Morales v. Swift Beef Co.

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.
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7. Jurisdiction: Stipulations: Appeal and Error. Appellate jurisdiction of the sub-
ject matter can only be conferred in the manner provided by statute and cannot be
conferred by stipulation of the parties.
8. Jurisdiction: Final Orders: Appeal and Error. Appellate jurisdiction cannot be
conferred by filing an application for review from an interlocutory order.
9. Appeal and Error: Words and Phrases. Plain error is error plainly evident from
the record and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
Appeal from the Workers’ Compensation Court. Affirmed.
James D. Hamilton and Amanda A. Dutton, of baylor, evnen,
Curtiss, grimit & Witt, l.l.P., for appellant.
Hunter 	A.H. 	Campbell, 	of 	Campbell 	law 	Office, 	for
appellee.
sIevers , carLson, and casseL, Judges.
casseL, Judge.
INTrODuCTION
Following trial, the trial court entered an award explicitly
reserving certain issues for later determination. swift beef
Company (swift) nevertheless filed an application for review.
Approximately 2 months later, the trial court resolved the
remaining issues, and swift filed a second application for
review, which did not restate or incorporate any of the errors
contained in the first application. swift now appeals from the
order of remand of the Nebraska Workers’ Compensation Court
review panel, which refused to consider the errors swift raised
in its first application. because swift’s first application sought
to appeal from an interlocutory order, it was ineffective and did
not divest the trial court of jurisdiction. We affirm the decision
of the review panel.
bACkgrOuND
The parties stipulated that brandy s. Morales began work-
ing for swift on september 18, 2002. On February 8, 2005,
Morales filed a petition in the Workers’ Compensation Court
seeking benefits and compensation for medical expenses. she
alleged that during her employment with swift, she suffered
MOrAles v. sWIFT beeF CO. 	91
Cite as 16 Neb. App. 90

injuries to her neck and hand as a result of repetitive trauma. On
October 26, the court conducted a trial.
On March 2, 2006, the trial court entered an award (March
award), which stated:
At the time of trial, there was an argument about
[Morales’] average weekly wage. In exhibit 30, page
2, there is a statement of [Morales’] wages and hours
worked. [swift] added up the hours worked but it is not
clear if overtime hours were included or if any holiday pay
was included. A further hearing must be held to educate
the Court on the parties’ positions on how to determine
the average weekly wage. It would appear that the hours
worked plus overtime should be included at straight time
and holiday pay should also be included. For the period
ending November 8, 2003, the vacation pay for 40 . . .
hours should be included. For the week ending November
15, 2003, perhaps not all of the vacation pay should be
included because [Morales] received 40 . . . hours of
vacation pay plus 32 . . . hours of straight time. I note
that the period ending November 22, 2[0]03, is blank.
Perhaps the 40 . . . hours of vacation should have been on
that line rather than on the line for November 15, 2003.
That would be more consistent because [Morales] did not
work the weeks ending November 8, 2003, and November
22, 2003.
On the issue of the amount of temporary benefits,
[Morales] is entitled to some temporary benefits but she
is not entitled to temporary total benefits from the date of
accident until the time of trial. [swift] is entitled to some
relief from payment of temporary total benefits because
[Morales] received unemployment benefits and worked for
Associated staffing.
The parties should be prepared to argue and submit
additional evidence as to the period of temporary benefits
and the amount thereof.
A further hearing will be held on March 8, 2006,
. . . to determine [Morales’] average weekly wage and the
amount and period of temporary benefits.
. . . .
92 	16 NebrAskA APPellATe rePOrTs

[Morales] 	has 	not 	yet 	reached 	maximum 	medical
recovery. . . .
Payment of attorney’s fees will be decided after deter-
mination of average weekly wage and period of weekly
benefits.
The court gave swift credit for payments it had made on medical
bills and ordered swift to pay certain medical expenses along
with future medical care expenses.
On March 16, 2006, swift filed an application for review of
the March award and assigned 17 errors. swift assigned error
to, among other things, the court’s failure to make a finding on
Morales’ average weekly wage and entitlement to temporary
disability benefits based upon the evidence presented at the time
of trial, the court’s ordering further hearing on Morales’ average
weekly wage and temporary benefits following the trial, and the
court’s failure to find that Morales was not entitled to attorney
fees based upon the evidence presented at trial.
The hearing scheduled for March 8, 2006, was continued
to March 17 and then ultimately held on April 11. Counsel
for swift objected “to proceeding with the hearing for aver-
age weekly wage” and asserted that the issue should have
been decided based upon exhibit 30, the evidence on wages
that swift offered at the initial trial. exhibit 30 showed 909
hours, and counsel for swift and Morales agreed that was the
proper calculation. The court stated it would use exhibit 30 for
an average weekly wage of $379.79, and the court then gave
counsel an opportunity to argue about whether unemployment
benefits earned by Morales affected the average weekly wage.
The court did not receive any additional evidence at the April
11 hearing.
On May 17, 2006, the trial court entered an order (May order)
which addressed Morales’ average weekly wage and entitlement
to temporary benefits. The court determined Morales’ average
weekly wage to be $379.79, entitling her to $253.20 per week
for temporary total benefits. The order stated that Morales
received unemployment benefits from March 1 through June 30,
2004, and that during that period, she was entitled to $109.86
per week for temporary partial benefits. The court ordered swift
to pay the temporary benefits set forth in the order and ordered
MOrAles v. sWIFT beeF CO. 	93
Cite as 16 Neb. App. 90

