VanKirk v. Central Community College

VanKIRK v. CENTRAL COMMUNITY COLLEGE 	231
Cite as 285 Neb. 231
inadequate protection of a putative father’s opportunity interest
in the adoption statutes.
Because Dakota has admitted to withholding the child’s
birth date from Jeremiah, I believe that the only remain-
ing factual issue is whether Jeremiah otherwise knew of the
child’s birth. Because the court did not correctly decide the
due process issue, I believe on remand it must make this find-
ing. I would hold that if the court finds that Jeremiah could
not have filed the postbirth notice of objection because of
Dakota’s deceptions, it cannot constitutionally apply the adop-
tion statutes to bar his claims that he is the child’s father and
that his consent to the adoption is required. Other courts have
reached similar conclusions.32 Because I reach this conclusion,
it is unnecessary to consider whether the statutes would also
violate Jeremiah’s equal protection rights if applied to bar
his claims.
Stephan, J., joins in this concurrence.
32 See, In re M.N.M., 605 A.2d 921 (D.C. 1992); Petition of Doe, 159 Ill. 2d
347, 638 N.E.2d 181, 202 Ill. Dec. 535 (1994); Doe v. Queen, 347 S.C.
4, 552 S.E.2d 761 (2001); In re Adoption of Baby Boy Doe, 717 P.2d 686
(Utah 1986).
elaine vanK irK, appellant, v. C entral
C ommunity C ollege and nebraSKa
C ommunity C ollege truSt,
inC., appelleeS.
826 N.W.2d 277
Filed February 15, 2013. 	No. S-12-591.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ Compensation Court may be modified, reversed, or set aside only
upon the grounds that (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. ____: ____. Regarding questions of law, an appellate court in workers’ compen-
sation cases is obligated to make its own decisions.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

232 	285 NEBRASKA REPORTS
3. Workers’ Compensation: Penalties and Forfeitures. Neb. Rev. Stat. § 48-125
(Cum. Supp. 2012) does not authorize an award of a waiting-time penalty when
an employer is delinquent in paying medical expenses.
Appeal from the Workers’ Compensation Court: John r.
hoffert, Judge. Affirmed.
Rolf Edward Shasteen, of Shasteen, Miner, Scholz & Morris,
P.C., L.L.C., for appellant.
Brenda S. Spilker and Christopher M. Reid, of Baylor,
Evnen, Curtiss, Grimit & Witt, L.L.P., for appellees.
heaviCan, C.J., Wright, C onnolly, Stephan, mCC ormaCK,
and CaSSel, JJ.
Stephan, J.
Elaine VanKirk incurred medical expenses as a result of an
injury sustained in the course and scope of her employment
with Central Community College. The Workers’ Compensation
Court 	ordered 	Central 	Community 	College 	and 	Nebraska
Community College Trust, Inc. (collectively the College), to
pay the expenses. The College complied by making payments
directly to VanKirk’s health care providers within 30 days of
the court’s order. VanKirk then sought a waiting-time penalty,
attorney fees, and interest pursuant to Neb. Rev. Stat. § 48-125
(Cum. Supp. 2012), contending she was not personally reim-
bursed for the medical expenses within 30 days. The Workers’
Compensation Court denied relief, and VanKirk filed a timely
appeal. We find no error and affirm the judgment of the com-
pensation court.
BACKGROUND
On April 29, 2010, VanKirk inhaled fumes from a mixture
of chlorine and toilet bowl cleaner during the course and
scope of her employment. She subsequently developed a severe
cough and shortness of breath and sought workers’ compensa-
tion benefits.
In an award entered on December 15, 2011, the compen-
sation court determined that VanKirk suffered an acute and
temporary insult to her lungs when she was exposed to and

