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Elective compensation; schedule; duty.
both employer and employee become subject to the Nebraska Workers'
Compensation Act, both shall be bound by the schedule of compensation
provided in such act, which compensation shall be paid in every case of
injury or death caused by accident or occupational disease arising out
of and in the course of employment, except accidents caused by or
resulting in any degree from the employee's willful negligence as
defined in section 48-151.
- Laws 1913, c. 198, § 9, p. 581;
- R.S.1913, § 3650;
- C.S.1922, § 3032;
- C.S.1929, § 48-109;
- Laws 1943, c. 113, § 2, p. 397;
- R.S.1943, § 48-109;
- Laws 1986, LB 811, § 28.
1. Election2. In course of employment3. Not in course of employment4. Occupational disease5. Willful negligence6. Miscellaneous1. Election
- A finding that one party is an "employer" under section 48-114 and a finding that the other relevant party is an "employee" under section 48-115are necessary to engage this section, which binds the parties to the
compensation schedule of the Nebraska Workers' Compensation Act. Kaiser
v. Millard Lumber, Inc., 255 Neb. 943, 587 N.W.2d 875 (1999).
- Act of employee in electing not
to come under part II of the act is binding on his dependents. White v.
National Window Cleaning Co., 132 Neb. 155, 271 N.W. 341 (1937).
2. In course of employment
- Petition in action for damages
was not defective for failure to allege that plaintiff had not elected
to come under part II. Smith v. Fall, 122 Neb. 783, 241 N.W. 560 (1932).
phrases in the course of and arising out of are not synonymous and
impose a double condition for recovery. Reis v. Douglas County
Hospital, 193 Neb. 542, 227 N.W.2d 879 (1975).
- Act of seeking shelter from cold
weather arose in the course of employment. Appleby v. Great Western
Sugar Co., Inc., 176 Neb. 102, 125 N.W.2d 103 (1963).
- A double condition is imposed and
both must exist to sustain recovery. Simon v. Standard Oil Co., 150
Neb. 799, 36 N.W.2d 102 (1949).
- 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).
- Injuries to one dragging roads
for county, when kicked by horse after suspending work during noon
hour, arose in course of employment. Speas v. Boone County, 119 Neb.
58, 227 N.W. 87 (1929).
- Injuries by reason of being
required to work with incompetent, insane and dangerous fellow workmen
arise out of employment. Dodson v. F. W. Woolworth Co., 118 Neb. 276,
224 N.W. 289 (1929).
- Injury from being overcome by
gas, although attributable in part to occupational disease, arose out
of employment. Van Vleet v. Public Service Co. of York, 111 Neb. 51,
195 N.W. 467 (1923).
- Injury to garage employee, who
fell under truck while attempting to catch ride in performing errand
for employer, arose out of employment. McCrary v. Wolff, 109 Neb. 796,
192 N.W. 237 (1923).
3. Not in course of employment
- Workman on way to procure
materials which it was his ordinary duty to procure, to be used in his
work, injured in collision with streetcar, was acting in course of
employment. Hugh Murphy Const. Co. v. Serck, 104 Neb. 398, 177 N.W. 747
(1920); Coster v. Thompson Hotel Co., 102 Neb. 585, 168 N.W. 191 (1918).
Compensation Act does not authorize an award in case of injury or death
from a tornado. Crow v. The Americana Crop Hail Pool, Inc., 176 Neb.
260, 125 N.W.2d 691 (1964).
- If employee is injured while
absent from the employment for lunch, the injury does not arise out of
nor in the course of employment. Berry v. School District, 154 Neb.
787, 49 N.W.2d 617 (1951).
- Where employee abandons his job
and gets another, and while going to get his tools from his old job is
killed, former employer is not liable under Workmen's Compensation Act
where he owed no duty in connection with return of tools. Hammond v.
Keim, 128 Neb. 310, 258 N.W. 478 (1935).
- Death of workman on destruction
of building by storm, peril being common to all mankind, did not arise
out of employment. Gale v. Krug Park Amusement Co., 114 Neb. 432, 208
N.W. 739 (1926).
- Injury in personal altercation
between employees does not arise out of employment. Urak v. Morris
& Co., 107 Neb. 411, 186 N.W. 345 (1922).
- Where employee whose duty was to
use elevator in trucking meat from floor to floor in packing house,
after taking truck off elevator, returned to scuffle with operator,
accident did not arise out of employment. Feda v. Cudahy Packing Co.,
102 Neb. 110, 166 N.W. 190 (1918).
4. Occupational disease
- Employee assaulted by fellow
workman, whether in anger or play, is not injured in course of
employment. Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Neb.
321, 156 N.W. 509 (1916).
fall was not sufficient to show accident where workman was suffering
from aortic stenosis. Cochran v. Bellevue Bridge Commission, 174 Neb.
761, 119 N.W.2d 292 (1963).
- Existence of occupational disease
before amendment to statute did not preclude recovery where disability
occurred after amendment. Hauff v. Kimball, 163 Neb. 55, 77 N.W.2d 683
- Disability from which plaintiff
was suffering lead poisoning, solely result of disease occupational in
nature, was not compensable. Ritchey v. Herdt, 121 Neb. 874, 236 N.W.
- Injury attributable in part to
accident is compensable, though employee was suffering from
occupational disease. If injury and preexisting disease combine to
produce disability, employee need not prove injury accelerated or
aggravated disease. Skelly Oil Co. v. Gaugenbaugh, 119 Neb. 698, 230
N.W. 688 (1930).
5. Willful negligence
- Illness from disease arising from
ordinary incidents of occupation, and reasonably resulting therefrom is
not compensable. Blair v. Omaha Ice & Cold Storage Co., 102 Neb.
16, 165 N.W. 893 (1917).
negligence requires showing of deliberate act knowingly done, or
reckless indifference to safety. Krajeski v. Beem, 157 Neb. 586, 60
N.W.2d 651 (1953).
- Where defense is willful
negligence of employee, it is error to exclude testimony of witness
that he had warned employee of danger prior to accident. Richards v.
Abts, 135 Neb. 347, 281 N.W. 611 (1938).
coverage exists, Workmen's Compensation Act is exclusive. Marlow v.
Maple Manor Apartments, 193 Neb. 654, 228 N.W.2d 303 (1975).
- Where employee was not in any
manner disabled from performing work that he had done prior to
accident, claim for weekly benefits was not sustained. Wengler v.
Grosshans Lumber Co., 173 Neb. 839, 115 N.W.2d 415 (1962).
- An assault by a fellow employee may be an accident. Myszkowski v. Wilson & Co., Inc., 155 Neb. 714, 53 N.W.2d 203 (1952).
- Fact that city fireman receives
workmen's compensation does not deprive him of right to receive
fireman's pension. City of Lincoln v. Steffensmeyer, 134 Neb. 613, 279
N.W. 272 (1938).
- Mere exertion which combines with
preexisting disease to produce disability is not an accident causing
compensable injury. Gilkeson v. Northern Gas Engineering Co., 127 Neb.
124, 254 N.W. 714 (1934).
- Compensable injury can only arise
while workman is engaged in or about the premises where his duties are
required to be performed or his services require his presence. Hall v.
Austin Western Road Machinery Co., 125 Neb. 390, 250 N.W. 258 (1933).
- Employee has burden of proving
that personal injury was caused to the employee by an accident arising
out of and in the course of his employment. Herbert v. State, 124 Neb.
312, 246 N.W. 454 (1933).