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McDonald v. Vlasic Food Co.6/22/2004
(not designated for permanent publication)
INTRODUCTION
In this workers' compensation case, Lindy McDonald filed a claim for benefits against her former employer and its workers' compensation insurance carrier, Vlasic Food Company and Travelers Indemnity Company of Illinois, respectively (collectively Vlasic). The trial court entered an award after finding that McDonald suffered an accident and injury in the scope and course of her work. Vlasic appealed to the review panel, and the review panel affirmed. Vlasic now appeals to this court, alleging error by the trial court in finding that McDonald suffered an injury arising out of and in the course of her employment, in making a judgment and award upon insufficient competent evidence, and in finding that McDonald remains temporarily totally disabled. We conclude that the factual findings of the trial court were not clearly wrong, and we affirm.
BACKGROUND
A hearing on McDonald's petition seeking workers' compensation benefits was held September 12, 2002. The parties stipulated to McDonald's employment with Vlasic and to her average weekly wage. The parties further stipulated that McDonald suffered not less than a 12-percent impairment to the body as a whole related to a low-back injury and that she suffered not less than a 5-percent impairment to the body as a whole for a cervical strain to the neck. On December 29, 1998, McDonald was employed as a lead instructor. She testified that on that date, "I was gathering up the paper towels. I went to turn and I slipped and I jerked all the way back, hearing a popping in my back and in my neck." She reported the injury to the union steward. McDonald sought medical treatment from Dr. Dean Wampler, who performed an MRI on her lower back. McDonald testified that she told Wampler that she also injured her neck.
McDonald was referred to Dr. Richard Belatti for an epidural in her back. McDonald testified that the epidural helped "a little bit" but that the pain all came back. Wampler eventually sent McDonald to Dr. George Greene.
In a letter dated February 18, 2000, Greene stated that McDonald had been experiencing episodes of low-back pain for the previous year, that an MRI of the lumbar spine in February 1999 showed an L5-S1 central disk herniation, and that in approximately January 2000, McDonald experienced a severe exacerbation of her low-back pain while lifting at work. Greene further stated that the pain began radiating to McDonald's left buttock, posterior thigh, lower leg, and plantar aspect of the foot. In February 2000, Greene performed a "left L5-S1 hemilaminotomy and microdis ectomy." McDonald returned to full duty work in May.
On July 15, 2000, McDonald suffered another injury. She testified that she was lifting a hose and that as she pulled the hose, she heard a pop in her back. Again, she reported the injury to the union steward. She was again referred to Wampler, had an MRI performed, and received an epidural. Wampler's office note of July 28 stated that the MRI scan showed that McDonald had recurrent disk herniation to the right side at the same level that she had had to the left side, which had required surgery in February. In the same office note, Wampler stated that McDonald was to stay off work pending a neurosurgical consultation, because McDonald was experiencing distress while standing, sitting, and moving.
Greene performed a right L5-S1 hemilaminotomy and microdiskectomy on McDonald's back on September 6, 2000. McDonald testified that when she woke from this surgery, she felt pain in her neck or arm that was different from the pain she had felt after the December 1998 accident. She described it as
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