Dutcher v. Nebraska Dept. of Corr. Servs. , 312 Neb. 405 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/28/2022 12:05 AM CDT
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405Suzette 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 obliga-
tion 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 construc-
tion that words generally should be interpreted as taking their ordinary
meaning at the time the Legislature enacted the statute.
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 4059. ____: ____. 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 inter-
pretation 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 dis-
crimination 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405Tanya 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 man-
dated self-defense training. The employee sought and received
workers’ compensation benefits from the time she was injured,
including vocational rehabilitation. The employee was ulti-
mately unable to find a position with the Department that
would accommodate her physical restrictions, and her employ-
ment was terminated. She brought suit against the Department
for wrongful termination on the basis of her disability, in viola-
tion 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 situ-
ation, 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 depen-
dency 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. 405Being 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 squat-
ting, 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 start-
ing in August 2015.
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405In 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 restric-
tions remained, pursuant to Department policy, she had 90
days to find a new position or be terminated from her cur-
rent 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 deposi-
tion 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 stoop-
ing, 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 coun-
selor. 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 con-
ducting market research regarding Dutcher’s current educa-
tional 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 employ-
ment. Dutcher and her counselor decided the best plan was
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405to pursue an associate degree in business administration.
The counselor developed a vocational rehabilitation plan for
Dutcher to obtain such a degree with the expected comple-
tion 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 dis-
ability 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 prof-
fered 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 fail-
ure 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 termi-
nation of Dutcher’s employment was “consistent with busi-
ness 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 exclu-
sivity 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 determin-
ing 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 sum-
mary 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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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405against 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 obliga-
tion to resolve the questions independently of the conclusion
reached by the trial court. 5
ANALYSIS
[4,5] The Workers’ Compensation Court is a statutorily cre-
ated court designed to have jurisdiction over all injuries fall-
ing 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 mean-
ing 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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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405text, and the text is to be given its plain and ordinary mean-
ing. 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 employ-
ment 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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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405employment practice for an employer . . . to discriminate
against any individual with respect to compensation, terms,
conditions, or privileges of employment, because of such indi-
vidual’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 disabil-
ity” as “an individual with a disability who, with or without
reasonable accommodation, can perform the essential func-
tions 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 essen-
tial . . . .” 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, rea-
sonable attorney’s fees, and costs.”
17
See §§ 48-1116 and 48-1117(1).
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405The NFEPA does not refer to the Nebraska Workers’
Compensation Act, and it does not contain any provision relat-
ing 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 unex-
pected or unforeseen injury happening suddenly and violently,
with or without human fault, and producing at the time objec-
tive 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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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 40548-112 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 depen-
dents, files a claim for a personal injury from an employer sub-
ject 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 work-
related injuries and the employer receives immunity from com-
mon-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 employ-
ment, 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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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405[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 provi-
sions of the Nebraska Workers’ Compensation Act in the con-
text 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’ argu-
ments 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 wrong-
ful death, 32 assault and battery, 33 bystander negligent infliction
of emotional distress, 34 medical malpractice, 35 bad faith relat-
ing 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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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405and 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 uti-
lized 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 emo-
tional 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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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405In Bennett v. Saint Elizabeth Health Sys., 40 we held that the
plaintiff’s medical malpractice action was barred by the exclu-
sivity 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 plain-
tiff’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 con-
sequential injury to the left shoulder was related to her employ-
ment, 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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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405the original injury, as their acts related directly to an
alleged bad faith delay in authorization of further treat-
ment 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 “aris-
ing 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 jurisdic-
tions 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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Cite as 312 Neb. 405workers’ 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 environ-
ment in the workplace that affects not only the victim of dis-
crimination 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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Cite as 312 Neb. 405The 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 dis-
ability 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’ com-
pensation 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., dissent­
ing). 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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Cite as 312 Neb. 405litigation 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 con-
texts, 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 exemp-
tion 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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Cite as 312 Neb. 405out 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 con-
nected 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 articula-
tion of the broad meaning of similar language, the Legislature
had the ability to clearly exclude from the exclusivity provi-
sions 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 restrict-
ing an employee’s ability to file a charge with the Equal
Opportunity Commission. And we do not suggest that dis-
crimination is a rational or a logical result of having a per-
sonal 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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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405Whether there hypothetically may be circumstances so atten-
uated from the work-related injury that a NFEPA claim against
that same employer would not fairly be characterized as aris-
ing from the work-related injury need not be determined here.
Dutcher, through disability payments and vocational rehabilita-
tion, was compensated under the quid quo pro system estab-
lished 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 pub-
lic 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 discrimina-
tion 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 deduc-
ible 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.