that the March award “is supplemented to show the above tem-
porary benefits.”
On May 30, 2006, swift filed an application for review,
assigning as error only the court’s finding that swift was to pay
the temporary benefits set forth in the May order. Also on May
30, swift filed a motion to consolidate the March 16 and May
30 applications for review. On June 13, following a hearing on
the same date, a judge of the Workers’ Compensation Court
different from the trial judge entered an order consolidating the
two applications for review.
On November 16, 2006, the review panel entered its order of
remand on review. The review panel found that the March award
was interlocutory, stated that it regarded the March 16 applica-
tion for review as a nullity, and determined that the only appli-
cation properly before it was the May 30 application for review
which set forth a single assignment of error. The review panel
noted a conflict between the trial court’s two orders regarding
temporary benefits and remanded the matter to the trial judge
for a reasoned decision solely concerning the award of benefits
in the May order.
swift timely appeals to this court.
AssIgNMeNTs OF errOr
swift assigns 18 errors on appeal. swift alleges, consolidated
and restated, that the review panel erred in (1) failing to find
the March award was a final, appealable order; (2) finding that
swift’s March 16, 2006, application for review was a nullity and
failing to consider the assignments of error contained therein;
and (3) failing to find that the trial court had been divested of
jurisdiction following the March 16 filing of the application for
review, rendering the trial court’s April 11 hearing a nullity.
swift alleges, consolidated and restated, that the trial court
committed plain error in (1) finding that Morales suffered
bilateral carpal tunnel syndrome as a result of a work-related
accident, (2) finding that Morales suffered an injury to her
neck as a result of a work-related accident, (3) admitting into
evidence unsigned medical records over swift’s objection, (4)
failing to dismiss the petition for failure of proof, (5) failing to
make a finding on Morales’ average weekly wage based upon
94 	16 NebrAskA APPellATe rePOrTs

the evidence presented at the time of trial and ordering a further
hearing on this issue, (6) failing to make findings with regard to
Morales’ entitlement to benefits for temporary disability based
upon the evidence presented at the time of trial and ordering
a further hearing on this issue, (7) finding that Morales was
entitled to temporary disability benefits, (8) finding that Morales
was entitled to past and future medical benefits for her alleged
bilateral carpal tunnel syndrome and neck injury, (9) failing to
pass on the issue of whether a reasonable controversy existed,
and (10) failing to make a finding on attorney fees based upon
the evidence presented at the time of trial.
sTANDArD OF reVIeW
[1] 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. Olivotto
v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354 (2007).
[2] In determining whether to affirm, modify, reverse, or set
aside a judgment of the Workers’ Compensation Court review
panel, a higher appellate court reviews the findings of the trial
judge who conducted the original hearing. Id.
ANAlysIs
Whether March Award Was Final, Appealable Order.
[3,4] before reaching the legal issues presented for review,
it is the duty of an appellate court to settle jurisdictional issues
presented by a case. Merrill v. Griswold’s, Inc., 270 Neb. 458,
703 N.W.2d 893 (2005). 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 determination, the
court’s determination of less than all the issues is an interlocu-
tory order and is not a final order for the purpose of an appeal.
Id. The March award stated that a further hearing would be
MOrAles v. sWIFT beeF CO. 	95
Cite as 16 Neb. App. 90

