Heppler v. Omaha Cable

court’s judgment was a judgment of guilt on both theories of
DUI advanced in the State’s complaint. We find no error con-
cerning the county court’s denial of brauer’s pretrial motions,
and we find the evidence was sufficient to support the convic-
tion. As such, we affirm.
affirmed .
J erome g. heppler , appellee , V.
omaha cable , inc ., appellant .
743 N.W.2d 383
Filed December 18, 2007. 	No. A-07-365.
1. Workers’ Compensation: Appeal and Error. pursuant to 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 or in excess of its powers; (2) the judgment, order, or award was
procured by fraud; (3) there is no 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. ____: ____. Upon appellate review, the findings of fact made by the trial judge of
the compensation court have the effect of a jury verdict and will not be disturbed
unless clearly wrong.
3. ____: ____. An appellate court is obligated in workers’ compensation cases to
make its own determinations as to questions of law.
4. Jurisdiction: Appeal and Error. before reaching the legal issues presented for
review, it is the duty of an appellate court to settle jurisdictional issues presented
by a case.
5. Final Orders: Appeal and Error. A party may appeal from a court’s order only
if the decision is a final, appealable order.
6. ____: ____. Final orders include an order affecting a substantial right made during
a special proceeding.
7. Workers’ Compensation: Final Orders: Appeal and Error. Special proceedings
include workers’ compensation cases.
8. Workers’ Compensation: Employer and Employee. As a general rule, an
employer may not unilaterally terminate a workers’ compensation award of
indefinite temporary total disability benefits absent a modification of the award
of benefits.
9. Statutes: Appeal and Error. Appellate courts give statutory language its plain
and ordinary meaning and will not resort to interpretation to ascertain the meaning
of statutory words which are plain, direct, and unambiguous.
10. Statutes. It is not within the province of a court to read a meaning into a statute
that is not warranted by the language; neither is it within the province of a court
to read anything plain, direct, and unambiguous out of a statute.
HeppLeR V. OMAHA CAbLe 	267
Cite as 16 Neb. App. 267
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

11. ____. If the language of a statute is clear, the words of such statute are the end of
any judicial inquiry regarding its meaning.
12. Workers’ Compensation: Words and Phrases. “Temporary” and “permanent”
refer to the duration of disability, while “total” and “partial” refer to the degree or
extent of the diminished employability or loss of earning capacity.
13. Workers’ Compensation. Temporary total disability benefits are a species of total
disability benefits.
14. ____. The 300-week limitation found in Neb. Rev. Stat. § 48-121(2) (Reissue
2004) does not apply to benefits for temporary total disability awarded
under § 48-121(1).
15. Workers’ Compensation: Words and Phrases. Temporary disability ordinarily
continues until the claimant is restored so far as the permanent character of his or
her injuries will permit.
16. Workers’ Compensation. Compensation for temporary disability ceases as soon
as the extent of the claimant’s permanent disability is ascertained.
17. Workers’ Compensation: Attorney Fees. If an employee files an application for
a review before the Workers’ Compensation Court from an order of a judge of the
compensation court denying an award and obtains an award or if an employee
files an application for a review before the compensation court from an award
of a judge of the compensation court when the amount of compensation due is
disputed and obtains an increase in the amount of such award, the compensation
court may allow the employee a reasonable attorney’s fee to be taxed as costs
against the employer for such review.
Appeal from the Workers’ Compensation Court. Affirmed.
Jeffrey A. Silver for appellant.
brett McArthur and Martin G. Cahill for appellee.
inbody, Chief Judge, and carlson and cassel, Judges.
cassel, Judge.
INTRODUCTION
Omaha Cable, Inc., ceased paying temporary total disability
benefits to Jerome G. Heppler after making 300 weeks of pay-
ments. The trial court overruled Heppler’s motion to compel
payment of temporary total disability benefits and his motion
for penalties and attorney fees. The review panel reversed,
ordering the temporary total disability benefits to continue
and awarding Heppler $2,500 in attorney fees. Omaha Cable
appeals, arguing that Heppler’s entitlement to temporary total
disability payments ceased after 300 weeks and that Heppler
268 	16 NebRASkA AppeLLATe RepORTS

