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interlock revocation. The sentence and sanctions imposed were
not an abuse of discretion. Therefore, we affirm.
Affirmed.
Bruce Holdsworth, appellee, v. Greenwood Farmers
Cooperative and Cooperative Mutual Insurance
Company, Inc., appellants.
___ N.W.2d ___
Filed June 14, 2013. No. S-12-403.
1. Workers’ Compensation: Appeal and Error. An appellate court is obligated
in workers’ compensation cases to make its own determinations as to questions
of law.
2. Jurisdiction. A jurisdictional question which does not involve a factual dispute is
determined by an appellate court as a matter of law.
3. Appeal and Error. The meaning of a statute is a question of law.
4. Jurisdiction. Jurisdiction does not relate to the right of the parties as between
each other, but to the power of the court.
5. ____. Parties cannot confer subject matter jurisdiction upon a judicial tribunal by
either acquiescence or consent, nor may subject matter jurisdiction be created by
waiver, estoppel, consent, or conduct of the parties.
6. ____. The jurisdiction of courts is a public matter that cannot be affected by a
private agreement, and the jurisdiction of a court can neither be acquired nor lost
as a result of an agreement of the parties.
7. Statutes: Appeal and Error. An appellate court will not resort to interpreta
tion to ascertain the meaning of statutory words which are plain, direct, and
unambiguous.
8. Workers’ Compensation: Penalties and Forfeitures: Attorney Fees. The
w
aiting-time penalty and attorney fees for waiting-time proceedings provided
under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2012) are rights under the Nebraska
Workers’ Compensation Act.
9. Workers’ Compensation: Penalties and Forfeitures: Waiver. The settlement
procedures in Neb. Rev. Stat. § 48-139(3) (Reissue 2010) require a worker to
waive all rights under the Nebraska Workers’ Compensation Act, including both
the right to penalties under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2012) and
the right to ask a judge of the compensation court to decide the parties’ rights
and obligations.
10. Statutes: Appeal and Error. An appellate court will not read into a statute a
meaning that is not there.
11. Statutes. A court must attempt to give effect to all parts of a statute, and if it
can be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
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12. 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.
Appeal from the Workers’ Compensation Court: Thomas E.
Stine, Judge. Reversed and remanded with direction.
Charles L. Kuper, of Larson, Kuper & Wenninghoff, P.C.,
L.L.O., for appellants.
Rolf Edward Shasteen, of Shasteen, Miner, Scholz & Morris,
P.C., L.L.C., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Cassel, JJ.
Cassel, J.
INTRODUCTION
In this workers’ compensation appeal, the parties imple
mented a lump-sum settlement in compliance with Neb. Rev.
Stat. § 48-139(3) (Reissue 2010), which dispenses with court
approval. Pursuant to this statute, the worker filed a release
in which he waived “all rights under the Nebraska Workers’
Compensation Act” and discharged his employer from “further
liability” on account of the injury. When the employer paid the
lump-sum amount 42 days after the filing of the release, the
worker sought and received a court order awarding a waiting-
time penalty and attorney fees, from which the employer
appeals. Because the worker’s release waived his right to pen
alties and attorney fees, the order must be reversed.
BACKGROUND
In November 2011, Bruce Holdsworth filed a petition for
workers’ compensation benefits alleging that he had been
injured during his employment at Greenwood Farmers
Cooperative. Holdsworth entered into a lump-sum settlement
with Greenwood Farmers Cooperative and its workers’ com
pensation insurance carrier (collectively appellants). Pursuant
to this settlement, appellants agreed to make a one-time pay
ment of $20,000 “to cover any future claims for indemnity
benefits and future medical treatment and to close any and all
liability for the accident of March 19, 2004.” At the time of
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settlement, appellants had already paid for all of Holdsworth’s
medical expenses, temporary total disability benefits, and per
manent partial disability benefits for a 27-percent loss of earn
ing capacity. Holdsworth agreed that he was not entitled to any
further temporary total disability benefits or permanent partial
disability benefits.
The parties opted to use the settlement procedures adopted
by the Legislature in 2009 and outlined in § 48-139(3), which
did not require approval by the Workers’ Compensation Court
but, instead, required the filing of a release. Accordingly,
Holdsworth signed a release of liability, along with his attor
ney, and filed it with the court on January 11, 2012. In this
release, Holdsworth waived “all rights under the Nebraska
Workers’ Compensation Act,” including the right “to ask a
judge of the compensation court to decide the parties’ rights
and obligations.” Holdsworth also agreed that appellants were
“fully and completely discharged from further liability” on
account of his injury.
