Parks v. Marsden Bldg. Maint., L.L.C., No. A–11–610.

CourtCourt of Appeals of Nebraska
Writing for the CourtINBODY
Citation811 N.W.2d 306,19 Neb.App. 762
Decision Date17 April 2012
Docket NumberNo. A–11–610.
PartiesGill L. PARKS, appellee, v. MARSDEN BLDG. MAINTENANCE, L.L.C., and Zurich American, appellants.

19 Neb.App. 762
811 N.W.2d 306

Gill L. PARKS, appellee,
v.
MARSDEN BLDG.
MAINTENANCE, L.L.C., and Zurich American, appellants.

No. A–11–610.

Court of Appeals of Nebraska.

April 17, 2012.


[811 N.W.2d 308]

Syllabus by the Court

[19 Neb.App. 762] 1. Workers' Compensation: Appeal and Error. A judgment, order, or award of the 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.

2. Workers' Compensation: Appeal and Error. 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 finding of the trial judge

[811 N.W.2d 309]

who conducted the original hearing; the findings of fact of the trial judge will not be disturbed on appeal unless clearly wrong.

3. Workers' Compensation: Appeal and Error. With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination.

4. Workers' Compensation: Negligence. When a personal injury is caused to an employee by accident or occupational disease, arising out of and in the course of his or her employment, such employee shall receive compensation therefor from his or her employer if the employee was not willfully negligent at the time of receiving such injury.

5. Workers' Compensation: Proof. The two phrases “arising out of” and “in the course of” in Neb.Rev.Stat. § 48–101 (Reissue 2010) are conjunctive; in order to recover, a claimant must establish by a preponderance of the evidence that both conditions exist.

6. Workers' Compensation: Words and Phrases. The phrase “arising out of,” as used in Neb.Rev.Stat. § 48–101 (Reissue 2010), 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.

7. Workers' Compensation: Trial. Whether an injury is caused by a work-related accident for workers' compensation purposes is a question of fact.

8. Workers' Compensation: Witnesses. As the trier of fact, the Workers' Compensation Court is the sole judge of the credibility of witnesses and the weight to be given their testimony.

9. Workers' Compensation. The test to determine whether an act or conduct of an employee which is not a direct performance of the employee's work “arises out of” his or her employment is whether the act is reasonably incident thereto, or is so substantial a deviation as to constitute a break in the employment which creates a formidable independent hazard.

[19 Neb.App. 763] 10. Workers' Compensation. The “arising out of” employment requirement of Neb.Rev.Stat. § 48–101 (Reissue 2010) is primarily concerned with causation of an injury.

11. Workers' Compensation. All acts reasonably necessary or incident to the performance of the work, including such matters of personal convenience and comfort, not in conflict with specific instructions, as an employee may normally be expected to indulge in, under the conditions of his or her work, are regarded as being within the scope or sphere of the employment.

12. Workers' Compensation: Words and Phrases. The “in the course of” requirement of Neb.Rev.Stat. § 48–101 (Reissue 2010) has been defined as testing the work connection as to time, place, and activity; that is, it demands that the injury be shown to have arisen within the time and space boundaries of the employment, and in the course of an activity whose purpose is related to the employment.

13. Workers' Compensation: Words and Phrases. An injury is said to arise in the course of the employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.

[811 N.W.2d 310]

Justin K. Burroughs and Jason A. Kidd, of Engles, Ketcham, Olson & Keith, P.C., Omaha, for appellants.

Harry A. Hoch III and Ronald E. Frank, of Sodoro, Daly & Sodoro, P.C., Omaha, for appellee.

INBODY, Chief Judge, and MOORE and PIRTLE, Judges.

INBODY, Chief Judge.

