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Nebraska Workers' Compensation Legal Library


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48-101. Personal injury; employer's liability; compensation, when.

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.

Source

  • Laws 1913, c. 198, § 1, p. 579;
  • R.S.1913, § 3642;
  • C.S.1922, § 3024;
  • C.S.1929, § 48-101;
  • Laws 1943, c. 113, § 1, p. 397;
  • R.S.1943, § 48-101;
  • Laws 1971, LB 572, § 1.

Annotations

1. Accident or occupational disease
2. Arising out of and in the course of employment
3. Willful negligence
4. Aggravating preexisting injury or disease
5. Burden of proof
6. Sufficiency of evidence to sustain award
7. Appeal
8. Release
9. Injuries sustained outside state
10. Miscellaneous
1. Accident or occupational disease
  • The accident requirement of the act is satisfied if the cause of the injury was of accidental character or the effect was unexpected or unforeseen, and happened suddenly and violently; and, furthermore, it is no longer necessary that the injury be caused by a single traumatic event, but the exertion in the employment must contribute in some material and substantial degree to cause the injury. The term "in the course of" refers to the time, place, and circumstances surrounding the accident. The term "arising out of" describes the accident and its origin, cause, and character, i.e., whether it resulted from the risks arising within the scope or sphere of the employee's job. Union Packing Co. v. Klauschie, 210 Neb. 331, 314 N.W.2d 25 (1982).
  • Employee can recover for accumulated effects of occupational disease when disability occurs. Hauff v. Kimball, 163 Neb. 55, 77 N.W.2d 683 (1956).
  • Award will be sustained when injury, resulting from an accident arising out of and in the course of employment and preexisting disease combined to produce disability. Yakal v. Henkle & Joyce Hardware Co., 145 Neb. 365, 16 N.W.2d 531 (1944).
  • Physical exertion and exposure to smoke and fumes incidental to work of a city fireman in fighting fire does not constitute an accidental injury compensable under workmen's compensation law, where it appears that the disability was due to a preexisting heart disease. Brown v. City of Omaha, 141 Neb. 587, 4 N.W.2d 564 (1942).
  • Where sudden jerk of road grading machinery results in injury to back of employee, it is sufficient to constitute an accident arising out of and in the course of his employment. Jurgensen v. Rogers, 139 Neb. 30, 296 N.W. 341 (1941).
  • Where employee fails to show with reasonable certainty that there is a causal relation between accident and his disability, compensation will be denied. Hart v. American Community Stores Corp., 138 Neb. 149, 292 N.W. 387 (1940).
  • Claimant must show with reasonable certainty that alleged injury occurred and was caused by accident. Wayne County v. Lessman, 136 Neb. 311, 285 N.W. 579 (1939).
  • A claim for disability is properly allowed on evidence that employee suffered accidental injury to feet which caused arthritis. Flesch v. Phillips Petroleum Co., 124 Neb. 1, 244 N.W. 925 (1932).
  • An injury which occurred in the course of employment unexpectedly and without the affirmative act or design of the employee is accidental. Van Vleet v. Public Service Co. of York, 111 Neb. 51, 195 N.W. 467 (1923).
2. Arising out of and in the course of employment
  • An employee leaving the premises of his or her employer in the usual and customary way after his or her work is ended is within the course of his or her employment within the meaning of this section. Zoucha v. Touch of Class Lounge, 269 Neb. 89, 690 N.W.2d 610 (2005).
  • An off-premises injury during a "coffee" or "rest" break may be found to have arisen in the course of employment under this section if the employer, in all the circumstances, including duration, shortness of the off-premises distance, and limitations on off-premises activity during the interval, can be deemed to have retained authority over the employee. Misek v. CNG Financial, 265 Neb. 837, 660 N.W.2d 495 (2003).
  • The phrases used in this section, "arising out of employment" and "in the course of employment", are not synonymous and must both be established in order for the Nebraska Workers' Compensation Act to apply. A school teacher who was injured in the office of her husband, also a school teacher in the same school district, when a trapdoor was left open by workers installing cable wires, while helping her husband return computer equipment during a summer evening, was not acting "in the course of employment", so there is no need to address whether the injury arose out of the employment. Skinner v. Ogallala Pub. Sch. Dist. No. 1, 262 Neb. 387, 631 N.W.2d 510 (2001).
  • This section compensates injury caused an employee by an accident arising out of and in the course of his or her employment. Under the going to and from work rule, injuries sustained by an employee while going to and coming from work do not arise out of and in the course of employment within the meaning of this section unless it is determined that a distinct causal connection exists between an employer-created condition and the occurrence of the injury. Where an employee, in the performance of his or her duties, is required to travel and an accident occurs while he or she is so engaged, the accident arises out of and in the course of his or her employment and is within the scope of the Nebraska Workers' Compensation Act. Under the special errand exception to the going to and from work rule, when an employee, having identifiable time and space limits on the employment, makes an off-premises journey which would not normally be compensable under the usual going to and from work rule, the journey may be brought within the course of employment within the meaning of this section by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself. Torres v. Aulick Leasing, Inc., 258 Neb. 859, 606 N.W.2d 98 (2000).
