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Nebraska Workers' Compensation Legal Library


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48-151. Terms, defined.

Throughout the Nebraska Workers' Compensation Act, the following words and phrases shall be considered to have the following meaning, respectively, unless the context clearly indicates a different meaning in the construction used:

(1) Physician means any person licensed to practice medicine and surgery, osteopathic medicine, chiropractic, podiatry, or dentistry in the State of Nebraska or in the state in which the physician is practicing;

(2) 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. The claimant has the burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment. There is no presumption from the mere occurrence of such unexpected or unforeseen injury that the injury was in fact caused by the employment;

(3) Occupational disease means only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed;

(4) Injury and personal injuries mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom and personal injuries described in section 48-101.01. 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. The terms include an aggravation of a preexisting occupational disease, the employer being liable only for the degree of aggravation of the preexisting occupational disease. The terms do not include disability or death due to natural causes but occurring while the employee is at work and do not include an injury, disability, or death that is the result of a natural progression of any preexisting condition;

(5) Death, when mentioned as a basis for the right to compensation, means only death resulting from such violence and its resultant effects or from occupational disease;

(6) Without otherwise affecting either the meaning or the interpretation of the abridged clause, personal injuries arising out of and in the course of employment, it is hereby declared not to cover workers except while engaged in, on, or about the premises where their duties are being performed or where their service requires their presence as a part of such service at the time of the injury and during the hours of service as such workers, and not to cover workers who on their own initiative leave their line of duty or hours of employment for purposes of their own. Property maintained by an employer is considered the premises of such employer for purposes of determining whether the injury arose out of employment;

(7) Willful negligence consists of (a) a deliberate act, (b) such conduct as evidences reckless indifference to safety, or (c) intoxication at the time of the injury, such intoxication being without the consent, knowledge, or acquiescence of the employer or the employer's agent;

(8) Intoxication includes, but is not limited to, being under the influence of a controlled substance not prescribed by a physician;

(9) Prospective loss costs means prospective loss costs as defined in section 44-7504 and prepared, filed, or distributed by an advisory organization which has been issued a certificate of authority pursuant to section 44-7518;

(10) Client means client as defined in section 48-2702;

(11) Professional employer organization means professional employer organization as defined in section 48-2702;

(12) Multiple coordinated policy means multiple coordinated policy as defined in section 48-2702;

(13) Master policy means master policy as defined in section 48-2702; and

(14) Whenever in the Nebraska Workers' Compensation Act the singular is used, the plural is considered included; when the masculine gender is used, the feminine is considered included.

Source

    Laws 1913, c. 198, § 52, p. 601;
    R.S.1913, § 3693;
    Laws 1917, c. 85, § 23, p. 216;
    Laws 1921, c. 122, § 1, p. 528;
    C.S.1922, § 3075;
    C.S.1929, § 48-152;
    Laws 1935, c. 57, § 42, p. 211;
    Laws 1937, c. 107, § 1, p. 367;
    C.S.Supp.,1941, § 48-152;
    Laws 1943, c. 113, § 3, p. 398;
    R.S.1943, § 48-151;
    Laws 1947, c. 174, § 2, p. 560;
    Laws 1963, c. 284, § 3, p. 852;
    Laws 1963, c. 287, § 1, p. 862;
    Laws 1986, LB 811, § 78;
    Laws 1993, LB 757, § 15;
    Laws 1998, LB 1010, § 4;
    Laws 1999, LB 216, § 12;
    Laws 2000, LB 1119, § 40;
    Laws 2010, LB579, § 18;
    Laws 2010, LB780, § 2.
    Note: The Revisor of Statutes has pursuant to section 49-769 correlated LB579, section 18, with LB780, section 2, to reflect all amendments.
    Note: Changes made by LB780 became effective July 15, 2010. Changes made by LB579 became operative July 15, 2010.
    Note: For applicability of changes made by Laws 2010, LB780, see section 48-1,111.

Annotations

1. Accident

2. Injury and personal injuries

3. Arising out of and in course of employment

4. Reckless indifference to safety

5. Willful negligence

6. Miscellaneous

1. Accident

A worker's noise-induced hearing loss is a condition resulting from the cumulative effects of work-related trauma, tested under the statutory definition of accident. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

An injured worker must satisfy three elements to prove an injury is the result of an accident: (1) The injury must be unexpected or unforeseen, (2) the accident must happen suddenly and violently, and (3) the accident must produce at the time objective symptoms of injury. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

The compensability of a condition resulting from the cumulative effects of work-related trauma is tested under the statutory definition of accident. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

The "suddenly and violently" component of an "accident" does not mean instantaneously and with force; instead, the element is satisfied if the injury occurs at an identifiable point in time, requiring the employee to discontinue employment and seek medical treatment. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

An injury caused by a mental stimulus does not meet the requirement that a compensable accidental injury involve violence to the physical structure of the body. Zach v. Nebraska State Patrol, 273 Neb. 1, 727 N.W.2d 206 (2007).

