Brittain v. H & H Chevrolet ( 2014 )

Decisions of the Nebraska Court of Appeals
986 21 NEBRASKA APPELLATE REPORTS
from the fair market value of the vehicle. The county court’s
determination is supported by competent evidence and is nei-
ther arbitrary, capricious, nor unreasonable. As such, we accept
the factual finding of the county court on this issue.
VI. CONCLUSION
Having determined that we have jurisdiction over this
appeal, we find that the decision of the county court conforms
to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable. As a result, the deci-
sion of the county court is affirmed.
Affirmed.
Donald L. Brittain, appellant, v. H & H
Chevrolet LLC and Mid-Century
Insurance Company, appellees.
___ N.W.2d ___
Filed April 29, 2014. No. A-13-384.
1. Workers’ Compensation: Appeal and Error. In determining whether to affirm,
modify, reverse, or set aside a judgment of the Workers’ Compensation Court, a
higher appellate court reviews the trial judge’s findings of fact, which will not be
disturbed unless clearly wrong.
2. Workers’ Compensation: Judgments: Appeal and Error. Where there is no
factual dispute, the question of whether the injury arose out of and in the course
of employment is clearly one of law, in connection with which a reviewing court
has an obligation to reach its own conclusions independent of those reached by
the inferior courts.
3. Employer and Employee. An activity is related to the employment if it carries
out the employer’s purposes or advances its interests directly or indirectly.
4. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the controversy before it.
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Affirmed.
Joseph W. Grant and Michael R. Peterson, of Hotz, Weaver,
Flood, Breitkreutz & Grant, for appellant.
Stacy L. Morris, of Lamson, Dugan & Murray, L.L.P., for
appellees.
Decisions of the Nebraska Court of Appeals
BRITTAIN v. H & H CHEVROLET 987
Cite as 21 Neb. App. 986Inbody, Chief Judge, and Pirtle and Riedmann, Judges.
Pirtle, Judge.
INTRODUCTION
Donald L. Brittain appeals the order of dismissal issued by
the Nebraska Workers’ Compensation Court on April 10, 2013,
in which the court found that Brittain’s injury did not occur in
the scope and course of his employment and that his injury did
not arise out of his employment with H & H Chevrolet LLC
(H&H). For the reasons that follow, we affirm.
BACKGROUND
Brittain worked as a lot porter for H&H, an automobile
dealership located in Omaha, Nebraska. The owners of H&H
purchased the dealership in January 2010, but Brittain had
worked at the dealership’s location for approximately 7 or
8 years. One of his job duties was to remove trash from the
service building and dispose of it in Dumpsters located on the
premises. Other duties included washing cars, sweeping floors,
and driving people to locations and picking them up.
Brittain had a hobby which included scavenging discarded
metal from various sources and selling it to a local scrapyard.
He stored the metal in his home for approximately 3 months
and then sold the metal to a recycling center, making about $20
to $30 per load.
On the morning of February 27, 2012, Brittain loaded a cart
with two trash cans from the service building and wheeled the
cart across the parking lot to a Dumpster. While dumping the
trash, Brittain noticed a piece of metal in one of the trash cans.
Brittain decided to salvage the piece of metal he found in the
trash can that morning. He removed it from the can and began
wheeling the cart back toward the service building.
Brittain stopped at his personal vehicle, a truck, to load the
metal so he could take it home and sell it. Brittain stopped the
cart near the front of his truck. Brittain testified that the park-
ing lot was clear of snow and ice that day, except for the area
near the back of his truck where H&H had piled plowed snow.
Despite the snow and ice, Brittain walked toward the back
of his truck to deposit the metal in the truck bed. Brittain’s
Decisions of the Nebraska Court of Appeals
988 21 NEBRASKA APPELLATE REPORTS
onsite incident report stated he stood on a “block of ice”
while trying to put something in the truck bed. He testified he
unlocked the sliding back gate on his truck, put the metal in
the truck bed, closed the gate, and locked it.
As Brittain finished loading the metal, he turned to go back
to the front of the truck when he “caught some ice” and fell
to the ground. He called on his radio for help, and a coworker
responded. Brittain was found lying near his truck. Brittain told
the worker that he had slipped and fallen on a “little chunk
of ice.” The worker called for medical attention, and Brittain
sought treatment for an injury to his right hip. Brittain testified
that had he not stopped to put this piece of metal in his truck,
he would not have fallen.
