Heckman v. Burlington Northern Santa Fe Ry. Co.

HECKMAN v. BURLINGTON NORTHERN SANTA FE RY. CO. 	453
Cite as 286 Neb. 453
matter of law when it determined that Shada’s action against
Farmers for underinsured motorist benefits accrued upon her
settlement with the tort-feasor’s insurer and was time barred.
Therefore, we conclude that the district court erred when it
granted Farmers’ motion for summary judgment and dismissed
the case. We reverse the judgment and remand the cause for
further proceedings consistent with this opinion.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
eddie heckman, appellee, v. BuRlington
noRtheRn santa fe R ailway
company, appellant.
837 N.W.2d 532
Filed August 16, 2013. 	No. S-12-335.
1. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
2. Juries: Verdicts. A jury, by its general verdict, pronounces upon all or any of the
issues either in favor of the plaintiff or the defendant.
3. Juries: Verdicts: Presumptions. Because a general verdict does not specify the
basis for an award, Nebraska law presumes that the winning party prevailed on
all issues presented to the jury.
4. Federal Acts: Railroads: Claims: Courts. In disposing of a claim controlled
by the Federal Employers’ Liability Act, a state court may use procedural rules
applicable to civil actions in the state court unless otherwise directed by the act,
but substantive issues concerning a claim under the act are determined by the
provisions of the act and interpretative decisions of the federal courts construing
the act.
5. Federal Acts: Railroads: Pensions: Words and Phrases. For purposes of the
Railroad Retirement Act, the definition of compensation includes payments for
time lost.
6. Employer and Employee: Wages. An employee is deemed to be paid “for time
lost” the amount he is paid by an employer for an identifiable period of absence,
including absence on account of personal injury.
7. Federal Acts: Railroads: Pensions: Presumptions: Damages. The Railroad
Retirement Act presumes that payments for personal injury are compensation for
time lost unless they are specifically apportioned otherwise.
8. Federal Acts: Railroads: Pensions. The Railroad Retirement Board treats the
total Federal Employers’ Liability Act award as pay for time lost if the payment
for personal injury is based in part on pay for time lost.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:38 AM CST

454 	286 NEBRASKA REPORTS
9. Employer and Employee: Contracts: Wages. Employers and employees can
negotiate settlement agreements and allocate portions of a settlement award to
lost wages and other compensatory categories.
Appeal from the District Court for Box Butte County: tRavis
p. o’goRman, Judge. Reversed and remanded with directions.
Nichole S. Bogen and Thomas C. Sattler, of Sattler &
Bogen, L.L.P., for appellant.
Andrew W. Snyder and Maren L. Chaloupka, of Chaloupka,
Holyoke, Snyder, Chaloupka, Longoria & Kishiyama, P.C.,
L.L.O., for appellee.
Kathryn Keneally, Assistant Attorney General, Deborah R.
Gilg, U.S. Attorney, Robert L. Homan, Assistant U.S. Attorney,
and Jonathan S. Cohen and Marion E.M. Erickson, of U.S.
Department of Justice, Tax Division, Appellate Section, for
amicus curiae United States of America.
heavican, c.J., wRight, connolly, stephan, mccoRmack,
milleR-leRman, and cassel, JJ.
wRight, J.
I. NATURE OF CASE
Pursuant to the Federal Employers’ Liability Act (FELA),
Eddie Heckman was awarded $145,000 in damages for on-the-
job injuries sustained while working for Burlington Northern
Santa Fe Railway Company (BNSF). BNSF paid the judg-
ment, but withheld $6,202.70 as Heckman’s share of Railroad
Retirement Tax Act (RRTA) payroll taxes on the entire general
verdict award. The district court overruled BNSF’s “Motion for
Satisfaction and Discharge of Judgment” and ordered BNSF
to pay the $6,202.70 directly to Heckman. It also required the
parties to agree in writing that no amount of the award would
be considered lost wages, so as to avoid any obligations under
the RRTA.
BNSF appealed, claiming that the court’s order conflicted
with federal tax and railroad laws. We granted BNSF’s petition
to bypass the Nebraska Court of Appeals. The issue is whether
the general verdict award in favor of Heckman is an award
of compensation from which BNSF is required to withhold

