Bassinger v. Nebraska Heart Hosp.

transferred intent. Trial counsel was not ineffective for failing
to argue otherwise. For the same reason, Iromuanya cannot
show prejudice from counsel’s failure to better explain invol-
untary manslaughter in closing arguments.
It is true that trial counsel could have argued that according
to Iromuanya’s statement, the predicate act for Iromuanya’s
unintentional killing of Cooper was his unlawful shooting at
Jenkins to scare him away. But even if trial counsel had bet-
ter explained involuntary manslaughter, the result would not
have been different. Because the jurors found that Iromuanya
intended to kill Jenkins, that intent transferred to his killing of
Cooper. Because his intent transferred, there was no basis for
finding that he killed Cooper unintentionally.
V. CONCLUSION
The district court did not err in dismissing Iromuanya’s
motion for postconviction relief without an evidentiary hear-
ing. For all of his claims, Iromuanya has either failed to allege
facts that show his counsel’s deficient performance or failed
to allege facts that show he was prejudiced by his counsel’s
alleged deficiencies.
A ffirmed.
BaSSINger v.N eBraSka hearT hOSp. 	835
Cite as 282 Neb. 835
Jennifer BAssinger , Appellee And cross -AppellAnt,
v. neBrAskA H eArt HospitAl , AppellAnt
And cross -Appellee .
806 N.W.2d 395
Filed December 9, 2011. 	No. S-10-653.
1. Workers’ Compensation: Appeal and Error. On appellate review of a workers’
compensation award, the trial judge’s factual findings have the effect of a jury
verdict and will not be disturbed unless clearly wrong.
2. Courts: Appeal and Error.a n appellate court independently decides questions
of law.
3. Statutes. Statutory interpretation presents a question of law.
4. Judgments. The interpretation and meaning of a prior opinion present a question
of law.
5. Courts: Appeal and Error.g enerally, when a party raises an issue for the
first time in an appellate court, the court will disregard it because a lower court
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

cannot commit error in resolving an issue never presented and submitted to it
for disposition.
6. ____: ____.a party is not required to ask a lower court not to follow a control-
ling decision from an appellate court to preserve for appeal an issue that the party
claims the appellate court incorrectly decided.
7. Workers’ Compensation: Statutes: Intent: Appeal and Error. The intent of
the Nebraska Workers’ Compensationa ct is to provide benefits for employees
who are injured on the job, and an appellate court will broadly construe the act to
accomplish this beneficent purpose.
8. Statutes: Legislature: Public Policy. It is the Legislature’s function through the
enactment of statutes to declare what is the law and public policy.
9. Workers’ Compensation: 	Courts: 	Jurisdiction. 	Because 	the Workers’
Compensation Court does not have equity jurisdiction, it cannot apply remedies
of rescission and estoppel that are not statutorily authorized.
10. Workers’ Compensation: Case Overruled. The Nebraska Supreme Court’s
decision in Hilt Truck Lines, Inc. v. Jones, 204 Neb. 115, 281 N.W.2d 399 (1979),
adopting an equitable misrepresentation defense, was clearly erroneous and
is overruled.
appeal from the Workers’ Compensation Court.r eversed
and remanded for further proceedings.
Tiernan T. Siems and Saraa . Lamme, ofe rickson &
Sederstrom,p .C., for appellant.
Brody J. Ockander, ofr ehm, Bennett & Moore,p .C., L.L.O.,
for appellee.
H eAvicAn, c.J., connolly, gerrArd, stepHAn, mccormAck ,
and miller-lermAn, JJ.
connolly, J.
SUMMarY
The Workers’ Compensation trial judge found that the appel-
lee, Jennifer Bassinger, had misrepresented her history of work-
related injuries on a preemployment questionnaire and dis-
missed her petition for benefits. The three-judge review panel
reversed, and remanded for further proceedings on whether a
causal relationship existed between Bassinger’s misrepresenta-
tion and her later injury.
In her cross-appeal, Bassinger argues that the review panel
exceeded its authority in permitting an employer to deny
benefits based on an affirmative misrepresentation defense.
Summed up, she claims that the misrepresentation defense that
836 	282N eBraSka repOrTS

