Tomlin v. Densberger Drywall Inc. - 14 Neb. App. 288, 706 N.W.2d 595 (2005)

Rule:

Because the Nebraska Workers' Compensation Act is to be broadly construed to accomplish the beneficent purpose of the Act, and given the language of Neb. Rev. Stat. § 48-120 (Reissue 2004), there is no rational reason for a rule precluding the award of medical expenses incurred before the date of accident in a repetitive trauma case, remembering that such date is often fortuitously established by when the employee seeks treatment and misses work for such.

Facts:

Appellee employee, Richard E. Tomlin, worked for the appellant employer, Densberger Drywall Inc. In June 2002, appellee went to the doctor, who diagnosed appellee with degenerative arthritis in his right shoulder. According to the doctor, appellee’s occupation contributed to the development of his arthritis. In September 2002, appellee went to see another doctor for a second opinion. The second doctor also diagnosed appellee with degenerative arthritis, but concluded that it could not be attributed to the Worker’s Compensation. In 2003, another doctor provided a medical evaluation of appellee, and concluded that appellee’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. Subsequently, appellee filed a petition alleging that he had sustained an injury in an accident arising out of and in the course of his employment. The lower court awarded him total disability benefits for nine weeks, permanent disability benefits for 33 weeks based on an impairment rating of 15 percent, and medical and mileage expenses. The review panel upheld the award. Appellant employer and its insurer challenged the decision. 

Issue:

Did the lower court err in finding that the appellee employee’s injury resulted from the risks arising within the scope or sphere of employment? 

Answer:

No.

Conclusion:

On appeal, the court found that because two physicians opined that overhead work and heavy lifting contributed substantially to the employee's shoulder injury, and because the employee testified that he performed a lot of overhead work and heavy lifting, the lower court did not err in finding, pursuant to Neb. Rev. Stat. § 48-101 (Reissue 2004), that the injury resulted from the risks arising within the scope or sphere of employment. The fact that the employee stopped working in order to undergo surgery on his shoulder and returned to light-duty work more than two months later was sufficient to constitute an identifiable point in time after which he sought medical treatment and discontinued his employment.