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MARADIAGA v. SPECIALTY FINISHING

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Yessica Y. Panameno Maradiaga, 

appellant, v. Specialty Finishing

and Travelers Indemnity

Company, appellees.

___ N.W.2d ___

Filed July 19, 2016. No. A-15-845.

1. Workers’ Compensation: Appeal and Error. 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 did not support the order or award.

2. ____: ____. An appellate court will not disturb a compensation court 

judge’s findings of fact unless clearly wrong.

3. ____: ____. An appellate court is obligated in workers’ compensation 

cases to make its own determinations as to questions of law.

4. Workers’ Compensation: Proof. In a workers’ compensation case, 

the plaintiff must establish by a preponderance of the evidence that 

the injury for which an award is sought arose out of and in the course 

of employment.

5. ____: ____. The two phrases “arising out of” and “in the course of” in 

Neb. Rev. Stat. § 48-101 (Reissue 2010) are conjunctive; in order to 

recover, a claimant must establish by a preponderance of the evidence 

that both conditions exist.

6. ____: ____. The phrase “arising out of,” as used in Neb. Rev. Stat. 

§ 48-101 (Reissue 2010), describes the accident and its origin, cause, 

and character, i.e., whether it resulted from the risks arising within 

the scope of the employee’s job; the phrase “in the course of,” as used 

in § 48-101, refers to the time, place, and circumstances surrounding 

the accident.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/19/2016 09:06 AM CDT
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7. 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.

8. ____. Under the positional risk doctrine, when an employee, in the 

course of his or her employment, is reasonably required to be at a particular place at a particular time and there meets with an accident, although 

one which any other person then and there present would have met with 

irrespective of his or her employment, that accident is one “arising out 

of” the employment of the person so injured.

9. ____. Generally, a risk may be classified as “neutral” for either of two 

reasons: (1) the nature of the risk may be known, but may be associated 

neither with the employment nor the employee personally, or (2) the 

nature of the cause of harm may be simply unknown.

10. ____. When there is at least some evidence of a possibility of a personal or idiopathic factor contributing to a fall, the fall is not properly 

categorized as a purely unexplained fall.

Appeal from the Workers’ Compensation Court: Daniel R. 

Fridrich, Judge. Affirmed.

Terry M. Anderson and David M. O’Neill, of Hauptman, 

O’Brien, Wolf & Lathrop, P.C., for appellant.

Patrick B. Donahue and Dennis R. Riekenberg, of Cassem, 

Tierney, Adams, Gotch & Douglas, for appellees.

Pirtle and Bishop, Judges.

Bishop, Judge.

Yessica Y. Panameno Maradiaga appeals from an order of 

the Nebraska Workers’ Compensation Court dismissing with 

prejudice her amended petition for workers’ compensation 

benefits against her employer, Specialty Finishing, and its 

insurer, Travelers Indemnity Company. Maradiaga challenges 

the court’s determination that the ankle fracture she sustained 

in her employer’s parking lot did not “arise out of” her employment. For the following reasons, we affirm.
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BACKGROUND

On May 18, 2014, Maradiaga was employed as a “box 

feeder” at Specialty Finishing. She arrived for her 12-hour 

shift just prior to 6 p.m., parking in her employer’s parking lot. At trial, Maradiaga testified she exited her car and 

fell down while walking in the parking lot. At the time, the 

only item she was carrying was a small lunchbox. She then 

returned to her car and sat down. When she got up again, 

she felt pain and could not walk. She summoned another 

employee’s help and was transported to the hospital. She was 

diagnosed with a “left lateral malleolus fracture with medial 

clear space widening,” otherwise known as an “unstable ankle 

fracture.” Maradiaga underwent surgery to repair the fracture 

on May 23.

One of the exhibits Maradiaga offered into evidence at trial 

was the deposition of Myrna Partida, who worked in human 

resources at Specialty Finishing. Attached to Partida’s deposition was a transcript of the recorded statement Maradiaga gave 

to an insurance claims adjuster on June 2, 2014. When the 

adjuster asked Maradiaga to explain how she injured her ankle, 

she said she got out of her car, took one step, and her foot 

twisted. She fell to the ground, then got up and sat back down 

in her car. When she exited her car and began to walk, the pain 

was too great to continue.

