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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
WEBBER v. WEBBER
Cite as 28 Neb. App. 287
Gregory J. Webber, appellant, v. Gregory J.
Webber, employer, and Vanliner Insurance
Company, its workers’ compensation
insurer, appellees.
___ N.W.2d ___
Filed May 5, 2020. No. A-18-993.
1. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
2. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
Stat. § 48-185 (Cum. Supp. 2018), an appellate court may modify,
reverse, or set aside a Workers’ Compensation Court decision only when
(1) the compensation court acted without or in excess of its powers; (2)
the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the
order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.
3. ____: ____. On appellate review, the factual findings made by the trial
judge of the Workers’ Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong.
4. Workers’ Compensation: Evidence: Appeal and Error. When testing
the sufficiency of the evidence to support findings of fact made by the
Workers’ Compensation Court trial judge, the evidence must be considered in the light most favorable to the successful party and the successful party will have the benefit of every inference reasonably deducible
from the evidence.
5. Workers’ Compensation: Appeal and Error. In workers’ compensation cases, an appellate court is obligated to make its own determinations regarding questions of law.
6. Workers’ Compensation. Whether an injury arose out of and in the
course of employment must be determined from the facts of each
case.
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Nebraska Court of Appeals Advance Sheets
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WEBBER v. WEBBER
Cite as 28 Neb. App. 287
7. Workers’ Compensation: Proof. The two phrases “arising out of” and
“in the course of” in Neb. Rev. Stat. § 48-101 (Reissue 2010) are conjunctive; in order to recover, a claimant must establish by a preponderance of the evidence that both conditions exist.
8. ____: ____. The “in the course of” requirement tests the work connection as to the time, place, and activity; that is, it demands that the
injury be shown to have arisen within the time and space boundaries of
employment and in the course of an activity whose purpose is related
to employment.
9. Workers’ Compensation: Words and Phrases. The phrase “arising
out of,” as used in Neb. Rev. Stat. § 48-101 (Reissue 2010), describes
the accident and its origin, cause, and character, i.e., whether it resulted
from the risks arising within the scope of the employee’s job.
10. Workers’ Compensation. All risks causing injury to an employee can
be placed within three categories: (1) employment related—risks distinctly 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.
11. ____. Generally, harm that can be attributed solely to personal or idiopathic causes is universally noncompensable.
12. ____. The test to determine whether an act or conduct of an employee
which is not a direct performance of the employee’s work “arises out of”
his or her employment 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.
13. ____. The “arising out of” employment requirement is primarily concerned with causation of an injury.
14. ____. All acts reasonably necessary or incident to the performance of
the work, including such matters of personal convenience and comfort,
not in conflict with specific instructions, as an employee may normally
be expected to indulge in, under the conditions of his or her work, are
regarded as being within the scope or sphere of the employment.
15. ____. Injuries resulting from horseplay may be within the scope of
employment; such injuries are within the scope of employment and
compensable if (1) the deviation is insubstantial and (2) the deviation
does not measurably detract from the work.
16. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the Workers’ Compensation Court: James R.
Coe, Judge. Affirmed.
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
WEBBER v. WEBBER
Cite as 28 Neb. App. 287
Travis Allan Spier, of Atwood, Holsten, Brown, Deaver &
Spier Law Firm, P.C., L.L.O., for appellant.
Jennifer S. Caswell and Jenna M. Christensen, of Baylor
Evnen, L.L.P., for appellees.
Moore, Chief Judge, and Pirtle and Bishop, Judges.
Bishop, Judge.
INTRODUCTION
While inside a warehouse to perform duties related to relocation services, Gregory J. Webber sustained injuries when he
lit a firework that exploded in his hands. He sued his employer
(his sole proprietorship) and its workers’ compensation insurer,
Vanliner Insurance Company (collectively Employer), for
workers’ compensation benefits. Webber appeals from the decision of the Nebraska Workers’ Compensation Court which
dismissed Webber’s case, finding that his injuries did not arise
out of his employment and that his actions constituted willful
negligence. We affirm.
BACKGROUND
In July 2016, Webber filed a petition in the Workers’
Compensation Court against his Employer. He stated that he
was a “self-employed sole proprietor” working on a full-time
basis as an “over-the-road truck driver.” He alleged that on or
about June 27, in Omaha, Nebraska, while in the course and
scope of his employment, he sustained injuries to his “bilateral
hands and body as a whole, and hearing loss” after “a firework
exploded in [his] hands.” Webber sought indemnification and
payment of medical and mileage expenses.