HECKMAN v. BURLINGTON NORTHERN SANTA FE RY. CO. 	455
Cite as 286 Neb. 453
a portion of the award in order to pay RRTA payroll taxes.
For the reasons set forth herein, we reverse the judgment and
remand the cause with directions.
II. SCOPE OF REVIEW
[1] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. United
States Cold Storage v. City of La Vista, 285 Neb. 579, 831
N.W.2d 23 (2013).
III. FACTS
Heckman was injured in the course and scope of his employ-
ment with BNSF. Because he was a railroad employee, he
filed a claim for personal injury damages pursuant to FELA,
45 U.S.C. § 51 et seq. (2006). Heckman’s pleadings included
claims for lost earnings and benefits. He testified at trial regard-
ing his lost wages and argued lost wages as part of his request
for damages. The court instructed the jury to consider award-
ing Heckman damages to compensate for his injury, including
lost wages, if it returned a verdict in his favor. Neither party
requested a special verdict instruction. The court instructed the
jury as follows:
I am about to give you a list of the things you may
consider in making this decision. From this list, you must
only consider those things you decide were in whole or in
part caused by [BNSF’s] negligence:
1. The nature and extent of the injury, including whether
the injury is temporary or permanent and whether any
resulting disability is partial or total;
2. The reasonable value of the medical, hospital, nurs-
ing, and similar care and supplies reasonably certain to be
needed and provided in the future;
3. The physical pain and mental suffering [Heckman]
has experienced and is reasonably certain to experience
in the future;
4. The wages [Heckman] has lost because of his inabil-
ity or diminished ability to work.
The jury returned a general verdict in favor of Heckman
and awarded him $290,000 less 50 percent for his contributory
negligence. The jury did not specify how it attributed damages.

456 	286 NEBRASKA REPORTS
The district court approved the verdict and entered judgment in
favor of Heckman for $145,000.
On October 19, 2011, BNSF deposited $127,256.70 with
the clerk of the district court for Box Butte County, Nebraska,
and filed its motion for satisfaction and discharge of judgment.
The amount deposited consisted of the judgment amount of
$145,000 plus 45 days of accrued postjudgment interest and
$1,974.24 in costs. Withheld from that amount was $20,089.53,
which was calculated as follows:
(1) $7,868.53 to satisfy the Railroad Retirement Board’s
lien for [Heckman’s] short-term sickness and unemploy-
ment benefits that he received;
(2) $6,018.83 to satisfy a lien . . . for short-term dis-
ability benefits that [Heckman] received; and
(3) $6,202.70 to satisfy [BNSF’s] purported obligation
to withhold and pay the Internal Revenue Service for
[Heckman’s] share of [RRTA] payroll taxes on his general
verdict award.
Heckman does not contest the offsets for the liens.
At the hearing on the motion for satisfaction and discharge
of judgment, BNSF offered evidence to show how it deter-
mined the amount of taxes due on Heckman’s general verdict
award. Relying upon U.S. Railroad Retirement Board (RRB)
program letter No. 2011-01 and Internal Revenue Service
(IRS) 2010 instructions for IRS Form CT-1, the rate of taxes
for compensation paid to Heckman in 2011 were determined
as follows:
Tier 1: Employee pays 4.2% of the first $106,800 of
compensation. Railroad pays 6.2% of the first $106,800
of compensation.
Tier 1 Medicare: Employee and railroad each pay
1.45% of compensation.
Tier 2: Employee pays 3.9% of the first $79,200 of
compensation. Railroad pays 12.1% of the first $79,200
of compensation[.]
At the time of the judgment, Heckman’s year-to-date income
was $42,891.32. This amount was deducted from the capped
amount 	of 	earnings 	for 	calculating 	withholding 	amounts.
BNSF calculated the withholding by using the entire amount

