McKay v. Hershey Food Corp.

is entitled to a decree of specific performance requiring the
Tierneys to convey the disputed property, subject to 3’s lounge’s
obligation to perform its contractual obligations, including pay-
ment of the balance of the purchase price. We reverse the judg-
ment of the district court and remand the cause to that court
with instructions to fashion a decree of specific performance in
conformity with this opinion.
reversed and remanded wIth dIrectIons .
J ames mckay , appeLLant , v . hershey F ood corp ., appeLLee .
740 N.W.2d 378
Filed October 30, 2007. 	No. A-06-1193.
1. Workers’ Compensation: Appeal and Error. under 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 com-
pensation court do not support the order or award.
2. Workers’ Compensation: Statutes: Appeal and Error. The meaning of a statute
is a question of law, and an appellate court is obligated in workers’ compensation
cases to make its own determinations as to questions of law.
3. Statutes: Appeal and Error. Appellate courts give statutory language its plain and
ordinary meaning and will not resort to interpretation to ascertain the meaning of
statutory words which are plain, direct, and unambiguous.
4. Final Orders. As a general matter, where an order is clearly intended to serve as a
final adjudication of the rights and liabilities of the parties, the silence of the order
on requests for relief not spoken to can be construed as a denial of those requests
under the circumstances.
5. Workers’ Compensation: Proof. To obtain a modification of a workers’ compen-
sation award, an applicant must prove, by a preponderance of evidence, that the
increase or decrease in incapacity was due solely to the injury resulting from the
original accident.
6. ____: ____. An applicant seeking modification of a workers’ compensation award
must prove there exists a material and substantial change for the better or worse in
the condition—a change in circumstances that justifies a modification, distinct and
different from the condition for which the adjudication had previously been made.
7. Summary Judgment. summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
MckAy v. HersHey FOOD COrP. 	79
Cite as 16 Neb. App. 79
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

8. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
Appeal from the Workers’ Compensation Court. Affirmed.
Todd bennett, of rehm, bennett & Moore, for appellant.
Patrick r. guinan, of erickson & sederstrom, P.C., for
appellee.
I nbody, Chief Judge, and I rwIn and moore, Judges.
moore, Judge.
INTrODuCTION
James Mckay sought modification of a prior award of the
Nebraska Workers’ Compensation Court in order to obtain voca-
tional rehabilitation services. The trial court found that under
Neb. rev. stat. § 48-141 (reissue 2004), Mckay was required
to prove an increase in incapacity due solely to his work-related
injury, and the court granted summary judgment in favor of
Hershey Food Corp. (Hershey), Mckay’s former employer.
Mckay appealed to the three-judge review panel of the compen-
sation court, arguing that he did not need to prove an increase
in incapacity and that the requested modification was authorized
under Neb. rev. stat. § 48-162.01(7) (Cum. supp. 2006). The
review panel affirmed the decision of the trial court, and Mckay
has appealed to this court. because we agree with the trial court
and review panel’s determination that § 48-162.01(7) is inap-
plicable and that Mckay was required to prove an increase in
incapacity, which he did not do, we affirm.
bACkgrOuND
Mckay was employed by Hershey on December 26, 1997,
when he was injured in a work-related accident. Hershey paid
Mckay certain indemnity benefits, but on November 26, 2001,
Mckay filed a petition in the compensation court seeking
additional benefits. Mckay sought temporary and permanent
disability benefits; payment of medical expenses; vocational
rehabilitation benefits; and waiting-time penalties, attorney fees,
and interest.
80 	16 NebrAskA APPellATe rePOrTs

