Workers' Compensation: Appeal and Error.
Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016),
an appellate court may modify, reverse, or set aside a
Workers' Compensation Court decision only when (1) the
compensation court acted without or in excess of its powers;
(2) the judgment, order, or award was procured by fraud; (3)
there is not sufficient competent evidence in the record to
warrant the making of the order, judgment, or award; or (4)
the findings of fact by the compensation court do not support
the order or award.
___. Determinations by a trial judge of the Workers'
Compensation Court will not be disturbed on appeal unless
they are contrary to law or depend on findings of fact which
are clearly wrong in light of the evidence.
Workers' Compensation: Insurance: Contracts:
Notice. There is no requirement in Neb. Rev. Stat.
§ 48-144.03 (Reissue 2010) that a notice of cancellation
sent by certified mail actually be received by the employer.
Workers' Compensation: Insurance: Contracts:
Notice: Proof. To show compliance with Neb. Rev.
Stat. § 48-144.03 (Reissue 2010), the insurer need only
prove that it sent the notice of cancellation by certified
mail to the employer.
Insurance: Contracts: Notice: Proof. When an
insurance carrier is statutorily required to provide notice
of cancellation before terminating a policy, the burden of
establishing an effective cancellation before a loss is on
Notice: Proof. A party may prove it has
mailed an item by direct proof of actual deposit with an
authorized U.S. Postal Service official or in an authorized
Neb. 436] 7. ___: ___. Absent direct proof of actual deposit
with an authorized U.S. Postal Service official or in an
authorized depository, proof of a course of individual or
office practice that letters which are properly addressed and
stamped are placed in a certain receptacle from which an
authorized individual invariably collects and places all
outgoing mail in a regular U.S. mail depository and that such
procedure was actually followed on the date of the alleged
mailing creates an inference that a letter properly addressed
with sufficient postage attached and deposited in such
receptacle was regularly transmitted and presents a question
for the trier of fact to decide.
Appeal and Error. An appellate court is not
obligated to engage in an analysis that is not necessary to
adjudicate the case and controversy before it.
from the Workers' Compensation Court: Thomas E. Stine,
Judge. Reversed and remanded for further proceedings.
Edward Shasteen, of Shasteen & Morris, P.C., L.L.O.. for
Tyler Laflin and Joshua R. Woolf, of Engles, Ketcham, Olson
& Keith, P.C., for appellee FirstComp Insurance Company.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
case concerns whether an insurance company complied with the
notice of cancellation requirements under Neb. Rev. Stat.
§ 48-144.03 (Reissue 2010). The Nebraska Workers'
Compensation Court dismissed FirstComp Insurance Company
(FirstComp) as a defendant upon finding that FirstComp
complied with § 48-144.03 and, therefore, did not carry
workers' compensation insurance for appellee J.J.
Hooligan's, LLC, formerly known as Pies & Pints, LLC,
at the time of appellant Lori Greenwood's injury. We
conclude the compensation court erred in finding that
FirstComp provided sufficient evidence of its compliance with
the notice [297 Neb. 437] of cancellation requirement in
§ 48-144.03 and in dismissing FirstComp as a party.
Therefore, we reverse, and remand for further proceedings.
January 14, 2012, Greenwood was injured while acting in the
scope and course of her employment with J.J. Hooligan's.
One of the owners of J.J. Hooligan's provided Greenwood
with J.J. Hooligan's insurance carrier's contact
number. After calling the contact number provided, Greenwood
received a return call and was informed that because of
nonpayment, FirstComp was not the workers' compensation
insurance carrier on the date of the accident.
subsequently filed a petition against J.J. Hooligan's and
FirstComp, seeking workers' compensation benefits.
FirstComp moved to dismiss, arguing that it was not a proper
party, because it had notified J.J. Hooligan's prior to
January 2012, in compliance with § 48-144.03, that it
had terminated its insurance coverage for nonpayment of its
premium and, therefore, did not provide workers'
compensation insurance to J.J. Hooligan's on the date of
hearing, the compensation court admitted three exhibits from
FirstComp that were relevant to the motion to dismiss.
Exhibit 1 contained an affidavit of Mandy Johnson, a
FirstComp employee, which stated that on November 2, 2011, a
notice of cancellation of workers' compensation insurance
policy No. WC0124824-01 was sent by certified mail to J.J.
Hooligan's for nonpayment; that FirstComp uses an
electronic mailing system through the U.S. Postal Service
(USPS) to send its certified mail; that the certified mail
number generated by the USPS was 9171999991703112609757; that
because the mailing was completed through an electronic
mailing system, there was no physical receipt or ticket
produced; and that the USPS keeps records of certified
mailings for a period of 2 years and the system that
FirstComp uses, through the USPS, keeps records for a period
of 3 years. [297 Neb. 438] Attached to the affidavit were an
internal spreadsheet record of FirstComp which showed that
notice was sent on November 3, 2011, for policy No.
WC0124824-01 and a copy of the notice of cancellation.
2 contained the proof-of-coverage pages from the Nebraska
Workers' Compensation Court showing that cancellation was
received by the compensation court in November ...