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Zoucha v. Touch of Class Lounge1/14/2005
the door of the Lounge. Bauer stated that she did not require her employees to park in the plaza parking lot, but would expect them to do so as a matter of convenience.
Zoucha filed a petition in the Workers' Compensation Court seeking disability benefits and medical expenses. After trial, the single judge made findings of fact generally accepting Zoucha's description of the events prior to the assault. However, the single judge concluded that at the time of the assault, Zoucha had left the premises of the Lounge. The single judge applied the "going to and from work" rule, which will be explained in greater detail below, and found that Zoucha "was not in the course of her employment at the time that she suffered her severe injuries." Consequently, the single judge dismissed Zoucha's petition. The review panel of the Workers' Compensation Court, and the Court of Appeals, affirmed the judgment of the single judge for substantially the same reasons articulated by the single judge. See Zoucha v. Touch of Class Lounge, No. A-03-971, 2004 WL 943218 (Neb. App. May 4, 2004) (not designated for permanent publication). Zoucha filed a petition for further review, which we granted.
ASSIGNMENTS OF ERROR
Zoucha assigns that the Court of Appeals erred in (1) concluding that Zoucha's injuries did not arise out of and in the course of her employment with the Lounge, (2) concluding that Zoucha's injuries did not occur on the premises of the Lounge, and (3) failing to find a direct causal connection between Zoucha's employment and her injuries.
STANDARD OF REVIEW
[1,2] Pursuant to Neb. Rev. Stat. § 48-185 (Reissue 2004), 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. Sweeney v. Kerstens & Lee, Inc., 268 Neb. 752, 688 N.W.2d 350 (2004). An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Ludwick v. TriWest Healthcare Alliance, 267 Neb. 887, 678 N.W.2d 517 (2004).
ANALYSIS
[3,4] Prior to discussing the particular circumstances of this case, we review some of the basis principles of workers' compensation law that will be relevant to our analysis. When personal injury is caused to an employee by accident or occupational disease, arising out of and in the course of his or her employment, such employee shall receive compensation therefor 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 2004). 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. Logsdon v. ISCO Co., 260 Neb. 624, 618 N.W.2d 667 (2000). 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 ; the phrase "in the course of," as used in § 48-101, refers to the time, place, and circumstances surrounding the accident. Logsdon, supra. We note, although it is not contested by the parties, that the assault was an "accident" within the meaning of § 48-101. See P.A.M. v. Quad L. Assocs., 221 Neb. 642, 380 N.W.2d 243 (1986).
[5,6] The "in the course of" requirement
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