To recover benefits under the Nebraska Workers’ Compensation Act, an employee must establish by a preponderance of the evidence (more than 50%) that the accident both arose out of and was in the course of his or her employment. Neb. Rev. Stat. § 48-101; Logsdon v. ISCO Co., 260 Neb. 624, 618 N.W.2d 667 (2000). The phrase “arising out of” refers to the accident and its origin, cause, and character, i.e., whether it resulted from the risks within the scope of the employee’s job. “In the course of,” refers to the time, place, and circumstances surrounding the accident; that the injury occurred within the time and space boundaries of the employment.
An injury is said to be in the course of employment when it occurs within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling the duties of the employer. Zoucha v. Touch of Class Lounge, 269 Neb. 89, 690 N.W.2d 610 (2005); Misek v. CNG Fin., 265 Neb. 837, 660 N.W.2d 495 (2003). “The phrases “in the course of” and “arising out of” are not synonymous, and where they are used conjunctively, as they are in the compensation law of this state, a double condition is imposed and both must exist to bring a case within the act.” Simon v. Standard Oil Co., 150 Neb. 799, 803, 36 N.W.2d 102, 105 (1949). Whether an injury arose out of and in the course of employment are findings of fact to be determined by the trial court. Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996).
For purposes of this article, we will examine a recent case decided by Judge Julie Martin of the Nebraska Workers’ Compensation Court (Addisen Couglin, et. al. v. County of Colfax, April 30, 2018, Doc. 216 No. 1844). The case involved a dependent death benefit claim filed against the County of Colfax for the death of Deputy Daniel Coughlin. The pivotal question involved whether Deputy Coughlin’s death arose out of and in the course of his employment as a sheriff. Deputy Coughlin had clocked out of work at 7:00 a.m., entered his personal vehicle and drove approximately 7 miles outside of the city towards his home prior to suffering fatal injuries from striking a deer with his motor vehicle. It was undisputed Deputy Coughlin’s shift had ended, he had clocked out and he had removed his badge, vest and gun. Moreover, the act of driving at the time of the motor vehicle accident was not shown to be work-related. The thrust of the argument presented at trial was whether the act of Deputy Coughlin making a phone call while driving at the time of the accident constituted either a direct causal connection to his employment as a sheriff OR an exception to the general going and coming rule.
The Court ruled there was no direct causal connection to employment because witness testimony supported the finding the conversation between Deputy Coughlin and another sheriff should have taken place while Deputy Coughlin remained on the clock and, furthermore, the call was more personal in nature and it did not benefit the sheriff’s department.
As for the argument the phone call constituted an exception to the going and coming rule, we know, generally, accidents occurring in the course of a worker’s travel to and from his or her place of employment are deemed not compensable (the “going to and from work rule”). See generally, Johnson v. Holdrege Med. Clinic, 249 Neb. 77, 541 N.W.2d 399 (1996); Acton v. Wymore School Dist., 172 Neb. 609, 111 N.W.2d 368 (1961). Recovery may be allowed while going to and coming from work if there is a distinct causal connection between the employer-created condition and the cause of the injury. La Croix v. Omaha Pub. Sch., 254 Neb. 1014, 582 N.W.2d 283 (1998) (causal connection found for an employee who fell in a parking lot that was not owned by her employer but was where the employer recommended she park and in which her employer provided a shuttle to take her back and forth from the work location). Various exceptions have also been created with respect to the going to and coming from rule. See, Schademann v. Casey, 194 Neb. 149, 231 N.W.2d 116 (1975) (employer-supplied transportation exception); Reynolds v. School Dist. of Omaha, 236 Neb. 508, 461 N.W.2d 758 (1990) (commercial traveler exception and special errand exception); Kraus v. Jones Auto., 3 Neb. App. 577, 529 N.W.2d 108 (1995)(dual purpose doctrine); Misek, supra, (personal convenience exception).
The Court ruled the phone call was not the salient issue as the death of Deputy Coughlin was the result of the motor vehicle accident, not the phone call. There was no evidence the phone call, even assuming the discussion was work-related, caused the accident. There was no evidence Deputy Coughlin was distracted and failed to see the deer in the roadway because he was on the phone. There was nothing about the call that required Deputy Coughlin to be on the particular roadway at the exact time of the accident. Even if an “injured employee was at the place of the injury because of his employment [it] is not sufficient to sustain a recovery if the injury sustained resulted from a cause having no relation to the nature of the employment.” Simon v. Standard Oil Co., 150 Neb. 799, 806, 36 N.W.2d 102, 106 (1949). In the end, the Court did not find a causal connection between an employer-created condition and the fatal injury to Deputy Coughlin. The act that led to the injury, i.e. Deputy Coughlin driving his car home and striking a deer, was not incidental to his employment.
– Paul E. Larson