Partida testified at trial that on the day following the incident, she spoke with Maradiaga on the telephone. According 

to Partida, Maradiaga told her she got out of her car, stood up, 

and felt pain in her leg. She then “fell back down.” When she 

“got back up” and started walking, the pain was “really bad,” 

so she summoned another employee to assist her. She was 

then taken to the hospital. According to Partida, Maradiaga 

described the injury as “strange,” because she put both feet 

on the ground and “just felt this pain.” Insurance forms that 

Partida completed on May 29 and 30, 2014, indicated that 

Maradiaga reported feeling “pain in her foot” upon exiting her 

car and placing her feet on the ground.
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The medical records received into evidence also contained 

accounts of the incident. The emergency room records indicate 

Maradiaga twisted her left ankle getting out of her car at work. 

They further indicate she did not report falling. Records from a 

physician’s office visit on May 21, 2014, state that Maradiaga 

was exiting her car and slipped, causing her feet to go out 

from under her. An orthopedist’s records dated May 23, 2014, 

indicate Maradiaga twisted her ankle in her employer’s parking lot.

Following trial, in its written order entered on August 21, 

2015, the compensation court found that Maradiaga was exiting her car in Specialty Finishing’s parking lot when she took 

a step, twisted her ankle, and felt pain. The court found that 

although Maradiaga then fell to the ground, she “injured her 

left ankle before falling to the ground.” The court indicated 

that “[a]s best [it could] discern, [Maradiaga] suffered no 

injuries from actually falling.” The court found Maradiaga had 

no preexisting condition that contributed to her injury. It further found that Maradiaga’s employment did not contribute to 

the injury:

[Maradiaga] was merely walking. She did not trip. She 

did not slip. There was nothing in the parking lot that 

created a hazard for her. She was not carrying anything 

heavy that stressed her body or her ankle, specifically. 

[Maradiaga] broke her ankle while taking a step. It just 

happened to occur at work. Work did not contribute to 

her injury, so Specialty [Finishing] should not be liable 

for it. The Court finds [Maradiaga] did not suffer an 

injury that arose out of her employment with Specialty 

[Finishing].

The court specifically determined the case was not controlled 

by Logsdon v. ISCO Co., 260 Neb. 624, 618 N.W.2d 667 

(2000), which involved application of the positional risk doctrine to an unexplained fall on an employer’s premises. The 

court explained that Maradiaga did not sustain injuries during 
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an unexplained fall, but fell after injuring her ankle while taking a step.

Based on its determination that Maradiaga’s injury did not 

arise out of her employment, the compensation court dismissed 

with prejudice Maradiaga’s amended petition for compensation 

benefits, and Maradiaga timely appealed to this court.

ASSIGNMENT OF ERROR

Maradiaga assigns that the compensation court erred in 

determining that her injury did not arise out of her employment.

STANDARD OF REVIEW

[1-3] 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 did not support the 

order or award. Logsdon v. ISCO Co., supra. A reviewing court 

will not disturb a compensation court judge’s findings of fact 

unless clearly wrong. See id. An appellate court is obligated in 

workers’ compensation cases to make its own determinations 

as to questions of law. Id.

ANALYSIS

[4] The Nebraska Workers’ Compensation Act (Act) provides that “[w]hen 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 . . . ,” as long 

as the employee was not willfully negligent at the time of 

receiving the injury. Neb. Rev. Stat. § 48-101 (Reissue 2010). 

The Act defines “[a]ccident” as “an unexpected or unforeseen injury happening suddenly and violently, with or without 

human fault, and producing at the time objective symptoms of 
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an injury.” Neb. Rev. Stat. § 48-151(2) (Reissue 2010). The 

Act places the burden of proof on the claimant “to establish 

by a preponderance of the evidence that such unexpected or 

unforeseen injury was in fact caused by the employment.” Id. 

