McDaniel v. Western Sugar Co-op ( 2015 )

- 35 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
McDANIEL v. WESTERN SUGAR CO-OP
Cite as 23 Neb. App. 35Phillip McDaniel, appellant, v. Western Sugar
Cooperative and The Phoenix Insurance
Company, Inc., appellees.
___ N.W.2d ___
Filed July 14, 2015. No. A-14-793.
1. Workers’ Compensation: Appeal and Error. Under Neb. Rev. Stat.
§ 48-185 (Cum. Supp. 2014), 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 suf-
ficient competent evidence in the record to warrant the making of the
order, judgment, or award; or (4) the findings of fact by the compensa-
tion court do not support the order or award.
2. ____: ____. On appellate review, the findings of fact made by the trial
judge of the Workers’ Compensation Court have the effect of a jury ver-
dict and will not be disturbed unless clearly wrong.
3. Workers’ Compensation: Evidence: Appeal and Error. If the record
contains evidence to substantiate the factual conclusions reached by the
trial judge in workers’ compensation cases, an appellate court is pre-
cluded from substituting its view of the facts for that of the compensa-
tion court.
4. Workers’ Compensation: Proof. For benefits to be recovered under the
Nebraska Workers’ Compensation Act, the claimant must prove that the
employee suffered injuries because of an accident arising out of and in
the course of his or her employment.
5. Workers’ Compensation: Words and Phrases. The phrase “arising
out of the employment” is used to describe the accident and its origin,
cause, and character, i.e., whether it resulted from the risks arising from
within the scope or sphere of the employee’s job.
6. ____: ____. All risks causing injury to an employee can be placed
within three categories: (1) risks distinctly associated with the employ-
ment, (2) risks personal to the claimant, and (3) “neutral” risks—i.e.,
risks having no particular employment or personal character.
- 36 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
McDANIEL v. WESTERN SUGAR CO-OP
Cite as 23 Neb. App. 357. Workers’ Compensation: Assault: Words and Phrases. In order for an
assault for personal reasons to be brought within the sphere of “arising
out of the employment,” the employment must somehow exacerbate the
animosity or dispute or facilitate an assault which would not otherwise
be made.
8. Workers’ Compensation. The determination of whether the employ-
ment creates a situation wherein an assailant will commit a crime that
he or she would not otherwise commit is a difficult question of fact.
9. Workers’ Compensation: Assault. When assessing risk in workers’
compensation cases involving assaults, the focus is on the motivation for
the assault.
10. ____: ____. The general rule is that assaults motivated by personal rea-
sons, although occurring at work, are not compensable under workers’
compensation law.
Appeal from the Workers’ Compensation Court: Michael K.
High, Judge. Affirmed.
Rolf Edward Shasteen, of Shasteen & Morris, P.C., L.L.O.,
for appellant.
Patrick B. Donahue and Dennis R. Riekenberg, of Cassem,
Tierney, Adams, Gotch & Douglas, for appellees.
Moore, Chief Judge, and Irwin and R iedmann, Judges.
R iedmann, Judge.
INTRODUCTION
Phillip McDaniel appeals from the order of the workers’
compensation court dismissing his petition with prejudice. On
appeal, he argues that the compensation court erred in finding
that an assault on him by a coworker did not arise out of his
employment. Because we find that the compensation court’s
factual finding is not clearly wrong, we affirm.
BACKGROUND
McDaniel was employed by Western Sugar Cooperative
(Western Sugar), performing tasks such as monitoring machin-
ery and ensuring work areas were clean. On February 15,
2013, McDaniel was scheduled to work from 8 p.m. until 8
a.m. Around 8:30 p.m., while performing his work duties,
- 37 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
McDANIEL v. WESTERN SUGAR CO-OP
Cite as 23 Neb. App. 35he encountered his coworker Jason Bates. The two men
walked together and talked at first. Bates then began assault-
ing McDaniel with a brass hammer. Bates called McDaniel an
“f’ing chimo,” which is “short for child molester,” because
he discovered on the Internet that McDaniel is a registered
sex offender. McDaniel suffered injuries to his nose, clavicle,
and left shoulder. Because Western Sugar has a zero-tolerance
policy relating to workplace violence, Bates’ employment was
immediately terminated.