The compensability of a condition resulting from the cumulative effects of work-related trauma is to be tested under the statutory definition of accident. For purposes of this section, "suddenly and violently" does not mean instantaneously and with force, but, rather, the element is satisfied if the injury occurs at an identifiable point in time requiring the employee to discontinue employment and seek medical treatment. For purposes of this section, the time of an accident is sufficiently definite, for purposes of proving that an accident happened "suddenly and violently," if either the cause is reasonably limited in time or the result materializes at an identifiable point. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003).

While cumulative effects of repeated work-related trauma have characteristics of both accidental injury and occupational disease, generally the compensability of such a condition is tested under the statutory definition of accident. The "unexpected or unforeseen" requirement of subsection (2) of this section is satisfied if either the cause was of an accidental character or the effect was unexpected or unforeseen. "Suddenly and violently" does not mean instantaneously and with force, but, rather, the element is satisfied if the injury occurs at an identifiable point in time requiring the employee to discontinue employment and seek medical treatment. Where employee returned to work, but did not resume the duties which led to his injury, but instead was transferred to a position requiring less strenuous activity, evidence was sufficient to support finding that injury occurred "suddenly and violently". The third statutory requirement under subsection (2) of this section, that the accident produced objective symptoms, is satisfied if the symptoms manifest themselves according to the natural course of such things without any independent intervening cause. In a workers' compensation case, the plaintiff must establish by a preponderance of the evidence that the injury for which an award is sought arose out of and in the course of employment. If the nature and effect of a claimant's injury are not plainly apparent, then the claimant must provide expert medical testimony showing a causal connection between the injury and the claimed disability. Although expert medical testimony need not be couched in the magic words "reasonable medical certainty" or "reasonable probability", it must be sufficient as examined in its entirety to establish the crucial causal link between the plaintiff's injuries and the accident occurring in the course and scope of the worker's employment. Owen v. American Hydraulics, Inc., 258 Neb. 881, 606 N.W.2d 470 (2000).

The compensability of a condition resulting from the cumulative effects of repeated work-related trauma is to be tested under the statutory definition of accident. Frank v. A & L Insulation, 256 Neb. 898, 594 N.W.2d 586 (1999).

Pursuant to subsection (2) of this section, negligent medical treatment at an employer's first-aid medical facility, by a trained and qualified professional upon a coemployee, may constitute an "accident" as defined in the Nebraska Workers' Compensation Act upon proof and a finding of such facts. Winn v. Geo. A. Hormel & Co., 252 Neb. 29, 560 N.W.2d 143 (1997).

An accident is defined as "an unexpected or unforseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury." The "unexpected or unforseen" requirement of subsection (2) of this section is satisfied if either the cause was of an accidental character or the effect was unexpected or unforseen. Schlup v. Auburn Needleworks, 239 Neb. 854, 479 N.W.2d 490 (1992).

In order to have been the result of an "accident" as defined by this section, an injury must have been unexpected or unforseen, have occurred suddenly and violently, and have produced objective symptoms. The objective symptoms required by subsection (2) of this section exist either where the nature and effect of the injury are plainly apparent or where there is expert testimony showing a causal connection between the injury and the claimed disability. Catlin v. Prairie Marketing, 239 Neb. 363, 476 N.W.2d 675 (1991).

The cumulative effects of repeated work-related trauma which do not, at an identifiable moment, produce objective symptoms requiring, within a reasonably limited period of time, medical attention and the interruption or discontinuance of employment are not the product of an accidental injury within the purview of subsection (2) of this section. The compensability of a condition resulting from the cumulative effects of repeated work-related trauma is to be tested under the definition of an accident contained in subsection (2) of this section. Vencil v. Valmont, 239 Neb. 31, 473 N.W.2d 409 (1991).

The cumulative effects of repeated work-related trauma which do not at an identifiable moment produce objective symptoms requiring, within a reasonably limited period of time, medical attention and the interruption or discontinuance of employment are not the product of an accidental injury within the purview of subsection (2) of this section. Maxson v. Michael Todd & Co., 238 Neb. 209, 469 N.W.2d 542 (1991).

Where an injury is the result of mental stimulus, in order for it to be compensable under the Nebraska workers' compensation law, the injured party must prove an unexpected or unforeseen event, happening suddenly and violently and producing at the time objective symptoms of injury and violence to the physical structure of the body. Sorensen v. City of Omaha, 230 Neb. 286, 430 N.W.2d 696 (1988).

