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Decisions of the Nebraska Court of Appeals

23 Nebraska Appellate Reports

McDANIEL v. WESTERN SUGAR CO-OP

Cite as 23 Neb. App. 35

Phillip McDaniel, appellant, v. Western Sugar

Cooperative and The Phoenix Insurance

Company, Inc., appellees.

___ N.W.2d ___

Filed July 14, 2015. No. A-14-793.

1. Workers’ Compensation: Appeal and Error. Under Neb. Rev. Stat. 

§ 48-185 (Cum. Supp. 2014), 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. ____: ____. On appellate review, the findings of fact made by the trial 

judge of the Workers’ Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong.

3. Workers’ Compensation: Evidence: Appeal and Error. If the record 

contains evidence to substantiate the factual conclusions reached by the 

trial judge in workers’ compensation cases, an appellate court is precluded from substituting its view of the facts for that of the compensation court.

4. Workers’ Compensation: Proof. For benefits to be recovered under the 

Nebraska Workers’ Compensation Act, the claimant must prove that the 

employee suffered injuries because of an accident arising out of and in 

the course of his or her employment.

5. Workers’ Compensation: Words and Phrases. The phrase “arising 

out of the employment” is used to describe the accident and its origin, 

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

within the scope or sphere of the employee’s job.

6. ____: ____. All risks causing injury to an employee can be placed 

within three categories: (1) risks distinctly associated with the employment, (2) risks personal to the claimant, and (3) “neutral” risks—i.e., 

risks having no particular employment or personal character.
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Decisions of the Nebraska Court of Appeals

23 Nebraska Appellate Reports

McDANIEL v. WESTERN SUGAR CO-OP

Cite as 23 Neb. App. 35

7. Workers’ Compensation: Assault: Words and Phrases. In order for an 

assault for personal reasons to be brought within the sphere of “arising 

out of the employment,” the employment must somehow exacerbate the 

animosity or dispute or facilitate an assault which would not otherwise 

be made.

8. Workers’ Compensation. The determination of whether the employment creates a situation wherein an assailant will commit a crime that 

he or she would not otherwise commit is a difficult question of fact.

9. Workers’ Compensation: Assault. When assessing risk in workers’ 

compensation cases involving assaults, the focus is on the motivation for 

the assault.

10. ____: ____. The general rule is that assaults motivated by personal reasons, although occurring at work, are not compensable under workers’ 

compensation law.

Appeal from the Workers’ Compensation Court: Michael K. 

High, Judge. Affirmed.

Rolf Edward Shasteen, of Shasteen & Morris, P.C., L.L.O., 

for appellant.

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

Tierney, Adams, Gotch & Douglas, for appellees.

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

Riedmann, Judge.

INTRODUCTION

Phillip McDaniel appeals from the order of the workers’ 

compensation court dismissing his petition with prejudice. On 

appeal, he argues that the compensation court erred in finding 

that an assault on him by a coworker did not arise out of his 

employment. Because we find that the compensation court’s 

factual finding is not clearly wrong, we affirm.

BACKGROUND

McDaniel was employed by Western Sugar Cooperative 

(Western Sugar), performing tasks such as monitoring machinery and ensuring work areas were clean. On February 15, 

2013, McDaniel was scheduled to work from 8 p.m. until 8 

a.m. Around 8:30 p.m., while performing his work duties, 
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Decisions of the Nebraska Court of Appeals

23 Nebraska Appellate Reports

McDANIEL v. WESTERN SUGAR CO-OP

Cite as 23 Neb. App. 35

he encountered his coworker Jason Bates. The two men 

walked together and talked at first. Bates then began assaulting McDaniel with a brass hammer. Bates called McDaniel an 

“f’ing chimo,” which is “short for child molester,” because 

he discovered on the Internet that McDaniel is a registered 

sex offender. McDaniel suffered injuries to his nose, clavicle, 

and left shoulder. Because Western Sugar has a zero-tolerance 

policy relating to workplace violence, Bates’ employment was 

immediately terminated.

Although McDaniel and Bates lived approximately three 

blocks away from each other in the same small town, they 

did not know each other outside of work. On occasion, Bates 

would ask McDaniel work-related questions and McDaniel 

would assist him. Once, McDaniel and his wife gave Bates a 

ride home from work upon a request from McDaniel’s boss. 

