Holmes v. Chief Indus.

edMon t. holMes , appellant , v .
C hief industries , inC., appellee .
747 N.W.2d 24
Filed March 18, 2008. 	No. A-07-550.
1. Workers’ Compensation: Appeal and Error. 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. ____: ____. Upon appellate review, the findings of fact made by the trial judge of
the compensation court have the effect of a jury verdict and will not be disturbed
unless clearly wrong.
3. Statutes. Statutory interpretation presents a question of law.
4. Workers’ Compensation: Appeal and Error. With respect to questions of law
in workers’ compensation cases, an appellate court is obligated to make its
own determination.
5. Workers’ Compensation. 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 Neb.
Rev. Stat. § 48-139 (Reissue 2004), shall be final, but the amount of any agree-
ment or award payable periodically may be modified at any time by agreement of
the parties with the approval of the Nebraska Workers’ Compensation Court.
6. Judgments. The meaning of a judgment is determined, as a matter of law, by
its contents.
7. ____. In the absence of an ambiguity, the effect of a judgment must be declared in
light of the literal meaning of language used.
8. ____. If the language of a judgment is ambiguous, there is room for construction.
9. ____. In ascertaining the meaning of an ambiguous judgment, resort may be had
to the entire record.
10. Judgments: Words and Phrases. A judgment is ambiguous if a word, phrase, or
provision has at least two reasonable but conflicting meanings.
11. Judgments. The fact that the parties have suggested opposing meanings of a dis-
puted instrument does not necessarily compel the conclusion that the instrument
is ambiguous.
12. Workers’ Compensation. An employer cannot unilaterally change an employee’s
workers’ compensation benefits.
Appeal from the Workers’ Compensation Court. Reversed and
remanded with directions.
Brenda S. Spilker and Amanda A. Dutton, of Baylor, Evnen,
Curtiss, Grimit & Witt, l.l.P., for appellant.
hOlMES v. ChIEF INDUS. 	589
Cite as 16 Neb. App. 589
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Mark A. Fahleson and Sarah S. Pillen, of Rembolt ludtke,
l.l.P., for appellee.
sievers , C arlson, and M oore, Judges.
sievers, Judge.
Chief Industries, Inc. (Chief), sought and obtained a reduc-
tion in Edmon T. holmes’ workers’ compensation benefits via
an order from a Nebraska Workers’ Compensation Court trial
judge. holmes appealed this order to a compensation court
review panel that found that holmes’ award had been modi-
fied by agreement of the parties pursuant to Neb. Rev. Stat.
§ 48-141(1) (Reissue 2004), and as a result, the trial judge’s
reduction of benefits was affirmed. holmes has now appealed to
this court, arguing that no such modification ever occurred.
FACTUAl AND PROCEDURAl BACKGROUND
On September 10, 1997, and September 4, 1998, holmes
was employed as a truckdriver by Chief. On both of those
dates, holmes sustained a compensable injury while on the
job, the details of which are not pertinent to this appeal. On
March 22, 2000, the compensation court entered an award for
holmes. The relevant portions of that award for this appeal are
as follows:
At the time of the accident and injury of September 10,
1997, [holmes] was receiving an average weekly wage
of $340.63 being sufficient to entitle him to benefits of
$227.09 for temporary total disability from September
11, 1997 through October 6, 1997, July 23, 1998 through
August 6, 1998 and May 26, 1999 through the date of
hearing and for so long in the future as [Holmes] shall
remain temporarily totally disabled.
(Emphasis supplied.)
On October 9, 2003, holmes’ former attorney, Tony Brock,
made a motion to the compensation court for an order approv-
ing a lien for attorney fees. On October 16, the compensation
court held a hearing in which Chief and Brock participated,
but holmes was not in attendance or represented. Brock had
stated in his motion for approval of an attorney’s lien that he no
longer represented holmes, and thus he was only appearing for
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himself. On October 24, the court entered an order finding that
Brock was entitled to a lien. The order provided that “Brock
represented that [holmes] now receives permanent indemnity
of $45.42 per week which entitles . . . Brock to an attorney’s
fee of $15.14 per week.” Chief consequently reduced holmes’
periodic disability payments by an amount equal to Brock’s
attorney’s lien.
On January 4, 2006, holmes filed a motion with the compen-
sation court, asserting, among other things, that no modification
had been made to the March 22, 2000, award, which as set forth
above gave him a “running” award of temporary total disabil-
ity (TTD), but that Chief had failed to pay holmes his weekly
benefits required by the running award of TTD. On August 14,
2006, the compensation court trial judge entered an order which
found, among other things, that in accordance with § 48-141, a
modification had been made to the original award.
holmes timely appealed the August 14, 2006, order to a
compensation court review panel, which affirmed the trial
judge’s order and dismissed the appeal, citing our decision in
Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d
562 (2006). holmes now appeals to this court.
ASSIGNMENT OF ERROR
holmes assigns error to the compensation court’s finding
that the order of October 24, 2003, was a modification of the
March 22, 2000, award, pursuant to § 48-141(1).
STANDARD OF REVIEW
[1-4] 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. Ortiz v.
Cement Products, 270 Neb. 787, 708 N.W.2d 610 (2005). Upon
appellate review, the findings of fact made by the trial judge of
the compensation court have the effect of a jury verdict and will
hOlMES v. ChIEF INDUS. 	591
Cite as 16 Neb. App. 589