The matter came on for hearing before the Workers’
Compensation Court on July 6, 2018. The parties stipulated
that at all times relevant, Webber was a “self-employed
sole proprietor working on a full-time basis as a relocation
specialist/over-the-road truck driver.” The parties also stipulated that Webber’s “employer was organized as an unincorporated sole proprietorship based out of Lincoln, Lancaster
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WEBBER v. WEBBER
Cite as 28 Neb. App. 287
County, Nebraska.” Webber testified that his job generally
entailed doing “everything there is in the capacity of moving
somebody from one location to another location, no matter
what it may be,” including taking “everything apart,” packing
all of a customer’s “stuff up,” loading furniture (into a semi-truck), and then putting “everything back together.” Because
some loads must be stored, Webber occasionally unloaded a
customer’s items at a Select Van & Storage Co. (Select Van &
Storage) warehouse.
Based on an “Independent Contractor Operating Agreement,”
Webber was a contractor of Select Van & Storage, which
company was defined as an “authorized motor carrier that
transports and stores household goods and general commodities” under either its own operating authority or the authority
of United Van Lines, LLC, and/or Mayflower Transit, LLC.
According to Webber, he drove exclusively for Mayflower
Transit, and he received work through Select Van & Storage.
Webber indicated that Select Van & Storage had offices in
Lincoln and other states; we refer to its warehouse located at
“80th and J” in Omaha, where the incident at issue took place,
as the “warehouse” in this opinion.
On June 27, 2016, Webber drove his semi-truck from his
residence in Lincoln to the warehouse to check on a trailerload
that he was to deliver. He had left his trailer backed into the
warehouse. Webber remembered the “first thing” he wanted
to do was make sure he “got everything off the [warehouse]
floor,” referring to customer items for the shipment, and then
he was “going to hook up to [his] trailer and continue on with
[his] route.” However, when he arrived at the warehouse he
saw David Tilley, who worked as a warehouse manager there,
near the front of the warehouse. Webber agreed Tilley was a
fellow fireworks enthusiast based on conversations they had
in the past about fireworks. In his semi-truck, Webber had an
artillery shell that was “about the size of a golf ball.” Webber
parked, placed that firework in his pocket, exited his semi-truck, and entered the warehouse.
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Nebraska Court of Appeals Advance Sheets
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WEBBER v. WEBBER
Cite as 28 Neb. App. 287
Once inside the warehouse, Tilley walked with Webber
toward Webber’s trailer; Tilley testified that he (Tilley) was
headed to go prepare semi-trucks for his own “home deliveries.” During the hearing, Webber drew a continuous, straight
line on an exhibit of an overhead map of the warehouse to
indicate the complete path he would have taken to reach his
trailer. Webber said that he showed Tilley the firework as they
were headed “that way.” At some point while walking in that
direction, Webber said he asked Tilley to light off the firework but Tilley declined the offer, telling Webber that he did
not want to light it because the “wick was too small”; something Tilley confirmed. Tilley testified that he did not want
the firework “going off in [his] hands,” out of concern for
the wick’s short length. Tilley estimated the wick was about a
“quarter of an inch” long, while Webber said it was “about an
inch” long. Tilley recalled that he told Webber “if you want
to light it, go right ahead.” Webber indicated that he stopped
in essentially the midpoint of his intended path to reach his
trailer and moved about 6 feet away from that path to near an
open exit door but remained inside the warehouse. Webber
then lit the firework. Webber estimated that about 10 seconds of time passed from the moment he moved to the door
to when the firework went off. Tilley was standing behind
Webber at that time and recalled that “as soon as it lit, it went
off.” Webber sustained “[b]last / powder burn injur[ies]” to
his stomach and lower legs and to both of his hands, resulting
in partial amputations of several fingers.
A fundraiser webpage “by Greg Webber,” said, in part,
“while inspecting fireworks and timing of certain fireworks,
one exploded way before I ever thought it would.” Webber testified that this was not an accurate statement and that his sister
wrote it, not him. The webpage also stated, “I feel like a dumb
ass to even ask for help, when what I did was all my own fault
and just a bad decision, but unfortunately I still need help.”
