Daugherty v. County of Douglas

For this reason, Bowman’s last assignment of error is with-
out merit.
CONCLUSION
After reviewing the record, we conclude that the district
court did not err in finding that the Department had jurisdic-
tion to revoke Bowman’s driver’s license. The Department
did not fail to properly offer and the hearing officer did not
fail to properly receive the sworn report, and Bowman waived
his objection to the admission of the sworn report by fail-
ing to insist on a ruling on his objection. The offer of the
sworn report by the Department established a prima facie
case against Bowman which shifted the burden of proof to
Bowman. Bowman did not present any evidence to rebut the
Department’s case. Additionally, the trial court properly found
that the sworn report had been properly acknowledged by
the notary public. For these reasons, the district court’s order
affirming the Department’s revocation of Bowman’s license is
affirmed in all respects.
A ffirmed.
Scott A. dAugherty, Appellee , v.
county of douglAS, AppellAnt.
778 N.W.2d 515
Filed January 12, 2010. 	No. A-09-290.
1. Workers’ Compensation. A workers’ compensation award is in full force and
effect, as originally entered, until the award is modified pursuant to the procedure
set forth in Neb. Rev. Stat. § 48-141 (Reissue 2004).
2. ____. Employers are prohibited from unilaterally modifying a workers’ compen-
sation award; rather, it is up to the compensation court to determine the date of a
change in disability.
3. ____. A modification award cannot be applied retroactively beyond the date the
application for the modification is filed.
4. Workers’ Compensation: Jurisdiction: Equity. The Workers’ Compensation
Court has no equity jurisdiction.
5. Workers’ Compensation: Penalties and Forfeitures. The 50-percent penalty
provision found in Neb. Rev. Stat. § 48-125 (Reissue 2004) applies when
there is no reasonable controversy and the employer refuses or neglects to pay
compensation.
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6. ____: ____. To avoid the payments assessable under Neb. Rev. Stat. § 48-125(1)
(Reissue 2004), an employer need not prevail in opposing an employee’s claim
for compensation, but the employer must have an actual basis, in law or fact, for
disputing the employee’s claim and refraining from payment or compensation.
Appeal from the Workers’ Compensation Court. Affirmed in
part, and in part reversed.
Donald W. kleine, Douglas County Attorney, and Bernard J.
Monbouquette for appellant.
Matthew A. Lathrop and kate E. placzek for appellee.
irwin, SieverS, and cArlSon, Judges.
irwin, Judge.
I. INTRODUCTION
This case involves the modification of Scott A. Daugherty’s
workers’ compensation benefits. The County of Douglas (the
County) filed an application for modification, requesting that
a single judge of the workers’ compensation court modify
Daugherty’s benefits both retroactively and prospectively. The
trial court granted the County’s request to modify Daugherty’s
benefits prospectively; however, the trial court modified the
award retroactive only to the time that the County filed its
application to modify. The trial court also awarded Daugherty
a 50-percent waiting-time penalty and attorney fees, because
the County had discontinued paying Daugherty his workers’
compensation benefits without a court-approved or court-
ordered modification. The County appealed the trial court’s
decision 	to 	a 	three-judge 	review 	panel 	of 	the 	Nebraska
Workers’ Compensation Court. The review panel affirmed
the decision of the trial court. The County now appeals to
this court.
On appeal, the County alleges that the trial court erred in
determining that a modification of the original award was
required for the periods of time when Daugherty had returned
to full-time employment, in modifying the award retroactive
only to the time of the filing of the application to modify, in
failing to credit the County for wages it paid to Daugherty, and
in awarding Daugherty a 50-percent waiting-time penalty. We
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Cite as 18 Neb. App. 228

affirm the trial court’s decision that a modification of the origi-
nal award was required for periods of time when Daugherty
had returned to work. We also affirm the portions of the trial
court’s order finding that modification of the award could be
retroactive only to the time of the filing of the application to
modify and finding that the County could not be given credit
for the wages it paid to Daugherty. however, we reverse that
portion of the trial court’s order awarding Daugherty a 50-
percent waiting-time penalty.
