## Facts

- Richard E. Tomlin worked in the drywall industry for roughly 30 years, performing heavy lifting and repetitive overhead tasks.
- On July 23, 2001, Tomlin began working for Densberger Drywall, Inc. as a “rocker framer,” doing metal framing and drywall hanging.
- On June 3, 2002, during a medical visit for blood pressure, Tomlin reported right-shoulder pain for about one year and no known trauma; he was referred to an orthopedist.
- On June 12, 2002, Dr. David J. Clare evaluated Tomlin, noted shoulder problems for years without a specific injury, and diagnosed degenerative arthritis.
- In September 2002, Dr. Clare opined that Tomlin had no single isolated injury but had cumulative trauma; he stated long-term drywall work “undoubtedly contributed” and “at least contributed” to the degenerative arthritis.
- Dr. David Clough later opined Tomlin’s shoulder condition was neither caused nor aggravated by Tomlin’s employment with Densberger.
- On November 8, 2002, Dr. Clare performed right-shoulder surgery; Tomlin missed work and returned to light duty on January 15, 2003.
- In August 2003, Dr. D.M. Gammel opined Tomlin’s work duties resulted in and substantially contributed to the shoulder injury and need for medical intervention.
- Tomlin filed for workers’ compensation benefits alleging a work-related right-shoulder injury; the Workers’ Compensation Court found cumulative work trauma caused the injury, treated the injury as an “accident,” set November 8, 2002 as the accident date, and awarded disability and medical benefits.
- The review panel affirmed, and the employer and insurer appealed to the Nebraska Court of Appeals.

## Issues

1. Whether a degenerative shoulder condition caused by repetitive work activities may qualify as an “accident” under the Nebraska Workers’ Compensation Act absent a single traumatic event.
2. Whether the Workers’ Compensation Court clearly erred in finding the injury arose out of and in the course of employment given conflicting medical opinions on causation.
3. Whether the court properly used November 8, 2002 (the surgery date) as the “date of accident” for a cumulative-trauma injury, satisfying the requirement of an identifiable, “sudden and violent” accident.

## Decision

- The Nebraska Court of Appeals affirmed the review panel and the Workers’ Compensation Court’s award.
- The court held the evidence supported a compensable work-related cumulative-trauma shoulder injury arising out of and in the course of employment.
- The court held that using the date of surgery (November 8, 2002) as the accident date was permissible for a cumulative-trauma claim and met the statutory requirement of an identifiable accident date.
- The court declined to reweigh conflicting medical testimony, deferring to the compensation court’s role as fact-finder.

## Legal Principles

- An “accident” under Nebraska workers’ compensation law can include injury caused by repeated, cumulative trauma, not only a single discrete event.
- For cumulative-trauma injuries, the accident date may be fixed at an identifiable time when the condition becomes compensable, such as when the employee leaves work for significant treatment (including surgery).
- Conflicts in medical causation opinions are for the Workers’ Compensation Court to resolve; appellate review is limited, and findings supported by competent evidence are not overturned as clearly wrong.

## Conclusion

The court affirmed benefits for a drywall worker whose degenerative shoulder condition was attributed to cumulative repetitive work trauma, holding that the surgery date could serve as the legally identifiable accident date and that the compensation court’s causation findings were supported despite conflicting expert opinions.


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