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                                Nebraska Court of A ppeals A dvance Sheets
                                     24 Nebraska A ppellate R eports
                           MICHAEL B. v. NORTHFIELD RETIREMENT COMMUNITIES
                                           Cite as 24 Neb. App. 504




                                 Michael B., as father and next friend of
                                  K a Leigh B., appellant, v. Northfield
                                    R etirement 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 suf-
                     ficient competent evidence in the record to warrant the making of the
                     order, judgment, or award; or (4) the findings of fact by the compensa-
                     tion 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 sui-
                     cide can be overcome and rebutted by the introduction of evidence tend-
                     ing 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 evi-
                     dencing a reckless indifference to safety, or intoxication at the time of
                     injury without consent, knowledge, or acquiescence of the employer.
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            Nebraska Court of A ppeals A dvance Sheets
                 24 Nebraska A ppellate R eports
        MICHAEL B. v. NORTHFIELD RETIREMENT COMMUNITIES
                        Cite as 24 Neb. App. 504

 8.	 Workers’ Compensation: Negligence: Death. Committing suicide gen-
     erally 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’ compen-
     sation 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 R iedmann and Bishop, Judges.

   R iedmann, 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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              24 Nebraska A ppellate R eports
       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 inten-
tional 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 doc-
tor 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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         Nebraska Court of A ppeals A dvance Sheets
              24 Nebraska A ppellate R eports
       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 “instan-
taneous” 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 sub-
sequently 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 sup-
port a determination of suicide; and (3) improperly relying
upon evidence which caused the court to exhibit bias, result-
ing 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 war-
rant 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 A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
       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 pre-
sumption 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 tes-
tified 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 intention-
ally ended his life. De Bruler v. City of Bayard, supra. Here, we
similarly find that Kena’s statement indicated a sense of hope-
lessness 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 com-
mitted suicide. He argues that the evidence indicated that her
death was accidental, thus demonstrating no willful negligence
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              24 Nebraska A ppellate R eports
       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 compen-
sable. 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 con-
sent, 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 work-
ers’ 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 doc-
tor 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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              24 Nebraska A ppellate R eports
       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 compensa-
tion 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 sui-
cidal 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 his-
tory. 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 determina-
tion 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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               24 Nebraska A ppellate R eports
       MICHAEL B. v. NORTHFIELD RETIREMENT COMMUNITIES
                       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 improp-
erly 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 metham-
phetamine 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 sup-
port 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 presump-
tion against suicide and in finding sufficient evidence to deter-
mine that Kena’s overdose was intentional. We also determine
that the compensation court did not improperly rely on evi-
dence of illicit drug use resulting in bias. We therefore affirm
the order of dismissal.
                                                     A ffirmed.