Onset of pronator teres syndrome and carpal tunnel syndrome was an accident within meaning of statute and sufficient evidence was produced to prove causation. Masters v. Iowa Beef Processors, 220 Neb. 835, 374 N.W.2d 21 (1985).

The "unexpected or unforeseen" requirement is satisfied if either the cause was of an accidental character or the effect was unexpected or unforeseen. The "suddenly and violently" element does not mean instantaneously and with force, but instead means at an identifiable point in time requiring the employee to discontinue employment and seek medical treatment. McLaughlin v. Self-Insurance Servs., 219 Neb. 260, 361 N.W.2d 585 (1985).

The requirement that an accident occur suddenly and violently does not mean that it occur instantaneously but is satisfied if the injury occurs at some identifiable point in time, requiring the employee to discontinue employment and seek medical treatment. Trauma to the body may be caused by action other than direct blows and it may occur inside the body. In proving that an injury was caused by accident, an employee must prove three separate elements. Sandel v. Packaging Co. of America, 211 Neb. 149, 317 N.W.2d 910 (1982).

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 "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, while the term "in the course of" refers to the time, place, and circumstances surrounding the accident, and these two phrases are conjunctive and the claimant must establish by a preponderance of the evidence that both conditions exist. Union Packing Co. v. Klauschie, 210 Neb. 331, 314 N.W.2d 25 (1982).

The fact that one may experience pain during employment does not in and of itself prove that the employee is disabled as a result of an accident arising out of and in the course of one's employment. Therefore, where the nature and effect of one's injury is not plainly apparent, it is a subjective condition requiring expert testimony, and an award based solely on the injured employee's testimony, absent objective evidence that an accident within the meaning of the act has occurred, cannot stand. Mack v. Dale Electronics, Inc., 209 Neb. 367, 307 N.W.2d 814 (1981).

Where the claimant's condition satisfied the requirements both of an injury and of an occupational disease, the workmen's compensation court's finding that an accident occurred was affirmed. Crosby v. American Stores, 207 Neb. 251, 298 N.W.2d 157 (1980).

By accident requirement satisfied either if cause was of an accidental character, or if effect was unexpected or unforeseen and happened suddenly and violently. Brokaw v. Robinson, 183 Neb. 760, 164 N.W.2d 461 (1969).

Fall from a ladder constituted an accident arising out of and in the course of employment. Wheeler v. Northwestern Metal Co., 175 Neb. 841, 124 N.W.2d 377 (1963).

Mere exertion incident to occupation does not of itself constitute an accident. Pruitt v. McMaken Transp. Co., 175 Neb. 477, 122 N.W.2d 236 (1963).

Mere exertion, which is no greater than that ordinarily incident to the employment, does not of itself constitute an accident. Green v. Benson Transfer Co., 173 Neb. 226, 113 N.W.2d 61 (1962).

Injury sustained by employee through slipping on ice on public sidewalk was not compensable. Acton v. Wymore School Dist. No. 114, 172 Neb. 609, 111 N.W.2d 368 (1961).

Ordinary exertion, combined with preexisting disease, is not compensable. Hladky v. Omaha Body & Equipment Co., 172 Neb. 197, 109 N.W.2d 111 (1961).

To sustain an award under the Workmen's Compensation Act, there must be shown a causal connection between an accident suffered by claimant and his disability. Tilghman v. Mills, 169 Neb. 665, 100 N.W.2d 739 (1960); Feagins v. Carver, 162 Neb. 116, 75 N.W.2d 379 (1956).

To constitute accident, there must be an unexpected and unforeseen event that happened suddenly and violently. Schanhols v. Scottsbluff Bean & Elevator Co., 168 Neb. 626, 97 N.W.2d 220 (1959).

Symptoms of pain and anguish may constitute objective symptoms within requirements of act. Pittenger v. Safeway Stores, Inc., 166 Neb. 858, 91 N.W.2d 31 (1958); Knudsen v. McNeely, 159 Neb. 227, 66 N.W.2d 412 (1954); Anderson v. Cowger, 158 Neb. 772, 65 N.W.2d 51 (1954).

Evidence was insufficient to show that death from coronary thrombosis was result of accident. Eschenbrenner v. Employers Mutual Casualty Co., 165 Neb. 32, 84 N.W.2d 169 (1957).

Mere exertion which is no greater than that ordinarily incident to the employment cannot of itself constitute an accident. Jones v. Yankee Hill Brick Mfg. Co., 161 Neb. 404, 73 N.W.2d 394 (1955).