In its amended answer, filed June 26, 2002, Hershey admit-
ted that Mckay was an employee and that he suffered a
work-related injury. Hershey denied the nature and extent of
Mckay’s injuries. Hershey denied the remaining allegations of
Mckay’s petition, including his entitlement to vocational reha-
bilitation benefits.
On October 4, 2002, the trial court entered an award in
Mckay’s favor. The trial judge accepted the parties’ stipulation
that Mckay was employed by Hershey on December 26, 1997,
earning an average weekly wage of $793.50, and suffered injury
on that date in an accident arising out of and in the course of his
employment. The trial judge also accepted the parties’ stipula-
tions as to temporary total and temporary partial disability and
found that Mckay was correctly paid the compensation to which
he was entitled for those periods. The trial judge found that
Mckay suffered a 30-percent permanent loss of earning capac-
ity and was entitled to compensation at the rate of $158.70 per
week for 2464⁄7 weeks, crediting Hershey for payments made.
In discussing Mckay’s loss of earning capacity, the trial judge
observed, as “[s]omething else for the Court to consider,” the
fact that Hershey announced at one time that it would close
its Omaha plant sometime around March 31, 2002. The trial
judge further observed that the closing did not occur but that it
“underscore[d] the fragility of [Mckay’s] present employment.”
The trial judge did not further address any claim for, or make
an award of, vocational rehabilitation services. Finally, the trial
judge ordered the payment of certain medical bills.
The record before us shows that Hershey’s Omaha plant
closed in 2004 and that all hourly employees, including Mckay,
were offered a program that allowed for up to 2 years of addi-
tional education and retraining. After the plant’s closing, Mckay
found other employment, earning $10.50 per hour.
After the closing of the Hershey plant, Mckay filed a request
with the compensation court for the appointment of a vocational
rehabilitation counselor, which request was granted by the trial
court. On November 4, 2004, Hershey filed a motion to strike the
appointment of the vocational rehabilitation counselor, because
Mckay failed to give notice to Hershey of his request for the
appointment. The trial court entered an order on December 29,
MckAy v. HersHey FOOD COrP. 	81
Cite as 16 Neb. App. 79

granting Hershey’s motion to strike. In the December 29 order,
the trial judge first found that the motion to strike should be
granted because there was no evidence that any notice was given
to Hershey or its insurer of any request for appointment of a
vocational counselor. The trial court also observed that in the
original award, it had not awarded Mckay any vocational train-
ing, and that Mckay was seeking to modify the original award
to obtain such retraining. The trial judge found that in order
for Mckay to obtain vocational rehabilitation services, he was
required to “make a prima facie showing that there ha[d] been an
increase in his incapacity due solely to the injury.”
On January 11, 2005, Mckay filed an application for review
of the December 29, 2004, order. Mckay requested that the
three-judge review panel reverse the December 29 order and
find that he was not required to show an increase in incapacity
under § 48-141, but, rather, was entitled to apply for vocational
rehabilitation benefits under § 48-162.01(7).
The review panel entered an order of affirmance on review
on september 30, 2005, affirming the trial court’s order strik-
ing the appointment of the vocational rehabilitation counselor.
The review panel found that the record clearly established that
Mckay did not provide notice to Hershey prior to request-
ing the appointment of a rehabilitation counselor and that the
lack of such notice was a sufficient basis for the trial court to
sustain Hershey’s motion to strike. The review panel also held
as follows:
Aside from the procedural infirmity attending [Mckay’s]
request for the appointment of a vocational rehabilitation
counselor, a substantive shortcoming also exists. As prop-
erly noted by [the trial judge], no award of vocational reha-
bilitation benefits was accorded [Mckay] in the original
Award entered on October 4, 2002. Absent such an award
of vocational rehabilitation benefits, the panel believes
that any future request regarding same must comply with
the dictates of bennett v. J.C. robinson seed Co., 7 Neb.
Ct. App. 525, 583 N.W.2d 370 (1998). In other words,
[Mckay] needed to allege and ultimately make a requisite
showing that he had suffered an increase in incapacity due
82 	16 NebrAskA APPellATe rePOrTs

solely to the original injury. A review of the record fails to
evidence any such allegation.
Mckay did not appeal the review panel’s order of september
30, 2005. rather, on August 18, before the review panel entered
its order of affirmance on review, Mckay filed a petition to
modify the October 4, 2002, award. In his petition to modify,
Mckay alleged that he had sustained a material and substantial
increase in his incapacity due solely to his work-related injury
and requested that the trial court award him additional benefits,
including vocational rehabilitation. Mckay also alleged that “in
the interest of justice the compensation court or judge thereof
may also modify a previous finding, order, award, or judgment
relating to physical, medical, or vocational rehabilitation ser-
vices as necessary in order to accomplish the goal of restoring
the injured employee to gainful and suitable employment” pur-
suant to § 48-162.01(7).
After filing an answer denying that Mckay had sustained
an increase in his incapacity or that he was entitled to addi-
tional benefits, Hershey served interrogatories, asking Mckay to
describe the change in his condition, and a request for production
of documents, asking Mckay to identify all documents that sup-
ported his claim that he had sustained a material and substantial
increase in his incapacity due solely to his work-related injury.
Mckay responded to the request for production by providing
Hershey with medical records that predated the October 4, 2002,
award. subsequently, Hershey moved for summary judgment,
alleging that there was no genuine issue of material fact and that
Hershey was entitled to judgment as a matter of law.
The trial court heard Hershey’s motion for summary judgment
on January 11, 2006, and entered an order on January 23, grant-
ing Hershey’s motion. The trial judge found that § 48-162.01(7)
was not applicable, because the original award made no finding,
order, award, or judgment relating to physical, medical, or voca-
tional rehabilitation services. The trial judge found that Mckay
was obliged to comply with the provisions of § 48-141 and that
Mckay was unable to do so when all of his medical evidence
predated the court’s original award of benefits.
Mckay 	appealed 	to 	the 	review 	panel, 	alleging, 	among
other things, that the trial court erred in its determination that
MckAy v. HersHey FOOD COrP. 	83
Cite as 16 Neb. App. 79

