Keith T. Dragon, appellant,
The Cheesecake Factory and its Workers' Compensation Insurer, Indemnity Insurance Company of North America, appellees.
Workers' Compensation: Statutes: Appeal and
Error. The meaning of a statute is a question of
law, and an appellate court is obligated in workers'
compensation cases to make its own determinations as to
questions of law.
Workers' Compensation: Appeal and Error.
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.
Legislature: Statutes: Time. Generally,
legislation that is passed takes effect 3 calendar months
after the Legislature adjourns unless the Legislature
Statutes: Time. Statutes covering
substantive matters in effect at the time of the transaction
or event govern, not later enacted statutes. But where there
has been an amendment to a statute which was a procedural
change and not a substantive change, upon the effective date
of the amendment, it is binding upon a tribunal.
Procedural amendments to statutes are ordinarily applicable
to pending cases, while substantive amendments are not.
Statutes: Words and Phrases. A substantive
amendment is one that creates a right or remedy that did not
previously exist and which, but for the creation of the
substantive right, would not entitle one to recover. A
procedural amendment, on the other hand, simply changes the
method by which an already existing right is exercised.
Limitations of Actions: Statutes. Laws
prescribing the time within which particular rights may be
enforced generally relate to remedies only and not
Neb. 549] 8. Workers'
Compensation: Statutes. 2018 Neb. Laws, L.B. 953, is
a procedural amendment to Neb. Rev. Stat. § 48-139(4)
(Cum. Supp. 2016).
Workers' Compensation: Time. The
reasonable controversy doctrine has long been applied to
excuse waiting-time penalties for delayed benefit payments
under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016).
The reasonable controversy doctrine has no application to
late-payment penalties under Neb. Rev. Stat. § 48-139(4)
(Cum. Supp. 2016).
Attorney Fees. If an attorney seeks a fee
for his or her client, that attorney should introduce at
least an affidavit showing a list of the services rendered,
the time spent, and the charges made.
from the Workers' Compensation Court: Daniel R. Fridrich,
E. Holsten Puhl, of Atwood, Holsten, Brown, Deaver &
Spier Law Firm, P.C., L.L.O., for appellant.
N. Middleton, of Adelson, Testan, Brundo, Novell &
Jimenez, and David A. Castello for appellees.
C. Leavitt for amicus curiae Nebraska Association of Trial
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.,
and Strong, District Judge.
workers' compensation case, the parties reached a
lump-sum settlement and filed a verified release with the
court using the process set out in Neb. Rev. Stat. §
48-139(3) and (4) (Cum. Supp. 2016). The employer did not pay
the amounts owed under the settlement within 30 days after
the release was filed, and the employee moved for late
payment penalties under § 48-139(4). The Workers'
Compensation Court overruled the motion and dismissed the
employee's petition with prejudice. The employee
the case was pending on appeal, the Legislature amended the
process for finalizing lump-sum settlements under [300 Neb.
550] § 48-139(4). Because we conclude this recent
amendment is procedural in nature, we apply it to this
pending matter. Doing so, we find the employee is entitled
to a late payment penalty, and to that extent only we vacate
the order of dismissal with prejudice, reverse the decision
of the Workers' Compensation Court, and remand the cause
with directions. In all other respects, we affirm.
T. Dragon worked as a dishwasher for The Cheesecake Factory
in Omaha, Nebraska. On February 9, 2017, Dragon filed a
petition for workers' compensation benefits, alleging he
was injured in the course and scope of his employment. The
parties agreed to settle Dragon's claim for a lump-sum
payment of $5, 000. Both parties were represented by counsel,
and they agreed to use the verified release procedure under
§ 48-139(3) rather than seek court approval of their
1, 2017, the employer filed with the Workers'
Compensation Court a verified release containing the language
required by § 48-139(3), thus triggering the 30-day
payment period under § 48-139(4). On June 8, the
employer mailed Dragon the settlement check. Thereafter,
Dragon filed a motion in the Workers' Compensation Court
seeking a late payment penalty of $2, 500 under §
48-139(4) and an award of attorney fees under Neb. Rev. Stat.
