Hofferber v. Hastings Utilities

[13] Local 385 next claims that the public interest excep-
tion to the mootness doctrine should apply. The public inter-
est exception to the rule precluding consideration of issues
on appeal because of mootness requires the consideration
of the public or private nature of the question presented, the
desirability of an authoritative adjudication for guidance of
public officials, and the likelihood of recurrence of the same
or a similar problem.29 Were we to reach the merits of the
instant appeal, it would require an analysis of complex factors
which are unique to this case. Such factors would include the
proper interpretation of the minimum staffing, promotion, and
call-back provisions of the original CBA; an interpretation of
those terms as modified by each subsequent order issued by
the Commission; a determination of which terms were encom-
passed by the status quo order; and a finding of whether the
actions of the City amounted to a violation of those terms. It is
unlikely that we will be presented with a similar factual situa-
tion. Accordingly, there is no likelihood of recurrence of the
same or a similar problem, and we decline to apply the public
interest exception to the mootness doctrine.
ConCLuSIon
For the foregoing reasons, we conclude that the instant
appeal is moot. Accordingly, the appeal is dismissed.
A ppeAl dismissed.
Wright, J., not participating.
29 Stoetzel & Sons v. City of Hastings, 265 neb. 637, 658 n.W.2d 636
(2003).
hoFFerBer v. hASTIngS uTILITIeS 	215
Cite as 282 neb. 215
C hAd A. hofferber , Appellee And Cross -AppellAnt, v.
hAstings Utilities And emC insUrAnCe ,
AppellAnts And Cross -Appellees.
803 n.W.2d 1
Filed September 9, 2011. 	no. S-10-894.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ Compensation Court may be modified, reversed, or set aside only
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

upon the grounds that (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 do not
support the order or award.
2. 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.
3. Jurisdiction: Venue: Words and Phrases. Jurisdiction and venue are not syn-
onymous and interchangeable functions in litigation.
4. Jurisdiction: Words and Phrases. Jurisdiction is the inherent power or authority
to decide a case.
5. Venue: Words and Phrases. Venue is the place of trial of an action—the site
where the power to adjudicate is to be exercised.
6. Venue. Venue is ordinarily not jurisdictional.
7. Venue: Waiver. unlike jurisdiction, venue is a personal privilege which, if not
raised by a party, is waived unless prohibited by law.
8. Jurisdiction. Litigants cannot confer jurisdiction on a judicial tribunal by acqui-
escence or consent.
9. Workers’ Compensation: Jurisdiction: Venue. neb. rev. Stat. § 48-177 (reissue
2010) is not jurisdictional; it simply specifies the venue for hearing the cause.
10. Workers’ Compensation: Jurisdiction: Statutes. The Workers’ Compensation
Court, as a statutorily created court, has only such authority as has been con-
ferred upon it by statute, and its power cannot extend beyond that expressed in
the statute.
11. Workers’ Compensation: Intent. neb. rev. Stat. § 48-162.01(7) (reissue 2010)
is intended to prevent an employee’s refusal to improve his or her medical condi-
tion or earning capacity from causing an employer to pay more workers’ compen-
sation benefits than it should.
12. Workers’ Compensation: Proof. neb. rev. Stat. § 48-162.01(7) (reissue 2010)
only authorizes the complete termination of a claimant’s right to benefits under
the nebraska Workers’ Compensation Act if evidence is presented to support a
finding that had the employee availed himself or herself of the benefits offered,
the employee would no longer be disabled.
13. Workers’ Compensation. neb. rev. Stat. § 48-162.01(7) (reissue 2010) cannot
be used solely to punish or coerce an injured worker. There must be evidence to
support a finding that the worker’s disability would have been reduced had the
worker cooperated with medical treatment or vocational rehabilitation.
14. Trial: Judges: Presumptions. It is presumed in a bench trial that the judge
was familiar with and applied the proper rules of law unless it clearly appears
otherwise.
15. Workers’ Compensation. neb. rev. Stat. § 48-162.01(7) (reissue 2010) is
intended to permit the compensation court to modify rehabilitation plans in
response to changed circumstances following the entry of the initial plan. It does
not apply to situations in which a worker has refused to cooperate with treatment
or rehabilitation.
Appeal from the Workers’ Compensation Court. Affirmed.
216 	282 neBrASkA reporTS

Dallas 	D. 	Jones, 	Amanda 	A. 	Dutton, 	and 	Andrea 	A.
ordonez, of Baylor, evnen, Curtiss, grimit & Witt, L.L.p., for
appellants.
Dirk V. Block and Steven J. riekes, of Marks, Clare &
richards, L.L.C., for appellee.
heAviCAn, C.J., C onnolly, gerrArd, stephAn, mCC ormACk ,
and miller-lermAn, JJ.
gerrArd, J.
hastings 	utilities 	and 	its 	workers’ compensation 	insur-
ance carrier, eMC Insurance (collectively eMC), appeal from
a decision of the Workers’ Compensation Court refusing to
dismiss Chad A. hofferber’s petition for benefits under the
nebraska Workers’ Compensation Act (the Act).1 The primary
issues presented in this appeal relate to the scope of the
Workers’ Compensation Court’s authority to modify, suspend,
or terminate a claimant’s right to benefits as punishment for the
claimant’s uncooperative or contemptuous conduct.
I. BACkgrounD
on october 3, 2000, hofferber was injured in an accident
in Adams County, nebraska, arising out of and in the course
of his employment with hastings utilities. on March 7, 2002,
hofferber filed a petition in the Workers’ Compensation Court
alleging that he had stepped on a manhole cover and sus-
tained injuries to “his left foot and left side and urological
injuries; abdominal injuries and severe and profound emo-
tional injuries.”2 on April 17, 2003, the parties filed a stipu-
lation and joint motion to dismiss, in which they agreed that
hofferber had sustained compensable injuries and was entitled
to temporary total disability benefits and reasonable and nec-
essary medical expenses. The court dismissed the cause with-
out prejudice.
1 neb. rev. Stat. §§ 48-101 to 48-1,117 (reissue 2010).
2 See, generally, Hofferber v. City of Hastings, 275 neb. 503, 747 n.W.2d
389 (2008).
hoFFerBer v. hASTIngS uTILITIeS 	217
Cite as 282 neb. 215