II. BACkgROUND
On May 1, 2002, Daugherty was employed as a deputy sher-
iff for the County. On that date, Daugherty suffered a compen-
sable injury while on the job, the details of which are not per-
tinent to this appeal. On December 17, 2004, the compensation
court entered an award for Daugherty. The relevant portions of
that award for this appeal are as follows:
At the time of said accident and injury, the plaintiff
was receiving an average weekly wage of $889.20 being
sufficient to entitle him to benefits of $528.00 from
March 26, 2003 through the date of hearing and for so
long thereafter as [Daugherty] shall remain temporarily
totally disabled.
In February 2005, Daugherty’s doctor informed the County
that Daugherty had reached maximum medical improvement
and was able to return to work with no restrictions. Daugherty
returned to work on February 8. On that date, the County
stopped paying Daugherty workers’ compensation benefits and
began to pay him his regular wages.
On December 5, 2005, Daugherty had surgery as a result
of his work-related injury. Daugherty was unable to work
from December 5, 2005, into January 2006. As a result of
Daugherty’s inability to work, the County resumed payment of
his workers’ compensation benefits. After Daugherty returned
to work on January 14, 2006, the County again stopped paying
his workers’ compensation benefits and began to pay him his
regular wages.
On January 23, 2007, Daugherty stopped working as a
result of his work-related injury. he has been unable to return
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to work since that time. The County resumed payment of his
workers’ compensation benefits in January 2007.
In August 2006, while Daugherty was still working for the
County, he filed a petition for further benefits. In the petition,
he alleged that he had received additional medical treatment
and had incurred additional medical bills since the entry of his
original award. he further alleged that the County had refused
to pay for these additional medical expenses.
The trial court issued an order addressing Daugherty’s peti-
tion in June 2007, after Daugherty had stopped working for the
County. In the order, the trial court found that Daugherty was
entitled to reimbursement for a portion of his medical expenses.
In addition, the court noted that it appeared that the County’s
decision to discontinue payment of Daugherty’s workers’ com-
pensation benefits during the times that Daugherty was able to
work constituted a unilateral modification of a workers’ com-
pensation award. The court indicated that such a modification
may not be permissible.
On August 3, 2007, the County filed an application for
modification of Daugherty’s workers’ compensation award.
The County requested that the court modify the original award
to reflect that “[Daugherty] was not entitled to [temporary
total disability] benefits for the period of February 8, 2005 to
December 3, 2005, and from January 8, 2006 to January 20,
2007, since he was not disabled from working at his deputy
sheriff job.” In addition, the County requested that the court
examine Daugherty’s current entitlement to temporary total
disability benefits.
On January 30, 2008, a hearing was held on the matter.
After hearing the evidence, the trial court found that a mate-
rial and substantial change of condition and decrease of inca-
pacity occurred effective March 13, 2006, when Daugherty’s
doctor opined that Daugherty had reached maximum medical
improvement. The court modified the original award to reflect
that Daugherty has experienced a 25-percent permanent loss
of earning power which entitles him to $148.20 per week
in disability benefits. however, the court further determined
that any modification of Daugherty’s workers’ compensation
benefits “cannot be applied retroactively beyond the date the
DAUghERTy v. COUNTy OF DOUgLAS 	231
Cite as 18 Neb. App. 228

application for modification was filed.” As such, the court
ordered the County to pay Daugherty his disability benefits
for the period of February 8 through December 3, 2005, and
from January 14, 2006, through January 21, 2007. The court
also awarded Daugherty a 50-percent waiting-time penalty and
attorney fees.
The County appealed the order of the trial court to a three-
judge review panel. The review panel affirmed the order of the
trial court. The County now appeals to this court.
