Obermiller v. Peak Interest

capacity or to OMNI’s contractual relationship with the State
of Nebraska.
The evidence received in support of the motion for summary
judgment shows that Stitt did not, as a matter of law, wrong-
fully interfere in her individual capacity with any contractual
relationship between OMNI and the State of Nebraska, and the
district court did not err in entering summary judgment with
respect to this claim.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court.
A ffirmed.
H eAvicAn, C.J., not participating.
Jon obermiller , AppellAnt, v. peAk interest, l.l.c.,
doing business As pizzA Hut, And tig
insurAnce compAny, Appellees.
764 N.W.2d 410
Filed April 23, 2009. 	No. S-08-836.
1. Workers’ Compensation: Appeal and Error. 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 with-
out 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. Workers’ Compensation: Limitations of Actions: Appeal and Error.
Determining when the statute of limitations begins under Neb. Rev. Stat. § 48-137
(Reissue 2004) presents a question of law. When reviewing a question of law, an
appellate court resolves it independently of the lower court’s determination.
3. Workers’ Compensation: Limitations of Actions: Words and Phrases.
Under Neb. Rev. Stat. § 48-137 (Reissue 2004), the “time of the making of
the last payment” means the date the employee or the employee’s provider
receives payment.
Appeal from the Workers’ Compensation Court. Reversed
and remanded with directions.
656 	277 NebRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

Nicole M. Mailahn, of Jacobsen, Orr, Nelson, Lindstrom &
Holbrook, p.C., L.L.O., for appellant.
bill 	Lamson, 	of 	Timmermier, 	Gross 	& 	prentiss, 	for
appellees.
H eAvicAn, c.J., WrigHt, connolly, gerrArd, stepHAn, and
mccormAck , JJ.
connolly, J.
SUMMARY
After an employer or its insurer has paid compensation, Neb.
Rev. Stat. § 48-137 (Reissue 2004) bars an employee’s claim if
the employee fails to file suit within 2 years after the last pay-
ment. This appeal addresses whether the statute of limitations
begins to run when the employer or its provider mails pay-
ment or when the employee receives payment. The trial judge
determined that the date the employer mails payment starts the
statute of limitations and granted summary judgment to the
employer. The review panel affirmed. We reverse, and remand
with directions because using the date the employee receives
payment gives the employee a more definitive date for knowing
when the statute of limitations starts.
bACkGROUND
On October 23, 1996, Jon Obermiller sustained an injury
while employed with peak Interest, L.L.C., doing business as
pizza Hut. He alleged that his injury accelerated a preexisting
injury to both knees. He filed a compensation claim against
peak Interest and its insurer, TIG Insurance Company (herein-
after collectively pizza Hut), on February 8, 2005.
In its answer, pizza Hut alleged that under § 48-137, the stat-
ute of limitations barred Obermiller’s cause of action. Under
§ 48-137, when an employer or its insurer has paid compensa-
tion, all claims shall be forever barred 2 years from the time of
the making of the last payment. pizza Hut claims that it mailed
its last payment on February 7, 2003. because Obermiller
filed his claim on February 8, 2005, pizza Hut alleged that the
statute of limitations barred his claim. Obermiller countered
that because his treating physician did not receive the payment
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until February 13, 2005, the statute of limitations did not bar
his claim.
Thus, the issue presented to the trial judge was whether the
starting date for the statute of limitations period began the date
pizza Hut mailed the last payment or the date Obermiller’s
physician received it. Relying upon Brown v. Harbor Fin.
Mortgage Corp.,1 the trial judge found that a certain consis-
tency ought to exist when interpreting “payment” in the work-
ers’ compensation statutes. He could discern no reasonable
distinction between the making of a last payment by mail under
§ 48-137 and a payment mailed within 30 days under Neb. Rev.
Stat. § 48-125(1) (Reissue 2004). based upon this reasoning,
the trial judge held that February 7, 2003—the day pizza Hut
mailed payment—triggered the running of the statute of limita-
tions. The trial judge thus ruled that the statute of limitations
barred Obermiller’s claim and granted pizza Hut summary
judgment. The Nebraska Workers’ Compensation Court review
panel affirmed the decision.