VanKIRK v. CENTRAL COMMUNITY COLLEGE 	233
Cite as 285 Neb. 231
inhaled the fumes. The court awarded temporary total disability
benefits of $81.85 for five-sevenths of a week of disability. The
court also awarded medical expenses. In doing so, it referred to
an exhibit which listed the medical expenses VanKirk incurred,
the amount paid by VanKirk, and the amount due each pro-
vider. The court stated:
The Court has carefully reviewed [the exhibit] and
finds that the [College] ought to pay said outstanding
charges. To the extent that [VanKirk] has paid any of
these costs herself, she ought to be reimbursed as her
interests appear. The fee schedule audit submitted by the
[College] is to be applied.
The exhibit indicated that VanKirk had paid $13,449.18 in
medical expenses for treatment related to her injury.
Within 30 days of the award, the College’s counsel sent
letters to the medical providers listed on the exhibit, notify-
ing them that they would receive payment pursuant to the fee
schedule audit and that they should reimburse VanKirk for the
amount she had paid for her treatment. A copy of the court’s
award was enclosed. The letters advised the providers that they
were not entitled to charge or collect more than the amount
provided on the fee schedule. The College also made payments
to the providers within 30 days of the award.
On February 13, 2012, VanKirk filed a motion seeking pay-
ment to her of $13,449.18, a 50-percent waiting-time penalty,
attorney fees, and interest. She argued that the December 15,
2011, order required the College to pay $13,449.18 directly
to her in order to make her whole for payments she had pre-
viously made to health care providers. She alleged she was
entitled to a waiting-time penalty, attorney fees, and interest,
because she did not receive the $13,449.18 within 30 days
of the court’s order. The College argued it had complied with
the court’s order by paying the medical providers within 30
days of the court’s order. It contended the providers were then
responsible for reimbursing VanKirk for any amounts she paid
in excess of the fee schedule.
The court noted that both interpretations of its order were
reasonable and “respectfully decline[d] the parties’ invitation
to state with more specificity what it meant to convey” in the

234 	285 NEBRASKA REPORTS
order, citing this court’s recent decision in Pearson v. Archer-
Daniels-Midland Milling Co.1 The court reasoned, “The decree
has become final and pursuant to the holding in Pearson, supra,
what was meant is to be determined solely from the four cor-
ners of the decree itself and not by any post-mortem analysis.”
The court ultimately overruled VanKirk’s motion, finding that
because the evidence established that the College paid the
medical providers within 30 days and that VanKirk had been
or was going to be reimbursed for any medical expenses she
personally paid, the “four corners of the decree” had been met.
VanKirk appeals.
ASSIGNMENTS OF ERROR
VanKirk assigns as error the Workers’ Compensation Court’s
(1) finding that the College had timely paid the medical
expenses as ordered in the award of December 15, 2011, and
(2) failing to award VanKirk a waiting-time penalty, attorney
fees, and interest.
STANDARD OF REVIEW
[1] A judgment, order, or award of the Workers’ Compensation
Court may be modified, reversed, or set aside only upon the
grounds that (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 evi-
dence in the record to warrant the making of the order, judg-
ment, or award; or (4) the findings of fact by the compensation
court do not support the order or award.2
[2] Regarding questions of law, an appellate court in work-
ers’ compensation cases is obligated to make its own decisions.3
ANALYSIS
VanKirk relies on § 48-125 as authority for her claimed
entitlement 	to 	a 	waiting-time 	penalty, 	attorney 	fees, 	and
1 Pearson v. Archer-Daniels-Midland Milling Co., 282 Neb. 400, 803
N.W.2d 489 (2011).
2 Id.
3 Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012);
Mueller v. Lincoln Public Schools, 282 Neb. 25, 803 N.W.2d 408 (2011).

VanKIRK v. CENTRAL COMMUNITY COLLEGE 	235
Cite as 285 Neb. 231
interest as a result of the manner in which the College satis-
fied its liability for medical expenses. Because each item is
governed by a distinct provision of the statute, we address
each separately.
Waiting -time penalty
An injured worker’s entitlement to a waiting-time penalty
is governed by § 48-125(1), which provides in pertinent part:
(1)(a) 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. Such pay-
ments shall be sent directly to the person entitled to com-
pensation or his or her designated representative except as
otherwise provided in section 48-149.
(b) Fifty percent shall be added for waiting time for
all delinquent payments after thirty days’ notice has been
given of disability or after thirty days from the entry of a
final order, award, or judgment of the Nebraska Workers’
Compensation Court . . . .
VanKirk’s claim for a waiting-time penalty is based entirely
upon her contention that the College did not make timely pay-
ments of medical expenses as ordered by the court. However, in
Bituminous Casualty Corp. v. Deyle,4 we held that § 48-125(1)
does not authorize a waiting-time penalty for an employer’s
delinquent payments of medical expenses. At the time of our
decision in Deyle, the statute provided in part:
“Except as hereinafter provided, all amounts of compensa-
tion 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; Provided, fifty percent shall be
added for waiting time for all delinquent payments after
thirty days’ notice has been given of disability. Whenever
the employer refuses payment, or when the employer
4 Bituminous Casualty Corp. v. Deyle, 234 Neb. 537, 451 N.W.2d 910
(1990).

