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Merrill v. Griswold's2/8/2005
that after he took medication, his back pain had cleared up.
Merrill testified that in April 2000, he saw Marsh about his back pain, and that Messer performed surgery on him in November 2000 and March 2002. Merrill testified that initially, the first surgery eased his pain, but that after 3 months, his back was quite painful again, in much the same way that it had been prior to that surgery. Merrill testified that after his second surgery, he was unable to return to work.
On cross-examination, Merrill testified that although he stated in his petition that he had injured his back on three occasions (March 3, April 5, and October 6, 2000), he could only recall one injury to his back in late March or early April 2000 and did not remember any injury in either early to mid-March or October 2000.
Merrill also introduced into evidence Messer's deposition. In that deposition, Messer stated that he performed the first surgery on Merrill in November 2000 to relieve the extruded disk herniation in Merrill's back. Messer also stated with a reasonable degree of medical certainty that Merrill's injury at work on October 6 caused the extruded disk herniation, which led directly to the pain in Merrill's leg.
Messer also stated that he performed back surgery on Merrill in November 2000 to stop Merrill's leg pain and that without the leg pain, surgery would not have been necessary. Messer noted that his understanding was that although Merrill had been having back pain for several months prior to his October 2000 visit, Merrill did not have pain in his leg until early October 2000.
Messer stated that his opinions were based on the fact that Merrill had told him that he suffered an injury at work on October 6, 2000. Messer further stated that if this fact was not correct, his opinions would be incorrect as well. As to Merrill's second surgery, Messer stated that he could not say within reasonable medical probability that Merrill's second surgery was related to his employment with Griswold's.
In a letter to Merrill's counsel dated February 4, 2003, Messer stated that Merrill was at maximum medical improvement (MMI), but did not state how long Merrill had been at MMI.
At trial, Merrill requested that the court determine only liability and that he be given additional time to gather evidence on whether he has a permanent impairment from either or both of his surgeries. The trial court granted Merrill's requests over the objection of Griswold's that the court's postponement of the issue of permanent disability was prejudicial to Griswold's.
In an order filed August 8, 2003, the trial court found that Merrill's care and treatment at Kreshel's office on April 6, 2000, and the subsequent physical therapy were the result of Merrill's "lifting" during the course and scope of his employment with Griswold's.
The court found that there were no temporary benefits due Merrill for this injury , nor was there any permanent impairment. The court further found that on October 6, 2000, Merrill herniated a disk in his back while he was at work installing carpet. The court stated that it based its finding on Messer's deposition testimony, in which Messer opined that Merrill herniated his disk on October 6. The court ordered Griswold's to pay Merrill temporary benefits and medical expenses relating to the first surgery.
As to Merrill's second surgery, the court stated that it was unable to find that Merrill's treatment beginning in October 2001 was the result of an injury during the course and scope of Merrill's employment with Griswold's.
The court also granted Merrill's requests that it determine only liabili
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