HECKMAN v. BURLINGTON NORTHERN SANTA FE RY. CO. 	457
Cite as 286 Neb. 453
of the judgment, $145,000, as lost wages. Based on this
amount and using the withholding chart, it calculated the taxes
as follows:
Tier 1 	$2,684.16 	($106,800 	less 	earnings 	through
October 11, 2011, $42,891.32, equals $63,908.68
multiplied by 4.2%)
Tier 2 	$1,416.04 	($79,200 	less 	earnings 	through
October 11, 2011, $42,891.32, equals $36,308.68
multiplied by 3.9%)
Medicare $2,102.50 ($145,000 multiplied by 1.45%)
Total: 	$6,20[2].70 [($2,684.16 + $1,416.04 + $2,102.50)]
The total, $6,202.70, is the amount BNSF claims it is required
to withhold and pay to the IRS. Heckman does not dispute
the accuracy of the computations but claims the law does not
require BNSF to withhold the $6,202.70.
The district court overruled BNSF’s motion for satisfaction
and discharge of judgment and ordered that “no portion of the
general verdict shall be attributable to [Heckman’s] wage loss
claim.” The court concluded that because a general verdict was
rendered, it had no way of knowing what portion, if any, of the
verdict the jury apportioned for wage loss and that the issue
could not be relitigated. It directed BNSF to pay $6,202.70 to
the clerk of the district court for Box Butte County for distribu-
tion to Heckman.
BNSF moved for rehearing. The district court revised its
order and directed the parties to agree in writing that no por-
tion of the award would be considered lost wages, “so as not to
place BNSF at odds with the statutory requirement to pay the
[RRTA] Taxes to the IRS as permitted by the rules.”
BNSF appealed, and we granted the petition to bypass.
IV. ASSIGNMENTS OF ERROR
BNSF claims, summarized and restated, that the district
court erred in not entering a satisfaction and discharge of the
judgment against BNSF and ordering the parties to agree in
writing that no portion of the verdict was for lost wages.
V. ANALYSIS
Heckman claims that BNSF has not presented evidence it
paid the $6,202.70 to anyone and that, therefore, the district

458 	286 NEBRASKA REPORTS
court did not err in refusing to enter a satisfaction of the judg-
ment. In the interest of judicial economy, we proceed to exam-
ine BNSF’s assignments of error.
The first question is whether in Nebraska a general jury
verdict is presumed to rule in favor of the successful party on
all issues presented to the jury. The second question is whether
any portion of the general verdict can be considered to be lost
wages and therefore be treated as compensation under the
RRTA. The final question is, If part of the verdict is compensa-
tion, does the court, after a general verdict has been entered,
have authority to order the parties to agree in writing that no
portion of the verdict will be considered lost wages?
1. geneRal JuRy veRdict
in neBRaska
[2,3] The jury returned a general verdict in favor of Heckman
and against BNSF. A jury, by its general verdict, pronounces
upon all or any of the issues either in favor of the plaintiff or
the defendant. Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248
(2013). Because a general verdict does not specify the basis
for an award, Nebraska law presumes that the winning party
prevailed on all issues presented to the jury. See id. In a FELA
suit against BNSF, we held that the trial court’s failure to
give a requested apportionment instruction was not reversible
error because the jury, through its general verdict, presump-
tively held in favor of the plaintiff on all causes of action. See
Gustafson v. Burlington Northern RR. Co., 252 Neb. 226, 561
N.W.2d 212 (1997).
[4] In disposing of a claim controlled by FELA, a state court
may use procedural rules applicable to civil actions in the state
court unless otherwise directed by the act, but substantive
issues concerning a claim under the act are determined by the
provisions of the act and interpretative decisions of the federal
courts construing the act. Ballard v. Union Pacific RR. Co., 279
Neb. 638, 781 N.W.2d 47 (2010). In Nebraska, general verdicts
are controlled by statute as part of our procedural rules. See
Neb. Rev. Stat. § 25-1122 (Reissue 2008).
BNSF argues that because the general verdict was based in
part on lost wages, federal law requires that the entire award

