Stueve v. Valmont Indus.

CONCLUSION
The district court correctly ruled as a matter of law that
under § 30-2488(a), Hillyer’s petition for allowance of a claim
was barred and correctly dismissed the petition. We affirm.
A ffirmed.
Wright, J., participating on briefs.
Jeffrey L. Stueve , AppeLLee , And robert g. K rAfKA,
AppeLLAnt, v. vALmont induStrieS, AppeLLee .
761 N.W.2d 544
Filed February 27, 2009. 	No. S-08-397.
1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat.
§ 48-185 (Reissue 2008), 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 did not support the order or award.
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 fact of the single judge who conducted the original
hearing; the findings of fact of the single judge will not be disturbed on appeal
unless clearly wrong.
3. ____: ____. An appellate court is obligated in workers’ compensation cases to
make its own determinations as to questions of law.
4. 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.
5. Workers’ Compensation: Attorney Fees. The power of the Workers’
Compensation Court to resolve attorney fee disputes is derived from Neb. Rev.
Stat. § 48-108 (Reissue 2008).
6. ____: ____. The Workers’ Compensation Court is an appropriate forum for deter-
mining fees payable to a claimant’s current or prior attorney for services that the
attorney rendered while representing the claimant before the court.
7. Attorney Fees. When an attorney’s services are terminated prior to the comple-
tion of representation, the attorney is entitled to the reasonable value of his or her
services rendered up to the time of termination.
8. Attorney Fees: Contracts. An attorney fee contract is not enforceable in the
absence of a showing that the amount of the claimed fee is reasonable.
292 	277 NebRASkA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

Appeal from the Workers’ Compensation Court. Reversed
and remanded with directions.
Robert G. krafka, of krafka Law Office, pro se.
Jeffrey L. Stueve, pro se.
heAvicAn, 	c.J., 	Wright, 	connoLLy, 	gerrArd, 	StephAn,
mccormAcK, and miLLer-L ermAn, JJ.
miLLer-L ermAn, J.
NATURe OF THe CASe
Appellant 	attorney 	Robert 	G. 	krafka 	challenges 	two
orders entered by a single judge of the Nebraska Workers’
Compensation Court as affirmed by the review panel on
April 2, 2008. The orders awarded krafka an attorney’s lien
on a portion of a workers’ compensation award entered in
favor of krafka’s client, Jeffrey L. Stueve. krafka claims
that the attorney’s lien was insufficient and that the review
panel erred in affirming the determinations of the single
judge. We reverse the decision of the review panel that
affirmed the single judge’s rulings, and we remand the cause
with directions.
STATeMeNT OF FACTS
On June 16, 2003, krafka entered into an employment
contract for legal services with Stueve. The contract stated in
relevant part:
As I explained to you, if you wish me to represent
you, my fee will be THIRTY-THRee AND ONe-THIRD
PeRCeNT (33 1/3%) of any recovery through the first
trial. Any work done for you after the first trial, if it is
necessary, shall result in an additional five percent (5%)
being charged for appeal.
On June 29 and July 23, 2004, a 2-day trial was held
on Stueve’s claimed injuries, insured in connection with his
employment at Valmont Industries. On December 8, the sin-
gle judge entered an award in favor of Stueve. The award
noted that Stueve was suffering from separate injuries that
were caused by separate accidents: (1) bilateral carpal tunnel
STUeVe v. VALMONT INDUS. 	293
Cite as 277 Neb. 292

