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Salts v. Mosaic and Sentry Insurance

Court of Appeals of Nebraska

July 16, 2013

Gabriele J. Salts, appellant,
v.
Mosaic and Sentry Insurance, appellees.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the Workers' Compensation Court: J. Michael Fitzgerald, Judge.

Jamie Gaylene Scholz, of Shasteen, Miner, Scholz & Morris, P.C., L.L.C., for appellant.

George E. Martin III and Anthony D. Todero, of Baird Holm, L.L.P., for appellees.

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

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

IRWIN, Judge.

I. INTRODUCTION

Gabriele J. Salts appeals an order of the Nebraska Workers' Compensation Court dismissing her petition for compensation benefits. On appeal, she alleges that the compensation court erroneously rejected uncontradicted medical evidence of causation and erroneously found that she had failed to prove the work-related accident that she pled. We find that the medical evidence was not uncontradicted and that the compensation court did not err in finding that Salts failed to prove a compensable injury arising out of a work-related accident. We affirm.

II. BACKGROUND

Salts was employed by Mosaic as a medication aide, providing care for physically and mentally disabled residents in a care facility. Her job duties included getting residents out of bed, getting them ready for breakfast, getting them dressed, assisting them with walking, and assisting them with hygiene, as well as various housekeeping duties like sweeping and mopping.

Salts alleged that she sustained a personal injury on or about September 12, 2010, in an accident arising out of and in the course of her employment. She alleged that she was working with a care facility resident named "Susan, " a nonverbal patient who suffers from a mental illness which causes her to take her clothes off in public. Salts described Susan as being approximately 5 feet 3 inches tall and weighing approximately 135 to 140 pounds. According to Salts, she was attempting to keep Susan dressed, while Susan was attempting to get undressed. Salts testified that "[i]t was a pull, push, pull, push, pull, push" altercation that lasted for approximately 10 to 15 minutes.

After the incident, Salts made an entry in a "logbook" concerning her interaction with Susan. In that entry, Salts made no mention of any injury or pain. She described the incident and described how Susan "fought" with her about keeping her pajamas on, and she described that Susan required physical guidance to return to her bed.

Salts alleged that she experienced pain between her left shoulder and her neck after the incident. According to Salts, the pain lasted "all that day, all that night" and continued for "probably a few days." Salts utilized hot and cold packs, as well as pain medication, which "seemed to ease the pain." She did not report the incident or seek any medical attention immediately after this incident.

Salts continued to work until January 20, 2011. She testified that she continued to do sweeping and mopping every day at work for "at least a half an hour, 45 minutes" and that she continued to lift residents and assist them with walking, "pulling and pushing them and all of that." She testified that her "hands just kept going numb" and that she would have to "take a break, and just hold [her] arm and [her] hands . . . and try to exercise them to get the numbness out of them, " making the work more difficult. Despite this, she did not report the incident or seek medical attention for it.

In November 2010, Salts sought medical treatment for right shoulder pain and a rash. She was diagnosed with probable bursitis. She made no mention of any left shoulder pain during this visit, and she made no mention of the September 12 incident.

In January 2011, Salts sought medical treatment for pain radiating into her left shoulder and then down into her hand, causing numbness. When seeking the medical treatment, Salts reported to the treating physician that she had been experiencing pain "off and on for several weeks." The medical notes of this visit do not reflect any mention of the September 2010 incident or consistent symptoms from that point in time. Other medical notes indicate that she had been seen in March 2010 "with very similar symptoms."

An MRI was ordered, and it was performed on January 25, 2011, showing a disk herniation. On January 27, she filed an accident report with Mosaic describing the September 12, 2010, incident--this was Salts' first documentation of the incident.

On February 3, 2011, Salts was examined by Dr. Daniel Noble. Salts completed a "personal health history" form, on which she reported that the symptoms were first noticed on September 12, 2010; that the injury occurred at work; and that it happened as a result of the incident with Susan described above. Dr. Noble reported Salts' "history of present illness" as being that she "began having neck pain accompanied by left upper extremity radicular complaints in May of 2010" and that the symptoms were "managed without much intervention" until the incident on September 12, 2010. Dr. Noble recommended surgical intervention (after Salts stopped smoking a pack of cigarettes per day), ...


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