Injury sustained while lifting gas range was accident. Gilbert v. Metropolitan Utilities Dist., 156 Neb. 750, 57 N.W.2d 770 (1953).

Accident requires objective symptoms of an injury. Hahl v. Heyne, 156 Neb. 599, 57 N.W.2d 137 (1953).

Burden rests upon claimant to prove injury was caused by an accident as defined in this section. Tucker v. Paxton & Gallagher Co., 153 Neb. 1, 43 N.W.2d 522 (1950).

In absence of objective symptoms of an injury, mere exertion ordinarily incident to employment does not of itself constitute an accidental injury. Muff v. Brainard, 150 Neb. 650, 35 N.W.2d 597 (1949).

An accident within this act is an unexpected or unforeseen event happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. Schwabauer v. State, 147 Neb. 620, 24 N.W.2d 431 (1946).

Where objective symptoms of a ruptured gall bladder were not present, recovery could not be had upon theory that accident aggravated chronic gall bladder disease. Hassmann v. City of Bloomfield, 146 Neb. 608, 20 N.W.2d 592 (1945).

Compensation may be allowed for neurosis if it is a proximate result of injury and results in disability. Lee v. Lincoln Cleaning & Dye Works, 145 Neb. 124, 15 N.W.2d 330 (1944).

Evidence that employee suffering from arteriosclerosis felt sharp pain in eye while moving a bench, and lost sight shortly thereafter, did not prove a compensable accidental injury. Roccaforte v. State Furniture Co., 142 Neb. 768, 7 N.W.2d 656 (1943).

Where employee was cranking a car, which was ordinarily incident to his employment, and no unforeseen or unexpected event happened suddenly or violently, a compensable accidental injury did not occur even though the exertion, combined with preexisting disease, produced disability. Rose v. City of Fairmont, 140 Neb. 550, 300 N.W. 574 (1941).

The word accident as used in the statute shall, unless a different meaning is clearly indicated from context, be construed to mean an unexpected or unforeseen event happening suddenly or violently with or without human fault and producing at the time objective symptoms of the injury. Shamp v. Landy Clark Co., 134 Neb. 73, 277 N.W. 802 (1938).

Trivial accidents which did not aggravate or affect progress of an occupational disease cannot be made basis for recovery. Svoboda v. Mandler, 133 Neb. 433, 275 N.W. 599 (1937).

Slipping and falling into river, from which employee is alleged to have caught cold, is not an accident within definition of the statute. Lang v. Gage County Electric Co., 133 Neb. 388, 275 N.W. 462 (1937).

Being shot by a highwayman while traveling in course of employment is an accident within meaning of the statute. Goodwin v. Omaha Printing Co., 131 Neb. 212, 267 N.W. 419 (1936).

Snow blindness is an accident within meaning of compensation law. Hayes v. McMullen, 128 Neb. 432, 259 N.W. 165 (1935).

Definition of accident is quoted from this section in opinion relating to case where injury and preexisting disease combined to produce disability. Skelly Oil Co. v. Gaugenbaugh, 119 Neb. 698, 230 N.W. 688 (1930).

Death of employee was the result of accident. Kanscheit v. Garrett Laundry Co., 101 Neb. 702, 164 N.W. 708 (1917); Young v. Western Furniture & Mfg. Co., 101 Neb. 696, 164 N.W. 712 (1917).

Injury was result of accident. Manning v. Pomerene, 101 Neb. 127, 162 N.W. 492 (1917).

2. Injury and personal injuries

Under the definition of occupational disease, the unique condition of the employment must result in a hazard which distinguishes it in character from employment generally. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

A compensable injury caused by an occupational disease must involve some physical stimulus constituting violence to the physical structure of the body. Zach v. Nebraska State Patrol, 273 Neb. 1, 727 N.W.2d 206 (2007).

A worker becomes disabled, and thus injured, from an occupational disease at the point in time when a permanent medical impairment or medically assessed work restrictions result in labor market access loss. Ludwick v. TriWest Healthcare Alliance, 267 Neb. 887, 678 N.W.2d 517 (2004).

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).

The terms "injury" and "personal injuries" do not include disability or death due to natural causes but occurring while the employee is at work, nor an injury, disability, or death that is the result of a natural progression of any preexisting condition. Chrisman v. Greyhound Bus Lines, Inc., 208 Neb. 6, 301 N.W.2d 595 (1981).

Personal injury does not include disability or death from natural causes or the result of a natural progression of a preexisting condition. Hyatt v. Kay Windsor, Inc., 198 Neb. 580, 254 N.W.2d 92 (1977).

Plaintiff did not sustain burden of proof that perforated ulcer was in fact caused by the employment. Cook v. Christensen Sand & Gravel Co., 183 Neb. 602, 163 N.W.2d 105 (1968).

