McNish v. Menard, Inc.

KERRY MCNISH, APPELLEE, v. MENARD, INC., APPELLANT.

No. A-19-042.

NEBRASKA COURT OF APPEALS

October 29, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the Workers' Compensation Court: DIRK V. BLOCK, Judge. Affirmed.

Timothy E. Clarke and Eric J. Sutton, of Baylor Evnen, L.L.P., for appellant.

Jeffrey F. Putnam, of Law Offices of Jeffrey F. Putnam, P.C., L.L.O., for appellee.

RIEDMANN, BISHOP, and ARTERBURN, Judges.

ARTERBURN, Judge.

INTRODUCTION

Menard, Inc., appeals from the Nebraska Workers' Compensation Court's award of benefits to Kerry McNish resulting from an injury he suffered while working for Menard on February 3, 2014. The compensation court ordered Menard to pay McNish temporary total disability payments and permanent total disability payments. The court also ordered Menard to pay for future medical and hospital care necessary as a result of McNish's February 3 injury. For the reasons discussed herein, we affirm the compensation court's findings and award of benefits to McNish.

BACKGROUND

McNish experienced back pain and injuries long before the injury at issue in the present matter. McNish drove buses beginning in 1985 until he began doing drywall work in Kearney, Nebraska. In 1989, he lifted something as part of a drywall job and injured his back. He also experienced pain in his right leg at that time. McNish had a laminectomy on August 29, 1989, and received physical therapy thereafter, which he said eventually resolved both his back and leg pain. In a note dated November 9, 1992, McNish's surgeon recommended sedentary work and said that McNish had achieved maximum medical improvement following the 1989 injury.

McNish then worked as an energy auditor, which required him to inspect homes' attics and crawl spaces, until 1996 when he returned to drywalling. McNish testified that a wall fell on him while he was working in the latter part of 2000, which injured his neck. He saw Dr. Dennis McGowan, an orthopedic surgeon, who diagnosed him with a torn rotator cuff and herniated disk. McNish said that he did not remember any work restrictions being implemented at that time. As a result of that injury, he entered a vocational rehabilitation program and earned an associate degree in computer support in 2004 and an associate degree in web page design in 2005. McNish eventually settled a workers' compensation claim relative to that neck injury by lump sum settlement on the basis of his loss of earning capacity. The lump sum settlement was based on a compromise between the parties of loss of earning capacity in the amount of 40 to 45 percent.

During a deposition on June 15, 2015, McGowan testified that he recalled treating McNish for some sort of neck injury in 2001 and described it as "pretty classic neck pain." McGowan remembered performing x-ray-guided injections into McNish's neck, which he said mostly resolved the pain. He said that McNish had some persistent symptoms that he was able to live with. McGowan suggested that McNish remain on nonnarcotic medications to treat the persistent symptoms.

On September 14, 2015, Menard filed a motion to compel records related to McGowan's treatment of McNish in 2001. In that motion, Menard alleged that it had subpoenaed McGowan's records on or about March 31, 2015, but did not receive them. The motion further alleged that Menard had received from a secondary source a "few records" regarding McGowan's treatment of McNish in 2001. Menard alleged that it sent a second subpoena, which outlined the additional records being requested, but had not received those records either. A loss of earning power evaluation report prepared in 2001 cited a note by McGowan restricting McNish to not lift over 30 pounds on an occasional basis, over 10 pounds on a frequent basis, or over 5 pounds on a constant basis. The report said that McNish was able to work at the light-medium physical demand level. The report further noted that McGowan had assigned a permanent impairment rating of 11 percent with respect to McNish as the whole person. Menard filed another motion to compel on November 28, 2017, again alleging that McGowan was withholding records from his treatment of McNish in 2001.

McGowan said that he typically does not retain records for longer than 7 years unless they were from "cases that were interesting." Nevertheless, McGowan said during his deposition that he had staff looking for any records related to his treatment of McNish in 2001 and that the records were not "immediately available." He said that "it would take a while to go looking for" any records from 2001. McGowan said that he would "see if [he] could find those old reports" to satisfy Menard's request.