“There is no presumption from the mere occurrence of such 

unexpected or unforeseen injury that the injury was in fact 

caused by the employment.” Id.

[5,6] “The two phrases ‘arising out of’ and ‘in the course 

of’ in § 48-101 are conjunctive; in order to recover, a claimant 

must establish by a preponderance of the evidence that both 

conditions exist.” Zoucha v. Touch of Class Lounge, 269 Neb. 

89, 93, 690 N.W.2d 610, 614-15 (2005). 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 of the employee’s job; the phrase “in the course of” 

refers to the time, place, and circumstances surrounding the 

accident. Id. Whether an injury arose out of and in the course 

of employment must be determined from the facts of each case. 

Murphy v. City of Grand Island, 274 Neb. 670, 742 N.W.2d 

506 (2007).

In this case, it is undisputed that Maradiaga sustained an 

injury “in the course of” her employment. See Zoucha v. Touch 

of Class Lounge, supra (employee who is injured in accident 

on his or her employer’s premises while coming to or leaving 

work is injured within course of his or her employment). The 

issue before us is whether Maradiaga has satisfied the “arising 

out of” prong of § 48-101.

[7] We begin by looking to the three categories into which 

all risks causing injury to an employee can be placed. See 

Logsdon v. ISCO Co., 260 Neb. 624, 618 N.W.2d 667 (2000). 

The first category, employment-related risks, includes “risks 

distinctly associated with the employment.” Id. at 628, 618 

N.W.2d at 672. Injury caused by risks falling within this category is “universally compensable.” Id. at 629, 618 N.W.2d at 

672. The second category, personal risks, encompasses “risks 
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personal to the claimant, e.g., idiopathic causes.” Id. at 628, 

618 N.W.2d at 672. Injury caused by personal risks is “universally noncompensable.” Id. at 629, 618 N.W.2d at 672. The 

third category, neutral risks, includes risks that are “neither 

distinctly associated with the employment nor personal to the 

claimant.” Id. In Nebraska, injury arising from neutral risks is 

“generally compensable.” Id.

Maradiaga argues that because her injury “was not shown 

to be related to any personal condition . . . nor any other 

personal activity, the injury had a ‘neutral’ cause.” Brief for 

appellant at 7. She maintains she is entitled to compensation 

because Nebraska has adopted the “‘positional risk’ doctrine,” 

under which “[a]n injury that has a ‘neutral’ cause, but is otherwise incurred ‘in the course’ of employment, is presumed 

to ‘arise out of’ that employment.” Id. In order to address 

Maradiaga’s argument, it is necessary to provide some background on the positional risk doctrine and its limited application in Nebraska law.

The positional risk doctrine is one of several approaches to 

determining whether an employee’s injury arises out of his or 

her employment. 1 Arthur Larson & Lex K. Larson, Larson’s 

Workers’ Compensation Law §§ 3.01 and 3.05 (2016). As a 

point of reference, we note that the “prevalent” approach in the 

United States is still the “increased risk doctrine.” Id., § 3.02 at 

3-6. “The increased risk doctrine requires an employee to demonstrate that his employment duties expose him to a greater 

risk or hazard than that to which the general public in the area 

is exposed.” Nippert v. Shinn Farm Constr. Co., 223 Neb. 236, 

238, 388 N.W.2d 820, 822 (1986).

[8] According to Larson, only “[a] few courts have accepted 

the full implications” of the positional risk doctrine, 1 Larson 

& Larson, supra, § 3.05 at 3-7, which has been articulated 

as follows:

“‘[W]hen one in the course of his employment is reasonably required to be at a particular place at a particular 
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time and there meets with an accident, although one 

which any other person then and there present would 

have met with irrespective of his employment, that accident is one “arising out of” the employment of the person 

so injured.’”

Nippert v. Shinn Farm Constr. Co., 223 Neb. at 238-39, 388 

N.W.2d at 822 (quoting treatise passage currently found at 1 

Larson & Larson, supra, § 5.01[5]).

