                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                            GILLS V. NEBRASKA MACHINE PRODUCTS


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 DAVID GILLS, APPELLANT,
                                           V.
                        NEBRASKA MACHINE PRODUCTS, INC., APPELLEE.


                              Filed July 9, 2013.   No. A-12-1066.


       Appeal from the Workers’ Compensation Court: THOMAS E. STINE, Judge. Affirmed.
       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.
       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




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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
parents’ home, cutting grass, and doing yardwork. Rose’s record of the May 2011 visit does not
show any history given by Gills that he experienced pain in his right shoulder or an increase in
pain when he attempted to lift or move a tub at work.
         Gills testified that he told one of his supervisors at Nebraska Machine that he hurt his
right shoulder on May 5, 2011, while lifting a tub that contained finished product. He also
testified that he informed other Nebraska Machine employees that his shoulder pain was getting
worse. However, these employees all testified that Gills never informed them of any injury
occurring in May 2011. There is no report of such an injury in Gills’ personnel file. The “First
Report of Alleged Occupational Injury or Illness” form received into evidence at trial states that
no report was filed, and the first report of an alleged injury was when Nebraska Machine
received a summons for this case.
         Gills next sought medical treatment on December 13, 2011, when he went to see Rose,
complaining of a gradual onset of moderate bilateral shoulder pain, aching, and throbbing. Gills
told Rose his symptoms improved when he reduced his activities and when he took his


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medication. He also told Rose his pain worsened when he lifted or moved his shoulder. Rose
noted that Gills needed to see his family doctor about his left shoulder problems and that his
right shoulder problems were chronic. She then released him to return to work.
        Gills sought treatment at an emergency room on December 31, 2011. At that time, he
complained of moderate right shoulder pain that was aching and throbbing. Mitchell Barrett, an
advanced practice registered nurse, noted that Gills needed right rotator cuff surgery but that he
had not been able to have the surgery performed. Barrett specifically noted that there was no
injury or trauma related to Gills’ current problem. Barrett remarked that cool weather had flared
Gills’ pain, that Gills was suffering from acute or chronic pain, and that Gills needed to see his
orthopedic doctor for followup for a right rotator cuff repair. Gills returned to work full time at
Nebraska Machine until late January 2012, when his employment was terminated for
absenteeism.
        Gills saw Dr. Thomas J. Connelly, an orthopedic surgeon, on February 9, 2012. Connelly
reported that Gills complained of moderate right shoulder pain described as dull and achy.
Shoulder motion, elevation, rotation, and lifting all made Gills’ symptoms worse. Connelly
commented that conservative treatment had not been successful and that Gills would like to
proceed with surgery for his right rotator cuff. A preoperative history and physical was
conducted on March 13. In the history, Gills told Connelly that he injured his shoulder 3 years
prior when lifting heavy objects at work and that since that time, he had had increasing right
shoulder pain, decreased muscle strength, limited range of motion, and occasional numbness.
Gills was not able to proceed with right rotator cuff surgery because of “[i]nsurance issues.”
        On April 20, 2012, Gills again saw Rose with complaints of gradual onset of constant
episodes of moderate right shoulder pain, dull and aching, and radiating to his right upper
extremity. Gills said shoulder motion and increased activity made his symptoms worse. He told
Rose he had increased his activity around the house and that made his pain worse. He saw Rose
again on May 18 with similar complaints. Rose noted that Gills had been doing yardwork for his
parents. Gills last saw Rose on June 13, again complaining of gradual onset of constant right
shoulder pain worsened by exercise, lifting, and direct pressure.
        Dr. Sunil Bansal, a doctor of occupational medicine, reviewed some of Gills’ medical
records, examined Gills, and submitted a report in August 2012. Bansal diagnosed Gills with a
right rotator cuff tear and said the injury occurred on December 13, 2011, because of overuse
syndrome while working for Nebraska Machine. Bansal recommended surgery to repair the tear.
        Gills filed a petition in the compensation court on February 22, 2012, alleging that he
sustained a work-related injury to his right shoulder on May 5, 2011, while lifting a tub of parts
in the course of his employment with Nebraska Machine. Specifically, he alleged that he
sustained a right rotator cuff tear, and he sought disability benefits, the payment of medical
expenses, vocational rehabilitation benefits, waiting-time penalties, attorney fees, and interest. In
its answer, Nebraska Machine admitted that Gills was employed by Nebraska Machine on May
5, but generally denied the remaining allegations of Gills’ petition. Nebraska Machine also
alleged that Gills should be denied benefits because he failed to give timely notice of any alleged
injury.




