International Paper Co. v. Kelley

Decision Date30 May 1990
Docket NumberNo. 07-CC-59502,07-CC-59502
Citation562 So.2d 1298
PartiesINTERNATIONAL PAPER COMPANY v. Lynda KELLEY.
CourtMississippi Supreme Court

Karl R. Steinberger, Bryant Colingo Williams & Clark, Pascagoula, for appellant.

Stephen G. Peresich, Page Mannino & Peresich, Biloxi, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and BLASS, JJ.

ROY NOBLE LEE, Chief Justice, for the Court:

Lynda Kelley filed a claim for workers' compensation benefits against International Paper Company for injuries sustained on May 17, 1978. The Administrative Law Judge found that Kelley sustained a compensable, work-related injury and awarded medical benefits, temporary total disability benefits, permanent partial disability based on 25% permanent partial disability to the body as a whole, and assessed penalties against International Paper Company (IP). The employer, a self insurer, appealed to the full Commission and Kelley cross-appealed asserting that she suffered a greater than 25% loss of wage earning capacity.

The Commission approved the finding of the Administrative Law Judge that Kelley had sustained a work related, compensable injury, and that she was entitled to medical benefits, temporary total disability benefits, and penalties. The Commission reversed the finding that she suffered a loss of wage earning capacity attributable to the compensable injury. Both parties appealed to the Circuit Court of Jackson County, Mississippi, and that court affirmed the decision of the full Commission. International Paper Company has appealed from the judgment of the lower court and presents the following issues for review by this Court:

(1) Whether or not substantial evidence exists to support a finding that Lynda Kelley's back problems after June 1978 were causally related to her May 17, 1978, accident.

(2) Whether the facts warrant assessment of statutory penalties on unpaid benefits and whether the law allows assessment of penalties on medical expenses.

Lynda Kelley has cross-appealed from the decision of the lower court and presents the following issues for review by this Court:

(1) Whether the Mississippi Worker's Compensation Commission erred in failing to award Lynda Kelley permanent partial disability benefits.

(2) Whether the Commission should have assigned a higher loss of wage earning capacity than that found by the Administrative Judge.

FACTS

In May 1978, Lynda Kelley was employed by International Paper Company in Gautier, Mississippi, as a trimmer operator. The machine was used to cut paper to customer specification and Kelley earned an average weekly wage of $232.40. On May 17, 1978, the # 6 trimmer, which Kelley operated, was not in use and Kelley's foreman told her to take all the garbage drums outside and empty them. While so engaged, she stepped backward off a loading dock and hit her back on a wooden skid lying on the ground approximately six feet below. She spent the remainder of her shift in the first aid office where heat was applied to her back. The following day, Kelley was in a great deal of pain and she was taken to the emergency room of the Providence Hospital in Mobile, Alabama, where she then lived. The radiological report from the hospital indicated that there was a mild compression fracture involving the superior end plate of the body at L3.

It is uncontradicted that Kelley injured her back while in the course of her employment. The extent of her injury is the question which must be answered. On May 23, 1978, Kelley was examined by Dr. McGinley, an orthopedic surgeon at the Mobile Bone and Joint Center. He diagnosed her condition as lumbosacral sprain and contusion, gave her medicine for pain and recommended heat and rest. On May 26, 1978, when Kelley reported to IP that she had blood in her urine, she was sent to the company's physician, Dr. Perry Hockaday. He released her to return to work on June 5, 1987. She received compensation benefits for the period May 18, 1978, to June 5, 1978.

On November 17, 1978, Kelley returned to the Mobile Bone and Joint Center because of continued severe pain in her lower back and left leg. She was treated by Dr. Andin C. McLeod who advised her not to work for five weeks. Dr. McLeod saw Kelley four times over a period of six weeks. He was of the opinion that the back pain she was experiencing was not causally related to the May 17, 1978, accident. However, he could not say with 100% certainty that her fall did not aggravate an on-going condition.

On February 9, 1979, Kelley, a union representative, and the mill manager had a meeting with reference to Kelley's condition. At that meeting, Kelley indicated that in November 1978, she had been having trouble with a "pulled disc" which Dr. McLeod had said was due to a previous mill injury, not to the May 17th injury. Kelley filed a claim with her health insurance and received disability payment benefits of $206.00 for every week that she did not work because of her condition.