The positional risk doctrine is usually “approved and used 

in very particular situations.” 1 Larson & Larson, supra, 

§ 3.05 at 3-7. The common characteristic among the situations to which it applies is that “the only connection of the 

employment with the injury is that its obligations placed the 

employee in the particular place at the particular time when he 

or she was injured by some neutral force, meaning by ‘neutral’ 

neither personal to the claimant nor distinctly associated with 

the employment.” Id., § 3.05 at 3-8.

[9] Generally, a risk may be classified as “‘neutral’” for 

either of two reasons: (1) “[t]he nature of the risk may be 

known, but may be associated neither with the employment 

nor the employee personally,” or (2) “the nature of the cause 

of harm may be simply unknown.” Id., § 7.04[1][a] at 7-25. 

Examples of neutral risks of the first type are stray bullets, 

lightning, or hurricanes, see id., § 4.03, while the most common example of a neutral risk of the second type is a purely 

unexplained fall, id., § 7.04[1][a].

The Nebraska Supreme Court has applied the positional 

risk doctrine in cases involving both types of neutral risks. 

Nippert v. Shinn Farm Constr. Co., supra, involved a neutral 

risk of the first type—a known risk neither associated with 

the employment nor the employee personally. In Nippert, a 

farm employee was injured on the job when a tornado picked 

him up and “hurled him to the ground some 30 feet away.” 

223 Neb. at 237, 388 N.W.2d at 821. The compensation court 

denied benefits, relying on McGinn v. Douglas County Social 
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Services Admin., 211 Neb. 72, 317 N.W.2d 764 (1982), in 

which the court applied the increased risk doctrine to a case 

involving similar facts. Reversing the compensation court’s 

denial of benefits, the court in Nippert overruled McGinn, 

holding that the positional risk doctrine was the “better rule.” 

Nippert v. Shinn Farm Constr. Co., 223 Neb. at 238, 388 

N.W.2d at 822. It is clear that a tornado is a known neutral 

risk which is neither associated with the employment nor 

the employee personally. In Nippert, the court concluded the 

employee’s injury was compensable because under “the positional risk test . . . ‘“any other person then and there present 

would have met”’” with the same accident “‘“irrespective”’” 

of employment, and the claimant’s employment required him 

to be in the area where the tornado struck. 223 Neb. at 238, 

388 N.W.2d at 822.

The Nebraska Supreme Court next applied the positional 

risk doctrine in Logsdon v. ISCO Co., 260 Neb. 624, 618 

N.W.2d 667 (2000), a case involving a neutral risk of the 

second type—where the nature of the cause of harm may be 

simply unknown. In Logsdon, an employee was walking on his 

employer’s premises during a morning break. He turned around 

to talk to some coworkers who were walking behind him, and 

the next thing he knew, he was in an ambulance. There was 

no other evidence indicating how the employee fell, but it 

was undisputed that he fell and fractured his skull while in the 

course of his employment.

In holding that the employee’s injury was compensable, 

the court in Logsdon discussed the three categories of risk 

and framed the issue before it as “whether an injury without 

an explanation is a compensable neutral injury.” 260 Neb. at 

629, 618 N.W.2d at 672. The court indicated it had already 

“adopted the positional risk doctrine in the context of injuries 

arising from neutral risks.” Id. at 629, 618 N.W.2d at 673, 

citing Nippert v. Shinn Farm Constr. Co., 223 Neb. 236, 388 

N.W.2d 820 (1986). The court then reasoned that “because 
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the cause of an unexplained fall is unknown, the fall must 

be attributed to a neutral risk, i.e., one neither distinctly 

personal to the claimant nor associated with the claimant’s 

employment.” Logsdon v. ISCO Co., 260 Neb. at 632, 618 

N.W.2d at 674. After reaffirming its holding that the positional risk doctrine applies “in the case of an injury arising 

from a neutral risk,” the court concluded that because the 

employee “would not have been at the place of injury but for

the duties of his employment,” a presumption arose that “his 

injuries ‘arose out of’ his employment.” Id. The court further 

noted that the “presumption was not rebutted by evidence 

of any idiopathic cause or other risk personal to the claimant.” Id.

