Lovelace v. City of Lincoln

court that Gonzalez did not prove the prejudice prong of
Strickland.38 As a result, even if Padilla applies retroactively
to her plea, she did not prove ineffective assistance of counsel
and therefore did not prove the manifest injustice necessary to
justify withdrawing her plea. The district court did not abuse
its discretion in overruling Gonzalez’ motion, and we find no
merit to her assignment of error.
ConClusion
Although we conclude that the district court had jurisdiction
to consider Gonzalez’ motion to withdraw her plea, despite the
fact that her conviction had become final, we find that she did
not prove ineffective assistance of counsel. The district court
did not abuse its discretion in overruling her motion. The dis-
trict court’s order is affirmed.
A ffirmed.
Wright, J., not participating.
38 see Strickland, supra note 21.
Julie lovelAce , Appellee , v.
city of lincoln, AppellAnt.
809 n.W.2d 505
Filed January 13, 2012. 	no. s-10-1241.
1. Workers’ Compensation. under the odd-lot doctrine, total disability may be
found in the case of workers who, while not altogether incapacitated for work,
are so handicapped that they will not be employed regularly in any well-known
branch of the labor market. The essence of the test is the probable dependability
with which a claimant can sell his or her services in a competitive labor market,
undistorted by such factors as business booms, sympathy of a particular employer
or friends, temporary good luck, or the superhuman efforts of the claimant to rise
above his or her crippling handicaps.
2. Workers’ Compensation: Appeal and Error. 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; the findings of fact of the trial judge will not be
disturbed on appeal unless clearly wrong.
3. ____: ____. With respect to questions of law in workers’ compensation cases, an
appellate court is obligated to make its own determination.
12 	283 nebrAskA reporTs
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

4. Workers’ Compensation: Time. A worker cannot be considered permanently
totally disabled for a period of time when he or she was working either part time
or full time at the same job he or she had prior to his or her injury.
Appeal from the Workers’ Compensation Court. Affirmed.
rodney Confer, lincoln City Attorney, and Margaret M.
blatchford for appellant.
Travis Allan spier, of Atwood, Holsten, brown & Deaver
law Firm, p.C., l.l.o., for appellee.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	StephAn,
mccormAck, and miller-lermAn, JJ.
heAvicAn, C.J.
inTroDuCTion
The City of lincoln (City) appeals the decision of a three-
judge panel of the nebraska Workers’ Compensation Court,
which affirmed in part and in part reversed the original award
which found Julie lovelace to be temporarily and totally
disabled for the periods “from and including June 22, 2006,
through october 1, 2006, and again from December 19, 2007,
through August 19, 2009, and thereafter became permanently
and totally disabled.” The City alleges that the original award
of the Workers’ Compensation Court is ambiguous and there-
fore does not comply with Workers’ Comp. Ct. r. of proc. 11
(2010) and that the three-judge panel did not correct the error.
The City also alleges that as a matter of law, a worker “cannot
be earning wages at a similar job with the same employer and
at the same time have suffered a 100 percent loss of earning
capacity.” We affirm the decision of the three-judge panel.
bACkGrounD
The facts of this case are largely undisputed. on March
21, 2006, lovelace was injured in the course and scope of
her employment as an office specialist for the City. lovelace
was carrying a box when she tripped over a cart and fell to
the floor, injuring her left knee and lower back. lovelace
continued to work after her injury up until June 22, the date
of the surgery on her left knee. lovelace returned to work on
lovelACe v. CiTy oF linColn 	13
Cite as 283 neb. 12

