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Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

MICHAEL B. v. NORTHFIELD RETIREMENT COMMUNITIES

Cite as 24 Neb. App. 504

Michael B., as father and next friend of

KaLeigh B., appellant, v. Northfield

Retirement Communities, appellee.

___ N.W.2d ___

Filed February 7, 2017. No. A-16-486.

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

Stat. § 48-185 (Cum. Supp. 2016), an appellate court may only modify, 

reverse, or set aside a Workers’ Compensation Court decision 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. Death: Presumptions. The presumption against suicide is one of law, 

not of fact, and is based upon the natural characteristics of persons for 

love of life and fear of death.

4. Death: Presumptions: Evidence: Proof. The presumption against suicide can be overcome and rebutted by the introduction of evidence tending to show how the death occurred.

5. ____: ____: ____: ____. If the presumption against suicide is overcome, 

the burden shifts to the party asserting the death was accidental to 

adduce evidence of such.

6. Workers’ Compensation: Negligence. A claimant cannot recover 

under the workers’ compensation law if the employee was willfully 

negligent.

7. ____: ____. Willful negligence consists of a deliberate act, conduct evidencing a reckless indifference to safety, or intoxication at the time of 

injury without consent, knowledge, or acquiescence of the employer.

Nebraska Supreme Court Online Library

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

02/07/2017 09:08 AM CST
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Nebraska Court of Appeals Advance Sheets

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MICHAEL B. v. NORTHFIELD RETIREMENT COMMUNITIES

Cite as 24 Neb. App. 504

8. Workers’ Compensation: Negligence: Death. Committing suicide generally constitutes willful negligence within the meaning of Neb. Rev. 

Stat. § 48-151(7) (Reissue 2010) and thereby bars recovery under the 

workers’ compensation law.

9. Workers’ Compensation: Negligence: Death: Evidence. There is an 

exception to the rule that suicide constitutes willful negligence when the 

evidence shows that suicide was nonvoluntary.

10. ____: ____: ____: ____. There are factors that can override a person’s 

free will, and scientific testimony to such can be admitted as evidence 

that the suicide was not willful, thereby allowing for workers’ compensation recovery.

Appeal from the Workers’ Compensation Court: Daniel R. 

Fridrich, Judge. Affirmed.

Michael W. Meister for appellant.

Gregory D. Worth, of McAnany, Van Cleave & Phillips, for 

appellee.

Moore, Chief Judge, and Riedmann and Bishop, Judges.

Riedmann, Judge.

INTRODUCTION

Michael B., as father and next friend of KaLeigh B., appeals 

from an order from the Workers’ Compensation Court denying 

survivor benefits, following the death of Kena B. Based on 

our review of the record, we affirm.

BACKGROUND

Kena sustained an injury arising out of her employment 

with Northfield Retirement Communities in 2009. In 2012, 

a stipulated award was entered in her favor. At the time, she 

continued to receive treatment. Kena passed away on April 15, 

2014, from an apparent drug overdose. After performing an 

autopsy, the coroner found her cause of death to be multiple 

drug toxicity.

Following Kena’s death, a suggestion of death, motion 

to substitute party, and petition for benefits was filed. The 
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MICHAEL B. v. NORTHFIELD RETIREMENT COMMUNITIES

Cite as 24 Neb. App. 504

motion sought leave to substitute Michael as the plaintiff. 

The motion was granted, and Michael was allowed to file an 

amended petition on KaLeigh’s behalf seeking death benefits 

under the Nebraska Workers’ Compensation Act. Northfield 

Retirement Communities contested the amended petition, 

and the issue was tried to the court. The evidence reveals 

the following:

Several hours prior to Kena’s death, Det. Henry Moreno of 

the Gering Police Department accompanied a social worker 

to Kena’s residence at the social worker’s request. At the 

time, Kena and her teenage daughter, KaLeigh, were living 

at a friend’s house. The purpose of the visit was to speak 

with Kena regarding her drug usage and living situation, as 

well as to investigate a complaint regarding physical abuse 

of KaLeigh.

While at the residence, the friend asked Moreno to tell Kena 

that she was no longer welcome there. The social worker also 

spoke with Kena about housing options for KaLeigh, because 

KaLeigh was going to be removed from her custody. Kena was 

upset to learn that she was being evicted and that her daughter 

was going to be taken from her. At one point, Kena told the 

social worker that she was going to take a Xanax because “her 

anxiety was acting up.”