hofferber had been evaluated at the Mayo Clinic in Minnesota
after his accident, where it had been recommended that he see
a particular surgical specialist in Boston, Massachusetts. The
surgeon concluded, after examining hofferber, that he was a
candidate for revascularization surgery. hofferber had the sur-
gery in December 2003, and it was successful, but hofferber
still suffered from chronic pain, which the surgeon diagnosed
as neuropathic. The surgeon treated the condition with steroids
and recommended that hofferber follow up with a pain man-
agement program closer to home.
hofferber asked that he be sent back to the Mayo Clinic for
pain management. A program at the university of nebraska
Medical 	Center 	had 	also 	been 	considered, 	but 	hofferber
reported having had a bad experience there shortly after his
accident. After some missed appointments due to illness,
hofferber was reevaluated at the Mayo Clinic on March 14,
2005. After several different treatment options were discussed,
including a pelvic CT scan, hofferber’s physician at the Mayo
Clinic ultimately recommended another steroid injection and
approved hofferber to begin a 3-week Mayo Clinic pain reha-
bilitation program.
But hofferber failed to schedule the injection, express-
ing concern about getting an injection from the Mayo Clinic
instead of his surgeon. hofferber’s surgeon had apparently
suggested that another physician might not be comfortable per-
forming an injection in close proximity to the site of the revas-
cularization surgery. When an appointment at the Mayo Clinic
was scheduled for hofferber in october 2005, he notified his
medical case manager that he could not keep the appointment
because of an infection. hofferber also expressed his concern
about the injection and asked what had happened to the recom-
mendation of a CT scan.
At this point, concerned about hofferber’s periodic dif-
ficulty in keeping appointments at the Mayo Clinic and with
his surgeon, eMC requested a signed medical release form
to obtain medical records substantiating hofferber’s reasons
for not keeping his Mayo Clinic appointment. eMC stopped
hofferber’s weekly benefit payments until the signed release
was provided. The evidence also suggests that hofferber had
218 	282 neBrASkA reporTS

stopped his psychiatric treatment in 2003, although it is not
clear whether eMC might have stopped funding it.
In addition to the recommended Mayo Clinic treatment,
hofferber’s surgeon wanted to see hofferber for an annual
followup appointment, which eMC authorized. hofferber did
not pursue either opportunity, although eMC encouraged him
to do so despite hofferber’s continuing refusal to provide eMC
with a release.
on December 20, 2006, hofferber filed a pro se petition
in the Workers’ Compensation Court, alleging that he was
owed past-due benefits and penalties, unpaid medical and
legal expenses, vocational rehabilitation, and future medical
treatment. eMC propounded interrogatories and requests for
production, seeking, as relevant, information about hofferber’s
medical treatment and any outstanding medical bills. But in
a telephone conversation on February 7, 2007, hofferber told
eMC’s counsel that he would not answer those discovery
requests. According to eMC’s counsel, hofferber also said he
would not submit to a deposition. hofferber did not reply to
eMC’s discovery requests and called eMC’s counsel and left a
profane voice mail message.
During the same time period, hofferber’s medical case man-
ager repeatedly contacted hofferber on eMC’s behalf, offering
to assist hofferber in arranging resumption of medical treat-
ment. In response, hofferber left profane voice mail messages
for his case manager.
on March 20, 2007, eMC filed a motion to compel hofferber
to respond to its interrogatories and requests for production,
appear for a scheduled deposition, and avail himself of the
medical treatment furnished by eMC. A hearing was held
before a trial court of the Workers’ Compensation Court, at
which hofferber appeared and complained about eMC’s refusal
to pay his benefits. hofferber also suggested that eMC had
refused to pay medical bills. It appears from the statements of
counsel that there may have been disagreement about whether
some medical expenses, such as those relating to illnesses and
infections, were causally related to hofferber’s compensable
injury, although it is unclear because the disputed bills are not
in the record.
hoFFerBer v. hASTIngS uTILITIeS 	219
Cite as 282 neb. 215

