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Worker’s nail gun to head intentional: Nebraska Supreme Court

Worker’s nail gun to head intentional: Nebraska Supreme Court

A woman who sustained injuries when a nail became lodged in her temple at work is not entitled to workers compensation because the employer offered substantial evidence that she shot herself intentionally with a nail gun, Nebraska’s highest court ruled Friday.

In 304 Neb. 804, the Supreme Court of Nebraska unanimously affirmed a Nebraska Workers Compensation Court holding that her workers comp claim was barred and that her employer was not liable for her injuries.

On Sept. 24, 2015, a three-quarter-inch nail became embedded in the right temple of a woman who worked for Omaha-based Builders Supply Co. Inc. She said the nail partially penetrated her skull when she connected her nail gun to an air hose and it misfired. There were no eyewitnesses to her injury, and she filed a claim for workers compensation.

In November 2015, Builders denied her claim on the basis that she had intentionally injured herself, and later defended itself in compensation court, arguing that her claim was barred because she “deliberately shot herself in the head with the nail gun.”

The case eventually went to trial in April 2018 on the issue of liability only and the court tasked with deciding whether the worker had intentionally injured herself or was injured in an accident.

At trial, the woman presented testimony from her husband — who also worked for Builders — and coworkers who testified that nails have been accidentally fired in the past.

However, evidence of her character was also presented, including that she had been physically and verbally abused by her adult children, who were incarcerated, and was caring for her grandchildren. A poem written on an envelope found on her work desk after the injury, which discussed an imminent death from the writer’s point of view, was also entered into evidence. She said she wrote it as a way to provide closure regarding her mother’s death and denied that it was a suicide note.

Builders claimed that the nail gun worked properly, had multiple safety mechanisms and would not fire when plugged into an air hose and that on the day of the incident the woman appeared “emotionally distraught.”

The compensation court found by a preponderance of the evidence that the woman shot herself intentionally and that her injury was not covered under the Nebraska Workers Compensation Act.

She appealed, and the Nebraska Supreme Court affirmed the decision. Although she argued that the compensation court erred in determining that she willfully attempted suicide without considering psychological evaluations and medical opinions regarding whether she was suicidal as well as dismissing questions regarding the functionality of the nail gun, the supreme court disagreed.

Since the compensation court is the sole judge of credibility, the Nebraska high court found that the record contained evidence to substantiate the factual conclusions.

Although testimony of several medical providers offered by the woman included statements that she did not exhibit pathologically impulsive behavior or intentionally injure herself, the records were made after the incident, which left her with a traumatic brain injury, change in personality and reduction in functionality.

Finally, the court dismissed the woman’s argument that Nebraska has a presumption against suicide which the court did not consider in its analysis. Because no cause of death is at issue in this case, the presumption against suicide is not applicable here, the court said, and even if it did apply, the presumption would be overcome by the evidence including how her injury was consistent with an intentional act, the nature of the injury, the note penned by her, her behavior, and her personal life.