During their conversations, Kena said that she had no family 

in the area to help her and that she did not know what she was 

going to do. She repeated several times that she was “at her 

end.” When asked to elaborate on what she meant, she would 

not do so. The social worker specifically asked her if she was 

going to harm herself or anyone else, and she said no.

Moreno and the social worker left the residence at 3:54 p.m. 

after telling Kena to begin packing up her belongings to leave 

the residence. Moreno stated that he did not feel that Kena 

was a danger to herself at the time that they left.

Less than an hour later, at 4:51 p.m., a rescue call to the 

same residence was received. Upon Moreno’s arrival, he saw 

that Kena was unconscious and that emergency personnel were 
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MICHAEL B. v. NORTHFIELD RETIREMENT COMMUNITIES

Cite as 24 Neb. App. 504

administering CPR. While at the residence, he collected the 

pill bottles found in Kena’s bedroom and later counted the 

quantity of some of the more “serious” pills.

Kena was taken to the hospital where she later died. At 

the hospital, the primary diagnosis was found to be an intentional drug overdose. When her autopsy was performed the 

following day, however, the coroner found that her death was 

accidental.

Prior to her death, Kena had been regularly seeing the 

same primary care doctor for a number of years, Dr. Michelle 

Cheloha. Dr. Cheloha testified that Kena had been experiencing 

pain from her work injury ever since it happened, even after 

she had surgery. Dr. Cheloha had prescribed various painkillers 

over the years to treat this pain. At the time of Kena’s death, 

she had prescriptions for methadone and oxycodone to treat 

her continued neck pain. Dr. Cheloha also testified that Kena 

had a history of anxiety and depression that predated her work 

injury and that she had been on medications, such as Xanax, as 

far back as 2003. She also stated that she was aware Kena had 

prior suicidal ideations and attempts and that Kena had been 

admitted to the psychiatric unit on June 4, 2013, because she 

expressed that she felt hopeless and helpless and “want[ed] to 

leave the world.”

Dr. Cheloha saw Kena 6 days prior to her death. The doctor confirmed which medications she had prescribed at that 

time and in what quantity. Of the 90 methadone pills she had 

prescribed, 78 should have remained, but Moreno found only 

63. She prescribed 60 oxycodone pills, and 31 were left, and 

she prescribed 40 Xanax pills, and only 4 were found. Based 

on the quantities left over, Dr. Cheloha determined that Kena 

overdosed on all three medications and that the amount of 

medication unaccounted for would have been sufficient to send 

her into respiratory arrest and cause her death. She confirmed 

that the levels of medication found in Kena’s body during her 

autopsy were in excess of what they should have been if she 

had taken them as prescribed and that, if taken at the correct 
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MICHAEL B. v. NORTHFIELD RETIREMENT COMMUNITIES

Cite as 24 Neb. App. 504

dosages, her medications would not have been expected to 

cause death. Dr. Cheloha also opined that Kena died due to the 

amount she took, rather than the combination. It was her belief 

that Xanax in particular caused Kena’s death due to its “instantaneous” reaction time. She said that although she was aware 

of Kena’s history using illicit drugs, she had never abused her 

prescriptions in the past.

The compensation court ruled in favor of Northfield 

Retirement Communities, finding that Kena’s manner of death 

was suicide, which constituted willful negligence and thus 

barred any recovery of benefits. The compensation court subsequently dismissed Michael’s petition with prejudice. He now 

appeals to this court.

ASSIGNMENTS OF ERROR

Michael assigns, restated and reordered, that the trial court 

erred in (1) failing to apply the presumption against suicide; 

(2) finding sufficient competent evidence in the record to support a determination of suicide; and (3) improperly relying 

upon evidence which caused the court to exhibit bias, resulting in a denial of benefits.

STANDARD OF REVIEW

[1,2] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 

2016), an appellate court may only modify, reverse, or set 

aside a Workers’ Compensation Court decision 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. Tchikobava v. Albatross Express, 293 Neb. 223, 

876 N.W.2d 610 (2016). 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. Id.
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Nebraska Court of Appeals Advance Sheets

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MICHAEL B. v. NORTHFIELD RETIREMENT COMMUNITIES

Cite as 24 Neb. App. 504

ANALYSIS

Presumption Against Suicide.

Michael first assigns as error the trial court’s failure to 

apply the presumption against suicide. He claims that there 

was not sufficient evidence of suicide to overcome the presumption and that the compensation court should have found 

Kena’s cause of death to be accidental. For the reasons that 

follow, we disagree.

