Gebhard v. Dixie Carbonic, No. S-00-820.

CourtSupreme Court of Nebraska
Writing for the CourtGERRARD, J.
Citation261 Neb. 715,625 N.W.2d 207
PartiesRayma GEBHARD, Appellant, v. DIXIE CARBONIC, Appellee.
Decision Date04 May 2001
Docket NumberNo. S-00-820.

625 N.W.2d 207
261 Neb. 715

Rayma GEBHARD, Appellant,
v.
DIXIE CARBONIC, Appellee

No. S-00-820.

Supreme Court of Nebraska.

May 4, 2001.


625 N.W.2d 209
Martin V. Linscott, of Harris Law Offices, Lincoln, for appellant

Joseph W. Grant, of Gaines, Pansing & Hogan, Omaha, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

We are presented in this case with the issue whether a person is an employee for purposes of the Nebraska Workers' Compensation Act when that person is injured during a pre-employment physical examination.

FACTS

In October 1998, Rayma Gebhard responded to an advertisement in the newspaper for a position as a laborer working on the line at Dixie Carbonic in Beatrice, Nebraska. Gebhard testified that she spoke with a manager at Dixie Carbonic about potential employment with the company. The Workers' Compensation Court found, and Gebhard agrees, that Gebhard was given a conditional offer of employment by Dixie Carbonic. The conditions precedent to her employment were that Gebhard would need to pass a drug test, pass a lower back physical examination, and complete a job orientation.

After Gebhard passed the required drug test, Gebhard went to Madonna Rehabilitation Hospital in Lincoln for the physical examination on November 2, 1998. Gebhard testified that after several other physical tests, she was asked to lift some weighted boxes. Gebhard said that during these tests, she was asked to lift a box weighing 60 pounds from a shelf at approximately waist level to approximately shoulder height. Gebhard testified that on her first attempt at lifting the box, she lifted the box one-half foot, felt something pull in her lower back, and dropped the box onto the counter. Gebhard did not tell the therapist administering the test that she was experiencing pain, and Gebhard said that the therapist told her that she had not passed the physical examination.

Gebhard continued to experience pain in her back, and she eventually filed a petition in the Workers' Compensation Court seeking a determination of benefits. After a hearing, the single judge determined that Gebhard had not passed the physical examination because she had failed to lift the 60-pound box. The single judge then noted that Dixie Carbonic did not hire Gebhard because she failed to pass the physical examination and was therefore unable to do the job. Before addressing Gebhard's claim that she suffered an injury during the physical examination, the court addressed the issue whether Gebhard was an employee at the time of the physical examination for purposes of the Nebraska Workers' Compensation Act.

Initially, the single judge noted that Gebhard was not on Dixie Carbonic's payroll at the time she participated in the physical examination and that Gebhard would not have been on the payroll until she satisfied all three conditions necessary to obtain employment with Dixie Carbonic. The court then went on to reason that

[i]n order to be an employee, the employee must be in the service of the employer. In order to be in the service of the employer, the employee must be hired. Passing a drug test and passing a physical or low back screen are conditions precedent to the employment [in this case]. If [Gebhard] did not pass the drug screen, she is not employed. If [Gebhard] cannot pass the physical, she is not employed.

625 N.W.2d 210
The single judge concluded that Gebhard was not an employee of Dixie Carbonic when she took the physical examination and, therefore, dismissed Gebhard's claim

Gebhard appealed to a Workers' Compensation Court review panel, which affirmed the single judge's determination without a detailed opinion. Gebhard appealed, and we moved the case to our docket pursuant to our authority to regulate the dockets of the appellate courts.

ASSIGNMENTS OF ERROR

Gebhard assigns, restated, that the Workers' Compensation Court erred in (1) finding that she was not a covered employee under the Nebraska Workers' Compensation Act at the time of her physical examination and (2) failing to provide the parties with a reasoned decision as to the occurrence of an injury and as to the entitlement of temporary total disability.

STANDARD OF REVIEW

Under the provisions of Neb. Rev.Stat. § 48-185 (Cum.Supp.2000), an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (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. Fay v. Dowding, Dowding, 261 Neb. 216, 623 N.W.2d 287 (2001). In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of fact of the single judge who conducted the original hearing; the findings of fact of the single judge will not be disturbed on appeal unless clearly wrong. Id. An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Id.