Where plaintiff failed to show objective symptoms of an injury, compensation was properly denied. Skalak v. County of Seward, 174 Neb. 659, 119 N.W.2d 43 (1963).

Disability caused by combination of injury and preexisting disease is compensable. Hagler v. Jensen, 173 Neb. 699, 114 N.W.2d 755 (1962).

Term injury includes disablement from occupational disease. Hauff v. Kimball, 163 Neb. 55, 77 N.W.2d 683 (1956).

Hernia resulting from ordinary lifting was not compensable. Foster v. Atlas Lumber Co., 155 Neb. 129, 50 N.W.2d 637 (1952).

Where there is a lack of evidence of violence to the physical structure of the body, an award of compensation will not be sustained. Mook v. City of Lincoln, 143 Neb. 254, 9 N.W.2d 184 (1943).

Plaintiff failed to establish that inhaling of sewer gas was cause of pneumonia which afflicted deceased. Kaffenberger v. Iverson, 142 Neb. 257, 5 N.W.2d 687 (1942).

Claim under Workmen's Compensation Act is not sustainable unless accomplished by violence to the physical structure of the body of the claimant. Bekelski v. Neal Co., 141 Neb. 657, 4 N.W.2d 741 (1942).

Where a public employee of a city suffered serious accidental injury to back of his head which lowered his resistance to infection so that a few days thereafter he died of lobar pneumonia, his death followed the accident with reasonable certainty. Hendershot v. City of Lincoln, 136 Neb. 606, 286 N.W. 909 (1936).

The disease of echinococcosis is not an occupational disease incident to the employment of a beef washer, and question of whether it could be incurred as the result of accident was not determined. Russo v. Swift & Co., 136 Neb. 406, 286 N.W. 291 (1939).

Evidence failed to establish that claimant contracted eczema while telephone operator from use of unsterilized headset. McCall v. Hamilton County Farmers Telephone Assn., 135 Neb. 70, 280 N.W. 254 (1938).

Term injury does not include occupational or infectious disease contracted during course of employment. Park v. School District No. 27, Richardson Cty., 127 Neb. 767, 257 N.W. 219 (1934).

The terms injury and personal injuries mean violence to the physical structure of the body and such disease or infection as may naturally result therefrom. Greseck v. Farmers Union Elevator Co., 123 Neb. 755, 243 N.W. 898 (1932).

3. Arising out of and in course of employment

Under subsection (2) of this section, to sustain an award in a workers' compensation case involving a preexisting disease or condition, a claimant must prove that the injury which is the basis for the claim arose out of and in the course of employment and that the preexisting disease or condition combined with the work-related injury to produce disability, or that the work-related injury aggravated, accelerated, or inflamed the preexisting condition. Tarvin v. Mutual of Omaha Ins. Co., 238 Neb. 851, 472 N.W.2d 727 (1991).

Under subsection (2) of this section, an enhanced degree of proof, establishing a cause-and-effect relationship between a work-related injury and consequent disability, is not among claimant's burdens for obtaining an award of compensation. Clobes v. Nebraska Boxed Beef, 238 Neb. 612, 472 N.W.2d 893 (1991).

There is no presumption from the mere occurrence of an unexpected or unforeseen injury that the injury was in fact caused by employment. Gilbert v. Sioux City Foundry, 228 Neb. 379, 422 N.W.2d 367 (1988).

Under subsection (4) of this section, a disability that is due to natural causes is not compensable under the workers' compensation law. This is true even though the disability occurs while the employee is at work. But, if there is a preexisting occupational disease, then the employer is liable, but only for the degree of aggravation of the preexisting occupational disease. Gilbert v. Sioux City Foundry, 228 Neb. 379, 422 N.W.2d 367 (1988).

Evidence indicating that carpal tunnel syndrome was manifested according to the natural course of such matters and that it was caused by the repeated squeezing of a crimping device required by the employment was sufficient to support the award made by the compensation court. Erving v. Tri-Con Industries, 210 Neb. 339, 314 N.W.2d 253 (1982).

The compensation act extends to and covers workmen only while engaged in, on, or about the premises where their duties are being performed, or where their service requires their presence as a part of such service at the time of injury, and during the hours of service of such workmen. Rowan v. University of Nebraska, 207 Neb. 588, 299 N.W.2d 774 (1980).

Plaintiff's husband died of a heart attack while working but death did not arise out of the employment and, therefore, the Workmen's Compensation Court was correct in refusing compensation. Sellens v. Allen Products Co., Inc., 206 Neb. 506, 293 N.W.2d 415 (1980).