Although McDaniel and Bates lived approximately three
blocks away from each other in the same small town, they
did not know each other outside of work. On occasion, Bates
would ask McDaniel work-related questions and McDaniel
would assist him. Once, McDaniel and his wife gave Bates a
ride home from work upon a request from McDaniel’s boss.
The men had never previously exchanged angry words, how-
ever, or had any sort of prior altercations.
After the incident, McDaniel filed a petition in the work-
ers’ compensation court alleging that the assault arose out of
and in the course of his employment. Trial was held, and the
compensation court subsequently entered an order finding that
the injury did not arise out of McDaniel’s employment. The
court determined that McDaniel was assaulted for reasons
personal to Bates, namely McDaniel’s being a registered sex
offender, and that nothing in the workplace precipitated the
assault. Accordingly, it held that McDaniel was not entitled to
workers’ compensation benefits and his petition was dismissed.
McDaniel timely appeals to this court.
ASSIGNMENTS OF ERROR
McDaniel assigns that the workers’ compensation court
erred in finding that the assault on him by Bates, his coworker,
did not arise out of his employment and in dismissing his peti-
tion with prejudice.
STANDARD OF REVIEW
[1-3] Under Neb. Rev. Stat. § 48-185 (Cum. Supp. 2014),
an appellate court may modify, reverse, or set aside a Workers’
- 38 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
McDANIEL v. WESTERN SUGAR CO-OP
Cite as 23 Neb. App. 35Compensation Court decision only when (1) the compensa-
tion 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. Manchester v. Drivers Mgmt., 278 Neb. 776, 775
N.W.2d 179 (2009). On appellate review, the findings of fact
made by the trial judge of the Workers’ Compensation Court
have the effect of a jury verdict and will not be disturbed
unless clearly wrong. Id. If the record contains evidence to
substantiate the factual conclusions reached by the trial judge
in workers’ compensation cases, an appellate court is pre-
cluded from substituting its view of the facts for that of the
compensation court. Id.ANALYSIS
[4,5] The sole issue in this case is whether the assault of
McDaniel arose out of his employment. For benefits to be
recovered under the Nebraska Workers’ Compensation Act,
the claimant must prove that the employee suffered injuries
because of an accident arising out of and in the course of his
or her employment. Monahan v. United States Check Book
Co., 4 Neb. App. 227, 540 N.W.2d 380 (1995). The phrase
“arising out of the employment” is used to describe the
accident and its origin, cause, and character, i.e., whether it
resulted from the risks arising from within the scope or sphere
of the employee’s job. Id.[6,7] All risks causing injury to an employee can be placed
within three categories: (1) risks distinctly associated with
the employment, (2) risks personal to the claimant, and (3)
“neutral” risks—i.e., risks having no particular employment
or personal character. Id. In order for an assault for personal
reasons to be brought within the sphere of “arising out of
the employment,” the employment must somehow exacerbate
the animosity or dispute or facilitate an assault which would
not otherwise be made. Id. McDaniel argues that but for his
- 39 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
McDANIEL v. WESTERN SUGAR CO-OP
Cite as 23 Neb. App. 35shared employment with Bates, the two men would have
never encountered each other and Bates would have never
known about McDaniel’s criminal history. Thus, he asserts
that the employment facilitated the assault and he should be
entitled to compensation. We disagree with McDaniel’s argu-
ment and find that the compensation court’s factual finding is
not clearly wrong.
[8] The determination of whether the employment creates
a situation wherein an assailant will commit a crime that he
or she would not otherwise commit is a difficult question of
fact. Id. The Monahan court noted that this standard of review
was precisely the reason it could not reverse, set aside, or
modify the trial court’s ruling in that case. In Monahan, a
woman shot and killed her estranged, abusive husband at their
mutual workplace. This court upheld the denial of workers’
compensation benefits because the evidence supported the trial
court’s factual determination that the shooting was motivated
by purely personal reasons, not anything concerning their
employment. See id.[9] We recognize the factual distinctions pointed out by
McDaniel between the instant case and Monahan. Here,
McDaniel and Bates did not have a relationship outside of
their employment. The husband and wife in Monahan had a
personal and volatile history. However, our case law indicates
that when assessing risk in these types of cases, the focus is
on the motivation for the assault. See id. See, also, P.A.M.