§ 48-162.01(7) was not applicable and that Mckay was required
to prove a material and substantial change in his physical condi-
tion. Mckay did not assign as error the trial court’s determina-
tion that the medical records he presented at the summary judg-
ment hearing, which records predated the original award, were
not sufficient to establish an increase in his incapacity after the
original award was entered.
The review panel entered an order of affirmance on review
on October 3, 2006. In the majority opinion, two judges of the
review panel stated in part as follows:
The review panel has carefully examined subsection 7
[of § 48-162.01] and concludes that the trial judge cor-
rectly interpreted the provisions set forth therein. In other
words, to invoke subsection 7, a prior award of vocational
rehabilitation services must have been made. It is the
understanding of the review panel that the provision relied
upon by [Mckay] was passed by the legislature in response
to decisions from the Nebraska supreme Court indicating
that the compensation court lacked the power to modify a
preexisting [vocational rehabilitation] plan after its order
became final. Dougherty v. swift-eckrich, Inc., 251 Neb.
333, 557 N.W.2d 31 (1996). Thus, when viewed within the
proper framework, it is clear that the trial judge’s interpre-
tation and conclusions are correct. The review panel finds
[Mckay’s] assertion to the contrary to be without merit.
In a separate concurrence, the third judge of the review
panel noted:
The 1997 amendment to § 48-162.01 is limited to a
modification of a previous award relating to physical,
medical, or vocational rehabilitation services. In this case,
there is no previous award addressing vocational rehabili-
tation services. As a result, there is no award to modify
under § 48-162.01(7).
The original award did not address vocational rehabili-
tation services. under Dawes v. Wittstruck sandblasting &
Painting, Inc., 266 Neb. 526, 667 N.W.2d 167 (2003) the
failure of the trial court to address vocational rehabilita-
tion services in its award in this case is the equivalent of
a denial of vocational rehabilitation services. In order to
84 	16 NebrAskA APPellATe rePOrTs

obtain vocational rehabilitation services, [Mckay] must
meet the requirements of § 48-141, the modification stat-
ute, which [Mckay] failed to do.
(emphasis in original.)
AssIgNMeNT OF errOr
Mckay asserts, consolidated and restated, that the trial court
erred in failing to find that he was entitled to vocational reha-
bilitation services.
sTANDArD OF reVIeW
[1-3] under 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. Knapp
v. Village of Beaver City, 273 Neb. 156, 728 N.W.2d 96 (2007).
The meaning of a statute is a question of law, and an appellate
court is obligated in workers’ compensation cases to make its
own determinations as to questions of law. Id. Appellate courts
give statutory language its plain and ordinary meaning and will
not resort to interpretation to ascertain the meaning of statutory
words which are plain, direct, and unambiguous. Id.
ANAlysIs
[4] We first observe that as a general matter, where an order
is clearly intended to serve as a final adjudication of the rights
and liabilities of the parties, the silence of the order on requests
for relief not spoken to can be construed as a denial of those
requests under the circumstances. D’Quaix v. Chadron State
College, 272 Neb. 859, 725 N.W.2d 558 (2007). The original
award of benefits to Mckay, entered on October 4, 2002, does
not discuss vocational rehabilitation. The October 2002 order
was clearly intended to serve as a final order, and thus, the trial
judge’s silence on the issue of vocational rehabilitation services
can be construed as a denial of those services. The question then
becomes, under those circumstances, whether it was necessary in
MckAy v. HersHey FOOD COrP. 	85
Cite as 16 Neb. App. 79

