Lagemann v. Nebraska Methodist Hosp.

Julie lagemann, appellant, v. nebraska
methodist hospital , appellee .
762 N.W.2d 51
Filed March 6, 2009. 	No. S-08-582.
1. Workers’ Compensation: Appeal and Error. When reviewing a compensation
award under Neb. Rev. Stat. § 48-185 (Reissue 2004), an appellate court may
modify, reverse, or set aside a Workers’ Compensation Court decision only when
(1) the compensation court acted without power or exceeded its powers; (2) the
judgment, order, or award was procured by fraud; (3) the record lacks sufficient
competent evidence to warrant the making of the order, judgment, or award; or
(4) the compensation court’s factual findings do not support the order or award.
2. ____: ____. On appellate review of a workers’ compensation award, the trial
judge’s factual findings have the effect of a jury verdict and will not be disturbed
unless clearly wrong.
3. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
and an appellate court independently decides questions of law.
4. Workers’ Compensation: Penalties and Forfeitures: Time: Appeal and Error.
Where a reasonable controversy exists between an employer and an employee
as to the payment of workers’ compensation, the employer is not liable for the
penalty provided in Neb. Rev. Stat. § 48-125 (Cum. Supp. 2008) during the time
the case is pending in the courts for final determination.
5. Workers’ Compensation: Time: Notice: Appeal and Error. Under Neb. Rev.
Stat. § 48-125 (Cum. Supp. 2008), the Nebraska Supreme Court has recognized
two circumstances in which the 30-day time limit applies for the payment of
compensation: (1) upon the employee’s notice of disability if no reasonable con-
troversy exists regarding the claim or (2) after a final adjudicated award if one
of the parties appeals and a reasonable controversy existed regarding the claim
pending trial.
6. Workers’ Compensation: Final Orders: Time: Appeal and Error. When a
party appeals a workers’ compensation award to an appellate court, the award
is not final and the waiting-time period for payment of benefits does not
commence to run until the appellate court’s mandate is filed in the Workers’
Compensation Court.
7. Statutes: Judicial Construction: Legislature: Presumptions: Intent. Ordinarily,
when an appellate court judicially construes a statute and that construction fails
to evoke an amendment, it is presumed that the Legislature has acquiesced in the
court’s determination of the Legislature’s intent.
Appeal from the Workers’ Compensation Court. Affirmed.
James E. Harris and Britany S. Shotkoski, of Harris Kuhn
Law Firm, L.L.P., for appellant.
LAgEMANN v. NEBRASKA MEtHOdiSt HOSP. 	335
Cite as 277 Neb. 335
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

Lindsay K. Lundholm and Kirk S. Blecha, of Baird Holm,
L.L.P., for appellee.
heavican, 	c.J., 	Wright, 	connolly, 	gerrard, 	stephan,
mccormack , and miller-lerman, JJ.
connolly, J.
SUMMARY
in this workers’ compensation case, Julie Lagemann appeals
the review panel’s decision, which followed the Nebraska
Court of Appeals’ mandate from her earlier appeal. the
Court of Appeals had affirmed the original award of benefits.
On remand, the review panel affirmed the trial judge’s order
that denied her waiting-time penalties, interest, and attorney
fees under Neb. Rev. Stat. § 48-125 (Reissue 2004). the
issue is whether under a 1999 amendment to § 48-125, if an
employee appeals the review panel’s decision, the employer
is liable for waiting-time penalties pending an appeal for
any portion of the benefits award that the employer does not
cross-appeal.
We held in Leitz v. Roberts Dairy1 that employees are not
entitled to waiting-time penalties pending an appeal when a
reasonable controversy existed regarding the employee’s claim.
in that circumstance, the 30-day waiting-time period does not
commence until the final adjudicated award is entered. in 1999,
the Legislature amended § 48-125 and effectively codified our
holding in Leitz. Because the trial judge correctly applied Leitz,
we affirm.
BACKgROUNd
in April 2005, Lagemann sued her employer, Nebraska
Methodist Hospital. She sought temporary total disability
benefits, permanent disability benefits, and, under § 48-125,
waiting-time penalties and attorney fees. Later, in June 2006,
the trial judge awarded her benefits for temporary total
disability and permanent partial disability. But it denied
Lagemann waiting-time penalties and attorney fees. the trial
1 Leitz v. Roberts Dairy, 239 Neb. 907, 479 N.W.2d 464 (1992).
336 	277 NEBRASKA REPORtS