eMC’s counsel explained that eMC was willing to pay for
any expenses that were the result of the accident, but that part
of the reason for its discovery requests was to obtain informa-
tion about those expenses. And hofferber was told that if he
resumed his recommended medical treatment, his disability
benefits would be resumed.
The trial court directed hofferber from the bench to comply
with eMC’s discovery requests. The court also entered an April
2, 2007, written order directing hofferber to avail himself of
the medical treatment being offered. on April 26, eMC filed
a motion to dismiss hofferber’s petition, alleging that he had
failed to respond to its discovery requests.
on 	June 	1, 	2007, 	counsel 	entered 	an 	appearance 	on
hofferber’s behalf, and eMC’s motion to dismiss was set for a
hearing before the trial court on June 27. But the hearing was
delayed several times, for reasons that are not apparent from
the record. The hearing had been scheduled for December 19
when, on november 19, hofferber’s counsel filed a motion to
withdraw, alleging that communications with hofferber had
broken down and that hofferber wanted counsel fired. eMC’s
counsel e-mailed hofferber to inform him of the hearing on the
motion to withdraw, and hofferber sent a profane reply.
In 	the 	meantime, 	after 	another 	missed 	appointment,
hofferber had returned to the Mayo Clinic in June and July
2007. 	recommendations 	on 	hofferber’s 	pain 	management
were deferred until his recurring infections could be resolved.
Followup appointments were scheduled for September, but
were canceled when hofferber was unable to make travel
arrangements in time. hofferber also failed to make a sched-
uled trip to follow up with his surgeon. hofferber had been
asked by the Mayo Clinic to get bacterial cultures of his
infections, but did not do so. hofferber made one return visit
to the Mayo Clinic in September, but did not see most of the
doctors there with whom consultation had been recommended.
In December, eMC decided not to send hofferber any more
advance payments for travel expenses. In January 2008, a certi-
fied letter to hofferber from his medical case manager, offer-
ing to schedule a pain rehabilitation program, was returned
unopened, marked “refused.”
220 	282 neBrASkA reporTS

on January 29, 2008, eMC filed an amended motion to
dismiss, which came on for hearing before the trial court on
February 6. hofferber did not appear, despite several attempts
by the court and counsel to reach him. eMC argued at the
hearing that hofferber was not making any medical progress
because he was not following up with scheduled appointments.
eMC also noted that hofferber either had “inappropriate con-
duct and vulgar communications” with eMC’s counsel and his
case manager, or refused to communicate at all.
Although it is not entirely clear from the record, counsel’s
argument at the hearing seems to suggest that eMC may have
resumed payment of hofferber’s temporary total disability
benefits. A letter from hofferber’s surgeon was also sub-
mitted, suggesting that hofferber’s other medical problems
were interfering with his being seen by the surgeon. And the
record suggests that hofferber had complied with eMC’s
discovery requests to some extent, although eMC complained
that some of the material provided was unclear and could not
be clarified because hofferber refused to communicate with
counsel.
eMC contended that hofferber had not complied with the
court’s orders to return to medical treatment or comply with
discovery, so the matter should simply be dismissed. In a writ-
ten order filed February 29, 2008, the trial court found that the
conduct of eMC’s counsel and hofferber’s case manager had
been reasonable and that hofferber’s conduct had been unac-
ceptable. But the court declined to dismiss the case. Instead,
the court ordered hofferber to refrain from any abusive com-
munications with eMC’s counsel, his medical case manager,
or other employees of eMC. The court ordered hofferber
to take whatever steps were necessary to enroll in the Mayo
Clinic pain rehabilitation program. eMC’s counsel was ordered
to report any abusive conduct by hofferber, and eMC was
ordered to continue paying indemnity benefits.
eMC notified hofferber’s medical case manager of the
court’s order, so hofferber’s case manager e-mailed him offer-
ing to assist in coordinating his care. hofferber sent two replies
within a few minutes of one another; the first told the case
manager to stop e-mailing him, and the second was profane.
hoFFerBer v. hASTIngS uTILITIeS 	221
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on March 12, 2008, eMC filed a request for a show cause
hearing based on hofferber’s violation of the February 29
order. eMC asked the court to dismiss hofferber’s pending
petition with prejudice and terminate all of hofferber’s bene-
fits, including indemnity and medical care. The trial court,
acting sua sponte, transferred venue to omaha, nebraska,
and scheduled the show cause hearing at the Douglas County
Courthouse. The record suggests that this was done out of
security concerns, because security at the Douglas County
Courthouse was more stringent than security at the State Capitol
in Lincoln, nebraska.
notice of the hearing was served on hofferber, but he did not
appear or contact the court. The trial court found that hofferber
had violated the February 29, 2008, order by sending abusive
e-mails to his medical case manager and unreasonably refusing
to avail himself of the medical care that had been provided. In
an order filed March 28, 2008, the court determined that
[t]he remedy given to this Court for contempt and
for unreasonably refusing to cooperate by [hofferber] is
to terminate benefits and dismiss [hofferber’s] petition.
It is therefore, the finding of this Court that [eMC’s]
responsibility under the . . . Act for payments for indem-
nity benefits or medical care should be terminated, and
[hofferber’s] petition filed in this court on December 20,
2006, should be dismissed.
A year passed. on April 9, 2009, the Adams County Court
appointed a guardian and conservator for hofferber, having
found clear and convincing evidence that hofferber was an
incapacitated person who lacked “sufficient understanding or
capacity to make or communicate responsible decisions con-
cerning himself, including those decisions concerning his own
health, safety and financial needs.”3 on September 10, hofferber,
through his guardian and conservator, filed a “Further petition”
in the Workers’ Compensation Court, seeking reinstatement
of his benefits. The petition alleged that hofferber remained
temporarily and totally disabled, that he had resumed medical
treatment for his work-related injuries, and that his guardian
3 See neb. rev. Stat. § 30-2601 (reissue 2008).
222 	282 neBrASkA reporTS