When asked why he had a firework in his pocket while in the
warehouse on June 27, 2016, Webber answered that he “like[d]
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WEBBER v. WEBBER
Cite as 28 Neb. App. 287
lighting fireworks just as much as the next guy” and that he
had learned that Tilley and Tilley’s son (who also worked for
the warehouse at some point) liked fireworks. Webber said he
and Tilley “both liked to light [fireworks] off and blow stuff up
and have fun with them on [Independence Day].” Webber was
aware that Tilley had previously lit off a loud firework at the
warehouse. Webber brought out the firework on June 27 “just
to say, you guys thought you had some loud ones; well, I have
an even louder one.” He stated that on June 27, he only had
“the one” (firework) in his semi-truck because he was “hoping
to run into them eventually” (Tilley or Tilley’s son). He considered it important to develop rapport with employees of the
warehouse and said that lighting the firework played a role in
that, stating, “you want people to like you and get along with
you, and you find a common ground with another individual
and boys being boys [sic].”
Webber said a lot of job assignments he received through
Select Van & Storage were based on ratings on metrics such
as customer feedback: “[T]he higher rating you have, the better job you get.” He talked about how he had lit off fireworks
for customers he had relocated in the past, usually for a “pretty
good-sized job and around the 4th of July.” Feedback from
those shows affected his “bottom line.” He thought that, as
his own employer, it was appropriate to be using fireworks for
what was referred to as client promotion. He also had invited
employees who he had employed throughout the year to his
home (he hired laborers employed by the warehouse sometimes to move items off or onto his semi-truck) and put on a
“little firework show” for them. Webber had “lit off hundreds
and thousands of fireworks” in his life and did not think he
was going to get hurt on June 27, 2016. He had “lit off many
fireworks for customers,” so it was “just another day.”
Upon a joint stipulation of the parties, at a hearing in August
2018, the court accepted into evidence written closing arguments of each of the parties. In September, the compensation
court entered an “Order of Dismissal.” The court concluded
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WEBBER v. WEBBER
Cite as 28 Neb. App. 287
that Webber’s actions did not arise out of Webber’s employment and that they constituted willful negligence. It dismissed
Webber’s petition. We will discuss the court’s specific findings
from its order as relevant below.
Webber appeals.
ASSIGNMENTS OF ERROR
Webber claims, consolidated and restated, that the Workers’
Compensation Court erred by (1) concluding his injuries did
not arise out of and in the course of his employment; (2) failing
to follow “binding precedent” from Varela v. Fisher Roofing
Co., 253 Neb. 667,
572 N.W.2d 780 (1998), and failing to
apply its horseplay analysis to this case to find his injuries
arose out of and in the course of his employment; (3) reaching
the willful negligence issue because it was inappropriate and
unnecessary dicta, and even if appropriate to address it, finding
there was sufficient, competent evidence in the record to support its findings concerning willful negligence; and (4) failing
to construe provisions of the Nebraska Workers’ Compensation
Act liberally to carry out the act’s purpose.
[1] We note that there is no separate heading and argument
in Webber’s brief specifically related to the last assigned error,
and we therefore do not address it. An alleged error must be
both specifically assigned and specifically argued in the brief
of the party asserting the error to be considered by an appellate court. State v. Sundquist,
301 Neb. 1006,
921 N.W.2d
131 (2019).
STANDARD OF REVIEW
[2] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018),
an appellate court may modify, reverse, or set aside a Workers’
Compensation Court decision only when (1) the compensation
court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact
by the compensation court do not support the order or award.
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WEBBER v. WEBBER
Cite as 28 Neb. App. 287
St. John v. Gering Public Schools,
302 Neb. 269,
923 N.W.2d
68 (2019).
[3,4] On appellate review, the factual findings made by the
trial judge of the Workers’ Compensation Court have the effect
of a jury verdict and will not be disturbed unless clearly wrong.
Krause v. Five Star Quality Care,
301 Neb. 612,
919 N.W.2d
514 (2018). When testing the sufficiency of the evidence to
support findings of fact made by the Workers’ Compensation
Court trial judge, the evidence must be considered in the light
most favorable to the successful party and the successful party
will have the benefit of every inference reasonably deducible
from the evidence.
Id.
[5] In workers’ compensation cases, an appellate court is
obligated to make its own determinations regarding questions
of law.
Id.
ANALYSIS
Applicable Legal Principles
[6] 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. Neb. Rev. Stat.
§ 48-101 (Reissue 2010). Whether an injury arose out of and
in the course of employment must be determined from the facts
of each case. Murphy v. City of Grand Island,
274 Neb. 670,
742 N.W.2d 506 (2007).
[7,8] The two phrases “arising out of” and “in the course
of” in § 48-101 are conjunctive; in order to recover, a claimant
must establish by a preponderance of the evidence that both
conditions exist. Zoucha v. Touch of Class Lounge,
269 Neb.
89,
690 N.W.2d 610 (2005). The “in the course of” requirement tests the work connection as to the time, place, and
activity; that is, it demands that the injury be shown to have
arisen within the time and space boundaries of employment
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and in the course of an activity whose purpose is related to
employment. Cox v. Fagen, Inc.,
249 Neb. 677,
545 N.W.2d
80 (1996).