III. ASSIgNMENTS OF ERROR
The County assigns four errors, which we renumber and
restate for our review. The County alleges that the trial court
erred in determining that a modification of the original award
was required for the periods of time when Daugherty had
returned to full-time employment, in modifying Daugherty’s
workers’ compensation award retroactive only to the time of
filing its application to modify, in failing to credit the County
for the wages it paid to Daugherty, and in awarding Daugherty
a 50-percent waiting-time penalty.
IV. ANALySIS
1. StAndArd of review
An appellate court may modify, reverse, or set aside a
Workers’ Compensation Court decision only when (1) the com-
pensation 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 find-
ings of fact by the compensation court do not support the order
or award. Cruz-Morales v. Swift Beef Co., 275 Neb. 407, 746
N.W.2d 698 (2008).
2. neceSSity of modificAtion
The County asserts that the trial court erred in determin-
ing that a modification of the original award was required
for the periods of time when Daugherty had returned to full-
time employment.
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[1] The statutory authority for modification of a workers’
compensation award is provided by Neb. Rev. Stat. § 48-141
(Reissue 2004). The relevant portion of that section provides
as follows:
[T]he amount of any agreement or award payable peri-
odically 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 . . . .
The Supreme Court has previously stated that “a workers’
compensation award is in full force and effect, as originally
entered, until the award is modified pursuant to the procedure
set forth in § 48-141.” Starks v. Cornhusker Packing Co., 254
Neb. 30, 38, 573 N.W.2d 757, 763 (1998).
The County argues that there was no need to modify the
award at the time that Daugherty came back to work, because
the original award provided that Daugherty was entitled to bene-
fits only for “so long . . . as [Daugherty] shall remain tempo-
rarily totally disabled.” The County alleges that Daugherty was
clearly not temporarily totally disabled at the time he returned
to work on a full-time basis.
[2] Even if we were to assume that Daugherty was no
longer temporarily totally disabled when he returned to work,
the Supreme Court has held that employers are prohibited
from unilaterally modifying a workers’ compensation award.
See Starks v. Cornhusker Packing Co., supra. The original
award did not set a specific end date for the termination of
Daugherty’s workers’ compensation benefits. Rather, the award
indicated that the benefits would terminate when Daugherty
was determined to be no longer temporarily totally disabled.
It is up to the compensation court to determine the date of a
change in disability. See ITT Hartford v. Rodriguez, 249 Neb.
445, 543 N.W.2d 740 (1996). As such, Daugherty’s award
could only be modified by following the procedures found in
§ 48-141. pursuant to § 48-141, absent an agreement by the
parties, only the court can modify its award.
DAUghERTy v. COUNTy OF DOUgLAS 	233
Cite as 18 Neb. App. 228

The County filed its application to modify on August 3,
2007. prior to that time, Daugherty’s workers’ compensation
award remained in full force and effect. Assuming without
deciding that the parties agreed to a modification of the award
when Daugherty returned to work at the sheriff’s office, there
is no evidence that either party brought such an agreement
to the attention of the workers’ compensation court. As such,
there is no evidence that the court approved such an agreement
and there is no evidence that the requirements for modification
established in § 48-141 were met.
We understand and appreciate the County’s arguments that
Daugherty enjoys a “windfall” and is unjustly enriched by
the County’s failure to adhere to the technical provisions of
§ 48-141. We agree with the comments of the review panel on
this topic:
The review panel appreciates the [County’s] argument
and agrees that it may seem unjust that one is required to
return to court for approval to terminate temporary total
disability benefits when all parties are in agreement that
the employee is no longer temporarily totally disabled.
From an administrative standpoint there must be several
hundred if not thousands of awards percolating through
the Nebraska Workers’ Compensation system where no
one has bothered to obtain a court order to terminate
benefits to which everyone has agreed the benefits are no
longer due and owing because the employee has returned
to work.
Ultimately, 	however, 	this 	is 	a 	matter 	for 	the 	Legislature
to address.
3. retroActive modificAtion
The County asserts that if a modification was required for
the period when Daugherty had returned to work, then the trial
court erred in modifying Daugherty’s workers’ compensation
award retroactive only to the time of the filing of its applica-
tion to modify.
[3] The Nebraska Supreme Court has clearly stated that “[a]
modification award cannot be applied retroactively beyond the
date the application for the modification is filed.” Starks v.
234 	18 NEBRASkA AppELLATE REpORTS

Cornhusker Packing Co., 254 Neb. 30, 38, 573 N.W.2d 575,
763 (1998). As such, the trial court did not have the authority
to modify Daugherty’s workers’ compensation benefits retro-
active to a date prior to the County’s filing of its application
to modify.
4. credit for wAgeS pAid
The County also alleges that if the modification of the award
cannot be applied retroactively beyond the date of the filing
of its application to modify, then the County should receive
credit for the wages it paid to Daugherty during the time peri-
ods when it discontinued his workers’ compensation benefits
because he had returned to full-time employment.
[4] The County’s argument is one based in equity. however,
the Workers’ Compensation Court has no equity jurisdiction.
See Risor v. Nebraska Boiler, 274 Neb. 906, 744 N.W.2d 693
(2008). The Nebraska Workers’ Compensation Court has only
the “authority to administer and enforce all of the provisions
of the Nebraska Workers’ Compensation Act, and any amend-
ments thereof, except such as are committed to the courts
of appellate jurisdiction.” Neb. Rev. Stat. § 48-152 (Reissue
2004). No Nebraska statute grants equity jurisdiction to the
Workers’ Compensation Court.
5. wAiting -time penAlty
Finally, the County alleges that the trial court erred in
awarding Daugherty a 50-percent waiting-time penalty because
the County “had a legitimate reason to refuse to pay [tempo-
rary total disability] benefits to [Daugherty] who was working
fulltime.” Brief for appellant at 17-18.
[5,6] Neb. Rev. Stat. § 48-125 (Reissue 2004) provides, in
pertinent part:
(1) Except as hereinafter provided, all amounts of
compensation 	payable 	under 	the 	Nebraska 	Workers’
Compensation 	Act 	shall 	be 	payable 	periodically 	in
accordance with the methods of payment of wages of
the employee at the time of the injury or death, except
that fifty percent shall be added for waiting time for all
delinquent payments after thirty days’ notice has been
DAUghERTy v. COUNTy OF DOUgLAS 	235
Cite as 18 Neb. App. 228

given of disability or after thirty days from the entry
of a final order, award, or judgment of the compensa-
tion court.
The 50-percent penalty provision applies when there is no
reasonable controversy and the employer refuses or neglects
to pay compensation. See Briggs v. Consolidated Freightways,
234 Neb. 410, 451 N.W.2d 278 (1990). To avoid the payments
assessable under § 48-125(1), an employer need not prevail
in opposing an employee’s claim for compensation, but the
employer must have an actual basis, in law or fact, for disput-
ing the employee’s claim and refraining from payment or com-
pensation. Musil v. J.A. Baldwin Mfg. Co., 233 Neb. 901, 448
N.W.2d 591 (1989).
Upon our review, we conclude that the trial court erred in
awarding Daugherty a 50-percent waiting-time penalty. The
County had a reasonable basis for refraining from paying
Daugherty’s workers’ compensation benefits during the periods
of time when he had returned to work and was receiving his
regular wages. The County’s belief that it should not have to
make “double payments” to Daugherty while he was working
is not unreasonable. Until this decision today, no Nebraska
precedent has addressed this precise factual circumstance. As
such, we reverse that portion of the trial court’s order awarding
Daugherty a 50-percent waiting-time penalty.
V. CONCLUSION
We affirm the trial court’s decision that a modification of
the original award was required for periods of time when
Daugherty had returned to work. We also affirm the portions
of the trial court’s order finding that modification of the award
could be retroactive only to the time of the filing of the appli-
cation to modify and that the County could not be given credit
for the wages it paid to Daugherty. however, we reverse that
portion of the trial court’s order awarding Daugherty a 50-
percent waiting-time penalty.
A ffirmed in pArt, And in pArt reverSed.
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