Brittain had surgery to replace his right hip on May 23,
2012. Brittain testified that this hip had been giving him some
discomfort prior to the fall and that it affected the way he made
certain motions. Brittain previously had both hips replaced in
1988, and he had suffered a fall in 2009, after which he com-
plained of hip pain.
Brittain was terminated from his employment with H&H
after his 12 weeks of family medical leave expired. There was
no reason disclosed by H&H for ending his employment, and
he was not otherwise disciplined in relation to his fall.
H&H’s employee handbook included provisions prohibiting
“outside employment” and taking “new and used parts” from
the premises. Brittain stated that he is unable to read very
well, but that he had his wife read the handbook to him. He
signed an acknowledgment that he had read and would abide
by the terms of the handbook. He testified he did not feel he
was breaking any rules by removing the metal pieces from the
H&H premises.
Brittain further testified that an employee named “John”
recycled items from H&H. Brittain stated that he never talked
to John about it, but that he knew John was taking metal from
H&H because he watched John load the metal into his car.
Brittain testified that he did not seek permission from H&H to
do the same.
Steve Hinchcliff, the president and chief executive officer
of H&H, testified that John was an employee who worked for
Decisions of the Nebraska Court of Appeals
BRITTAIN v. H & H CHEVROLET 989
Cite as 21 Neb. App. 986a different dealership prior to H&H’s purchase of that busi-
ness. Hinchcliff testified that John had specifically sought
permission to recycle certain metal parts as he continued his
employment with H&H. Hinchcliff testified that John was
allowed to take certain metal items, on his own time, with per-
mission. Hinchcliff testified that there were no other employ-
ees, to his knowledge, who asked for, or were given, the same
permission. He testified that Brittain did not have permission
to remove parts from the premises.
Brittain sought workers’ compensation benefits for tempo-
rary total disability; past, current, and future hospital and medi-
cal expenses; penalties; interest; and attorney fees.
The parties stipulated that Brittain was an employee of
H&H on February 27, 2012; Douglas County was the proper
venue for this case; Brittain’s average weekly wage was $381;
and he provided notice of the accident as required by Neb.
Rev. Stat. § 48-133 (Reissue 2010).
The Workers’ Compensation Court issued an order of dis-
missal on April 10, 2013. The court found Brittain had no
work-related business for being at his truck on his way back
from emptying the trash cans. The court found that Brittain
knew there was ice by his truck and chose to stop there, even
though there was no ice anywhere else in the lot. The court
further found Brittain substantially deviated from his employ-
ment and was no longer in the course and scope of his employ-
ment when he was injured, and the court dismissed Brittain’s
petition with prejudice. Brittain timely appeals.
ASSIGNMENTS OF ERROR
Brittain asserts the court erred in finding that the accident
did not occur in the scope and course of his employment and
that his injury did not arise out of his employment. Brittain
also asserts the court erred in failing to award temporary dis-
ability benefits, hospital and medical benefits, penalties, inter-
est, and attorney fees.
STANDARD OF REVIEW
[1] In determining whether to affirm, modify, reverse, or
set aside a judgment of the Workers’ Compensation Court, a
Decisions of the Nebraska Court of Appeals
990 21 NEBRASKA APPELLATE REPORTS
higher appellate court reviews the trial judge’s findings of fact,
which will not be disturbed unless clearly wrong. Cervantes
v. Omaha Steel Castings Co., 20 Neb. App. 695, 831 N.W.2d
709 (2013).
[2] Where there is no factual dispute, the question of whether
the injury arose out of and in the course of employment is
clearly one of law, in connection with which a reviewing court
has an obligation to reach its own conclusions independent of
those reached by the inferior courts. Misek v. CNG Financial,
265 Neb. 837, 660 N.W.2d 495 (2003).
ANALYSIS
According to the Nebraska Revised Statutes:
When personal injury is caused to an employee by
accident or occupational disease, arising out of and in the
course of his or her employment, such employee shall
receive compensation therefor from his or her employer
if the employee was not willfully negligent at the time of
receiving such injury.
Neb. Rev. Stat. § 48-101 (Reissue 2010).