and conservator could give the consent or approval necessary
to facilitate further medical care.
eMC filed a motion to dismiss the “Further petition,”
alleging that the trial court’s March 28, 2008, order termi-
nating hofferber’s benefits was final and that the Workers’
Compensation 	Court 	lacked 	jurisdiction 	over 	hofferber’s
request for further benefits. In response, hofferber argued that
the March 28 order was void because the hearing had been
held in Douglas County instead of “the county in which the
accident occurred,” as required by § 48-177. hofferber also
argued that the March 28 order did not specifically say that
the dismissal of hofferber’s petition was “with prejudice,” so
a further petition was permitted, and that the Act only permits
suspension of benefits as a sanction, not a final order extin-
guishing a claim.
on January 20, 2010, the trial court entered an order vacat-
ing the March 28, 2008, order. The court agreed with hofferber
that venue for the hearing that resulted in the March 28 order
had been improper. The court reasoned that because hofferber
did not appear for the hearing or take part in it, he could not
be said to have waived any objection to venue. So, the court
concluded, the March 28 order was a nullity and the motion
to show cause originally filed by eMC on March 12 remained
pending for disposition.
eMC appealed to a review panel, which found that the
trial court had erred in concluding that venue for the March
28, 2008, hearing was improper. The review panel held that
§ 48-177 applied only to a trial on the merits, not each and
every hearing the Workers’ Compensation Court might be
required to hold in every case. And the review panel found that
the trial court had appropriately exercised its inherent power
in transferring venue to Douglas County due to hofferber’s
abusive behavior.
But the review panel also found that the trial court did not
have authority under the Act to terminate hofferber’s right
to future benefits. The review panel found no authority for a
trial judge of the Workers’ Compensation Court to vacate a
prior order and held that although the Workers’ Compensation
Court has the inherent power to punish for contempt of court,
hoFFerBer v. hASTIngS uTILITIeS 	223
Cite as 282 neb. 215

the Workers’ Compensation Court cannot dismiss a claim with
prejudice in order to punish contemptuous behavior. The review
panel noted that the March 28, 2008, order did not specify that
hofferber’s petition had been dismissed “with prejudice” and
found that to the extent the order could be read as dismissing
future liability, the trial court lacked authority to enter it.
Based on that reasoning, the review panel affirmed the trial
court’s overruling of eMC’s motion to dismiss hofferber’s
petition. eMC appeals, and hofferber cross-appeals.
II. ASSIgnMenTS oF error
eMC assigns, as consolidated and restated, that the review
panel erred in (1) determining that the trial court lacked author-
ity to terminate its obligation to pay further benefits, (2) vacat-
ing the trial court’s March 28, 2008, order, and (3) failing to
find that the trial court lacked jurisdiction over hofferber’s
“Further petition.”
hofferber assigns, as consolidated and restated, that the
review panel erred in concluding the trial court’s March 28,
2008, order was not void for lack of jurisdictional venue.
III. STAnDArD oF reVIeW
[1] A judgment, order, or award of the Workers’ Compensation
Court may be modified, reversed, or set aside only upon the
grounds that (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 evi-
dence 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.4
IV. AnALySIS
1. venUe
[2] Before addressing eMC’s appeal, we address hofferber’s
cross-appeal, because (at least according to hofferber) it impli-
cates jurisdictional issues. Before reaching the legal issues pre-
sented for review, it is the duty of an appellate court to settle
4 § 48-185.
224 	282 neBrASkA reporTS

jurisdictional issues presented by a case.5 hofferber relies on
§ 48-177, which provides in relevant part that when a petition
or motion is filed in the Workers’ Compensation Court, a judge
of the court will be assigned to hear the cause
in the county in which the accident occurred, except [that
a case to be tried in a county with a population of 4,000
or less and without adequate facilities may be tried in any
adjoining county,6] and except that, upon the written stipu-
lation of the parties, filed with the compensation court at
least fourteen days before the date of hearing, the cause
may be heard in any other county in the state.
hofferber contends that pursuant to § 48-177, because his
accident occurred in Adams County, Douglas County was an
improper venue for the hearing on eMC’s motion to dismiss
and, therefore, the court lacked jurisdiction to rule on the
motion. But the issue raised by hofferber is not jurisdictional.
[3-7] “Jurisdiction” and “venue” are not synonymous and
interchangeable functions in litigation.7 Jurisdiction is the inher-
ent power or authority to decide a case.8 Venue, however, is the
place of trial of an action—the site where the power to adjudi-
cate is to be exercised.9 Venue is ordinarily not jurisdictional.10
unlike jurisdiction, venue is a personal privilege which, if not
raised by a party, is waived unless prohibited by law.11 That is
important here because no objection was made to the Douglas
County hearing, nor was any appeal taken from the ruling on
the order. If § 48-177 related to jurisdiction, hofferber might
5 Wright v. Omaha Pub. Sch. Dist., 280 neb. 941, 791 n.W.2d 760 (2010).
6 See neb. rev. Stat. § 25-412.02 (reissue 2008).
7 Blitzkie v. State, 228 neb. 409, 422 n.W.2d 773 (1988). See, also,
Anderson v. Houston, 274 neb. 916, 744 n.W.2d 410 (2008).
8 See, In re Interest of Adams, 230 neb. 109, 430 n.W.2d 295 (1988);
Blitzkie, supra note 7.
9 See id.
10 Blitzkie, supra note 7.
11 In re Interest of Adams, supra note 8. See, also, Anderson, supra note 7;
Krajicek v. Gale, 267 neb. 623, 677 n.W.2d 488 (2004); Blitzkie, supra
note 7.
hoFFerBer v. hASTIngS uTILITIeS 	225
Cite as 282 neb. 215

