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Merrill v. Griswold's2/8/2005
(not designated for permanent publication)
INTRODUCTION
Griswold's, Inc., appeals from an order of the review panel of the Nebraska Workers' Compensation Court affirming the trial court's award of benefits to Donald D. Merrill and the trial court's postponement of certain issues to a later date.
BACKGROUND
On June 25, 2002, Merrill filed an amended petition (petition) stating that on March 3, April 5, and October 6, 2000, he "sustained personal injury in an accident arising out of and in the course of" his employment with Griswold's. Specifically, Merrill stated that he was employed as a floor covering installer and that he injured his back while he was installing carpet.
On the same date, Griswold's filed an answer denying Merrill's claims and requesting that the court dismiss Merrill's petition.
Merrill's relevant medical history is as follows: On April 6, 2000, Merrill saw Joanne Marsh, a nurse practitioner for Dr. Charles Kreshel. At this appointment, according to Marsh, Merrill complained of back pain across his beltline that he had had for 3 months and that was getting worse. After examination, Marsh noted that Merrill had some "'hot tight spots'" in his lower back. Marsh prescribed Merrill medication to treat his back and told him that a physical therapy referral would be considered if he did not get better.
On May 1, 2000, Merrill returned and told Marsh that he continued to have problems with his lower back. Marsh referred Merrill to physical therapy, and Merrill attended several therapy sessions while continuing to work at Griswold's.
On October 9, 2000, Merrill saw Marsh again for his low-back pain. At that time, an MRI was ordered and Marsh referred Merrill to Dr. Andrew Messer, an orthopedic surgeon.
On October 24, 2000, Merrill saw Messer and told him that while he was installing carpet on some steps, he developed pain in his right buttock and the front portion of his right thigh. At his October 24 visit, Merrill filled out a spine assessment questionnaire and identified his date of injury as October 6. Merrill stated that this pain had persisted for almost 3 weeks and had not improved. Merrill also stated that although he had had low-back pain prior to this injury, his prior pain had been situated in the middle of his back whereas his recent pain was more to the right side.
Messer reviewed the MRI and noted that Merrill had "an extruded disc herniation at what I will call L4-5 on the right." On November 16, 2000, Messer performed surgery on Merrill's back. On December 4, Messer allowed Merrill to return to work with certain restrictions. On December 26, Messer released Merrill to go back to working full time with no specific restrictions. The record shows that as the result of this surgery, Merrill was off work from November 16 until December 4, 2000.
On October 9, 2001, Merrill returned to Messer's office and saw Scott Gleim, a physician's assistant. Merrill told Gleim that although he had done well for quite some time, he had developed pain in his right buttock in the previous few months, and that this pain extended into his right anterior thigh area. Because subsequent tests showed a recurrence of Merrill's prior herniation, Messer performed a second surgery on Merrill's back in March 2002.
Trial on Merrill's petition was held on March 18, 2003. At trial, Merrill testified that in late March or early April 2000, he felt a sharp knifelike pain in his right buttocks and lower back area while he was placing carpet on some steps at a particular residence. Merrill testified that he had had a previous episode of low-back pain in 1997, but
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