Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/07/2018 01:10 AM CDT




                                                           - 589 -
                                  Nebraska Supreme Court A dvance Sheets
                                          300 Nebraska R eports
                                        MAROULAKOS v. WALMART ASSOCIATES
                                                Cite as 300 Neb. 589




                                         Miko M aroulakos, appellant, v.
                                        Walmart Associates, Inc., appellee.
                                                      ___ N.W.2d ___

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

                1.	 Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
                    Stat. § 48-185 (Cum. Supp. 2016), an appellate court may modify,
                    reverse, or set aside a Workers’ Compensation Court decision only when
                    (1) the compensation court acted without or in excess of its powers; (2)
                    the judgment, order, or award was procured by fraud; (3) there is not
                    sufficient competent evidence in the record to warrant the making of the
                    order, judgment, or award; or (4) the findings of fact by the 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.	 Workers’ Compensation. The Nebraska Workers’ Compensation Act
                    provides that when an employee suffers personal injury caused by acci-
                    dent or occupational disease, arising out of and in the course of his or
                    her employment, such employee shall receive compensation from his or
                    her employer if the employee was not willfully negligent at the time of
                    receiving such injury.
                4.	 Workers’ Compensation: Words and Phrases. The phrase “arising
                    out of” describes the accident and its origin, cause, and character, i.e.,
                    whether it resulted from the risks arising within the scope or sphere of
                    the employee’s job.
                5.	 Workers’ Compensation. All risks causing injury to an employee can
                    be placed within three categories: (1) employment related—risks dis-
                    tinctly associated with the employment; (2) personal—risks personal
                    to the claimant, e.g., idiopathic causes; and (3) neutral—a risk that
                    is neither distinctly associated with the employment nor personal to
                    the claimant.
                                     - 590 -
              Nebraska Supreme Court A dvance Sheets
                      300 Nebraska R eports
                  MAROULAKOS v. WALMART ASSOCIATES
                          Cite as 300 Neb. 589

  6.	 ____. Generally, harm that can be attributed solely to personal or idio-
      pathic causes is universally noncompensable.
 7.	 ____. Unexplained-fall cases begin with a completely neutral origin
      of a mishap, while idiopathic-fall cases begin with an origin which
      is admittedly personal and which therefore requires some affirma-
      tive employment contribution to offset the prima facie issue of per-
      sonal origin.
 8.	 Appeal and Error. Absent plain error, when an issue is raised for the
      first time in an appellate court, it will be disregarded inasmuch as the
      trial court cannot commit error regarding an issue never presented and
      submitted to it for disposition.
  9.	 ____. Plain error is plainly evident from the record and of such a nature
      that to leave it uncorrected would result in damage to the integrity, repu-
      tation, or fairness of the judicial process.
10.	 Workers’ Compensation. A workers’ compensation award cannot be
      based on possibility or speculation, and if an inference favorable to the
      claimant can be reached only on the basis thereof, then the claimant can-
      not recover.
11.	 ____. A finding in regard to causation of an injury is one for determina-
      tion by the Workers’ Compensation Court as the finder of fact.

  Appeal from the Workers’ Compensation Court: James R.
Coe, Judge. Affirmed.
  David M. Handley, of Watson & Carroll, P.C., L.L.O., for
appellant.
  Jennifer S. Caswell and Zachary W. Anderson, of Baylor,
Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Schreiner, District Judge.
   Funke, J.
   Miko Maroulakos appeals from a Workers’ Compensation
Court’s order, which determined his injuries did not “arise
out of” his employment. At trial, Maroulakos argued only that
his injury arose out of employment, because his fall resulted
from a risk of employment, but on appeal, he argues that his
injury arose out of employment under the “increased-danger”
rule, because he fell into an industrial shelving unit. We hold
                             - 591 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
              MAROULAKOS v. WALMART ASSOCIATES
                      Cite as 300 Neb. 589

Maroulakos waived this argument by failing to present it to the
compensation court. Therefore, we affirm.

