Tuesday, March 21, 2006

Follow up: Nebraska Court of Appeals (J. Carlson) allows State Patrolman's stress-induced suicide worker compensation case to proceed over Attorney General's 12b6 motion.Zach v. Nebraska State Patrol, 14 Neb. App. 579 March 21, 2006. A-05-449. State patrolman who had pulled over Norfolk bank robbers in 2002 but mistakenly let them go committed suicide after learning of his error. Estate sued for worker compensation alleging that chemical alterations to his brain that the stressful news induced led to his suicide. Trial judge dismissed petition on State's 12(b)(6) motion. Review panel reversed and court of appeals agrees that a 12(b)(6) dismissal for either a job related accident or occupational disease theory is premature. Judge Cassel dissents Interesting, courts assume that civil pleading rules, especially 12b6 would apply to pleadings in the worker compensation court, although 48-173 prescribes the necessary pleadings in a worker compensation case. Nevertheless, Appeals court holds, with Judg e Cassel dissenting, that at the pleading stage it would be premature to say categorically that stress induced chemical changes to the brain, if any, would not be "(violent events) to the physical structure of the body." See § 48-151(4) defining "Injury." Dissenting Judge Cassel finds it impossible that allegations could ever support a comp claim
The (plaintiffs') argument recognizes that the act of suicide cannot constitute the "violence to the physical structure of the body" necessary to establish an "injury" within the meaning of the statute. Once there has been a compensable "injury," i.e., once the "violence to the physical structure of the body" has occurred, then it becomes possible that the subsequent act of suicide is a consequence naturally flowing from the injury. To supply the required allegation of "injury," the appellees depend upon the allegation of "physical changes" to Zach's brain...Because I disagree that the bare allegation of "physical changes" to Zach's brain is sufficient to set forth a claim of a compensable "injury," I respectfully dissent.

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