236 	285 NEBRASKA REPORTS
neglects to pay compensation for thirty days after injury,
and proceedings are held before the Nebraska Workers’
Compensation Court, a reasonable attorney’s fee shall be
allowed the employee by the compensation court in all
cases when the employee receives an award.”5
We held that the term “‘compensation’” as used in the statute
included “periodic disability or indemnity benefits payable on
account of the employee’s work-related injury or death.”6 We
reasoned that because medical expenses are not paid “‘periodi-
cally’” in the same manner as wages, “‘compensation’” did not
include medical expenses which the compensation court orders
an employer to pay.7
VanKirk argues that Bituminous Casualty. Corp. does not
preclude her claim because § 48-125 was amended in 1999,
after that decision was made by this court.8 However, we have
considered the amended statute in later cases and have not
found that the amendments authorized a waiting-time penalty
for delinquent payments of medical expenses, as sought in the
present case.
In Hollandsworth v. Nebraska Partners,9 we noted that the
amendments to § 48-125 “clearly state[d] that the waiting-
period penalty applies to payments made after 30 days from
the entry of a final order, award, or judgment of the compensa-
tion court.”10 We held in that case that a court-approved lump-
sum settlement is subject to a waiting-time penalty, reasoning
that § 48-125 “does not limit the application of a penalty to
periodic payments only.”11 In addition, we noted that other
provisions of the Nebraska Workers’ Compensation Act permit
5 Id. at 551-52, 451 N.W.2d at 919, quoting Neb. Rev. Stat. § 48-125
(Reissue 1988).
6 Id. at 553, 451 N.W.2d at 920.
7 Id.
8 See 1999 Neb. Laws, L.B. 216, § 6.
9 Hollandsworth v. Nebraska Partners, 260 Neb. 756, 619 N.W.2d 579
(2000).
10 Id. at 760, 619 N.W.2d at 582.
11 Id. at 759, 619 N.W.2d at 582.

VanKIRK v. CENTRAL COMMUNITY COLLEGE 	237
Cite as 285 Neb. 231
commutation of periodic payments to one or more lump-sum
payments, “thus bringing a lump-sum payment under the scope
of § 48-125.”12 Hollandsworth did not hold or suggest that a
waiting-time penalty is required for delinquent payments of
medical expenses.
We again considered the 1999 amendments to § 48-125
in Lagemann v. Nebraska Methodist Hospital,13 in which we
noted that the amendments effectively codified our holding in
Leitz v. Roberts Dairy.14 In Leitz, we held that the 30-day statu-
tory time limit for paying compensation benefits, which trig-
gers the imposition of waiting-time penalties, does not begin
to run until after a final adjudication. Neither Lagemann nor
Leitz holds or suggests that the 1999 amendments to § 48-125
authorized the imposition of a waiting-time penalty for an
employer’s delinquent payments of medical expenses.
Our holding in Bituminous Casualty Corp. was applied by
the Nebraska Court of Appeals in a case decided after the 1999
amendments to § 48-125. In Bronzynski v. Model Electric,15 the
Court of Appeals concluded that § 48-125 does not authorize
a waiting-time penalty for delinquent payments of medical
expenses because such expenses do not constitute compensa-
tion within the meaning of the statute. The court stated that it
was “apparent that a 50-percent waiting-time penalty cannot be
awarded on the basis of an award of delinquent medical pay-
ments; a waiting-time penalty is available only on awards of
delinquent payments of disability or indemnity benefits, not on
awards of ‘medical payments.’”16
[3] We agree with the reasoning and holding of Bronzynski,
and reaffirm our holding in Bituminous Casualty. Corp. that
§ 48-125 does not authorize an award of a waiting-time penalty
when an employer is delinquent in paying medical expenses.
12 Id. at 760, 619 N.W.2d at 582.
13 Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51
(2009).
14 Leitz v. Roberts Dairy, 239 Neb. 907, 479 N.W.2d 464 (1992).
15 Bronzynski v. Model Electric, 14 Neb. App. 355, 707 N.W.2d 46 (2005).
16 Id. at 371, 707 N.W.2d at 60.

238 	285 NEBRASKA REPORTS
As we observed in Bituminous Casualty Corp., it is solely
the province of the Legislature to decide whether a waiting-
time penalty should apply to delinquent payments of medical
expenses. To date, it has not taken such action.
Because § 48-125 did not apply to VanKirk’s request for
a waiting-time penalty as a matter of law, the compensation
court did not err in overruling her motion for a waiting-
time penalty.
attorney feeS
An injured worker’s entitlement to attorney fees is governed
by § 48-125(2)(a), which provides in part:
Whenever the employer refuses payment of compensation
or medical payments subject to section 48-120, or when
the employer neglects to pay compensation for thirty days
after injury or neglects to pay medical payments subject
to such section after thirty days’ notice has been given
of the obligation for medical payments, and proceedings
are held before the compensation court, a reasonable
attorney’s fee shall be allowed the employee by the com-
pensation court in all cases when the employee receives
an award.
The plain language of this statute allows an award of attorney
fees if the employer is delinquent in paying medical expenses.
Accordingly, we must determine whether the compensation
court erred in concluding that the medical expenses at issue
here were timely paid as directed in its award.
In making this determination, it is helpful to review the
provisions of Neb. Rev. Stat. § 48-120 (Cum. Supp. 2012),
which govern an employer’s liability for an employee’s medi-
cal expenses resulting from an industrial accident. Section
48-120(1)(a) provides that an “employer is liable for all rea-
sonable medical, surgical, and hospital services.”17 Subsection
48-120(1)(b) requires the compensation court to establish a
schedule of fees for the services itemized in § 48-120(1)(a).18
And § 48-120(1)(e) provides:
17 See Pearson v. Archer-Daniels-Midland Milling Co., supra note 1.
18 Id.