[9-11] The phrase “arising out of,” as used in § 48-101,
describes the accident and its origin, cause, and character,
i.e., whether it resulted from the risks arising within the
scope of the employee’s job.
Zoucha, supra. All risks causing
injury to an employee can be placed within three categories:
(1) employment related—risks distinctly 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. Maroulakos v. Walmart Associates,
300 Neb.
589,
915 N.W.2d 432 (2018). Harm that arises from risks
distinctly associated with the employment is universally compensable.
Id. Generally, harm that can be attributed solely to
personal or idiopathic causes is universally noncompensable.
Id. Harm that arises from neutral risks is generally compensable.
Id.
Generally, a risk may be classified as neutral for either of
two reasons: (1) the nature of the risk may be known, but may
be associated neither with the employment nor the employee
personally, or (2) the nature of the cause of harm may be simply unknown.
Id. Examples of neutral risks of the first type are
stray bullets, lightning, or hurricanes, while the most common
example of a neutral risk of the second type is a purely unexplained fall.
Id.
[12,13] The test to determine whether an act or conduct of
an employee which is not a direct performance of the employee’s work “arises out of” his or her employment 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. Misek v. CNG Financial,
265 Neb. 837,
660 N.W.2d 495 (2003). The “arising out of”
employment requirement is primarily concerned with causation
of an injury.
Id.
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[14] All acts reasonably necessary or incident to the performance of the work, including such matters of personal
convenience and comfort, not in conflict with specific instructions, as an employee may normally be expected to indulge
in, under the conditions of his or her work, are regarded
as being within the scope or sphere of the employment. Id.
(employee’s journey to store to obtain soft drinks for herself,
supervisor, and coworker was matter of personal convenience
and comfort which employees may normally be expected to
indulge in; injury arose out of employment). See, also, Cords
v. City of Lincoln,
249 Neb. 748,
545 N.W.2d 112 (1996)
(city employee’s meeting with mayor to discuss his retention
as employee after 26 years of exemplary service in responsible managerial position, while not direct performance of
employee’s work, was subject of beneficial interest to city and
was not forbidden by employee’s direct superior; injury arose
out of employment); Cannia v. Douglas Cty.,
240 Neb. 382,
481 N.W.2d 917 (1992) (correction officer’s jogging while
attending jail management course at training center was reasonably incidental to his employment where attendance and
successful completion of course was mandatory and evidence
showed trainees were encouraged to jog or walk while attending the course; injury arose out of employment); Parks v.
Marsden Bldg. Maintenance,
19 Neb. App. 762,
811 N.W.2d
306 (2012) (employee thought traveling to his home to retrieve
building access card was necessity arising from his employment; that deviation from employment regarding handbook
policy of clocking out and getting permission when leaving
building was not substantial and was reasonably incident to
his employment).
Lighting Firework Did Not Arise
Out of Employment
The Workers’ Compensation Court found that the preponderance of the evidence showed that Webber’s lighting of
the firework inside the warehouse did not arise out of his
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employment as it “had nothing to do” with his work as a relocation specialist to help customers move. The compensation
court noted the following: The purpose of Webber’s visit to the
warehouse was to check on the trailer he was to drive to relocate a customer; Webber showed Tilley “the firework to show
him that he had a bigger firework than Tilley was used to,”
and Webber thought he “had a louder firework” and wanted to
show it to Tilley; Webber thought it was important to develop
rapport with the Select Van & Storage people, which “is
why [Webber] brought the firework as ‘boys will be boys’”;
Webber intended to throw the firework through an open door
after it was lit; and Webber did not intend for the firework to
go off in the warehouse. The compensation court concluded
that Webber’s actions were “solely personally related and nonbusiness oriented” and that the lighting of the artillery shell in
the warehouse “had nothing to do” with inspecting a trailer to
be delivered.
Webber argues that the compensation court erred as a matter
of fact and law in concluding his injuries did not arise out of
his employment. Webber asserts that as “his own employer,”
he “defines the activities which arise out of his employment,
including incorporating fireworks use as a regular part of his
job as a relocation specialist.” Brief for appellant at 23. He
claims the compensation court did not acknowledge he was
his own employer, as the parties had stipulated, for purposes
of identifying the customs of his workplace. He argues that his
use of fireworks was an employment risk because he allegedly
used fireworks to build rapport with peers and improve client
satisfaction ratings.