syndrome and hand-arm vibration syndrome (HAVS) and (2)
a shoulder injury that the court described as a “superior labral
tear.” The court ordered that for these injuries, along with cer-
tain medical expenses, Stueve should be compensated as fol-
lows: (1) from June 20 through November 7, 2003, temporary
indemnity payments for the bilateral carpal tunnel syndrome
and HAVS in the amount of $391.79 per week and a concur-
rent temporary indemnity payment of $95.21 per week for
the shoulder injury, and (2) from November 8, 2003, forward,
through the period of temporary total disability for the shoul-
der injury, temporary total indemnity payments of $391.79
per week for the shoulder injury and a concurrent payment of
$95.21 per week permanent partial indemnity for the bilateral
carpal tunnel syndrome and HAVS. The court found that the
total permanent indemnity payable for the bilateral carpal tun-
nel syndrome and HAVS was $47,602.49. krafka contends
that, given this award, it is likely that Stueve will receive
future payments for his shoulder injury, but that the amount of
these payments is unknown.
At a hearing, on December 7, 2006, krafka filed a motion
to withdraw as counsel for Stueve and new counsel entered an
appearance. According to krafka, the parties terminated their
engagement due to a difference of opinion that is not relevant
to this appeal.
On January 12, 2007, the single judge held a hearing on the
attorney fees due krafka. At that hearing, Stueve indicated that
krafka was entitled to one-third of the $47,602.49 permanent
indemnity award. krafka testified that this was a complicated
case and that his records indicated that he had incurred around
$90,000 in attorney fees representing Stueve.
On February 7, 2007, the single judge entered an order on
the issue of attorney fees. In his order, the single judge noted
that krafka sought a full fee based on the contingency fee
agreement, but did not complete all of the work in Stueve’s
case. The single judge noted that various matters were still
pending, including employer Valmont Industries’ January 24,
2007, application to modify the December 8, 2004, award,
motions regarding Stueve’s entitlement to medical care, and an
outstanding determination as to the status of Stueve’s shoulder
294 	277 NebRASkA RePORTS

injury as either being temporarily totally disabled or reaching
permanent indemnity.
balancing these considerations, the single judge evaluated
krafka’s lien under the doctrine of quantum meruit and stated:
The Court evaluates . . . krafka’s lien for future
attorney’s fees pursuant to quantum meruit doctrine and
finds . . . krafka is entitled to an attorney’s fee against
future temporary total indemnity payments provided by
the award. However, there are pending motions regarding
entitlement to medical care and now, defendant’s applica-
tion to modify the award. Upon a change of [Stueve’s]
status — i.e., . . . Stueve continues to be temporarily
totally disabled but pursuant to a surgery subsequent to
this order, he reaches maximum medical improvement
and then becomes entitled to temporary total indemnity
during a period of vocational rehabilitation or reaches
maximum medical improvement and becomes entitled to
permanent indemnity — . . . krafka’s entitlement to an
attorney’s fee will terminate, upon motion of [Stueve] and
order of the Court.
IT IS THEREFORE ORDERED that . . . krafka
has a lien for services provided equal to one-third of the
temporary total indemnity payable pursuant to the Award
of December 8, 2004, as provided above. Indemnity pay-
ments shall continue to . . . krafka and . . . Stueve
through . . . krafka’s office. . . . krafka is further entitled
to reimbursement of expenses in the amount of $864.55
which will be payable upon final settlement of [Stueve’s]
claim and further order of the Court.
On February 12, 2007, krafka appealed this order to the
review panel. On Septemer 14, the review panel entered an
order of remand on review. In that order, the review panel
noted that the December 8, 2004, award provided for both
the payment of temporary total indemnity payments and per-
manent indemnity payments for member injuries, but that in
the February 7, 2007, order on attorney fees, the single judge
made no mention of an attorney’s lien in favor of krafka on
the award of permanent indemnity benefits. The panel found
that the action should be remanded to the single judge for
STUeVe v. VALMONT INDUS. 	295
Cite as 277 Neb. 292

additional findings with respect to an attorney’s lien in favor of
krafka on the award of permanent indemnity benefits.
On remand, the single judge entered an order on November
1, 2007, containing rulings relevant to this appeal, but did not
include an award to krafka of additional fees. On November 2,
krafka appealed this decision for a second review hearing by a
three-judge panel. On April 2, 2008, the review panel affirmed
the November 1, 2007, order, concluding that because the
November 1 order on remand was not clearly wrong, it should
be affirmed. krafka appeals the review panel’s order.
ASSIGNMeNTS OF eRROR
krafka lists 11 assignments of error, which we combine
for analysis. krafka assigns, restated, that the review panel
erred in affirming the single judge’s November 1, 2007, order.
krafka claims that the single judge erred by (1) not placing a
one-third attorney’s lien upon the permanent indemnity award
of $47,602.49, (2) not awarding krafka any potential attorney
fees derived from a future award that Stueve would receive as
the result of work completed by krafka, and (3) not holding a
hearing and making a further finding that attorney fees will be
due for the permanent indemnity injury as the single judge was
instructed to do by the review panel’s order of remand.
STANDARDS OF ReVIeW
[1-3] Pursuant to Neb. Rev. Stat. § 48-185 (Reissue 2008),
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 judg-
ment, 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 did not support the order or award.
Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d
785 (2008). 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
fact of the single judge who conducted the original hearing;
the findings of fact of the single judge will not be disturbed on
296 	277 NebRASkA RePORTS