we adopted in Hilt Truck Lines, Inc. v. Jones1 is a limitation
on benefits that is not authorized by the Nebraska Workers’
Compensationa ct (thea ct).2 We agree.
FaCTUaL BaCkgrOUND
BAssinger’s previous employment H istory
In 1996, Bassinger started work as a certified nurse aide
(CNa) at a nursing home in Syracuse, Nebraska. In 2000,
she strained her lower back muscles while moving a patient,
an injury that was treated with physical therapy. Workers’
compensation benefits covered the treatment, and she fully
recovered.
Beginning in 2001, she worked as a CNa for BryanLgh
Medical Center, a hospital in Lincoln, Nebraska. In October,
while lifting a patient, she developed right low-back pain. She
was treated for chronic sacroiliac joint dysfunction. Later, her
physician noted disk problems in addition to the joint prob-
lem, but he did not recommend treatment.h e did not give
Bassinger a permanent impairment rating because her pain
was under control. But he noted that she had agreed with his
recommendation that she should perform only light-duty work.
In November 2003, she agreed to a lump-sum settlement of
$5,000 for her injury at BryanLgh Medical Center.
BAssinger’s employment At
neBrAskA H eArt institute
In March 	2006, Bassinger began work as a CNa at
Nebraskah earth ospital (the hospital). The hospital’s preem-
ployment questionnaire asked Bassinger to respond to ques-
tions about her history of work-related injuries and her physi-
cal condition. She reported only her injury at the Syracuse
nursing home. She did not report her 2001 injury at BryanLgh
Medical Center.
In her preemployment physical, the hospital’s nurse reported
that Bassinger could perform the physical tests without pain.
But ina pril 2008, while lifting a patient, she injured her back
1 Hilt Truck Lines, Inc. v. Jones, 204 Neb. 115, 281 N.W.2d 399 (1979).
2 See Neb.r ev. Stat. § 48-101 et seq. (reissue 2010 & Supp. 2011).
BaSSINger v.N eBraSka hearT hOSp. 	837
Cite as 282 Neb. 835

and experienced instant pain in her lower back and down her
leg. She testified that the piercing pain she experienced was
different from what she had experienced in 2001.p hysical
therapy and medications did not alleviate her symptoms from
the 2008 injury.
She continued to perform light-duty work at the hospital
until she was discharged in July 2008. The hospital discharged
her because she could not work during the day, the only time
that the hospital offered her light-duty work. In October, she
elected to undergo a spinal fusion surgery with a different phy-
sician, which successfully alleviated her symptoms.
prOCeDUraLh ISTOrY
In July 2008, Bassinger petitioned for workers’ compensation
benefits. Ina ugust 2009, the trial judge dismissed her petition.
The judge found that Bassinger had willfully misrepresented
her work-related injury history when she failed to disclose
any information about her 2001 injury. In concluding that the
hospital could deny benefits because of Bassinger’s misrepre-
sentation, the judge relied on the rule we adopted in Hilt Truck
Lines, Inc.3h e concluded that the hospital satisfied the causa-
tion component of the rule because the hospital would not have
hired her had she truthfully reported her previous injury: “It is
clear that [Bassinger’s] misrepresentations allowed her to pass
through the [hospital’s] efforts to screen out people who are
physically limited in some way that would make them either
incapable of performing the tasks required or somehow be put
in danger of reinjury.”
Bassinger appealed to the review panel. The review panel
addressed only her assignment that the trial judge erred in find-
ing a causal connection between her misrepresentation and her
2008 injury. It concluded that Hilt Truck Lines, Inc. required
the hospital to show a direct causal relationship between the
2001 injury that Bassinger concealed and her 2008 injury. It
reversed the trial judge’s order and remanded the case for fur-
ther findings on causation under its corrected standard.
3 Hilt Truck Lines, Inc., supra note 1.
838 	282N eBraSka repOrTS

