical condition that had yet to be fully diagnosed and treated. In addition, the fact that employee was seeking medical treatment would be met with reluctance by potential employers due to the potential for lost time from work.
Employee was denied additional treatment and temporary total disability benefits in the Temporary Award, but employee sought treatment on his own. Employee began treating with Dr. Lehman on November 2, 2006. Dr. Lehman issued employee an "off work" slip which stated that employee was to remain off work through May 10, 2007. On July 26, 2007, Dr. Lehman issued another such slip, and on August 14, 2007, he said that employee could return to work at full duty on August 20, 2007.
We find, as employee argues, that it is clear based on employee's medical timeline that he should not have been discharged from treatment by Dr. LaBore on October 4, 2005. This is evidenced by the fact that employee still had weakness, multidirectional instability, and a compensatory movement pattern. In addition, as would later be revealed, employee was still in need of surgery at the time Dr. LaBore discharged him. Also, the fact that employee was still in need of surgery at the time he treated with Dr. Feinberg confirms that Dr. Feinberg's treatment was reasonable and necessary. At no point during the period of July 19, 2005, through August 20, 2007, could it reasonably be concluded that employee was able to return to work.