appeal unless clearly wrong. Id. An appellate court is obligated
in workers’ compensation cases to make its own determinations
as to questions of law. See Powell v. Estate Gardeners, 275
Neb. 287, 745 N.W.2d 917 (2008).
ANALYSIS
As an initial matter, we note that although krafka states
as the basis for appellate jurisdiction that he is appealing the
single judge’s order of November 1, 2007, denying him addi-
tional attorney fees, it is clear that he is appealing the review
panel’s order of April 2, 2008, affirming the November 1,
2007, order.
On appeal, krafka claims that the single judge did not
comply with the review panel’s September 14, 2007, order
remanding the case and directing the single judge to make
additional findings with respect to a lien in favor of krafka on
the permanent indemnity benefits. krafka notes that the initial
single-judge December 8, 2004, award of payments to Stueve
discusses two permanent indemnities: (1) the permanent award
of $47,602.49 for carpal tunnel syndrome and HAVS and (2)
a potential award of future damages to Stueve for his shoulder
injury. krafka complains that the single judge’s November 1,
2007, order on remand does not make findings or order an
attorney’s lien with respect to either of these amounts.
[4-6] 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.
Foster v. BryanLGH Med. Ctr. East, 272 Neb. 918, 725 N.W.2d
839 (2007). The power of the Workers’ Compensation Court
to resolve attorney fee disputes is derived from Neb. Rev.
Stat. § 48-108 (Reissue 2008), which allows the compensation
court to enter a lien “against any amount thereafter to be paid
as damages or compensation.” In Foster, we stated that the
Workers’ Compensation Court was an appropriate forum for
determining fees payable to a claimant’s current or prior attor-
ney for services that the attorney rendered while representing
the claimant before the court.
In this case, in its order of February 7, 2007, the single
judge awarded krafka “a lien for services provided equal to
STUeVe v. VALMONT INDUS. 	297
Cite as 277 Neb. 292

one-third of the temporary total indemnity payable pursuant to
the Award of December 8, 2004 [and] $864.55 which will be
payable upon final settlement of [Stueve’s] claim and further
order of the Court.” On appeal of this order, the review panel
noted that the single judge had not addressed any award of
permanent indemnity benefits in connection with the attorney’s
lien issue and, therefore, remanded the case for the single
judge to do so.
On remand, the single judge did not alter his initial award,
but, in his order of November 1, 2007, stated by way of
clarification:
As the review panel noted, . . . Stueve does not contest the
payment of fees on the permanent indemnity already paid
. . . krafka for the member impairment rating. Therefore,
I made no finding regarding entitlement to a lien by . . .
krafka for fees already paid. If it was the review panel’s
intention that collection of those fees by . . . krafka be
approved by the Court, I do so by this order. The fact of
the matter is that the attorney’s fees payable for the mem-
ber injury were long ago paid . . . krafka and . . . Stueve
had no objection to payment.
The single judge’s order on remand, however, did not elabo-
rate on when the permanent indemnity payments for the mem-
ber injury were “long ago paid” to krafka, and in what amount,
or address any future payments for the shoulder injury and
their relevance to the claimed attorney’s lien. Nevertheless,
the review panel found, in an order filed on April 2, 2008,
that because the November 1, 2007, order on remand was not
clearly wrong, it should be affirmed. The review panel further
stated that “[s]ince [the single judge] has now complied with
the order of this review panel of September 14, 2007, the
review panel further finds the order of [the single judge] of
February 7, 2007, as now expanded by his order of [November
1, 2007], should also be affirmed.”
As elaborated below, we conclude that the review panel’s
April 2, 2008, order affirming the single judge’s November
1, 2007, order on remand is not reasoned, is not supported by
the facts, and requires reversal. The November 1 order did not
298 	277 NebRASkA RePORTS

