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Gimple v. Student Transportation of America and National Interstate Ins. Co.

Supreme Court of Nebraska

August 3, 2018

Shelley R. Gimple, Appellee and Cross-appellant.
v.
Student Transportation of America and National Interstate Ins. Co., Appellants and Cross-Appellees.

         1. 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.

         2. __:__. 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.

         3. Workers' Compensation: Subrogation. Neb. Rev. Stat. § 48-118 (Reissue 2010) grants an employer who has paid workers' compensation benefits to an employee injured as a result of the actions of a third party a subrogation interest against payments made by the third party.

         4. Workers' Compensation: Statutes: Appeal and Error. In workers' compensation cases, appellate courts give statutory language its plain and ordinary meaning.

         5. Words and Phrases. The plain and ordinary meaning of "any" is "all" or "every."

         6. Workers' Compensation: Appeal and Error. Findings of fact made by the Workers' Compensation Court have the same force and effect as a jury verdict and will not be set aside unless clearly erroneous.

         7. Workers' Compensation: Evidence: Appeal and Error. When testing the sufficiency of the evidence to support findings of fact made by the [300 Neb. 709] Workers' Compensation Court trial judge, the evidence must be considered in the light most favorable to the successful party and the successful party will have the benefit of every inference reasonably deducible from the evidence.

          Appeal from the Workers' Compensation Court: Daniel R. Fridrich, Judge. Affirmed in part, and in part reversed and remanded with directions.

          Abigail A. Wenninghoff and Jocelyn J. Brasher, of Larson, Kuper & Wenninghoff, PC, L.L.O., for appellants.

          Caroline M. Westerhold and Zachary W. Anderson, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Vaughan, District Judge.

          Papik, J.

         A vehicle driven by a drunk driver struck the school bus Shelly R. Gimple was driving and injured her. For a time, Gimple's employer, Student Transportation of America (Student Transportation), paid workers' compensation benefits to Gimple. When Gimple later asserted that she was permanently disabled as a result of her injuries and Student Transportation refused to pay benefits to which Gimple claimed she was entitled, Gimple brought suit in the Workers' Compensation Court. The compensation court found that Gimple was entitled to additional benefits and that it did not have jurisdiction to grant relief requested by Student Transportation concerning a settlement Gimple entered into with the driver who caused her injuries. The compensation court denied Gimple's request that she be awarded penalties, attorney fees, and interest because of Student Transportation's failure to pay the benefits she requested.

         The parties have now appealed and cross-appealed. We affirm the compensation court's findings that Gimple was entitled to benefits and that it did not have jurisdiction to resolve [300 Neb. 710] issues regarding the third-party settlement, but we reverse its determination that Gimple was not entitled to penalties, attorney fees, and interest.

         BACKGROUND

         Gimple 's Claim for Benefits.

         On April 22, 2014, a vehicle driven by a drunk driver struck the school bus Gimple was driving for Student Transportation. After being taken by ambulance to a hospital, doctors diagnosed her with a left distal radius intra-articular fracture dislocation. Gimple underwent multiple surgeries and treatments over the next few years as a result of her injury.

         While Student Transportation initially paid some workers' compensation benefits to Gimple as she incurred medical costs, a dispute eventually arose between the parties as to whether Gimple was entitled to additional benefits. Gimple claimed that she was permanently disabled as a result of her injuries and was entitled to permanent partial disability benefits (PPD benefits). After Student Transportation refused to pay such benefits, Gimple filed an action in the compensation court against Student Transportation and its workers' compensation insurer.

         Student Transportation admitted that Gimple suffered an injury arising out of and in the scope of her employment, but denied the remainder of the allegations. Student Transportation also alleged that Gimple had failed to comply with the Nebraska Workers' Compensation Act by settling a claim against the third party who injured her for $25, 000 without providing notice or reimbursement to Student Transportation. Student Transportation requested that the compensation court declare either that the settlement was void or that Student ...


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