should not have been awarded attorney fees. We conclude that
under Neb. Rev. Stat. § 48-121(1) (Reissue 2004), the entitle-
ment to temporary total disability benefits is not limited to 300
weeks. because Heppler obtained an increase in benefits upon
his application for review, the award of attorney fees was appro-
priate. We therefore affirm the decision of the review panel.
bACkGROUND
Heppler suffered a back injury in an accident arising out of
and in the course of his employment with Omaha Cable. In its
November 2004 award, the trial court found that Heppler was
temporarily totally disabled during certain specified periods
of time and that he remained temporarily totally disabled. The
court ordered Omaha Cable to pay Heppler $487 per week for
187 weeks of temporary total disability, and a like sum each
week for so long as Heppler remained temporarily totally dis-
abled. The award also provided, “If [Heppler’s] total disability
ceases, he shall be entitled to the statutory amounts of com-
pensation for any residual permanent partial disability or loss
of earning capacity due to this accident and injury.” Omaha
Cable appealed to the review panel, which affirmed the trial
court’s award. On further appeal to this court, the decision of
the review panel was affirmed in a memorandum opinion filed
December 5, 2005, in case No. A-05-644.
At some time, Heppler filed a motion to compel payment
of temporary total disability benefits and attorney fees. This
motion was not made a part of the record on appeal. On June
14, 2006, the trial court held a hearing. Heppler’s counsel rep-
resented to the court that Heppler was still temporarily totally
disabled. The trial court requested confirmation that no appli-
cation for modification of the award had been filed. Heppler’s
counsel expressly confirmed that fact, and counsel for Omaha
Cable did not disagree. Counsel for Omaha Cable stated that
after the November 2004 award, Omaha Cable issued a check
for 159 weeks of benefits totaling $77,433, which would bring
Heppler up to his 300 weeks of benefits. On July 11, the trial
court overruled Heppler’s motion to compel payment of tempo-
rary total disability benefits and attorney fees and his motion
HeppLeR V. OMAHA CAbLe 	269
Cite as 16 Neb. App. 267

for penalties and attorney fees. On July 19, Heppler filed an
application for review.
On March 9, 2007, the review panel entered an order of rever-
sal and remand on review. The order stated that Omaha Cable
had not filed an application to modify and remained liable for
weekly temporary total disability benefits. We digress to note
that notwithstanding the review panel’s recitation that Omaha
Cable had not filed an application to modify, the record does
show that an application to modify had been filed on January
8, 2007. Obviously, based upon the date of filing, the trial court
did not consider or take action upon the application to modify.
The merits of such application are not before us in the instant
appeal. The review panel concluded that the trial court erred in
denying Heppler’s request for attorney fees and penalties, and
it remanded the matter to the trial court for a determination
of the same. The review panel reasoned that the trial court did
not need to enter an order for continued payment of disability
benefits because Omaha Cable was still obligated under the
initial award to make such payments. Finally, the review panel
awarded Heppler $2,500 in attorney fees because he appealed
and received an increase in the award.
Omaha Cable timely appeals.
ASSIGNMeNTS OF eRROR
Omaha Cable alleges that the review panel erred in (1) finding
that Heppler was entitled to temporary total disability benefits
beyond 300 weeks and (2) awarding attorney fees.
STANDARD OF ReVIeW
[1] pursuant to 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 or in excess of its powers; (2) the judgment,
order, or award was procured by fraud; (3) there is no 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. Davis v.
Crete Carrier Corp., 274 Neb. 362, 740 N.W.2d 598 (2007).
270 	16 NebRASkA AppeLLATe RepORTS

