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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 312 Neb. 405

Suzette D. Dutcher, appellant, 

v. Nebraska Department of 

Correctional Services, appellee.

___ N.W.2d ___

Filed September 9, 2022. No. S-21-740.

1. Summary Judgment: Appeal and Error. An appellate court affirms a 

lower court’s grant of summary judgment if the pleadings and admitted 

evidence show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts and that 

the moving party is entitled to judgment as a matter of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted, and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Judgments: Appeal and Error. Statutory interpretation is a question of 

law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by 

the trial court.

4. Workers’ Compensation: Jurisdiction: Legislature. As a statutorily 

created court, it is the role of the Legislature to determine what acts fall 

within the Workers’ Compensation Court’s exclusive jurisdiction.

5. Workers’ Compensation: Legislature. The Nebraska Workers’ 

Compensation Act creates rights which did not exist at common law, 

and the Legislature may place such restrictions thereon as it sees fit.

6. Statutes. Statutes relating to the same subject matter are to be construed 

together so as to maintain a consistent and sensible scheme.

7. ____. Statutory interpretation begins with the text, and the text is to be 

given its plain and ordinary meaning.

8. Statutes: Legislature. It is a fundamental canon of statutory construction that words generally should be interpreted as taking their ordinary 

meaning at the time the Legislature enacted the statute.

Nebraska Supreme Court Online Library

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

10/28/2022 09:05 AM CDT
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Cite as 312 Neb. 405

9. ____: ____. When the Legislature uses legal terms of art in statutes, 

such terms should be construed and understood according to their 

accepted legal meaning.

10. Statutes: Appeal and Error. An appellate court will not resort to interpretation of statutory language to ascertain the meaning of words which 

are plain, direct, and unambiguous.

11. ____: ____. An appellate court is not at liberty to add language to the 

plain terms of a statute to restrict its meaning.

12. Statutes: Courts: Appeal and Error. An appellate court does not sit as 

a superlegislature to review the wisdom of legislative acts.

13. Fair Employment Practices: Discrimination: Intent. Employment discrimination laws such as those found in the Nebraska Fair Employment 

Practice Act have not vested in the Nebraska courts the authority to sit 

as super personnel departments reviewing the wisdom or fairness of the 

business judgments made by employers, except to the extent that those 

judgments involve intentional discrimination.

14. Workers’ Compensation. The Nebraska Workers’ Compensation Act 

covers personal injury or death caused to an employee by accident 

or occupational disease, arising out of and in the course of his or her 

employment, without regard to the negligence of the employer.

15. Workers’ Compensation: Torts: Intent. There is no intentional tort 

exception to the Nebraska Workers’ Compensation Act.

16. Workers’ Compensation: Torts. Under the workers’ compensation 

statutes, employees give up the complete compensation that they might 

recover under tort law in exchange for no-fault benefits that they quickly 

receive for most economic losses from work-related injuries and the 

employer receives immunity from common-law suit.

17. Workers’ Compensation: Immunity. The reason for an employer’s 

immunity is the quid pro quo by which the employer gives up his or her 

normal defenses and assumes automatic liability, while the employee 

gives up his or her right to common-law verdicts.

18. Workers’ Compensation. When an employee sustains an injury that 

arises out of and in the course of his or her employment and such 

injury is covered by the Nebraska Workers’ Compensation Act, then 

the employee surrenders his or her right to any other method, form, or 

amount of compensation or determination thereof for that injury against 

his or her employer or the workers’ compensation insurer.

Appeal from the District Court for Red Willow County: 

David W. Urbom, Judge. Affirmed.
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 312 Neb. 405

Tanya J. Hansen, of Smith, Johnson, Allen, Connick & 

Hansen, for appellant.

Douglas J. Peterson, Attorney General, James A. Campbell, 

Solicitor General, and Phoebe L. Gydesen for appellee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

INTRODUCTION

An employee of the Nebraska Department of Correctional 

Services (Department) was injured while participating in mandated self-defense training. The employee sought and received 

workers’ compensation benefits from the time she was injured, 

including vocational rehabilitation. The employee was ultimately unable to find a position with the Department that 

would accommodate her physical restrictions, and her employment was terminated. She brought suit against the Department 

for wrongful termination on the basis of her disability, in violation of the Nebraska Fair Employment Practice Act (NFEPA). 1

The district court found that the exclusivity provisions of 

the Nebraska Workers’ Compensation Act 2 provide the sole 

remedy for the employee against the Department in this situation, barring the employee’s claim. The employee appeals. 

We affirm.

BACKGROUND

Suzette D. Dutcher began working for the Department in 

February 2002 as a corporal. In 2009, she changed jobs within 

the Department, becoming a chemical dependency counselor. 

