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Miller v. Georgia-Pacific Plywood Second Injury Fund3/2/2005
NOT DESIGNATED FOR PUBLICATION
Barbara Miller appeals from the Workers' Compensation Commission's decision denying her claim for benefits. Miller asserted that she suffered a compensable back injury on May 10, 1998, and that she was entitled to additional wage-loss disability benefits. Both the Administrative Law Judge and the Commission disagreed. Miller's points on appeal are (1) whether the Commission erred when it held that Miller failed to prove by a preponderance of the evidence that she sustained a compensable low-back injury on May 10, 1998; (2) whether the Commission erred when it found that Miller failed to prove by a preponderance of the evidence that she was entitled to additional wage-loss disability; (3) whether the major cause of Miller's disability or need for treatment is the 1990 or 1998 injury; (4) whether the Second Injury Fund is responsible for benefits; and (5) whether Miller is entitled to attorney's fees. We affirm.
Barbara Miller applied for workers' compensation benefits on August 12, 2000, for an injury she alleged occurred on May 10, 1998. Georgia- Pacific asserted that no such injury occurred and denied benefits. The Second Injury Fund also argued that Miller had not sustained an injury in 1998, and that any current conditions were the result of the 1990 incident, for which she was currently receiving compensation. A hearing was held on the matter, and the parties stipulated that an employee/employer relationship existed at all relevant times; that Miller sustained a compensable low back injury in 1990; that a permanent impairment rating of twenty-one percent to the whole body was assigned; and that, if the Commission found that Miller was entitled to compensation for the new 1998 injury, Miller would be entitled to a higher maximum compensation rate for 1998.
At the hearing, Miller testified that she had been employed at Georgia-Pacific since September 14, 1988. She was hurt on the job in 1990 and remained on leave until 1992. On May 10, 1998, Miller was working as "plugger." She stated that her supervisor, Franklin McElwaney, instructed her to leave her plugging machine and report to the "green end" to pull wood. Miller explained to McElwaney that, due to her previous back injury , she was unable to pull wood. After being unable to locate any work limitations in Miller's file, McElwaney insisted that Miller report to the "green end." McElwaney testified that he was unaware that Miller had a previous back injury or that she was to perform restricted work duties.
Miller stated that the job duties for the "green end" were more difficult than her duties as a plugger. She further testified that, when she began taking wood from the conveyor belt at the "green end," her back "popped" and began hurting. Miller said that she reported her injury , but continued to work. She stated that, when her shift ended at 3:30 p.m., she went to the emergency room. Throughout the hearing, Miller maintained that she was injured on May 10, 1998. On cross- examination, though, Miller admitted that the form she completed regarding the 1998 incident indicated that the date of the injury was August 13, 1998. Miller asserted that the date was a mistake; that she remembered hurting her back on May 10, 1998, because it was Mother's Day; and that her last day working was June 13, 1998. In a pre-hearing deposition, Miller also suggested that the date of her injury was June 13 and June 16, 1998.
McElwaney admitted that Miller had reported that her back hurt on the day he moved her to the "green end," and that he did not complete an accident report at that time. McElwaney stated, however, that he did not complete a report because Miller indicated that her bac
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