the present modification action for Mckay to prove an increase
in incapacity under § 48-141 in order to obtain vocational rehabil-
itation services or whether the original award could be modified
to grant vocational rehabilitation services under § 48-162.01(7)
without having to prove an increase in incapacity.
section 48-141 provides:
All amounts paid by an employer or by an insurance
company carrying such risk, as the case may be, and
received by the employee or his or her dependents by
lump-sum payments, approved by order pursuant to section
48-139, shall be final, but the amount of any agreement or
award payable periodically may be modified as follows: (1)
At any time by agreement of the parties with the approval
of the Nebraska Workers’ Compensation Court; or (2) if
the parties cannot agree, then at any time after six months
from the date of the agreement or award, an application
may be made by either party on the ground of increase or
decrease of incapacity due solely to the injury or that the
condition of a dependent has changed as to age or marriage
or by reason of the death of the dependent. In such case,
the same procedure shall be followed as in sections 48-173
to 48-185 in case of disputed claim for compensation.
section 48-162.01(7) provides:
If the injured employee without reasonable cause refuses
to undertake or fails to cooperate with a physical, medical,
or vocational rehabilitation program determined by the
compensation court or judge thereof to be suitable for him
or her or refuses to be evaluated under subsection (3) or (6)
of this section or fails to cooperate in such evaluation, the
compensation court or judge thereof may suspend, reduce,
or limit the compensation otherwise payable under the
Nebraska Workers’ Compensation Act. The compensation
court or judge thereof may also modify a previous finding,
order, award, or judgment relating to physical, medical, or
vocational rehabilitation services as necessary in order to
accomplish the goal of restoring the injured employee to
gainful and suitable employment, or as otherwise required
in the interest of justice.
(emphasis supplied.)
86 	16 NebrAskA APPellATe rePOrTs

Mckay relies on the last sentence of § 48-162.01(7) and
argues that the application of § 48-162.01(7) is necessary “in
the interest of justice” under the circumstances of this case.
The circumstances referred to by Mckay are the closure of the
Hershey plant, the physical restrictions that have been imposed
on Mckay due to his work-related injury, and the fact that at
his current job, he earns significantly less than he did while
employed by Hershey. Mckay refers us to the earning capacity
discussion in the original award, arguing that if the trial judge
had chosen at the time of the original award to “act on the
‘fragility of [Mckay’s] present employment,’” vocational reha-
bilitation clearly would have been necessary “to return [Mckay]
to his former level of income and employment with another
employer.” brief for appellant at 11. In other words, Mckay
argues that if continued employment with Hershey had not been
available at the time, he would have suffered significant loss of
access to the employment market and would have needed voca-
tional rehabilitation in order to return to suitable employment.
While that may certainly have been the case, Mckay’s argu-
ments do nothing to change the fact that no vocational services
were awarded to him at the time of the original award.
We agree with the conclusion of the trial court and review
panel that the lack of an award of vocational rehabilitation
services in the original award prevents the application of
§ 48-162.01(7) in this case. The last sentence of § 48-162.01(7),
upon which Mckay relies, was added by the legislature when
it adopted 1997 Neb. laws, l.b. 128, § 4. The review panel
concluded that the power of modification given to the compen-
sation court by the 1997 amendment to § 48-162.01 was lim-
ited to modifications of a previous award relating to physical,
medical, or vocational services. We agree with this conclusion
because it is consistent with the legislative history of l.b. 128.
The Introducer’s statement of Intent for l.b. 128 provides in
relevant part that the bill
would allow the modification of a vocational rehabilitation
plan by the Court after the award has become final for the
purpose of restoring the employee to gainful and suitable
employment or as otherwise required in the interest of jus-
tice. This change is sought as a result of a supreme Court
MckAy v. HersHey FOOD COrP. 	87
Cite as 16 Neb. App. 79

decision which stated these plans could not be modified
after becoming final.
business and labor Committee, 95th leg., 1st sess. (Jan. 27,
1997). A review of the legislative history shows that the bill was
introduced in response to the Nebraska supreme Court’s deci-
sion in Dougherty v. Swift-Eckrich, 251 Neb. 333, 557 N.W.2d
31 (1996). In Dougherty, the court awarded the plaintiff voca-
tional rehabilitation benefits under a plan for certain retraining
that was to end on a particular date. However, the plaintiff was
unable to complete his training by the date specified in the plan.
subsequently, the plaintiff sought from the compensation court
an extension of the completion date specified in the original
award. The trial judge found that the delay in completing the
retraining program was through no fault of the plaintiff’s but
was due to his need for certain remedial work and that the
original plan was based on the rehabilitation counselor’s mis-
calculation of the time which would be required to complete the
course. The trial judge granted the extension, and the employer
appealed. On appeal, the supreme Court concluded that, essen-
tially, the compensation court had attempted to correct an error
in the original award, which award had become final. The
supreme Court concluded that there was no statute empowering
the compensation court to make such a modification and that the
court had acted in excess of its powers. Again, a review of the
legislative history of l.b. 128, § 4, makes it clear that the bill
was in response to the Dougherty decision and was to provide
a mechanism for the compensation court to modify vocational
rehabilitation plans due to changes in circumstances after the
entry of an initial plan of vocational rehabilitation.
We conclude that the plain language of the last sentence of
§ 48-162.01(7) contemplates a modification of services previ-
ously granted and does not provide for a modification of a
final order to grant entirely new services or benefits. As noted
above, this conclusion is supported by the legislative history for
l.b. 128, § 4. because there was no previous award relating to
vocational rehabilitation services in this case, there was nothing
for the court to modify. Accordingly, the trial court correctly
determined that § 48-162.01(7) was not applicable, and the
review panel did not err in affirming that determination.
88 	16 NebrAskA APPellATe rePOrTs

