Zach v. Nebraska State Patrol, S-05-449.

• Decision Date: 02 February 2007
• Docket Number: No. S-05-449.,S-05-449.
• Citation: 273 Neb. 1,727 N.W.2d 206
• Parties: Loree ZACH et al., Appellees, v. NEBRASKA STATE PATROL, Appellant.
• Court: Nebraska Supreme Court

727 N.W.2d 206

273 Neb. 1

Loree ZACH et al., Appellees, v. NEBRASKA STATE PATROL, Appellant.

No. S-05-449.

Supreme Court of Nebraska.

February 2, 2007.

Jon Bruning, Attorney General, and Lisa D. Martin-Price, Lincoln, for appellant.

Terry M. Anderson and Steven M. Lathrop, of Hauptman, O'Brien, Wolf & Lathrop, P.C., Omaha, for appellees.

Jeffry D. Patterson, of Bartle & Geier Law Firm, Lincoln, for amicus curiae Nebraska Association of Trial Attorneys.

Dallas D. Jones and Jenny L. Panko, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for amici curiae Crete Carrier Corporation et al.

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

STEPHAN, J.

The issue presented in this appeal is whether a work-related injury caused by a mental stimulus is compensable under the Nebraska Workers' Compensation Act, Neb.Rev.Stat. §§ 48-101 to 48-1,117 (Reissue 1998 & Cum. Supp. 2002). Based upon long-established precedent, we conclude that it is not.

BACKGROUND

Trooper Mark Zach of the Nebraska State Patrol died on September 27, 2002, as the result of a self-inflicted gunshot wound. His surviving spouse and children, whom we shall refer to as "claimants," brought this action for death benefits under the Nebraska Workers' Compensation Act. Claimants alleged that while on patrol in Madison County, Nebraska, approximately 2 weeks prior to his death, Zach stopped several persons and discovered that one of them was armed with a pistol. Zach communicated the serial number of the weapon to a dispatcher, but due to a miscommunication or error, the weapon was not at that time identified as stolen. Claimants alleged that the weapon and two of the individuals stopped by Zach were subsequently involved in a bank robbery in Norfolk, Nebraska, which resulted in multiple fatalities. Claimants alleged that on the day following the robbery, Zach was advised by State Patrol officials that two of the persons he had stopped were involved in the bank robbery; that weapons taken during a previous burglary were used in the robbery; and that due to a miscommunication at the time of the stop, there had been a failure to identify the pistol used in the robbery as one of the weapons involved in the previous burglary. Claimants alleged that upon learning this, Zach felt responsible and became very distraught. In support of their claim for workers' compensation benefits, claimants alleged:

6. [Claimants'] decedent suffered an "accident" resulting in a "personal injury" inasmuch as the sudden stimulus (i.e., being advised of the consequences of an error) caused Zach's brain to undergo physical changes which, in turn, led Zach to a state of mind which over-road [sic] his will to the extent that even knowledge of the consequences of the act of suicide did not prevent Zach from taking his own life.

7. That [claimants'] decedent suffered an "occupational disease" inasmuch as the exposure to the stress of his employment resulted in an identifiable mental disease which disease, in turn, led Zach to a state of mind which overrode his will to the extent that even knowledge of the consequences of the act of suicide did not prevent Zach from taking his own life; that the stress put upon Zach which led to his mental disease is due to causes and conditions which are characteristic of and peculiar to law enforcement inasmuch as law enforcement officers are repeatedly charged with the community's safety, repeatedly exposed to stressful situations and suffer a peculiar and extreme degree of stress when faced with the fatal consequences of their law enforcement activities.

The trial judge of the workers' compensation court granted the Nebraska State Patrol's motion to dismiss, concluding that claimants had failed to state a claim upon which relief could be granted. The judge interpreted our decisions as requiring some physical stimulus before work-related mental stress can be a compensable injury, as the result of either an accident or an occupational disease. The judge concluded as a matter of law that "the mere talking or being informed of a problem does not rise to the level of violence to the physical structure of the body" as required by § 48-151(4) and our decision in Bekelski v. O.F. Neal Co., 141 Neb. 657, 4 N.W.2d 741 (1942). A review panel of the workers' compensation court reversed, and remanded the case for trial, interpreting our opinion in Tarvin v. Mutual of Omaha Ins. Co., 238 Neb. 851, 472 N.W.2d 727 (1991), to require trial of any workers' compensation claim alleging physical changes to the brain. The Nebraska State Patrol appealed.