HECKMAN v. BURLINGTON NORTHERN SANTA FE RY. CO. 	459
Cite as 286 Neb. 453
be treated as compensation and subject to withholding under
the RRTA. Heckman argues that the verdict does not set forth
how damages were allocated, so no amount of the award can
be considered lost wages.
The district court determined that because a general verdict
was rendered, the court had no way of knowing what portion
of the verdict the jury apportioned to lost wages. The court
concluded that because it could not determine what portion of
the award was allocated to lost wages, no portion of the award
would be considered lost wages.
The district court misinterpreted Nebraska precedent regard-
ing general verdicts. A correct reading of our precedent estab-
lishes a presumption that when the jury returns a general ver-
dict in favor of one party, we presume that the jury found in
favor of the successful party on all issues raised by that party
and presented to the jury. See Wulf, supra.
Heckman has referred us to Mickey v. BNSF R. Co., No.
ED 98647, 2013 WL 2489832 (Mo. App. June 11, 2013), a
recent unpublished decision from the Court of Appeals for
the eastern district of Missouri. In Mickey, the appellate court
concluded that the trial court did not have power to modify
the judgment once it became final. Following judgment, the
trial court’s authority was limited to issuing orders necessary
to execute the judgment.
In Mickey, the court stated that pursuant to its interpreta-
tion of Missouri law, a general verdict could not be inter-
preted as a finding by the jury for lost wages. The plaintiff
sought to enforce his judgment against BNSF and Safeco
Insurance Company of America (Safeco) as BNSF’s surety
on a supersedeas bond for the amount which BNSF claimed
was required to be withheld under federal law. The trial
court found that BNSF failed to satisfy the judgment and
entered judgment on the supersedeas bond in the amount of
$12,820.80 plus interest.
On appeal, BNSF and Safeco argued that BNSF satisfied the
judgment by fulfilling its obligation under federal law to with-
hold the plaintiff’s portion of railroad employment taxes. The
appellate court disagreed and cited Missouri’s procedural rules,
which stated that “‘[t]he verdict of a jury is either general or

460 	286 NEBRASKA REPORTS
special.’” Id. at *4. It concluded that because the general ver-
dict did not specify individual items such as lost wages, the
amount of lost wages as compensation was “‘a matter forever
relegated to the bosom of the jury.’” Id.
The court in Mickey concluded that after a verdict has
been rendered and the jury discharged, the “‘trial court has
no authority to correct or amend [the judgment] in matters of
substance, only in mere matters of form.’” Id. at *5 (quoting
Kansas City Power & Light v. Bibb & Assoc., 197 S.W.3d 147
(Mo. App. 2006)). BNSF had not requested any changes when
the trial court entered its judgment, and on direct appeal, did
not challenge the form of the judgment. Because the judgment
did not allocate any specific amount of damages to lost wages,
the court was unable to conclude that 45 U.S.C. § 231(h)(2)
(2006) applied. The court saw no basis in Missouri law to
withhold taxes on a judgment based on time lost.
The Mickey court distinguished two unpublished trial court
orders in FELA cases which BNSF relied upon for its argument
that it properly withheld railroad employment taxes because
the judgment was held to be pay for “time lost.” The court in
Mickey stated that in “Nielsen v. BNSF Railway Company[,
No. 0807-10580 (Multnomah County, Or. Mar. 5, 2012),] the
jury specifically awarded the plaintiff damages for lost wages.”
2013 WL 2489832 at *6. Further, “[i]n Phillips v. Chicago,
Central & Pacific Railroad Company, [No. 04781 LACV
098439 (Pottawattamie County, Iowa Apr. 12, 2013),] the trial
court appeared to apportion damages to a specific category,
(‘time lost’) after the judgment was final.” 2013 WL 2489832
at *6.
We agree that the two trial court orders relied upon in
Mickey, supra, are distinguishable. But we also distinguish
Mickey, because with a general verdict, we presume that the
jury found in favor of Heckman on all issues, including lost
wages. See, § 25-1122; Wulf v. Kunnath, 285 Neb. 472, 827
N.W.2d 248 (2013). Our focus is whether any of the verdict
was based on lost wages. To determine if Heckman’s award
was based on lost wages, we look to the pleadings, evidence
presented at trial, and the instructions given to the jury. See
RRB Legal Opinion L-92-18 (Feb. 25, 1992).