Trial was held on June 29, 2018. The compensation court began by overruling Menard's motion in limine to exclude the evidence and testimony of McGowan. While the court recognized that McGowan had failed to produce records related to McNish's 2001 neck injury and treatment,the court declined to hold McNish responsible for his physician's recordkeeping practices. The court noted that the records sought by Menard may have been lost since 2001 or never even existed in the first place. Thereafter, McNish testified in his own behalf, and Menard elicited testimony from Rheanna Mallam, its Human Resources Coordinator in the Kearney, Nebraska, Menard's store. No other witnesses testified, but numerous exhibits were received from both parties.

The parties in this case do not dispute that McNish was employed by Menard on February 3, 2014. McNish began working for Menard in 2005 in the hardware department. A year later, he began working as a salesman to contractors and remained in that position through February 2014. In that role, McNish met with contractors to establish accounts at Menard's, explain promotional sales, and sell products to them. He also serviced existing contractor accounts. Within a month of beginning the contractor sales position, McNish also began delivering their orders, which included lumber, appliances, bathtubs, and showers. McNish spent 2 to 3 days each week traveling to meet with contractors and spent the rest of the week in the Menard's store in Kearney.

On February 3, 2014, another employee helped McNish load an overhead garage door bundle onto his work truck to deliver to a customer. The other employee was inexperienced, however, and lifted his end too high, which caused the bulk of the weight to shift to McNish. McNish testified that he "felt [his] back go" and "felt a short pain" in his mid and lower back. Although McNish finished loading his truck and continued working until the end of the day, he also submitted an accident report and told his manager what had happened.

McNish went to work on the day after the accident, but he worked in the store rather than going out on sales calls. Two days after the injury, McNish sought treatment from his family doctor. Although not reflected in the medical record of his visit, McNish remembered that his family doctor put him on light duty at work. McNish's family doctor did not prescribe any medication, physical therapy, or any other treatment at that time. The doctor's notes reflect that McNish complained of "back pain and back stiffness" but not "lower extremity numbness." Menard accommodated the light duty restriction, allowing McNish to work in the store at a sales desk. Other employees substituted for McNish on his sales calls and deliveries.

McNish testified that the pain worsened during the days after the initial accident and eventually spread to his right leg and foot. He said that he experienced a loss of sensation in his right leg. He again sought treatment from his family doctor on February 21, 2014, this time for "lower extremity numbness, lower extremity tingling and lower extremity weakness" during that appointment according to medical records. The medical records show that McNish was referred to McGowan following that appointment.

On February 28, 2014, McNish again saw his family doctor, describing back and leg pain that caused difficulty walking. During that appointment, he requested to be off work until his appointment with McGowan, which was scheduled for March 3. McNish's family doctor wrote him a note to stay off work until after his appointment with McGowan.

McNish complained of back pain and more significant leg pain during his appointment with McGowan. McGowan observed that McNish walked with an antalgic gait and determined that he likely had a herniated disc, which was causing back pain and radicular pain in his right leg. He had an MRI scan during a followup appointment, which did not show an acute significant disc herniation. However, McGowan determined that McNish had bulging discs, a significant tear inthe lumbar 2-3 disc, and an essential large bulge in the 3-4 disc. McGowan's working diagnosis at that time was that McNish suffered a sprain to his back with an injury to the disc. McNish had a series of three to four nerve root injections in his back, which eliminated his pain for about 4 hours. McGowan recommended that McNish either have a fusion surgery or have a dorsal column stimulator surgically implanted. McGowan testified that the dorsal column stimulator could control McNish's leg pain, which he described as more significant than McNish's back pain. McNish said that he did not want to go ahead with the fusion surgery.

McGowan's final diagnosis was that McNish had suffered a sprain to his back with disc degeneration and that he experienced worse pain in his right leg than in his back. To a reasonable degree of medical certainty, McGowan opined that McNish's symptoms were caused by the injury he suffered on February 3, 2014. McGowan testified that his opinion was based on McNish suffering no symptoms before the February 3 accident, experiencing a back sprain...