Tomlin v. Densberger Drywall Inc.

Decision Date06 December 2005
Docket NumberNo. A-05-284.,A-05-284.
Citation14 Neb. App. 276,706 N.W.2d 595
PartiesRichard E. TOMLIN, appellee, v. DENSBERGER DRYWALL INC. and United Fire Group, appellants.
CourtNebraska Supreme Court

John W. Iliff and Francie C. Riedmann, of Gross & Welch, P.C., L.L.O., Omaha, for appellants.

Jamie Gaylene Scholz, of Shasteen, Brock & Scholz, P.C., Lincoln, for appellee.

SIEVERS, CARLSON, and CASSEL, Judges.

SIEVERS, Judge.

INTRODUCTION

Densberger Drywall Inc. (Densberger) and United Fire Group (United) appeal the decision of the Nebraska Workers' Compensation Court review panel affirming the decision of the trial court, which found that Richard E. Tomlin suffered a compensable shoulder injury arising out of and in the course of his employment with Densberger.

FACTUAL BACKGROUND

Tomlin had been working in the drywall industry since 1972, with the exception of about 2 years. Tomlin began his employment as a "[r]ocker framer" with Densberger on July 23, 2001, and ended his employment in August 2003. Tomlin testified that his job duties as a "rocker framer" were metal framing and drywall hanging and that while performing such duties, he did "lots" of heavy lifting and "overhead work." Prior to working at Densberger, Tomlin was part owner in a company called Drywallers, Inc. At Drywallers, he had those same job duties but he also had supervisory duties, and therefore, he did not do as much physical labor as in his employment at Densberger.

On June 3, 2002, Tomlin went to see John Grandgenett, a nurse practitioner at the office of his family physician, for a "recheck [of] blood pressure medication." While seeing Grandgenett, Tomlin complained that he had been experiencing right shoulder pain for approximately 1 year but that he had no known trauma or injury. Grandgenett referred Tomlin to Dr. David J. Clare, an orthopedist.

On June 12, 2002, Tomlin saw Dr. Clare. Dr. Clare's notes state that Tomlin has had problems with his right shoulder for a couple of years but that Tomlin was unable to recall an injury. Dr. Clare diagnosed Tomlin with degenerative arthritis in his right shoulder. In a letter dated September 18, 2002, Dr. Clare opined:

There has been some question as to whether this [severe degenerative arthritis of the right shoulder] defines a Workman Comp case. Although [Tomlin] did not sustain a single, isolated work-related injury, I feel he has experienced accumulative trauma that has resulted in the degenerative condition. I cannot say with 100% certainty that his work is the direct cause of his shoulder condition, but 30 years of laying dry wall undoubtedly contributed in some form or fashion to his degenerative right shoulder condition.

On that same day, Dr. Clare stated in his progress notes that "the long term heavy, repetitive work [Tomlin] performed for over 30 years has at least contributed to [his] level of degenerative arthritis."

In a letter dated December 16, 2002, Dr. Clare opined: "The etiology of [Tomlin's] arthritis is difficulty [sic] to definitively determine. He has been employed laying drywall for 30 years. I do believe that this occupation has contributed to the development of his arthritis."

On September 12, 2002, Tomlin presented to Dr. David A. Clough for a second opinion. Dr. Clough diagnosed Tomlin with degenerative arthritis and stated, "In the absence of a specific injury, I can not attribute this to Workers' Compensation." Dr. Clough clarified his opinion in a February 13, 2003, letter as follows:

My statement, `In the absence of a specific injury, I can not attribute this to Workers' Compensation', was intended to include both causation directly as well as aggravation of a pre-existing condition. It is my opinion, to a reasonable degree of medical certainty, that ... Tomlin's degenerative arthritis of the right shoulder was not caused and not aggravated by his employment at Densberger.... It is my opinion that the degenerative arthritis is following it's [sic] natural progression with increasing symptoms and with decreasing levels of work activity and that his employment for the last year has not been a factor in any way.

On November 8, 2002, Dr. Clare performed a right shoulder hemiarthroplasty. Tomlin testified that he missed work for the surgery but that he did not remember missing work for any other doctors' appointments. On January 15, 2003, Tomlin returned to work at Densberger, doing "light duty."