The case before us does not present a neutral risk of the 

type presented in Nippert v. Shinn Farm Constr. Co., supra, 

or in Logsdon v. ISCO Co., supra. Unlike the facts in Nippert, 

we are not dealing with a known neutral risk which is neither 

associated with the employment nor the employee personally—

the kind of risk that any other person then and there present 

would have met with irrespective of employment. Stray bullets 

and tornados are examples of this type of known neutral risk; 

twisted ankles are not.

However, this case is also not one in which “the nature of 

the cause of harm” is “unknown” in the same way that the 

cause of a purely unexplained fall is “unknown.” See Logsdon 

v. ISCO Co., 260 Neb. 624, 630, 618 N.W.2d 667, 673 (2000). 

The only evidence in Logsdon was that the employee turned 

around while walking, and the next thing he knew he was 

in an ambulance. There were a myriad of things that might 

have contributed to the employee’s fall, but no evidence to 

establish what actually did. Given this absence of evidence, 

the positional risk doctrine was the only avenue available to 

the employee to establish the “arising out of” requirement of 

§ 48-101, and the Nebraska Supreme Court endorsed its application under those circumstances. Logsdon v. ISCO Co., supra. 
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The court explained that “‘[i]n a pure unexplained-fall case, 

there is no way in which an award can be justified as a matter of causation theory except by a recognition that [the positional risk doctrine’s] but-for reasoning satisfies the “arising” 

requirement. . . .’” Id. at 631, 618 N.W.2d at 673-74, quoting 

1 Larson & Larson, supra, § 7.04[1][a].

Here, Maradiaga faced no similar hurdle in proving that 

her injury arose out of her employment. Based upon the compensation court’s findings, Maradiaga took a step, twisted her 

ankle, and felt pain. She did not wake up in an ambulance or 

hospital, not knowing what happened to her. If Maradiaga’s 

employment contributed to her injury in some way, she could 

have presented evidence to establish that fact. If, for example, 

she stepped on a rock or a slick spot in the parking lot which 

caused her to twist her ankle, she could have so testified. 

However, Maradiaga presented no such evidence, and it is difficult to imagine that any risk of employment caused her to 

twist her ankle, or otherwise caused her bone to fracture, as she 

stepped out of her car. This type of injury does not satisfy the 

type of “unknown” cause of harm that warranted application of 

the positional risk doctrine in Logsdon v. ISCO Co., 260 Neb. 

at 630, 618 N.W.2d at 673, where the employee woke up in 

an ambulance.

The distinction between this case and Logsdon v. ISCO 

Co., supra, becomes clearer when one considers that the 

mechanism of the fall in Logsdon is what was unknown. The 

employee turned while walking, and the next thing he knew 

he was in an ambulance. We do not know if the employee 

tripped over a crack in the sidewalk, stumbled over a rock, or 

simply tripped over his own feet. Perhaps because the absence 

of evidence made it impossible to rule out the possibility 

that a risk of employment contributed to the fall, the court 

permitted the employee to rely on the positional risk doctrine 

to satisfy the “arising out of” requirement of § 48-101: “[I]t 

logically follows that if the ‘in the course of’ employment test 
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is met in a purely unexplained-fall case, the injury will be 

presumed to ‘arise out of’ the employment.” Id. at 632, 618 

N.W.2d at 674.

In our case, by contrast, the mechanism of the twisted 

ankle is not a mystery. As the compensation court found: 

“[Maradiaga] was merely walking. She did not trip. She did 

not slip. There was nothing in the parking lot that created 

a hazard for her. She was not carrying anything heavy that 

stressed her body or her ankle, specifically. [Maradiaga] broke 

her ankle while taking a step.” If Maradiaga’s employment did 

contribute to the injury in some way, there was nothing to prevent her from establishing that fact. This case did not involve 

a completely unexplained fall like the situation in Logsdon 

v. ISCO Co., 260 Neb. 624, 618 N.W.2d 667 (2000), and the 

Act places the burden of proof on the claimant “to establish 

by a preponderance of the evidence that such unexpected or 

unforeseen injury was in fact caused by the employment.” 

