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Flesner v. Lincoln Poultry8/23/2005
(Not Designated for Permanent Publication)
Irwin, Sievers, and Cassel, Judges.
INTRODUCTION
Steve Flesner sought workers' compensation benefits from Lincoln Poultry (his employer) and its three insurance carriers concerning five employment-related accidents. This appeal focuses on (1) the distinction between an aggravation and a recurrence, thereby affecting which carrier is liable for Flesner's injuries; (2) the extent of Flesner's loss of earning capacity; and (3) waiting-time penalties and attorney fees.
BACKGROUND
On December 16, 2002, Flesner filed his first amended petition with the Nebraska Workers' Compensation Court, seeking compensation for injuries he incurred while employed by Lincoln Poultry. He alleged that he was involved in work-related accidents on November 5, 1999; April 10 and November 17, 2000; and May 10 and October 2, 2001. Three workers' compensation insurance carriers provided coverage for Lincoln Poultry over the relevant period. Lincoln Poultry received coverage from Cincinnati Insurance Company (Cincinnati) from 1999 through August 1, 2000; from Zenith Insurance Company from August 1, 2000, through August 1, 2001; and from Continental Western Group from August 1, 2001, through the time of trial. Lincoln Poultry and its workers' compensation insurance carriers filed answers essentially denying Flesner's material allegations.
On February 23, 2004, the trial court conducted a trial on Flesner's petition. Flesner testified that on November 5, 1999, he was pulling a "two-wheeler" while working as a delivery driver for Lincoln Poultry. He heard a popping sound in his right hip but continued to work. Approximately 45 minutes later, he felt pain in his right hip and buttock. Flesner did not take time off work after the incident, and he continued to perform the same duties, which included delivering products to restaurants and unloading those products. In a deposition taken on December 10, 2002, Flesner stated that he continued to suffer mild pain until April 10, 2000.
On April 10, 2000, Flesner was entering the cab of a delivery truck when he suffered pain in his lower back and his right hip and heard a popping sound in his right hip. He reported the incident to Lincoln Poultry. On April 13, Flesner was seen by Dr. Paul LaClair, who diagnosed Flesner with low-back pain and lumbosacral radiculopathy and recommended that Flesner return to work without limitations. In paperwork prepared on April 17, Flesner reported that since the April 10 incident, he had suffered severe pain shooting down his right leg to his foot. In the deposition, Flesner stated that the pain was also in his right buttock. Flesner continued to work full time without a reduction in his hours, but a scheduling change made for lighter duty until May 2001.
On April 19, 2000, Flesner underwent an MRI of the lumbar spine, which MRI showed that Flesner had " oderately severe disc bulging at L4-5 with a small radial tear" along with " arge right-sided focal disc protrusion at L5-S1, consistent with a large herniated disc." On May 24, LaClair referred Flesner to physical therapy and noted a diagnosis of "[right] S1 Radic."
Dr. Benjamin Gelber examined Flesner on June 7, 2000. Gelber reported that Flesner's pain was primarily in the right leg. Gelber assessed that Flesner had a " rotruded or extruded intervertebral disc at L5 right producing S1 radiculopathy." Gelber referred Flesner to Dr. David Diamant for an epidural steroid injection.
The trial court received Diamant's deposition taken January 14, 2004. Diamant stated that he first saw Flesner on June 21, 2000, and administered an epidural steroid
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