  • This section compensates injury caused to an employee by an accident arising out of and in the course of his or her employment; the phrases "arising out of" and "in the course of" are conjunctive and must both be established by a preponderance of the evidence. The phrase "arising out of", as used in this section, 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" refers to the time, place, and circumstances surrounding the accident. An injury sustained by an employee while going to and from work, at a fixed place of employment, does not arise out of and in the course of employment; however, when an employer designates a lot as the proper place to park and provides a shuttle from that lot to the place of employment; an injury incurred in the designated lot arises out of and in the course of employment. La Croix v. Omaha Public Schools, 254 Neb. 1014, 582 N.W.2d 283 (1998).
  • Injuries resulting from horseplay may be within the scope of employment; such injuries are within the scope of employment and compensable if (1) the deviation was insubstantial and (2) the deviation does not measurably detract from the work. Varela v. Fisher Roofing Co., Inc., 253 Neb. 667, 572 N.W.2d 780 (1998).
  • For purposes of this section, an injury is accidental if either its cause was accidental in character or its effect was unexpected or unforeseen, it happened suddenly and violently, and the occurrence produced at the time objective symptoms of injury. The "course of employment" embraces all activities connected with changing clothes before and after work, as well as similar acts during work hours. Cox v. Fagen Inc., 249 Neb. 677, 545 N.W.2d 80 (1996).
  • The phrase "arising out of" 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" refers to time, place, and circumstances surrounding the accident. The two phrases are conjunctive; in order to recover, a claimant must establish by a preponderance of the evidence the existence of both. Johnson v. Holdrege Med. Clinic, 249 Neb. 77, 541 N.W.2d 399 (1996).
  • In a workers' compensation case based on an employee's heart attack, causation required for compensability consists of two parts: legal cause and medical cause. Rosemann v. County of Sarpy, 237 Neb. 252, 466 N.W.2d 59 (1991).
  • The phrase "arising out of" refers to an injury which is the basis of a workers' compensation claim and the injury's origin, cause, and character, that is, whether an employee's unexpected or unforeseen injury results from risks arising within the scope or sphere of employment. Rosemann v. County of Sarpy, 237 Neb. 252, 466 N.W.2d 59 (1991).
  • Under the "going and coming rule," if an employee is injured while going to or from the employee's workplace, the injury does not arise out of or in the course of the employment. Under the commercial traveler exception to the going and coming rule, where an employee is required to travel in the performance of the employee's duties and an accident occurs while the employee is so engaged, it arises out of and in the course of the worker's employment and is compensable. Reynolds v. School Dist. of Omaha, 236 Neb. 508, 461 N.W.2d 758 (1990).
  • Worker is an employee under the Workmen's Compensation Act in accordance with the factors used to determine employee status including the element of control and the nature of the work. Franklin v. Pawley, 215 Neb. 624, 340 N.W.2d 156 (1983).
  • An employee must show by competent medical testimony a causal connection between the alleged injury, the employment, and the disability. Caradori v. Frontier Airlines, 213 Neb. 513, 329 N.W.2d 865 (1983).
  • Where a tree blown over by violent wind crushed the victim-employee's car, breaking the victim's neck, the evidence did not establish that a hazard imposed upon the employee by reason of the employment was greater than that to which the public generally is subjected, and, therefore, the accident did not "arise out of" the employment. McGinn v. Douglas County Social Services Adm., 211 Neb. 72, 317 N.W.2d 764 (1982).
  • The plaintiff in a workmen's compensation case must prove by a preponderance of the evidence that his disability is the result of an accident arising out of his employment, and when the disability is of a subjective nature, such as a psychogenic pain disorder, it requires competent medical testimony to show a causal connection between the alleged injury, the employment, and the disability. Davis v. Western Electric, 210 Neb. 771, 317 N.W.2d 68 (1982).
  • In determining whether injuries incurred off the employer's premises are compensable under this section, the court will look at the nature of the activity in which the employee was engaged at the time of the injury, not the nature of the organization that sponsored the activity. Gray v. State, 205 Neb. 853, 290 N.W.2d 651 (1980).
  • Injuries incurred in an accident that occurred on the way to a primarily social event sponsored by an organization some of whose activities are work-related are not compensable under this section. Gray v. State, 205 Neb. 853, 290 N.W.2d 651 (1980).
  • Where claimant's preexisting hip injury was aggravated in subsequent accident requiring hip joint replacement, court determined the injury was a section 48-121 case. Jeffers v. Pappas Trucking, Inc., 198 Neb. 379, 253 N.W.2d 30 (1977).
  • An injury, to be the basis of a cause of action under the Workmen's Compensation Act, must be caused by an accident arising out of and in the course of the employment. Reis v. Douglas County Hospital, 193 Neb. 542, 227 N.W.2d 879 (1975).
  • The burden of proof is upon the claimant to establish by a preponderance of the evidence that his disability was caused by an accident out of and in the course of his employment. Satterfield v. Negel, 186 Neb. 332, 183 N.W.2d 237 (1971).
  • Where employee has returned to point of deviation and engages in the duties of his employment, he is within the coverage of the Workmen's Compensation Act. Murphy v. Hi-Way G.M.C. Sales & Service Corp., 178 Neb. 397, 133 N.W.2d 595 (1965).
