Tomlin v. Densberger Drywall, Inc.

706 N.W.2d 595 (2005)

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Tomlin v. Densberger Drywall, Inc.

Nebraska Court of Appeals
706 N.W.2d 595 (2005)

Facts

Richard Tomlin (plaintiff) worked in the drywall industry for over 30 years. On July 23, 2001, Tomlin began working for Densberger Drywall, Inc. (Densberger) (defendant) as a rocker framer, a position requiring more physical labor than his prior employment. Tomlin first complained of shoulder pain in June 2002. On June 12, Tomlin saw Dr. David Clare, an orthopedic specialist, for his shoulder and advised Dr. Clare that he could not recall an injury but had had shoulder pain for a few years. Tomlin was diagnosed with degenerative arthritis. Dr. Clare determined that Tomlin’s occupation contributed somewhat to his shoulder injury. When Tomlin saw Dr. David Clough for a second opinion, Dr. Clough determined that Tomlin’s injury was neither caused nor aggravated by his employment with Densberger. On November 8, Dr. Clare performed surgery on Tomlin’s right shoulder. Tomlin missed work during the surgery and returned on January 15, 2003, for light-duty work. In August 2003, Dr. D. M. Gammel provided a medical evaluation finding that Tomlin’s work duties resulted in and substantially contributed to the development of his shoulder injury and need for medical intervention. On October 17, 2002, Tomlin had filed a petition with the Nebraska Workers’ Compensation Court (the trial court), seeking workers’ compensation. The trial court found that cumulative effects of work-related trauma caused Tomlin’s injury and that the injury occurred suddenly and violently. The trial court further found that Tomlin suffered the injury on November 8, 2002, the identifiable point in time in which Tomlin missed work to have shoulder surgery. The trial court awarded Tomlin temporary total-disability benefits, permanent total-disability benefits, and medical and mileage expenses. Densberger and its carrier, United Fire Group (United) (defendants), appealed to the Workers’ Compensation Court review panel, which affirmed the trial court’s award. Densberger and United appealed, arguing that Tomlin’s repetitive trauma did not meet the statutory definition of an accident.

Rule of Law

Issue

Holding and Reasoning (Sievers, J.)

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