HECKMAN v. BURLINGTON NORTHERN SANTA FE RY. CO. 	461
Cite as 286 Neb. 453
Examining all three of these elements, we conclude that
the jury verdict was based in part on Heckman’s lost wages.
Heckman alleged in his complaint that his damages included
lost wages. He presented evidence at trial about his lost wages,
and the jury was instructed it could take into account his lost
wages if it returned a verdict in Heckman’s favor. It would be
error to conclude that because the jury returned a general ver-
dict, no portion of the verdict could be considered lost wages.
To do so would require the district court to conclude that the
jury did not base any damages on Heckman’s lost wages. This
is contrary to the presumption that with a general verdict,
the jury is presumed to have found in favor of the successful
party on all issues raised by that party. See Wulf, supra. Part
of Heckman’s claim was for lost wages. Therefore, the district
court erred in concluding that no portion of the general jury
verdict could be considered lost wages.
2. compensation
(a) Background
Because we conclude that under Nebraska’s procedural rules,
Heckman’s verdict was based in part on lost wages, we turn to
federal substantive law to determine if his lost wages verdict is
considered compensation.
Railroad employees do not receive Social Security benefits.
See Hance v. Norfolk Southern Ry. Co., 571 F.3d 511 (6th
Cir. 2009). Instead, they receive retirement benefits under
the Railroad Retirement Act of 1974 (RRA). See, 45 U.S.C.
§ 231b(a)(1) (calculating annuity amount) (2006); 45 U.S.C.
§ 231t (2006). The RRA applies to railroad companies and
their employees. See 45 U.S.C. § 231(a) and (b). The RRA
is administered by the RRB. See 45 U.S.C. § 231f (2006 &
Supp. V 2011). RRA benefits are funded through payroll taxes
assessed against both the employee and the employer under the
RRTA. See I.R.C. § 3201 et seq. (2006 & Supp. V 2011).
RRTA taxes are divided into tax tiers 1 and 2. See I.R.C.
§ 3201(a) and (b). Tier 1 RRTA taxes are similar to taxes
imposed on nonrailroad workers by the Federal Insurance
Contributions Act (FICA), I.R.C. § 3101 et seq. (2006 &
Supp. V 2011), and RRTA taxes are paid in lieu of FICA taxes.

462 	286 NEBRASKA REPORTS
Tier 1 taxes fund retirement and disability payments. Railroad
employees covered by the RRA and subject to the RRTA also
pay an additional tier 2 RRTA tax, which funds a separate
annuity that is equivalent to a private benefit. FICA taxes do
not have an equivalent tier 2 component.
Both tier 1 and tier 2 RRTA taxes are imposed on all com-
pensation earned by a railroad employee. See I.R.C. § 3201(a)
and (b). The RRA defines compensation as “any form of
money remuneration paid to an individual for services ren-
dered as an employee . . . including remuneration paid for time
lost as an employee.” 45 U.S.C. § 231(h)(1). See, also, I.R.C.
§ 3231(e)(1) (“‘compensation’ means any form of money
remuneration paid to an individual for services rendered as
an employee”).
(b) Resolution
Statutory interpretation is a question of law, which an appel-
late court resolves independently of the trial court. United
States Cold Storage v. City of La Vista, 285 Neb. 579, 831
N.W.2d 23 (2013). Since we have concluded that part of the
general verdict was an award for time lost, we apply federal
law to determine if the time lost was compensation subject to
withholding under the RRTA. And if part of the award is com-
pensation, what amount of the award is compensation subject
to withholding?
[5-7] For purposes of the RRA, the definition of com-
pensation includes payments for time lost. See 45 U.S.C.
§ 231(h)(2). An employee is deemed to be paid “for time lost”
the amount he is paid by an employer for an identifiable period
of absence, including absence on account of personal injury.
See id. The statute provides guidance for allocating pay for
time lost:
If a payment is made by an employer with respect to a
personal injury and includes pay for time lost, the total
payment shall be deemed to be paid for time lost unless,
at the time of payment, a part of such payment is specifi-
cally apportioned to factors other than time lost, in which
event only such part of the payment as is not so appor-
tioned shall be deemed to be paid for time lost.