  • In order to recover, a workman has the burden of establishing that injury arose out of and in the course of his employment. Gibb v. Highway G.M.C. Sales & Service Corp., 178 Neb. 127, 132 N.W.2d 297 (1964).
  • To be compensable, injury must arise out of and in course of employment. Hahl v. Heyne, 156 Neb. 599, 57 N.W.2d 137 (1953).
  • To be compensable under this act, accidental injuries must arise out of and in the course of employment. Nelms v. Mahoney, 147 Neb. 626, 24 N.W.2d 558 (1946).
  • Burden rests upon claimant to establish by a preponderance of the evidence that he sustained a personal injury by accident arising out of and in the course of his employment. Schwabauer v. State, 147 Neb. 620, 24 N.W.2d 431 (1946).
  • When employee selects a method of transportation of his own and injury results, though on the premises of the employer, liability does not exist where employee was not engaged in any mission for employer, and where employer exercised no control over employee or conveyance selected. Schank v. Martin-Nebraska Co., 147 Neb. 385, 23 N.W.2d 557 (1946).
  • Where a man is employed with his own team and wagon and is injured while on his way to his barn to put away his team, the injury does not arise out of and in the course of his employment. Wilbur v. Adams Lumber Co., 140 Neb. 48, 299 N.W. 268 (1941).
  • Where employee, to accomplish private purpose, wholly unconnected with employer's business, creates necessity for automobile trip which would not otherwise have been taken, injuries occurring on such trip are not compensable under workmen's compensation law. Weideman v. Milburn & Scott Co., 138 Neb. 205, 292 N.W. 594 (1940).
  • An injury is not compensable where employee, on his own initiative, leaves his line of duty under his employment for purposes of his own, and, while doing so, sustains injury. Burlage v. Lefebure Corp., 137 Neb. 671, 291 N.W. 100 (1940).
  • Where employee was drinking beer in a tavern in which he was fixing the refrigerator and was killed by a drunken companion, the death did not arise out of and in the course of his employment. Hopper v. Koenigstein, 135 Neb. 837, 284 N.W. 346 (1939).
  • One injured while leaving premises where employed, after work, is entitled to compensation. McDonald v. Richardson County, 135 Neb. 150, 280 N.W. 456 (1938).
  • Injury must arise out of and in course of employment. McCall v. Hamilton County Farmers Telephone Assn., 135 Neb. 70, 280 N.W. 254 (1938); Sheets v. Glenwood Telephone Co., 135 Neb. 56, 280 N.W. 238 (1938).
  • Compensation act does not authorize an award in case of death from a peril common to all. Klotz v. Swift & Co., 133 Neb. 400, 275 N.W. 667 (1937).
  • Compensation can be allowed only for personal injuries or death of an employee by accident arising out of and in course of his employment. Lang v. Gage County Electric Co., 133 Neb. 388, 275 N.W. 462 (1937).
  • Where evidence showed that plaintiff had sprained back while moving park benches in employ of city resulting in serious injuries, he was entitled to compensation. Meierjurgen v. City of Lincoln, 132 Neb. 896, 273 N.W. 804 (1937).
  • When an employee is assaulted and injured by his foreman while eating dinner furnished as a part of his wages, compensation may be allowed. Miller v. Reisch Co., 132 Neb. 338, 271 N.W. 853 (1937).
  • Exposure to cold resulting in injury is not compensable if it is the same as that to which the general public is exposed. Laudenklos v. Department of Roads & Irrigation, 132 Neb. 234, 271 N.W. 790 (1937).
  • Employment of carpenter by farmer to construct a machine shed on his farm is not in the course of the employer's occupation within the meaning of the Workmen's Compensation Act. Guse v. Wessels, 132 Neb. 41, 270 N.W. 665 (1937).
  • Injury to officer in municipal fire department received while fighting fire on duty, is compensable under Workmen's Compensation Act. Dunlap v. City of Omaha, 131 Neb. 632, 269 N.W. 422 (1936).
  • The shooting of a traveling salesman by a highwayman, while driving from one town to another in furtherance of his employer's business, is compensable under Workmen's Compensation Act. Goodwin v. Omaha Printing Co., 131 Neb. 212, 267 N.W. 419 (1936).
  • If injury results from doing some act, even for employer's benefit, at a place and in a manner not contemplated by the parties, it does not arise out of employment. Albers v. Kipp, 130 Neb. 46, 263 N.W. 593 (1935).
  • Employee cannot recover compensation if, at time he was injured, he had departed from master's service, and was performing service for himself. Seversike v. Omaha Flour Mills Co., 129 Neb. 754, 263 N.W. 151 (1935).
  • Heat prostration may be compensable accident if the workman is subjected to a greater hazard from heat than that to which the public in that locality is subjected. McNeil v. Omaha Flour Mills Co., 129 Neb. 329, 261 N.W. 694 (1935).
  • Injury to employee caused by slipping on ice on public sidewalk while going to lunch on her own time did not arise out of and in course of employment. De Porte v. State Furniture Co., 129 Neb. 282, 261 N.W. 419 (1935).
  • When messenger boy was injured while riding bicycle, after his employer had directed him to take a street car, injury was compensable. Volcheck v. Western Union Telegraph Co., 128 Neb. 502, 259 N.W. 371 (1935).