In a two-to-one opinion, the Nebraska Court of Appeals affirmed. Zach v. Nebraska State Patrol, 14 Neb.App. 579, 710 N.W.2d 877 (2006). The majority agreed with the review panel's interpretation of Tarvin. The dissent did not read Tarvin to hold that a biochemical alteration of the brain constitutes violence to the physical structure of the body within the meaning of the Nebraska Workers' Compensation Act. The dissent reasoned that the Legislature's use of the phrase "`violence to the physical structure of the body'" in § 48-151(4) required "more than mere physical change to establish a compensable injury." Zach, 14 Neb.App. at 590, 710 N.W.2d at 885.

We granted the petition for further review filed by the Nebraska State Patrol.

ASSIGNMENTS OF ERROR

The Nebraska State Patrol assigns, restated, that the Court of Appeals (1) erred as a matter of law by expanding the coverage of the Nebraska Workers' Compensation Act beyond that intended by the Legislature when it presumed that being advised of the consequences of an error at work constituted an "accident" and (2) erred in interpreting Tarvin, supra, or if the interpretation was correct, that Tarvin is inconsistent with previous holdings of this court.

STANDARD OF REVIEW

An appellate court reviews de novo a lower court's dismissal of a complaint for failure to state a claim. Johnston v. Nebraska Dept. of Corr. Servs, 270 Neb. 987, 709 N.W.2d 321 (2006). When analyzing a lower court's dismissal of a complaint for failure to state a claim, an appellate court accepts the complaint's factual allegations as true and construes them in the light most favorable to the plaintiff. Id.

The meaning of a statute is a question of law. Bohaboj v. Rausch, 272 Neb. 394, 721 N.W.2d 655 (2006); Turco v. Schuning, 271 Neb. 770, 716 N.W.2d 415 (2006). When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Id.

ANALYSIS

STATUTORY PRINCIPLES AND DEFINITIONS

As a statutorily created court, the Workers' Compensation Court is a tribunal of limited and special jurisdiction and has only such authority as has been conferred on it by statute. Foster v. BryanLGH Med. Ctr. East, 272 Neb. 918, 725 N.W.2d 839 (2007); Hagelstein v. Swift-Eckrich, 257 Neb. 312, 597 N.W.2d 394 (1999). In reviewing a judgment of that court, we are likewise constrained by the definitions and concepts of liability which the Legislature has articulated in the Nebraska Workers' Compensation Act. We therefore begin with the statutory principles and definitions applicable to this case.

The basic principle of workers' compensation is stated in § 48-101:

When 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.

Key terms used in this principle are specifically defined by the Nebraska Workers' Compensation Act. "Accident means an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury." § 48-151(2). "Occupational disease means only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade . . . and excludes all ordinary diseases of life to which the general public is exposed." § 48-151(3).

Injury and personal injuries mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom. The terms include disablement resulting from occupational disease arising out of and in the course of the employment in which the employee was engaged and which was contracted in such employment.

§ 48-151(4).

The fact that suicide is alleged as the immediate cause of Zach's death does not bar the claim because it is also alleged that Zach experienced physical changes in his brain which overrode his will to the extent that even knowledge of the consequences of the act of suicide did not prevent it. See Friedeman v. State, 215 Neb. 413, 339 N.W.2d 67 (1983). The critical query is whether such changes and the resulting fatal consequence can constitute a compensable injury under either an "accident" or an "occupational disease" theory, in view of the allegation that they were caused by a mental stimulus, i.e., being advised of the consequences of a work-related error.

DOES OPERATIVE PETITION ALLEGE COMPENSABLE INJURY RESULTING FROM ACCIDENT?

Both the review panel and the Court of Appeals concluded that the operative petition stated a workers' compensation claim based upon accidental injury. This court first addressed the issue of compensability of an accidental injury resulting from a mental stimulus in Bekelski v. O.F. Neal Co., 141 Neb. 657, 4 N.W.2d 741 (1942). In that case, an elevator operator witnessed the accidental death of a passenger who was caught between the elevator floor and a floor of the building. Although the operator suffered no physical injury, she experienced extreme emotional shock immediately after the accident and was hospitalized for several days due to elevated heart rate and blood pressure. For some time after the incident, she...