In 1979, Kelley worked almost the whole year without any serious complaints. In 1980, she missed 106 days of work due primarily to non-work-related illness and surgery. Dr. Winstead performed a surgical procedure for treatment of an inguinal hernia and he referred Kelley to Dr. Robinson for additional surgery, e.g., a laparotomy, a hysterectomy, an appendectomy and a resection of the ovaries. Dr. Robinson released her to return to work in December 1980.

Kelley worked most of 1981. In November 1981, she consulted Dr. James B. Martin and requested him to refer her to Dr. Drake for treatment of hip and low back pain. She did not work from November 22, 1981, until January 10, 1982, and, during that time, she received disability benefits from her personal insurance. In 1982, Dr. Drake performed a diskectomy at L5-Sl. The surgery gave her some relief but after she returned to work, other employees helped her with her work, according to Kelley.

In July 1983, Kelley returned to Dr. Drake, complaining of back pain she had not previously experienced. He performed a fusion of L2 and L3 and she was unable to work from July 13 to April 1, 1984. As with all treatment subsequent to 1979, Kelley filed for and received benefits from her personal disability insurance, indicating that the treatment was not for a work related condition. Kelley testified that she had been able to work fully since Dr. Drake performed the operation; that she was able to do her job but that it hurt her to do the work; that she was fully able to function; that she was carrying her load; that she did what they needed her to do at the plant. The Administrative Law Judge made the following findings of fact:

1. That on or about May 17, 1978, the claimant suffered a compensable injury to her lower back while in the course and scope of her employment when she fell backwards off of a six foot loading dock and landed on her back;

2. That the claimant, was temporarily and totally disabled from May 18, 1978 through June 5, 1978 from November 17, 1978 through November 27, 1978, from December 21, 1978 through January 27, 1979, from November 25, 1981 through January 9, 1982, from June 1, 1982 through October 16, 1982, and from July 8, 1983 through December 31, 1984;

3. As a result of the compensable injury to her back with leg pain, the claimant sustained a loss of wage-earning capacity of twenty-five (25%) percent;

4. The claimant's average weekly wage was $232.40;

5. The employer and carrier are not entitled to apportionment; and

6. The claimant is entitled to penalties.

The Commission entered an order affirming the Administrative Law Judge's finding as to compensability, the assessment of penalties, the award of temporary total disability benefits and medical benefits but reversed as to the finding of a 25% loss of wage earning capacity attributable to the compensable injury. The Commission ordered:

IT IS THEREFORE ORDERED AND ADJUDGED that the employer, International Paper Company, a Self-Insurer, shall pay compensation benefits as follows:

1. Temporary total disability benefits in the amount of $91.00 per week from May 18, 1978 through June 5, 1978; from November 17, 1978 through November 27, 1978; from December 21, 1978 through January 27, 1979; from November 25, 1981 through January 9, 1982; from June 1, 1982 through October 16, 1982; and from July 8, 1983 through December 31, 1984, with proper credit for wages earned by claimant or compensation paid by defendant during the period; and

2. All reasonable and necessary medical services and supplies as the nature of claimant's injury or the process of her recovery may require as provided in Miss. Code Ann., Section 71-3-15 (1972).

IT IS FURTHER ORDERED AND ADJUDGED that there shall be added to each item of compensation untimely paid and to each item of medical expense incurred the equivalent of ten percent (10%) thereof as provided in Miss. Code Ann., Section 71-3-37(5) (1972).

LAW
I.

International Paper Company (IP) contends that there was not substantial evidence to support a finding that Lynda Kelley's back problems, after June 1978, were causally related to the May 17, 1978 accident.

It is conceded by the parties that Kelley fell and injured herself on May 17, 1978. Subsequently, over a period of years, she had back problems and other physical ailments, most of which were not related to her May 17 accident.

Dr. David Skagerberg, an orthopedic surgeon in Bay St. Louis, Mississippi, testified for the claimant as an expert witness. A digest of that testimony follows:

Relying upon a medical history from the claimant following the May 17, 1978 injury, a physical examination of her, and a review of the medical records and x-rays from the Providence Hospital, the Mobile Bone & Joint Center (Dr. McGinley and Dr. McLeod) and those of Dr. John Drake, Dr. Skagerberg concluded that the claimant had suffered a permanent impairment causally related to the May 17, 1978 fall. Dr. Skagerberg concluded that the fall of May 17, 1978,...

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