[2,3] Upon appellate review, the findings of fact made by the
trial judge of the compensation court have the effect of a jury
verdict and will not be disturbed unless clearly wrong. Id. An
appellate court is obligated in workers’ compensation cases to
make its own determinations as to questions of law. Id.
ANALYSIS
Jurisdiction.
[4] before reaching the legal issues presented for review, it
is the duty of an appellate court to settle jurisdictional issues
presented by a case. Merrill v. Griswold’s, Inc., 270 Neb. 458,
703 N.W.2d 893 (2005). Omaha Cable argues that the July 11,
2006, order was not a final order and that thus, the review panel
lacked jurisdiction.
[5-7] A party may appeal from a court’s order only if the
decision is a final, appealable order. Merrill v. Griswold’s, Inc.,
supra. Final orders include an order affecting a substantial
right made during a special proceeding. See Neb. Rev. Stat.
§ 25-1902 (Reissue 1995). Special proceedings include work-
ers’ compensation cases. See Pfeil v. State, 273 Neb. 12, 727
N.W.2d 214 (2007).
The trial court’s July 11, 2006, order overruled Heppler’s
motion to compel payment of temporary total disability bene-
fits and attorney fees and his motion for penalties and attorney
fees. The order eliminated Heppler’s claims to temporary total
disability benefits in excess of 300 weeks, to penalties, and to
attorney fees. We conclude the order affected a substantial right
and was a final, appealable order.
Entitlement to Temporary Total Disability Benefits.
[8] Omaha Cable contends that § 48-121 provides for a maxi-
mum of 300 weeks of payments for temporary total disability.
Upon that belief, Omaha Cable ceased payments after paying
a lump-sum amount representing the remainder of 300 weeks
of payments. We conclude such action was improper for two
reasons. First, as a general rule, an employer may not unilat-
erally terminate a workers’ compensation award of indefinite
temporary total disability benefits absent a modification of the
award of benefits. Davis v. Crete Carrier Corp., supra. Second,
HeppLeR V. OMAHA CAbLe 	271
Cite as 16 Neb. App. 267

as discussed below, Heppler’s entitlement to temporary total
disability benefits is not limited to 300 weeks.
Section 48-121 states in part:
The following schedule of compensation is hereby estab-
lished for injuries resulting in disability:
(1) For total disability, the compensation during such
disability shall be sixty-six and two-thirds percent of the
wages received at the time of injury, but such compensa-
tion shall not be more than the maximum weekly income
benefit specified in section 48-121.01 nor less than the
minimum weekly income benefit specified in section
48-121.01, except that if at the time of injury the employee
receives wages of less than the minimum weekly income
benefit specified in section 48-121.01, then he or she shall
receive the full amount of such wages per week as com-
pensation. Nothing in this subdivision shall require pay-
ment of compensation after disability shall cease.
(2) For disability partial in character, except the par-
ticular cases mentioned in subdivision (3) of this sec-
tion, the compensation shall be sixty-six and two-thirds
percent of the difference between the wages received
at the time of the injury and the earning power of the
employee thereafter, but such compensation shall not be
more than the maximum weekly income benefit specified
in section 48-121.01. This compensation shall be paid
during the period of such partial disability but not beyond
three hundred weeks. Should total disability be followed
by partial disability, the period of three hundred weeks
mentioned in this subdivision shall be reduced by the
number of weeks during which compensation was paid for
such total disability.
The only reference to 300 weeks is found in § 48-121(2),
which addresses partial disability, and there is no similar limi-
tation in § 48-121(1), the subsection governing total disability.
To the extent Omaha Cable may be arguing that when the stat-
utes are read together the 300-week limitation should be read
into § 48-121(1), we reject such an assertion. For many years,
§ 48-121(1) mentioned 300 weeks. For example, § 48-121(1)
(Reissue 1952) reads in part:
272 	16 NebRASkA AppeLLATe RepORTS

For the first three hundred weeks of total disability, the
compensation shall be [a specified percentage of wages,
with the minimum and maximum amounts set forth]. After
the first three hundred weeks of total disability, for the
remainder of the life of the employee, he shall receive
[a specified percentage of wages, with the minimum and
maximum amounts set forth]. Nothing in this subdivision
shall require payment of compensation after disability
shall cease. Should partial disability be followed by total
disability, the period of three hundred weeks mentioned
in this subdivision of this section shall be reduced by the
number of weeks during which compensation was paid for
partial disability.
Section 48-121(2) (Reissue 1952), on the other hand, is sub-
stantially the same as the current version: the only difference
is that the older statute provided for maximum compensation
of $26 per week. The striking of the 300-week language from
§ 48-121(1), see 1973 Neb. Laws, L.b. 193, but not from
§ 48-121(2), evidences the Legislature’s intent to eliminate
such limitation upon benefits for total disability.
[9-11] Omaha Cable argues “a fair and reasonable interpreta-
tion is that §48-121(1) addresses the issue of permanent total
disability only.” brief for appellant at 9. Appellate courts give
statutory language its plain and ordinary meaning and will not
resort to interpretation to ascertain the meaning of statutory
words which are plain, direct, and unambiguous. Knapp v.
Village of Beaver City, 273 Neb. 156, 728 N.W.2d 96 (2007).
It is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it
within the province of a court to read anything plain, direct, and
unambiguous out of a statute. State v. Warriner, 267 Neb. 424,
675 N.W.2d 112 (2004). If the language of a statute is clear,
the words of such statute are the end of any judicial inquiry
regarding its meaning. Turco v. Schuning, 271 Neb. 770, 716
N.W.2d 415 (2006). The language of § 48-121(1) (Reissue
2004) is clear, and we will not read the word “permanent” into
the statute when such word is plainly not there.
[12-14] “Temporary” and “permanent” refer to the duration
of disability, while “total” and “partial” refer to the degree or
HeppLeR V. OMAHA CAbLe 	273
Cite as 16 Neb. App. 267

