Workers' Compensation: Appeal and Error.
Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016),
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 do not support
the order or award.
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.
Workers' Compensation. The Nebraska
Workers' Compensation Act provides that when an employee
suffers personal injury caused by accident or occupational
disease, arising out of and in the course of his or her
employment, such employee shall receive compensation from his
or her employer if the employee was not willfully negligent
at the time of receiving such injury.
Workers' Compensation: Words and
Phrases. The phrase "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.
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.
Neb. 590] 6. __. Generally, harm that can be attributed
solely to personal or idiopathic causes is universally
Unexplained-fall cases begin with a completely neutral origin
of a mishap, while idiopathic-fall cases begin with an origin
which is admittedly personal and which therefore requires
some affirmative employment contribution to offset the prima
facie issue of personal origin.
Appeal and Error. Absent plain error, when
an issue is raised for the first time in an appellate court,
it will be disregarded inasmuch as the trial court cannot
commit error regarding an issue never presented and submitted
to it for disposition.
Plain error is plainly evident from the record and of such a
nature that to leave it uncorrected would result in damage to
the integrity, reputation, or fairness of the judicial
Workers' Compensation. A workers'
compensation award cannot be based on possibility or
speculation, and if an inference favorable to the claimant
can be reached only on the basis thereof, then the claimant
A finding in regard to causation of an injury is one for
determination by the Workers' Compensation Court as the
finder of fact.
from the Workers' Compensation Court: James R. Coe,
M. Handley, of Watson & Carroll, P.C., L.L.O., for
Jennifer S. Caswell and Zachary W. Anderson, of Baylor,
Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Schreiner, District Judge.
Maroulakos appeals from a Workers' Compensation
Court's order, which determined his injuries did not
"arise out of his employment. At trial, Maroulakos
argued only that his injury arose out of employment, because
his fall resulted from a risk of employment, but on appeal,
he argues that his injury arose out of employment under the
"increased-danger" rule, because he fell into an
industrial shelving unit. We hold [300 Neb. 591] Maroulakos
waived this argument by failing to present it to the
compensation court. Therefore, we affirm.
August 2014, Maroulakos was working for Walmart Associates,
Inc. (Walmart), as an overnight support manager. After coming
back from his meal break, Maroulakos felt overheated,
exhausted, and lightheaded. He told some coworkers that he
would go home once he finished his overnight stock audits.
Video surveillance captured Maroulakos walking past product
aisles, approaching a product shipper, moving to the right of
and away from the shipper, and then falling into a product
on the floor, Maroulakos appeared to have a seizure lasting
at least 30 seconds. As a result of the accident, Maroulakos
sustained a facial laceration, sinus fractures, and possibly
a traumatic brain injury causing neurocognitive impairment.
amended complaint requested workers' compensation
benefits, alleging personal injuries that resulted from his
tripping over a pallet in the course of his employment. At
trial, Maroulakos testified he had no memory of the actual
fall and relied on Walmart's video surveillance, his
medical reports, and a report by neurologist Srinivasan Mani,
report stated that based on Maroulakos' medical history
and the video surveillance, it appeared Maroulakos tripped
and fell and sustained a head injury, which caused a
subsequent seizure. Mani diagnosed Maroulakos as likely
suffering from an associated cognitive disturbance, which he
opined resulted from the fall. The report, however, made no
mention of Maroulakos' hitting an industrial shelving
unit as he fell or whether his injuries were inconsistent
with falling to the floor. The only reference to
Maroulakos' hitting a shelf was in a "History of
Present Illness" in one of the medical reports, which
contained the following statement: "Patient fell on the
end of shelf and sustained facial laceration."
Neb. 592] Walmart called two employees who had witnessed
Maroulakos' fall. One witness stated that she was
standing in a product aisle 2 feet from Maroulakos when he
walked face first into an industrial shelving unit and fell
backward onto the floor. She stated she did not see
Maroulakos trip over anything or remember a pallet on the
floor. The other witness was 40 to 50 feet away but looked
toward Maroulakos, in the midst of falling, after he heard
grunting and other audible noises from Maroulakos'
direction. The witness stated that Maroulakos fell face first
into a shelf but that he did not remember seeing a pallet on
presented at trial showed that when Maroulakos was 12 years
old, he contracted viral encephalitis, which required him to
undergo at least seven brain surgeries to remove a cyst and
implant a shunt. Because Maroulakos suffered at least one
seizure during these surgeries, he was prescribed antiseizure
medication, which he stopped taking after high school.
Maroulakos testified he did not have any seizures or related
health issues between being removed from antiseizure
medication and his August 2014 fall, at which time he was 44
compensation court determined that the only issue presented
was whether Maroulakos' accident arose out of employment.
It rejected Maroulakos' argument and Mani's
interpretation of the video that he had tripped over a
pallet. Instead, the court ruled that the surveillance video
snowed that "[Maroulakos] begins to rock back and forth
on his feet as he walks and staggers briefly . . . then falls
to the ground." The court determined Maroulakos'
fall resulted from an idiopathic seizure and syncope event
that was personal to him and not compensable under the
Nebraska Workers' Compensation Act. The court
dismissed Maroulakos' complaint with prejudice.
Neb. 593] Maroulakos perfected a timely appeal. We removed
the case to our docket on our own motion pursuant to our
authority to regulate the caseloads of the Nebraska Court of
Appeals and this court.
ASSIGNMENT OF ERROR
assigns error to the trial court's determination that his