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         Trial was held on September 6, 2012, and the compensation court heard testimony from
Gills and various Nebraska Machine employees and received documentary evidence offered by
the parties.
         The compensation court entered an order of dismissal on October 10, 2012. The court
first addressed Gills’ claim that he injured his right shoulder while lifting a tub on May 5, 2011.
The court reviewed Gills’ testimony about the alleged May 5 injury as well as treatment notes
from May 5, December 13, and December 31. The court noted that the medical records did not
corroborate Gills’ testimony in that there was no mention of an injury to Gills while lifting a tub.
The court found that Gills had not sustained his burden of proving he injured his right shoulder
while lifting a tub on May 5.
         The compensation court next considered whether Gills suffered an aggravation of a
preexisting condition on or about May 5, 2011, and concluded that he had not sustained his
burden of proof on this issue. The court considered evidence concerning Gills’ symptoms from
the time his rotator cuff tear was first diagnosed in 2009. The court noted that on May 5, Gills
complained to Rose that he felt an increase in his right shoulder pain with an increase in activity
while working for Nebraska Machine. However, the court also noted Rose’s notation that Gills
had been more active while doing yardwork and housework for his parents. The court found this
remark compelling because Gills had been working for Nebraska Machine since early 2011 and
did not report an increase in his right shoulder pain until he was more active while doing work
for his parents. The court then noted that Gills returned to full-time work for Nebraska Machine
and did not seek treatment again until December 13, when he reported the same pain he
experienced at the time he was first diagnosed with a torn rotator cuff, and December 31, when
his pain flared due to cool weather. The court reasoned that if the repetitive nature of his work
for Nebraska Machine was aggravating his underlying torn rotator cuff, his pain and discomfort
would have been constant and consistent while working. The court noted that Gills had reported
cool weather and increased work for his parents as triggering events for increased pain as early
as 2009 and reported increased pain from similar events after no longer working for Nebraska
Machine. The court found that the true nature of Gills’ medical condition and his need for right
shoulder medical treatment was the natural progression of his worsening torn right rotator cuff.
The court found no medical evidence that Gills sustained a new injury while working for
Nebraska Machine and found that his employment with Nebraska Machine was not a
contributing factor to his need for right shoulder medical treatment.
         Finally, the compensation court discussed Bansal’s report, which the court disregarded in
its entirety. The court determined that Bansal had not been provided a full and accurate medical
history of Gills’ torn right rotator cuff. The court noted that Bansal’s opinion that the tear
occurred in December 2011 was contradicted by the overwhelming medical evidence that Gills
tore his rotator cuff in early 2009. The court noted the parties’ stipulation that the medical issue
in this case was whether Gills sustained injuries arising out of and in the course of his
employment with Nebraska Machine on May 5, not on December 13 as found by Bansal.
         Gills subsequently perfected his appeal to this court.




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                                   ASSIGNMENT OF ERROR
       Gills asserts that the compensation court was clearly wrong in determining that his right
shoulder injury did not arise out of and in the course and scope of his employment duties on or
about May 5, 2011.
                                   STANDARD OF REVIEW
        A judgment, order, or award of the Workers’ Compensation Court may be modified,
reversed, or set aside only upon the grounds that (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.
Smith v. Mark Chrisman Trucking, 285 Neb. 826, ___ N.W.2d ___ (2013). With respect to
questions of law in workers’ compensation cases, an appellate court is obligated to make its own
determination. Id.
                                           ANALYSIS
        Gills asserts that the compensation court was clearly wrong in determining that his right
shoulder injury did not arise out of and in the course and scope of his employment duties on or
about May 5, 2011. The court found that Gills did not meet his burden to prove he injured his
right shoulder while lifting a tub on May 5. Under Neb. Rev. Stat. § 48-151(2) (Reissue 2010),
an injured worker must satisfy three elements to prove an injury is the result of an accident: (1)
The injury must be unexpected or unforeseen, (2) the accident must happen suddenly and
violently, and (3) the accident must produce at the time objective symptoms of injury. Risor v.
Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).
        Gills testified that on May 5, 2011, he hurt his right shoulder while lifting a tub and that
he informed a supervisor of the accident and injury. However, other evidence in the record does
not support Gills’ testimony. There is no accident report in Gills’ personnel file. The various
Nebraska Machine employees who testified at trial all testified that Gills never told them about
an injury on May 5. Rose’s May 5 note stated that Gills “presents for medical management of
chronic right shoulder pain related to a history of right rotator cuff tear, history of degenerative
joint disease.” As part of the visit, Rose wrote Gills a doctor’s note, stating that “Gills is
followed by our clinic for management of chronic [right] shoulder pain (rotator cuff tear). He is
prescribed opiates on an as needed basis for his pain control.” Rose’s notes from May 5 do not
mention that Gills was injured at work while lifting a tub. Gills’ next medical treatment occurred
on December 13, when he met with Rose for “pain medication management.” Then Gills visited
the emergency room on December 31 for moderate right shoulder pain. The medical record from
that visit is also devoid of mention of any work-related injury and states that “[c]ool weather has
flared pain” and that there was “no new injury or trauma.”
        In testing the sufficiency of the evidence to support the findings of fact by the Workers’
Compensation Court, the evidence must be considered in the light most favorable to the
successful party, every controverted fact must be resolved in favor of the successful party, and
the successful party will have the benefit of every inference that is reasonably deducible from the
evidence. Pearson v. Archer-Daniels-Midland Milling Co., 285 Neb. 568, 828 N.W.2d 154


