48-109 – Elective compensation; schedule; duty.

48-109. Elective compensation; schedule; duty.

If both employer and employee become subject to the Nebraska Workers’ Compensation Act, both shall be bound by the schedule of compensation provided in such act, which compensation shall be paid in every case of injury or death caused by accident or occupational disease arising out of and in the course of employment, except accidents caused by or resulting in any degree from the employee’s willful negligence as defined in section 48-151.

Source

• Laws 1913, c. 198, § 9, p. 581;
• R.S.1913, § 3650;
• C.S.1922, § 3032;
• C.S.1929, § 48-109;
• Laws 1943, c. 113, § 2, p. 397;
• R.S.1943, § 48-109;
• Laws 1986, LB 811, § 28.

Annotations

• 1. Election

• 2. In course of employment

• 3. Not in course of employment

• 4. Occupational disease

• 5. Willful negligence

• 6. Miscellaneous

• 1. Election

• A finding that one party is an “employer” under section 48-114 and a finding that the other relevant party is an “employee” under section 48-115 are necessary to engage this section, which binds the parties to the compensation schedule of the Nebraska Workers’ Compensation Act. Kaiser v. Millard Lumber, Inc., 255 Neb. 943, 587 N.W.2d 875 (1999).

• Act of employee in electing not to come under part II of the act is binding on his dependents. White v. National Window Cleaning Co., 132 Neb. 155, 271 N.W. 341 (1937).

• Petition in action for damages was not defective for failure to allege that plaintiff had not elected to come under part II. Smith v. Fall, 122 Neb. 783, 241 N.W. 560 (1932).

• 2. In course of employment

• The phrases in the course of and arising out of are not synonymous and impose a double condition for recovery. Reis v. Douglas County Hospital, 193 Neb. 542, 227 N.W.2d 879 (1975).

• Act of seeking shelter from cold weather arose in the course of employment. Appleby v. Great Western Sugar Co., Inc., 176 Neb. 102, 125 N.W.2d 103 (1963).

• A double condition is imposed and both must exist to sustain recovery. Simon v. Standard Oil Co., 150 Neb. 799, 36 N.W.2d 102 (1949).

• Burden rests upon claimant to establish by a preponderance of the evidence that he sustained a personal injury by accident arising out of and in the course of his employment. Schwabauer v. State, 147 Neb. 620, 24 N.W.2d 431 (1946).

• Injuries to one dragging roads for county, when kicked by horse after suspending work during noon hour, arose in course of employment. Speas v. Boone County, 119 Neb. 58, 227 N.W. 87 (1929).

• Injuries by reason of being required to work with incompetent, insane and dangerous fellow workmen arise out of employment. Dodson v. F. W. Woolworth Co., 118 Neb. 276, 224 N.W. 289 (1929).

• Injury from being overcome by gas, although attributable in part to occupational disease, arose out of employment. Van Vleet v. Public Service Co. of York, 111 Neb. 51, 195 N.W. 467 (1923).

• Injury to garage employee, who fell under truck while attempting to catch ride in performing errand for employer, arose out of employment. McCrary v. Wolff, 109 Neb. 796, 192 N.W. 237 (1923).

• Workman on way to procure materials which it was his ordinary duty to procure, to be used in his work, injured in collision with streetcar, was acting in course of employment. Hugh Murphy Const. Co. v. Serck, 104 Neb. 398, 177 N.W. 747 (1920); Coster v. Thompson Hotel Co., 102 Neb. 585, 168 N.W. 191 (1918).

• 3. Not in course of employment

• Workmen’s Compensation Act does not authorize an award in case of injury or death from a tornado. Crow v. The Americana Crop Hail Pool, Inc., 176 Neb. 260, 125 N.W.2d 691 (1964).

• If employee is injured while absent from the employment for lunch, the injury does not arise out of nor in the course of employment. Berry v. School District, 154 Neb. 787, 49 N.W.2d 617 (1951).

• Where employee abandons his job and gets another, and while going to get his tools from his old job is killed, former employer is not liable under Workmen’s Compensation Act where he owed no duty in connection with return of tools. Hammond v. Keim, 128 Neb. 310, 258 N.W. 478 (1935).

• Death of workman on destruction of building by storm, peril being common to all mankind, did not arise out of employment. Gale v. Krug Park Amusement Co., 114 Neb. 432, 208 N.W. 739 (1926).

• Injury in personal altercation between employees does not arise out of employment. Urak v. Morris & Co., 107 Neb. 411, 186 N.W. 345 (1922).

• Where employee whose duty was to use elevator in trucking meat from floor to floor in packing house, after taking truck off elevator, returned to scuffle with operator, accident did not arise out of employment. Feda v. Cudahy Packing Co., 102 Neb. 110, 166 N.W. 190 (1918).

• Employee assaulted by fellow workman, whether in anger or play, is not injured in course of employment. Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N.W. 509 (1916).

• 4. Occupational disease

• Unexplained fall was not sufficient to show accident where workman was suffering from aortic stenosis. Cochran v. Bellevue Bridge Commission, 174 Neb. 761, 119 N.W.2d 292 (1963).

• Existence of occupational disease before amendment to statute did not preclude recovery where disability occurred after amendment. Hauff v. Kimball, 163 Neb. 55, 77 N.W.2d 683 (1956).

• Disability from which plaintiff was suffering lead poisoning, solely result of disease occupational in nature, was not compensable. Ritchey v. Herdt, 121 Neb. 874, 236 N.W. 926 (1931).

• Injury attributable in part to accident is compensable, though employee was suffering from occupational disease. If injury and preexisting disease combine to produce disability, employee need not prove injury accelerated or aggravated disease. Skelly Oil Co. v. Gaugenbaugh, 119 Neb. 698, 230 N.W. 688 (1930).

• Illness from disease arising from ordinary incidents of occupation, and reasonably resulting therefrom is not compensable. Blair v. Omaha Ice & Cold Storage Co., 102 Neb. 16, 165 N.W. 893 (1917).

• 5. Willful negligence

• Willful negligence requires showing of deliberate act knowingly done, or reckless indifference to safety. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).

• Where defense is willful negligence of employee, it is error to exclude testimony of witness that he had warned employee of danger prior to accident. Richards v. Abts, 135 Neb. 347, 281 N.W. 611 (1938).

• 6. Miscellaneous

• If coverage exists, Workmen’s Compensation Act is exclusive. Marlow v. Maple Manor Apartments, 193 Neb. 654, 228 N.W.2d 303 (1975).

• Where employee was not in any manner disabled from performing work that he had done prior to accident, claim for weekly benefits was not sustained. Wengler v. Grosshans Lumber Co., 173 Neb. 839, 115 N.W.2d 415 (1962).

• An assault by a fellow employee may be an accident. Myszkowski v. Wilson & Co., Inc., 155 Neb. 714, 53 N.W.2d 203 (1952).

• Fact that city fireman receives workmen’s compensation does not deprive him of right to receive fireman’s pension. City of Lincoln v. Steffensmeyer, 134 Neb. 613, 279 N.W. 272 (1938).

• Mere exertion which combines with preexisting disease to produce disability is not an accident causing compensable injury. Gilkeson v. Northern Gas Engineering Co., 127 Neb. 124, 254 N.W. 714 (1934).

• Compensable injury can only arise while workman is engaged in or about the premises where his duties are required to be performed or his services require his presence. Hall v. Austin Western Road Machinery Co., 125 Neb. 390, 250 N.W. 258 (1933).

• Employee has burden of proving that personal injury was caused to the employee by an accident arising out of and in the course of his employment. Herbert v. State, 124 Neb. 312, 246 N.W. 454 (1933).