be able to collaterally attack the resulting order as void.12 But if
§ 48-177 is simply a venue statute, then the order is not void,
and not subject to collateral attack on that basis.13
[8] And § 48-177 is clearly a venue statute. In In re Interest
of Adams,14 we addressed a similar argument in the context of
a statute which provided that a petition for the commitment of
a mentally ill dangerous person should be filed with the clerk
of the district court where the person is found, except that a
district judge of that court could authorize the petition to be
filed in another judicial district if there was good cause to do
so. We reasoned that the statute could not be jurisdictional,
because if it was, then the procedure permitting the cause
to be transferred to another district would be tantamount to
conferring jurisdiction on another tribunal which lacked it.15
And, we noted, litigants cannot confer jurisdiction on a judi-
cial tribunal by acquiescence or consent.16 So, we concluded
that the statute at issue was a venue statute and was not
jurisdictional.17
[9] The same reasoning applies here. By its terms, § 48-177
permits a workers’ compensation claim to be tried in another
county if the facilities are inadequate in the county of the acci-
dent or merely by the stipulation of the parties. And litigants
cannot confer subject matter jurisdiction upon a tribunal by
acquiescence or consent.18 Section 48-177, therefore, cannot
be jurisdictional; it simply specifies the venue for hearing the
cause, which is an objection that can be waived.19
12 See Hunt v. Trackwell, 262 neb. 688, 635 n.W.2d 106 (2001).
13 See Lewin v. Lewin, 174 neb. 596, 119 n.W.2d 96 (1962).
14 In re Interest of Adams, supra note 8.
15 See id.
16 See id.
17 See id. See, also, Anderson, supra note 7; Blitzkie, supra note 7; McCall
v. Hamilton County Farmers Telephone Ass’n, 135 neb. 70, 280 n.W. 254
(1938).
18 Honda Cars of Bellevue v. American Honda Motor Co., 261 neb. 923, 628
n.W.2d 661 (2001); In re Interest of Adams, supra note 8.
19 See McCall, supra note 17.
226 	282 neBrASkA reporTS

hofferber relies on Gracey v. Zwonechek,20 in which we held
that a provision of the nebraska rules of the road21 requiring
administrative license revocations to be heard “‘in the county
in which the arrest occurred or in any other county agreed to
by the parties’” had been violated by a videoconference and
teleconference held by hearing officers located in Lancaster
County instead of the counties of the arrests.22 We recognize
how Gracey might be pertinent, and even persuasive, if we
were addressing the merits of hofferber’s claim that venue was
improper. But we are addressing whether hofferber preserved
that claim, and on that point, Gracey is plainly distinguishable,
because in Gracey, the appellants objected to venue at their
hearings and appealed from the resulting orders. In fact, we
noted in Gracey that
[t]he argument made by the appellants has been raised
before this court on several prior occasions; however, we
have not yet had the opportunity to address it. In Muir
v. Nebraska Dept. of Motor Vehicles,[23] we held that
§ 60-6,205(6)(a) is a venue statute and that generalized
objections to the method by which the hearing was being
conducted were not proper objections to venue. . . . In
both Davis[24] and Reiter,[25] we did not reach the sub-
stantive merits of the defendants’ arguments because the
defendants failed to properly object to the venue of their
hearings and because their subsequent participation in
the hearings acted as a waiver of any objection they may
have had.26
But we found that in Gracey, the appellants had properly raised
the issue, so we addressed it on the merits.
20 Gracey v. Zwonechek, 263 neb. 796, 643 n.W.2d 381 (2002).
21 See neb. rev. Stat. §§ 60-601 to 60-6,379 (reissue 2010).
22 Gracey, supra note 20, 263 neb. at 799, 643 n.W.2d at 384.
23 Muir v. Nebraska Dept. of Motor Vehicles, 260 neb. 450, 618 n.W.2d 444
(2000).
24 Davis v. Wimes, 263 neb. 504, 641 n.W.2d 37 (2002).
25 Reiter v. Wimes, 263 neb. 277, 640 n.W.2d 19 (2002).
26 Gracey, supra note 20, 263 neb. at 799, 643 n.W.2d at 384.
hoFFerBer v. hASTIngS uTILITIeS 	227
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In this case, obviously, hofferber had notice of the Douglas
County hearing, but did not object to its venue. We need not
determine if his failure to appear or participate was a “waiver”
of the issue, because no appeal was taken from the resulting
order, so the only relevant question is whether the order was
void for lack of jurisdiction. It was not. Because the court
was not deprived of jurisdiction by the venue, and no appeal
was taken, the order was a final adjudication not subject to
hofferber’s collateral attack.27 Because § 48-177 is a venue
statute that relates to procedure and not jurisdiction, the fact
that the cause was tried in a county other than that declared
by § 48-177 does not go to jurisdiction so as to invalidate the
judgment.28 The court had jurisdiction over the matter and the
power to render a judgment binding on the parties.29
Therefore, we find that the trial court erred in concluding
that the March 28, 2008, order was “a nullity.” It may have
been entered in error, but it was entered by a court with juris-
diction to enter it, and no appeal was taken. nor did the court
have the authority to vacate its own judgment,30 although we
note that trial judges of the Workers’ Compensation Court
were recently given the authority to substantively modify
or change their rulings within 14 days of entry.31 We need
not, and do not, address whether the review panel’s restric-
tive interpretation of § 48-177 was correct, and we note that
pursuant to L.B. 151, § 9, that issue would be one of last
impression. Although we do not endorse the review panel’s
reasoning, we agree with the review panel’s ultimate conclu-
sion that the trial court erred in vacating the March 28 order.
And, therefore, we find no merit to hofferber’s assignment of
error on cross-appeal.
27 See Lewin, supra note 13. See, also, §§ 48-170 and 48-178.
28 See, id.; 77 Am. Jur. 2d Venue § 45 (2006), citing United States v. Hvoslef,
237 u.S. 1, 35 S. Ct. 459, 59 L. ed. 813 (1915).
29 See id.
30 See, Dougherty v. Swift-Eckrich, 251 neb. 333, 557 n.W.2d 31 (1996);
McKay v. Hershey Food Corp., 16 neb. App. 79, 740 n.W.2d 378 (2007).
31 See 2011 neb. Laws, L.B. 151, § 11.
228 	282 neBrASkA reporTS