  • In case of exposure to elements causing death from heart failure, claim is not compensable. Brady v. Beatrice Creamery Co., 127 Neb. 786, 257 N.W. 66 (1934).
  • Where employee was fatally injured while starting on trip in performance of his duties, dependents were entitled to compensation. Kirkpatrick v. Chocolate Sales Corporation, 127 Neb. 604, 256 N.W. 89 (1934).
  • Injury is compensable when received in performance of duty incidental to employment. Struve v. City of Fremont, 125 Neb. 463, 250 N.W. 663 (1933).
  • In order for an injury to arise out of employment, there must be a causal connection between the conditions under which the work is required to be performed and the resulting injury. Hall v. Austin Western Road Machinery Co., 125 Neb. 390, 250 N.W. 258 (1933).
  • Where employee, engaged in his employment on public street, is struck by a missile intentionally thrown at him without provocation, injury was compensable as arising out of employment. Good v. City of Omaha, 125 Neb. 307, 250 N.W. 61 (1933).
  • Compensable injury must be reasonably incident to employment, and, unless there is causal connection between working conditions and resulting injury, injury does not arise out of employment. Bergantzel v. Union Transfer Co., 124 Neb. 200, 245 N.W. 593 (1932).
  • Where employee was injured while returning truck to garage after making delivery for employer, injury occurred in the course of his employment. Conzuello v. Teague, 123 Neb. 574, 243 N.W. 779 (1932).
  • Where plaintiff school teacher and superintendent was injured while returning to place of employment from trip to city, on which trip he purchased some school supplies for employer, evidence was insufficient to prove injury was received in course of his employment. Babcock v. School District No. 107, 123 Neb. 491, 243 N.W. 831 (1932).
  • An injury arises out of course of employment when there is a reasonable causal connection between the conditions under which the work is required to be performed and the injury received while the employee is thus engaged. Speas v. Boone County, 119 Neb. 58, 227 N.W. 87 (1929).
  • An injury is received in the course of employment when, at the time the injury is received, the workman is engaged at the work he is employed to perform or in some duty incidental to that work. Speas v. Boone County, 119 Neb. 58, 227 N.W. 87 (1929).
  • Injuries to employee by reason of being required to work with incompetent, insane, or dangerous fellow servant arise out of employment. Dodson v. Woolworth Co., 118 Neb. 276, 224 N.W. 289 (1929).
  • An injury from a peril to which the public generally is exposed does not arise out of employment. Gale v. Krug Park Amusement Co., 114 Neb. 432, 208 N.W. 739 (1926).
  • Where a garage employee was sent on an errand and was injured while attempting to mount upon the running board of a truck going in the direction the employee was required to perform his errand, the injury arose out of and in the course of his employment. McCrary v. Wolff, 109 Neb. 796, 192 N.W. 237 (1923).
  • An injury resulting from assault by fellow employee, not arising from any duty connected with employment but following personal altercation concerning matters not arising out of the performance of any service in the employment is not one arising out of employment. Urak v. Morris & Co., 107 Neb. 411, 186 N.W. 345 (1922).
  • Where the nature of the employment is such as to expose a worker to a wrongful act of another worker, which may reasonably be said to have been induced by the peculiar conditions of the employment, such an act may reasonably arise out of the employment. Socha v. Cudahy Packing Co., 105 Neb. 691, 181 N.W. 706 (1921).
  • Injuries sustained by an employee while going to and from work do not arise out of and in the course of employment unless it is determined that a distinct causal connection exists between an employer-created condition and the occurrence of the injury. Coffey v. Waldinger Corp., 11 Neb. App. 293, 649 N.W.2d 197 (2002).
  • The claimant's physical therapy related to his employment in the sense that the claimant's therapy was a necessary or reasonable activity that the claimant would not have undertaken but for his work-related back and elbow injuries, and therefore, the claimant's knee injury during physical therapy arose out of and was in the course of his employment. Smith v. Goodyear Tire & Rubber Co., 10 Neb. App. 666, 636 N.W.2d 884 (2001).
  • Injuries entitling employee to workers' compensation benefits arose out of his employment when he blacked out while driving a truck in the course of his employment. Nunn v. Texaco Trading & Transp., 3 Neb. App. 101, 523 N.W.2d 705 (1994).
3. Willful negligence
  • An employee is not willfully negligent under this section for violating an employer's safety rule when the trier of fact could reasonably infer that the safety rule was not always strictly enforced. Guico v. Excel Corp., 260 Neb. 712, 619 N.W.2d 470 (2000).
  • An employee who was willfully negligent at the time of his injury or death will not ordinarily be entitled to recover benefits under the workers' compensation law. Breckenridge v. Midlands Roofing Co., 222 Neb. 452, 384 N.W.2d 298 (1986).
  • The fact that an employee knew he was committing suicide will not, in all cases, constitute willful negligence. Friedeman v. State, 215 Neb. 413, 339 N.W.2d 67 (1983).
  • An employee who commits suicide is willfully negligent within the meaning of this act. Hannon v. J. L. Brandeis & Sons, Inc., 186 Neb. 122, 181 N.W.2d 253 (1970).
