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Merrill v. Griswold's9/30/2005
Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.
NATURE OF CASE
In this workers' compensation case, we granted the petition for further review filed by the employer, Griswold's, Inc., which argues that the Nebraska Court of Appeals erred in awarding attorney fees to the employee, Donald D. Merrill.
SCOPE OF REVIEW
Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues presented by a case. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003).
FACTS
Merrill was employed as a carpet installer for Griswold's. On June 25, 2002, Merrill filed an amended petition in the Workers' Compensation Court alleging that on March 3, April 5, and October 6, 2000, he incurred personal injury in accidents arising out of and in the course of his employment with Griswold's. Merrill alleged that he sustained lumbar degenerative disk disease or aggravation of lumbar degenerative disk disease as a result of repetitive motion injuries that occurred while he was installing carpet.
According to the record, on April 6, 2000, Merrill was examined by a nurse practitioner; diagnosed with lumbar muscle pain, spasm, and strain; and given medication. On May 1, he returned with continuing complaints of low-back pain and spasm, and physical therapy was recommended. Merrill attended one physical therapy session on May 11 and subsequently returned to work. On October 6, Merrill experienced low-back pain while using a "knee kicker" while installing carpet. On October 9, he returned to the nurse practitioner with complaints of pain in his back. An MRI showed degenerative disk disease.
Merrill was referred to Dr. Andrew Messer. After an examination, Messer reported: "[Merrill] has had predating degenerative process, but the pain he had prior to the industrial related injury was tolerable and was not affecting his work. He does have a new onset of symptoms, predominantly radicular in nature and compatible with what I find on his MRI."
Surgery was performed, and Merrill was allowed to return to work on December 4, 2000. He was limited to lifting no more than 25 pounds and was to do no work on his hands and knees. Messer assessed Merrill on December 26 and recommended no further treatment. Merrill was released to work with no restrictions. He was to use common sense in determining his abilities.
On October 9, 2001, Merrill returned to Messer's office and reported that he had done well for some time, but he complained that he had developed pain in his right buttock and down into his right anterior thigh. An MRI showed several broad-based disk protrusions. Merrill had further back surgery on March 27, 2002, after which he developed infections and had a considerable amount of pain. He was unable to return to work.
Following a hearing, the trial court found that the medical treatment on April 6, 2000, and the physical therapy on May 11 were the result of an injury during the course and scope of Merrill's employment but that no temporary benefits were due, nor was there any permanent impairment or loss of earning power from this injury. The court found that on October 6, Merrill herniated a lumbar disk while using the knee kicker to install carpet. It also found that Merrill had missed 18 days of work and was entitled to 1 4/7 weeks of temporary disability benefits. The first 7 days were not included in Merrill's entitlement, in accordance with Neb. Rev. Stat. ยง 48-119 (Reissue 2004).
In its order, the trial court noted that Merrill claimed Griswold's was liable for
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