2. AUthority to terminAte benefits
[10] generally, eMC argues that the review panel erred
in concluding that its motion to dismiss should be overruled.
eMC contends the March 28, 2008, order was final and that it
conclusively terminated hofferber’s right to any benefits result-
ing from his accident. hofferber, on the other hand, relies upon
the familiar proposition that the Workers’ Compensation Court,
as a statutorily created court, has only such authority as has
been conferred upon it by statute, and its power cannot extend
beyond that expressed in the statute.32 hofferber contends,
among other things, that the Act did not afford the trial court
authority to dismiss his petition with prejudice.
Whether 	the 	trial 	court 	had 	such 	authority, 	however,
depends to great extent on the underlying basis for terminat-
ing hofferber’s benefits. In this case, at issue were hofferber’s
alleged failure to comply with discovery requests, his failure to
avail himself of provided medical treatment, and his violation
of the court’s order to refrain from abusive conduct. We exam-
ine each in turn.
(a) Discovery requests
We note, at the outset, that hofferber’s alleged failure to
cooperate with eMC’s discovery requests did not ultimately
play a role in the dismissal of his petition. As noted above,
the record suggests that hofferber eventually did comply with
eMC’s discovery requests to some extent and the trial court’s
March 28, 2008, order did not find a discovery violation as a
basis for dismissing hofferber’s petition. But examining the
court’s authority to enforce discovery provides a useful contrast
to its enforcement authority in other respects, so it merits a
brief examination regardless.
The Workers’ Compensation Court’s authority to enforce
compliance with reasonable discovery is as broad as that of
any trial court in nebraska, which can include dismissing a
petition.33 In the examination of any witness and in requiring
32 See, Burnham v. Pacesetter Corp., 280 neb. 707, 789 n.W.2d 913 (2010);
Dougherty, supra note 30; § 48-179.
33 See, Behrens v. Blunk, 280 neb. 984, 792 n.W.2d 159 (2010); Greenwalt
v. Wal-Mart Stores, 253 neb. 32, 567 n.W.2d 560 (1997).
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the production of books, papers, and other evidence, the com-
pensation court has all the powers of a judge, magistrate, or
other officer in the taking of depositions or the examination of
witnesses, including the power to enforce orders by commit-
ment for refusal to answer or for the disobedience of any such
order.34 And pursuant to the Workers’ Compensation Court’s
rulemaking authority,35 it has adopted the nebraska rules of
Discovery in Civil Cases,36 which permit the court to sanction
noncompliance with a discovery order by, among other things,
dismissing the action or rendering a default judgment.37
But, as noted above, the trial court did not find noncompli-
ance with discovery in its March 28, 2008, order, nor would
the record seem to support such a finding. Instead, the court
relied on hofferber’s failure to avail himself of medical treat-
ment and noncompliance with its order to refrain from abu-
sive conduct.
(b) Failure to Cooperate With
Medical Treatment
Compared to its power to enforce discovery, the compensa-
tion court’s authority to deal with a worker’s failure to coop-
erate with medical treatment (or vocational rehabilitation) is
constrained. The Act provides that a worker who unreasonably
refuses to cooperate with an employer’s medical examination
may be deprived of benefits during the continuance of such
refusal.38 But that provision is not at issue here. Instead, eMC
relies upon § 48-162.01(7), which provides in relevant part that
if an injured employee, without reasonable cause,
refuses to undertake or fails to cooperate with a physical,
medical, or vocational rehabilitation program determined
by the compensation court or judge thereof to be suit-
able for him or her . . . the compensation court or judge
34 § 48-162(1).
35 See § 48-163(1).
36 See Workers’ Comp. Ct. r. of proc. 4 (2009).
37 neb. Ct. r. Disc. § 6-337(b)(2)(C).
38 See, § 48-134; Hale v. Vickers, Inc., 10 neb. App. 627, 635 n.W.2d 458
(2001).
230 	282 neBrASkA reporTS