However, even if Webber put on firework shows for customers as some kind of appreciation or marketing event, those
are not the circumstances present here. Lighting a firework at
a warehouse where he was scheduled to pick up a trailerload
for delivery was not within the scope of Webber’s job, and
thus, the accident leading to his injury did not arise out of his
employment. See Zoucha v. Touch of Class Lounge, 269 Neb.
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89,
690 N.W.2d 610 (2005) (phrase “arising out of” as used
in § 48-101 considers whether the accident resulted from risks
arising within the scope of the employee’s job). There is no
question that Webber’s action in lighting the firework at the
warehouse was not in direct performance of his work. And as
set forth previously, the test to determine whether an act or
conduct of an employee which is not a direct performance of
the employee’s work “arises out of” his or her employment 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. Misek v. CNG
Financial,
265 Neb. 837,
660 N.W.2d 495 (2003).
The evidence supports the compensation court’s conclusion
that the lighting of the firework by Webber was solely personal and had nothing to do with his work. Given Webber’s
own description of his duties involved in his work as a relocation specialist and an over-the-road truckdriver and his
specific work-related purpose for being at the warehouse on
June 27, 2016 (i.e., checking that trailer was fully loaded
and connecting trailer to semi-truck for delivery), the evidence supported the compensation court’s conclusion that
lighting a firework in a warehouse was entirely a personal
endeavor and was not reasonably incidental to his work.
Further, Webber’s act of lighting a firework, under the facts
of this case, simply cannot be categorized as a matter of
personal convenience and comfort, a matter of necessity, or
a beneficial interest to the employer, as indicated in the
case examples cited previously. Rather, the evidence showed
Webber lit the firework in an effort to impress Tilley with a
loud firework.
While Tilley was seemingly indifferent about whether
Webber lit the firework in the warehouse, there was no dispute
among the parties at the hearing that neither Tilley nor Select
Van & Storage was Webber’s employer. Webber was self-employed, and the compensation court noted the same. Thus,
Webber’s arguments in his brief based on evidence regarding
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past behavior of Select Van & Storage employees and policies
of that company are not relevant.
To support that lighting the firework was incidental to his
work, Webber claims that he “wanted to develop rapport with
Select Van & Storage employees, because that [was] where the
majority of his business was generated.” Brief for appellant
at 23. But there was no evidence that Webber’s assigned jobs
through Select Van & Storage depended on successful rapportdevelopment with warehouse employees. By Webber’s own
account, he received a lot of his jobs based on his “rating,”
and higher ratings meant “better” jobs and “[m]ore money.”
Ratings depended on “how well you do your job,” “the feedback you get from the customer,” and “whether you’re showing up in uniform on time,” but “[t]he rapport you develop
with the customer [was] probably the most important thing.”
Webber also claims his firework use was an employment risk
because of its alleged purpose in positively impacting his
customer ratings, having arranged firework shows for some
customers in the past. However, such arguments related to
developing customer relationships are not persuasive, because
the evidence does not show any customer was present when
Webber lit the firework in the warehouse. Webber testified
that, besides Tilley, “[n]obody else was around” when he lit
the firework on June 27, 2016. There was no beneficial interest to Webber’s sole proprietorship from his action that led to
his injuries.
We find no error in the compensation court’s conclusion
that Webber’s actions were personal and had nothing to do
with his job, and thus, Webber’s injuries did not arise out of
his employment.
Horseplay
Webber contends that this case is “clearly a horseplay case”
pursuant to Varela v. Fisher Roofing Co., 253 Neb. 667,
572
N.W.2d 780 (1998), such that his injuries arose out of and
in the course of his employment. Brief for appellant at 15.
He claims that the compensation court’s “failure to apply the
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horseplay analysis from Varela constitutes legal error justifying reversal.” Id. at 16. However, the Employer contends it
was unnecessary for the compensation court to apply
Varela,
supra, “because Varela requires a scintilla of evidence that the
alleged horseplay is somehow related to work and the [compensation] court found absolutely no employment purpose to
lighting the firework.” Brief for appellee at 10. Further, even
applying Varela, Webber’s “injury did not arise out of or occur
in the scope of his employment.” Id. at 11. We agree with the
Employer that it was unnecessary for the compensation court
to apply Varela to the facts here, given the court’s conclusion
that the “lighting of the firework in the warehouse had nothing to do with [Webber’s] job,” and was “solely personally
related.” As we explain next, the horseplay at issue in Varela
stemmed from interactions between employees related to their
work, which was not the case here.