  • Welding empty molasses tank without leaving air vent open or cleaning tank, where employee did not know such conduct was dangerous, did not constitute willful negligence so as to bar compensation. Richards v. Abts, 136 Neb. 741, 287 N.W. 199 (1939).
  • Lighting a match in a gas-filled room, in response to habit, after being warned against doing so is not necessarily willful negligence. Moise v. Fruit Dispatch Co., 135 Neb. 684, 283 N.W. 495 (1939).
  • Whether the acts of an employee constitute willful negligence is dependent upon his willingness to disregard it and maintain a course of conduct indicating a reckless indifference for his own safety. Richards v. Abts, 135 Neb. 347, 281 N.W. 611 (1938).
  • Employer, who attempts to avoid liability on ground that employee was willfully negligent, must prove a deliberate act knowingly done, or at least such conduct as evidences reckless indifference to his safety. Hoff v. Edgar, 133 Neb. 403, 275 N.W. 602 (1937).
4. Aggravating preexisting injury or disease
  • An exertion- or stress-caused heart injury to which the claimant's preexisting heart disease or condition contributes is compensable only if the claimant shows that the exertion or stress encountered during employment is greater than that experienced during the ordinary nonemployment life of the employee or any other person. While legal cause is established by satisfying the "stress greater than nonemployment life" test, a claimant must still demonstrate medical causation. If it is claimed that an injury was the result of stress or exertion in the employment, medical causation is established by a showing by the preponderance of the evidence that the employment contributed in some material and substantial degree to cause the injury. Leitz v. Roberts Dairy, 237 Neb. 235, 465 N.W.2d 601 (1991).
  • Injury lighting up a preexisting arthritic condition of spine is compensable. City of Omaha v. Casaubon, 138 Neb. 608, 294 N.W. 389 (1940).
  • Where injury, arising out of and in the course of employment, combines with preexisting disease to produce disability, recovery can be had by employee. Chatt v. Massman Construction Co., 138 Neb. 288, 293 N.W. 105 (1940).
  • Injury from fall accelerating a preexisting disease is compensable. Maul v. Iowa-Nebraska Light & Power Co., 137 Neb. 128, 288 N.W. 532 (1939).
  • Injury from strain or overexertion due to a physical condition predisposing the employee to injury is an injury under the terms of the Workmen's Compensation Act, even though, had the person been sound, the strain would not have been sufficient to occasion serious injury. Dymak v. Haskins Bros. & Co., 132 Neb. 308, 271 N.W. 860 (1937).
  • Mere exertion that would not of itself produce compensable disability, does not, when combined with preexisting disease, produce compensable disability. Gilkeson v. Northern Gas Engineering Co., 127 Neb. 124, 254 N.W. 714 (1934).
  • Where contract of employment was made in state between resident employee and employer having headquarters in state, compensation action is maintainable therein although injury was sustained in performing work outside state. Stone v. Thomson Co., 124 Neb. 181, 245 N.W. 600 (1932).
  • Where employee injured back and shoulder in course of employment thereby causing dormant disease to flare up, and resultant disability is due to the injury, he was entitled to compensation. Miller v. Central Coal & Coke Co., 123 Neb. 793, 244 N.W. 401 (1932).
5. Burden of proof
  • This court has expressly disapproved of language in previous opinions which imposed an enhanced degree of proof by an employee with a preexisting disability or condition who is prosecuting a claim under the Nebraska Workers' Compensation Act. For an award based on disability, a claimant need only establish by a preponderance of the evidence that the employment proximately caused an injury which resulted in compensable disability. Gray v. Fuel Economy Contracting Co., 236 Neb. 937, 464 N.W.2d 366 (1991).
  • The plaintiff has the burden to establish that an injury for which workers' compensation is sought arose out of and in the course of his employment. McGee v. Panhandle Technical Sys., 223 Neb. 56, 387 N.W.2d 709 (1986).
  • An employee has the burden of showing that her injury resulted from her accident at work and not from the natural progression of a preexisting condition. Taylor v. Benton, 205 Neb. 203, 286 N.W.2d 755 (1980).
  • The burden of proof is upon the plaintiff to sustain his claim by a preponderance of the evidence. Parrish v. Karl Kehm & Sons Contractors, 186 Neb. 252, 182 N.W.2d 422 (1970).
  • The burden is on plaintiff to prove a right to recover. Thelen v. J. C. Penney Co., 186 Neb. 53, 180 N.W.2d 693 (1970).
  • Claimant has burden of establishing that injury complained of was caused by accident arising out of and in course of his employment. Huston v. Gage County Electric Co., 134 Neb. 805, 279 N.W. 797 (1938).
  • Where employee dies suddenly and mysteriously while engaged in his work, burden is on the claimant to prove facts necessary to bring case within compensation law, and such proof must be something more than mere guess. Shamp v. Landy Clark Co., 134 Neb. 73, 277 N.W. 802 (1938).
  • Burden of proof rests upon claimant to show with reasonable certainty that his ailment was caused by the injury, and this proof must be made by substantial evidence leading either to the direct conclusion or a legitimate inference that such is the fact. Skochdopole v. State, 133 Neb. 440, 275 N.W. 665 (1937).