thereof may suspend, reduce, or limit the compensation
otherwise payable under the . . . Act.
That language, however, does not expressly provide that
the 	court 	has 	the 	authority 	to 	permanently 	terminate 	an
injured employee’s right to benefits under the Act. Instead,
§ 48-162.01(7) should be read in pari materia with the effec-
tively identical language of § 48-120(2)(c), which provides that
“the compensation court or judge thereof may suspend, reduce,
or limit the compensation otherwise payable under the . . . Act”
when an “injured employee unreasonably refuses or neglects to
avail himself or herself of medical or surgical treatment fur-
nished by the employer,” so that “the employer is not liable for
an aggravation of such injury due to such refusal and neglect.”
The obvious intent of this provision is to make sure that an
employer is not liable for extra benefits when an employee’s
conduct makes his or her condition worse.39
[11] Section 48-162.01(7) reflects the same principle, except
it applies when an employee’s conduct prevents his or her
condition from improving. It is apparent that § 48-162.01(7)
is intended to prevent an employee’s refusal to improve his
or her medical condition or earning capacity from causing an
employer to pay more workers’ compensation benefits than it
should. In other words, the relevant language of §§ 48-120(2)(c)
and 48-162.01(7) is intended to be remedial, not punitive—it is
intended not to punish a worker for being uncooperative, but
simply to make sure that the consequences of a worker’s failure
to cooperate are not unfairly borne by an employer.
So, for instance, in Lowe v. Drivers Mgmt., Inc.,40 we
rejected an employer’s argument that an employee’s refusal to
participate in vocational rehabilitation warranted a reduction
in the employee’s benefits following a modification proceed-
ing, because the employer had not presented evidence that had
the employee participated in vocational rehabilitation, it would
have prevented him from becoming permanently totally dis-
abled. We reasoned that the employer had, among other things,
39 See Yarns v. Leon Plastics, Inc., 237 neb. 132, 464 n.W.2d 801 (1991).
40 Lowe v. Drivers Mgmt., Inc., 274 neb. 732, 743 n.W.2d 82 (2007).
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failed to demonstrate that “had [the employee] participated in
the court-ordered job placement services, he would have been
employed at the time of the modification hearing.”41 Thus, we
concluded that the employer “did not offer evidence upon which
a trial judge should ‘suspend, reduce, or limit the compensation
otherwise payable’” pursuant to § 48-162.01(7).42 The evidence
that the employer should have presented was evidence that the
employee’s condition would have been different had he availed
himself of the benefits he had been offered.
[12,13] In other words, given the purpose of the statute, and
the general rule that the Act should be construed to accomplish
its beneficent purposes,43 § 48-162.01(7) can only be read to
authorize the complete termination of a claimant’s right to bene-
fits under the Act if evidence is presented to support a finding
that had the employee availed himself or herself of the benefits
offered, the employee would no longer be disabled. The statute
cannot be used solely to punish or coerce an injured worker.
There must be evidence to support a finding that the worker’s
disability would have been reduced had the worker cooperated
with medical treatment or vocational rehabilitation.
When that principle is applied in this case, it is evident that
such a finding was not made. no evidence was presented that
would have supported such a finding, nor was it even argued
that hofferber’s disability would have been reduced had he par-
ticipated in medical treatment. (While that might seem logical,
it is uncertain given the severity of hofferber’s injuries, and
a court cannot speculate as to what might have been in the
absence of any evidence to that effect.44) Instead, it appears that
eMC was urging the court to use § 48-162.01(7) coercively, to
either compel hofferber to accept treatment or relieve eMC of
the burden of dealing with him. But that purpose is not autho-
rized by § 48-162.01(7).
[14] We note, as did the review panel, that the trial court’s
order did not explicitly state that hofferber’s petition for
41 Id. at 741-42, 743 n.W.2d at 91.
42 Id. at 742, 743 n.W.2d at 91.
43 See Burns v. Nielsen, 273 neb. 724, 732 n.W.2d 640 (2007).
44 See Lowe, supra note 40.
232 	282 neBrASkA reporTS

benefits was to be terminated with prejudice, and like the
review panel, we are reluctant to read such a serious con-
sequence into language that does not clearly express it. We
presume in a bench trial that the judge was familiar with and
applied the proper rules of law unless it clearly appears other-
wise.45 So, given our conclusion that dismissal with prejudice
would have been unwarranted on the arguments and evi-
dence presented, we must assume that the court acted within
its authority and did not intend to permanently terminate
hofferber’s right to receive benefits. We agree with the review
panel that the trial court’s order did not dismiss hofferber’s
petition with prejudice based on his failure to obtain medical
treatment and that even if it had, the dismissal would have been
beyond the court’s authority.
eMC also relies on another provision of § 48-162.01(7),
which states that the compensation court “may also modify a
previous finding, order, award, or judgment relating to physi-
cal, medical, or vocational rehabilitation services as neces-
sary in order to accomplish the goal of restoring the injured
employee to gainful and suitable employment, or as otherwise
required in the interest of justice.” eMC seizes upon the phrase
“as otherwise required in the interest of justice” and contends
that the court could and did dismiss hofferber’s petition with
prejudice because justice required it.
We find no merit to eMC’s reading of the statute. The lan-
guage relied upon by eMC was enacted in response to this
court’s decision in Dougherty v. Swift-Eckrich,46 in which
we held that the Workers’ Compensation Court did not have
authority to extend the completion date that its original award
had specified for a worker’s vocational rehabilitation. We had
reasoned that the original award had become final and that
the Act did not authorize the court to correct an error in
the original award.47 In response, the Legislature amended
§ 48-162.01(7) to permit the Workers’ Compensation Court to
45 Bauermeister v. McReynolds, 253 neb. 554, 571 n.W.2d 79 (1997).
46 Dougherty, supra note 30.
47 See id.
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modify previously awarded physical, medical, or vocational
rehabilitation services.48
[15] In other words, the provision at issue is simply intended
to permit the compensation court to modify rehabilitation plans
in response to changed circumstances following the entry of
the initial plan.49 The statute cannot be read, in light of the
more specific provisions of §§ 48-120(2)(c) and 48-162.01(7),
to apply to situations in which a worker has refused to coop-
erate with treatment or rehabilitation. And even if it could be
read to apply to such situations, it only permits the court to
modify previously entered awards—not to preclude benefits
from being sought or awarded in the future.50
In short, § 48-162.01(7) provides no basis for eMC’s argu-
ment that hofferber’s “Further petition” was barred.
(c) Contempt of Court
Finally, we turn to the Workers’ Compensation Court’s
authority to hold a party in contempt. hofferber relies on our
decision in Burnham v. Pacesetter Corp.51 for the proposition
that the Workers’ Compensation Court does not have authority
to hold a party in contempt.
We 	concede 	that 	Burnham 	provides 	some 	support 	for
hofferber’s argument. In Burnham, the claimant was attempt-
ing to collect unpaid benefits and argued that the Workers’
Compensation Court had the authority to enforce a judgment it
had entered against his employer and insurer to compel them
to pay him and hold them in contempt for failing to follow
that order. But we agreed with the compensation court that the
claimant’s remedy was in district court, finding that the com-
pensation court did not have authority to enforce the collection
of its award or “to issue contempt citations.”52 We reasoned
48 See, 1997 neb. Laws, L.B. 128, § 4; Business and Labor Committee, 95th
Leg., 1st Sess. (Jan. 27, 1997); McKay, supra note 30.
49 See McKay, supra note 30.
50 See id.
51 See Burnham, supra note 32.
52 Id. at 711, 789 n.W.2d at 916.
234 	282 neBrASkA reporTS