Although not required by § 48-139(3), the parties filed a joint
stipulation and motion to dismiss with prejudice. On January
12, 2012, the court issued an order dismissing Holdsworth’s
petition with prejudice.
Holdsworth received the settlement payment from appel
lants in the form of a check dated February 21, 2012. The let
ter mailing the check was postmarked on February 22, which
was 42 days after the release had been filed. Because payment
was made more than 30 days after the filing of the release,
Holdsworth filed a motion with the Workers’ Compensation
Court to obtain a waiting-time penalty and attorney fees pursu
ant to Neb. Rev. Stat. § 48-125 (Cum. Supp. 2012).
Appellants objected to Holdsworth’s motion, arguing
that § 48-125 was not applicable to settlements made under
§ 48-139(3). Specifically, appellants argued that when a set
tlement was finalized without court approval, there was no
“entry of a ‘final [o]rder, [a]ward, or [j]udgment’” to trigger
the 30-day limitation. As for the order of dismissal, which
Holdsworth had also suggested could serve as a final order
for purposes of § 48-125, appellants maintained that such an
order was “simply a housekeeping matter” to clear the docket,
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highlighting that “no [c]ourt action is required to effectuate the
settlement” executed pursuant to § 48-139(3).
On April 16, 2012, after an evidentiary hearing, the Workers’
Compensation Court entered an order granting Holdsworth’s
motion for a waiting-time penalty and attorney fees. In its
order, the Workers’ Compensation Court considered whether
the January 12 order of dismissal was a final order for pur
poses of § 48-125—focusing its analysis on the definition of
a final order under Neb. Rev. Stat. § 25-1902 (Reissue 2008).
The court concluded that the order of dismissal was a final
order because it was made during a special proceeding and
affected one of Holdsworth’s substantial rights (the right to
bring an action against appellants for his work-related injury).
The court reached this conclusion despite a workers’ compen
sation decision in an earlier case in which a different judge
concluded the exact opposite—that the settlement procedures
of § 48-139(3) did not produce a final order for purposes of
§ 48-125.
Having determined that the order of dismissal was a final
order, the Workers’ Compensation Court ruled that appellants
were bound by the penalty provisions of § 48-125 and granted
Holdsworth’s motion for penalties. The court ordered appel
lants to pay a $10,000 waiting-time penalty and $500 in attor
ney fees for failing to pay the lump-sum settlement on time.
Appellants subsequently filed a motion to modify the
court’s April 16, 2012, order on the ground that there was a
“reasonable controversy” over Holdsworth’s right to penalties
that precluded the imposition of such penalties. They cited to
McBee v. Goodyear Tire & Rubber Co.,1 in which this court
construed § 48-125 as authorizing a waiting-time penalty
only “where there is no reasonable controversy regarding
an employee’s claim for workers’ compensation.” Appellants
argued that there was a reasonable controversy precluding
the imposition of penalties because (1) the question whether
penalties could be applied to settlements reached under
§ 48-139(3) was a question of law not yet addressed by this
1
McBee v. Goodyear Tire & Rubber Co., 255 Neb. 903, 908, 587 N.W.2d
687, 692 (1999).
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court and (2) judges of the Workers’ Compensation Court dis
agreed as to whether the settlement procedure of § 48-139(3)
produced a final order for purposes of § 48-125. On April 25,
the Workers’ Compensation Court denied appellants’ motion
to modify.
Appellants timely appealed both the order imposing penal
ties and the order denying the motion to modify. We granted
appellants’ petition to bypass in order to address these ques
tions brought about by the enactment of § 48-139(3) in 2009.
ASSIGNMENTS OF ERROR
Appellants allege, reordered and restated, that the Workers’
Compensation Court erred in (1) determining that it had juris
diction to hear the motion for penalties after Holdsworth filed a
release of liability pursuant to § 48-139(3), (2) concluding that
the penalty provisions of § 48-125 applied to settlements made
under § 48-139(3), (3) deciding that the order of dismissal was
a final order for purposes of § 48-125, (4) determining that
there was no reasonable controversy to preclude the imposi
tion of penalties, and (5) awarding Holdsworth a waiting-time
penalty and attorney fees.
STANDARD OF REVIEW
[1] An appellate court is obligated in workers’ compensation
cases to make its own determinations as to questions of law.2
[2,3] A jurisdictional question which does not involve a fac
tual dispute is determined by an appellate court as a matter of
law.3 The meaning of a statute is also a question of law.4
ANALYSIS
Jurisdiction
Appellants question the jurisdiction of the Workers’
Compensation Court to consider Holdsworth’s motion for pen
alties following the parties’ settlement under § 48-139(3).