  • Claimant has burden of showing that he suffered injury resulting from accident arising out of and in course of his employment. Price v. Burlington Refrigerator Express Co., 131 Neb. 657, 269 N.W. 425 (1936).
  • Burden rests upon plaintiff to prove with reasonable certainty that employee met with injury or death in accident arising out of and in the course of his employment. Porter v. Brinn-Jensen Co., 131 Neb. 611, 269 N.W. 96 (1936).
  • Where evidence fails to show any relationship between injury and the disease from which the employee died, burden of proof was not sustained. Beatrice Creamery Co. v. Kizer, 127 Neb. 34, 254 N.W. 690 (1934).
  • Burden of proof is on plaintiff and must be established by substantial evidence and not probabilities. Saxton v. Sinclair Refining Co., 125 Neb. 468, 250 N.W. 655 (1933).
  • Burden of proof is on employee. Parsons Oil Co. v. Schlitt, 125 Neb. 223, 249 N.W. 613 (1933).
  • When employee dies suddenly and mysteriously while engaged at work, burden of proof that death was accident arising out of employment rests on claimant hereunder. Mullen v. City of Hastings, 125 Neb. 172, 249 N.W. 560 (1933).
  • Burden of proof is on employee to prove personal injury caused by accident arose out of and in course of his employment. Townsend v. Loeffelbein, 123 Neb. 791, 244 N.W. 418 (1932); Bartlett v. Eaton, 123 Neb. 599, 243 N.W. 772 (1932).
6. Sufficiency of evidence to sustain award
  • A workers' compensation award cannot be based on mere possibility or speculation, and if an inference favorable to the plaintiff can only be reached on the basis thereof, he or she cannot recover. Gray v. Fuel Economy Contracting Co., 236 Neb. 937, 464 N.W.2d 366 (1991).
  • The rule of liberal construction applies to the Workmen's Compensation Act, but it is not applicable to the evidence offered in support of a claim made for benefits under the act. Parrish v. Karl Kehm & Sons Contractors, 186 Neb. 252, 182 N.W.2d 422 (1970).
  • Evidence of plaintiff was sufficient to prove injury in the course of his employment. Harrington v. Missouri Valley Constr. Co., 182 Neb. 434, 155 N.W.2d 355 (1967).
  • Award of compensation for permanent partial disability cannot be based on possibility or speculation. Stevens v. Josten-Wilbert Vault Co., 182 Neb. 322, 154 N.W.2d 764 (1967).
  • Claimant to compensation for permanent partial disability cannot be based on possibility or speculation. Stevens v. Josten-Wilbert Vault Co., 182 Neb. 322, 154 N.W.2d 764 (1967).
  • Claimant to compensation must establish right by preponderance of evidence. Dike v. Betz, 181 Neb. 580, 149 N.W.2d 750 (1967).
  • Where causation of injury is not shown by a preponderance of the evidence, claimant cannot recover. Kastanek v. Wilding, 181 Neb. 348, 148 N.W.2d 201 (1967).
  • Evidence was insufficient to show that workman killed at railroad crossing was at the time acting in the course of his employment. Oline v. Nebraska Nat. Gas Co., 177 Neb. 851, 131 N.W.2d 410 (1964).
  • Awards for compensation cannot be based upon speculative or conjectural evidence. Dennehy v. Lincoln Steel Works, 136 Neb. 269, 285 N.W. 590 (1939).
  • Awards cannot be based on possibilities or probabilities, but they must be supported by evidence showing that claimant incurred a disability arising out of and in the course of his employment. O'Connor v. Abbott, 134 Neb. 471, 279 N.W. 207 (1938).
  • Evidence was insufficient to sustain finding that plaintiff suffered an accident arising out of and in course of his employment. Loehr v. Alamito Dairy Co., 133 Neb. 444, 275 N.W. 596 (1937).
  • Evidence was insufficient to prove the claim that a workman who received compensation for a total disability caused by an injury in 1920, suffered total disability from a fall occurring in 1934. McGuire v. Kansas City Bridge Co., 132 Neb. 1, 270 N.W. 669 (1937).
  • An award for compensation cannot be based on possibility, probability, speculation, or conjecture, but burden is upon claimant to show that he suffered injury from an accident arising out of and in the course of his employment. Milton v. City of Gordon, 129 Neb. 888, 263 N.W. 208 (1935).
  • Where employee was injured in course of employment and was never able to work thereafter, employee sustained burden of showing disability was due to accident and not to infectious disease. Truka v. McDonald, 127 Neb. 780, 257 N.W. 232 (1934).
  • Where the actual cause of death of employee is a matter of conjecture and speculation, the evidence is insufficient to sustain an award. Orchard & Wilhelm Co. v. Petersen, 127 Neb. 476, 256 N.W. 37 (1934).
  • Accidental death, in compensation case, need not be established to a certainty, but only to a reasonable certainty. Aeschleman v. Haschenburger Co., 127 Neb. 207, 254 N.W. 899 (1934).
  • Award of compensation cannot be based on possibilities or probabilities. Huffman v. Great Western Sugar Co., 125 Neb. 302, 250 N.W. 70 (1933).
