Logsdon v. ISCO CO., S-00-035.

Citation260 Neb. 624,618 N.W.2d 667
Decision Date27 October 2000
Docket NumberNo. S-00-035.,S-00-035.
PartiesJames LOGSDON, appellant, v. ISCO COMPANY and American Motorist Insurance Company, appellees.
CourtSupreme Court of Nebraska

Elizabeth A. Govaerts, of Vincent M. Powers & Associates, for appellant.

Walter E. Zink II and Darla S. Ideus, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellees.

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

GERRARD, J.

NATURE OF CASE

James Logsdon, the appellant, was injured at his workplace when he fell while walking during a morning break. The cause of Logsdon's fall is unknown. This case presents the question whether unexplained falls in the course of employment are compensable under the Nebraska Workers' Compensation Act.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of his accident, Logsdon had been employed by ISCO Company (ISCO), the appellee, for 14 years as a prototype machinist. On the morning of June 20, 1997, Logsdon was walking around the periphery of the ISCO building during his morning break. ISCO encouraged its employees to walk to keep them healthy and alert.

While Logsdon was walking, there were some people walking behind him with whom Logsdon was acquainted. Logsdon testified, "I turned around to talk to them; next thing I knew, I was in the ambulance. I don't even remember falling. It's not even in my memory." The record contains no other evidence indicating how or why Logsdon fell. Logsdon suffered a fractured skull and associated complications. He has completely recovered from those injuries except for a degree of permanent hearing loss.

Logsdon filed a petition in the Workers' Compensation Court seeking a determination of benefits. The single judge found that Logsdon's injury was compensable and awarded him benefits. The review panel reversed the judgment of the single judge and ordered that Logsdon's petition be dismissed, determining, based upon this court's decision in Cochran v. Bellevue Bridge Commission, 174 Neb. 761, 119 N.W.2d 292 (1963), that unexplained falls were purportedly not compensable in Nebraska. Logsdon perfected this appeal, and we subsequently granted Logsdon's petition to bypass the Nebraska Court of Appeals.

ASSIGNMENT OF ERROR

Logsdon assigns that the review panel erred in holding that injuries sustained in an unexplained fall occurring within the scope and course of employment were not compensable under the Nebraska Workers' Compensation Act.

STANDARD OF REVIEW

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 did not support the order or award. Ramsey v. State, 259 Neb. 176, 609 N.W.2d 18 (2000); Owen v. American Hydraulics, 258 Neb. 881, 606 N.W.2d 470 (2000). 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. See, Bottolfson v. Bag `N Save, 259 Neb. 124, 608 N.W.2d 171 (2000); Zessin v. Shanahan Mechanical & Elec., 251 Neb. 651, 558 N.W.2d 564 (1997). An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Bottolfson v. Bag `N Save, supra.

ANALYSIS

Neb.Rev.Stat. § 48-101 (Reissue 1998) compensates injury caused an employee by an accident arising out of and in the course of his or her employment. Torres v. Aulick Leasing, 258 Neb. 859, 606 N.W.2d 98 (2000). In a workers' compensation case, the plaintiff must establish by a preponderance of the evidence that the injury for which an award is sought arose out of and in the course of employment. Owen v. American Hydraulics, supra; Frank v. A & L Insulation,

256 Neb. 898, 594 N.W.2d 586 (1999).

The two phrases "arising out of" and "in the course of" in § 48-101 are conjunctive; in order to recover, a claimant must establish by a preponderance of the evidence that both conditions exist. Cox v. Fagen Inc., 249 Neb. 677, 545 N.W.2d 80 (1996). The phrase "arising out of," as used in § 48-101, describes the accident and its origin, cause, and character, i.e., whether it resulted from the risks arising within the scope of the employee's job; the phrase "in the course of," as used in § 48-101, refers to the time, place, and circumstances surrounding the accident. Cox v. Fagen Inc., supra.

There is no factual dispute in the instant case; the single judge found, and the parties agree, that the cause of Logsdon's fall is unexplained. Similarly, ISCO does not contest that Logsdon was "in the course of" his employment, within the meaning of § 48-101, at the time of his accident. Thus, the question for this court is whether an unexplained fall, in the course of employment, is "arising out of" the employment within the meaning of § 48-101. In making this determination, we note that the terms of the Nebraska Workers' Compensation Act are to be broadly construed to accomplish the beneficent purpose of the act. See Miller v. E.M.C. Ins. Cos., 259 Neb. 433, 610 N.W.2d 398 (2000).