clarify the attorney fee award, as the single judge had been
directed to do by the review panel in the review panel’s order
remanding the case. We, therefore, reverse the review panel’s
order and remand the cause with directions to determine an
award of attorney fees due krafka.
[7] krafka and Stueve signed a contingency fee agreement
that awarded krafka one-third of any amount recovered by
Stueve. However, krafka was terminated from representing
Stueve before the completion of the action before the Workers’
Compensation Court. In Baker v. Zikas, 176 Neb. 290, 125
N.W.2d 715 (1964), we held that when an attorney’s services
are terminated prior to the completion of representation, the
attorney is entitled to the reasonable value of his or her ser-
vices rendered up to the time of termination.
[8] More recently in Hauptman, O’Brien v. Turco, 273 Neb.
924, 735 N.W.2d 368 (2007), this court explained that an attor-
ney fee contract is not enforceable in the absence of a showing
that the amount of the claimed fee is reasonable. In making this
determination, we reasoned that “an attorney fee agreement is
different from conventional commercial contracts. . . . [A]n
attorney may not recover for services rendered if those services
are rendered in contradiction to the requirements of profes-
sional responsibility and are inconsistent with the character
of the profession.” Id. at 930, 735 N.W.2d at 373. Therefore,
when determining a satisfactory fee for services, the primary
inquiry is reasonableness.
In 	Turco, 	we 	explained 	that 	the 	Code 	of 	Professional
Responsibility, which was in effect when the legal services
in this case were performed, enumerated eight factors to be
considered as guides in determining the reasonableness of the
fee. See Code of Professional Responsibility, Canon 2, DR
2-106(b). The Nebraska Rules of Professional Conduct, which
are currently in effect, list the same eight factors in determin-
ing reasonableness. See Neb. Ct. R. of Prof. Cond. § 3-501.5.
The factors include
(1) the time and labor required, the novelty and diffi-
culty of the questions involved, and the skill requisite to
perform the legal service properly;
STUeVe v. VALMONT INDUS. 	299
Cite as 277 Neb. 292

(2) the likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude
other employment by the lawyer;
(3) the fee customarily charged in the locality for simi-
lar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relation-
ship with the client;
(7) the experience, reputation, and ability of the lawyer
or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
Id.
based on this jurisprudence, and the record before us, we
conclude that krafka is entitled to a reasonable amount for
the services he rendered while representing Stueve before
the Workers’ Compensation Court. See Foster v. BryanLGH
Med. Ctr. East, 272 Neb. 918, 725 N.W.2d 839 (2007). The
value of an attorney’s services is ordinarily a question of fact.
Hauptman, O’Brien v. Turco, supra. Here, the evidence offered
by krafka established that krafka and Stueve signed a con-
tingent fee contract agreeing that krafka would receive one-
third of any award in favor of Stueve; that krafka estimated
he incurred the equivalent of $90,000 working on Stueve’s
case; and that during the pendency of this contract Stueve
was awarded at a minimum $47,602.49 for his carpal tunnel
syndrome and an undetermined amount of future payments for
his shoulder injury. There is not a clear record of the amount
krafka has been paid to date in connection with existing
awards. Further, there is not a clear order determining either
the amount or the method by which krafka is to be paid in
connection with a future award, the very existence of which is
due to krafka’s services.
Given the record and applicable law, we conclude that
krafka is due one-third of the amount Stueve was awarded up
to the date krafka was discharged, minus the amount krafka
has been paid to date, and a reasonable amount of any future
amount Stueve will recover on his shoulder injury as a result
300 	277 NebRASkA RePORTS

of the December 8, 2004, order. With respect to the latter, the
record shows that any award Stueve receives for his shoulder
injury is effectively due to krafka’s work. In determining a
reasonable amount on any future award for the shoulder injury,
the Workers’ Compensation Court shall use the factors out-
lined in this opinion and found in the Code of Professional
Responsibility as now included in the Nebraska Rules of
Professional Conduct.
CONCLUSION
The review panel order of April 2, 2008, affirming the
November 1, 2007, order of the single judge is reversed. The
cause is remanded to the review panel to remand the matter to
the single judge with directions to hold a hearing to determine
the amount krafka has been paid and the amount still owed to
him, consistent with this opinion.
reverSed And remAnded With directionS.
STUeVe v. VALMONT INDUS. 	301
Cite as 277 Neb. 292