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Mitchell v. Brown Builders8/22/2001
The defendants, Brown Builders, Inc. (Brown) and its insurer, Travelers Property Casualty (Travelers), appeal from a decision by a workers' compensation judge (WCJ) finding that the plaintiff, John Mitchell, suffered neck as well as back injuries in a work-related accident. The defendants object to the WCJ's award of temporary total disability benefits, supplemental earning benefits, medical expenses, and penalties and attorney fees. The plaintiff answered the appeal, seeking additional penalties, attorney fees, and legal interest on the judgment. For the following reasons, we affirm in part, reverse in part, and amend in part the decision of the WCJ. We also reject the plaintiff's claims on appeal.
FACTS
On July 7, 1998, the plaintiff was employed as a laborer with Brown. He was driving stakes with a sledgehammer when he felt a sudden sharp pain in his lower back. After reporting the incident to his supervisor and to a co-worker, the plaintiff continued to work at another task for the rest of the day.
As a result of this incident, the next day the plaintiff sought medical treatment from his primary care physician, Dr. Larry Flake. The plaintiff reported that he was experiencing pain in his lower back. The plaintiff contends that he told Dr. Flake that he was injured at work, but he did not claim this as a work-related injury for insurance purposes. He also asserts that he complained to Dr. Flake that his neck and shoulders felt stiff, tired and heavy. He denies that he had neck pain at that point.
The plaintiff was eventually referred to Dr. A. E. Dean, Jr., an orthopedic surgeon. Dr. Dean saw the plaintiff on July 27, 1998 regarding complaints of back pain. The plaintiff gave a history of having been injured on the job . The plaintiff initially made some complaint that his neck was stiff at times. However, his main complaint was low back pain and leg pain. Dr. Dean diagnosed the plaintiff as having acute lumbar strain with a degenerative disc at the L5-S1 level. He also had a bulging disc and spinal stenosis at L4-L5. An MRI confirmed this diagnosis. Electrodiagnostic examinations and nerve conduction studies performed by Dr. David N. Adams on the plaintiff's left lower extremity and related paraspinal muscles yielded normal results.
Because of continued complaints of low back pain and numbness in his arms and legs, Dr. Dean referred the plaintiff to Dr. Anil Nanda, a neurosurgeon. A letter from Dr. Nanda to Dr. Dean reflects that the plaintiff complained of low back pain radiating down his leg. There is no mention of neck pain. The examination showed that all of the plaintiff's cranial nerves were normal, that he had good motor strength in the upper and lower extremities and had normal reflexes.
Dr. Dean did not find that the plaintiff's back condition required surgery. The plaintiff was given medication and a course of physical therapy. On November 4, 1998, Dr. Dean's examination showed that the plaintiff was not experiencing any severe radiating pain and he had good flexion and extension. Dr. Dean deemed this to be a near normal examination. In late 1998, he released the plaintiff to return to his full duties at Brown.
The plaintiff contended that while he was receiving treatment for his back, he tried to get a loan to help with his expenses. When contacted on the loan application, Brown did not acknowledge that the plaintiff was employed with the company. At that point, the plaintiff assumed that he had been terminated. He applied for and received unemployment compensation benefits from November 15, 1998 to May 15, 1999. At some point, the plaintiff began paying his health insurance premiums that had previously been pa
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