In 2010, Dutcher became a supervisor of the chemical dependency counselors.

1 See Neb. Rev. Stat. §§ 48-1101 to 48-1125 (Reissue 2021).

2 Neb. Rev. Stat. §§ 48-101 to 48-1,117 (Reissue 2021).
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 312 Neb. 405

Being a supervisor meant that Dutcher’s job became more 

administrative, but she still had contact with inmates when 

she mediated disagreements between counselors and inmates, 

taught classes, and conducted facility walk-throughs as part 

of her “officer of the day” duties. Dutcher testified in her 

deposition that she was required to maintain certification in 

“level 3” pressure point control tactics (PPCT) training. This 

training included self-defense techniques such as takedowns, 

ground fighting, and kicking. PPCT training was required 

yearly, and Dutcher was required to demonstrate different 

PPCT techniques that included kicking and kneeling in order 

to maintain her certification. PPCT training and certification 

was not explicitly listed in the supervisor job description or 

in an operational memorandum describing “officer of the 

day” duties.

In April 2015, Dutcher suffered an injury to her right knee 

while completing PPCT training. Dutcher timely notified the 

Department of her injury. Her medical expenses associated 

with the injury were covered through the State of Nebraska’s 

third-party administrator for workers’ compensation claims.

Dutcher initially engaged in physical therapy, which was 

unsuccessful. Dutcher had her first surgery in July 2015. 

In September 2015, Dutcher was able to return to her job 

with physical restrictions. The physical limitations included 

no stooping, twisting, or bending her right knee; no squatting, crawling, or kneeling; no kicking or hitting; and no 

running. Because of her physical restrictions, the Department 

required Dutcher to have a level 3 PPCT-certified employee 

with her when she conducted rounds or any time she interacted 

with inmates.

After returning to work, Dutcher had more surgeries in 

September 2015, June 2018, and August 2018. Dutcher 

received regular payments for temporary total disability starting in August 2015.
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 312 Neb. 405

In September 2016, Dutcher received a letter from the 

Department advising her that 1 year had elapsed since work 

restrictions had been imposed and that since work restrictions remained, pursuant to Department policy, she had 90 

days to find a new position or be terminated from her current position. After failing to find another position within the 

Department that could accommodate her physical restrictions, 

Dutcher’s employment was terminated in December 2016. The 

Department explained that Dutcher was unable to fulfill the 

regular duties of her position. Dutcher admitted in her deposition that she was not physically capable of performing level 3 

PPCT tactics or takedown techniques.

In March 2017, Dutcher was declared by her doctor to be at 

maximum medical improvement, with a permanent impairment 

rating and permanent work restrictions. Dutcher’s permanent 

work restrictions included no lifting over 20 pounds; no stooping, twisting, bending, squatting, crawling, or kneeling; limits 

on the amount of walking, standing, and climbing; and no 

physical contact with inmates.

Rather than accepting the workers’ compensation carrier’s 

payment to close the claim based on Dutcher’s reaching her 

maximum medical improvement, Dutcher elected to exercise 

her right to appointment of a vocational rehabilitation counselor. The Workers’ Compensation Court approved Dutcher’s 

election to participate in a vocational rehabilitation plan.

Dutcher’s appointed vocational rehabilitation counselor 

indicated in her initial report that Dutcher may qualify for 

some social services jobs based on Dutcher’s transferable 

skills, but that she would not likely earn wages comparable 

to what she was making at the time of her injury. After conducting market research regarding Dutcher’s current educational level and qualifications, the counselor determined that 

Dutcher would need to secure additional education within her 

field or look at a new field to gain skills for future employment. Dutcher and her counselor decided the best plan was 
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Cite as 312 Neb. 405

to pursue an associate degree in business administration. 

The counselor developed a vocational rehabilitation plan for 

Dutcher to obtain such a degree with the expected completion in May 2021. After approving the plan, the Workers’ 

Compensation Court ordered the payment of Dutcher’s tuition, 

books, and incidentals.

Dutcher completed her vocational rehabilitation in May 

2021 by obtaining her degree. However, rather than engage 

in the job placement process with her counselor, Dutcher 

decided to join a family agricultural business she owns with 

her husband.

As of July 2, 2021, Dutcher had received more than $199,000 

in workers’ compensation indemnity payments, which included 

$1,140 every 2 weeks in temporary total disability, permanent 

partial disability benefits, and a $61,275 lump sum payment in 

August 2019.

While Dutcher was receiving workers’ compensation disability payments and engaging in her vocational rehabilitation 

plan, she filed a complaint on September 12, 2018, against the 

Department, alleging the Department violated the Americans 

with Disabilities Act of 1990 and the NFEPA. The Department 

removed the case to federal court, where the Americans with 

Disabilities Act of 1990 claim was dismissed. The remaining 

NFEPA claim was remanded to state court.