I. INTRODUCTION

Marsden Bldg. Maintenance, L.L.C., and its workers' compensation insurer, Zurich American (collectively Marsden), appeal the order of the Workers' Compensation Court review panel affirming the trial court's award of benefits to Gill L. Parks. Pursuant to this court's authority under Neb. Ct. R.App. P. § 2–111(B)(1) (rev.2008), this case was ordered submitted without oral argument. For the following reasons, we affirm.

II. STATEMENT OF FACTS

In 2009, Parks was employed by two separate employers at two different jobs. Parks was employed by the State of Nebraska as a communications technician or specialist, [19 Neb.App. 764] installing computers and telephones and running cables through drop ceilings. Parks' hours with the State were from 6 a.m. to 3 p.m. Parks was also employed by Marsden as a janitorial supervisor and worked from 4 p.m. to midnight. Parks was assigned by Marsden to the Dex building located at 94th and Dodge Streets and the Omaha Public Power District (OPPD) building located at 114th and Dodge Streets, both in Omaha, Douglas County, Nebraska. As a supervisor, Parks' duties at the Dex building consisted of inspecting the building, cleaning the first and second floors of the building, cleaning the stairwells, and assisting in the cleaning of the fifth floor. Additionally, Parks would clean empty suites in the building whenever necessary.

Generally, Parks reported to the Dex building at 4 p.m. At that time of the day, a door on the south side of the building was open and required no key or access card. However, Parks' supplies were located in a cleaning cabinet in a janitor's closet on the first floor, each of which required a key for entry. The cabinet also contained a pouch with two access cards issued by the building's landlord with codes to track the specific cardholder. The access card was also necessary to gain access to the building after 6 p.m., when the building was locked entirely, and to gain access to the suites in the building. Parks wore his identification badge on a lanyard around his neck with his access card also attached.

On March 11, 2009, Parks traveled to Marsden's office on 72d Street and Mercy Road to pick up cleaning rags for the Dex building. Upon his arrival at the Dex building, Parks clocked in at 4 p.m. Parks went to the janitor's closet, where he realized that he had left his lanyard with his identification badge and access card at his home. Parks locked the closet and left the building to return home to retrieve those items. On his way back to the Dex building, Parks was involved in a serious motor vehicle accident which required the use of the “Jaws of Life” to extricate him from the vehicle. Parks sustained a traumatic brain injury, spinous process fractures of the T7 through T11 vertebrae, a ruptured spleen, a leftside pneumothorax, and multiple rib fractures. At a hospital, Parks underwent a splenectomy, an exploratory laparotomy, [19 Neb.App. 765] and placement of a left-side tube thoracostomy. On March 31, Parks was discharged from the hospital and transferred to a rehabilitation center, where he remained until April 14. Parks

[811 N.W.2d 311]

was eventually terminated from Marsden after being placed on leave and not being able to return by the end of his leave date.

On July 6, 2009, Parks filed a petition in the Workers' Compensation Court alleging that he sustained the above-described injuries in an accident arising out of and in the course of his employment with Marsden. Marsden filed an answer denying the allegations and claiming that Parks was not in the course or scope of his employment at the time of the accident.

Prior to trial, the parties agreed that the sole issue at trial would be whether the automobile accident arose out of and occurred in the course and scope of Parks' employment and that after the trial court had reached its decision regarding that issue, a second hearing would be held to determine the remainder of the issues, if necessary. We will set out the testimony given at both hearings together. As a side note, substantial testimony was given at trial regarding the pass, access, or swipe cards and, to avoid any confusion, we shall refer to those cards hereinafter as “access cards.”

Parks testified that at the time of trial, he was 53 years old and had graduated from high school, but had no college degree. Parks explained that he had been employed as a communications technician for the State for 30 years, working full time at a rate of $16 per hour. Parks had also worked for Marsden for 5 years. Parks testified that he worked approximately 20 hours a week for Marsden during the first 4 years and eventually shifted into a full-time position working approximately 40 hours a week. Prior to this position with Marsden, Parks worked for other building maintenance companies.

