Misek v. CNG FINANCIAL, No. S-02-876.

CourtSupreme Court of Nebraska
Writing for the CourtMcCORMACK, J.
Citation265 Neb. 837,660 N.W.2d 495
PartiesJennifer MISEK, Appellant, v. CNG FINANCIAL, Appellee.
Decision Date02 May 2003
Docket NumberNo. S-02-876.

660 N.W.2d 495
265 Neb. 837

Jennifer MISEK, Appellant,
v.
CNG FINANCIAL, Appellee

No. S-02-876.

Supreme Court of Nebraska.

May 2, 2003.


660 N.W.2d 498
Casey J. Quinn, Omaha, for appellant

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

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

McCORMACK, J.

NATURE OF CASE

The sole issue presented in this appeal is whether an injury sustained by the appellant, Jennifer Misek, arose out of and in the course of her employment. A Nebraska Workers' Compensation Court trial judge determined that Misek's injury arose out of and in the course of her employment and awarded Misek benefits. A review panel of the compensation court reversed the award of the trial judge. We reverse the decision of the review panel and remand the cause with directions.

BACKGROUND

Misek was employed by "Check `n Go," which was owned by CNG Financial. Her job duties included assisting customers at the front counter, answering telephones, photocopying and faxing documents, and running errands to the post office or bank. With no soft drinks available onsite, Misek would also occasionally leave to get soft drinks for herself and her coworkers, sometimes at her own request and sometimes at the request of her supervisor. Misek was not required to "clock out" in order to run these errands and was paid for her time.

Check `n Go had no formal break policy in place. Misek testified that any break she took had to be approved by her supervisor and that she had never been told she could not take a break. Misek would not usually tell her supervisor precisely what she would be doing on her break. She also testified that she generally did not leave "the area" during her breaks.

While working at Check `n Go on August 25, 2000, Misek asked her supervisor if she could go to a nearby convenience store and get a soft drink. Her supervisor said yes. Misek then asked her supervisor and coworker if they would like something from the convenience store as well. Each accepted the offer and gave money to Misek to buy them soft drinks. Misek exited out the back door of Check `n Go, crossed a driveway, and started walking down a grassy hill. About halfway down the hill, Misek slipped, fell, and broke her left ankle.

Misek filed a petition in the compensation court seeking compensation for her injury. A trial judge of the court entered an award in which the judge concluded that Misek's injury arose out of and in the

660 N.W.2d 499
course of her employment. The judge found
[Misek]'s attempt to obtain soft drinks for herself, her supervisor and co-worker during a work break were matters of personal convenience and comfort not in conflict with her supervisors specific instructions that [Misek] would normally be expected to indulge in under the conditions of [Misek]'s work and that there was sufficient control exercised by [Misek]'s supervisor in acquising [sic] to [Misek]'s request to obtain soft drinks for the supervisor and all employees and as such the act arose out of and was within the course and scope of employment and compensable.

CNG Financial filed an application for review, seeking review of the trial judge's award by a review panel of the compensation court. CNG Financial claimed that the trial judge erred in (1) finding that Misek's injury arose out of and in the course of her employment, (2) determining that CNG Financial exercised no scrutiny of Misek's break activities, and (3) extending the rule of law regarding acts of personal comfort and convenience to activities which occurred off-premises and during a break period.

In a two-to-one decision, the review panel of the compensation court reversed the trial judge's award. The review panel noted that this court has consistently held that injuries which occur off the premises of the employer are generally not compensable, citing La Croix v. Omaha Public Schools, 254 Neb. 1014, 582 N.W.2d 283 (1998), and Johnson v. Holdrege Med. Clinic, 249 Neb. 77, 541 N.W.2d 399 (1996), while injuries occurring on the employer's premises are generally found to be compensable simply because of the situs of the injury, citing Thomsen v. Sears Roebuck & Co., 192 Neb. 236, 219 N.W.2d 746 (1974). Applying these decisions, the review panel found that no recovery was possible where Misek was injured off CNG Financial's premises and where CNG Financial had no means to exercise control over Misek's actions while she was gone. The review panel also found that the trial judge's reliance on the doctrine of matters of personal convenience and comfort was misplaced. The review panel concluded that

the trial court erred in its conclusion that [Misek]'s injury occurred while she was in the "course" of her employment with [CNG Financial]. A finding that an injury "arose out of" risks reasonably necessary or incident to the performance of [Misek]'s work is not sufficient in and of itself to sustain an award.

The dissenting judge on the review panel found that the cases cited by the majority were inapplicable to Misek's case and relied on several factually...

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13 practice notes
  • Dawes v. Wittrock Sandblasting & Painting, No. S-02-889.
    • United States
    • Supreme Court of Nebraska
    • 1 Agosto 2003
    ...judgment, or award; or (4) the findings of fact by the compensation court did not support the order or award. Misek v. CNG Financial, 265 Neb. 837, 660 N.W.2d 495 (2003). In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review pan......
  • Zoucha v. Touch of Class Lounge, No. S-03-971.
    • United States
    • Supreme Court of Nebraska
    • 14 Enero 2005
    ...space boundaries of the employment, and in the course of an activity whose purpose is related to the employment. Misek v. CNG Financial, 265 Neb. 837, 660 N.W.2d 495 (2003). An injury is said to arise in the course of the employment when it takes place within the period of the employment, a......
  • Armstrong v. Watkins Concrete Block, No. A-04-026.
    • United States
    • Court of Appeals of Nebraska
    • 17 Agosto 2004
    ...judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Misek v. CNG Financial, 265 Neb. 837, 660 N.W.2d 495 (2003). An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. McG......
  • Tomlin v. Densberger Drywall Inc., No. A-05-284.
    • United States
    • Supreme Court of Nebraska
    • 6 Diciembre 2005
    ...(2005). "The `arising out of' employment requirement is primarily concerned with causation of Page 605 an injury." Misek v. CNG Financial, 265 Neb. 837, 842, 660 N.W.2d 495, 500 In finding that Tomlin's injury was caused by or "arose out of" his employment with Densberger, the trial court r......
  • Request a trial to view additional results
13 cases
  • Dawes v. Wittrock Sandblasting & Painting, No. S-02-889.
    • United States
    • Supreme Court of Nebraska
    • 1 Agosto 2003
    ...judgment, or award; or (4) the findings of fact by the compensation court did not support the order or award. Misek v. CNG Financial, 265 Neb. 837, 660 N.W.2d 495 (2003). In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review pan......
  • Zoucha v. Touch of Class Lounge, No. S-03-971.
    • United States
    • Supreme Court of Nebraska
    • 14 Enero 2005
    ...space boundaries of the employment, and in the course of an activity whose purpose is related to the employment. Misek v. CNG Financial, 265 Neb. 837, 660 N.W.2d 495 (2003). An injury is said to arise in the course of the employment when it takes place within the period of the employment, a......
  • Armstrong v. Watkins Concrete Block, No. A-04-026.
    • United States
    • Court of Appeals of Nebraska
    • 17 Agosto 2004
    ...judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Misek v. CNG Financial, 265 Neb. 837, 660 N.W.2d 495 (2003). An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. McG......
  • Tomlin v. Densberger Drywall Inc., No. A-05-284.
    • United States
    • Supreme Court of Nebraska
    • 6 Diciembre 2005
    ...(2005). "The `arising out of' employment requirement is primarily concerned with causation of Page 605 an injury." Misek v. CNG Financial, 265 Neb. 837, 842, 660 N.W.2d 495, 500 In finding that Tomlin's injury was caused by or "arose out of" his employment with Densberger, the trial court r......
  • Request a trial to view additional results

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