that the court did not have inherent authority to remedy viola-
tions of its orders, including finding a party in contempt, and
that the Act did not vest the court with the authority to issue
contempt orders.53
And we were correct on both of those points: the Act does
not vest the court with contempt authority, nor does it have
inherent contempt authority. But in Burnham, we did not dis-
cuss neb. rev. Stat. § 25-2121 (reissue 2008), which provides
that “[e]very court of record shall have power to punish by
fine and imprisonment . . . persons guilty of” contemptuous
conduct. And in Bituminous Casualty Corp. v. Deyle,54 we
explained at length, in the context of the uniform Declaratory
Judgments Act,55 that the Workers’ Compensation Court is a
“‘court of record.’”
In particular, we noted that
“[t]he old definition 	of 	a 	court 	of 	record given by
Blackstone is ‘that where the acts and judicial proceed-
ings are enrolled in parchment for a perpetual memorial
and testimony, which rolls are called the record of the
court and are of such high and supereminent authority
that their truth is not to be called in question.’”56
We also noted that a “‘court of record’” is one whose pro-
ceedings are perpetuated in writing, duly recorded by some
authorized person. So, we held that “a court which is required
by law to keep a permanent and written memorialization of
determinations made in proceedings brought to obtain a judi-
cial resolution of a question is a ‘court of record.’”57
Applying 	that 	holding, 	we 	noted 	that 	the 	Workers’
Compensation Court is charged by statute with keeping a full
and true record of its proceedings58 and that the clerk of the
53 See Burnham, supra note 32.
54 Bituminous Casualty Corp. v. Deyle, 234 neb. 537, 549, 451 n.W.2d 910,
918 (1990).
55 See neb. rev. Stat. §§ 25-21,149 to 25-21,164 (reissue 2008).
56 Deyle, supra note 54, 234 neb. at 549, 451 n.W.2d at 918.
57 Id.
58 See § 48-167.
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Workers’ Compensation Court is charged with that duty.59 So,
we concluded that “the nebraska Workers’ Compensation Court
is a ‘court of record’ and, as such, has the authority to enter a
declaratory judgment pursuant to the uniform Declaratory
Judgments Act.”60
There is no discernible basis for distinguishing § 25-2121. It
is more accurate to read Burnham as addressing the Workers’
Compensation Court’s authority to enter orders in aid of execu-
tion, rather than general contempt citations under § 25-2121.
But we need not resolve any possible inconsistency in this
case, because even if § 25-2121 applies, it would not provide
the Workers’ Compensation Court with authority to dismiss an
action, with or without prejudice, as a sanction for contempt.
As noted above, § 25-2121 permits a court of record to
punish contempt “by fine and imprisonment.” While a court
of general jurisdiction may also sanction a contemnor by dis-
missing an action, that power is derived from a court’s inher-
ent authority to impose sanctions in addition to what is listed
in § 25-2121.61 And the Workers’ Compensation Court does
not have inherent contempt authority. So, even if § 25-2121
empowers the Workers’ Compensation Court to punish con-
tempt, the court could do so only by fine or imprisonment—not
dismissal of a petition.
To summarize: While the compensation court can dismiss
a petition based upon discovery violations, no such viola-
tions were found in this case. And the compensation court is
not authorized to dismiss a petition as a sanction for a party’s
conduct either because an injured worker failed to cooperate
with treatment or rehabilitation or as an exercise of contempt
authority. So, neither of the grounds that actually were found in
this case for the March 28, 2008, order dismissing hofferber’s
petition would have empowered the compensation court to dis-
miss his petition with prejudice and bar him from reasserting a
right to benefits.
59 See § 48-157.
60 Deyle, supra note 54, 234 neb. at 550, 451 n.W.2d at 918.
61 See Tyler v. Heywood, 258 neb. 901, 607 n.W.2d 186 (2000).
236 	282 neBrASkA reporTS

To the extent the Workers’ Compensation Court has author-
ity to foreclose an injured worker’s right to benefits under the
Act, that authority was not (and could not have been) appro-
priately exercised in this case. And as we understand eMC’s
arguments, all of its assignments of error rest on the premise
that the court’s March 28, 2008, order could and did dismiss
hofferber’s petition with prejudice. We find no merit to that
premise, so we correspondingly find no merit to eMC’s assign-
ments of error.
V. ConCLuSIon
We find no merit to hofferber’s argument on cross-appeal
that the trial court lacked jurisdiction to enter the March 28,
2008, order in an improper venue. But we also find no merit to
eMC’s arguments that the March 28 order effectively dismissed
hofferber’s claim for benefits with prejudice. Therefore, we
affirm the judgment of the review panel remanding the cause to
the trial court for further proceedings.
A ffirmed.
Wright, J., not participating.
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