VanKIRK v. CENTRAL COMMUNITY COLLEGE 	239
Cite as 285 Neb. 231
The provider or supplier of such services shall not collect
or attempt to collect from any employer, insurer, govern-
ment, or injured employee or dependent or the estate of
any injured or deceased employee any amount in excess
of (i) the fee established by the compensation court for
any such service . . . .
Finally, § 48-120(8) provides:
The compensation court shall order the employer to make
payment directly to the supplier of any services provided
for in this section or reimbursement to anyone who has
made any payment to the supplier for services provided
in this section. No such supplier or payor may be made
or become a party to any action before the compensa-
tion court.
It is undisputed in this case that the College paid the
amounts provided by the fee schedule to the providers of medi-
cal services within 30 days of the award. It is likewise undis-
puted that VanKirk had previously paid some of those same
providers before they received payment from the College and
that she was eventually reimbursed by the providers, although
some of the reimbursements were not made within 30 days of
the award. VanKirk contends that based on § 48-120(8), the
College was required “to reimburse [her] for the payments
she had made, and not simply pay the fee schedule amount to
the providers and leave it to them to reimburse [her] the full
amount she had paid them.”19
But the language of the award does not specifically require
the 	procedure 	VanKirk 	proposes. 	The 	award 	states 	that
VanKirk “ought to be reimbursed” for payments she had
made to the medical providers listed on the exhibit, but it
does not indicate which entity should make such reimburse-
ment. We are not persuaded that § 48-120(8) can be read to
require an employer to directly reimburse an injured worker
for medical expenses he or she has paid prior to the entry of
an award by the court. Although § 48-120(8) authorizes the
compensation court to order an employer to make “reimburse-
ment to anyone who has made any payment to the supplier for
19 Brief for appellant at 7.

240 	285 NEBRASKA REPORTS
services provided in this section,” it also provides that “[n]o
such . . . payor may be made or become a party to any action
before the compensation court.” Because the injured worker
is a party to the case, we read the term “payor” as used in
§ 48-120(8) as limited to third-party payors, such as health
insurance carriers.
In Pearson,20 we stated that Ҥ 48-120(8) mentions third
parties only insofar as it gives the compensation court the
power to order a third party to be reimbursed if it pays a
provider or supplier.” In the present case, there is no issue
involving a third-party payor. Accordingly, we conclude that
the College fully and timely complied with the award by
paying the scheduled fee amounts to the medical providers
within 30 days of the award. We have stated that “the purpose
behind § 48-120(1)(e) is to prohibit a supplier or provider
from charging more than the fee schedule permits.”21 Thus,
upon receipt of payment from an employer, a supplier or pro-
vider of services becomes obligated to reimburse an employee
any amounts he or she has previously paid. And that is what
occurred in this case. Although the reimbursements were not
completed within 30 days of the award, we do not find that the
College is subject to liability for attorney fees. The College’s
payments to the medical providers were made within the
30-day period. At that point, reimbursement of payments made
by VanKirk was the responsibility of the providers, and any
delay is not chargeable to the College.
intereSt
Section 48-125(3) provides for an assessment of interest
“[w]hen an attorney’s fee is allowed pursuant to this section
. . . .” Because VanKirk was not entitled to attorney fees, she
was not entitled to an award of interest.
CONCLUSION
For the reasons discussed, we conclude that the compensa-
tion court did not err in overruling VanKirk’s motion for a
20 Pearson v. Archer-Daniels-Midland Milling Co., supra note 1, 282 Neb. at
410, 803 N.W.2d at 496.
21 Id. at 409, 803 N.W.2d at 496.

VanKIRK v. CENTRAL COMMUNITY COLLEGE 	241
Cite as 285 Neb. 231
waiting-time penalty, attorney fees, and interest pursuant to
§ 48-125. We therefore affirm the judgment of the compensa-
tion court.
affirmed.
miller-lerman, J., participating on briefs.