v. Quad L. Assocs., 221 Neb. 642, 380 N.W.2d 243 (1986);
Myszkowski v. Wilson and Company, Inc., 155 Neb. 714, 53
N.W.2d 203 (1952). In Myszkowski, the Nebraska Supreme
Court observed that practically all authority holds that an
assault by one employee upon another for personal reasons, not
growing out of the relation as fellow employees, or out of acts
in the performance of their work, cannot be held to arise out
of the employment. In both P.A.M. and Myszkowski, however,
the court ultimately decided that the assault in question was
not the result of purely personal animosity, but, rather, was a
dispute over some element of the employment.
- 40 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
McDANIEL v. WESTERN SUGAR CO-OP
Cite as 23 Neb. App. 35There is no evidence in the present case of any employ-
ment dispute between McDaniel and Bates or any animos-
ity over work performance. Although the sole relationship
between the men was as coworkers, the motivation for the
assault was Bates’ personal feelings toward discovering that
McDaniel is a sex offender.
[10] McDaniel contends that even if the motivation for the
assault was purely personal, he is still entitled to compensa-
tion because the employment facilitated the assault. To resolve
this issue, we look again to Monahan v. United States Check
Book Co., 4 Neb. App. 227, 232, 540 N.W.2d 380, 384 (1995),
where we stated:
As the Nebraska Supreme Court mentioned in P.A.M.
and Myszkowski, the general rule is that assaults moti-
vated by personal reasons, although occurring at work,
are not compensable under workers’ compensation law.
See 1 [Arthur] Larson & [Lex K.] Larson, [The Law of
Workmen’s Compensation] § 11.00 at 3-178 [(1995)]
(“[a]ssaults for private reasons do not arise out of the
employment unless, by facilitating an assault which
would not otherwise be made, the employment becomes
a contributing factor”). See, also, id., § 11.21(a) at 3-274
(“[w]hen the animosity or dispute that culminates in an
assault is imported into the employment from claim-
ant’s domestic or private life, and is not exacerbated by
the employment, the assault does not arise out of the
employment under any test”); 82 Am. Jur. 2d Workers’
Compensation § 358 at 393 (1992) (“where an employee
is assaulted and injury is inflicted upon him through
animosity and ill will arising from some cause wholly
disconnected with the employer’s business or the employ-
ment, the employee cannot recover compensation simply
because he is assaulted when he is in the discharge of
his duties”).
In the present case, Bates’ motivation for assaulting
McDaniel was McDaniel’s criminal history. Bates may not
have had the opportunity to encounter McDaniel or learn
- 41 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
McDANIEL v. WESTERN SUGAR CO-OP
Cite as 23 Neb. App. 35of his status as a sex offender but for their mutual employ-
ment; however, the assault did not stem from their relation
as coworkers or out of a dispute related to the performance
of their work. The cause of the assault was wholly discon-
nected from Western Sugar’s business and the employment of
McDaniel and Bates.
Moreover, even though Western Sugar provided an envi-
ronment and opportunity for Bates to carry out the assault,
we cannot find that the trial court’s factual finding is clearly
wrong. Reiterating our standard of review for factual findings
in workers’ compensation cases in Monahan, supra, we noted
that it is indeed plausible that the wife in that case would not
have assaulted and murdered her husband but for the fact that
he worked alone at night. Yet, we concluded that it is equally
plausible that she would in fact have assaulted and murdered
him anywhere on the night in question. Similarly here, it is
plausible that but for their shared employment, Bates would
have never met McDaniel, learned of his criminal history,
or had the opportunity for the assault. However, it is equally
plausible, as Western Sugar suggests, that as the men lived
near to each other in a town of 1,500 people, they would have
encountered each other and Bates would have had the ability
and opportunity to carry out his assault elsewhere.
Because there is evidence in the record to support the trial
court’s factual finding that the assault on McDaniel did not
arise out of his employment, we cannot find that the court’s
denial of workers’ compensation benefits was clearly wrong.
CONCLUSION
For the reasons stated above, we affirm.
A ffirmed.