On August 13, 2003, Dr. D.M. Gammel provided a medical evaluation of Tomlin based on a July 29 physical examination of Tomlin, a personal interview and history given by Tomlin, and a review of medical records and tests from June 3, 2002, to June 5, 2003. Dr. Gammel opined: "Tomlin's repetitive, heavy, overhead work duties as a drywall installer for thirty years resulted in and substantially contributed to the development of his right shoulder degenerative joint disease and need for subsequent medical intervention including right shoulder hemiarthroplasty." Dr. Gammel issued an impairment rating of 15 percent to the right upper extremity.

PROCEDURAL BACKGROUND

Tomlin filed a petition in the Nebraska Workers' Compensation Court on October 17, 2002, alleging that on June 12, he had sustained an injury in an accident arising out of and in the course of his employment with Densberger. Following a trial before a single judge on September 18, 2003, the trial court issued an award on March 23, 2004. The trial court found that Tomlin's shoulder injury was a result of the cumulative effects of a work-related trauma. The court stated that the parties' greatest contention regarding Tomlin's injury being an "accident" was whether the injury occurred "suddenly and violently." The trial court found that Tomlin's discontinuance of employment occurred within a reasonably limited period of time after the appearance of his symptoms and that when Tomlin "submitted himself to surgery" and missed work for such, he established an identifiable point in time when the injury occurred. Thus, the trial court found that the date he suffered his accident was November 8, 2002.

As to causation, the trial court stated that it had "carefully weighed and evaluated each of [the expert witnesses'] opinions" and that "a sufficient ca[us]al nexus has been proven so as to link [Tomlin's] shoulder injury to the subject accident." The trial court specifically stated that it "relied" on the opinion of Dr. Gammel and was "persuaded" by the opinions of Dr. Clare.

The trial court awarded Tomlin temporary total disability benefits for 9 5/7 weeks, permanent disability benefits for 33¾ weeks based on an impairment rating of 15 percent to the right upper extremity, and both medical and mileage expenses. The court denied an award for future medical benefits, finding the evidence insufficient to support such an award. The trial court found that there was a reasonable controversy which insulated Densberger and United from liability for the requested penalties, attorney fees, and interest.

Densberger and United appealed to the Workers' Compensation Court review panel the trial court's award. The review panel affirmed the trial court's award in all respects, stating that the trial court was not clearly wrong and that there was sufficient evidence in the record to support the award. Densberger and United timely appeal to this court.

ASSIGNMENTS OF ERROR

Although Densberger and United assert 10 assignments of error in their brief, we restate and renumber the errors in accordance with those assignments that are actually argued in their brief. See Shipferling v. Cook, 266 Neb. 430, 665 N.W.2d 648 (2003) (errors assigned but not argued will not be addressed on appeal). Densberger and United assert that the trial court erred in (1) finding that Tomlin was injured in an accident arising out of and in the course of his employment with Densberger, because the injury was not caused by Tomlin's employment with Densberger; (2) finding that Tomlin sustained a repetitive trauma injury, because the injury does not meet the statutory definition of an accident; (3) finding that Tomlin suffered a repetitive trauma injury on November 8, 2002, because such finding violated Densberger's and United's due process rights and Workers' Comp. Ct. R. of Proc. 11 (2002); (4) awarding medical expenses and mileage; and (5) failing to sustain the objections to exhibits 1, 2, and 5 through 8.

STANDARD OF REVIEW

In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of fact of the single judge who conducted the original hearing; the findings of fact of the single judge will not be disturbed on appeal unless clearly wrong. Schwan's Sales Enters. v. Hitz, 263 Neb. 327, 640 N.W.2d 15 (2002). An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Owen v. American Hydraulics, 254 Neb. 685, 578 N.W.2d 57 (1998).

An appellate court is precluded from substituting its view of the facts for that of the compensation court if the record contains evidence to substantiate the factual conclusions reached by the compensation court. Wilson v. Larkins & Sons, 249 Neb. 396, 543 N.W.2d 735 (1996). See Neb.Rev.Stat. § 48-185 (Reissue 2004).

In analyzing the sufficiency of the evidence to support findings of fact made by the Workers' Compensation Court trial judge, the evidence must be considered in the light most favorable to the successful party,...

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