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Cite as 288 Neb. 453
dealer, motor vehicle salesperson, dealer’s agent, or auction
dealer without the required license and remand the cause
for a new trial. Because there was no evidence to show that
Merchant was acting as an auction dealer, he cannot be retried
on that alternative means of committing the offense. Thus, the
new trial must be limited to the other three alternatives for
which Merchant was charged.
R eversed and remanded for a new trial.
Gary M. Lenz, appellee, v. Central Parking System
of Nebraska, I nc., and New H ampshire
Insurance Company, appellants.
___ N.W.2d ___
Filed June 27, 2014. No. S-13-930.
1. Workers’ Compensation: Appeal and Error. Regarding questions of law,
an appellate court in workers’ compensation cases is obligated to make its
own decisions.
2. Statutes. Statutory interpretation presents a question of law.
3. Workers’ Compensation: Limitations of Actions. Determining when the statute
of limitations starts under Neb. Rev. Stat. § 48-137 (Reissue 2010) presents a
question of law.
4. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the 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 pow-
ers; (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.
5. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When
judicial interpretation of a statute has not evoked a legislative amendment, it is
presumed that the Legislature has acquiesced in the court’s interpretation.
6. Workers’ Compensation. Disability as a basis for compensation under Neb.
Rev. Stat. § 48-121(3) (Reissue 2010) is determined by the loss of use of a body
member, not loss of earning power.
7. Appeal and Error. An alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error to be considered by an
appellate court.
Appeal from the Workers’ Compensation Court: Thomas E.
Stine, Judge. Affirmed.
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Tiernan T. Siems and Karen M. Keeler, of Erickson &
Sederstrom, P.C., for appellants.
Patrick B. Donahue, of Cassem, Tierney, Adams, Gotch &
Douglas, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Wright, J.
NATURE OF CASE
Gary M. Lenz was injured in an accident arising out of and
in the course of his employment as an outdoor parking lot
attendant. More than 2 years after the last voluntary payment
of benefits by Central Parking System of Nebraska, Inc., and
New Hampshire Insurance Company (collectively Central) but
within 2 years of the partial amputation of the fifth metatarsal
in Lenz’ right foot, he sought additional benefits for his work-
related injury. The question presented is whether the partial
amputation was a material change in condition and substantial
increase in disability that would permit Lenz to seek benefits
more than 2 years after Central’s last voluntary payment. We
affirm the judgment of the Workers’ Compensation Court that
awarded benefits.
SCOPE OF REVIEW
[1-3] Regarding questions of law, an appellate court in
workers’ compensation cases is obligated to make its own
decisions. Deleon v. Reinke Mfg. Co., 287 Neb. 419, 843
N.W.2d 601 (2014). Statutory interpretation presents a ques-
tion of law. Moyera v. Quality Pork Internat., 284 Neb.
963, 825 N.W.2d 409 (2013). The interpretation and mean-
ing of a prior opinion present a question of law. Bassinger v.
Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011).
“Determining when the statute of limitations starts under
[Neb. Rev. Stat.] § 48-137 [(Reissue 2010)] presents a ques-
tion of law.” Obermiller v. Peak Interest, 277 Neb. 656, 658,
764 N.W.2d 410, 412 (2009).
[4] A judgment, order, or award of the compensation court
may be modified, reversed, or set aside only upon the grounds
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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. Neb. Rev. Stat. § 48-185 (Cum.
Supp. 2012). See, also, Hynes v. Good Samaritan Hosp., 285
Neb. 985, 830 N.W.2d 499 (2013).
FACTS
On December 20, 2008, Lenz developed frostbite on his
right foot while performing his duties as an outdoor parking
lot attendant. It was not disputed that the accident and result-
ing injury arose out of and in the course of Lenz’ employment
with Central. The parties agreed that Lenz was earning an
average weekly wage of $194.25 for purposes of temporary
disability benefits and $310 for purposes of permanent dis-
ability benefits.
Until mid-2009, Central voluntarily paid for the medical
treatment of Lenz’ frostbite injury, including two surgeries.
Central paid temporary total disability benefits of $86.33 from
December 21, 2008, through June 21, 2009, for a total of
$2,256.91. The record does not indicate that the parties entered
into a written agreement regarding Lenz’ compensation.
In April 2009, Lenz moved to Colorado, where he continued
treatment for the frostbite injury. He submitted his medical
bills to a Colorado indigent care program and not to Central’s
workers’ compensation insurance carrier.
Lenz returned to Nebraska in February 2012. Because the
ulcers caused by the frostbite injury had not healed, he con-
tinued to receive medical treatment. In September, he was
hospitalized for an infection in the ulcers. The infection spread
to the fifth metatarsal in Lenz’ right foot, and on October 31, a
partial amputation of the fifth metatarsal was performed.
