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Michael B. v. Northfield Retirement Communities

Court of Appeals of Nebraska

February 7, 2017

Michael B., as father and next friend of KaLeigh B., appellant,
v.
Northfield Retirement Communities, appellee.

         1. Workers' Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016), an appellate court may only modify, reverse, or set aside a Workers' Compensation Court decision 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 do not support the order or award.

         2. ___: ___. Determinations by a trial judge of the Workers' Compensation Court will not be disturbed on appeal unless they are contrary to law or depend on findings of fact which are clearly wrong in light of the evidence.

         3. Death: Presumptions. The presumption against suicide is one of law, not of fact, and is based upon the natural characteristics of persons for love of life and fear of death.

         4. Death: Presumptions: Evidence: Proof. The presumption against suicide can be overcome and rebutted by the introduction of evidence tending to show how the death occurred.

         5. ___:___:___:___. If the presumption against suicide is overcome, the burden shifts to the party asserting the death was accidental to adduce evidence of such.

         6. Workers' Compensation: Negligence. A claimant cannot recover under the workers' compensation law if the employee was willfully negligent.

         7. ___:___. Willful negligence consists of a deliberate act, conduct evidencing a reckless indifference to safety, or intoxication at the time of injury without consent, knowledge, or acquiescence of the employer.

         [24 Neb.App. 505] 8. Workers' Compensation: Negligence: Death. Committing suicide generally constitutes willful negligence within the meaning of Neb. Rev. Stat. § 48-151(7) (Reissue 2010) and thereby bars recovery under the workers' compensation law.

         9. Workers' Compensation: Negligence: Death: Evidence. There is an exception to the rule that suicide constitutes willful negligence when the evidence shows that suicide was nonvoluntary.

         10. ___:___:___:___. There are factors that can override a person's free will, and scientific testimony to such can be admitted as evidence that the suicide was not willful, thereby allowing for workers' compensation recovery.

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

          Michael W. Meister for appellant.

          Gregory D. Worth, of McAnany, Van Cleave & Phillips, for appellee.

          Moore, Chief Judge, and Riedmann and Bishop, Judges.

          ...


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