All risks causing injury to an employee can be placed within three categories: (1) employment related—risks distinctly associated with the employment; (2) personal—risks personal to the claimant, e.g., idiopathic causes; and (3) neutral —a risk that is neither distinctly associated with the employment nor personal to the claimant. See, Monahan v. United States Check Book Co., 4 Neb.App. 227, 540 N.W.2d 380 (1995); 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 4.00 (2000). Harm that arises from risks distinctly associated with the employment is universally compensable. See id. Harm that can be attributed to personal or idiopathic causes is universally noncompensable. See id. It is within the neutral category that most controversy in modern compensation law occurs. 1 Larson & Larson, supra. In Nebraska, harm that arises from neutral risks (a risk having no particular employment or personal character) is generally compensable. See Monahan v. United States Check Book Co., supra,

citing Nippert v. Shinn Farm Constr. Co., 223 Neb. 236, 388 N.W.2d 820 (1986). See, also, Nunn v. Texaco Trading & Transp., 3 Neb.App. 101, 523 N.W.2d 705 (1994).

The main issue presented here is whether an injury without an explanation is a compensable neutral injury. Courts have taken three approaches in addressing the "arising out of" element in unexplained-fall cases. One approach requires the worker to rule out idiopathic causes for the fall, and if he or she carries that burden, an inference arises that the fall arose out of the employment. See, e.g., Phil A. Livesley Co. v. Russ, 296 Or. 25, 672 P.2d 337 (1983).

A second approach places the burden on the employee to show a causal connection between the injury and the employment. This is the most difficult burden of causation for an employee to meet, and benefits will be denied where a causal connection is not established. See, e.g., Brickson v. ILHR Department, 40 Wis.2d 694, 162 N.W.2d 600 (1968). A third approach, which appears to be the majority approach in unexplained-fall cases, employs the positional risk doctrine. See, e.g., Circle K Store No. 1131 v. Indus. Com'n, 165 Ariz. 91, 796 P.2d 893 (1990). Under this doctrine, an employee's injuries are compensable as long as employment duties put the employee in a position that the employee might not otherwise be in which exposes the employee to a risk, even though the risk is not greater than that of the general public. Id.

We have, in fact, adopted the positional risk doctrine in the context of injuries arising from neutral risks. In Nippert v. Shinn Farm Constr. Co., supra,

the plaintiff was injured when the construction site at which he was employed was struck by a tornado. In determining that the plaintiff's injuries were compensable, this court overruled McGinn v. Douglas County Social Services Admin., 211 Neb. 72, 317 N.W.2d 764 (1982), and adopted the positional risk doctrine. See Nippert v. Shinn Farm Constr. Co., supra. Prior to Nippert, Nebraska courts used the "increased risk" test to determine when an injury arose out of the employment. See McGinn v. Douglas County Social Services Admin., supra. The "increased risk" test focuses on whether a claimant's work increased the risk of injury. It is a quantitative determination that asks whether the claimant was more exposed to the risk than was the general public. See Crow v. The Americana Crop Hail Pool, Inc., 176 Neb. 260, 125 N.W.2d 691 (1964),

overruled, Nippert v. Shinn Farm Constr. Co., supra.

In rejecting the "increased risk" test, we reasoned:

"`[W]hen one in the course of his [or her] employment is reasonably required to be at a particular place at a particular time and there meets with an accident, although one which any other person then and there present would have met with irrespective of his [or her] employment, that accident is one "arising out of" the employment of the person so injured.'"

Nippert v. Shinn Farm Constr. Co., 223 Neb. 236, 238-39, 388 N.W.2d 820, 822 (1986). This but-for reasoning is the foundation of the positional risk doctrine. Under this doctrine, a claimant is not required to rule out idiopathic causes, i.e., preexisting infirmities. The positional risk doctrine has been adopted by many jurisdictions based on the principle that employees who are on the job and performing duties for their employers should be compensated for injuries occurring in the course thereof.

The positional risk doctrine further proceeds on the...

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