In January 2013, Lenz filed a petition with the Workers’
Compensation Court, seeking temporary total and permanent
partial disability benefits, reimbursement of medical expenses,
and vocational rehabilitation benefits. He requested tempo-
rary total disability benefits of $129.50 from the date of the
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accident through May 2009 and permanent partial disability
benefits of $206.67 for 30 weeks based upon a 20-percent dis-
ability of his right foot. Central affirmatively alleged that his
petition was barred by the statute of limitations in Neb. Rev.
Stat. § 48-137 (Reissue 2010).
The relevant issues considered at trial before the Workers’
Compensation Court were whether Lenz’ petition was time
barred by the applicable statute of limitations, whether he
was entitled to benefits, and if so, what benefits he should be
awarded. It was not disputed that Lenz’ petition was filed more
than 2 years after Central’s last payment of benefits.
Lenz asserted that his petition was not barred by § 48-137,
because the action was commenced within 2 years of a sub-
stantial and material worsening of his condition. He asked
the Workers’ Compensation Court to apply the exception to
§ 48-137 recognized in White v. Sears, Roebuck & Co., 230
Neb. 369, 431 N.W.2d 641 (1988).
Central claimed that pursuant to recent case law, the excep-
tion in White was unenforceable. And in the event that the
Workers’ Compensation Court concluded the exception did
apply, Central claimed that there had not been a substantial
change in Lenz’ condition to justify application of the excep-
tion and that Lenz could have filed his petition much earlier
than January 2013.
Lenz testified that in late 2012, the injury to his right foot
“changed and worsened” and ultimately required a partial
amputation of the fifth metatarsal in his right foot. According
to Lenz, after the partial amputation, the ulcers resulting from
the frostbite injury fully healed. Although his condition had
improved, he still experienced pain in his right foot. He admit-
ted that he could have filed his petition for workers’ compen-
sation benefits sooner, but stated that in May 2009, his claims
representative told him that “[his] workman’s comp case [was]
pretty well finished.”
Lenz offered the deposition of Dr. Steven Black, the medical
director of the Nebraska Medical Center’s Center for Wound
Healing. Black explained that prior to the partial amputation,
Lenz was “subject to frequent and near continuous episodes
of recurrence of the ulcers.” After reviewing Lenz’ medical
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records, Black opined that Lenz’ condition got “significantly
worse” in 2012 due to the bone infection and that Lenz had
not reached maximum medical improvement until at least 6
months after the partial amputation. He concluded that Lenz
had a permanent partial disability to the right foot of 20 per-
cent, “[b]ased on the fact that [Lenz] cannot carry out a job on
his feet or in cold weather without ulceration . . . .”
The Workers’ Compensation Court determined that “part
of the relief requested by [Lenz was] time barred pursuant to
§ 48-137,” but that Lenz was “entitled to additional benefits
related to the amputation of his fifth metatarsal.” The court
found that Lenz’ injury was not latent and progressive, but
that the infection of the bone, diagnosed on October 28, 2012,
and the resulting partial amputation constituted a “material
and substantial increase in disability resulting from the origi-
nal work injury.” Because Lenz had filed his petition within
2 years of that material and substantial change, the court held
that the petition was timely under White.
The Workers’ Compensation Court concluded that Lenz had
“sustained [a] 20[-]percent permanent impairment to his right
foot as a direct result of the material and substantial increase in
incapacity related to the October 28, 2012[,] worsening of [his]
condition.” The court awarded 30 weeks of permanent partial
disability in the amount of $206.67 per week, to begin April
28, 2013. It awarded reimbursement for medical expenses and
mileage incurred on and after October 28, 2012.
Central timely appeals. Pursuant to our statutory authority
to regulate the dockets of the appellate courts of this state, we
moved the case to our docket. See Neb. Rev. Stat. § 24-1106(3)
(Reissue 2008).
ASSIGNMENTS OF ERROR
Central assigns, restated and reordered, that the Workers’
Compensation Court erred in (1) finding that Lenz’ claim
was not barred by the statute of limitations, (2) finding that
Lenz suffered a material and substantial increase in disability,
(3) misapplying the law regarding a material and substantial
increase in disability, (4) failing to follow the most recent prec-
edent, and (5) entering an award in Lenz’ favor.
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ANALYSIS
As an initial matter, we note that Lenz’ petition sought ben-
efits for two separate time periods: (1) from the time of the
accident through May 2009 and (2) after the partial amputa-
tion. The Workers’ Compensation Court determined that Lenz’
petition was time barred to the extent it sought benefits accru-
ing prior to the partial amputation but was timely in its request
for benefits accruing after the partial amputation. Lenz did not
cross-appeal to challenge the determination that his petition
was an untimely request for those earlier benefits. As such, we
do not address that aspect of the court’s ruling. We are con-
cerned solely with whether Lenz’ request for benefits accruing
after the partial amputation was time barred.