§ 48-125 (Cum. Supp. 2016).
hearing on the motion for late payment penalties, the
employer conceded the lump-sum settlement was paid more [300
Neb. 551] than 30 days after the release was filed, but it
opposed the imposition of a late payment penalty on two
the employer argued the "reasonable controversy"
doctrine should preclude an award of late payment
penalties, because the payment delay was the result of a
reasonable dispute over child support liens. Second, the
employer argued Dragon had waived any claim for a late
payment penalty under § 48-139(4). This argument was
based on the version of § 48-139(4) in effect at that
time, which provided: "Upon making payment owed by the
employer as set forth in the release, such release shall be a
full and complete discharge from further liability for the
employer on account of the injury . . . ." Given this
statutory language, the employer argued that even though the
settlement payment was made more than 30 days after the
release was filed, the release sprung into effect as soon as
payment was made and extinguished all claims Dragon had under
the Nebraska Workers' Compensation Act, including a claim
for late payment penalties or attorney fees.
Workers' Compensation Court agreed with the
employer's interpretation of § 48-139(4) and entered
an order overruling Dragon's motion for a late payment
penalty. In doing so, the court relied on this court's
analysis in Holdsworth v. Greenwood Farmers
Holdsworth, the lump-sum settlement payment was made
42 days after the verified release was filed and the employee
moved for a 50-percent waiting-time penalty and attorney
fees. When Holdsworth was decided, § 48-139 did
not have its own late payment penalty provision, so the
employee sought penalties under § 48-125 (Reissue 2010).
That statute generally authorized a waiting-time penalty for
"all delinquent [300 Neb. 552] 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." Section 48-125(2) authorized an
employee who received a waiting-time penalty, and who also
received an award, to recover reasonable attorney fees.
Holdsworth, the Workers' Compensation Court
awarded the employee waiting-time penalties under §
48-125 and the employer appealed. This court reversed,
finding that once the verified release was filed with the
compensation court pursuant to § 48-139(3), the employee
effectively waived '"all rights under the Nebraska
Workers' Compensation Act, '" including any
rights to late payment penalties and fees the employee may
have had under § 48-125. A key part of this court's
analysis in Holdsworth was the broad language
required to be included in the verified release under §
48-139(3). We reasoned this broad release language was
unambiguous and resulted in "a full waiver of any and
all rights given to workers in the Nebraska Workers'
Compensation Act," including the right to waiting-time
penalties and attorney fees.
our decision in Holdsworth, the Legislature amended
§ 48-139 to specifically include a penalty provision for
late payments of lump-sum settlements. Thus, in 2017,
when the parties in this case reached their lump-sum
settlement, § 48-139(4) provided:
A release filed with the compensation court in accordance
with subsection (3) of this section shall be final and
conclusive as to all rights waived in the release unless
procured by fraud. Amounts to be paid by the [300 Neb. 553]
employer to the employee pursuant to such release shall be
paid within thirty days of filing the release with the
compensation court. Fifty percent shall be added for payments
owed to the employee if made after thirty days after the date
the release is filed with the compensation court. Upon making
payment owed by the employer as set forth in the release,
such release shall be a full and complete discharge from
further liability for the employer on account of the injury,
including future medical, surgical, or hospital expenses,
unless such expenses are specifically excluded from the
release, and the court shall enter an order of dismissal with
prejudice as to all rights waived in the release.
Workers' Compensation Court analyzed this statutory
language and concluded it did "not cure the problem
illuminated by Holdsworth." The court reasoned
that under Holdsworth, once the broad statutory
release language becomes effective, it results in a full and
complete discharge from all liability under the act,
including a claim for late payment penalties and attorney
fees. The Workers' Compensation Court observed that
because amendments to § 48-139(4) made the release
effective '"[u]pon making payment ... as set forth
in the release ..., '" the release in this case
became effective once the employer paid Dragon. Thus, even
though the settlement payment was late, it served to
discharge the employer from all liability, including
liability for late payment penalties and attorney fees.
Workers' Compensation Court thus overruled Dragon's
motion for penalties and attorney fees and dismissed his
petition with prejudice. Dragon timely appealed, and we moved
the case to our docket on our own motion to address
the impact of the 2014 amendment to § 48-139(4).
Neb. 554] ASSIGNMENT OF ERROR
assigns the Workers' Compensation Court erred in ruling
he was not entitled to a late payment penalty under the 2014
version of § ...