october 2 and continued working for the City, with restric-
tions, until november 6, 2007, when she again slipped and fell,
injuring her right leg. lovelace had another surgery on her left
knee on December 19. she did not return to work, and the City
terminated her employment in June 2008.
[1] lovelace filed suit with the compensation court to recover
unpaid medical expenses, mileage, attorney fees, and ongoing
medical care. lovelace also sought payments for temporary
total disability for the periods between June 22 and october 1,
2006, and December 19, 2007, and August 19, 2009, and pay-
ments for permanent disability from August 20, 2009, continu-
ing indefinitely into the future. The compensation court found
that lovelace had been temporarily totally disabled for the
periods “from and including June 22, 2006, through october 1,
2006, and again from December 19, 2007, through August 19,
2009, and thereafter became permanently and totally disabled.”
The compensation court also found that lovelace was entitled
to “benefits of $358.56 per week for 101 5/7 weeks for tem-
porary total disability and thereafter and in addition thereto the
sum of $368.09 per week for permanent total disability.” The
compensation court found that lovelace was permanently and
totally disabled, because she was an odd-lot worker.1 under the
odd-lot doctrine,
“‘[t]otal disability may be found in the case of workers
who, while not altogether incapacitated for work, are so
handicapped that they will not be employed regularly in
any well-known branch of the labor market. The essence
of the test is the probable dependability with which claim-
ant can sell his services in a competitive labor market,
undistorted by such factors as business booms, sympathy
of a particular employer or friends, temporary good luck,
or the superhuman efforts of the claimant to rise above his
crippling handicaps.’”2
The City was given credit for $97,842.86 paid toward
lovelace’s medical bills and was ordered to pay the remaining
1 see Money v. Tyrrell Flowers, 275 neb. 602, 748 n.W.2d 49 (2008).
2 Id. at 617, 748 n.W.2d at 63.
14 	283 nebrAskA reporTs

balances. The City was also ordered to pay $4,557.93 in mile-
age expenses, and $10,000 in attorney fees, because the City
failed to pay medical bills in a timely fashion. The compensa-
tion court later issued an order nunc pro tunc, stating that the
City should pay $2,445.17 in penalties together with interest as
allowed by law for failing to “‘catch up’” permanency benefits
for the period of March 22 through June 22, 2006, pursuant to
Hobza v. Seedorff Masonry, Inc.3 The compensation court also
revised the amount of certain compensable medical expenses
incurred by lovelace.
The City appealed the award to a three-judge panel of the
compensation court. The three-judge panel affirmed the award
in part, and in part reversed. The three-judge panel found that
some of the medical expenses lovelace had submitted were
unrelated to her workplace injuries and remanded that portion
of the award for further findings by the compensation court.
The three-judge panel also found that Hobza was not appli-
cable, because Hobza had been superseded by amendments to
neb. rev. stat. § 48-119 (reissue 2008). Therefore, the three-
judge panel found that no benefits were to be paid prior to June
22, 2006, because lovelace worked full time between the first
accident, which occurred on March 21, through June 22. The
three-judge panel affirmed the categorization of lovelace as
an odd-lot worker and found no merit to the remainder of the
City’s or to lovelace’s assignments of error on cross-appeal
regarding future surgeries. The City appealed.
AssiGnMenTs oF error
The City assigns that the compensation court erred when
it (1) failed to comply with rule 11 (discussed below), by not
specifying in the award and order the weeks owed and credited
in disability benefits, and (2) determined that a worker could
be earning wages at a similar job with the same employer and,
at the same time, have suffered a 100-percent loss of earn-
ing capacity.
3 Hobza v. Seedorff Masonry, Inc., 259 neb. 671, 611 n.W.2d 828 (2000).
lovelACe v. CiTy oF linColn 	15
Cite as 283 neb. 12