Dutcher alleged in relation to her claim under the NFEPA 

that because she had fulfilled all material terms and conditions 

of employment at all relevant times, the Department’s proffered reason for terminating her employment was pretextual. 

She alleged that the real reason the Department terminated 

her employment was on the basis of her disability. Dutcher 

pointed out that the Department had originally accommodated 

her medical restrictions, and she asserted that “[p]erforming 

Level 3 PPCT take down techniques and restraints on inmates 

was not part of [her] regular job duties.”

The Department’s answer asserted that Dutcher’s failure to “meet the occupational qualifications required by the 
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 312 Neb. 405

[Department] would have caused a direct threat which involved 

significant risks to the health and/or safety of [Dutcher] and 

others in the work place which could not be eliminated by 

a reasonable accommodation” and that as such, the termination of Dutcher’s employment was “consistent with business necessity.” Further, the Department asserted that to the 

extent Dutcher was denied an accommodation, such denial was 

because the accommodation would impose an undue burden 

or would have posed a direct threat to the health or safety of 

Dutcher or other individuals.

The Department moved for summary judgment on the 

basis of the exclusivity provisions of the Nebraska Workers’ 

Compensation Act. After an evidentiary hearing, the district 

court entered an order granting the Department’s motion for 

summary judgment. The district court concluded that the exclusivity provisions of the Nebraska Workers’ Compensation Act, 

§§ 48-111 and 48-148, barred Dutcher’s NFEPA claim as a 

matter of law. Dutcher appeals.

ASSIGNMENTS OF ERROR

Dutcher assigns that the district court erred in determining her claim was barred by the exclusivity provisions of the 

Nebraska Workers’ Compensation Act and, as such, erred in 

granting the Department’s motion for summary judgment.

STANDARD OF REVIEW

[1] An appellate court affirms a lower court’s grant of summary judgment if the pleadings and admitted evidence show 

that there is no genuine issue as to any material facts or as 

to the ultimate inferences that may be drawn from the facts 

and that the moving party is entitled to judgment as a matter 

of law. 3

[2] In reviewing a summary judgment, an appellate court 

views the evidence in the light most favorable to the party 

3 Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020).
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against whom the judgment was granted, and gives that party 

the benefit of all reasonable inferences deducible from the 

evidence. 4

[3] Statutory interpretation is a question of law. When 

reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion 

reached by the trial court. 5

ANALYSIS

[4,5] The Workers’ Compensation Court is a statutorily created court designed to have jurisdiction over all injuries falling within the scope of the Nebraska Workers’ Compensation 

Act. 6 As a statutorily created court, it is the role of the 

Legislature to determine what acts fall within the Workers’ 

Compensation Court’s exclusive jurisdiction. 7 The Nebraska 

Workers’ Compensation Act creates rights which did not exist 

at common law, and the Legislature may place such restrictions 

thereon as it sees fit. 8

Whether the exclusivity provisions of the Nebraska 

Workers’ Compensation Act applied to the facts of this case, 

thereby depriving the district court of jurisdiction to hear 

Dutcher’s NFEPA action, is a question of law as to the meaning of the relevant provisions of those two legislative acts. 

Thus, we begin by setting forth our principles of statutory 

construction.

[6-9] Statutes relating to the same subject matter are to be 

construed together so as to maintain a consistent and sensible 

scheme. 9 However, statutory interpretation begins with the 

4 Id.

5 Id.

6 Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236 

(2013).

7 Id.

8 Id.

9 See Grothen v. Grothen, 308 Neb. 28, 952 N.W.2d 650 (2020).
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text, and the text is to be given its plain and ordinary meaning. 10 It is a fundamental canon of statutory construction that 

words generally should be interpreted as taking their ordinary 

meaning at the time the Legislature enacted the statute. 11 When 

the Legislature uses legal terms of art in statutes, such terms 

should be construed and understood according to their accepted 

legal meaning. 12

[10-12] An appellate court will not resort to interpretation 

of statutory language to ascertain the meaning of words which 

are plain, direct, and unambiguous. 13 Also, an appellate court 

is not at liberty to add language to the plain terms of a statute 

to restrict its meaning. 14 An appellate court does not sit as a 

superlegislature to review the wisdom of legislative acts. 15

NFEPA

[13] Employment discrimination laws such as those found 

in the NFEPA have not vested in the Nebraska courts the 

authority to sit as super personnel departments reviewing 

the wisdom or fairness of the business judgments made by 

employers, except to the extent that those judgments involve 

intentional discrimination. 16 The NFEPA states at § 48-1101 

that it “is the policy of [Nebraska] to foster the employment of all employable persons in the state on the basis of 

merit . . . and to safeguard their right to obtain and hold 

employment without discrimination.” The NFEPA provides at 

§ 48-1104(1), in relevant part, that “[i]t shall be an unlawful 

10 Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128 

(2022).