An employee who suffered back pain approximately one-half hour after doing heavy lifting suffered an injury arising out of and in the course of her employment and is entitled to workmen's compensation. Disability is defined in terms of employability and earning capacity rather than bodily function. Thus, one who is in constant pain, unable to lift anything, and whose condition is aggravated by prolonged sitting or standing may be totally disabled. Wolfe v. American Community Stores, 205 Neb. 763, 290 N.W.2d 195 (1980).

Proof of gradual development of neckache while at work did not meet requirement that claimant prove disability was an accident or that it was caused by his employment. Eliker v. D.H. Merritt & Sons, 195 Neb. 154, 237 N.W.2d 130 (1975).

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).

Injury to plaintiff resulting from donation of blood to Red Cross did not arise out of nor in course of employment although employer gave employees time off without loss of pay to participate in program. Mauser v. Douglas & Lomason Co., 192 Neb. 421, 222 N.W.2d 119 (1974).

Under the Workmen's Compensation Act, recreational or social activities are within the course of employment when the employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life. Adler v. Jerryco Motors, Inc., 187 Neb. 757, 193 N.W.2d 757 (1972).

Where conditions of employment environment accentuated natural hazard, which increased hazard contributed to injury, the injury arose out of the employment and is compensable. Ingram v. Bradley, 183 Neb. 692, 163 N.W.2d 875 (1969).

The term arising out of the employment covers all risks of accident from causative acts done or occurring within the scope or sphere of the employment. Chrisman v. Farmers Coop Assn., 179 Neb. 891, 140 N.W.2d 809 (1966).

Employee killed at railroad crossing was not shown to be acting in the course of his employment. Oline v. Nebraska Nat. Gas Co., 177 Neb. 851, 131 N.W.2d 410 (1964).

Where a salesman was injured at a time when and a place where his services were not required to be performed, he was not within protection of Workmen's Compensation Act. McDuffee v. Seiler Surgical Co., Inc., 172 Neb. 325, 109 N.W.2d 384 (1961).

An occupational disease must be due to causes and conditions which are characteristic of and peculiar to the employment. Brown v. Armour & Co., 168 Neb. 835, 97 N.W.2d 342 (1959).

Where employee was injured at entrance to place of employment, injury arose in course of employment. Fidelity & Casualty Co. v. Kennard, 162 Neb. 220, 75 N.W.2d 553 (1956).

Burden rests on claimant to show personal injury arising out of and in the course of employment. Chiles v. Cudahy Packing Co., 158 Neb. 713, 64 N.W.2d 459 (1954).

Where objective symptom of an injury was not shown, death from coronary heart disease was not compensable. Ruderman v. Forman Bros., 157 Neb. 605, 60 N.W.2d 658 (1953).

Employees are not protected while absent from place of employment for lunch. Berry v. School District, 154 Neb. 787, 49 N.W.2d 617 (1951).

Volunteer fireman who slipped in kitchen of his own home and sustained injury was not entitled to compensation, since fall did not result from a risk connected with the employment. Henry v. Village of Coleridge, 147 Neb. 686, 24 N.W.2d 922 (1946).

Where employee, at time of accident, was not on premises of employer or where service for employer required him to be, and accident did not occur during the hours of service, recovery could not be had under act. Nelms v. Mahoney, 147 Neb. 626, 24 N.W.2d 558 (1946).

If an employee suffers an accident and is injured while going to or from work, from or to his home, the accident does not arise out of and in the course of his employment. Lincoln Traction Company v. Reason, 143 Neb. 512, 10 N.W.2d 344 (1943).

Injury is not compensable where police officer, after reporting off duty and having no special assignment and while on his way home from work, was struck by automobile. Baughman v. City of Omaha, 142 Neb. 663, 7 N.W.2d 365 (1943).

An injury to an employee on way home after work does not arise out of or in the course of employment, whether the employee works regular hours or is subject to call by the employer. Richtarik v. Bors, 142 Neb. 226, 5 N.W.2d 199 (1942).

Workmen's Compensation Act extends to and covers only workmen while working on premises where their duties are to be performed, or where their service requires their presence at the time of the injury. Luke v. St. Paul Mercury Indemnity Co., 140 Neb. 557, 300 N.W. 577 (1941).

Workmen who, on their own initiative, leave their line of duty for purposes of their own are not protected by Workmen's Compensation Act. Burlage v. Lefebure Corporation, 137 Neb. 671, 291 N.W. 100 (1940).

Where an employee breaks the continuity of his employment and is injured before he brings himself back into the line of his employment, the injury does not arise out of and in the course of his employment. Bell v. Denton, 136 Neb. 23, 284 N.W. 751 (1939).