HECKMAN v. BURLINGTON NORTHERN SANTA FE RY. CO. 	463
Cite as 286 Neb. 453
Id. (emphasis supplied). See, also, 20 C.F.R. § 211.2(b)(2)
(2013) (compensation includes pay for time lost as employee);
20 C.F.R. § 211.3(a)(1) (2013) (pay for time lost as employee
includes pay received for certain period of time due to personal
injury). The RRA presumes that payments for personal injury
are compensation for time lost unless they are specifically
apportioned otherwise. See 45 U.S.C. § 231(h)(2).
The IRS considers FELA judgments for “time lost” to
be compensation, unless specifically excepted. See, I.R.C.
§ 3121(a); Cheetham v. CSX Transp., No. 3:06-CV-704-J-
PAM-TEM, 2012 WL 1424168 (M.D. Fla. Feb. 13, 2012).
Treasury 	regulation 	§ 	31.3231(e)-1(a)(3) 	(2003) 	provides
that “compensation is not confined to amounts paid for
active service, but includes amounts paid for an identifiable
period during which the employee is absent from the active
service of the employer.” Compensation under the treasury
regulations also includes “pay for time lost.” Treas. Reg.
§ 31.3231(e)-1(a)(4).
Whether compensation is paid for work performed or for
time lost, the RRTA requires employers to collect all RRTA
taxes imposed under I.R.C. § 3201 “by deducting the amount
of the taxes from the compensation of the employee as and
when paid.” I.R.C. § 3202(a). Every employer is required to
deduct RRTA taxes from employees’ compensation. Employers
are liable for the payment of such tax and “shall not be liable
to any person for the amount of any such payment.” I.R.C.
§ 3202(b). Treasury regulations also provide that an employer
“is not liable to any person for the amount of the employee
[RRTA] tax deducted by him” and paid to the IRS. Treas. Reg.
§ 31.3202-1(e) (1994).
As stated in I.R.C. § 3202(b), a railroad employer is liable
to the IRS for the employee’s portion of RRTA taxes and the
employer is not liable to any other person for the amounts
deducted. Thus, under I.R.C. § 3202(b), a railroad employer
must withhold RRTA taxes from compensation paid to employ-
ees and must remit the taxes to the IRS. If the employer fails
to remit the employee portion of the tax, both the employer and
the employee remain liable for the unremitted amount. Treas.
Reg. § 31.3202-1(e). Based on the definition of compensation

464 	286 NEBRASKA REPORTS
as stated in the RRA and RRTA and the agencies’ interpreta-
tions found in federal regulations, we conclude that time lost is
compensation that is subject to taxation. Time lost is equated
with lost wages.
Having determined that time lost is compensation and that
the verdict in favor of Heckman was based in part on time lost,
we must now determine what part of the general verdict is sub-
ject to taxation under the RRTA. The RRB, the federal agency
charged with administering the RRA and funded by the RRTA,
has issued legal opinions that provide guidance in answering
this question.
[8] The RRB’s opinions indicate that absent specific allo-
cations to other components, the RRB treats the total FELA
award as pay for time lost if the payment for personal injury
is based in part on pay for time lost. See, RRB Legal Opinions
L-87-91 (July 1, 1987) and L-92-18. When a jury returns a gen-
eral verdict in a lump sum, the RRB has interpreted 45 U.S.C.
§ 231(h) to require payment of RRTA taxes on the entire judg-
ment amount. RRB Legal Opinion L-87-91. It concluded when
“no part of the verdict was allocated to factors other than pay
for time lost, [then] the whole verdict may be considered pay
for time lost.” Id. The RRB has stated:
If one of the claims for damages is lost wages and the
jury was instructed that it could include lost wages in
determining damages, then it can be concluded that the
judgment is, at least in part, based on pay for time lost.
If this is so, under [45 U.S.C. § 231](h)(2) . . . the entire
amount is pay for time lost.
RRB Legal Opinion L-92-18.
For guidance, the RRB suggested that the types of damages
included in the jury verdict could be inferred by examining
a copy of the complaint filed by the injured party and the
instructions submitted to the jury. Id. In the case at bar, we
have concluded that part of Heckman’s damages included lost
wages. Therefore, Heckman’s general verdict, based in part on
lost wages, would be deemed paid entirely for lost wages and
therefore subject to RRTA taxes on the entire verdict.
The federal circuits have also determined that under the
RRTA, general awards based at least in part on lost wages

