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Durham v. Plum Creek Manufacturing5/10/2000
STEWART, J., concurs in part and dissents in part.
WILLIAMS, J., concurs in part and dissents in part for reasons assigned by Stewart, J.
The defendant, Plum Creek Manufacturing, appeals a decision by the Office of Worker's Compensation, finding that the plaintiff, Foster J. Durham, is entitled to workers' compensation benefits. The plaintiff answered the appeal, urging that the workers' compensation judge erred in failing to award penalties and attorney fees. For the following reasons, we affirm.
FACTS
Mr. Durham was a forklift operator and worked at the defendant plywood mill for 22 years prior to the present injury alleged. The mill is now owned by Plum Creek, but had previously been operated by several other owners. In 1993, the plaintiff claimed that he injured his back when the seat on his forklift came off. He saw Dr. John P. Sandifer, complaining of pain in his lower back, accompanied by left hip pain and numbness in his left leg. A CT scan revealed a possible herniated disc at the L5-S1 level. Dr. Sandifer opined that Mr. Durham would probably end up needing surgery to alleviate the problem. However, the plaintiff's back improved and he resumed his duties at the mill. Mr. Durham did not seek any additional medical treatment for his back until the present injury.
As part of the plaintiff's job duties, he was required to move stacks of plywood by forklift from one point to another in the mill. He claims that on April 23, 1998, many of the sheets in the stacks were not lined up and he had to bump them with the forklift to correct the problem. While doing this, he claims that he felt something pop in his back and began experiencing pain in his lower back, leg, and hip, which intensified over time. According to the plaintiff, he reported this incident to Edward Wright, the lead man on his shift. The next day, he contends he reported the injury to Jimmy Atwell, his supervisor. Mr. Durham continued to work for several days after this occurrence. On May 1, 1998, he consulted Dr. Sandifer. The doctor noted that the plaintiff's complaints were similar to those made in 1993. Dr. Sandifer noted that the possible herniated disc at the L5-S1 level was still present and the plaintiff was referred to Dr. Carl Goodman who performed surgery on the plaintiff's back.
When the plaintiff sought to obtain workers' compensation benefits, officials at Plum Creek denied his claim, contending that the plaintiff failed to timely report a work-related accident. Further, Mr. Durham was informed that if he claimed that the injury was work-related, he would not be able to draw accident and sickness benefits under an insurance plan carried with the mill. At the suggestion of Plum Creek management, Mr. Durham completed the insurance form showing that the cause of the injury was "under investigation." He drew the insurance benefits totaling $3,417.94 from May 1, 1998 to November 7, 1998. Mr. Durham then filed suit to obtain workers' compensation benefits. He sought to recover temporary total disability payments in the amount of $350.00 per week, medical and travel related expenses, and penalties in the amount of $2,000.00, together with attorney fees. Plum Creek disputed the plaintiff's entitlement to workers' compensation benefits.
This matter was tried on February 18, 1999. The parties stipulated that the plaintiff would be entitled to recover the maximum amount of temporary total disability benefits if found that he is entitled to them, that recovery would be set from April 23, 1998, the date of the injury, and that the plaintiff received disability payments through the company accident and sickness insurance plan from May 1, 1998 through Novemb
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