                       I. BACKGROUND
   In August 2014, Maroulakos was working for Walmart
Associates, Inc. (Walmart), as an overnight support manager.
After coming back from his meal break, Maroulakos felt over-
heated, exhausted, and lightheaded. He told some coworkers
that he would go home once he finished his overnight stock
audits. Video surveillance captured Maroulakos walking past
product aisles, approaching a product shipper, moving to the
right of and away from the shipper, and then falling into a
product aisle.
   While on the floor, Maroulakos appeared to have a sei-
zure lasting at least 30 seconds. As a result of the acci-
dent, Maroulakos sustained a facial laceration, sinus fractures,
and possibly a traumatic brain injury causing neurocognitive
impairment.
   Maroulakos’ amended complaint requested workers’ com-
pensation benefits, alleging personal injuries that resulted from
his tripping over a pallet in the course of his employment. At
trial, Maroulakos testified he had no memory of the actual
fall and relied on Walmart’s video surveillance, his medical
reports, and a report by neurologist Srinivasan Mani, M.D.
   Mani’s report stated that based on Maroulakos’ medical
history and the video surveillance, it appeared Maroulakos
tripped and fell and sustained a head injury, which caused
a subsequent seizure. Mani diagnosed Maroulakos as likely
suffering from an associated cognitive disturbance, which he
opined resulted from the fall. The report, however, made no
mention of Maroulakos’ hitting an industrial shelving unit as
he fell or whether his injuries were inconsistent with falling to
the floor. The only reference to Maroulakos’ hitting a shelf was
in a “History of Present Illness” in one of the medical reports,
which contained the following statement: “Patient fell on the
end of shelf and sustained facial laceration.”
                                    - 592 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                   MAROULAKOS v. WALMART ASSOCIATES
                           Cite as 300 Neb. 589

   Walmart called two employees who had witnessed
Maroulakos’ fall. One witness stated that she was standing in
a product aisle 2 feet from Maroulakos when he walked face
first into an industrial shelving unit and fell backward onto the
floor. She stated she did not see Maroulakos trip over anything
or remember a pallet on the floor. The other witness was 40 to
50 feet away but looked toward Maroulakos, in the midst of
falling, after he heard grunting and other audible noises from
Maroulakos’ direction. The witness stated that Maroulakos fell
face first into a shelf but that he did not remember seeing a
pallet on the floor.
   Evidence presented at trial showed that when Maroulakos
was 12 years old, he contracted viral encephalitis, which
required him to undergo at least seven brain surgeries to
remove a cyst and implant a shunt. Because Maroulakos suf-
fered at least one seizure during these surgeries, he was pre-
scribed antiseizure medication, which he stopped taking after
high school. Maroulakos testified he did not have any seizures
or related health issues between being removed from antisei-
zure medication and his August 2014 fall, at which time he was
44 years old.
   The compensation court determined that the only issue
presented was whether Maroulakos’ accident arose out of
employment. It rejected Maroulakos’ argument and Mani’s
interpretation of the video that he had tripped over a pallet.
Instead, the court ruled that the surveillance video showed
that “[Maroulakos] begins to rock back and forth on his
feet as he walks and staggers briefly . . . then falls to the
ground.” The court determined Maroulakos’ fall resulted from
an idiopathic seizure and syncope event that was personal
to him and not compensable under the Nebraska Workers’
Compensation Act.1 The court dismissed Maroulakos’ com-
plaint with prejudice.

 1	
      Neb. Rev. Stat. §§ 48-101 to 48-1,117 (Reissue 2010, Cum. Supp. 2016 &
      Supp. 2017).
                                     - 593 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                   MAROULAKOS v. WALMART ASSOCIATES
                           Cite as 300 Neb. 589

   Maroulakos perfected a timely appeal. We removed the case
to our docket on our own motion pursuant to our authority to
regulate the caseloads of the Nebraska Court of Appeals and
this court.2

                II. ASSIGNMENT OF ERROR
   Maroulakos assigns error to the trial court’s determination
that his accident did not arise out of his employment.

                 III. STANDARD OF REVIEW
   [1] Pursuant to § 48-185, an appellate court may modify,
reverse, or set aside a Workers’ Compensation Court deci-
sion 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 evi-
dence in the record to warrant the making of the order, judg-
ment, or award; or (4) the findings of fact by the compensation
court do not support the order or award.3
   [2] Determinations by a trial judge of the Workers’
Compensation Court will not be disturbed on appeal unless
they are contrary to law or depend on findings of fact which
are clearly wrong in light of the evidence.4

                         IV. ANALYSIS
   Maroulakos admits that at trial, he focused on whether he
tripped over a pallet instead of whether he struck a shelf dur-
ing his fall. He further admits that he did not argue before
the trial court that his injury arose out of employment under
the increased-danger rule. However, he argues that the Court
of Appeals has held in Svehla v. Beverly Enterprises5 and