11 Id.

12 Clark v. Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022).

13 Nebraska Republican Party v. Shively, supra note 10.

14 Spratt v. Crete Carrier Corp., 311 Neb. 262, 971 N.W.2d 335 (2022).

15 Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 663 N.W.2d 43 

(2003).

16 Baker-Heser v. State, 309 Neb. 979, 963 N.W.2d 59 (2021).
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employment practice for an employer . . . to discriminate 

against any individual with respect to compensation, terms, 

conditions, or privileges of employment, because of such individual’s race, color, religion, sex, disability, marital status, or 

national origin[.]”

Under § 48-1107.01(1), it is unlawful for a covered entity to 

“[d]iscriminate against a qualified individual with a disability 

because of the disability of such individual in regard to job 

application procedures, the hiring, advancement, or discharge 

of employees, employee compensation, job training, and other 

terms, conditions, and privileges of employment[.]” Section 

48-1102(10)(a) defines “[q]ualified individual with a disability” as “an individual with a disability who, with or without 

reasonable accommodation, can perform the essential functions of the employment position that such individual holds or 

desires” and states that “[c]onsideration shall be given to the 

employer’s judgment as to what functions of a job are essential . . . .” Under § 48-1102(11), “[r]easonable accommodation 

shall not include accommodations which the covered entity can 

demonstrate require significant difficulty or expense thereby 

posing an undue hardship upon the covered entity.”

While the NFEPA establishes an Equal Opportunity 

Commission to, among other things, receive, investigate, and 

pass upon charges of unlawful employment practices, 17 the 

NFEPA provides in § 48-1119(4) that “[a] complainant who 

has suffered physical, emotional, or financial harm as a result 

of a violation of section 48-1104 or 48-1114 may, at any stage 

of the proceedings prior to dismissal, file an action directly in 

the district court of the county where such alleged violation 

occurred” and that “[t]he district court shall file and try such 

case as any other civil action, and any successful complainant 

shall be entitled to appropriate relief, including temporary or 

permanent injunctive relief, general and special damages, reasonable attorney’s fees, and costs.”

17 See §§ 48-1116 and 48-1117(1).
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.

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The NFEPA does not refer to the Nebraska Workers’ 

Compensation Act, and it does not contain any provision relating to exclusivity. The only provision relating to construction 

of the act states, “Nothing contained in the [NFEPA] shall be 

deemed to repeal any of the provisions of the civil rights law, 

any other law of this state, or any municipal ordinance relating 

to discrimination because of race, creed, color, religion, sex, 

disability, or national origin.” 18

Nebraska Workers’

Compensation Act

[14,15] The Nebraska Workers’ Compensation Act covers 

personal injury or death caused to an employee by accident 

or occupational disease, arising out of and in the course of his 

or her employment, 19 without regard to the negligence of the 

employer. 20 Injury and personal injuries “mean only violence to 

the physical structure of the body and such disease or infection 

as naturally results therefrom.” 21 An accident “means an unexpected or unforeseen injury happening suddenly and violently, 

with or without human fault, and producing at the time objective symptoms of an injury.” 22 This court has long held that 

there is no intentional tort exception to the Nebraska Workers’ 

Compensation Act. 23

Section 48-110 states that when an employer and employee 

accept the provisions of the Nebraska Workers’ Compensation 

Act, by express or implied agreement or as provided in 

§ 48-112, the employee shall be compensated according to the 

schedule of the act. Section 48-111 provides in relevant part 

that “[s]uch agreement or the election provided for in section 

18 § 48-1124.

19 § 48-101.

20 § 48-110.

21 § 48-151(4).

22 § 48-151(2).

23 Estate of Teague v. Crossroads Co-op Assn., supra note 6.
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48-112 shall be a surrender by the parties thereto of their 

rights to any other method, form, or amount of compensation 

or determination thereof than as provided in the Nebraska 

Workers’ Compensation Act . . . .” Section 48-148 provides 

in relevant part that if an employee, or the employee’s dependents, files a claim for a personal injury from an employer subject to the Nebraska Workers’ Compensation Act, that action 

“shall constitute a release to such employer of all claims or 

demands at law, if any, arising from such injury.”