extent of the diminished employability or loss of earning capac-
ity. Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757, 707
N.W.2d 232 (2005). Temporary total disability benefits are a
species of total disability benefits. See Sheldon-Zimbelman v.
Bryan Memorial Hosp., 258 Neb. 568, 604 N.W.2d 396 (2000).
because the disability at issue in the instant case is a temporary
total disability, § 48-121(1) is applicable. We hold that the 300-
week limitation found in § 48-121(2) does not apply to benefits
for temporary total disability awarded under § 48-121(1).
[15,16] Temporary disability ordinarily continues until the
claimant is restored so far as the permanent character of his or
her injuries will permit. Rodriguez v. Hirschbach Motor Lines,
supra. Compensation for temporary disability ceases as soon as
the extent of the claimant’s permanent disability is ascertained.
Id. The initial award ordered Omaha Cable to pay $487 per
week in temporary total disability “for so long as [Heppler]
remains temporarily totally disabled.” At the June 14, 2006,
hearing, Heppler’s counsel informed the trial court that Heppler
was still temporarily totally disabled, and there is no evidence
to the contrary. Accordingly, under the initial award, Heppler’s
entitlement to temporary total disability benefits continues.
Award of Attorney Fees.
[17] The review panel awarded Heppler $2,500 in attorney
fees because he appealed and received an increase in the award.
Neb. Rev. Stat. § 48-125(2) (Cum. Supp. 2006) provides in
pertinent part:
If the employee files an application for a review before the
compensation court from an order of a judge of the com-
pensation court denying an award and obtains an award or
if the employee files an application for a review before the
compensation court from an award of a judge of the com-
pensation court when the amount of compensation due is
disputed and obtains an increase in the amount of such
award, the compensation court may allow the employee a
reasonable attorney’s fee to be taxed as costs against the
employer for such review, and the Court of Appeals or
Supreme Court may in like manner allow the employee
a reasonable sum as attorneys fees for the proceedings in
the Court of Appeals or Supreme Court.
274 	16 NebRASkA AppeLLATe RepORTS

Omaha Cable argues that the award of attorney fees was
improper, because “Heppler did not obtain an increase in the
amount of such award, but rather was entitled to continue to
receive the identical benefits originally awarded.” brief for
appellant at 11-12. Although we agree that the effect of the
review panel’s order was to continue the obligations under the
initial award, Omaha Cable’s argument ignores the trial court’s
order from which Heppler filed the application for review.
On July 11, 2006, the trial court overruled Heppler’s motion
to compel payment of temporary total disability benefits and
attorney fees and his motion for penalties and attorney fees.
The court’s order effectively limited Heppler’s entitlement to
temporary total disability benefits to 300 weeks. Heppler filed
an application for review from that order, and the review panel
determined that there was no such limitation on the number
of weeks that payments are to be made and that Omaha Cable
continued to be under the initial award’s obligation to pay
Heppler temporary total disability benefits. because Heppler
obtained an increase on review, he was entitled to attorney fees.
This assignment of error lacks merit.
CONCLUSION
We conclude that under § 48-121(1), a worker’s entitlement
to temporary total disability benefits is not capped at 300 weeks.
We affirm the decision of the review panel in all respects.
affirmed .
HeppLeR V. OMAHA CAbLe 	275
Cite as 16 Neb. App. 267