aSSIgNMeNTS OFerr Or
The hospital assigns that the review panel erred in determin-
ing that the trial judge applied the wrong causation standard.
On cross-appeal, Bassinger assigns that the trial judge and
review panel improperly applied a misrepresentation defense
that thea ct does not authorize.
STaNDarD OFre VIeW
[1-4] On appellate review of a workers’ compensation award,
the trial judge’s factual findings have the effect of a jury ver-
dict and will not be disturbed unless clearly wrong. But we
independently decide questions of law.4 Statutory interpretation
presents a question of law.5 The interpretation and meaning of
a prior opinion present a question of law.6
aNaLYSIS
The hospital contends that the trial judge applied the correct
causation standard. It argues that the review panel incorrectly
interpreted Hilt Truck Lines, Inc. to require a direct causal rela-
tionship between Bassinger’s misrepresentation and her work
injury. Bassinger contends that the review panel’s direct causa-
tion requirement was correct—assuming that Hilt Truck Lines,
Inc. adopted an affirmative defense for misrepresentation under
thea ct.
But in her cross-appeal, Bassinger contends that Hilt Truck
Lines, Inc. created a limitation on workers’ compensation bene-
fits that thea ct does not authorize. Because we conclude that
our decision in Hilt Truck Lines, Inc. was clearly erroneous, we
do not analyze whether the lower courts correctly applied the
causation factor of the misrepresentation defense.7
4 See Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).
5 See id.
6 State v. Stolen, 276 Neb. 548, 755 N.W.2d 596 (2008). See, also, Anderson
v. Houston, 277 Neb. 907, 766 N.W.2d 94 (2009).
7 See In re Trust Created by Hansen, 281 Neb. 693, 798 N.W.2d 398
(2011).
BaSSINger v.N eBraSka hearT hOSp. 	839
Cite as 282 Neb. 835

BAssinger HAs not WAived tHe A rgument
in H er cross -A ppeAl
Bassinger contends that the trial court and review panel
exceeded 	their 	authority 	by 	applying 	a 	misrepresentation
defense because thea ct does not authorize such a defense.
She argues that because this court’s limitation on compensation
benefits from Hilt Truck Lines, Inc. is not supported by thea ct,
the trial court’s reliance on that decision and the review panel’s
acceptance of its application were contrary to law.
The hospital responds that Bassinger has waived this argu-
ment by not presenting it to the review panel. It alternatively
argues that even if she has not waived it, it is without merit
because the lower court had no alternative but to follow this
court’s precedent. The hospital’s second argument succinctly
sums up why Bassinger has not waived her argument.
[5] It is generally true that when a party raises an issue for
the first time in an appellate court, the court will disregard
it because a lower court cannot commit error in resolving
an issue never presented and submitted to it for disposition.8
alternatively, the rule rests upon the principle that a party may
not waive an error, gamble on a favorable result, and, upon
obtaining an unfavorable result, assert the previously waived
error.9 Neither of these rationales applies here.
[6] The crux of Bassinger’s cross-appeal is that our deci-
sion in Hilt Truck Lines, Inc. was wrong. The hospital cites
no authority holding that a party must ask a lower court not
to follow a controlling decision from this court to preserve for
appeal an issue that the party claims we incorrectly decided.
requiring parties to ask a lower court to ignore our decision
would obviously be inconsistent with the doctrine of stare deci-
sis, which compels lower courts to follow our decisions.10 We
conclude that Bassinger has not waived her argument that we
erroneously adopted a misrepresentation defense in Hilt Truck
Lines, Inc.
8 See Maycock v. Hoody, 281 Neb. 767, 799 N.W.2d 322 (2011).
9 See State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).
10 See State v. Barranco, 278 Neb. 165, 769 N.W.2d 343 (2009).
840 	282N eBraSka repOrTS