not be disturbed unless clearly wrong. Id. Statutory interpreta-
tion presents a question of law. Id. With respect to questions
of law in workers’ compensation cases, an appellate court is
obligated to make its own determination. Id.
ANAlySIS
[5] holmes contends that there was no modification of the
March 22, 2000, award of continuing TTD payments and that
the order of October 24, 2003, awarding Brock an attorney’s
lien is not a modification of the March 22, 2000, award,
pursuant to § 48-141. Resolution of this issue requires us to
determine the meaning of the October 24, 2003, order as it
relates to the provisions of § 48-141. This presents a question
of law about which we must make our own determination.
See Ortiz v. Cement Products, supra. The pertinent portion of
§ 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 fol-
lows: (1) At any time by agreement of the parties with the
approval of the Nebraska Workers’ Compensation Court[.]
(Emphasis supplied.)
[6-11] We now turn to the meaning of the compensation
court’s judgment entered on October 24, 2003, with respect
to Brock’s application for an attorney’s lien. The meaning of
a judgment is determined, as a matter of law, by its contents.
See Kerndt v. Ronan, 236 Neb. 26, 458 N.W.2d 466 (1990).
In the absence of an ambiguity, the effect of a judgment must
be declared in light of the literal meaning of language used.
Dougherty v. Swift-Eckrich, 251 Neb. 333, 557 N.W.2d 31
(1996). If the language of a judgment is ambiguous, there is
room for construction. Label Concepts v. Westendorf Plastics,
247 Neb. 560, 528 N.W.2d 335 (1995). In ascertaining the
meaning of an ambiguous judgment, resort may be had to the
entire record. Id. A judgment is ambiguous if a word, phrase, or
provision has at least two reasonable but conflicting meanings.
592 	16 NEBRASKA APPEllATE REPORTS

See Shivvers v. American Family Ins. Co., 256 Neb. 159, 589
N.W.2d 129 (1999); Kerndt v. Ronan, supra. however, the fact
that the parties have suggested opposing meanings of the dis-
puted instrument does not necessarily compel the conclusion
that the instrument is ambiguous. Fraternal Order of Police v.
County of Douglas, 259 Neb. 822, 612 N.W.2d 483 (2000).
With these background principles in place, we turn to Davis
v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562
(2006), relied upon by the review panel. Davis is helpful in
determining whether the October 24, 2003, order of the com-
pensation court constituted a modification of the award of
March 22, 2000, under § 48-141(1).
In Davis v. Crete Carrier Corp., supra, John Davis had suf-
fered a compensable injury while working for Crete Carrier
Corporation (Crete), which injury resulted in an award. Davis’
initial award entitled him to disability benefits “‘for so long in
the future as [Davis] shall remain totally disabled as a result
of [this] accident and injury.’” Id. at 255, 725 N.W.2d at 574.
Subsequently, Davis and Crete filed a vocational rehabilita-
tion plan that included a stipulation providing that “Davis and
[Crete] ‘do agree to the above [vocational rehabilitation] plan
and hereby stipulate to the entry of an Order requiring the pay-
ment of temporary disability compensation to [Davis] while
[he] is undergoing the vocational rehabilitation plan.’” Id.
(emphasis omitted). Clearly, in Davis, the parties stipulated to
a specific rehabilitation plan, as well as for payment of TTD
benefits “while” Davis was pursuing the plan. Pursuant to this
stipulation, the trial court entered an order which provided that
Crete was to pay Davis temporary disability benefits while he
underwent vocational rehabilitation—the obvious corollary of
which was “if not in the plan, no TTD.”
When Davis completed his vocational rehabilitation, Crete
ceased paying him temporary disability benefits. Davis made
a motion to the compensation court, alleging that Crete had
unilaterally ceased paying him benefits and was in arrears.
Crete argued that the previous stipulation that payment of
benefits would run until Davis completed vocational rehabilita-
tion, and the court’s order that memorialized that stipulation,
had modified the original award by agreement in accordance
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Cite as 16 Neb. App. 589

