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Maradiaga v. Specialty Finishing and Travelers Indemnity Co.

Court of Appeals of Nebraska

July 19, 2016

Yessica Y. Panameno Maradiaga, Appellant,
v.
Specialty Finishing and Travelers Indemnity Company, Appellees.

         1. Workers' Compensation: Appeal and Error. An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court did not support the order or award.

         2. __:__. An appellate court will not disturb a compensation court judge's findings of fact unless clearly wrong.

         3. __: __ . An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law.

         4. Workers' Compensation: Proof. 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.

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

         6. __: __ . The phrase "arising out of, " as used in Neb. Rev. Stat. § 48-101 (Reissue 2010), describes the accident and its origin, cause, and character, i.e., whether it resulted from the risks arising within the scope of the employee's job; the phrase "in the course of, " as used in § 48-101, refers to the time, place, and circumstances surrounding the accident.

         [24 Neb.App. 200] 7. Workers' Compensation. All risks causing injury to an employee can be placed within three categories: (1) employment related-risks distinctly associated with the employment; (2) personal-risks personal to the claimant, e.g., idiopathic causes; and (3) neutral-a risk that is neither distinctly associated with the employment nor personal to the claimant.

         8. __. Under the positional risk doctrine, when an employee, in the course of his or her employment, is reasonably required to be at a particular place at a particular time and there meets with an accident, although one which any other person then and there present would have met with irrespective of his or her employment, that accident is one "arising out of the employment of the person so injured.

         9. __. Generally, a risk may be classified as "neutral" for either of two reasons: (1) the nature of the risk may be known, but may be associated neither with the employment nor the employee personally, or (2) the nature of the cause of harm may be simply unknown.

         10. __. When there is at least some evidence of a possibility of a personal or idiopathic factor contributing to a fall, the fall is not properly categorized as a purely unexplained fall.

         Appeal from the Workers' Compensation Court: Daniel R. Fridrich, Judge.

          Terry M. Anderson and David M. O'Neill, of Hauptman, O'Brien, Wolf & Lathrop, P.C., for appellant.

          Patrick B. Donahue and Dennis R. Riekenberg, of Cassem, Tierney, Adams, Gotch & Douglas, for appellees.

          Pirtle and Bishop, Judges.

          Bishop, Judge.

         Yessica Y. Panameno Maradiaga appeals from an order of the Nebraska Workers' Compensation Court dismissing with prejudice her amended petition for workers' compensation benefits against her employer, Specialty Finishing, and its insurer, Travelers Indemnity Company. Maradiaga challenges the court's determination that the ankle fracture she sustained in her ...


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