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Player v. International Paper Co.1/28/2005
In this workers' compensation case, the employer, International Paper Company (IP), appeals from a judgment which ordered it to pay to the claimant, Blake W. Player, indemnity benefits, past and future medical benefits, attorney fees and penalties. We amend in part and, as amended, affirm.
FACTS
The claimant was employed by IP as an assistant machine operator in the Springhill plant. He worked at least 40 hours per week and received an hourly wage of $15.62. In August 2002, while working a double shift, he was pushing a roll of paper that weighed between 4,000 and 5,000 pounds at the end of his shift. Because the roll was jammed, he tried to push it. His lower back began to hurt. He did not work the next day. When he returned to work the following day, the claimant reported the injury to his supervisor, Mike Crews, and was sent to see the plant nurse. The next day he returned to the nurse, telling her that he had some numbness in his right side, around his leg and ankle. He then went to see the company doctor, Dr. Law, who placed him on light duty and scheduled an MRI. On or about August 30, 2002, the assistant plant manager sent him home and told him not to return until released by his doctor. He also told the claimant that his injury was not work-related.
In September 2002, the claimant went to see Dr. Don Burt of the Joint and Bone Clinic. Dr. Burt determined that the claimant's injury was work-related and that he was unable to return to work. MRI results showed a herniated disc at L5-S1. Dr. Burt recommended surgery.
IP did not pay the claimant any indemnity benefits. Nor would it approve medical benefits, including surgical treatment.
In October 2002, the claimant filed a disputed claim for compensation with the Office of Workers' Compensation (OWC). In March 2003, the claimant moved to dismiss IP's third party administrator, Frank Gates Service Company, with prejudice; the motion was granted.
The parties agreed that if the claimant had a right to indemnity benefits, the maximum rate his average weekly wage would entitle him to was $398 per week.
In June 2003, the claimant was seen by Dr. William Whyte who was acting as IP's second opinion physician. His review of the MRI results showed "an acute disc protrusion process on top of an old degenerative disc process." One of the possible treatments he outlined in his report was surgery.
Trial was held on December 16, 2003. The claimant's personnel record and claims file were admitted in lieu of the live testimony of the persons who compiled them. The deposition of claims adjuster Polly Sweet was admitted. The claimant's medical records and deposition were also admitted into evidence, and he was the only witness to testify. The 46-year-old claimant, a high school graduate, testified that he began working for IP in October 1994. Prior to that, he worked in a plywood plant, and he built fiberglass boats for 13 years. He testified that he had had a previous back injury in 1996 while working for IP. In March 2002, he was in a car accident; he was treated for his back by Dr. Joseph Sarpy for about a month. He said that he had been under the care of Dr. Burt for about 16 months. According to Dr. Burt, the instant injury was not related to any of the claimant's prior mishaps and the claimant was unable to return to work. Dr. Burt wanted to do surgery.
On cross-examination, counsel for IP pointed out the claimant's difficulty in establishing the precise date he was injured at work. However, the claimant consistently maintained that he had properly reported his accident to his employer. He admitted that he received a settlement for his auto accident. He
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