judge found that a reasonable controversy existed regarding
the cause of her injuries, impairment, and loss of earn-
ing power.
Lagemann appealed to the review panel the trial judge’s
finding that she only had a 25-percent loss of earning power,
and the hospital cross-appealed. She did not, however, appeal
the trial judge’s finding that her claim presented a reason-
able controversy. the review panel affirmed. Lagemann then
appealed to the Nebraska Court of Appeals, and the hospital
did not cross-appeal.
in a memorandum opinion filed on July 9, 2007, in case
No. A-06-1421, the Court of Appeals affirmed the review
panel’s decision. the court’s mandate was filed in the Workers’
Compensation Court on August 15. Lagemann moved for
waiting-time penalties, interest, and attorney fees. the trial
judge received Lagemann’s and her attorney’s affidavits. in
Lagemann’s affidavit, she stated that on August 14, the hospital
hand-delivered to her attorney payments covering her benefits
award. the Workers’ Compensation Court issued an order on
the mandate on August 29.
the trial judge rejected Lagemann’s argument that the
Court of Appeals’ memorandum opinion, issued on July 9,
2007, triggered the 30-day waiting-time period. it concluded
that under Leitz, the 30-day period did not commence until the
court’s mandate was filed in the compensation court. the trial
judge reasoned that the mandate was necessary to reinvest the
compensation court with jurisdiction. Lagemann also argued
that because her appeal involved only permanent disability,
the hospital had failed to timely pay temporary disability bene-
fits within 30 days of the review panel’s order affirming her
award. the review panel affirmed, concluding that the trial
judge had correctly applied Leitz.
ASSigNMENt OF ERROR
Lagemann claims that the trial judge erred in not finding
that the hospital untimely paid that part of the award that it
failed to cross-appeal. thus, she contends that the trial judge
erred in failing to find that her award was subject to waiting-
time penalties.
LAgEMANN v. NEBRASKA MEtHOdiSt HOSP. 	337
Cite as 277 Neb. 335

StANdARd OF REViEW
[1-3] When reviewing a compensation award under Neb.
Rev. Stat. § 48-185 (Reissue 2004), we may modify, reverse, or
set aside a Workers’ Compensation Court decision only when
(1) the compensation court acted without power or exceeded
its powers; (2) the judgment, order, or award was procured by
fraud; (3) the record lacks sufficient competent evidence to
warrant the making of the order, judgment, or award; or (4) the
compensation court’s factual findings do not support the order
or award.2 And on appellate review of a workers’ compensa-
tion award, the trial judge’s factual findings have the effect of
a jury verdict and will not be disturbed unless clearly wrong.3
Statutory interpretation, however, presents a question of law,
and we independently decide questions of law.4
ANALYSiS
A 1999 amendment to § 48-125 provides the flashpoint of
the parties’ dispute. Section 48-125(1) (Cum. Supp. 2008), in
relevant part, now provides:
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. 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
compensation court . . . .
(Emphasis supplied.)
the Legislature added the language italicized above through
the 1999 amendment.5
Lagemann makes several arguments. First, she contends that
because the hospital did not appeal the review panel’s decision,
no reasonable controversy existed whether the hospital owed
2 See Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).
3 See id.
4 See Powell v. Estate Gardeners, 275 Neb. 287, 745 N.W.2d 917 (2008).
5 See 1999 Neb. Laws, L.B. 216.
338 	277 NEBRASKA REPORtS