7. Appeal
  • Evidence established that music supervisor killed en route to judge music contest was not acting in the course of his employment at the time he was killed since he was not to be controlled or supervised by any of the defendants while judging the contest nor did his judging activities primarily benefit any of the defendants. This court will not overturn factfindings by the Workmen's Compensation Court unless they are clearly wrong. Stoll v. School Dist. (No. 1) of Lincoln, 207 Neb. 670, 301 N.W.2d 68 (1981).
  • Supreme Court may, upon trial de novo, consider fact that trial court gave credence to testimony of some witnesses rather than to contradictory testimony of others. Sherman v. Great Western Sugar Co., 127 Neb. 505, 255 N.W. 772 (1934).
  • Workmen's compensation cases are heard de novo in Supreme Court. Peterson v. Borden's Produce Co., 125 Neb. 404, 250 N.W. 240 (1933); Mullen v. City of Hastings, 125 Neb. 172, 249 N.W. 560 (1933).
  • Time for taking appeal is governed by statute and trial court has no power to extend time, directly or indirectly. Bradley v. Kalin, 125 Neb. 363, 250 N.W. 257 (1933).
  • Workmen's compensation cases are not exempted from provisions of statute relating to the settlement and allowance of bills of exceptions. Shaw v. Diers Bros. & Co, 124 Neb. 119, 245 N.W. 419 (1932).
  • Supreme Court has power, under this section, to reverse for inadequacy in amount of verdict, or, if excessive, to reverse and grant new trial if remittitur was not filed. Brown v. York Water Co., 104 Neb. 516, 177 N.W. 833 (1920).
8. Release
  • Release signed by employee binds his dependents after his death, in absence of fraud. Welton v. Swift & Co., 125 Neb. 455, 250 N.W. 661 (1933).
9. Injuries sustained outside state
  • Where all of the employees' services were performed in Nebraska, and no showing made that the industry had its situs at any other place save in Nebraska, recovery could be had, although contract of employment was made in another state. Solomon v. A. W. Farney, Inc., 130 Neb. 484, 265 N.W. 724 (1936).
  • Nebraska workmen's compensation law is not applicable where contract of employment was made in another state, and where employee was injured in said state in the performance of duties which were not incidental to an industry conducted in the state by the employer. Rigg v. Atlantic, Pacific & Gulf Oil Co., 129 Neb. 412, 261 N.W. 900 (1935).
  • Where employer is engaged in business in Nebraska but employee, while engaged in employer's business in another state, is injured, employee may recover compensation. Penwell v. Anderson, 125 Neb. 449, 250 N.W. 665 (1933).
10. Miscellaneous
  • The Nebraska Workers' Compensation Act is the employee's exclusive remedy against an employer for an injury arising out of and in the course of employment. Millard v. Hyplains Dressed Beef, 237 Neb. 907, 468 N.W.2d 124 (1991).
  • The Nebraska Workers' Compensation Act should be construed liberally so that its beneficent purposes may not be thwarted by technical refinements of interpretation. Carter v. Weyerhaeuser Co., 234 Neb. 558, 452 N.W.2d 32 (1990).
  • Allegations that an employer intentionally concealed the dangers inherent in the workplace, intentionally inflicted injury resulting in occupational disease, and intentionally concealed the true nature and effect of the disease fall within the Nebraska Workers' Compensation Act, which is the exclusive remedy. Abbott v. Gould, Inc., 232 Neb. 907, 443 N.W.2d 591 (1989).
  • An employer's intentional concealment of the dangers inherent in the work environment and the true nature and effect of an occupational disease does not constitute involuntary servitude--the use or threat of physical force or legal coercion to extract labor from an unwilling worker--and thus construing the Workers' Compensation Act to include such conduct does not violate U.S. Const. amend. XIII or Neb. Const. art. I, sec. 2. Abbott v. Gould, Inc., 232 Neb. 907, 443 N.W.2d 591 (1989).
  • The exclusive remedy provided by the Workers' Compensation Act satisfies the due process requirements of Neb. Const. art. I, sec. 3, as well as the requirements of Neb. Const. art. I, sec. 13, that every person shall have a remedy by due course of law for any injury done to him or her. Abbott v. Gould, Inc., 232 Neb. 907, 443 N.W.2d 591 (1989).
  • An employee's injuries are compensable as long as his employment duties put him in a position that he might not otherwise be in which exposes him to a greater risk, even though the risk is not greater than that of the general public. Nippert v. Shinn Farm Constr. Co., 223 Neb. 236, 388 N.W.2d 820 (1986).
  • The Nebraska Workmen's Compensation Act provides the exclusive remedy by the employee against the employer for any injury arising out of and in the course of the employment. Johnston v. State, 219 Neb. 457, 364 N.W.2d 1 (1985).
  • The Workmen's Compensation Act is to be construed liberally so that its beneficent purposes may not be thwarted by technical refinement of interpretation. Friedeman v. State, 215 Neb. 413, 339 N.W.2d 67 (1983).
  • While the act of suicide may be an independent intervening cause in some cases, it is certainly not so in those cases where the uncontrovertible evidence shows that, without the injury, there would have been no suicide; that the suicide was merely an act intervening between the injury and the death and part of an unbroken chain of events from the injury to the death. Friedeman v. State, 215 Neb. 413, 339 N.W.2d 67 (1983).