If employee is injured while using a dangerous instrument without permission of its owner, for a purpose for which it was not designed, outside of place of his employment, the owner is not liable therefore, unless instrument was used with the acquiescence, or at least the knowledge, of the employer. Albers v. Kipp, 130 Neb. 46, 263 N.W. 593 (1935).

An injury caused by slipping on ice on the public sidewalk in front of employer's store at noon hour, when employee was leaving for lunch and for a personal errand, does not arise out of and in course of employment. De Porte v. State Furniture Co., 129 Neb. 282, 261 N.W. 419 (1935).

Where employee leaves place where his duties are to be performed to engage in personal objective not incidental to employment, the relation of employer and employee ceases until he returns to place where he is required to perform services. McNaught v. Standard Oil Co., 128 Neb. 517, 259 N.W. 517 (1935).

Where employee abandons his job and takes another and while going to get his tools from old job is killed, recovery cannot be had from former employer where he was under no obligation in connection with return of tools. Hammond v. Keim, 128 Neb. 310, 258 N.W. 478 (1935).

Compensable injury can only arise while workman is engaged in or about premises where his duties are being performed, or where they require his presence. Kirkpatrick v. Chocolate Sales Corporation, 127 Neb. 604, 256 N.W. 89 (1934); Hall v. Austin Western Road Machinery Co., 125 Neb. 390, 250 N.W. 258 (1933).

Where employee was killed accidentally while engaged in aiding fellow workman who was accomplishing private purpose, injury did not arise out of employment. Bergantzel v. Union Transfer Co., 124 Neb. 200, 245 N.W. 593 (1932).

Injury to employee while going to work is not compensable hereunder. Siedlik v. Swift & Co., 122 Neb. 99, 239 N.W. 466 (1931).

Where truck driver was injured when repairing truck during afternoon when not reporting to work, he was not entitled to compensation since accident did not arise in course of his employment. Pappas v. Yant Construction Co., 121 Neb. 766, 238 N.W. 531 (1931).

Where workman engaged in dragging roads for county was injured by horse while caring for it during noon hour, accident arose out of and in course of employment and was compensable hereunder. Speas v. Boone County, 119 Neb. 58, 227 N.W. 87 (1929).

Where the actual fracture of an employee's hip occurred outside the scope of employment but the final displacement of the fracture occurred on her employer's premises, there was no injury that "arose out of" employment and no evidence that an employment risk caused the hip fracture to displace. Carter v. Becton-Dickinson, 8 Neb. App. 900, 603 N.W.2d 469 (1999).

4. Reckless indifference to safety

Reckless indifference to safety as used in statute means more than ordinary want of care, and implies a rash and reckless spirit approximating wantonness in a degree, and a willingness to take a chance. Richards v. Abts, 135 Neb. 347, 281 N.W. 611 (1938).

Reckless indifference to safety means more than want of ordinary care, implies rash and careless spirit, approximating but not necessarily wantonness. Farmers Grain & Supply Co. v. Blanchard, 104 Neb. 637, 178 N.W. 257 (1920).

Plaintiff employee's conduct did not evidence reckless indifference to safety or willful negligence. Brown v. York Water Co., 104 Neb. 516, 177 N.W. 833 (1920).

5. Willful negligence

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).

Willful negligence implies deliberate conduct evidencing reckless indifference to safety. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).

Participant in fight was not willfully negligent. Myszkowski v. Wilson & Co., Inc., 155 Neb. 714, 53 N.W.2d 203 (1952).

Willful negligence means deliberate act and implies conduct evidencing reckless indifference to safety. Schroeder v. Sharp, 153 Neb. 73, 43 N.W.2d 572 (1950).

Fact that injured workman sprayed water on burning oil transport did not show deliberate act constituting willful negligence. Clark v. Village of Hemingford, 147 Neb. 1044, 26 N.W.2d 15 (1947).

Whether plaintiff employee's conduct evidenced willful negligence, while probable, was not decided because accident was not in course of employment. Feda v. Cudahy Packing Co., 102 Neb. 110, 166 N.W. 190 (1918).

6. Miscellaneous

A job transfer can constitute a discontinuance of work that establishes the date of injury resulting from an accident under the Nebraska Workers' Compensation Act. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

An employee establishes an identifiable point in time when a repetitive trauma injury occurs if the employee stops work and seeks medical treatment. The law does not establish a minimum time that an employee must discontinue work for medical treatment to be eligible for benefits. The length of time is not the controlling factor. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

Pursuant to subsection (2) of this section, the law does not establish a minimum amount of time which must be missed from work for medical treatment in order for an employee to be eligible for workers' compensation benefits. The law requires only that the employee stop work and seek medical treatment. Vonderschmidt v. Sur-Gro and Tri-State Ins. Co. of Minnesota, 262 Neb. 551, 635 N.W.2d 405 (2001).