[3-5] In Nebraska, there is a general rule that where a cause 

of death is in issue and there is nothing to show how death 

was caused, there is a negative presumption against suicide. 

Hannon v. J. L. Brandeis & Sons, Inc., 186 Neb. 122, 181 

N.W.2d 253 (1970), overruled on other grounds, Friedeman v. 

State, 215 Neb. 413, 339 N.W.2d 67 (1983). The presumption 

against suicide is one of law, not of fact, and is based upon 

the natural characteristics of persons for love of life and fear 

of death. See id. However, this presumption can be overcome 

and rebutted by the introduction of evidence tending to show 

how the death occurred. See Breckenridge v. Midlands Roofing 

Co., 222 Neb. 452, 384 N.W.2d 298 (1986). If overcome, the 

burden shifts to the party asserting the death was accidental to 

adduce evidence of such. See id.

The case at bar presented conflicting evidence as to whether 

Kena’s overdose was accidental or intentional. In Michael’s 

claim that Kena’s death was accidental, he points to the facts 

that there were pills left that she did not take, that Moreno testified he did not feel Kena was a threat to herself, and that Dr. 

Cheloha testified only to Kena’s suicidal ideations in the past. 

We also note that the results of the autopsy indicated that the 

manner of death was accidental. However, none of these facts 

are singularly dispositive.

The trial court found that Kena was in a “fragile emotional 

state” immediately prior to her death, having just been told 

that she was being evicted and that her daughter was going 

to be removed from her custody. Additionally, she repeated 

several times that afternoon that she was “at her end.” We find 
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MICHAEL B. v. NORTHFIELD RETIREMENT COMMUNITIES

Cite as 24 Neb. App. 504

Kena’s statement that she was “at her end” to be similar in 

nature to the statement made by the decedent in De Bruler v. 

City of Bayard, 124 Neb. 566, 247 N.W. 347 (1933). There, in 

response to his current financial difficulties, the decedent had 

been overheard saying, “‘I just as well end it all.’” Id. at 568, 

247 N.W. at 347. The court found that such statement, when 

considered with other factors, indicated that he had intentionally ended his life. De Bruler v. City of Bayard, supra. Here, we 

similarly find that Kena’s statement indicated a sense of hopelessness and emotional instability, which supports a finding 

of suicide. We also note the short lapse in time between when 

Kena found out about her eviction and daughter’s removal and 

when she overdosed.

The compensation court also took into consideration Kena’s 

prior history of depression, as well as suicidal ideations and 

attempts, including a hospitalization for such less than a year 

prior to her death. The trial court also relied on the amount 

of medication, specifically Xanax, that Kena took on the day 

of her death. According to testimony from Kena’s doctor, she 

prescribed 40 Xanax pills to Kena 6 days prior to her death, 

and only 4 were found. Her doctor also prescribed numerous 

pills of methadone and oxycodone. Her doctor testified that 

Kena had no history of abusing her medications and that Kena 

knew about the dangers of mixing medications because “she 

was a CNA.”

Taking all of the above into consideration, we find no clear 

error in the trial court’s determination that there was evidence 

tending to show how the death occurred, thereby overcoming 

the presumption against suicide.

Sufficient Evidence to Support 

Finding of Suicide.

Michael next asserts that the trial court erred in finding 

sufficient competent evidence to determine that Kena committed suicide. He argues that the evidence indicated that her 

death was accidental, thus demonstrating no willful negligence 
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MICHAEL B. v. NORTHFIELD RETIREMENT COMMUNITIES

Cite as 24 Neb. App. 504

and allowing recovery of benefits. In the alternative, Michael 

claims that even if the overdose was intentional, Kena’s work 

injury contributed to her suicide and was therefore compensable. We disagree.

[6-8] Under Neb. Rev. Stat. § 48-101 (Reissue 2010), a 

claimant cannot recover under the workers’ compensation 

law if the employee was willfully negligent. See Hannon v. 

J. L. Brandeis & Sons, Inc., 186 Neb. 122, 181 N.W.2d 253 

(1970), overruled on other grounds, Friedeman v. State, 215 

Neb. 413, 339 N.W.2d 67 (1983). Willful negligence consists 

of a deliberate act, conduct evidencing a reckless indifference 

to safety, or intoxication at the time of injury without consent, knowledge, or acquiescence of the employer. See Neb. 

Rev. Stat. § 48-151(7) (Reissue 2010). Committing suicide 

generally constitutes willful negligence within the meaning 

of this language and thereby bars recovery under the workers’ compensation law. See Hannon v. J. L. Brandeis & Sons, 

Inc., supra.