ANALYSIS

In the case at bar, Gebhard urges us to adopt a rule that would make injuries which occur during a prehiring physical examination compensable under the Nebraska Workers'...

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8 practice notes
  • Foote v. O'Neill Packing, No. S-00-492.
    • United States
    • Supreme Court of Nebraska
    • August 17, 2001
    ...court is obligated in workers' compensation cases to make its own determinations as to questions of law. Gebhard v. Dixie Carbonic, 261 Neb. 715, 625 N.W.2d 207 ANALYSIS In Snipes v. Vickers, supra, we interpreted § 48-137, which provides in relevant part: In case of personal injury, all cl......
  • Torres v. Aulick Leasing, Inc., No. S-00-1187.
    • United States
    • Supreme Court of Nebraska
    • June 15, 2001
    ...the findings of fact by the compensation 628 N.W.2d 218 court do not support the order or award. Gebhard v. Dixie Carbonic, ante p. 715, 625 N.W.2d 207 (2001); Hagelstein v. Swift-Eckrich, ante p. 305, 622 N.W.2d 663 (2001). Upon appellate review, the findings of fact made by the trial judg......
  • Sherring v. Indus. Comm'n of Ariz., No. 2 CA-IC 2017-0011
    • United States
    • Court of Appeals of Arizona
    • August 9, 2018
    ...compensable in other jurisdictions. Id., 100 Cal.Rptr. 377, 494 P.2d at 7-9.¶ 12 In response, the City cites Gebhard v. Dixie Carbonic , 261 Neb. 715, 625 N.W.2d 207, 210 (2001), in which Nebraska’s supreme court declined "to adopt a rule that would make injuries [that] occur during a ......
  • Thornton v. Grand Island Contract Carriers, No. S-00-887.
    • United States
    • Supreme Court of Nebraska
    • October 26, 2001
    ...court is obligated in workers' compensation cases to make its own determinations as to questions of law. Gebhard v. Dixie Carbonic, 261 Neb. 715, 625 N.W.2d 207 ANALYSIS In the recent case of Foote v. O'Neill Packing, supra, we were called upon to resolve two questions: (1) whether the comp......
  • Request a trial to view additional results
8 cases
  • Foote v. O'Neill Packing, No. S-00-492.
    • United States
    • Supreme Court of Nebraska
    • August 17, 2001
    ...court is obligated in workers' compensation cases to make its own determinations as to questions of law. Gebhard v. Dixie Carbonic, 261 Neb. 715, 625 N.W.2d 207 ANALYSIS In Snipes v. Vickers, supra, we interpreted § 48-137, which provides in relevant part: In case of personal injury, all cl......
  • Torres v. Aulick Leasing, Inc., No. S-00-1187.
    • United States
    • Supreme Court of Nebraska
    • June 15, 2001
    ...the findings of fact by the compensation 628 N.W.2d 218 court do not support the order or award. Gebhard v. Dixie Carbonic, ante p. 715, 625 N.W.2d 207 (2001); Hagelstein v. Swift-Eckrich, ante p. 305, 622 N.W.2d 663 (2001). Upon appellate review, the findings of fact made by the trial judg......
  • Sherring v. Indus. Comm'n of Ariz., No. 2 CA-IC 2017-0011
    • United States
    • Court of Appeals of Arizona
    • August 9, 2018
    ...compensable in other jurisdictions. Id., 100 Cal.Rptr. 377, 494 P.2d at 7-9.¶ 12 In response, the City cites Gebhard v. Dixie Carbonic , 261 Neb. 715, 625 N.W.2d 207, 210 (2001), in which Nebraska’s supreme court declined "to adopt a rule that would make injuries [that] occur during a prehi......
  • Thornton v. Grand Island Contract Carriers, No. S-00-887.
    • United States
    • Supreme Court of Nebraska
    • October 26, 2001
    ...court is obligated in workers' compensation cases to make its own determinations as to questions of law. Gebhard v. Dixie Carbonic, 261 Neb. 715, 625 N.W.2d 207 ANALYSIS In the recent case of Foote v. O'Neill Packing, supra, we were called upon to resolve two questions: (1) whether the comp......
  • Request a trial to view additional results

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