ASSIGNMeNTS OF eRROR
Obermiller asserts that (1) the review panel erred in find-
ing that the statute of limitations barred his claim and (2) the
review panel erred in affirming the trial judge’s granting of
summary judgment.
STANDARD OF ReVIeW
[1] 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
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, judg-
ment, or award; or (4) the findings of fact by the compensation
court do not support the order or award.2
[2] 	Determining 	when 	the 	statute 	of 	limitations 	starts
under § 48-137 presents a question of law. When reviewing
1 Brown v. Harbor Fin. Mortgage Corp., 267 Neb. 218, 673 N.W.2d 35
(2004).
2 Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).
658 	277 NebRASkA RepORTS

a question of law, we resolve it independently of the lower
court’s determination.
ANALYSIS
Section 48-137 sets out the statute of limitations for work-
ers’ compensation claims:
In case of personal injury, all claims for compensation
shall be forever barred . . . two years after the accident
. . . . 	When payments of compensation have been made
in any case, such limitation shall not take effect until the
expiration of two years from the time of the making of the
last payment.
The workers’ compensation statutes do not define “time of
the making of the last payment.” At the heart of our inquiry
is whether this phrase means when compensation is mailed or
when it is received. Relying on our decisions in Brown, both
the trial judge and the review panel concluded that the date of
mailing triggers the statute of limitations. We understand why
Brown may appear to resolve the conflict. We believe, however,
this appeal presents a different issue.
In Brown, we considered whether an insurance carrier who
mailed a check within 30 days of the entry of a compensa-
tion award subjected the employer to a 50-percent penalty for
delinquent payment. Under § 48-125(1), “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.” because the employee received the check
33 days after the entry of the award, she claimed the employer
owed her penalty fees. We concluded that the employer mailed
compensation within 30 days and was not delinquent.
pizza Hut claims that under our holding in Brown, an
employer makes payment when it mails a check, not when the
employee receives it. because § 48-137, like § 48-125, refers
to an employer’s or insurer’s “payment,” pizza Hut argues that
we should apply the same rule here. It contends the underlying
factual basis of Brown concerning the “date of mailing” and
“receipt date” mirrors this case. So, pizza Hut argues that we
should construe §§ 48-125 and 48-137 consistently.
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but, as Obermiller notes, in Brown, we did not conclude that
mailing a check equated to making a payment. We held only
that § 48-125 does not trigger a penalty for an employer who
mails compensation within 30 days of the entry of an award.
Obermiller argues that instead of relying upon Brown, we
should focus on the definition of “payment.” He argues that
under that definition, delivery of payment provides the critical
event.3 Obermiller also relies on commercial law and creditor-
debtor rules.
Obermiller 	argues 	that 	under 	these 	rules, 	an 	employer
makes a conditional payment when the creditor—in this case,
Obermiller—receives payment by a check from the debtor,
pizza Hut.4 If the check is honored, the condition is removed
and payment relates back to the date Obermiller received
the check.
The pennsylvania Supreme Court adopted this position in
Romaine v. W.C.A.B. (Bryn Mawr Nur. Home).5 That court
analyzed when the “most recent payment of compensation”
occurred under pennsylvania’s workers’ compensation statute
of limitations.6 Relying upon the Uniform Commercial Code,
the court concluded:
Five dates in the life of a check are significant, being
the date the check is cut, the date it is mailed, the date it
is received, the date it is cashed or deposited, and the date
upon which it is honored or dishonored. For purposes of
the statute of limitations contained in Section 413(a), the
only date of import is the date upon which the check is
received. That date constitutes the last payment of com-
pensation and, although payment is conditional on that
date, the condition is satisfied when the check is honored
and payment relates back to the date of its receipt.7
3 See black’s Law Dictionary 1165 (8th ed. 2004).
4 See, 60 Am. Jur. 2d Payment § 39 (2003); 70 C.J.S. Payment § 22
(2005).
5 Romaine v. W.C.A.B. (Bryn Mawr Nur. Home), 587 pa. 471, 901 A.2d 477
(2006).