[9,10] However, Nebraska law has recognized an exception 

to the rule that suicide constitutes willful negligence when the 

evidence shows that suicide was nonvoluntary. See Friedeman 

v. State, supra. In Friedeman, the decedent suffered a work 

injury that left her with chronic pain, making it very difficult 

for her to engage in any of her preaccident activities, such as 

working, helping on the family farm, and looking after her 

family. She had difficulty moving around and getting to sleep 

and became “a mere shadow of her former self.” Id. at 415, 

339 N.W.2d at 70. Several years after the accident, decedent 

committed suicide, leaving behind a note explaining that she 

“‘just [could not] stand the pain any longer.’” Id. Her doctor later expressed the opinion that the pain from her work 

injury, rather than depression, drove her to commit suicide 

and that her decision to do so was nonvoluntary and beyond 

her control. Friedeman v. State, supra. The Nebraska Supreme 

Court agreed, acknowledging that there are factors which can 

override a person’s free will and that scientific testimony to 
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MICHAEL B. v. NORTHFIELD RETIREMENT COMMUNITIES

Cite as 24 Neb. App. 504

such can be admitted as evidence the suicide was not willful, 

thereby allowing for recovery. Id. In so ruling, the Supreme 

Court carved out an exception from the general rule of Hannon, 

finding that a nonvoluntary suicide does not constitute willful 

negligence. See Friedeman v. State, supra.

For the reasons explained above, we find that the compensation court did not clearly err in finding that Kena’s overdose 

was intentional. Specifically, we note Kena’s fragile emotional 

state, her history of depression and anxiety, her history of suicidal ideations and attempts, and the amount of prescription 

medication that was unaccounted for and presumably taken by 

her on the day of her death. While there is no one dispositive 

factor, such as a suicide note, we find that the record overall 

does support the trial court’s finding.

Michael alternatively asserts that even if Kena’s death 

was intentional, recovery should still be allowed under the 

Friedeman exception because her work injury contributed to 

her suicide.

However, the trial court did not find that Kena’s pain was 

a contributing factor in her death. Instead, the trial court 

focused on factors such as her emotional state and prior history. It found no evidence that extreme pain caused Kena to 

involuntarily end her life. While Dr. Cheloha testified that her 

pain may have exacerbated her anxiety and depression, both 

were preexisting conditions at the time of the work injury 

and neither was included in the stipulated award as an injury 

arising from the work accident. We find that this determination was supported by the record and was not made in error. 

Accordingly, we find no merit in this assignment of error.

Improper Reliance on Evidence Resulting 

in Bias Against Kena.

Michael argues that the trial court improperly relied upon 

evidence of Kena’s prior history of illicit drug use, which 

caused it to exhibit bias against her and resulted in a denial of 

benefits. We disagree.
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Cite as 24 Neb. App. 504

Michael claims that the compensation court referred to 

Kena’s illicit drug use “17 times in [its] Order for Dismissal,” 

brief for appellant at 10, evidencing the fact that it improperly relied on such. We find the compensation court primarily 

referred to her illicit drug use in recounting the facts presented 

at trial. The only time her drug use was mentioned in the 

court’s findings was to specifically explain that such evidence 

“played virtually no role” in its decision. The only manner in 

which the court considered Kena’s drug use was in reference 

to medical records showing that she was hospitalized 2 months 

prior to her death for renal failure due to methamphetamine 

use. The court noted that if she was willing to abuse methamphetamine to the point of renal failure, such could indicate that 

she was willing to overdose on prescription medication to the 

point of death. Beyond that, the court explicitly stated that it 

did not rely on any evidence of Kena’s illicit drug use.

Furthermore, we find no indication that the compensation 

court implicitly relied on such evidence. The court laid out 

each factor it relied upon in making its determination, and 

we find that those factors provided sufficient grounds to support the finding of suicide. We also note that Michael does 

not assign as error the admission of any exhibits referencing 

Kena’s illicit drug use. In the absence of any evidence that the 

compensation court relied on evidence of Kena’s drug use, we 

find that it did not exhibit bias against Kena.

CONCLUSION

Following our review of the record, we determine that the 

compensation court did not err in failing to apply the presumption against suicide and in finding sufficient evidence to determine that Kena’s overdose was intentional. We also determine 

that the compensation court did not improperly rely on evidence of illicit drug use resulting in bias. We therefore affirm 

the order of dismissal.

Affirmed.