[16,17] Workers’ compensation laws reflect a compromise 

between employers and employees. 24 Under these statutes, 

employees give up the complete compensation that they might 

recover under tort law in exchange for no-fault benefits that 

they quickly receive for most economic losses from workrelated injuries and the employer receives immunity from common-law suit. 25 The reason for the employer’s immunity is the 

quid pro quo by which the employer gives up his or her normal 

defenses and assumes automatic liability, while the employee 

gives up his or her right to common-law verdicts. 26

[18] We have said the Nebraska Workers’ Compensation 

Act “‘provides the exclusive remedy by the employee against 

the employer for any injury arising out of and in the course 

of the employment.’” 27 We have explained that § 48-148 of 

the Nebraska Workers’ Compensation Act provides that if an 

employee’s injury arises out of and in the course of employment, the employee’s exclusive remedy is against the employer 

for workers’ compensation. 28 Thus, we have held:

24 Pittman v. Western Engineering Co., 283 Neb. 913, 813 N.W.2d 487 

(2012).

25 See Estate of Teague v. Crossroads Co-op Assn., supra note 6.

26 Pittman v. Western Engineering Co., supra note 24.

27 Bennett v. Saint Elizabeth Health Sys., 273 Neb. 300, 305, 729 N.W.2d 80, 

84 (2007).

28 Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 

(2018).
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[W]hen an employee sustains an injury that arises out 

of and in the course of his or her employment and such 

injury is covered by the Nebraska Workers’ Compensation 

Act, then the employee surrenders his or her right to 

any other method, form, or amount of compensation or 

determination thereof for that injury against his or her 

employer or the workers’ compensation insurer. 29

We have elaborated that while an individual can be an employee 

of an entity and nevertheless sue that entity in district court 

where the particular facts show that the suit in district court 

is not covered under or barred by the Nebraska Workers’ 

Compensation Act, 30 the employee must allege sufficient 

facts that, if true, would demonstrate the Nebraska Workers’ 

Compensation Act does not apply. 31

We have never specifically addressed the exclusivity provisions of the Nebraska Workers’ Compensation Act in the context of a civil claim brought in district court under the NFEPA. 

We have, however, found that the exclusivity provisions of the 

Nebraska Workers’ Compensation Act applied to various other 

civil actions brought in district court, despite plaintiffs’ arguments that the actions were sufficiently distinct from their 

workers’ compensation claim to not “aris[e] from such injury.” 

These have included actions brought in district court for wrongful death, 32 assault and battery, 33 bystander negligent infliction 

of emotional distress, 34 medical malpractice, 35 bad faith relating to administration of a workers’ compensation claim, 36

29 Ihm v. Crawford & Co., 254 Neb. 818, 821, 580 N.W.2d 115, 118 (1998).

30 Pittman v. Western Engineering Co., supra note 24.

31 Estate of Teague v. Crossroads Co-op Assn., supra note 6.

32 Id.

33 Id.

34 Pittman v. Western Engineering Co., supra note 24.

35 Bennett v. Saint Elizabeth Health Sys., supra note 27.

36 Ihm v. Crawford & Co., supra note 29.
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and violations of “‘the Factory Act[,]’ [Neb. Rev. Stat.] 

§§ 48-409 and 48-422, R. R. S. 1943.” 37

For instance, in Pittman v. Western Engineering Co.,

 38 we 

rejected the plaintiff’s argument that his claim for bystander 

negligent infliction of emotional distress after witnessing his 

wife’s work-related death did not “aris[e] from such injury” 

for purposes of § 48-148. The plaintiff argued that his action 

did not arise from the personal injury for which he received 

workers’ compensation benefits, because, with the exception 

of first responders, purely psychological damages are not 

recoverable under the definition of “injury” in the Nebraska 

Workers’ Compensation Act. Further, the plaintiff argued his 

injuries arose separately from the injuries suffered by his wife, 

because they resulted solely from his shock of encountering 

the scene of her death.

We held that upon accepting payment as a dependent, by 

operation of § 48-148, the husband released his wife’s employer 

from further claims arising from her injury, and that his action 

in district court was barred by the employer immunity found 

in § 48-148. We explained that the husband’s claim was barred 

by the plain language of “arising from such injury.” We utilized a “rational nexus” test and reasoned that the husband’s 

claim “logically ar[ose]” from his wife’s death, because, had 

her injury and resultant death not occurred, the husband’s emotional distress claims would not have arisen. 39

37 Edelman v. Ralph Printing & Lithographing, Inc., 189 Neb. 763, 764, 

205 N.W.2d 340, 340 (1973). But see, Riesen v. Irwin Indus. Tool Co., 

272 Neb. 41, 717 N.W.2d 907 (2006) (without discussion of exclusivity 

remanding for further proceeding tort claim in district court for retaliatory 

discharge for filing workers’ compensation claim); Muller v. Tri-State 

Ins. Co., 252 Neb. 1, 560 N.W.2d 130 (1997) (exclusivity did not 

apply to claim under employer’s underinsured motorist coverage even 

though plaintiff widow received compensation from employer’s workers’ 

compensation carrier for death from automobile accident).

