Mosher v. Whole Foods Mkt.

1

317 Neb. 26

Marlene Mosher, appellee, v. Whole Foods Market, Inc., appellant.

No. S-23-645

Supreme Court of Nebraska

July 5, 2024

1. Workers' Compensation: Appeal and Error. 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. ___:___. An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law.

3. Workers' Compensation: Evidence: Appeal and Error. In testing the sufficiency of the evidence to support the findings of fact in a workers' compensation case, every controverted fact must be resolved in favor of the successful party and the successful party will have the benefit of every inference that is reasonably deducible from the evidence.

4. Workers' Compensation: Penalties and Forfeitures Appeal and Error. Whether a reasonable controversy exists is a question of fact. Accordingly, an appellate court reviews for clear error the compensation court's findings concerning reasonable controversy underlying its determination of waiting-time penalties. However, if the facts are not in dispute and the inference is clear such that reasonable people could not disagree about the matter whether a reasonable controversy exists is a question of law.

5. 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.

6. Workers' Compensation: Attorney Fees. Determining the amount for attorney fees under Neb. Rev Stat. § 48-125(4)(a) (Reissue 2021) is necessarily a question of fact that requires a factual determination on several factors.

7. Workers' Compensation. Temporary disability benefits under the Nebraska Workers' Compensation Act are discontinued at the point of maximum medical improvement, because a disability cannot be both temporary and permanent at the same time.

8. Workers' Compensation: Time. The date of maximum medical improvment for purposes of ending a workers' compensation claimant's temporary disability is the date upon which the claimant has attained maximum medical recovery from all of the injuries sustained in a particular compensable accident.

9. Workers' Compensation. When an injured employee has reached maximum medical improvement, any remaining disability is, as a matter of law, "permanent" within the meaning of the Nebraska Workers' Compensation Act.

10. ___. Neb. Rev. Stat. § 48-125 (Reissue 2021) does not distinguish between whether the disability is temporary or permanent, but refers to all amounts of compensation payable under the Nebraska Workers' Compensation Act.

11. ___. The Nebraska Workers' Compensation Act should be construed liberally to carry out its spirit and beneficent purpose of providing compensation to employees injured on the job.

12. ___. The purpose of Neb. Rev. Stat. § 48-125 (Reissue 2021) is to encourage prompt payment of workers' compensation benefits by making the delay costly if an award is finally established.

13. Workers' Compensation: Attorney Fees: Penalties and Forfeitures. The waiting-time penalty and attorney fees are available under Neb. Rev. Stat. § 48-125 (Reissue 2021) in cases brought to the Workers' Compensation Court only where there is no reasonable controversy regarding an employee's claim for workers' compensation.

14. Workers' Compensation: Attorney Fees: Words and Phrases. A "reasonable controversy" for the purpose of Neb. Rev. Stat. § 48-125 (Reissue 2021) exists (1) if there is a question of law previously unanswered by the Supreme Court, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers' Compensation Act, or (2) if the properly adduced evidence would support reasonable but opposite conclusions by the compensation court about an aspect of an employee's claim, which conclusions affect allowance or rejection of an employee's claim, in whole or in part.

15. Workers' Compensation. Although the total amount of compensation due may be in dispute, the employer's insurer nevertheless has a duty to promptly pay that amount which is undisputed.

16. ___. The only legitimate excuse for delay of payment of workers' compensation benefits is the existence of genuine doubt from a medical or legal standpoint that any liability exists.

17. Workers' Compensation: Time. The fact that a portion of a disability may be in dispute does not allow an employer to withhold payment of all disability from a workers' compensation claimant, but, rather, the employer must pay, within 30 days of accrual, the payments that are undisputed.

18. Workers' Compensation: Statutes: Time. Absent a genuine dispute that any liability exists, it is the statutory obligation of the employer and its workers' compensation insurer to begin making weekly payments no later than expiration of 30 days after notice of disability.

19. Workers' Compensation. It would be contrary to our precedent, the language of Neb. Rev. Stat. § 48-125 (Reissue 2021), and the beneficent purposes of the Nebraska Workers' Compensation Act for an employer, with impunity, to fail to pay any indemnity benefits when there is no reasonable controversy as to the employee's entitlement to indemnity benefits and the only reasonable dispute is whether or when the employee has reached maximum medical improvement such that the benefits should be for a permanent partial disability rather than for temporary total disability.

20. Workers' Compensation: Penalties and Forfeitures. As opposed to an unanswered question of whether the employee was entitled to any compensation or medical payments, a question unanswered by the Supreme Court as to whether waiting-time penalties are properly imposed or calculated under the facts presented does not prevent the imposition of waiting-time penalties.

21. Workers' Compensation: Attorney Fees. The determination of the amount of attorney fees to be awarded under Neb. Rev. Stat. § 48-125(4)(a) (Reissue 2021) is necessarily a question of fact that requires a factual determination on several factors, including the value of legal services rendered by an attorney by considering the amount involved, the nature of the litigation, the time and labor required, the novelty and difficulty of the questions raised, the skill required to properly conduct the case, the responsibility assumed, the care and diligence exhibited, the result of the suit, the character and standing of the attorney, and the customary charges of the bar for similar services.

22. ___:___ . The amount involved in the claim is but one factor, and the amount of the attorney fees is not necessarily limited to legal work performed in recovering a specific, unpaid medical bill or delinquent compensation.

23. Workers' Compensation: Attorney Fees: Appeal and Error. An appellate court gives great deference to the compensation court's determination of reasonable attorney fees pursuant to Neb. Rev. Stat. § 48-125 (Reissue 2021), which determination will not be disturbed on appeal unless it is clearly wrong in light of the evidence.

24. Workers' Compensation. Nonpayment of medical bills can have an extremely deleterious result for an injured worker, including delaying necessary medical care, which can result in a more severe permanent injury.

25. Workers' Compensation: Attorney Fees. The plain meaning of a "reasonable attorney's fee" in Neb. Rev. Stat. § 48-125(4)(a) (Reissue 2021) encompasses the work of a legal assistant for the attorney.

Appeal from the Workers' Compensation Court: Daniel R. Fridrich, Judge.

Patrick J. Mack and Madaline McGill, of Hennessy & Roach, P.C., for appellant.

David M. Handley, of Handley Law, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Freudenberg, J.

I. NATURE OF CASE

The employer contests the waiting-time penalty and attorney fees awarded by the Nebraska Workers' Compensation Court. There was no conflict in the evidence that the employee had suffered a work-related injury. The employer's own medical examiner had found that the employee suffered from a 17-percent permanent impairment because of a work-related injury. Nevertheless, the employer had not paid temporary total disability benefits (TTD) or permanent disability benefits. Nor had it paid for any of the employee's medical care. The employer argues the compensation court lacked authority to award a waiting-time penalty for failing to pay a 17-percent permanent impairment benefit, when the court ultimately found the employee had not yet reached maximum medical improvement (MMI) and awarded TTD. The compensation court said there was no reasonable controversy that the employee was entitled to some benefit and the employer "cannot have it both ways. It cannot deny the [employee] TTD benefits on the basis that she is at MMI, but fail to pay permanent disability benefits." The employer contests the award of attorney fees on the grounds that the court allegedly relied on a judicial admission the employee had failed to invoke at the hearing, the fees were disproportionate to the total award, and the fees included the services of a paralegal. We affirm.

II. BACKGROUND

1. Petition

On April 28, 2022, Marlene Mosher brought a petition in the Workers' Compensation Court against her employer, Whole Foods Market, Inc. (...