The men had never previously exchanged angry words, however, or had any sort of prior altercations.

After the incident, McDaniel filed a petition in the workers’ compensation court alleging that the assault arose out of 

and in the course of his employment. Trial was held, and the 

compensation court subsequently entered an order finding that 

the injury did not arise out of McDaniel’s employment. The 

court determined that McDaniel was assaulted for reasons 

personal to Bates, namely McDaniel’s being a registered sex 

offender, and that nothing in the workplace precipitated the 

assault. Accordingly, it held that McDaniel was not entitled to 

workers’ compensation benefits and his petition was dismissed. 

McDaniel timely appeals to this court.

ASSIGNMENTS OF ERROR

McDaniel assigns that the workers’ compensation court 

erred in finding that the assault on him by Bates, his coworker, 

did not arise out of his employment and in dismissing his petition with prejudice.

STANDARD OF REVIEW

[1-3] Under Neb. Rev. Stat. § 48-185 (Cum. Supp. 2014), 

an appellate court may modify, reverse, or set aside a Workers’ 
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Decisions of the Nebraska Court of Appeals

23 Nebraska Appellate Reports

McDANIEL v. WESTERN SUGAR CO-OP

Cite as 23 Neb. App. 35

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. Manchester v. Drivers Mgmt., 278 Neb. 776, 775 

N.W.2d 179 (2009). On appellate review, the findings of fact 

made by the trial judge of the Workers’ Compensation Court 

have the effect of a jury verdict and will not be disturbed 

unless clearly wrong. Id. If the record contains evidence to 

substantiate the factual conclusions reached by the trial judge 

in workers’ compensation cases, an appellate court is precluded from substituting its view of the facts for that of the 

compensation court. Id.

ANALYSIS

[4,5] The sole issue in this case is whether the assault of 

McDaniel arose out of his employment. For benefits to be 

recovered under the Nebraska Workers’ Compensation Act, 

the claimant must prove that the employee suffered injuries 

because of an accident arising out of and in the course of his 

or her employment. Monahan v. United States Check Book 

Co., 4 Neb. App. 227, 540 N.W.2d 380 (1995). The phrase 

“arising out of the employment” is used to describe the 

accident and its origin, cause, and character, i.e., whether it 

resulted from the risks arising from within the scope or sphere 

of the employee’s job. Id.

[6,7] All risks causing injury to an employee can be placed 

within three categories: (1) risks distinctly associated with 

the employment, (2) risks personal to the claimant, and (3) 

“neutral” risks—i.e., risks having no particular employment 

or personal character. Id. In order for an assault for personal 

reasons to be brought within the sphere of “arising out of 

the employment,” the employment must somehow exacerbate 

the animosity or dispute or facilitate an assault which would 

not otherwise be made. Id. McDaniel argues that but for his 
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Decisions of the Nebraska Court of Appeals

23 Nebraska Appellate Reports

McDANIEL v. WESTERN SUGAR CO-OP

Cite as 23 Neb. App. 35

shared employment with Bates, the two men would have 

never encountered each other and Bates would have never 

known about McDaniel’s criminal history. Thus, he asserts 

that the employment facilitated the assault and he should be 

entitled to compensation. We disagree with McDaniel’s argument and find that the compensation court’s factual finding is 

not clearly wrong.

[8] The determination of whether the employment creates 

a situation wherein an assailant will commit a crime that he 

or she would not otherwise commit is a difficult question of 

fact. Id. The Monahan court noted that this standard of review 

was precisely the reason it could not reverse, set aside, or 

modify the trial court’s ruling in that case. In Monahan, a 

woman shot and killed her estranged, abusive husband at their 

mutual workplace. This court upheld the denial of workers’ 

compensation benefits because the evidence supported the trial 

court’s factual determination that the shooting was motivated 

by purely personal reasons, not anything concerning their 

employment. See id.