§ 48-151(2).

Maradiaga at one point in her brief suggests that “perhaps 

the fall did cause the injury here, or exacerbate it.” Brief 

for appellant at 13. In this passage, Maradiaga appears to be 

contesting the compensation court’s finding that her injury 

occurred before her fall, seemingly in an attempt to fit this case 

within Logsdon v. ISCO Co., supra. However, the compensation court’s finding that the injury preceded the fall was not 

clearly wrong, as we discuss next.

Although Maradiaga testified at trial that she fell in the 

parking lot, returned to her car, and then felt pain upon standing, her testimony was inconsistent with much of the remaining evidence. Partida testified that the day following the 

accident, Maradiaga told her she got out of her car, stood up, 

and felt pain in her leg. She then fell back down, and when 

she got up again and started walking, the pain was “really 

bad.” This account of the injury was consistent with the 

insurance forms Partida completed on May 29 and 30, 2014, 
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and was largely consistent with the account Maradiaga gave 

to the insurance adjuster on June 2, as well as the accounts 

in the emergency room records and the orthopedist’s records, 

although these accounts indicated that Maradiaga twisted 

either “her foot” or her ankle. It was only the records from a 

physician’s office visit on May 21 that indicated Maradiaga 

slipped and fell. Considering all of the evidence, the court’s 

finding that Maradiaga’s injury preceded her fall was not 

clearly wrong.

At another point, Maradiaga suggests the issue of whether 

her fall contributed to her injury is not relevant, because 

“[i]t is enough that an ‘accident’ of some kind occurred on 

the employer’s premises, and that [she] was injured in that 

accident.” Brief for appellant at 13. However, applying the 

positional risk doctrine in this manner would dilute the “arising out of” requirement of § 48-101 to where it would cease to 

have any significant meaning. Further, to presume that every 

accident occurring on the employer’s premises is caused by 

employment would be contrary to the provision of § 48-151(2) 

which states that “[t]here is no presumption from the mere 

occurrence of such unexpected or unforeseen injury that the 

injury was in fact caused by the employment.”

[10] Although the Nebraska Supreme Court did allow for the 

presumption of an injury arising out of employment in a purely 

unexplained-fall case if it occurred in the course of employment, we note that it also stated that “[w]hen there is at least 

some evidence of a possibility of a personal or idiopathic factor 

contributing to the fall, the fall is not properly categorized as 

a purely unexplained fall.” Logsdon v. ISCO Co., 260 Neb. at 

633, 618 N.W.2d at 675. It clarified that “[i]n the instant case, 

we are presented with a purely unexplained fall, which can be 

attributed only to a neutral risk.” Id. at 634, 618 N.W.2d at 675. 

This is a narrow holding applicable to purely unexplained falls; 

extending the positional risk doctrine to the circumstances of 

the case before us would broaden the presumption—that the 
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mere occurrence of an injury at work was caused by employment—to the point of making § 48-151(2) meaningless. We 

decline to do so.

We recognize that an injury resulting from an “everyday 

activity” may be compensable if the activity “constituted a 

risk contributed by employment.” Cox v. Fagen Inc., 249 Neb. 

677, 684, 545 N.W.2d 80, 86 (1996). However, as we said 

in Carter v. Becton-Dickinson, 8 Neb. App. 900, 907, 603 

N.W.2d 469, 474 (1999), nonstrenuous walking is the “epitome of a nonemployment risk.” Here, there is no evidence 

that the everyday activity of exiting a car, while carrying nothing heavier than a small lunchbox, was a risk of Maradiaga’s 

employment.

CONCLUSION

For the foregoing reasons, the judgment of the Nebraska 

Workers’ Compensation Court is affirmed.

Affirmed.

Moore, Chief Judge, participating on briefs.