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300 Nebraska Report

MAROULAKOS v. WALMART ASSOCIATES

Cite as 300 Neb. 589

Miko Maroulakos, appellant, 

Walmart Associates, Inc., appe

___ N.W.2d ___

Filed July 20, 2018. No. S-17-1110.

1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. 

Stat. § 48-185 (Cum. Supp. 2016), 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 do not support the order or award.

2. ____: ____. Determinations by a trial judge of the Workers’ 

Compensation Court will not be disturbed on appeal unless they are 

contrary to law or depend on findings of fact which are clearly wrong in 

light of the evidence.

3. Workers’ Compensation. The Nebraska Workers’ Compensation Act 

provides that when an employee suffers personal injury caused by accident or occupational disease, arising out of and in the course of his or 

her employment, such employee shall receive compensation from his or 

her employer if the employee was not willfully negligent at the time of 

receiving such injury.

4. Workers’ Compensation: Words and Phrases. 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 or sphere of 

the employee’s job.

5. 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.

Nebraska Supreme Court Online Library

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

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6. ____. Generally, harm that can be attributed solely to personal or idiopathic causes is universally noncompensable.

7. ____. Unexplained-fall cases begin with a completely neutral origin 

of a mishap, while idiopathic-fall cases begin with an origin which 

is admittedly personal and which therefore requires some affirmative employment contribution to offset the prima facie issue of personal origin.

8. Appeal and Error. Absent plain error, when an issue is raised for the 

first time in an appellate court, it will be disregarded inasmuch as the 

trial court cannot commit error regarding an issue never presented and 

submitted to it for disposition.

9. ____. Plain error is plainly evident from the record and of such a nature 

that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

10. Workers’ Compensation. A workers’ compensation award cannot be 

based on possibility or speculation, and if an inference favorable to the 

claimant can be reached only on the basis thereof, then the claimant cannot recover.

11. ____. A finding in regard to causation of an injury is one for determination by the Workers’ Compensation Court as the finder of fact.

Appeal from the Workers’ Compensation Court: James R.

Coe, Judge. Affirmed.

David M. Handley, of Watson & Carroll, P.C., L.L.O., for 

appellant.

Jennifer S. Caswell and Zachary W. Anderson, of Baylor, 

Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, F

Papik, JJ., and Schreiner, District Ju

Funke, J

Miko Maroulakos appeals from a Workers’ Compensation 

Court’s order, which determined his injuries did not “arise 

out of” his employment. At trial, Maroulakos argued only that 

his injury arose out of employment, because his fall resulted 

from a risk of employment, but on appeal, he argues that his 

injury arose out of employment under the “increased-danger” 

rule, because he fell into an industrial shelving unit. We hold 
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Maroulakos waived this argument by failing to present it to the 

compensation court. Therefore, we affirm.

I. BACKGROUND

In August 2014, Maroulakos was working for Walmart 

Associates, Inc. (Walmart), as an overnight support manager. 

After coming back from his meal break, Maroulakos felt overheated, exhausted, and lightheaded. He told some coworkers 

that he would go home once he finished his overnight stock 

audits. Video surveillance captured Maroulakos walking past 

product aisles, approaching a product shipper, moving to the 

right of and away from the shipper, and then falling into a 

product aisle.

While on the floor, Maroulakos appeared to have a seizure lasting at least 30 seconds. As a result of the accident, Maroulakos sustained a facial laceration, sinus fractures, 

and possibly a traumatic brain injury causing neurocognitive 

impairment.

Maroulakos’ amended complaint requested workers’ compensation benefits, alleging personal injuries that resulted from 

his tripping over a pallet in the course of his employment. At 

trial, Maroulakos testified he had no memory of the actual 

fall and relied on Walmart’s video surveillance, his medical 

reports, and a report by neurologist Srinivasan Mani, M.D.

Mani’s report stated that based on Maroulakos’ medical 

history and the video surveillance, it appeared Maroulakos 

tripped and fell and sustained a head injury, which caused 

a subsequent seizure. Mani diagnosed Maroulakos as likely 

suffering from an associated cognitive disturbance, which he 

opined resulted from the fall. The report, however, made no 

mention of Maroulakos’ hitting an industrial shelving unit as 

he fell or whether his injuries were inconsistent with falling to 

the floor. The only reference to Maroulakos’ hitting a shelf was 

in a “History of Present Illness” in one of the medical reports, 

which contained the following statement: “Patient fell on the 

end of shelf and sustained facial laceration.”
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Walmart called two employees who had witnessed 

Maroulakos’ fall. One witness stated that she was standing in 

a product aisle 2 feet from Maroulakos when he walked face 

first into an industrial shelving unit and fell backward onto the 

floor. She stated she did not see Maroulakos trip over anything 

or remember a pallet on the floor. The other witness was 40 to 

50 feet away but looked toward Maroulakos, in the midst of 

falling, after he heard grunting and other audible noises from 

Maroulakos’ direction. The witness stated that Maroulakos fell 

face first into a shelf but that he did not remember seeing a 

pallet on the floor.

