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Maroulakos v. Walmart Associates, Inc.

Supreme Court of Nebraska

July 20, 2018

Miko Maroulakos, appellant,
v.
Walmart Associates, Inc., appellee.

         1. 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.

         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. 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.

         4. 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.

         5. 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.

         [300 Neb. 590] 6. __. Generally, harm that can be attributed solely to personal or idiopathic causes is universally noncompensable.

         7.__. 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.

         8. 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.

         9.__. 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 process.

         10. 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 cannot recover.

         11.__. A finding in regard to causation of an injury is one for determination by the Workers' Compensation Court as the finder of fact.

          Appeal from the Workers' Compensation Court: James R. Coe, Judge.

          David M. Handley, of Watson & Carroll, P.C., L.L.O., for appellant.

          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.

          FUNKE, J.

         Miko 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.

         I. BACKGROUND

         In 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 aisle.

         While 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.

         Maroulakos' 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, M.D.

         Mani's 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."

         [300 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 the floor.

         Evidence 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 years old.

         The 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.[1] The court dismissed Maroulakos' complaint with prejudice.

         [300 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.[2]

         II. ASSIGNMENT OF ERROR

         Maroulakos assigns error to the trial court's determination that his accident ...


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