her benefits for at least a 25-percent loss of earning power. She
argues that under Gaston v. Appleton Elec. Co.,6 the 30-day
waiting-time period began when the review panel entered its
order affirming the trial judge’s decision.
Second, Lagemann contends that the Legislature’s 1999
amendment of § 48-125 created two separate circumstances in
which a court may award waiting-time penalties. She argues
that the trial judge improperly focused on only the statute’s
“final judgment” component. She contends that § 48-125 also
permits a court to award waiting-time penalties without a final
order. She argues that requiring the Court of Appeals’ mandate
to be filed in the Workers’ Compensation Court to commence
the 30-day waiting-time period conflicts with the statute’s
plain language.
third, Lagemann argues that the trial judge’s and review pan-
el’s interpretation of § 48-125 was contrary to the Legislature’s
intent to protect workers from adverse economic consequences
caused by work-related injuries. She also argues that Nebraska
case law holds that employers must pay at least the benefits for
which liability is undisputed.
Obviously, the hospital disagrees. it argues that the trial
judge properly concluded that Leitz controls the case’s dis-
position. it further argues that the “reasonable controversy”
standard applies only when an employer denies benefits before
an employee commences an action, not when a party appeals
a trial judge’s award. We agree that the reasonable controversy
standard only applies when an employer denies benefits pend-
ing trial, not when an employer fails to pay benefits pending
an appeal.
We have construed § 48-125 to require an employer to pay
the 50-percent waiting-time penalty in the following circum-
stances: if (1) the employer fails to pay compensation within
30 days of the employee’s notice of a disability and (2) no rea-
sonable controversy existed regarding the employee’s claim for
benefits.7 if an appellate court determines that no reasonable
6 Gaston v. Appleton Elec. Co., 253 Neb. 897, 573 N.W.2d 131 (1998).
7 See, e.g., id.; Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408
N.W.2d 280 (1987).
LAgEMANN v. NEBRASKA MEtHOdiSt HOSP. 	339
Cite as 277 Neb. 335

controversy existed regarding the employee’s claim for bene-
fits, the employer must pay waiting-time penalties from the
date of the award until it pays the benefits under the appellate
court’s mandate.8 Also, even if the employer disputes in good
faith the total compensation owed pending trial, the employer
must pay any portion of the claim for which it admits liability.9
Finally, when an employer appeals, it will not be excused from
paying compensation 30 days following the date of the award
unless the employer has an actual basis in law or fact for dis-
puting the award.10
in arguing for waiting-time penalties, Lagemann relies on
cases in which the court imposed penalties for an employer’s
failure to pay benefits pending trial after it had offered a
settlement. But here, the hospital did not admit any liability
pending trial. Nor did Lagemann appeal the trial judge’s find-
ing that a reasonable controversy existed. And she does not
contend that the hospital’s appeal was unjustified. Her reli-
ance is misplaced. those cases involved an employer’s pre-
trial admission of liability—not waiting-time penalties pend-
ing appeal.
[4] in Leitz, we specifically considered whether the plaintiffs
were entitled to waiting-time penalties pending the employer’s
appeal. We held:
Where a reasonable controversy exists between an
employer and an employee as to the payment of work-
ers’ compensation, the employer is not liable for the
penalty provided in Neb. Rev. Stat. § 48-125 (Reissue
1988) during the time the case is pending in the courts
for final determination. . . . Because a reasonable con-
troversy existed . . . the plaintiffs were not entitled to a
8 See, Roth v. Sarpy Cty. Highway Dept., 253 Neb. 703, 572 N.W.2d 786
(1998); Mendoza, supra note 7; Abel Construction Co. v. Goodman, 105
Neb. 700, 181 N.W. 713 (1921).
9 See, Grammer v. Endicott Clay Products, 252 Neb. 315, 562 N.W.2d 332
(1997); Musil v. J.A. Baldwin Manuf. Co., 233 Neb. 901, 448 N.W.2d
591 (1989); Kubik v. Union Ins. Co., 4 Neb. App. 831, 550 N.W.2d 691
(1996).
10 Roth, supra note 8; Mendoza, supra note 7.
340 	277 NEBRASKA REPORtS