 2	
      See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
 3	
      Greenwood v. J.J. Hooligan’s, 297 Neb. 435, 899 N.W.2d 905 (2017).
 4	
      Id.
 5	
      Svehla v. Beverly Enterprises, 5 Neb. App. 765, 567 N.W.2d 582 (1997).
                                   - 594 -
               Nebraska Supreme Court A dvance Sheets
                       300 Nebraska R eports
                   MAROULAKOS v. WALMART ASSOCIATES
                           Cite as 300 Neb. 589

Lucas v. Anderson Ford 6 that when an employment hazard
causes or increases the severity of an injury sustained from
an idiopathic accident, the injury becomes compensable as
arising out of employment. He further contends that because
evidence showed that he sustained facial and brain injuries by
landing face first on an industrial shelving unit, the Workers’
Compensation Court was required to apply the rule from
Svehla and Lucas after determining his fall resulted from an
idiopathic condition.
   Walmart does not dispute that the compensation court was
bound by the rule adopted in Svehla and Lucas, but it argues
Maroulakos had the burden of proving that he, in fact, fell into
the shelving unit and that doing so increased the injuries he
suffered from his idiopathic fall.
   [3] The Nebraska Workers’ Compensation Act provides
that when an employee suffers personal injury caused by
accident or occupational disease, arising out of and in the
course of his or her employment, such employee shall receive
compensation from his or her employer if the employee was
not willfully negligent at the time of receiving such injury.7
Section 48-151(2) provides that there is no presumption that
an employee’s injury sustained in the course of his or her
employment was in fact caused by the employment, and a
claimant has the burden of proving an injury arose out of
employment by a preponderance of the evidence.8
   [4-6] The phrase “arising out of” describes the accident and
its origin, cause, and character, i.e., whether it resulted from
the risks arising within the scope or sphere of the employee’s
job.9 All risks causing injury to an employee can be placed

 6	
      Lucas v. Anderson Ford, 13 Neb. App. 133, 689 N.W.2d 354 (2004).
 7	
      § 48-101. See Hintz v. Farmers Co-op Assn., 297 Neb. 903, 902 N.W.2d
      131 (2017).
 8	
      See, also, Hintz, supra note 7.
 9	
      Potter v. McCulla, 288 Neb. 741, 851 N.W.2d 94 (2014).
                                   - 595 -
               Nebraska Supreme Court A dvance Sheets
                       300 Nebraska R eports
                   MAROULAKOS v. WALMART ASSOCIATES
                           Cite as 300 Neb. 589

within three categories: (1) employment related—risks dis-
tinctly associated with the employment; (2) personal—risks
personal to the claimant, e.g., idiopathic causes; and (3)
neutral—a risk that is neither distinctly associated with the
employment nor personal to the claimant.10 Harm that arises
from risks distinctly associated with the employment is uni-
versally compensable.11 Generally, harm that can be attributed
solely to personal or idiopathic causes is universally non-
compensable.12 Harm that arises from neutral risks is gener-
ally compensable.13
   As noted in Maradiaga v. Specialty Finishing14:
         Generally, a risk may be classified as “‘neutral’” for
      either of two reasons: (1) “[t]he nature of the risk may be
      known, but may be associated neither with the employ-
      ment nor the employee personally,” or (2) “the nature
      of the cause of harm may be simply unknown.” . . .
      Examples of neutral risks of the first type are stray bul-
      lets, lightning, or hurricanes, . . . while the most common
      example of a neutral risk of the second type is a purely
      unexplained fall . . . .
   [7] In Logsdon v. ISCO Co.,15 we considered whether
an individual’s purely unexplained fall in the course of his
employment arose out of his employment. We distinguished
purely unexplained falls causing injuries from idiopathic falls,
explaining: “Unexplained-fall cases begin with a completely
neutral origin of a mishap, while idiopathic-fall cases begin

