Yessica Y. Panameno Maradiaga, Appellant,
Specialty Finishing and Travelers Indemnity Company, Appellees.
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.
__:__. An appellate court will not disturb a compensation
court judge's findings of fact unless clearly wrong.
__ . An appellate court is obligated in workers'
compensation cases to make its own determinations as to
questions of law.
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
__:__. 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
__ . 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.
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.
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.
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.
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
from the Workers' Compensation Court: Daniel R. Fridrich,
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.
and Bishop, Judges.
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 ...