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(2013). The single judge of the Workers’ Compensation Court is the sole judge of the credibility
of the witnesses and the weight to be given their testimony, even where the issue is not one of
live testimonial credibility. Id. When considering the evidence in the light most favorable to
Nebraska Machine and giving it the benefit of every inference reasonably deducible from the
evidence, Gills failed to show by a preponderance of the evidence that he suffered a compensable
accident and injury.
        The compensation court also found that Gills failed to show that his work at Nebraska
Machine aggravated his preexisting right shoulder injury. The determination of causation is,
ordinarily, a matter for the trier of fact. Vega v. Iowa Beef Processors, 270 Neb. 255, 699
N.W.2d 407 (2005). In a workers’ compensation case involving a preexisting disease or
condition, it is sufficient to show that the injury resulting from an accident arising out of and in
the course of employment and the preexisting disease or condition combined to produce
disability, or that the employment injury aggravated, accelerated, or inflamed the preexisting
condition. Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990).
The Nebraska Workers’ Compensation Act does not include recovery for “injury, disability, or
death that is the result of a natural progression of any preexisting condition.” § 48-151(4). In a
workers’ compensation case involving a preexisting condition, the claimant must prove by a
preponderance of evidence that the claimed injury or disability was caused by the claimant’s
employment and is not merely the progression of a condition present before the
employment-related incident alleged as the cause of the disability. Swanson v. Park Place
Automotive, 267 Neb. 133, 672 N.W.2d 405 (2003).
        The court in this case found that the true nature of Gills’ medical condition, and his need
for right shoulder medical treatment, was the natural progression of his worsening torn right
rotator cuff injury. In reaching this conclusion, the court rejected Bansal’s opinion that Gills had
chronic wearing of his rotator cuff from his work tasks based on Bansal’s incomplete review of
Gills’ medical records and conclusion that the injury occurred on December 31, 2011. The
Workers’ Compensation Court is not required to take an expert’s opinion as binding and may, as
may any other trier of fact, either accept or reject such an opinion. Stansbury v. HEP, Inc., 248
Neb. 706, 539 N.W.2d 28 (1995). We find no error in the trial court’s rejection of Bansal’s
opinion.
        The medical records and Gills’ own testimony support the compensation court’s
conclusion that Gills’ symptoms were a natural progression of his preexisting injury. Gills began
reporting right shoulder pain in 2003 and was diagnosed with a torn right rotator cuff in March
2009. From the time of Gills’ initial diagnosis of a torn rotator cuff in March 2009 until he began
his employment with Nebraska Machine in early 2011, he consistently and regularly sought
medical treatment for his right shoulder pain that increased in cold weather or with an increase in
activity level. Gills testified at trial that the pain he experienced within the previous 6 months fell
within the same range as his pain in 2009. The notes from Gills’ medical treatment in May and
December 2011 do not mention that his work aggravated his preexisting shoulder condition.
Rose’s notes from May 5 show that Gills’ visit was for treatment of chronic right shoulder pain
related to a history of right rotator cuff tear degenerative joint disease. The record from his
December 31 emergency room visit was for increased pain due to cool weather and not a new
injury or trauma. After his termination of employment by Nebraska Machine, Gills continued to


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complain of increased pain due to increased activity such as helping his parents around the house
and with yardwork. In his preoperative history and physical of March 13, 2012, Gills stated that
“he injured his shoulder over 3 years ago when lifting heavy objects at work and since that time
has had increasing right shoulder pain, decreased muscle strength, limited range of motion and
occasional numbness.” Three years prior to March 2012 was before Gills began work for
Nebraska Machine.
        In Mendoza v. Omaha Meat Processors, 225 Neb. 771, 782, 408 N.W.2d at 280, 287, the
Nebraska Supreme Court stated:
        “There is . . . a fine line separating aggravations from recurrences. . . .
                “In order to find that there has been an aggravation, it must be shown that the
        second episode contributed independently to the final disability. Also, there must have
        been a second ‘injury’ as that term is used in the jurisdiction. . . .
                “If the second injury takes the form merely of a recurrence of the first, and if the
        second incident does not contribute even slightly to the causation of the disabling
        condition, the insurer on the risk at the time of the original injury remains liable for the
        second. . . . This group . . . includes the kind of case in which a worker has suffered a
        back strain, followed by a period of work with continuing symptoms indicating that the
        original condition persists, and culminating in a second period of disability precipitated
        by some lift or exertion.”
Quoting 4 Arthur Larson, The Law of Workmen’s Compensation §§ 95.22 and 95.23 (1987).
        There is sufficient evidence in the record to support the trial court’s conclusion that there
was not an intervening event which aggravated Gills’ preexisting right shoulder injury. Gills
suffered a torn rotator cuff which was diagnosed in 2009, and during his work for Nebraska
Machine, he experienced the same pain and limitations as he did at the time of his rotator cuff
tear diagnosis. We find no clear error in the court’s conclusion that Gills’ symptoms are a natural
progression of the original injury.
                                          CONCLUSION
        The compensation court did not err in determining that Gills’ right shoulder injury did not
arise out of and in the course and scope of his employment duties on or about May 5, 2011.
                                                                                        AFFIRMED.




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