38 Pittman v. Western Engineering Co., supra note 24.

39 Id. at 928, 813 N.W.2d at 498.
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In Bennett v. Saint Elizabeth Health Sys.,

 40 we held that the 

plaintiff’s medical malpractice action was barred by the exclusivity provisions of the Nebraska Workers’ Compensation Act 

when she sought to recover for aggravation of an injury that 

arose out of and in the course of her employment at a hospital, 

which aggravation was allegedly caused by the same hospital 

when it negligently performed physical therapy treatment of 

the original injury. There was no dispute that the plaintiff was 

entitled to workers’ compensation benefits for both the original 

injury and the injury sustained during physical therapy, and we 

observed there was no inference in the record that the plaintiff’s physical therapy was an unnecessary or unreasonable 

treatment for her initial injury. We reasoned that because the 

plaintiff would not have undertaken the physical therapy “but 

for” the original compensable injury to that shoulder, the consequential injury to the left shoulder was related to her employment, and therefore, it was a covered injury under the Nebraska 

Workers’ Compensation Act. 41

We similarly held in Ihm v. Crawford & Co. 42 that an action 

in district court to recover for additional injuries caused by a 

bad faith delay in providing authorization for treatment was 

barred by the exclusivity provisions of the Nebraska Workers’ 

Compensation Act, disagreeing with the plaintiff’s argument 

that the injuries caused by the subsequent intentional tort did 

not arise out of his work-related injury. We explained that the 

alleged tortious acts were “completely intertwined with the 

original injury”:

While the alleged tortious conduct of the appellees, in 

refusing to timely authorize needed medical treatment, 

may have come after the original injury, the conduct was 

not independent of the injury. Rather, the alleged tortious 

acts of the appellees were completely intertwined with 

40 Bennett v. Saint Elizabeth Health Sys., supra note 27.

41 Id. at 307, 729 N.W.2d at 85.

42 Ihm v. Crawford & Co., supra note 29.
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the original injury, as their acts related directly to an 

alleged bad faith delay in authorization of further treatment for the original injury. 43

We observed that the penalties under the act for such bad 

faith were limited to attorney fees and thus provided little 

deterrence to the bad faith handling of claims; still, it was the 

province of the Legislature, not this court, to strengthen the 

deterrent effect of administrative penalties within the act as 

public policy may dictate. 44

Arising From Such Injury

The statutory scheme dictates that Dutcher and the 

Department agreed to be subject to the Nebraska Workers’ 

Compensation Act. The Department is “such employer” for 

purposes of the release provision in § 48-148. There is no 

dispute that Dutcher’s knee injury and associated restrictions 

for which Dutcher received workers’ compensation benefits—

and which restrictions were the stated reasons the Department 

concluded she was unable to fulfill the regular duties of her 

position—were the result of an accident arising out of and in 

the course of her employment. Dutcher was given vocational 

rehabilitation for that injury, which she was eligible for under 

§ 48-162.01(3), by being “unable to perform suitable work 

for which he or she has previous training or experience,” 

as a result of the injury. The question is whether, under the 

facts of this case, Dutcher’s discrimination action in district 

court under the NFEPA was a claim for compensation “arising from such injury,” 45 which would constitute “any other 

method, form, or amount of compensation or determination [of 

compensation].” 46

Dutcher points out there is case law in other jurisdictions holding that the exclusivity provisions of the governing 

43 Id. at 826, 580 N.W.2d at 120.

44 Ihm v. Crawford & Co., supra note 29.

45 § 48-148.

46 § 48-111.
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workers’ compensation laws do not bar discrimination actions 

based on a disability stemming from the personal injury for 

which workers’ compensation benefits were obtained. 47 Those 

courts reason that statutes barring discrimination provide a 

remedy for “intangible injuries which rob a person of dignity 

and self-esteem and with eliminating a discriminatory environment in the workplace that affects not only the victim of discrimination but the entire workforce and the public welfare.” 48

47 See, Mangin v. Westco Security Systems, Inc., 922 F. Supp. 563 (M.D. Fla. 

1996); Davis v. Dillmeier Enterprises, Inc., 330 Ark. 545, 956 S.W.2d 

155 (1997) (remedies granted to employee on account of injury); City 

of Moorpark v. Superior Court, 18 Cal. 4th 1143, 959 P.2d 752, 77 Cal. 

