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Gills v. Nebraska Machine Products, Inc.

Court of Appeals of Nebraska

July 9, 2013

David Gills, appellant,
v.
Nebraska Machine Products, Inc., appellee.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the Workers' Compensation Court: Thomas E. Stine, Judge.

Jon Rehm, of Rehm, Bennett & Moore, P.C., L.L.O., for appellant.

Todd R. McWha, of Waite, McWha & Heng, for appellee.

Inbody, Chief Judge, and Irwin and Moore, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Moore, Judge.

INTRODUCTION

David Gills appeals from the order of the Nebraska Workers' Compensation Court, which dismissed his claim for benefits after finding that Gills failed to prove he sustained a work-related injury arising out of and in the course and scope of his employment with Nebraska Machine Products, Inc. (Nebraska Machine). Because the Workers' Compensation Court was not clearly wrong in finding that Gills failed to prove that he suffered a compensable accident and injury and that Gills' medical condition was the natural progression of a preexisting injury, we affirm.

BACKGROUND

Gills began working for Nebraska Machine in early 2011 as a machine operator. His duties consisted of taking metal parts off of a machine, measuring them, and placing the parts in a tub. When the tub became full, Gills would move it to a different location and then work to fill a new tub. The tubs could weigh up to 300 pounds when full. Other workers were available to help Gills move a tub if it was too heavy for him to move alone. Also, Nebraska Machine provided carts upon which a tub could be placed to move it safely.

Prior to his employment with Nebraska Machine, Gills suffered from a preexisting injury to his right shoulder. In May 2003, Gills began complaining of right shoulder pain. He sought periodic treatment through June 2004 for right shoulder pain and again began complaining of chronic right shoulder pain in 2009. An MRI examination on March 2, 2009, showed that Gills had a torn right rotator cuff. Gills attempted conservative treatment, and when that proved unsuccessful, he decided to have surgery to repair the tear in late 2009. However, Gills did not have insurance to pay for the surgery, and as of the date of trial in this case, he had not yet had surgery to repair his right rotator cuff.

From the time of Gills' diagnosis of a torn right rotator cuff in March 2009 until he began his employment with Nebraska Machine in early 2011, Gills consistently complained of symptoms in his right shoulder, including constant pain described as numbness and weakness in his right upper extremity; pain that increased during cold weather; pain that increased or decreased based on Gills' level of activity; aching, throbbing, and shooting pain; lack of full strength; and difficulty sleeping.

After he was diagnosed with a torn right rotator cuff, Gills used the Nebraska Department of Health and Human Services vocational rehabilitation services to assist him in finding employment, including his employment with Nebraska Machine.

Gills testified that on May 5, 2011, while he was attempting to lift a filled tub at work, he felt immediate, sharp pain in his right shoulder. Gills sought treatment on May 5 from Jessica Rose, an advanced practice registered nurse at a pain clinic. Gills had treated extensively with Rose in 2009 when he was initially diagnosed with a torn right rotator cuff. On May 5, 2011, Gills told Rose that he had pain in his right shoulder and that it began to increase while performing work activity for Nebraska Machine. Rose noted in her medical report that Gills was being seen for chronic right shoulder pain related to a history of right rotator cuff tear and a history of degenerative joint disease. She commented that Gills' pain had increased during the last few months and that activity such as lifting and repetitive motions would cause an increase in his pain. Rose then remarked that Gills was more active in that he had been helping around his ...


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