Parks testified that, with Marsden, he would first go to the Dex building and complete his tasks, and then would drive to the OPPD building and complete his tasks there. Parks supervised one other individual at the Dex building, but did not supervise anyone at the OPPD building. Parks testified that his schedule with Marsden was 4 p.m. to midnight, Monday [19 Neb.App. 766] through Friday. Parks explained that on many occasions, he would work longer than 8 hours for Marsden but was always paid for only 8 hours a day. Timekeeping reports from dates prior to the accident indicate that Parks regularly clocked in for work at 4 p.m. at...

To continue reading

Request your trial
5 practice notes
  • Webber v. Webber, No. A-18-993.
    • United States
    • Court of Appeals of Nebraska
    • 5 Mayo 2020
    ...were encouraged to jog or walk while attending the course; injury arose out of employment); Parks v. Marsden Bldg. Maintenance , 19 Neb. App. 762, 811 N.W.2d 306 (2012) (employee thought traveling to his home to retrieve building access card was necessity arising from his employment; that d......
  • State v. Ross, No. S–11–093.
    • United States
    • Supreme Court of Nebraska
    • 26 Abril 2012
    ...live rounds found near the Impala. Rivera's testimony negated an inference that the ammunition holder and live rounds belonged to him. [811 N.W.2d 306] In his statement to police, Ross said that he told persons at the North 14th Avenue and Pinkney Street location that he needed help because......
  • Harris v. Iowa Tanklines, Inc., No. A–12–354.
    • United States
    • Court of Appeals of Nebraska
    • 5 Febrero 2013
    ...or award; or (4) the findings of fact by the compensation court do not support the order or award. Parks v. Marsden Bldg. Maintenance, 19 Neb.App. 762, 811 N.W.2d 306 (2012). In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review......
  • Loarca v. Cargill Meat Solutions Corp., No. A-12-137
    • United States
    • Court of Appeals of Nebraska
    • 21 Agosto 2012
    ...or award; or (4) the findings of fact by the compensation court do not support the order or award. Parks v. Marsden Bldg. Maintenance, 19 Neb. App. 762, 811 N.W.2d 306 (2012). In determining whether to affirm, modify, reverse, or set aside a judgment of the compensation court, an appellate ......
  • Request a trial to view additional results
5 cases
  • Webber v. Webber, No. A-18-993.
    • United States
    • Court of Appeals of Nebraska
    • 5 Mayo 2020
    ...were encouraged to jog or walk while attending the course; injury arose out of employment); Parks v. Marsden Bldg. Maintenance , 19 Neb. App. 762, 811 N.W.2d 306 (2012) (employee thought traveling to his home to retrieve building access card was necessity arising from his employment; that d......
  • State v. Ross, No. S–11–093.
    • United States
    • Supreme Court of Nebraska
    • 26 Abril 2012
    ...live rounds found near the Impala. Rivera's testimony negated an inference that the ammunition holder and live rounds belonged to him. [811 N.W.2d 306] In his statement to police, Ross said that he told persons at the North 14th Avenue and Pinkney Street location that he needed help because......
  • Harris v. Iowa Tanklines, Inc., No. A–12–354.
    • United States
    • Court of Appeals of Nebraska
    • 5 Febrero 2013
    ...or award; or (4) the findings of fact by the compensation court do not support the order or award. Parks v. Marsden Bldg. Maintenance, 19 Neb.App. 762, 811 N.W.2d 306 (2012). In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review......
  • Loarca v. Cargill Meat Solutions Corp., No. A-12-137
    • United States
    • Court of Appeals of Nebraska
    • 21 Agosto 2012
    ...or award; or (4) the findings of fact by the compensation court do not support the order or award. Parks v. Marsden Bldg. Maintenance, 19 Neb. App. 762, 811 N.W.2d 306 (2012). In determining whether to affirm, modify, reverse, or set aside a judgment of the compensation court, an appellate ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT