Cruz-Morales v. Swift Beef Co.

maria cruz -moraLeS, appeLLee , v .
S wift beef company , appeLLant .
746 N.W.2d 698
Filed april 4, 2008. 	No. s-07-812.
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. ____: ____. an appellate court is obligated in workers’ compensation cases to
make its own determinations as to questions of law.
3. Workers’ Compensation: Jurisdiction: Statutes. as a statutorily created court,
the Workers’ Compensation Court is a tribunal of limited and special jurisdiction
and has only such authority as has been conferred on it by statute.
4. Workers’ Compensation: 	Default 	Judgments. 	Under 	Neb. 	rev. 	stat.
§ 48-162.03(1) (reissue 2004), the Workers’ Compensation Court has authority to
rule on motions for default judgment.
5. Workers’ Compensation: Courts. the Workers’ Compensation Court may not
establish procedural rules that are more restrictive or onerous than those of the
trial courts in this state.
6. ____: ____. When deciding whether a Workers’ Compensation Court rule is more
restrictive or onerous than the procedural rules of the state trial courts, a court
should consider whether the rule restricts the procedural safeguards offered in the
state’s trial courts.
7. Workers’ Compensation: Default Judgments: Notice. Under Workers’ Comp.
Ct. r. of proc. 3 (2006), a party in default for failure to answer or appear is
entitled to notice of a default judgment motion.
appeal from the Workers’ Compensation Court. reversed and
remanded.
Jenny L. panko, of baylor, evnen, Curtiss, grimit & Witt,
L.L.p., for appellant.
Lee s. Loudon and ami M. Huff, of Law office of Lee s.
Loudon, p.C., L.L.o., for appellee.
heavican , 	c.J., 	wright , 	connoLLy , 	gerrard , 	S tephan ,
mccormack , and miLLer -L erman , JJ.
CrUz-MoraLes v. sWIFt beeF Co. 	407
Cite as 275 Neb. 407
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

408 	275 Nebraska reports
connoLLy , J.
Following an injury at work, Maria Cruz-Morales filed an
action against her employer, swift beef Company (swift beef).
swift beef failed to answer, and Cruz-Morales moved for a
default judgment. after a trial judge of the Nebraska Workers’
Compensation Court entered a default judgment and award,
swift beef moved to vacate the default judgment. swift beef
argued that the Workers’ Compensation Court lacked statutory
authority to enter default judgments and, in the alternative, that
swift beef did not receive proper notice of the default judg-
ment motion or hearing. the trial judge overruled swift beef’s
motion, and swift beef appealed to the Workers’ Compensation
Court’s review panel. the review panel affirmed the default
judgment and award.
this appeal presents the question whether the Workers’
Compensation Court has statutory authority to enter default
judgments and, if so, whether swift beef was entitled to notice
of the default judgment motion and hearing. We reverse, and
remand. We conclude that the compensation court has author-
ity to enter a default judgment when a party fails to answer or
appear. but the defaulting party must be given notice of the
motion for default judgment under Workers’ Comp. Ct. r. of
proc. 3 (2006).
baCkgroUND
In september 2006, Cruz-Morales filed a petition against
swift beef in the Workers’ Compensation Court. the petition
alleged that she injured her back in a slip-and-fall accident
while working for swift beef in september 2005. In November
2006, Cruz-Morales moved for default judgment because swift
beef had not filed an answer. attached to the motion was an
affidavit stating the Workers’ Compensation Court had issued
summons to swift beef and its registered agent. the affidavit
also stated that the court had received signed returned receipts
from swift beef and the agent.
the trial judge held a hearing on Cruz-Morales’ motion for
default judgment. swift beef did not appear. Cruz-Morales
testified. she offered, and the trial judge received, 13 exhibits.
these exhibits included medical records and a list of weekly

earnings. In addition, the record reflects a loss of earning
capacity analysis by David Utley, a court-appointed vocational
rehabilitation counselor, and a loss of earning capacity rebuttal
report by gayle Hope, Cruz-Morales’ expert. Utley opined that
Cruz-Morales sustained a loss of earning capacity of about 15
percent. Hope concluded that Cruz-Morales had sustained a 69-
percent loss of earning capacity.
on December 8, 2006, swift beef moved to stay entry of the
order on Cruz-Morales’ default judgment motion. the motion
to stay alleged that swift beef did not attend the default judg-
ment hearing because it had not received notice of the motion
or the hearing. according to swift beef’s motion to stay, swift
beef learned of the default judgment motion on December 8.
the motion to stay requested that the trial judge stay entry
of an order to allow swift beef the opportunity to assess and
defend its interests in the matter.
that same day, however, the trial judge entered a default
judgment and award against swift beef. the judge decided
Cruz-Morales was entitled to, among other things, future medi-
cal care and vocational rehabilitation. she also determined that
Utley’s opinion as to Cruz-Morales’ loss of earning capac-
ity had been rebutted by Hope. the judge adopted Hope’s
opinion that Cruz-Morales had suffered a 69-percent loss of
earning capacity.
Following entry of the court’s order, swift beef moved
for an order (1) correcting a patent error in the default judg-
ment and award under Neb. rev. stat. § 48-180 (reissue
2004) or, in the alternative, (2) vacating the default judgment
order. as the basis for both motions, swift beef argued that
the compensation court lacked statutory authority to enter
a default judgment upon a party’s failure to file an answer.
swift beef also argued in the alternative that the default judg-
ment was improper because swift beef was not properly
served with notice of the default judgment motion or hear-
ing. In support of the second argument, swift beef explained
that Cruz-Morales’ motion and notice of hearing was served
on the following: swift beef Company, p.o. box 540010,
omaha, Ne 68154-0010. swift beef presented evidence show-
ing this address was the mailing address for sedgwick Claims
CrUz-MoraLes v. sWIFt beeF Co. 	409
Cite as 275 Neb. 407

410 	275 Nebraska reports
Management services (sedgwick). sedgwick was the third-
party administrator for swift beef’s workers’ compensation
claims through July 31, 2006. sedgwick, however, was no
longer 	swift 	beef’s 	third-party 	administrator 	when 	Cruz-
Morales sent the notice of the default judgment motion to that
address. swift beef also presented evidence that the proper
post office box for swift beef claims, when sedgwick was still
swift beef’s third-party administrator, was p.o. box 540040.
and p.o. box 540010 was the address for claims involving
Conagra beef Company, not swift beef. although swift beef
claimed it did not receive proper notice of the default judgment
motion, the parties agreed that swift beef was properly served
with the petition.
In a December 15, 2006, order, the trial judge overruled
swift beef’s motions. the judge concluded that “rule 5 of the
Nebraska rules of pleading calls into question [swift beef’s]
entitlement to notice of default when it has failed to answer.”
the judge further determined there was no patent and obvi-
ous error in her order granting default judgment, so swift
beef’s motion under § 48-180 was improper. Finally, the judge
determined she had authority to consider and rule on motions
for default judgment. the judge reasoned that Neb. rev. stat.
§ 48-162.03 (reissue 2004) grants the compensation court gen-
eral authority to hear and decide motions. but the judge con-
cluded the compensation court did not have statutory authority
to stay or vacate a default judgment.
swift beef appealed both the December 8 and 15, 2006,
orders to the court’s review panel. swift beef argued that the
trial judge erred in granting the default judgment and in deny-
ing swift beef’s motions to stay, to correct a patent error under
§ 48-180, and to vacate. to support these alleged errors, swift
beef argued that the judge lacked authority to enter default
judgments and that, in the alternative, swift beef was not pro-
vided proper notice of the default judgment motion. swift beef
also claimed that the judge erred in finding Utley’s opinion had
been rebutted and in awarding Cruz-Morales a 69-percent loss
of earning power. Finally, swift beef argued the judge erred in
awarding Cruz-Morales payment of medical bills, future medi-
cal treatment, and vocational rehabilitation.

the review panel consolidated and reduced the errors swift
beef had alleged to three: the trial judge erred in (1) entering
a default judgment against swift beef, (2) denying swift beef’s
various motions to negate the default judgment, and (3) award-
ing benefits to Cruz-Morales. the review panel first determined
that the trial judge had authority to enter the default judgment
under § 48-162.03. the review panel also decided that the trial
judge was correct in concluding she lacked authority to rule
on a motion to vacate. the review panel rejected swift beef’s
argument that it was entitled to notice of the default judgment
motion and hearing. Finally, the review panel concluded that
the trial judge did not err in awarding a 69-percent loss of earn-
ing capacity, in awarding vocational rehabilitation benefits, or
in awarding future medical benefits. the review panel affirmed
the trial judge’s orders.
assIgNMeNts oF error
swift beef assigns, restated and consolidated, that the review
panel erred in (1) deciding that the Workers’ Compensation
Court has authority to enter a default judgment, (2) deciding
the trial judge did not have authority to vacate a default judg-
ment, (3) deciding swift beef was not entitled to notice of the
default judgment motion and hearing, and (4) affirming the trial
judge’s award of a 69-percent loss of earning capacity, voca-
tional rehabilitation benefits, and future medical care.
staNDarD oF reVIeW
[1] 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 mak-
ing of the order, judgment, or award; or (4) the findings of fact
by the compensation court do not support the order or award.1
[2] an appellate court is obligated in workers’ compensation
cases to make its own determinations as to questions of law.2
1 see Lowe v. Drivers Mgmt., Inc., 274 Neb. 732, 743 N.W.2d 82 (2007).
2 Id.
CrUz-MoraLes v. sWIFt beeF Co. 	411
Cite as 275 Neb. 407

412 	275 Nebraska reports
aNaLYsIs
the workerS’ compenSation court haS authority
to enter defauLt J udgmentS
[3] as a statutorily created court, the Workers’ Compensation
Court is a tribunal of limited and special jurisdiction and has
only such authority as has been conferred on it by statute.3
swift beef contends that there is no provision in the Nebraska
Workers’ Compensation act granting the compensation court
authority to enter a default judgment. swift beef argues that
the “Workers’ Compensation act does not speak to default
judgments anywhere.”4 Cruz-Morales contends that § 48-162.03
gives the court the authority to grant default judgments.
section 48-162.03(1) provides in relevant part:
the Nebraska Workers’ Compensation Court or any judge
thereof may rule upon any motion addressed to the court
by any party to a suit or proceeding, including, but
not limited to, motions for summary judgment or other
motions for judgment on the pleadings but not including
motions for new trial or motions for reconsideration.
[4] From the plain language of § 48-162.03(1), the Workers’
Compensation Court has authority to rule on motions for default
judgment. the statute gives the court authority to rule upon
“any motion”5 except motions for new trial or motions for
reconsideration. a motion for default judgment is not a motion
for new trial or a motion for reconsideration.
In deciding the compensation court had authority to enter
default judgments, the review panel did not rely on the “any
motion” language in § 48-162.03(1). Instead, the panel con-
cluded that Cruz-Morales’ motion for default judgment was a
motion for judgment on the pleadings. but swift beef argues,
and Cruz-Morales agrees in her brief, that the motion for default
judgment was not a motion for judgment on the pleadings.
swift beef further argues that even if the motion for default
judgment is equivalent to a motion for summary judgment, it
3 Zach v. Nebraska State Patrol, 273 Neb. 1, 727 N.W.2d 206 (2007).
4 brief for appellant at 12.
5 § 48-162.03(1) (emphasis supplied).

would not have been proper for the court to grant summary
judgment because genuine issues of fact remained. We need not
reach the issue of whether a motion for default judgment is a
motion for judgment on the pleadings or a motion for summary
judgment. the court’s authority under § 48-162.03(1) is not
limited to such motions. Instead, the statute’s language grants
the court broad authority to rule on any motion except motions
for new trial and motions for reconsideration. therefore, we
conclude that the Workers’ Compensation Court has statutory
authority to enter default judgments.
S wift beef waS entitLed to notice of the motion
for defauLt J udgment and hearing
Having decided that the Workers’ Compensation Court does
have authority to enter default judgments, we next determine
whether the review panel erred in affirming the trial judge’s
entry of default judgment. swift beef argues that the entry of
default judgment was improper because swift beef did not
receive notice of the default judgment motion. although Cruz-
Morales served notice of the motion and hearing, the notice
was sent to the wrong address. swift beef does not argue that
it did not receive notice of the original petition, just that it did
not receive notice of the default judgment motion.
swift beef argued before the review panel that rule 3 of the
Nebraska Workers’ Compensation Court rules of procedure
required notice of the default judgment motion. rule 3(b) pro-
vides: “every pleading subsequent to the petition, every written
motion, every document relating to discovery or disclosure,
and every written notice, appearance, designation of record on
appeal, and similar document shall be served upon each of the
parties by the initiating party.” at the time of the default judg-
ment and award, rule 3(b)(3) further provided: “Notice of hear-
ing shall be mailed or personally delivered to opposing counsel
or party, if unrepresented, three full days prior to hearing.”
the review panel determined that rule 3 must yield to Neb.
Ct. r. of pldg. in Civ. actions 5 (rev. 2003). the first sentence
of rule 5(a) is similar to rule 3. It states:
except as otherwise provided in these rules or by stat-
ute, every order required by its terms to be served, every
CrUz-MoraLes v. sWIFt beeF Co. 	413
Cite as 275 Neb. 407

414 	275 Nebraska reports
pleading subsequent to the original complaint . . . every
paper relating to discovery required to be served upon
a party unless the court otherwise orders, every written
motion other than one which may be heard ex parte, and
every written notice, appearance, demand, offer of judg-
ment, designation of record on appeal, and similar paper
shall be served upon each of the parties.
but rule 5(a) has an additional sentence that applies when a party
is in default for failure to appear: “No service need be made on
parties in default for failure to appear except that pleadings
asserting new or additional claims for relief against them shall
be served upon them in the manner provided for service of a
summons.” this additional clause in rule 5(a) establishes that
a party in default for failure to appear is not entitled to notice
when the plaintiff moves for default judgment. our common
law similarly provides that a party who is served with sum-
mons and a copy of the complaint and fails to answer or make
an appearance is not entitled to further notice of a hearing.6
rule 3 does not mention parties in default. the review panel
recognized the conflict between rule 5 of the Nebraska rules of
pleading in Civil actions and the Workers’ Compensation Court
rule 3. the review panel explained, “[rule 3] mandates the need
to serve the defaulting party with notice of the request for the
entry of a default judgment while [rule 5] does not.”
In deciding rule 5 applied instead of rule 3, the review panel
first reasoned that rule 5 applies to all civil actions except when
“a conflict arise[s] with statutes otherwise applicable to a given
matter.” the review panel was apparently referring to Neb. Ct.
r. of pldg. in Civil actions 1 (rev. 2004). that rule provides,
“these rules govern pleading in civil actions . . . to the extent
not inconsistent with statutes governing such matters.” the
review panel “[found] no specific statute that would support
a credible argument that the procedural rule of the Nebraska
Workers’ Compensation Court ought to supersede or supplant
rule 5 as adopted by the Nebraska supreme Court.” We dis-
agree. Neb. rev. stat. § 48-168 (Cum. supp. 2006) provides:
6 see State on behalf of A.E. v. Buckhalter, 273 Neb. 443, 730 N.W.2d 340
(2007).

the Nebraska Workers’ Compensation Court shall not
be bound . . . by any technical or formal rules of proce-
dure, other than as herein provided, but may make the
investigation in such manner as in its judgment is best
calculated to ascertain the substantial rights of the parties
and to carry out justly the spirit of the Nebraska Workers’
Compensation act.
Under Neb. rev. stat. § 48-163 (Cum. supp. 2006), the com-
pensation court “may adopt and promulgate all reasonable rules
and regulations necessary for carrying out the intent and purpose
of the Nebraska Workers’ Compensation act.” Contrary to the
review panel’s conclusion, §§ 48-163 and 48-168 show that the
Nebraska Workers’ Compensation Court rules of procedure,
including rule 3, can supersede or supplant the Nebraska rules
of pleading in Civil actions, including rule 5.
[5] In rejecting rule 3, the review panel also relied on Phillips
v. Monroe Auto Equip. Co.7 there, we held that the compensa-
tion court does not have authority to establish procedural rules
that are more restrictive than rules applicable to the state trial
courts. In Phillips, we concluded that the compensation court
acted without or in excess of its powers when it excluded expert
witness testimony under a Nebraska Workers’ Compensation
Court rule. We recognized that § 48-163 gives the compensa-
tion court authority to “‘adopt and promulgate all reasonable
rules and regulations necessary for carrying out the intent and
purpose of the Nebraska Workers’ Compensation act.’”8 We
explained that the purpose of § 48-163 is to “allow the com-
pensation court to ‘make the investigation in such manner as in
its judgment is best calculated to ascertain the substantial rights
of the parties and to carry out justly the sprit of the Nebraska
Workers’ Compensation act.’”9 We held, however, that the
“procedural, evidentiary, and discovery rules established by the
7 Phillips v. Monroe Auto Equip. Co., 251 Neb. 585, 558 N.W.2d 799
(1997).
8 Id. at 590, 558 N.W.2d at 803.
9 Id. at 595, 558 N.W.2d at 806.
CrUz-MoraLes v. sWIFt beeF Co. 	415
Cite as 275 Neb. 407

416 	275 Nebraska reports
compensation court may not be more restrictive or onerous than
those of the trial courts in this state.”10
Under Phillips, rule 3 would be valid and would apply here,
entitling swift beef to notice of the default judgment motion
and hearing, unless rule 3 is “more restrictive or onerous” than
rule 5 or our common law. the review panel opined that “rule
3 places a burden upon a moving party that is more restrictive
or onerous than those that govern the movant in the trial courts
in Nebraska.” the panel reasoned that rule 3 required the mov-
ing party to give notice of a hearing on a motion for default
judgment although a similar movant in state trial court would
not be required to give such notice. of course, swift beef views
restrictiveness from a different perspective. swift beef con-
tends that rule 5 is the more restrictive rule because it restricts
the situations in which a party is entitled to notice.
In deciding which of these perspectives is more appropriate,
we consider the rationale underlying our holding in Phillips.
the trial court in Phillips had excluded expert testimony under
Workers’ Comp. Ct. r. of proc. 4(D) (1994). When Phillips
was decided, that rule provided that an expert witness would
not be allowed to testify if a written report from the expert wit-
ness had not been timely disclosed. on appeal, we explained
that the sanction in rule 4 did not provide adequate procedural
safeguards equal to those used in the state trial courts. We stated
that the state civil courts would not use a sanction prohibiting
a party from introducing otherwise admissible evidence unless
all parties had received notice of the possible sanction and were
given an opportunity to be heard. but rule 4 did not require a
similar procedure before the compensation court could impose
the sanction.
[6] In Phillips, we held that “at a minimum, the parties
litigating before a compensation court are permitted to intro-
duce evidence which is procedurally and substantively admis-
sible in the trial courts of this state.”11 We also concluded that
“substantive sanctions regarding discovery and other pretrial
procedural matters in the compensation court should be subject
10 Id. at 596, 558 N.W.2d at 806.
11 Id.

to at least the same procedural safeguards as comparable sanc-
tions for alleged discovery and pretrial procedural violations
in Nebraska’s civil courts.”12 although Phillips specifically
involved discovery rules and the admissibility of evidence, the
underlying rationale of our holding is plain: at a minimum,
the Workers’ Compensation Court’s rules should provide the
procedural protections that apply in the trial courts of this state.
therefore, when deciding whether a Workers’ Compensation
Court rule is “more restrictive or onerous,” we will consider
whether the rule restricts the procedural safeguards offered in
the state’s trial courts.
[7] rule 5 and our common law address when a party is
entitled to notice. and under these rules, a party in default
for failure to answer is not entitled to notice of a motion for
default judgment. rule 3 does not restrict the procedural safe-
guards offered under rule 5 and our common law. Instead, rule
3 expands the protections in those rules and requires that even
a defaulting party should receive notice. therefore, rule 3 is
not more restrictive or onerous than the rules of this state’s trial
courts, and rule 3 is the applicable rule in this case.
applying rule 3, swift beef was entitled to notice of Cruz-
Morales’ motion for default judgment. because swift beef did
not receive notice of the motion and hearing, we must reverse,
and remand. We do not reach swift beef’s remaining assign-
ments of error because an appellate court is not obligated to
engage in an analysis that is not needed to adjudicate the con-
troversy before it.13
CoNCLUsIoN
We 	conclude 	that 	under 	§ 	48-162.03(1), 	the 	Workers’
Compensation Court has authority to enter default judgments,
but the defaulting party must receive notice of the motion for
default judgment under Workers’ Compensation Court rule 3.
swift beef did not receive notice of Cruz-Morales’ motion
because she sent notice to the wrong address. therefore, the
compensation court “acted without or in excess of its powers”
12 Id. at 597, 558 N.W.2d at 807.
13 see Belle Terrace v. State, 274 Neb. 612, 742 N.W.2d 237 (2007).
CrUz-MoraLes v. sWIFt beeF Co. 	417
Cite as 275 Neb. 407

418 	275 Nebraska reports
when entering and affirming the default judgment.14 We reverse
the review panel’s judgment and remand the cause to that court
for further remand to the trial judge for proceedings consistent
with this opinion with directions to vacate the default judgment
and award.
reverSed and remanded .
14 see, Neb. rev. stat. § 48-185 (reissue 2004); Phillips, supra note 7.