misrepresentAtion defense in
H ilt truck lines , inc.
although we do not analyze the lower courts’ application of
the three-factor test that we adopted in Hilt Truck Lines, Inc.,11
we discuss it to explain what we held and why we now over-
rule it. There, a truckdriver’s survivors sought workers’ com-
pensation death benefits after he was killed in a work-related
crash. The tractor-trailer that he was driving struck and broke
through a guardrail.a 	state trooper opined that the crash was
caused by speeding and driving too fast for the weather and
road conditions.
The driver died shortly after the trucking company hired him,
and the company did not receive his driving records until after
his death. Those records showed that in the previous 2 years,
under a different name, the driver had three driving under the
influence convictions.h e had started using a different name
shortly before he was hired. It was undisputed that the trucking
company would not have hired the driver if it had known of his
convictions and that it would have discharged him immediately
if it had discovered his true driving record before the accident.
But the record showed conflicting evidence whether intoxica-
tion had caused the crash and his death.
The Workers’ Compensation Court awarded benefits. It con-
cluded that because the evidence was insufficient to support
a causal relationship between the false representation and the
later accident, it was legally insufficient to void the employ-
ment relationship retroactively. It also found that under the
statutory affirmative defense, the company had failed to prove
that intoxication or intentional negligence caused his death.12
We affirmed. We agreed that under the statutory defense, the
evidence was insufficient to prove that intoxication or inten-
tional negligence caused the driver’s death. We also rejected
the trucking company’s claim that the employment contract
was void ab initio because of the driver’s misrepresentations.
We first stated an employment contract rule from a legal
11 Hilt Truck Lines, Inc., supra note 1.
12 See § 48-127.
BaSSINger v.N eBraSka hearT hOSp. 	841
Cite as 282 Neb. 835

encyclopedia that essentially incorporated the misrepresenta-
tion rule:
plaintiff concedes the general rule that false statements
made at the time employment was secured are ordinarily
insufficient to terminate the relation of master and servant
existing at the time of the injury, even though they may
constitute grounds for rescinding the contract of employ-
ment, at least where there is no causal connection between
the injury and the misrepresentation.13
Next, we adopted a common-law misrepresentation defense
fromp rofessor Larson’s treatise to govern when an applicant’s
misrepresentations will bar recovery of workers’ compensation
benefits:
“[I]t has been held that employment which has been
obtained by the making of false statements—even crimi-
nally false statements—whether by a minor or an adult,
is still employment; that is, the technical illegality will
not of itself destroy compensation coverage. . . . The fol-
lowing factors must be present before a false statement
in an employment application will bar benefits: (1) The
employee must have knowingly and wil[l]fully made a
false representation as to his physical condition. (2) The
employer must have relied upon the false representation
and this reliance must have been a substantial factor in
the hiring. (3) There must have been a causal connection
between the false representation and the injury.”14
Under this rule, we affirmed the Workers’ Compensation
Court’s finding that the evidence was insufficient to show a
causal connection between the driver’s misrepresentations and
his subsequent accident:
[I]ssues of causation are for determination by the fact-
finder. . . .a lthough it is quite clear from the find-
ings of fact here that the contract of employment was
voidable or subject to rescission upon discovery of the
13 See Hilt Truck Lines, Inc., supra note 1, 204 Neb. at 121, 281 N.W.2d at
403, citing 56 C.J.S. Master and Servant § 180(e) (1948).
14 Id. See 3a rthur Larson & Lexk . Larson, Larson’s Workers’ Compensation
Law § 66.04 (2009).
842 	282N eBraSka repOrTS

misrepresentations, the employment contract was not void
from the beginning and the misrepresentations did not
destroy compensation coverage.15
common-lAW misrepresentAtion defense
is incompAtiBle WitH tHe Act
Bassinger argues that Hilt Truck Lines, Inc. is an anomaly
among our cases and contrary to our holdings that the Workers’
Compensation Court has only the authority to act that is con-
ferred upon it by thea ct. Substantively, the hospital contends
that thea ct supports the misrepresentation defense. It points
to § 48-102, which provides an employer with a statutory
affirmative defense: “[I]t shall not be a defense (a) that the
employee was negligent, unless it shall also appear that such
negligence was willful, or that the employee was in a state of
intoxication . . . .” The hospital contends that “any employee
that knowingly and willingly makes a misrepresentation of the
employee’s physical condition, which misrepresentation causes
an injury to the employee, commits a deliberate act knowingly
done, which would constitute willful negligence, and therefore
bar recovery.”16 We disagree that § 48-102 authorizes the mis-
representation defense.
The plain language of § 48-102 creates an affirmative defense
for injury caused by an employee’s willful negligence.p ersons
who misrepresent their physical condition to obtain employ-
ment are applicants, not employees. Notably, in Hilt Truck
Lines, Inc., we separately analyzed and affirmed the Workers’
Compensation Court’s conclusions about whether the benefits
were barred by the statutory defense for willful negligence or
intoxication, or the common-law misrepresentation defense
that we adopted.
We conclude that the statutory defense under § 48-102 does
not apply to applicants.
having disposed of the hospital’s argument, we now consider
Bassinger’s argument that thea ct does not authorize a misrep-
resentation defense. Some states have workers’ compensation
15 Id. at 122, 281 N.W.2d at 403.
16 reply brief and answer to brief on cross-appeal for appellant at 14.
BaSSINger v.N eBraSka hearT hOSp. 	843
Cite as 282 Neb. 835