In Varela, supra, the Nebraska Supreme Court considered
whether an arm-wrestling incident on the roof of a school
between two employees constituted horseplay and whether
certain incidents of horseplay, resulting in injury to a worker,
might be within the scope of employment and thus arise out of
it. It noted that the case involved “some good-natured teasing
about whether [the employee] was carrying his share of the
workload,” which “in turn led to the arm-wrestling challenge
as a test of strength and manhood,” Varela,
253 Neb. at 672,
572 N.W.2d at 783. The court stated that the “arm-wrestling
match arose spontaneously out of work-related banter” and that
the “accidental slip during the course of this momentary horseplay” caused the employee’s injury.
Id. The employee’s “foot
slipped off the skylight, causing him to fall and injure his right
foot.”
Id. at 668,
572 N.W.2d at 781.
[15] In considering this court’s opinion on further review,
the Nebraska Supreme Court noted this court’s adoption of
“Professors Larson and Larson’s theory that ‘“horseplay participation . . . should have the benefit of the general rule that
trifling and insubstantial deviations, which do not measurably
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detract from the work, should not be treated as departures
from the scope of employment.” . . .’” Id. at 671,
572 N.W.2d
at 782-83. The Supreme Court cited the following portion of
this court’s analysis of the case:
“We believe that Larson and Larson’s proposed test for
compensability is appropriate and that certain incidents
of horseplay, resulting in injury, may be within the scope
of employment and arise out of it. We look to whether
the deviation was substantial because, obviously, [the
employee] and [the coworker] were not directly working
when the injury occurred. We find that the work stoppage
was of momentary duration, the injury happened at the
very outset of the horseplay, this was not the sort of incident which carried a significant risk of serious injury, and
the incident was a trifling matter, at least in its intention
by the two employees. These factors lead to the conclusion that the arm-wrestling was an insubstantial deviation
and did not measurably detract from the work (but for
the injury).”
Varela v. Fisher Roofing Co., 253 Neb. 667, 671,
572 N.W.2d
780, 783 (1998). The Supreme Court agreed with this court’s
test for compensability of an injury resulting from horseplay,
namely, that such injuries are within the scope of employment
and are compensable if “(1) the deviation is insubstantial and
(2) the deviation does not measurably detract from the work.”
Id. The Supreme Court also agreed with this court that the
arm-wrestling incident at issue “was an insubstantial deviation
and did not measurably detract from the work.”
Id. at 672,
572
N.W.2d at 783.
In the present case, Webber’s action in lighting a firework in the warehouse did not arise spontaneously out of
work-related banter, nor was it the type of trifling matter or
insubstantial deviation characterized as horseplay in
Varela,
supra. Rather, it was a personal pursuit intended to impress
another fireworks enthusiast, Tilley. Webber intentionally put
the firework in his pocket before entering the warehouse. As
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
WEBBER v. WEBBER
Cite as 28 Neb. App. 287
explained by Webber himself, his purpose was “just to say,
you guys thought you had some loud ones; well, I have an
even louder one.” This was not an action that spontaneously
arose out of workplace activities; rather, it was a substantial
deviation from work which would have measurably detracted
from work, even had Webber not been injured. We find no
error by the compensation court in finding it unnecessary to
address horseplay in its order.
Finding of Willful Negligence
[16] Webber contends that the compensation court “erred as
a matter of law in reaching the willful negligence issue after it
had already concluded there was not a work injury arising out
of employment” and that thus, the “willful negligence determination” should be reversed. Brief for appellant at 29. Webber
provides no authority to support reversing the compensation
court’s order, which reached the issue of willful negligence.
It is not unusual for a trial court to provide an alternative
basis for reaching a decision. However, we find it unnecessary to address this portion of the compensation court’s order,
because we have already found no error in the dismissal of
Webber’s action based upon the compensation court’s finding
that the accident did not arise out of Webber’s employment.
See Greenwood v. J.J. Hooligan’s, 297 Neb. 435,
899 N.W.2d
905 (2017) (appellate court is not obligated to engage in analysis that is not necessary to adjudicate case and controversy
before it).
CONCLUSION
We affirm the judgment of the Workers’ Compensation
Court dismissing Webber’s petition.
Affirmed.