Evidence presented at trial showed that when Maroulakos 

was 12 years old, he contracted viral encephalitis, which 

required him to undergo at least seven brain surgeries to 

remove a cyst and implant a shunt. Because Maroulakos suffered at least one seizure during these surgeries, he was prescribed antiseizure medication, which he stopped taking after 

high school. Maroulakos testified he did not have any seizures 

or related health issues between being removed from antiseizure medication and his August 2014 fall, at which time he was 

44 years old.

The compensation court determined that the only issue 

presented was whether Maroulakos’ accident arose out of 

employment. It rejected Maroulakos’ argument and Mani’s 

interpretation of the video that he had tripped over a pallet. 

Instead, the court ruled that the surveillance video showed 

that “[Maroulakos] begins to rock back and forth on his 

feet as he walks and staggers briefly . . . then falls to the 

ground.” The court determined Maroulakos’ fall resulted from 

an idiopathic seizure and syncope event that was personal 

to him and not compensable under the Nebraska Workers’ 

Compensation Act.1 The court dismissed Maroulakos’ complaint with prejudice.

1 Neb. Rev. Stat. §§ 48-101 to 48-1,117 (Reissue 2010, Cum. Supp. 2016 & 

Supp. 2017).
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Maroulakos perfected a timely appeal. We removed the case 

to our docket on our own motion pursuant to our authority to 

regulate the caseloads of the Nebraska Court of Appeals and 

this court.2

II. ASSIGNMENT OF ERROR

Maroulakos assigns error to the trial court’s determination 

that his accident did not arise out of his employment.

III. STANDARD OF REVIEW

[1] Pursuant to § 48-185, 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 do not support the order or award.3

[2] Determinations by a trial judge of the Workers’ 

Compensation Court will not be disturbed on appeal unless 

they are contrary to law or depend on findings of fact which 

are clearly wrong in light of the evidence.4

IV. ANALYSIS

Maroulakos admits that at trial, he focused on whether he 

tripped over a pallet instead of whether he struck a shelf during his fall. He further admits that he did not argue before 

the trial court that his injury arose out of employment under 

the increased-danger rule. However, he argues that the Court 

of Appeals has held in Svehla v. Beverly Enterprises5 and 

2 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

3 Greenwood v. J.J. Hooligan’s, 297 Neb. 435, 899 N.W.2d 905 (2017).

4 Id.

5 Svehla v. Beverly Enterprises, 5 Neb. App. 765, 567 N.W.2d 582 (1997).
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Lucas v. Anderson Ford6 that when an employment hazard 

causes or increases the severity of an injury sustained from 

an idiopathic accident, the injury becomes compensable as 

arising out of employment. He further contends that because 

evidence showed that he sustained facial and brain injuries by 

landing face first on an industrial shelving unit, the Workers’ 

Compensation Court was required to apply the rule from 

Svehla and Lucas after determining his fall resulted from an 

idiopathic condition.

Walmart does not dispute that the compensation court was 

bound by the rule adopted in Svehla and Lucas, but it argues 

Maroulakos had the burden of proving that he, in fact, fell into 

the shelving unit and that doing so increased the injuries he 

suffered from his idiopathic fall.

[3] The Nebraska Workers’ Compensation Act provides 

that when an employee suffers personal injury caused by 

accident or occupational disease, arising out of and in the 

course of his or her employment, such employee shall receive 

compensation from his or her employer if the employee was 

not willfully negligent at the time of receiving such injury.7

Section 48-151(2) provides that there is no presumption that 

an employee’s injury sustained in the course of his or her 

employment was in fact caused by the employment, and a 

claimant has the burden of proving an injury arose out of 

employment by a preponderance of the evidence.8

[4-6] 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 or sphere of the employee’s 

job.9 All risks causing injury to an employee can be placed 

6 Lucas v. Anderson Ford, 13 Neb. App. 133, 689 N.W.2d 354 (2004).

7 § 48-101. See Hintz v. Farmers Co-op Assn., 297 Neb. 903, 902 N.W.2d 

131 (2017).