statutes that exclude coverage for employees who knowingly
made false statements about their physical condition in an
application or preemployment questionnaire.17a nd it is true
that many courts have adopted the “Larson rule” as a common-
law misrepresentation defense.a t least 12 courts, besides this
court, currently apply the defense, despite the lack of a stat-
ute.18 Conversely, many courts either currently hold that an
applicant’s misrepresentations to obtain employment cannot bar
workers’ compensation benefits absent statutory authorization
or held this before the defense was codified by statute.19
Moreover, Bassinger correctly states that Hilt Truck Lines,
Inc. is an exception in our workers’ compensation jurispru-
dence. We have not applied or considered the misrepresentation
defense that we adopted there in any other workers’ compensa-
tion case. This is significant because in Hilt Truck Lines, Inc.,
we did not analyze whether a common-law defense was com-
patible with thea ct. We do so now.
[7] We have previously explained that workers’ compensation
laws reflect a compromise between employers and employees.
Under these statutes, employees give up the complete compen-
sation that they might recover under tort law in exchange for
no-fault benefits that they quickly receive for most economic
losses from work-related injuries.20 So we have consistently
held that thea ct’s intent is to provide benefits for employees
who are injured on the job, and we will broadly construe the
act to accomplish this beneficent purpose.21
17 See, Akef v. BASF Corp., 275 N.J. Super. 30, 645a .2d 158 (1994) (cit-
ing statutes); 2 Johnp . Ludington et al., Modern Workers Compensation
§ 115:6 n.43 (Matthew J. Canavan & Donna T.r ogers eds., 1993)
(same).
18 Seea nnot., 12a .L.r.5th 658 (1993 & Supp. 2011).
19 See, Akef, supra note 17 (citing cases); 12a .L.r.5th, supra note 18
(same).
20 See Jackson v. Morris Communications Corp., 265 Neb. 423, 657 N.W.2d
634 (2003) (citation omitted).
21 See id.a ccord, e.g., Zach v. Nebraska State Patrol, 273 Neb. 1, 727
N.W.2d 206 (2007).
844 	282N eBraSka repOrTS

Courts holding that misrepresentations to obtain employ-
ment cannot defeat the right to compensation benefits have
concluded that because of the compromise that their workers’
compensation laws represent, the issue is one for legislatures to
resolve: “‘This problem is a legislative one and in the absence
of a clear legislative intent, we do not feel at liberty to impose
any limitations or exceptions upon the employee’s statutory
right to recover compensation.’”22 They have concluded that
judicially engrafting an affirmative defense onto their workers’
compensation law to deny benefits months or years after the
employee was hired is inconsistent with liberally construing
these statutes in favor of providing benefits.23a nd they have
reasoned that a misrepresentation defense would resurrect bar-
riers to compensation based on an employee’s fault and conflict
with a legislative intent to reduce litigation by eliminating most
employer defenses.24
We share these concerns. We believe that the Larson rule
lacks a coherent rationale apart from being a rule of equity
based on public policy concerns.a s stated byp rofessor Larson,
the rule does not rest on “purely contractual tests, [but] is a
common-sense rule made up of a mix of contract, causation,
and estoppel ingredients.”25 In effect, the Larson rule permits
rescission, but only in limited circumstances.
First, the Larson rule reflects a concern that it is inequitable
to permit an employer to deny compensation benefits after it
has obtained the employee’s services for an extended period.
This concern has great force in workers’ compensation cases
because employees have given up the right to sue the defend-
ant for full compensation. Second, it reflects a concern that
22 Marriott Corp. v. Industrial Comm’n of Arizona, 147a riz. 116, 121, 708
p.2d 1307, 1312 (1985).a ccord, Akef, supra note 17; Stovall v. Sally
Salmon Seafood, 306 Or. 25, 757p .2d 410 (1988); Blue Bell Printing v.
W.C.A.B., 115p a. Commw. 203, 539a .2d 933 (1988).
23 See, Akef, supra note 17; Stovall, supra note 22.
24 See, Stovall, supra note 22; Goldstine v. Jensen Pre-Cast, 102 Nev. 630,
729p .2d 1355 (1986); Marriott Corp., supra note 22.
25 See 3 Larson & Larson, supra note 14 at 66-26.
BaSSINger v.N eBraSka hearT hOSp. 	845
Cite as 282 Neb. 835