  • If coverage exists, Workmen's Compensation Act is exclusive. Marlow v. Maple Manor Apartments, 193 Neb. 654, 228 N.W.2d 303 (1975).
  • The rule of liberal construction of the Workmen's Compensation Act applies to the law but not to the evidence. Barbaglia v. General Motors Acceptance Corp., 190 Neb. 529, 209 N.W.2d 353 (1973).
  • The state, by its Legislature, has extensively entered the field of labor. Midwest Employers Council, Inc. v. City of Omaha, 177 Neb. 877, 131 N.W.2d 609 (1964).
  • Employee having compensable injury was not a malingerer when he labored under mental condition firmly and honestly believing such injury to be permanent, and for which mental condition treatment had been inadequate. Rexroat v. State, 142 Neb. 596, 7 N.W.2d 163 (1942).
  • Whatever the employee's physical condition may be, the employer is bound to compensate him for any impairment of his existing ability to perform the duties in which he is engaged, by accident arising out of and in the course of his employment. Hansen v. Paxton & Vierling Iron Works, 138 Neb. 589, 293 N.W. 415 (1940).
  • When city has no authority to control the details of the work or to direct the manner and mode of doing it, it is not liable to W.P.A. worker. Williams v. City of Wymore, 138 Neb. 256, 292 N.W. 726 (1940).
  • Suspicion of fraud, arising from recovery of compensation for two former accidents of similar nature, will not defeat claim for workmen's compensation. Klement v. H. P. Lau Co., 138 Neb. 144, 292 N.W. 381 (1940).
  • In all questions under workmen's compensation law, rules of technical construction will be avoided, and intention of Legislature will be determined from language of act as a whole. Dobesh v. Associated Asphalt Contractors, 138 Neb. 117, 292 N.W. 59 (1940).
  • An employee is not necessarily precluded from recovering compensation by the mere fact that after the injury he receives a larger sum, as wages, than his former remuneration. Micek v. Omaha Steel Works, 136 Neb. 843, 287 N.W. 645 (1939); 135 Neb. 449, 282 N.W. 262 (1938).
  • Payment of employee's wages from federal funds does not relieve city from payment of compensation, where city had entire charge of directing and controlling work. Hendershot v. City of Lincoln, 136 Neb. 606, 286 N.W. 909 (1939).
  • Statute should be liberally construed. Ludwickson v. Central States Electric Co., 135 Neb. 371, 281 N.W. 603 (1938).
  • The relief authorized by workmen's compensation law includes purpose to prevent employee's dependents from becoming a public charge. Westcoatt v. Lilley, 134 Neb. 376, 278 N.W. 854 (1938).
  • Court will give a liberal construction to the workmen's compensation law, so that its beneficent purposes may not be thwarted by technical refinement of interpretation. Wilson v. Brown-McDonald Co., 134 Neb. 211, 278 N.W. 254 (1938).
  • Where a right has been created by statute which did not exist at common law, Legislature may impose restrictions thereon, and such restrictions become an integral part of the act and must be fully complied with in the manner prescribed. Ray v. Sanitary Garbage Co., 134 Neb. 178, 278 N.W. 139 (1938).
  • If plaintiff was injured while employed in improvement work on Missouri River, remedy is provided by workmen's compensation law rather than United States Seaman's Act. Belk v. Massman Construction Co., 133 Neb. 303, 275 N.W. 76 (1937).
  • Remedy under compensation law is exclusive where employee operating thereunder sustains an injury by reason of an accident arising out of and in the course of his employment. Jones v. Rossbach Coal Co., 130 Neb. 302, 264 N.W. 877 (1936).
  • Malingering is defined. Great Western Sugar Co. v. Hewitt, 127 Neb. 790, 257 N.W. 61 (1934).
  • Where employee unreasonably refuses to undergo simple operation which would relieve him from disability, compensation may be suspended. Simmerman v. Felthauser, 125 Neb. 795, 251 N.W. 831 (1934).
  • Workmen's Compensation Act is one of general interest to worker and employer alike, as well as to the state, and it should be so construed that technical refinements of interpretation will not defeat its purpose. Speas v. Boone County, 119 Neb. 58, 227 N.W. 87 (1929).
  • Workmen's Compensation Act is not applicable to a nonresident employer and a resident employee where contract of employment was made in this state for services to be performed in another state, and employer was not at the time of contract engaged in any trade, business, profession, or avocation in this state. Watts v. Long, 116 Neb. 656, 218 N.W. 410 (1928).
  • Provision for jury trial in this section does not apply to compensation cases generally. Nosky v. Farmers Union Co-op. Assn., 109 Neb. 489, 191 N.W. 846 (1922).
  • An assault on an employee at the workplace because of purely personal motivations or animosity will not arise out of the employment unless the work is determined to have exacerbated the personal dispute or facilitated an assault that would not otherwise have been committed. The question of whether the employment does facilitate such an assault is a question of fact for the trial court to determine. Monahan v. United States Check Book Co., 4 Neb. App. 227, 540 N.W.2d 380 (1995).
  • Deceased was, as a matter of law, not an employee of defendant under Nebraska workmen's compensation law. Pryor v. Strawn, 73 F.2d 595 (8th Cir. 1934).


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