Statute of Limitations
Section 48-137 provides in relevant part:
In case of personal injury, all claims for compensa-
tion shall be forever barred unless, within two years
after the accident, the parties shall have agreed upon
the compensation payable under the Nebraska Workers’
Compensation Act, or unless, within two years after the
accident, one of the parties shall have filed a petition as
provided in section 48-173. . . . When payments of com-
pensation have been made in any case, such limitation
shall not take effect until the expiration of two years from
the time of the making of the last payment.
Our case law recognizes two exceptions to § 48-137. See
Snipes v. Sperry Vickers, 251 Neb. 415, 557 N.W.2d 662
(1997). “The first . . . is the situation where the injury is ‘latent
and progressive’ and is not discovered within 2 years of the
accident which caused the injury.” Id. at 420, 557 N.W.2d at
666. The second exception is applicable to the case at bar and
is articulated in White v. Sears, Roebuck & Co., 230 Neb. 369,
431 N.W.2d 641 (1988).
In White, we examined the timeliness of the employee’s
petition for workers’ compensation benefits. She had been
injured in 1983, after which her employer voluntarily paid
compensation until September 1984. She did not file a peti-
tion in the Workers’ Compensation Court until 1987, after she
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had allegedly “suffered a material change in her condition
which necessitated additional medical care and for which
she had suffered increased disability.” See id. at 370, 431
N.W.2d at 642. The Workers’ Compensation Court dismissed
the petition because it was filed more than 2 years after the
last payment.
We concluded that the Workers’ Compensation Court erred
in dismissing the employee’s petition as untimely. We rea-
soned that
[w]here there is no dispute about the compensable nature
of the injury which the worker sustained, and the employer
has voluntarily paid compensation to the injured worker,
the right to receive additional compensation in the event
of a material increase in disability resulting from the
injury is still available.
Id. at 371-72, 431 N.W.2d at 643. We stated that in the event
the parties do not agree about this additional compensation,
“the worker’s remedy is to file a petition in the compensa-
tion court.” See id. at 372, 431 N.W.2d at 643. In light of the
statute of limitations in § 48-137, we held that “[s]uch a peti-
tion must be filed within 2 years from the time the employee
knows or is chargeable with knowledge that the employee’s
condition has materially changed, and there has been such a
substantial increase in disability as to entitle the employee to
additional compensation.” See White, 230 Neb. at 372, 431
N.W.2d at 643.
Central argues that based upon our reasoning in Bassinger v.
Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011),
the exception for a material change in condition and substantial
increase in disability is unenforceable. We disagree.
In Bassinger, we held that the common-law misrepresen-
tation defense was not enforceable by either the Workers’
Compensation Court or this court due to its equitable nature.
We explained that claims for workers’ compensation ben-
efits cannot be barred on equitable grounds, because (1) the
“Workers’ Compensation Court does not have equity jurisdic-
tion” and (2) we do not have the “authority to apply equi-
table principles” to the Nebraska Workers’ Compensation Act.
See Bassinger, 282 Neb. at 846, 847, 806 N.W.2d at 403,
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404. We stated that the misrepresentation defense concerned
issues of public policy that were solely within the province
of the Legislature and was a limitation on benefits that was
not authorized by the Nebraska Workers’ Compensation Act.
Therefore, we overruled Hilt Truck Lines, Inc. v. Jones, 204
Neb. 115, 281 N.W.2d 399 (1979), in which we had previously
adopted the common-law misrepresentation defense.
The exception to § 48-137 established in White v. Sears,
Roebuck & Co., 230 Neb. 369, 431 N.W.2d 641 (1988), is
clearly distinguishable from the common-law misrepresenta-
tion defense addressed in Bassinger. The exception recognized
in White was not based on equitable principles or defenses but
was based upon our statutory interpretation.
Since our decision in White, the Legislature has not amended
§ 48-137 to preclude application of the exception to the statute
of limitations in the event of a material change in condition
and substantial increase in disability. The appellate courts in
Nebraska have recognized this exception on multiple occa-
sions in the 26 years since White. See, Dawes v. Wittrock
Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167
(2003), disapproved on other grounds, Kimminau v. Uribe
Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005); Foote
v. O’Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001);
Snipes v. Sperry Vickers, 251 Neb. 415, 557 N.W.2d 662
(1997); Wissing v. Walgreen Company, 20 Neb. App. 332, 823
N.W.2d 710 (2012). None of these decisions have prompted an
amendment by the Legislature.