with § 48-141(1). We found that Crete was correct, that is, that
the underlying stipulation constituted an agreement between
the parties pursuant to § 48-141(1), that such agreement was
approved by the compensation court, and that thus the original
award had been modified. Reduced to its essence, Davis finds
that the parties’ stipulation had set an “end date” for TTD
benefits, marked by either the completion of the specific plan
or Davis’ failure to complete it—thus the importance of the
stipulation for payment of TTD benefits only “while” he was in
the specifically agreed-to plan. This is materially different from
the “running award of TTD” held by holmes; it goes without
saying that a stipulation between the parties is an “agreement,”
and in Davis, the stipulation was approved and implemented
by the compensation court’s decision. None of these things are
present in the instant case.
Consequently, the compensation court incorrectly relied on
Davis to find that there was a modifying agreement. The com-
pensation court’s rationale was as follows, but it is fundamen-
tally flawed given the facts of the present case:
[T]he submission by the parties of the issue of counsel’s
lien, and the Court’s subsequent order approving pay-
ment of permanent disability benefits in specific amounts
to counsel and [holmes], arguably satisfies § 48-141. In
other words, the Court, in its order of October 24, 2003,
directed the payment of permanent disability benefits to
[holmes] based upon the obvious agreement of the parties
which, in effect, modified the previous Award.
however, nowhere in the record can we locate the “obvious
agreement” the compensation court judge references. To find
an agreement, the trial judge used the representations of Brock,
holmes’ former attorney, made at the October 16, 2003, hear-
ing that holmes was “now” receiving permanent disability. But,
Brock was not representing holmes at the time, holmes was
not present, and as a matter of law, former counsel’s representa-
tions to the court about the status of his former client’s case and
his present benefits, absent appropriate authorization, cannot
create a modifying agreement between the parties to the award,
namely, holmes and Chief. Put another way, Brock lacked the
authority to bind his former client to anything. In short, what
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the trial judge said was an “obvious agreement of the parties”
is not in evidence, and could not be formed by holmes’ former
lawyer, who was appearing only to secure an attorney’s lien
and had no authority to bind holmes to a modification of his
running award of TTD.
[12] Chief asserts in its brief that an agreement between
the parties did occur, but the evidence it uses to support this
assertion is lacking as a matter of law. Chief claims that in the
court’s statement in its October 24, 2003, order that “Brock
represented that [holmes] now receives permanent indemnity,”
the use of the word “now” demonstrates that a modification had
occurred. But, at best, Brock’s statement merely characterizes
the category of benefits Brock’s former client was getting at
the time of the lien hearing, and whose characterization he was
repeating is unknown. The fact that Chief may have unilaterally
changed holmes’ benefits from TTD to permanent partial dis-
ability benefits does not constitute a court-approved agreement
for modification. As we noted in Davis v. Crete Carrier Corp.,
15 Neb. App. 241, 725 N.W.2d 562 (2006), the employer can-
not unilaterally change the worker’s benefits. See ITT Hartford
v. Rodriguez, 249 Neb. 445, 543 N.W.2d 740 (1996) (employer
was not free to unilaterally determine, based on information
received from physician, that employee was no longer tempo-
rarily totally disabled).
Brock’s use of the term “now receives” could implicitly be
contrasted against “back then, before the award was modified.”
In other words, while Chief could have “modified” the amount
of money it was paying holmes, mere unilateral modification
does not satisfy the requirements of § 48-141(1). In the final
analysis of this case, there is simply no evidence of an agree-
ment between holmes and Chief to modify the running award.
Therefore, in the context of Brock’s seeking a lien against
holmes’ benefits, the representation of what holmes “now
receives” allows, at most, the court to determine the amount
that Brock should be paid by Chief for his lien from present
benefits—but it does not prove the existence of the prerequi-
site agreement of the parties that has been approved by the
court, as is required under § 48-141(1). Chief’s further argu-
ment, that the inclusion of Chief’s attorney in the October 16,
hOlMES v. ChIEF INDUS. 	595
Cite as 16 Neb. App. 589

2003, hearing shows that the hearing was not intended solely
to address the issue of Brock’s attorney’s lien, is not persua-
sive. Regardless of why Chief’s lawyer was there, holmes was
not there and could not be bound by what his former lawyer
told the judge, which would not be evidence in any event.
Moreover, the pleading generating the hearing, Brock’s motion
for approval of an attorney’s lien, quite obviously “sets the
agenda” for the hearing—which was only Brock’s entitlement
to an attorney’s lien. Whether holmes and Chief had agreed to
a modification of holmes’ running award of TTD, which agree-
ment should be approved at the hearing under § 48-141(1), was
not noticed for hearing, and no evidence was introduced at the
hearing on that subject.
Therefore, because no agreement existed between holmes
and Chief regarding a modification of the March 22, 2000,
award, we find that the compensation court erred when it found
that such a modification had occurred.
CONClUSION
For the reasons stated above, we reverse the compensa-
tion court’s finding that the October 24, 2003, order modi-
fied the March 22, 2000, award. We remand this cause to the
compensation court review panel with directions to vacate its
dismissal of holmes’ appeal and for such panel to remand the
cause to the trial judge for further proceedings consistent with
this opinion.
reversed and reManded with direCtions .
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