held to determine average weekly wage, period of temporary
benefits, and attorney fees. because the March award explicitly
reserved certain issues for determination following a later hear-
ing, it was clearly an interlocutory order.
swift argues that the March award was a final order because
the issues reserved for later hearing were ripe for adjudication.
swift contends that the trial court’s failure to pass on the issues
in order to allow Morales to present additional evidence was
tantamount to a finding that Morales failed to meet her burden
of proof on the issue. swift further argues that it had to appeal
from the March award in order to preserve an objection to the
court’s reserving certain issues for a later resolution.
During the initial trial, swift offered exhibit 30, the only
exhibit on Morales’ wages. Morales’ counsel stated that Morales
would testify that she earned $10.50 an hour working a 40-hour
week. As the trial court tried to get the parties to agree on aver-
age weekly wage, swift’s counsel stated, “[swift] would ask for
leave, your Honor, to submit a late exhibit that would reflect the
stipulation of the parties on average weekly wage.” The court
responded, “I’ll give you a date where you’ve got to come and
you can submit an exhibit where you’ll agree. That’s what will
happen.” swift did not object at that time to a later hearing, but
swift did object at the beginning of the April hearing. Morales
did not present any additional evidence at the April hearing,
and the court’s finding regarding average weekly wage was
ultimately based upon exhibit 30. under these circumstances,
any error in reserving a determination on average weekly wage
was harmless. swift’s challenge to the propriety of the court’s
reserving certain issues for later determination would properly
have been raised in an appeal from the May order, which order
disposed of all claims and was a final, appealable order.
Whether Trial Court Was Divested of Jurisdiction.
[5,6] swift argues that the trial court did not have jurisdiction
to hold a subsequent hearing or enter a later order following
swift’s March 16, 2006, application for review. In support of its
argument, swift cites to Swain Constr. v. Ready Mixed Concrete
Co., 4 Neb. App. 316, 542 N.W.2d 706 (1996), where this court
determined that the trial court lacked jurisdiction to enter an
96 	16 NebrAskA APPellATe rePOrTs

order dismissing the plaintiff’s petition while plaintiff’s appeal
from a nonfinal order sustaining defendant’s demurrer was still
before this court. Although the Nebraska supreme Court has
not expressly overruled Swain Constr., in Holste v. Burlington
Northern RR. Co., 256 Neb. 713, 592 N.W.2d 894 (1999), the
supreme Court noted that the rule in Swain Constr. differed
from the rule adopted by a number of jurisdictions and from
its decision in Doolittle v. American Nat. Bank of Omaha, 58
Neb. 454, 78 N.W. 926 (1899). The Holste court proceeded to
hold that 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. That holding has
been reaffirmed by the supreme Court in Nebraska Nutrients
v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001); In re
Guardianship & Conservatorship of Woltemath, 268 Neb. 33,
680 N.W.2d 142 (2004); and In re Guardianship of Sophia M.,
271 Neb. 133, 710 N.W.2d 312 (2006), and we are bound to fol-
low it. A party may appeal from a court’s order only if the deci-
sion is a final, appealable order. Merrill v. Griswold’s, Inc., 270
Neb. 458, 703 N.W.2d 893 (2005). because the March award
was not an appealable order, swift’s appeal from that order did
not deprive the trial court of jurisdiction. This assignment of
error is without merit.
Whether Review Panel Erred in Failing to Address
Assignments of Error in First Application for
Review After It Consolidated Appeals.
[7,8] swift argues that the review panel erred in failing to
address the 17 assignments of error contained in the March 16,
2006, application for review. swift claims that the parties stipu-
lated to consolidation of the appeals, but the record does not
support this assertion and Morales denies any such stipulation
in her brief. Appellate jurisdiction of the subject matter can only
be conferred in the manner provided by statute and cannot be
conferred by stipulation of the parties. State v. Murphy, 15 Neb.
App. 398, 727 N.W.2d 730 (2007). Neb. rev. stat. §§ 48-179
(Cum. supp. 2006) and 48-182 (reissue 2004) each provide for
the filing of an application for review within 14 days of a final
MOrAles v. sWIFT beeF CO. 	97
Cite as 16 Neb. App. 90

order of the workers’ compensation court. Appellate jurisdiction
cannot be conferred by filing an application for review from
an interlocutory order; swift’s March 16 application for review
was of no effect. The only application for review filed within 14
days of a final order was the May 30 application for review, and
the error contained therein was the only error properly before
the review panel.
We cannot discern any reason preventing swift from simply
restating the same errors raised in its first application for review
in its second application. swift cannot claim to have acted in
reliance upon the order consolidating the applications for review
because that order was filed nearly 2 weeks after swift filed
its second application for review. The review panel ultimately
found in its order of remand that swift’s first application for
review was taken from an interlocutory order and was a nullity.
We agree.
Plain Error.
[9] Finally, swift alleges that the trial court committed plain
error in a multitude of respects. Plain error is error plainly
evident from the record and of such a nature that to leave it
uncorrected would result in damage to the integrity, reputa-
tion, or fairness of the judicial process. Miller v. Commercial
Contractors Equip., 14 Neb. App. 606, 711 N.W.2d 893 (2006).
After reviewing the record, we found no error so prejudicial that
to leave it uncorrected would cause a miscarriage of justice.
CONClusION
We conclude that the trial court’s March award was not a final
order and that swift’s application for review from that award
was of no effect and did not divest the trial court of jurisdiction.
The errors asserted solely in the first application, which was a
nullity, were not repeated or incorporated in the second applica-
tion, which was the only appeal sufficient to confer jurisdiction
upon the review panel. The parties cannot confer subject matter
jurisdiction by stipulation. Finding no plain error, we affirm the
review panel’s decision.
aFFIrmed .
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