[5] When judicial interpretation of a statute has not evoked
a legislative amendment, it is presumed that the Legislature has
acquiesced in the court’s interpretation. Dawes, supra. Because
the Legislature has acquiesced to the exception for a material
change in condition and substantial increase in disability estab-
lished in White, we continue to apply it.
Central argues that this exception does not apply to Lenz’
petition, because he “did not have a worsening of his condi-
tion and he had reason to file suit before he did.” See brief for
appellants at 16. We do not agree.
Lenz was not required to demonstrate that he could not
have filed a petition earlier than he did. Part of our rationale
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in White was that an injured employee cannot bring a claim
for additional compensation unless and until such a change
has taken place. Given that fact, we explained the exception
as follows: “Such a petition must be filed within 2 years from
the time the employee knows or is chargeable with knowledge
that the employee’s condition has materially changed, and there
has been such a substantial increase in disability as to entitle
the employee to additional compensation.” See id. at 372, 431
N.W.2d at 643. We concluded that the employee’s petition in
White met the requirement of being filed within 2 years of a
qualifying change, and we did not discuss whether she could
have filed a petition sooner.
Similarly, in the instant case, we are concerned only with
whether Lenz’ petition was filed within 2 years of a change in
condition that (1) was material and (2) resulted in a substantial
increase in disability as to entitle him to additional compen-
sation. We find that his petition was filed within 2 years of
a material change in condition that resulted in a substantial
increase in disability.
In October 2012, Lenz developed an infection of the fifth
metatarsal in his right foot. He had previously suffered infec-
tions of the ulcers caused by frostbite. Although Lenz “under-
went short periods of time where the wound would heal, . . . he
was subject to frequent and near continuous episodes of recur-
rence of the ulcers.” But the infection that occurred in October
2012 was distinct from the continuous problems with the
ulcers. It was an infection of the bone, not merely the ulcers
on the skin. Black described the infection as an occurrence that
made Lenz’ injury “significantly worse.”
Due to the infection of the bone, Lenz experienced nausea
and an extremely high temperature. The infection resulted
in partial amputation of the right foot to remove the bone
that was infected. Such a procedure had not previously been
required to treat Lenz’ injury. Based on these facts, it is clear
that Lenz suffered a material change in condition in October
2012 and experienced more than just a continuation of the
prior problems associated with the frostbite injury.
[6] Lenz’ change in condition resulted in an increase in
disability that entitled him to additional compensation. Lenz’
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work-related injury was an injury to a scheduled member
identified in Neb. Rev. Stat. § 48-121(3) (Reissue 2010).
Disability as a basis for compensation under § 48-121(3) is
determined by the “loss of use of a body member,” not loss of
earning power. See Risor v. Nebraska Boiler, 277 Neb. 679,
695, 765 N.W.2d 170, 185 (2009). The extent of disability to a
scheduled member can be expressed in terms of percent. See,
e.g., Castro v. Gillette Group, Inc., 239 Neb. 895, 479 N.W.2d
460 (1992).
There was no evidence that Lenz had been awarded com-
pensation for any level of disability in his right foot prior
to the amputation. Black concluded that after the partial
amputation, Lenz had a 20-percent impairment to his right
foot. This was based on the fact that Lenz “cannot carry
out a job on his feet or in cold weather without ulceration.”
Black also based this determination on the sixth edition
of the “American Medical Association Guides to Permanent
Impairment.” This evidence established that the infection of
the bone and the partial amputation resulted in a substantial
increase in disability in Lenz’ right foot which entitled him to
additional compensation.
In October 2012, Lenz suffered a material change in con-
dition and substantial increase in disability that would allow
him to file a claim within 2 years of that change in condition.
He filed his petition on January 2, 2013. Because the petition
was filed within 2 years of the material change in condition
and substantial increase in disability, it was timely under the
exception to § 48-137 established in White v. Sears, Roebuck
& Co., 230 Neb. 369, 431 N.W.2d 641 (1988). The Workers’
Compensation Court did not err in applying the exception to
§ 48-137 for a material change in condition and substantial
increase in disability. It did not err in refusing to dismiss as
untimely Lenz’ petition for benefits accruing after the par-
tial amputation.
Other Assignments of Error
[7] Several of Central’s assignments of error are broad
enough to encompass the specifics of the award entered by the
Workers’ Compensation Court. However, Central’s arguments
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on appeal are focused solely on the statute of limitations ques-
tion. Aside from asserting that the Workers’ Compensation
Court should not have considered Lenz’ petition, Central does
not challenge the benefits awarded. An alleged error must be
both specifically assigned and specifically argued in the brief
of the party asserting the error to be considered by an appellate
court. Jeremiah J. v. Dakota D., 287 Neb. 617, 843 N.W.2d 820
(2014). Therefore, we do not examine the award of benefits
on appeal.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
Workers’ Compensation Court.
Affirmed.