penalty payment during the pendency of the appeal to
this court.11
But we also held that the waiting-time penalty “applies not
only to interim payments of compensation, but also to fully
litigated cases.”12 We reasoned that because contested claims
cause a delay of compensation, it is imperative to discourage
any further delay following an appeal.
[5] thus, in Leitz, we recognized two different circum-
stances under § 48-125 in which the 30-day time limit applies
for the payment of compensation: (1) upon the employee’s
notice of disability if no reasonable controversy exists regard-
ing the claim or (2) after a final adjudicated award if one of the
parties appeals and a reasonable controversy existed regarding
the claim pending trial. in two 1998 cases involving employer
appeals, we similarly stated that under § 48-125, waiting-time
penalties apply to final adjudicated awards.13 the Legislature’s
amendment of § 48-125 did not overturn our holding in Leitz.
While our case law is generally consistent with Leitz,14 we
recognize that some of our cases suggest that an employer
must pay an award pending an appeal.15 Even recently, we have
stated, “generally, where there has been an award of benefits,
the employee is not to be left without those benefits during
appeal.”16 But to the extent our cases have not been consistent,
the issue has been decided by the Legislature.
11 Leitz, supra note 1, 239 Neb. at 909, 479 N.W.2d at 466, citing Steward
v. Deuel County, 137 Neb. 516, 289 N.W. 877 (1940), and Abel, supra
note 8.
12 Leitz, supra note 1, 239 Neb. at 910-11, 479 N.W.2d at 467.
13 See, Gaston, supra note 6; Roth, supra note 8.
14 See, Steward, supra note 11; Wilson v. Brown-McDonald Co., 134 Neb.
211, 278 N.W. 254 (1938); Claus v. DeVere, 120 Neb. 812, 235 N.W. 450
(1931), overruled on other grounds, Spiker v. John Day Co., 201 Neb. 503,
270 N.W.2d 300 (1978).
15 See, Osborn v. Omaha Structural Steel Co., 105 Neb. 216, 179 N.W.
1022 (1920); Updike Grain Co. v. Swanson, 104 Neb. 661, 178 N.W. 618
(1920).
16 Gibson v. Kurt Mfg., 255 Neb. 255, 265, 583 N.W.2d 767, 773 (1998), cit-
ing 8 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation
Law § 80.54 (1998).
LAgEMANN v. NEBRASKA MEtHOdiSt HOSP. 	341
Cite as 277 Neb. 335

As noted, in 1999, the Legislature amended § 48-125.17
Before the amendment, § 48-125 did not correspond to this
court’s holding in Leitz. it provided a waiting-time penalty only
after an employee’s notice of disability: “[F]ifty percent shall
be added for waiting time for all delinquent payments after
thirty days’ notice has been given of disability.”18 the amend-
ment, as relevant here, revised § 48-125 to provide a second
circumstance in which a waiting-time penalty applies: “[F]ifty
percent shall be added for waiting time for all delinquent pay-
ments after thirty days’ notice has been given of disability or
after thirty days from the entry of a final order, award, or judg-
ment of the compensation court.”19
[6] if the Legislature had intended to overturn our decision
in Leitz, it would have specified that waiting-time penalties
are available pending an appeal for any uncontested portion
of the award. to the contrary, the Legislature has codified our
holding in Leitz by recognizing the additional circumstance in
which the 30-day time limit applies following litigation. Under
Leitz, when a party appeals a workers’ compensation award
to an appellate court, the award is not final and the waiting-
time period for payment of benefits does not commence to
run until the appellate court’s mandate is filed in the Workers’
Compensation Court. Regarding the original circumstance for
awarding waiting-time penalties, the Legislature did not amend
that language.
[7] Ordinarily, when an appellate court judicially construes
a statute and that construction fails to evoke an amendment,
it is presumed that the Legislature has acquiesced in the
court’s determination of the Legislature’s intent.20 Because the
Legislature did not change the original language, waiting-time
penalties under this part of the statute apply only in the two
circumstances delineated by this court in Leitz and later cases.
17 See L.B. 216.
18 § 48-125(1) (Reissue 1998).
19 § 48-125(1) (Reissue 2004) (emphasis supplied). See L.B. 216.
20 See Semler v. Sears, Roebuck & Co., 268 Neb. 857, 689 N.W.2d 327
(2004).
342 	277 NEBRASKA REPORtS

those circumstances are the employer’s obligation to pay claims
(1) upon the employee’s notification of a disability before an
adjudication or (2) after a final adjudicated award is entered.
the “final adjudicated award” circumstance is now subsumed
in the amendment’s added language. thus, the “after thirty
days’ notice” language only applies to an employer’s failure to
timely pay benefits pending trial. We conclude that the 1999
amendment simply made § 48-125 consistent with our hold-
ing in Leitz and did not authorize the Workers’ Compensation
Court to impose waiting-time penalties absent a final adjudica-
tion when a party appeals. We affirm.
affirmed.
LAgEMANN v. NEBRASKA MEtHOdiSt HOSP. 	343
Cite as 277 Neb. 335