6 77 pa. Cons. Stat. Ann. § 772 (West 2002).
7 Romaine, supra note 5, 587 pa. at 487-88, 901 A.2d at 486.
660 	277 NebRASkA RepORTS

In contrast, the Delaware Supreme Court concluded that the
date the employer mailed the check triggered the statute of
limitations.8 Similarly to § 48-137, Delaware’s statute provides
that after compensation has been paid, the statute of limitations
bars claims 5 years “from the time of the making of the last
payment.”9 	but unlike the pennsylvania Supreme Court, the
Delaware Supreme Court in LeVan v. Independence Mall, Inc.10
focused on the meaning of “making” a payment. It concluded
that “making” the last payment occurred when the maker of the
check caused it to exist. Furthermore, the court reasoned that
its interpretation provided the most predictable date for trigger-
ing the statute of limitations and was also consistent with using
the date of mailing in other contexts under the state’s workers’
compensation and wage payment statutes.
Other state courts that have determined benefit payments
were made on the date of mailing did so in deciding whether to
assess late payment penalties11; they did not decide the trigger
date for the statute of limitations. Whether to assess late pay-
ment penalties under § 48-125 was precisely the issue decided
in Brown. We recognize the benefit of consistency within the
workers’ compensation statutes; yet, we cannot overlook the
fundamental differences between the time limits for payment
of benefits under § 48-125 and for filing a claim within the
statute of limitations period under § 48-137. The differences
lie in which party is penalized for noncompliance with the time
limit and the purpose that the date of payment serves under
each statute.
It is true that both statutes refer to the date an employer or
insurer pays benefits. but § 48-125 imposes penalties when the
8 LeVan v. Independence Mall, Inc., 940 A.2d 929 (Del. 2007).
9 Del. Code Ann. tit. 19, § 2361(b) (2005).
10 LeVan, supra note 8.
11 See, American Intern. Group v. Carriere, 2 p.3d 1222 (Alaska 2000);
Robbennolt v. Snap-On Tools Corp., 555 N.W.2d 229 (Iowa 1996);
Northeast Georgia Health System v. Danner, 260 Ga. App. 504, 580
S.e.2d 293 (2003); Audobon Tree Service v. Childress, 2 Va. App. 35,
341 S.e.2d 211 (1986) (superseded by statute as stated in Ratliff v. Carter
Machinery Co., Inc., 39 Va. App. 586, 575 S.e.2d 571 (2003)).
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employer fails to pay benefits within 30 days of an award. And
the employer or insurer obviously knows the date that the trial
judge entered the award. So under § 48-125, the date of mail-
ing rule places compliance with the time limit in control of the
party who will be penalized for noncompliance. It allows the
employer or insurer to know precisely whether its payment will
avoid any penalties.
but the date of mailing rule does not create certainty under
the statute of limitations from the claimant’s perspective. And
under § 48-137, it is the employee, not the employer, who is
penalized for failing to comply with the time limit. Thus, the
employee has the greatest interest in knowing precisely when
the statute will start to run. but unlike the definite trigger date
for the employer’s time limit under § 48-125, using the date
of mailing rule under § 48-137 would create an unsure trigger
date for the claimant. The trigger date would remain in the
hands of the employer or insurer, and the claimant would often
not know precisely when the employer mailed the payment. In
contrast, using the date the employee receives payment puts
compliance with the time limit in control of the party who will
be penalized for noncompliance.
[3] Thus, we disagree with the Workers’ Compensation
Court that the two statutes lack any legal distinction that
would justify using different rules for determining the date
that an employer or insurer made a payment of benefits.
because the date of payment serves a different purpose under
§ 48-137, we conclude that Brown does not control. We hold
that under § 48-137, the “time of the making of the last pay-
ment” means the date the employee or the employee’s provider
receives payment.
We reverse the review panel’s decision and remand the cause
to the review panel for remand to the trial judge with directions
to reverse the trial judge’s order granting summary judgment.
reversed And remAnded WitH directions.
miller-lermAn, J., participating on briefs.
662 	277 NebRASkA RepORTS