10	
      Logsdon v. ISCO Co., 260 Neb. 624, 618 N.W.2d 667 (2000).
11	
      Id.
12	
      See id.
13	
      Id.
14	
      Maradiaga v. Specialty Finishing, 24 Neb. App. 199, 206, 884 N.W.2d
      153, 159 (2016), citing 1 Arthur Larson & Lex K. Larson, Larson’s
      Workers’ Compensation Law §§ 4.03 and 7.04[1][a] (2016).
15	
      Logsdon, supra note 10.
                                     - 596 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                   MAROULAKOS v. WALMART ASSOCIATES
                           Cite as 300 Neb. 589

with an origin which is admittedly personal and which there-
fore requires some affirmative employment contribution to
offset the prima facie issue of personal origin.”16
   A vast majority of courts nationally have adopted the
increased-danger rule, which provides that “the effects of [an
idiopathic-caused] fall are compensable if the employment
places the employee in a position increasing the dangerous
effects of such a fall.”17 The Nebraska Court of Appeals con-
sidered this rule in Svehla and Lucas, though it did not refer-
ence the increased-danger rule. In both cases, the appellate
court considered whether a fall with a potential idiopathic
cause became compensable as a result of the contribution of an
employment condition.
   In Svehla, the employee fell on the level ground of her
employer’s premises while walking to her vehicle after work
and died from her injuries.18 The trial court concluded that the
evidence failed to establish the cause of the employee’s fall but
that the evidence showed her idiopathic condition was just as
likely to have caused the fall as the employee’s tripping, and it
denied compensation.19
   The appellate court ruled that the compensation court’s
determination that the fall may have resulted from an idio-
pathic cause prevented treating the fall as purely unexplained.20
The court then noted that injuries sustained in an idiopathic
fall “are compensable if the employment places the employee
in a position increasing the dangerous effects of such a
fall, such as on a height, near machinery or sharp corners,

16	
      Id. at 633, 618 N.W.2d at 675, citing Svehla, supra note 5.
17	
      1 Arthur Larson et al., Larson’s Workers’ Compensation Law § 9.01[1] at
      9-2 (2017). See § 9.01[4] (citing cases).
18	
      Svehla, supra note 5.
19	
      Id.
20	
      Id.
                                    - 597 -
               Nebraska Supreme Court A dvance Sheets
                       300 Nebraska R eports
                   MAROULAKOS v. WALMART ASSOCIATES
                           Cite as 300 Neb. 589

or in a moving vehicle.”21 Nevertheless, the appellate court
agreed with the trial court that the injury was noncompensable
because the plaintiff failed to determine how the employee
sustained the injury leading to her death.22
   In Lucas, the employee fell when rising from a chair while
seated at his desk. The trial court determined that the fall was
due to the employee’s being hypoglycemic and that the fall
resulted in a fractured hip.23 Though there was no evidence the
employee struck the chair or the desk during his fall, the trial
court stated in its order, “‘I find that the desk and the chair
created an increased risk in that the fracture is a result of how
one hits the floor, and how one hits the floor is depend[e]nt on
what obstacles are present which change the way the plaintiff
lands on the floor.’”24
   The workers’ compensation review panel reversed the trial
court’s order, stating that the trial court was clearly wrong in
finding the employee suffered an accident arising out of his
employment and finding that there was insufficient evidence
“‘to remove his idiopathic fall from the application of the
general rule that harm that can be attributed to personal or
idiopathic causes is universally non compensable.’”25 The
Court of Appeals noted that “[b]ecause the trial court found
that [the employee’s] fall was not an unexplained fall, but,
rather, an idiopathic fall, [the employee] was required to
show some affirmative employment contribution to offset the
fact that his fall was precipitated by a personal condition.”26
Ultimately however, the appellate court agreed with the

21	
      Id. at 777, 567 N.W.2d at 591. Accord 1 Larson et al., supra note 17,
      § 9.01[1].
22	
      Svehla, supra note 5.
23	
      Lucas, supra note 6.
24	
      Id. at 139, 689 N.W.2d at 360.
25	
      Id.
26	
      Id.
                                     - 598 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                   MAROULAKOS v. WALMART ASSOCIATES
                           Cite as 300 Neb. 589