HECKMAN v. BURLINGTON NORTHERN SANTA FE RY. CO. 	465
Cite as 286 Neb. 453
are taxed on their entire amount. The Sixth Circuit has held
that payments for personal injury are considered compensa-
tion for time lost. In Hance v. Norfolk Southern Ry. Co.,
571 F.3d 511 (6th Cir. 2009), the plaintiff brought a claim
against his employer for a violation of the Uniformed Services
Employment and Reemployment Rights Act of 1994. Part of
his complaint alleged damages for backpay and lost benefits.
The Sixth Circuit concluded that the backpay award was com-
pensation for time lost and that the employer had to pay tiers 1
and 2 taxes on the backpay award.
In the case at bar, the district court relied on Jacques v.
United States R.R. Retirement Bd., 736 F.2d 34 (2d Cir. 1984).
In Jacques, the defendant was injured while working for his
railroad employer. He sued under FELA, and the case was
settled. The settlement did not indicate how the money was to
be allocated among the different categories of damages alleged
in the complaint, including 5 months of time lost for personal
injury. When the defendant filed for a disability annuity under
the RRA, his claim was denied because he had not met the
minimum months of service to be eligible for disability. The
defendant was 4 months short of the minimum 234 months to
be eligible for a disability annuity. The RRB refused to take
into account the months the defendant was absent from work
due to his disability, for which he was compensated in his
FELA settlement.
The Second Circuit concluded that because the settlement
was not broken down by categories of damages, the entire
award had to be treated as compensation for each of the dam-
ages alleged in the complaint, including time lost. It held:
“Under the provisions of section 231(h)(2), the whole payment
is therefore deemed to have been for time lost . . . .” Jacques,
736 F.2d at 39. The court concluded its analysis of compensa-
tion paid for time lost by stating:
Finally, we note that, in the absence of specific sub-
stantial evidence to the contrary, any reasonable mind
would decide that compensation paid (1) by an employer,
(2) to an employee, (3) for an accident that took place
while the employee was performing his regular duties,
and (4) that caused the employee to be out of work for six

466 	286 NEBRASKA REPORTS
months is compensation paid—at least in part—for lost
time. To suggest otherwise is to strain logic well beyond
its breaking point.
Id. at 41-42.
Citing Jacques, the district court concluded that BNSF
“should not be able to unilaterally decide to apportion the
entirety of a general verdict to wage loss when it finds it ben-
eficial or no portions [sic] in situations when it attempts to
deny retirement benefits.” The district court reasoned that the
outcome affected only Heckman, because either he received
his money immediately and had to forgo retirement credit
or he could receive retirement credit and not receive the
money immediately. Either way, BNSF had to pay the money
to someone.
But the district court misinterpreted Jacques. Under federal
law, time lost for personal injury is deemed to be compensa-
tion. When a jury returns a general verdict based in part on
time lost, the entire award is considered compensation and is
subject to taxation.
Because the jury returned a general verdict that was based
in part on Heckman’s lost wages, we presume that he pre-
vailed on all issues presented to the jury and that Heckman
was awarded lost wages. The district court failed to recog-
nize that absent specific allocations to other components, the
award is deemed compensation for lost wages. See, 45 U.S.C.
§ 231(h)(2); RRB Legal Opinions L-87-91 and L-92-18.
Classification of the award as compensation affects both
Heckman and BNSF because it triggers obligations and ben-
efits of both parties under the RRA. BNSF is required to
pay tiers 1 and 2 taxes, and Heckman receives retirement
benefits for the amount of time he was absent due to his per-
sonal injury.
3. oRdeR diRecting paRties to agRee
no poRtion of awaRd consideRed
lost wages
The district court concluded, and Heckman agrees, that the
parties could negotiate to allocate portions of the jury verdict.
The court ordered the parties to agree in writing that no portion