[9] We recognize the factual distinctions pointed out by 

McDaniel between the instant case and Monahan. Here, 

McDaniel and Bates did not have a relationship outside of 

their employment. The husband and wife in Monahan had a 

personal and volatile history. However, our case law indicates 

that when assessing risk in these types of cases, the focus is 

on the motivation for the assault. See id. See, also, P.A.M. 

v. Quad L. Assocs., 221 Neb. 642, 380 N.W.2d 243 (1986); 

Myszkowski v. Wilson and Company, Inc., 155 Neb. 714, 53 

N.W.2d 203 (1952). In Myszkowski, the Nebraska Supreme 

Court observed that practically all authority holds that an 

assault by one employee upon another for personal reasons, not 

growing out of the relation as fellow employees, or out of acts 

in the performance of their work, cannot be held to arise out 

of the employment. In both P.A.M. and Myszkowski, however, 

the court ultimately decided that the assault in question was 

not the result of purely personal animosity, but, rather, was a 

dispute over some element of the employment.
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Decisions of the Nebraska Court of Appeals

23 Nebraska Appellate Reports

McDANIEL v. WESTERN SUGAR CO-OP

Cite as 23 Neb. App. 35

There is no evidence in the present case of any employment dispute between McDaniel and Bates or any animosity over work performance. Although the sole relationship 

between the men was as coworkers, the motivation for the 

assault was Bates’ personal feelings toward discovering that 

McDaniel is a sex offender.

[10] McDaniel contends that even if the motivation for the 

assault was purely personal, he is still entitled to compensation because the employment facilitated the assault. To resolve 

this issue, we look again to Monahan v. United States Check 

Book Co., 4 Neb. App. 227, 232, 540 N.W.2d 380, 384 (1995), 

where we stated:

As the Nebraska Supreme Court mentioned in P.A.M.

and Myszkowski, the general rule is that assaults motivated by personal reasons, although occurring at work, 

are not compensable under workers’ compensation law. 

See 1 [Arthur] Larson & [Lex K.] Larson, [The Law of 

Workmen’s Compensation] § 11.00 at 3-178 [(1995)] 

(“[a]ssaults for private reasons do not arise out of the 

employment unless, by facilitating an assault which 

would not otherwise be made, the employment becomes 

a contributing factor”). See, also, id., § 11.21(a) at 3-274 

(“[w]hen the animosity or dispute that culminates in an 

assault is imported into the employment from claimant’s domestic or private life, and is not exacerbated by 

the employment, the assault does not arise out of the 

employment under any test”); 82 Am. Jur. 2d Workers’ 

Compensation § 358 at 393 (1992) (“where an employee 

is assaulted and injury is inflicted upon him through 

animosity and ill will arising from some cause wholly 

disconnected with the employer’s business or the employment, the employee cannot recover compensation simply 

because he is assaulted when he is in the discharge of 

his duties”).

In the present case, Bates’ motivation for assaulting 

McDaniel was McDaniel’s criminal history. Bates may not 

have had the opportunity to encounter McDaniel or learn 
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Decisions of the Nebraska Court of Appeals

23 Nebraska Appellate Reports

McDANIEL v. WESTERN SUGAR CO-OP

Cite as 23 Neb. App. 35

of his status as a sex offender but for their mutual employment; however, the assault did not stem from their relation 

as coworkers or out of a dispute related to the performance 

of their work. The cause of the assault was wholly disconnected from Western Sugar’s business and the employment of 

McDaniel and Bates.

Moreover, even though Western Sugar provided an environment and opportunity for Bates to carry out the assault, 

we cannot find that the trial court’s factual finding is clearly 

wrong. Reiterating our standard of review for factual findings 

in workers’ compensation cases in Monahan, supra, we noted 

that it is indeed plausible that the wife in that case would not 

have assaulted and murdered her husband but for the fact that 

he worked alone at night. Yet, we concluded that it is equally 

plausible that she would in fact have assaulted and murdered 

him anywhere on the night in question. Similarly here, it is 

plausible that but for their shared employment, Bates would 

have never met McDaniel, learned of his criminal history, 

or had the opportunity for the assault. However, it is equally 

plausible, as Western Sugar suggests, that as the men lived 

near to each other in a town of 1,500 people, they would have 

encountered each other and Bates would have had the ability 

and opportunity to carry out his assault elsewhere.

Because there is evidence in the record to support the trial 

court’s factual finding that the assault on McDaniel did not 

arise out of his employment, we cannot find that the court’s 

denial of workers’ compensation benefits was clearly wrong.

CONCLUSION

For the reasons stated above, we affirm.

Affirmed.