Rptr. 2d 445 (1998) (plain language of exclusive remedy provisions of 

workers’ compensation law apparently limits those provisions to division 

of labor code remedies); Hardaway Management Co. v. Southerland, 

977 S.W.2d 910 (Ky. 1998); Daniel v. City of Minneapolis, 923 N.W.2d 

637 (Minn. 2019) (on account of such injury); Folan v. State/DCYF, 723 

A.2d 287 (R.I. 1999) (right to compensation for injury under chapters 

of compensation act, and remedy for injury granted by those chapters, 

shall be in lieu of all rights and remedies as to that injury); Gallipo v. 

City of Rutland, 173 Vt. 223, 789 A.2d 942 (2001); Messer v. Huntington 

Anesthesia Group, Inc., 218 W. Va. 4, 620 S.E.2d 144 (2005) (not 

liable to respond in damages at common law or by statute for injury 

or death of any employee, however occurring, but injuries caused by 

employer’s deliberate intention exempted from workers’ compensation 

act); Byers v. Labor and Industry Review Com’n, 208 Wis. 2d 388, 561 

N.W.2d 678 (1997) (where such conditions for employer’s liability under 

workers’ compensation act exist, right to recovery of compensation shall 

be exclusive remedy against employer). See, also, Whitson v. City of 

Hoover, 14 So. 3d 98 (Ala. 2009) (age discrimination claim); Claxton 

v. Waters, 34 Cal. 4th 367, 96 P.3d 496, 18 Cal. Rptr. 3d 246 (2004) 

(sexual harassment); Byrd v. Richardson-Greenshields-Securities, 552 So. 

2d 1099 (Fla. 1989) (sexual harassment); Meyers v. Chapman Printing 

Co., Inc., 840 S.W.2d 814 (Ky. 1992) (sex discrimination); Cox v. 

Glazer Steel Corp., 606 So. 2d 518 (La. 1992) (workers’ compensation 

act specifically provides that it does not bar other statutory causes of 

action); King v. Bangor Federal Credit Union, 568 A.2d 507 (Me. 1989); 

Gunn v. Consolidated Rural Water & Sewer, 839 P.2d 1345 (Okla. 1992) 

(retaliatory discharge).

48 Byers v. Labor and Industry Review Com’n, supra note 47, 208 Wis. 2d at 

397, 561 N.W.2d at 681-82.
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The court in Daniel v. City of Minneapolis 49 reasoned that 

those intangible harms are not “such injury” referred to in 

the workers’ compensation laws, which is limited to personal 

injury within the coverage of the workers’ compensation acts. 

Further, nothing in the civil rights laws of that state indicate 

“the Legislature intended an employee’s civil right to be free 

from discrimination to hinge on where, when, or how the disability arose.” 50

But the workers’ compensation statutes relevant to cases 

from other jurisdictions rejecting workers’ compensation 

exclusivity, vis-a-vis civil rights actions, generally lack the 

same “arising from” language found in the Nebraska Workers’ 

Compensation Act. Nor do the workers’ compensation statutes 

in those jurisdictions always include injuries stemming from 

an employer’s intentional wrongdoing, 51 as does the Nebraska 

Workers’ Compensation Act.

Further, dissenting opinions in those cases point out that 

the workers’ compensation laws already provide a remedy for 

the refusal to return an injured employee to suitable work and 

that even if civil rights laws were meant to remedy different 

injuries, the workers’ compensation laws plainly and explicitly 

provide that such remedy is exclusive. 52 They also point out 

that the quid pro quo balance to be struck is a matter of public 

policy; the remedy for any harshness resultant from the rule of 

exclusiveness is wholly legislative. 53 Finally, it has been said 

that allowing both civil rights actions and workers’ compensation actions to coexist implicates double recovery and 

“likely will result in a proliferation of failure-to-accommodate 

49 See, e.g., Daniel v. City of Minneapolis, supra note 47.

50 Id. at 650.

51 See Messer v. Huntington Anesthesia Group, Inc., supra note 47. 52 Davis v. Dillmeier Enterprises, Inc., supra note 47 (Newbern, J., dissenting). See, also, Daniel v. City of Minneapolis, supra note 47 (Anderson, J., 

dissenting).

53 Daniel v. City of Minneapolis, supra note 47 (Anderson, J., dissenting).
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litigation over workplace injuries” 54—matters that, again, are 

best left with the Legislature.

As discussed, we have consistently rejected arguments that 

a civil claim in district court did not arise from the workplace 

injury, because it stemmed from intentional conduct or because 

the nature of the damages incurred were mental rather than 

physical. Under the Nebraska Workers’ Compensation Act, the 

employee gives up the right to complete compensation.