Brittain asserts the trial court erred in finding his injury was
not compensable, because the trial court found the accident
did not arise out of his employment nor did the accident occur
in the course of his employment with H&H.
Course of Employment.
The “in the course of” requirement of § 48-101 has been
defined as testing the work connection as to the time, place,
and activity; that is, it demands that the injury be shown
to have arisen within the time and space boundaries of the
employment, and in the course of an activity whose purpose
is related to the employment. Misek v. CNG Financial, supra;
Skinner v. Ogallala Pub. Sch. Dist. No. 1, 262 Neb. 387, 631
N.W.2d 510 (2001).
Here, the court reasoned that Brittain had “no work[-]related
business for being at his truck,” as he stopped at his truck to
drop off the scrap metal he intended to sell. The court stated
that straying from the path between the service center and the
Dumpster constituted a substantial deviation from Brittain’s
Decisions of the Nebraska Court of Appeals
BRITTAIN v. H & H CHEVROLET 991
Cite as 21 Neb. App. 986employment, because the task was performed for personal
benefit rather than to fulfill the requirements of his position
at H&H.
Brittain asserts that he was performing the duties of his
position by removing the trash, putting some in the Dumpster,
and putting the metal scraps into his truck. Brittain also
asserts that he was not violating specific instructions, that he
was still fulfilling the duties of his position, and that there-
fore, his actions at the time of his fall were incident to his
employment.
[3] An activity is related to the employment if it carries out
the employer’s purposes or advances its interests directly or
indirectly. Skinner v. Ogallala Pub. Sch. Dist. No. 1, supra. It
is undisputed that Brittain’s job duties did not include remov-
ing scrap metal from the premises and selling them for his
personal gain. Brittain testified that he was “supposed to” take
H&H’s trash to the Dumpster but that if he found “something
in it,” he would remove it from the bin, dump the trash out, and
then wheel that item back toward his truck.
Brittain asserts he was doing exactly the same thing as
another employee, John, who recycled scrap metal from H&H.
H&H’s president, Hinchcliff, testified that John asked for
and was granted specific permission by H&H’s management
to remove certain metal items from the premises on his own
time. Hinchcliff testified that this was not a common prac-
tice and that to his knowledge, John was the only employee
who had been granted permission to do so. Hinchcliff testi-
fied that H&H’s management personnel were not aware of
Brittain’s practice of removing scrap metal and that Brittain
was not granted permission to do so, especially during work-
ing hours. Hinchcliff’s testimony indicated that the type of
recycling that Brittain and John engaged in, if undertaken
during working hours, would be considered a second job and
would be impermissible for H&H employees according to the
employee handbook.
Upon our review, we agree with the court’s assessment
that Brittain had no work-related reason to go to his truck or
to load any materials into his truck. While he did this during
his working hours, the activity had no purpose related to his
Decisions of the Nebraska Court of Appeals
992 21 NEBRASKA APPELLATE REPORTS
employment, and the act was for his own personal benefit, not
for the benefit of H&H. We find Brittain’s injury did not arise
in the course of his employment with H&H.
Arising Out of Employment.
[4] The test to determine whether an act or conduct of
an employee is compensable under the Nebraska Workers’
Compensation Act has two prongs. We found that Brittain failed
to meet the requirements of one prong—proving the injury
arose in the scope and course of his employment. Therefore,
we decline to address the second prong of whether Brittain’s
injury arose out of his employment. An appellate court is not
obligated to engage in an analysis that is not necessary to
adjudicate the controversy before it. Holdsworth v. Greenwood
Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 (2013).
Denial of Workers’ Compensation
Benefits.
Brittain asserts the court erred in failing to award temporary
disability benefits, hospital and medical benefits, penalties,
interest, and attorney fees.
The Workers’ Compensation Court acknowledged the out-
come of this case was a “close call.” However, after our inde-
pendent review of the evidence, we cannot find the court’s
conclusion was clearly wrong.
Thus, we find the court did not err in denying Brittain’s
requests for temporary disability benefits, hospital and medi-
cal benefits, penalties, interest, and attorney fees, because the
fall does not fit within the definition of a compensable injury
under § 48-101.
CONCLUSION
The Workers’ Compensation Court was not clearly wrong
in finding Brittain’s injury did not occur in the course of his
employment with H&H. We affirm the lower court’s order
of dismissal.
Affirmed.