HECKMAN v. BURLINGTON NORTHERN SANTA FE RY. CO. 	467
Cite as 286 Neb. 453
of the verdict would be considered lost wages “so as not to
place BNSF at odds with the statutory requirement to pay the
[RRTA] Taxes to the IRS as permitted by the rules.”
Heckman argues that because neither party asked for a
special verdict and the jury returned a general verdict, the
district court could not construe what portion of that award, if
any, is attributable to lost wages. We have resolved this issue
against Heckman.
BNSF argues that although an employer and employee can
negotiate and allocate what portion of a settlement agreement
should be deemed lost wages, the jury decided the appropriate
compensation for Heckman’s injuries. Therefore, it is too late
for the parties to agree to allocation and BNSF is obligated
to pay taxes on the entire verdict. BNSF contends that paying
the RRTA taxes on the entire verdict places Heckman in the
same position he would have been in had he not been injured,
because BNSF would have paid RRTA taxes on his compensa-
tion while he was working in return for credit to Heckman’s
retirement account.
[9] 	Employers 	and 	employees 	can 	negotiate 	settlement
agreements and allocate portions of a settlement award to
lost wages and other compensatory categories. See 45 U.S.C.
§ 231(h). During settlement, parties may agree that no portion
of the award is attributable to lost wages. That decision rests
largely with the employer on how it wishes to allocate the
settlement. See 20 C.F.R. § 211.3(a)(2). Heckman and BNSF
could have entered into settlement negotiations and determined
what portion, if any, of a settlement award would be allocated
to time lost. See, 45 U.S.C. § 231(h); 20 C.F.R. § 211.3. But
they were not able to do so.
Instead, this matter was ultimately decided by a jury.
When the jury returned a general verdict based in part on
Heckman’s claim of lost wages, substantive federal law con-
trolled the allocation of the award to lost wages. See 45
U.S.C. § 231(h)(2). The court could not force the parties to
agree to change the basis of the verdict. We find no author-
ity that would permit the court to order BNSF to agree to an
allocation of the settlement after the verdict was entered. See
20 C.F.R. § 211.3(a)(2). Because the verdict was based in part

468 	286 NEBRASKA REPORTS
on lost wages and no damages were specifically apportioned,
the entire verdict is deemed compensation for lost wages. See
45 U.S.C. § 231(h)(2). Therefore, the entire award became
subject to RRTA taxes. See I.R.C. § 3121(a). Under the RRA,
the entire award is compensation subject to RRTA taxes that
must be paid by the employer.
The district court erred when it required that the parties
agree in writing that no portion of the general verdict could be
considered lost wages to avoid BNSF’s obligation to pay RRTA
taxes on Heckman’s entire award.
VI. CONCLUSION
We conclude that Heckman’s entire award was compensa-
tion subject to RRTA taxation. The district court erred in deny-
ing BNSF’s motion for satisfaction and discharge of judgment
and ordering that the parties agree in writing that no portion
of the general verdict was based on lost wages. Therefore, we
reverse the judgment and remand the cause with directions that
the district court enter a satisfaction and discharge of the judg-
ment upon proof of payment of $6,202.70 by BNSF to the IRS
on account of the lost wages paid to Heckman.
R eveRsed and Remanded with diRections.
sheRman t., individually and as next
fRiend of BRayden n., appellant,
v. kaRyn n., appellee.
837 N.W.2d 746
Filed August 16, 2013. 	No. S-12-515.
1. Trial: Courts. A court cannot err with respect to a matter not submitted to it
for disposition.
2. Appeal and Error. An issue not presented to or passed on by the trial court is not
appropriate for consideration on appeal.
3. Standing: Claims: Parties. To have standing, a litigant must assert the litigant’s
own rights and interests.
4. Motions to Dismiss: Rules of the Supreme Court: Jurisdiction: Pleadings:
Service of Process. When a motion to dismiss raises both Neb. Ct. R. Pldg.
§ 6-1112(b)(1) and § 6-1112(b)(6), the court should consider dismissal under