We have described “arising from” under § 48-148 as “but 

for” causation. We said in Pittman v. Western Engineering Co. 55

that “arising from” refers to a “rational nexus.” In other contexts, we have understood phrases with “arising” or similar as 

referring to “but for” causation, with some caveats. With respect 

to “arising out of” employment under § 48-101, we have held 

that the test is whether the act is “reasonably incident thereto, 

or is so substantial a deviation as to constitute a break in the 

employment which creates a formidable independent hazard.” 56

In the context of liability policies, we have interpreted the term 

“arising out of” as “ordinarily understood to mean originating 

from, growing out of, or flowing from; and requiring only a 

‘but for’ causal connection.” 57 In the context of an exemption to the waiver of sovereign immunity for claims “arising 

out of” certain listed intentional torts, we have described the 

exemption as applicable under “but for” causation, whenever 

the claim stems from, arises out of, is inextricably linked to, is 

essential to, and would not exist without one of the underlying 

intentional torts—though we have acknowledged there could 

be circumstances “‘so attenuated’” from the listed intentional 

tort that the claim would not fairly be characterized as arising 

54 Id. at 658.

55 Pittman v. Western Engineering Co., supra note 24.

56 Misek v. CNG Financial, 265 Neb. 837, 842, 660 N.W.2d 495, 500 (2003) 

(internal quotation marks omitted).

57 See Federated Serv. Ins. Co. v. Alliance Constr., 282 Neb. 638, 649-50, 

805 N.W.2d 468, 478 (2011).
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out of it. 58 The Court of Appeals in Hammond v. Nemaha Cty. 59

utilized, in the context of Neb. Rev. Stat. § 81-8,219 (Reissue 

1996), Black’s Law Dictionary’s definition of “arise” as “[t]o 

spring up, originate, to come into being,” as well as another 

court’s explanation that “arising out of” means “causally connected with, not proximately caused by, and that a but for 

causation, that is, a cause and result relationship, is enough.” 60

The exclusivity provisions of the Nebraska Workers’ 

Compensation Act are broadly worded. At the same time, 

the NFEPA is silent on its application respecting disabilities 

stemming from workplace injuries covered by the Nebraska 

Workers’ Compensation Act. Especially in light of our articulation of the broad meaning of similar language, the Legislature 

had the ability to clearly exclude from the exclusivity provisions of the Nebraska Workers’ Compensation Act claims like 

the case at bar. Yet, it did not do so.

We hold that for purposes of § 48-148, Dutcher’s claimed 

discrimination under the NFEPA was a claim “arising from” 

the knee injury that was caused by an accident arising out of 

and in the course of her employment and, thus, “such injury.” 

Therefore, she cannot obtain additional remedies through a 

civil action in district court under the NFEPA.

Nothing in this opinion should be interpreted as restricting an employee’s ability to file a charge with the Equal 

Opportunity Commission. And we do not suggest that discrimination is a rational or a logical result of having a personal injury. However, in this case, there is a sufficient nexus 

between the injury Dutcher was given workers’ compensation 

for and her civil action under the NFEPA such that the NFEPA 

action arose from her workplace injury.

58 See Dion v. City of Omaha, 311 Neb. 522, 541, 973 N.W.2d 666, 682 

(2022). Accord Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 

744 (2021).

59 Hammond v. Nemaha Cty., 7 Neb. App. 124, 581 N.W.2d 82 (1998).

60 Id. at 129, 581 N.W.2d at 87 (internal quotation marks omitted).
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Whether there hypothetically may be circumstances so attenuated from the work-related injury that a NFEPA claim against 

that same employer would not fairly be characterized as arising from the work-related injury need not be determined here. 

Dutcher, through disability payments and vocational rehabilitation, was compensated under the quid quo pro system established by the Legislature for the very inability to work that the 

Department stated was the reason for firing her.

Regardless of whether that reason was pretextual as Dutcher 

claims, the NFEPA claim arises from the personal injury 

incurred within the course and scope of her employment with 

the Department. To allow Dutcher additional relief in a civil 

action in district court under the NFEPA would be to judicially 

interfere with the quid pro quo determined by the Legislature 

through the Nebraska Workers’ Compensation Act.

Changes in the workers’ compensation laws, and in the public policies recognized in those laws, must emanate from the 

lawmaking power of the Legislature and not from the courts. 61

If the Legislature determines victims of employer discrimination on the basis of disabilities caused by injuries covered by 

workers’ compensation with that same employer should have 

the additional remedies of a civil action under the NFEPA, it 

can pass an amendment plainly so providing.

CONCLUSION

Viewing the evidence in a light most favorable to Dutcher 

and giving her the benefit of all reasonable inferences deducible from the evidence presented at the summary judgment 

hearing, because of the exclusivity provisions of the Nebraska 

Workers’ Compensation Act, we determine the district court 

lacked jurisdiction over Dutcher’s NFEPA action. We affirm 

the judgment of the district court granting summary judgment 

in favor of the Department.

Affirmed.

61 Estate of Teague v. Crossroads Co-op Assn., supra note 6.