Smith v. Riverwood Intern.

792 So. 2d 863, 2001 WL 770057
CourtLouisiana Court of Appeal
DecidedJuly 11, 2001
Docket34,514-WCA
StatusPublished
Cited by3 cases

This text of 792 So. 2d 863 (Smith v. Riverwood Intern.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Riverwood Intern., 792 So. 2d 863, 2001 WL 770057 (La. Ct. App. 2001).

Opinion

792 So.2d 863 (2001)

Lillian J. SMITH, Plaintiff-Appellee,
v.
RIVERWOOD INTERNATIONAL, and Travelers Insurance Company, Defendant-Appellant.

No. 34,514-WCA.

Court of Appeal of Louisiana, Second Circuit.

July 11, 2001.

*864 Hudson, Potts & Bernstein by Jan P. Christiansen, Counsel for Appellant.

James E. Ross, Jr., Counsel for Appellee.

Before WILLIAMS, CARAWAY and KOSTELKA, JJ.

WILLIAMS, Judge.

In this workers' compensation case, the employer, Riverwood International ("Riverwood"), and its insurer, Travelers Insurance, appeal the judgment of the Office of Workers' Compensation awarding the claimant, Lillian J. Smith, workers' compensation benefits, penalties and attorney's fees.[1] For the following reasons, we affirm.

FACTS

The claimant contends she was injured on July 3, 1998 during the course and scope of her employment with the defendant, Riverwood. The claimant began working for the defendant in June 1996. She was employed as a shift laborer and worked various jobs within the plant from week to week. On the day of the alleged accident, the claimant was working as a "fifth hand" on the No. 1 paper machine, and her responsibility was to assist her co-workers in preparing the rolls of paper for shipping. According to the claimant, the rolls of paper weighed four to six thousand pounds, and were approximately sixty *865 inches in diameter and five-feet tall. The claimant testified that the paper goes through a winder machine which "winds" the paper onto the roll. Thereafter, the roll of paper is lowered onto the floor. Once the roll of paper is on the floor, the fifth hand has to label the roll, tape it down and push it out to the roller track. The claimant testified that as she pushed the roll of paper toward the roller tracks, the roll of paper hit the "stoppers" on the end of the tracks and rolled back toward her, striking her on the left side of her body.

On the day of the accident, Ida Butler and Willie Wright were working with the claimant as the third and fourth hand, respectively. However, according to the claimant, neither Butler nor Wright were in the immediate vicinity when the accident occurred. The claimant testified that after the roll of paper struck her, she "braced" the roll and it again hit the stopper and landed on the track. The claimant explained that because she noticed that the paper was damaged and required re-taping, she attempted to remove the roll of paper from the track; however, she was not physically capable of doing so. According to the claimant, as another co-worker assisted her in removing the roll from the track, she observed Ida Butler nearby. At the claimant's request, Butler assisted the claimant in removing the roll of paper from the track for re-taping.

The claimant reported the accident to Norman Pruett, her immediate supervisor. The claimant was then transported to the Glenwood Medical Center Emergency Room ("Glenwood") where Dr. Charles Norwood opined that the claimant had suffered a muscle strain. He prescribed Norgesic Forte for the injury. On that day, Dr. Norwood released the claimant with permission for her to return to light-duty work four days later, on July 7, 1998.

On July 6, 1998, the claimant was treated at Glenwood by Dr. James Eppinett. She complained of minimal discomfort in her back and the lower left side of her hip. Dr. Eppinett concluded that the claimant's examination was normal; however, because of the claimant's subjective complaints of pain, Dr. Eppinett recommended that she return to work with "alternate sedentary-type duty" for one week.

On July 10, 1998, the claimant was examined at Glenwood by Dr. Stephen Horne, the defendants' company physician. The claimant complained of back pain radiating to her legs and feet. Dr. Horne did not find any objective signs of a hip or back injury and noted that he strongly suspected psycho-social overlay or malingering. He ordered a MRI of the lumbar spine and recommended that claimant undergo an orthopaedic evaluation "to either confirm or refute her subjective complaints." Dr. Horne opined that the claimant was capable of performing "light-duty work."

On July 21, 1998, the claimant was examined by Dr. Rafat Nawas. He concluded that the claimant had a musculoligamentous sprain/strain in the trunk and left hip and slight degenerative disk disease at the L4-5 level. Dr. Nawas recommended that the claimant undergo physical therapy and released her from work for two to three weeks until her follow-up examination.

On July 27, 1998, the claimant was examined by Dr. C.R. Hand, an orthopedic specialist. Dr. Hand diagnosed the claimant with a lumbosacral strain and left trochanteric bursitis. After the claimant refused an injection to the bursa, Dr. Hand recommended physical therapy. The claimant returned to Dr. Hand on August 10, 1998 for a follow-up examination. Dr. Hand found that the claimant's examination was "essentially normal." He recommended *866 that she continue her home-exercise program. He released the claimant to return to full duty work.

The insurer referred the claimant to Dr. Douglas Brown for an August 20, 1999 appointment; however, on that date, the claimant was examined by Dr. Brown's associate, Dr. Juan Racca. The claimant complained to Dr. Racca of pain in her lower back and the front and back of both legs. The claimant's physical examination was essentially normal. Dr. Racca ordered a MRI. The claimant was instructed to return for a follow-up examination on September 13, 1999. On her next appointment, the claimant was examined by Dr. Brown. He opined that the claimant had degenerative disk disease at the L4-5 level; however, he concluded that the claimant was neurologically stable. A functional capacity test revealed inconsistencies in the claimant's efforts. Nevertheless, the test revealed that the claimant could perform at a medium work level. Dr. Brown recommended that the claimant return to her present job with a restriction of lifting no more than thirty-five pounds.

Ida Butler gave a different version of the events that had occurred on the day of the accident. Based on Butler's statement and claimant's alleged inconsistent statements to her health-care providers the defendants contended the claimant was not injured during the course and scope of her employment. Consequently, they refused to pay the claimant either workers' compensation benefits or the costs of her medical treatment.

After a hearing, the WCJ found that the claimant was injured during the course and scope of her employment and that the claimant was entitled to temporary total disability benefits from July 3, 1998 through August 10, 1998, the date the claimant was released to return to work. The WCJ also found that the defendants had arbitrarily refused to allow the claimant to return to work and failed to demonstrate that the claimant could earn ninety-percent of her pre-injury wage. Therefore, the WCJ concluded that the claimant was entitled to supplemental earnings benefits beginning August 10, 1998, and continuing until the date the claimant could return to work in accordance with the restrictions imposed by her physician. The WCJ also concluded that the defendants were arbitrary and capricious in denying the claim. She awarded the claimant $2,000 in penalties and $5,000 in attorney's fees. The defendants appeal the WCJ's decision.

DISCUSSION

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Bluebook (online)
792 So. 2d 863, 2001 WL 770057, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-riverwood-intern-lactapp-2001.