sTAnDArD oF revieW
[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; the findings of
fact of the trial judge will not be disturbed on appeal unless
clearly wrong.4
[3] With respect to questions of law in workers’ compen-
sation cases, an appellate court is obligated to make its own
determination.5
AnAlysis
Compensation Court’s Award Did Not Violate Rule 11.
We address the City’s assignments of error together, because
both are based on the argument that the compensation court
failed to adequately address benefits owed for the period of
time between october 2, 2006, and December 18, 2007. in
essence, the City claims the compensation court failed “to
set out in specificity in the Award and order the weeks and
amounts owed in benefits and credited in benefits. The Court’s
lack of specificity results in ambiguity as to how much is owed
in permanent total disability benefits.”6 rule 11 provided at the
time of the compensation court’s award that “[d]ecisions of the
court on original hearing shall provide the basis for a meaning-
ful appellate review. The judge shall specify the evidence upon
which the judge relies.”
Although the parties’ briefs do not make this entirely clear,
the confusion appears to center on the period of time between
october 2, 2006, and December 18, 2007, when lovelace was
working either part time or full time with restrictions. prior to
trial, the compensation court ordered both parties to submit,
among other things, a pretrial statement addressing lovelace’s
weekly wages, periods of indemnity, and medical expenses
incurred and paid. in her pretrial statement, lovelace made
4 Tapia-Reyes v. Excel Corp., 281 neb. 15, 793 n.W.2d 319 (2011).
5 Id.
6 brief for appellant at 14.
16 	283 nebrAskA reporTs

no claims regarding her disability between october 2, 2006,
and December 18, 2007, whether partial or total, temporary or
permanent. in its pretrial statement, however, the City claimed
to have voluntarily paid partial temporary disability during this
time, a claim that lovelace did not dispute. The City appears
to be concerned that it will be penalized if it does not pay per-
manent total disability benefits for that period of time (between
october 2, 2006, and December 18, 2007).
First, we note that the compensation court made no find-
ings for the period of time between october 2, 2006, and
December 18, 2007, probably because lovelace did not claim
in her pretrial statement that she was owed benefits for that
period of time. in paragraph i of the award, the compensation
court found that lovelace was “temporary [sic] totally disabled
from and including June 22, 2006, through october 1, 2006,
and again from December 19, 2007, through August 19, 2009,
and thereafter became permanently and totally disabled.” in
paragraph iii, the compensation court ordered the City to pay
lovelace “$358.56 per week for 101 5/7 weeks for tempo-
rary total disability,” and “$368.09 per week for permanent
total disability.” The periods of temporary total disability are
precisely those claimed by lovelace in her pretrial statement.
And while the City argues that there is no clear start date
to the permanent disability benefits, the award sets forth the
periods of time that lovelace was temporarily totally disabled
and states “and thereafter became permanently and totally dis-
abled.” (emphasis supplied.)
[4] To the extent that there is any confusion over the pay-
ment of permanent total disability for the period of time
between october 2, 2006, and December 18, 2007, we find that
lovelace is not entitled to permanent total disability benefits
for that same period while she was working either part time or
full time and receiving temporary partial disability payments.7
our prior case law dictates that a worker cannot be considered
permanently totally disabled for a period of time when he or
7 see Kam v. IBP, inc., 12 neb. App. 855, 686 n.W.2d 631 (2004), affirmed
269 neb. 622, 694 n.W.2d 658 (2005).
lovelACe v. CiTy oF linColn 	17
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she was working part time or full time at the same job he or
she had prior to his or her injury.8
Application of Hobza.
Although both the City and lovelace argue strenuously
about the application of Hobza v. Seedorff Masonry, Inc. to
this case, Hobza is inapposite.9 Citing Hobza, the compensa-
tion court ordered the City to pay penalties and interest for
failing to “‘catch up’” permanency benefits for the period of
time between March 22 and June 22, 2006, or between her
first injury and the subsequent knee surgery. in Hobza, this
court held that under § 48-119 (reissue 1998), benefits were
to be paid from the date of injury. However, since Hobza was
decided, the legislature changed the statute to specifically pro-
vide that compensation begins from the date of disability. The
three-judge panel recognized this fact and reversed the deci-
sion as it related to Hobza, finding the City was not required
to pay lovelace benefits for that period of time when she had
been working full time. We agree with the finding of the three-
judge panel.
ConClusion
We find that lovelace is not entitled to permanent total dis-
ability benefits for the period of time after she was injured and
while she was working between october 2, 2006, and December
18, 2007. lovelace is, however, entitled to permanent total dis-
ability payments from December 19, 2007, onward. We affirm
the decision of the three-judge panel.
A ffirmed.
Wright, J., not participating in the decision.
8 Id.
9 Hobza, supra note 3.
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