an applicant’s misrepresentations about his or her physical
condition could frustrate the employer’s attempt to protect
itself from liability for the aggravation of a previous injury or
a causally related injury.
Both of these concerns are obviously issues of public policy.
The Larson rule balances these concerns through a unique
application of rescission and estoppel rules. The employer is
estopped from rescinding the contract for the employee’s mis-
representation about his or her physical condition unless the
misrepresentation resulted in the very injury that the employer
was attempting to protect itself from by asking the applicant to
respond to questions about his or her physical condition and
work-related injuries.
[8,9] The Larson rule may reflect a laudable goal. But it is
the Legislature’s function through the enactment of statutes
to declare what is the law and public policy.26 For example,
one court has declined to adopt the Larson rule because the
intent of the workers’ compensation statutes was to encourage
employers to hire applicants with previous injuries.27e qually
important, this court has repeatedly held that the Workers’
Compensation Court does not have equity jurisdiction.28 So it
cannot apply remedies of rescission and estoppel that are not
statutorily authorized.
For example, under Nebraska case law, the absence of equity
jurisdiction 	means 	that 	the Workers’ Compensation 	Court
(1) does not have contempt power to enforce its awards29;
(2) cannot give credit to an employer for wages that it paid to
an employee, who had returned to work, before the employer
filed for a modification30; (3) cannot permit an insurer’s posttrial
26 City of Falls City v. Nebraska Mun. Power Pool, 281 Neb. 230, 795
N.W.2d 256 (2011).
27 See Akef, supra note 17.
28 See, e.g., Burnham v. Pacesetter Corp., 280 Neb. 707, 789 N.W.2d 913
(2010); Risor, supra note 4.
29 Burnham, supra note 28.
30 Daugherty v. County of Douglas, 18 Neb.a pp. 228, 778 N.W.2d 515
(2010).
846 	282N eBraSka repOrTS

intervention in an appeal31; and (4) cannot consider whether an
employer is estopped from denying coverage to an independent
contractor claimant because it took out a workers’ compensa-
tion insurance policy to cover the claimant.32
We have also held that when an employer seeks to enforce
its subrogation interest in a third-party settlement through an
action in district court, the district court may not bar the claim
on equitable grounds: “Whether the employer’s defense against
the workers’ compensation claim is reasonable is determined
by the Workers’ Compensation Court under the . . .a ct, not
in the district court by resort to equitable principles.”33 Finally,
we have stated that we have no authority to apply equitable
principles to alleviate the harshness of a claimant’s recovery
under thea ct.34
[10] The unavoidable consequence of these holdings is that
our adoption of the equitable misrepresentation defense in Hilt
Truck Lines, Inc. was clearly erroneous. We therefore overrule
Hilt Truck Lines, Inc. and reverse the judgment of the review
panel of the Workers’ Compensation Court. We remand the
cause to the review panel and direct it to remand the case to
the trial judge for further proceedings to determine whether
Bassinger is entitled to benefits without regard to the hospital’s
misrepresentation defense.
reversed And remAnded for
furtHer proceedings.
WrigHt, J., not participating.
31 Risor, supra note 4.
32 Anthony v. Pre-Fab Transit Co., 239 Neb. 404, 476 N.W.2d 559 (1991).
33 Burns v. Nielsen, 273 Neb. 724, 735, 732 N.W.2d 640, 650 (2007).
34 See Runyan v. Lockwood Graders, Inc., 176 Neb. 676, 127 N.W.2d 186
(1964).
BaSSINger v.N eBraSka hearT hOSp. 	847
Cite as 282 Neb. 835