8 See, also, Hintz, supra note 7.

9 Potter v. McCulla, 288 Neb. 741, 851 N.W.2d 94 (2014).
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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.10 Harm that arises 

from risks distinctly associated with the employment is universally compensable.11 Generally, harm that can be attributed 

solely to personal or idiopathic causes is universally noncompensable.12 Harm that arises from neutral risks is generally compensable.13

As noted in Maradiaga v. Specialty Finishing14:

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.” . . . 

Examples of neutral risks of the first type are stray bullets, lightning, or hurricanes, . . . while the most common 

example of a neutral risk of the second type is a purely 

unexplained fall . . . .

[7] In Logsdon v. ISCO Co.,

15 we considered whether 

an individual’s purely unexplained fall in the course of his 

employment arose out of his employment. We distinguished 

purely unexplained falls causing injuries from idiopathic falls, 

explaining: “Unexplained-fall cases begin with a completely 

neutral origin of a mishap, while idiopathic-fall cases begin 

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

11 Id.

12 See id.

13 Id.

14 Maradiaga v. Specialty Finishing, 24 Neb. App. 199, 206, 884 N.W.2d 

153, 159 (2016), citing 1 Arthur Larson & Lex K. Larson, Larson’s 

Workers’ Compensation Law §§ 4.03 and 7.04[1][a] (2016).

15 Logsdon, supra note 10.
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with an origin which is admittedly personal and which therefore requires some affirmative employment contribution to 

offset the prima facie issue of personal origin.”16

A vast majority of courts nationally have adopted the 

increased-danger rule, which provides that “the effects of [an 

idiopathic-caused] fall are compensable if the employment 

places the employee in a position increasing the dangerous 

effects of such a fall.”17 The Nebraska Court of Appeals considered this rule in Svehla and Lucas, though it did not reference the increased-danger rule. In both cases, the appellate 

court considered whether a fall with a potential idiopathic 

cause became compensable as a result of the contribution of an 

employment condition.

In Svehla, the employee fell on the level ground of her 

employer’s premises while walking to her vehicle after work 

and died from her injuries.18 The trial court concluded that the 

evidence failed to establish the cause of the employee’s fall but 

that the evidence showed her idiopathic condition was just as 

likely to have caused the fall as the employee’s tripping, and it 

denied compensation.19

The appellate court ruled that the compensation court’s 

determination that the fall may have resulted from an idiopathic cause prevented treating the fall as purely unexplained.20

The court then noted that injuries sustained in an idiopathic 

fall “are compensable if the employment places the employee 

in a position increasing the dangerous effects of such a 

fall, such as on a height, near machinery or sharp corners, 

16 Id. at 633, 618 N.W.2d at 675, citing Svehla, supra note 5.

17 1 Arthur Larson et al., Larson’s Workers’ Compensation Law § 9.01[1] at 

9-2 (2017). See § 9.01[4] (citing cases).

18 Svehla, supra note 5.

19 Id.

20 Id.
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or in a moving vehicle.”21 Nevertheless, the appellate court 

agreed with the trial court that the injury was noncompensable 

because the plaintiff failed to determine how the employee 

sustained the injury leading to her death.22

In Lucas, the employee fell when rising from a chair while 

seated at his desk. The trial court determined that the fall was 

due to the employee’s being hypoglycemic and that the fall 

resulted in a fractured hip.23 Though there was no evidence the 

employee struck the chair or the desk during his fall, the trial 

court stated in its order, “‘I find that the desk and the chair 

created an increased risk in that the fracture is a result of how 

one hits the floor, and how one hits the floor is depend[e]nt on 

what obstacles are present which change the way the plaintiff 

lands on the floor.’”24

The workers’ compensation review panel reversed the trial 

court’s order, stating that the trial court was clearly wrong in 

finding the employee suffered an accident arising out of his 

employment and finding that there was insufficient evidence 

“‘to remove his idiopathic fall from the application of the 

general rule that harm that can be attributed to personal or 

idiopathic causes is universally non compensable.’”25 The 

Court of Appeals noted that “[b]ecause the trial court found 

that [the employee’s] fall was not an unexplained fall, but, 

rather, an idiopathic fall, [the employee] was required to 

show some affirmative employment contribution to offset the 

fact that his fall was precipitated by a personal condition.”26

Ultimately however, the appellate court agreed with the 

21 Id. at 777, 567 N.W.2d at 591. Accord 1 Larson et al., supra note 17, 

§ 9.01[1].