review panel that there was no evidence to support the
trial court’s finding that the employee’s risk of injury was
increased by getting up from a chair behind a desk when he
fell to the ground.27
   Neither our statements in Logsdon28 nor the Court of Appeals’
statements in Svehla or Lucas support Maroulakos’ argument—
the court was required to consider whether an employment
hazard caused or contributed to his ultimate injury, because it
determined an idiopathic condition caused his fall. As stated
in Logsdon, the presumption is that a personal risk is non-
compensable and it is incumbent on the employee to prove an
affirmative condition of employment caused or contributed to
the ultimate injury.29 The increased-danger rule may be a valid
theory for establishing that an injury arose out of employment,
which we need not determine here, but it is a separate theory
from arguing a fall was caused by an employment condition or
a neutral cause.
   [8,9] Absent plain error, when an issue is raised for the first
time in an appellate court, it will be disregarded inasmuch as
the trial court cannot commit error regarding an issue never
presented and submitted to it for disposition.30 Plain error is
plainly evident from the record and of such a nature that to
leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process.31
   [10] The rule of liberal construction of the Nebraska
Workers’ Compensation Act applies to the law, not to the evi-
dence offered to support a claim by virtue of the law.32 The
rule does not dispense with the necessity that claimant shall

27	
      Id.
28	
      Logsdon, supra note 10.
29	
      See, also, § 48-151(2).
30	
      State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017).
31	
      Id.
32	
      Smith v. Ruan Transpt, Inc., 190 Neb. 509, 209 N.W.2d 146 (1973).
                                    - 599 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                   MAROULAKOS v. WALMART ASSOCIATES
                           Cite as 300 Neb. 589

prove his right to compensation within the rules above set
forth, nor does it permit a court to award compensation where
the requisite proof is lacking.33 A workers’ compensation award
cannot be based on possibility or speculation, and if an infer-
ence favorable to the claimant can be reached only on the basis
thereof, then the claimant cannot recover.34
   As in Lucas, there is no evidence in the record that
Maroulakos’ injuries were caused or aggravated by a hazard of
employment. Maroulakos did not present any evidence that his
facial and potential brain injuries were inconsistent with a fall
to a hard tile floor or that his potential brain injuries did not
result solely from his idiopathic condition. Therefore, any find-
ing that the increased-danger rule did apply would have been
purely speculative.
   Further, Maroulakos did not prove that he struck the indus-
trial shelving unit during his fall. While the employees tes-
tifying for Walmart both stated that he fell face first into the
shelving unit, there was also video evidence of the fall that did
not clearly show that he hit the shelving unit and which contra-
dicted the testimony that he fell backward after making contact
with the shelving unit. Additionally, despite one comment in
a medical report, there was no medical evidence discussing
Maroulakos’ making contact with the shelving unit and stating
that such was a cause of the injuries.
   [11] The trial court ruled that Maroulakos fell to the floor
after falling from his syncope event. A finding in regard to
causation of an injury is one for determination by the Workers’
Compensation Court as the finder of fact.35 Based on the record
before us, this finding was supported by competent evidence.
   Thus, the court did not commit plain error by not applying
the increased-danger rule, and Maroulakos’ assignment of error

33	
      Haufe v. American Smelting & Refining Co., 163 Neb. 329, 79 N.W.2d 570
      (1956).
34	
      Visoso v. Cargill Meat Solutions, 285 Neb. 272, 826 N.W.2d 845 (2013).
35	
      Miller v. Meister & Segrist, 255 Neb. 805, 587 N.W.2d 399 (1998).
                            - 600 -
          Nebraska Supreme Court A dvance Sheets
                  300 Nebraska R eports
              MAROULAKOS v. WALMART ASSOCIATES
                      Cite as 300 Neb. 589

is without merit because he waived his argument by failing to
present it to the compensation court.
                    V. CONCLUSION
  For the preceding reasons, we affirm the decision of the
compensation court.
                                               A ffirmed.
   Miller-Lerman, J., concurring.
   In cases where a compensation court finds that an accident
occurred from an “idiopathic” condition, it logically follows
that the compensation court should address the increased-
danger rule when there is evidence suggesting that features of
the workplace increased the severity of the worker’s injuries.
The evidence in this case shows the area where Maroulakos
fell had an industrial shelving unit proximate to his path of
descent to the floor, and two Walmart coworkers testified that
they witnessed Maroulakos collide with the shelving. A note in
a medical report also suggests that Maroulakos’ facial injuries
are consistent with falling on the end of a shelf. Although the
compensation court found that Manoulakos had an idiopathic
condition and “[fell] to the ground,” it would have been help-
ful to address whether Maroulakos hit a shelf on the way down
and, if so, whether such hit increased his injuries. However,
this specific question was not raised before the compensation
court. Therefore, I concur.
   Schreiner, District Judge, joins in this concurrence.