The terms "trade," "occupation," "process," or "employment" used in subsection (3) of this section refer not to the specific employer of the injured employee, but, rather, to employers as a whole in a particular occupation. Berggren v. Grand Island Accessories, 249 Neb. 789, 545 N.W.2d 727 (1996).

A disease aggravated by conditions characteristic of and peculiar to a particular employment is compensable. A preexisting disease and an aggravation of that disease may combine to produce a compensable injury. The preexisting disease need not be occupational. Miller v. Goodyear Tire & Rubber Co., 239 Neb. 1014, 480 N.W.2d 162 (1992).

Under subsection (4) of this section, an employee may recover for a new injury or aggravation of an injury resulting from medical or surgical treatment if an intervening independent cause does not break the chain of causation between the employee's original injury and the new or aggravated injury. Roan Eagle v. State, 237 Neb. 961, 468 N.W.2d 382 (1991).

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).

Pursuant to subsection (2) of this section, a claimant is entitled to an award for a work-related injury and disability if the claimant shows, by a preponderance of the evidence, that the claimant sustained an injury and disability proximately caused by an accident which arose out of and in the course of the claimant's employment, even though a preexisting disability or condition has combined with the present work-related injury to produce the disability; there is no enhanced degree of proof required for claimants in cases where preexisting conditions combined with a work-related injury to produce a disability. Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990).

Under subdivision (2) of this section, medical expert testimony is required to show that a work-related dislocated shoulder combined with a preexisting recurrent shoulder problem to cause a plaintiff's need for surgery to correct the preexisting condition. Kingslan v. Jensen Tire Co., 227 Neb. 294, 417 N.W.2d 164 (1987).

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).

Peritoneal mesothelioma is a compensable occupational disease within the meaning of this section. Osteen v. A.C. and S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981).

The requirement that objective symptoms be produced "at the time" of the accident is satisfied if they appear in natural course without any intervening cause, and need not be observed by anyone but claimant. Salinas v. Cyprus Industrial Minerals Co., 197 Neb. 198, 247 N.W.2d 451 (1976).

The burden of proving intoxication as a defense is on the employer. Johnson v. Hahn Bros. Constr., Inc., 188 Neb. 252, 196 N.W.2d 109 (1972).

A workmen's compensation claimant with atherosclerosis, which is a personal risk, has the burden of showing, unaided by presumptions, that an employment risk greater than that attributable to ordinary nonemployment life was a cause of his injury. Conn v. ITL, Inc., 187 Neb. 112, 187 N.W.2d 641 (1971).

Without evidence as to the cause of death, there is no presumption that the death arose out of and in the course of employment. Hannon v. J. L. Brandeis & Sons, Inc., 186 Neb. 122, 181 N.W.2d 253 (1970).

Evidence sufficient to show that loss of eye was traceable to accidental injury. Yost v. City of Lincoln, 184 Neb. 263, 166 N.W.2d 595 (1969).

Effect of substituting injury for event in definition of accident discussed. Harmon v. City of Omaha, 183 Neb. 352, 160 N.W.2d 189 (1968).

Legislative change of definition of accident in this section from event to injury discussed. Williams v. Dobberstein, 182 Neb. 862, 157 N.W.2d 776 (1968).

An inference based solely on speculation or possibility will not sustain an award of compensation. Hardin v. Moorman Manuf. Co., 179 Neb. 869, 140 N.W.2d 820 (1966).

Objective symptoms of an injury are those which may be observed by others. Schoenrock v. School Dist. of Nebraska City, 179 Neb. 621, 139 N.W.2d 547 (1966).

An occupational disease is a disease which is due to causes and conditions characteristic and peculiar to the employment. Ritter v. Hawkeye-Security Ins. Co., 178 Neb. 792, 135 N.W.2d 470 (1965).

The aggravation of an employee's existing physical condition by an occupational hazard which is characteristic and peculiar to the employment is compensable. Riggs v. Gooch Milling & Elevator Co., 173 Neb. 70, 112 N.W.2d 531 (1961).

Workmen who leave their line of duty for purposes of their own are not protected. Seger v. Keating Implement Co., 157 Neb. 560, 60 N.W.2d 598 (1953); Simon v. Standard Oil Co., 150 Neb. 799, 36 N.W.2d 102 (1949).

When accident to eye results after week or more in diseased condition, injury occurred when diseased condition culminated. Johansen v. Union Stock Yards Co., 99 Neb. 328, 156 N.W. 511 (1916).


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