22 Svehla, supra note 5.

23 Lucas, supra note 6.

24 Id. at 139, 689 N.W.2d at 360.

25 Id.

26 Id.
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review panel that there was no evidence to support the 

trial court’s finding that the employee’s risk of injury was 

increased by getting up from a chair behind a desk when he 

fell to the ground.27

Neither our statements in Logsdon28 nor the Court of Appeals’ 

statements in Svehla or Lucas support Maroulakos’ argument—

the court was required to consider whether an employment 

hazard caused or contributed to his ultimate injury, because it 

determined an idiopathic condition caused his fall. As stated 

in Logsdon, the presumption is that a personal risk is noncompensable and it is incumbent on the employee to prove an 

affirmative condition of employment caused or contributed to 

the ultimate injury.29 The increased-danger rule may be a valid 

theory for establishing that an injury arose out of employment, 

which we need not determine here, but it is a separate theory 

from arguing a fall was caused by an employment condition or 

a neutral cause.

[8,9] Absent plain error, when an issue is raised for the first 

time in an appellate court, it will be disregarded inasmuch as 

the trial court cannot commit error regarding an issue never 

presented and submitted to it for disposition.30 Plain error is 

plainly evident from the record and of such a nature that to 

leave it uncorrected would result in damage to the integrity, 

reputation, or fairness of the judicial process.31

[10] The rule of liberal construction of the Nebraska 

Workers’ Compensation Act applies to the law, not to the evidence offered to support a claim by virtue of the law.32 The 

rule does not dispense with the necessity that claimant shall 

27 Id.

28 Logsdon, supra note 10.

29 See, also, § 48-151(2).

30 State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017).

31 Id.

32 Smith v. Ruan Transpt, Inc., 190 Neb. 509, 209 N.W.2d 146 (1973).
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prove his right to compensation within the rules above set 

forth, nor does it permit a court to award compensation where 

the requisite proof is lacking.33 A workers’ compensation award 

cannot be based on possibility or speculation, and if an inference favorable to the claimant can be reached only on the basis 

thereof, then the claimant cannot recover.34

As in Lucas, there is no evidence in the record that 

Maroulakos’ injuries were caused or aggravated by a hazard of 

employment. Maroulakos did not present any evidence that his 

facial and potential brain injuries were inconsistent with a fall 

to a hard tile floor or that his potential brain injuries did not 

result solely from his idiopathic condition. Therefore, any finding that the increased-danger rule did apply would have been 

purely speculative.

Further, Maroulakos did not prove that he struck the industrial shelving unit during his fall. While the employees testifying for Walmart both stated that he fell face first into the 

shelving unit, there was also video evidence of the fall that did 

not clearly show that he hit the shelving unit and which contradicted the testimony that he fell backward after making contact 

with the shelving unit. Additionally, despite one comment in 

a medical report, there was no medical evidence discussing 

Maroulakos’ making contact with the shelving unit and stating 

that such was a cause of the injuries.

[11] The trial court ruled that Maroulakos fell to the floor 

after falling from his syncope event. A finding in regard to 

causation of an injury is one for determination by the Workers’ 

Compensation Court as the finder of fact.35 Based on the record 

before us, this finding was supported by competent evidence.

Thus, the court did not commit plain error by not applying 

the increased-danger rule, and Maroulakos’ assignment of error 

33 Haufe v. American Smelting & Refining Co., 163 Neb. 329, 79 N.W.2d 570 

(1956).

34 Visoso v. Cargill Meat Solutions, 285 Neb. 272, 826 N.W.2d 845 (2013).

35 Miller v. Meister & Segrist, 255 Neb. 805, 587 N.W.2d 399 (1998).
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is without merit because he waived his argument by failing to 

present it to the compensation court.

V. CONCLUSION

For the preceding reasons, we affirm the decision of the 

compensation court.

Affirm

Miller-Lerman, J., concurri

In cases where a compensation court finds that an accident 

occurred from an “idiopathic” condition, it logically follows 

that the compensation court should address the increaseddanger rule when there is evidence suggesting that features of 

the workplace increased the severity of the worker’s injuries. 

The evidence in this case shows the area where Maroulakos 

fell had an industrial shelving unit proximate to his path of 

descent to the floor, and two Walmart coworkers testified that 

they witnessed Maroulakos collide with the shelving. A note in 

a medical report also suggests that Maroulakos’ facial injuries 

are consistent with falling on the end of a shelf. Although the 

compensation court found that Manoulakos had an idiopathic 

condition and “[fell] to the ground,” it would have been helpful to address whether Maroulakos hit a shelf on the way down 

and, if so, whether such hit increased his injuries. However, 

this specific question was not raised before the compensation 

court. Therefore, I concur.

Schreiner, District Judge, joins in this concurren