[5,6] We agree with the trial court’s conclusion that in order to
obtain the requested vocational rehabilitation services, Mckay
needed to comply with the requirements of § 48-141 and allege
and prove that he had suffered an increase in incapacity since
the entry of the original award. Nebraska case law provides
that in order to obtain a modification, an applicant must prove,
by a preponderance of evidence, that the increase or decrease
in incapacity was due solely to the injury resulting from the
original accident. Hagelstein v. Swift-Eckrich, 261 Neb. 305,
622 N.W.2d 663 (2001). The applicant must prove there exists
a material and substantial change for the better or worse in the
condition—a change in circumstances that justifies a modifica-
tion, distinct and different from the condition for which the
adjudication had previously been made. Id.
In his petition for modification, Mckay did in fact allege
that he had sustained a material and “substantiating” change in
his condition due solely to his work injury and sustained “an
increase in his physical condition.” The trial court found, how-
ever, that Mckay did not prove an increase in incapacity, because
the medical evidence submitted at the hearing on Mckay’s peti-
tion to modify all predated the original award, a finding which
Mckay has not challenged on appeal. We agree with the trial
court’s conclusion that medical records predating the original
award are insufficient to prove a material and substantial change
in Mckay’s condition since the original award.
[7,8] The trial court granted Hershey’s motion for summary
judgment. summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no gen-
uine issue as to any material fact or as to the ultimate inferences
that may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law. Johnson v. Knox Cty.
Partnership, 273 Neb. 123, 728 N.W.2d 101 (2007). In review-
ing a summary judgment, an appellate court views the evidence
in the light most favorable to the party against whom the judg-
ment is granted and gives such party the benefit of all reason-
able inferences deducible from the evidence. Id. Viewing the
evidence in the light most favorable to Mckay, we conclude that
the trial court properly granted summary judgment and that the
review panel did not err in affirming the trial court’s decision.
MckAy v. HersHey FOOD COrP. 	89
Cite as 16 Neb. App. 79

CONClusION
because the original award of benefits did not include an
award of vocational rehabilitation services, § 48-162.01(7) is
inapplicable to modify the original award. because Mckay
failed to prove that he suffered an increase in incapacity since
the entry of the original award as required for modification under
§ 48-141, the trial court properly granted Hershey’s motion for
summary judgment, and the review panel did not err in affirming
this decision.
aFFIrmed .
brandy s. moraLes , appeLLee , v .
swIFt beeF company , appeLLant .
741 N.W.2d 433
Filed October 30, 2007. 	No. A-06-1440.
1. Workers’ Compensation: Appeal and Error. 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.
2. ____: ____. In determining whether to affirm, modify, reverse, or set aside a judg-
ment of the Workers’ Compensation Court review panel, a higher appellate court
reviews the findings of the trial judge who conducted the original hearing.
3. Jurisdiction: Appeal and Error. before reaching the legal issues presented for
review, it is the duty of an appellate court to settle jurisdictional issues presented
by a case.
4. Final Orders: Appeal and Error. generally, when multiple issues are presented
to a trial court for simultaneous disposition in the same proceeding and the court
decides some of the issues, while reserving some issue or issues for later deter-
mination, the court’s determination of less than all the issues is an interlocutory
order and is not a final order for the purpose of an appeal.
5. Appeal and Error. A notice of appeal from a nonappealable order does not render
void for lack of jurisdiction acts of the trial court taken in the interval between the
filing of the notice and the dismissal of the appeal by the appellate court.
6. Final Orders: Appeal and Error. A party may appeal from a court’s order only if
the decision is a final, appealable order.
90 	16 NebrAskA APPellATe rePOrTs