Because we have the duty to determine whether the lower court
2
Foster v. BryanLGH Med. Ctr. East, 272 Neb. 918, 725 N.W.2d 839
(2007).
3
Midwest PMS v. Olsen, 279 Neb. 492, 778 N.W.2d 727 (2010).
4
Id.
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had the power to enter the order in question, we consider this
assignment of error first.5
Appellants base their argument that the Workers’
Compensation Court lacked jurisdiction solely on the fact that
Holdsworth had signed a “[r]elease of [l]iability specifically
waiving his right to have a judge of the compensation court
decide the rights and liabilities of the parties.”6 This release
was in accordance with the settlement procedures outlined in
§ 48-139(3) and therefore also stated that Holdsworth waived
“all rights under the Nebraska Workers’ Compensation Act.”
According to § 48-139(3), “[s]uch release shall be a full and
complete discharge from further liability for the employer
on account of the injury . . . .” Because of this language of
waiver and discharge, appellants allege that upon the filing
of the signed release, the Workers’ Compensation Court “was
divulged of jurisdiction to hear and rule on” Holdsworth’s
motion for penalties.7 This is an incorrect conclusion.
[4-6] As this court has previously stated, “[i]t is generally
elementary that: ‘Jurisdiction does not relate to the right of the
parties as between each other, but to the power of the court.’”8
Because jurisdiction does not relate to the rights of the parties,
“[p]arties cannot confer subject matter jurisdiction upon a judi
cial tribunal by either acquiescence or consent, nor may subject
matter jurisdiction be created by waiver, estoppel, consent, or
conduct of the parties.”9 Similarly, “the jurisdiction of courts is
a public matter that cannot be affected by a private agreement,
and the jurisdiction of a court can neither be acquired nor lost
as a result of an agreement of the parties.”10
5
See Currie v. Chief School Bus Serv., 250 Neb. 872, 553 N.W.2d 469
(1996), limited on other grounds, O’Connor v. Kaufman, 255 Neb. 120,
582 N.W.2d 350 (1998).
6
Brief for appellant at 10.
7
Id. at 12.
8
School Dist. No. 49 v. Kreidler, 165 Neb. 761, 771, 87 N.W.2d 429, 436
(1958) (quoting 14 Am. Jur. Courts § 161 (1938)).
9
Cummins Mgmt. v. Gilroy, 266 Neb. 635, 638, 667 N.W.2d 538, 542
(2003).
10
20 Am. Jur. 2d Courts § 95 at 479 (2005).
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Given these basic principles of jurisdiction, the parties in
the instant case could not deprive the Workers’ Compensation
Court of jurisdiction by private agreement. It necessarily fol
lows that Holdsworth’s waiver of rights—filed pursuant to
a private settlement agreement—did not deprive the court
of jurisdiction to hear further issues in the case. Whether
Holdsworth was entitled to bring further issues before the court
is a separate matter relating to his rights under the Nebraska
Workers’ Compensation Act—a matter that we will discuss
shortly. But whatever Holdsworth’s rights, our case law rec
ognizes that the Workers’ Compensation Court had continuing
jurisdiction to enforce the award of workers’ compensation
benefits.11 This assignment of error has no merit.
Whether P enalty P rovisions of § 48-125
Apply to Settlements R eached
Under § 48-139(3)
Next, we must consider whether the penalty provisions of
§ 48-125 apply to settlements reached under the new proce
dures of § 48-139(3). We conclude that a worker waives his or
her right to ask for penalties by filing the waiver required in
§ 48-139(3).
Section 48-139(3) imposes specific requirements to utilize
the new settlement procedures not requiring court approval.
Notably, the statute mandates that if a “lump-sum settlement
is not required to be submitted for approval by the compen
sation court, a release shall be filed with the compensation
court in accordance with this subsection.”12 In order to pro
tect the worker’s rights, § 48-139(3) requires that the release
be signed and verified by both the worker and the worker’s
attorney. It also mandates that the release be made on a form
approved by the compensation court and that the form notify
the worker of particular rights conferred by the Nebraska
Workers’ Compensation Act. It further requires that the release
“shall contain” certain statements, including a statement that
the worker “waives all rights under the Nebraska Workers’
11
See Russell v. Kerry, Inc., 278 Neb. 981, 775 N.W.2d 420 (2009).
12
§ 48-139(3) (emphasis supplied).
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Compensation Act, including, but not limited to: . . . [t]he right
to ask a judge of the compensation court to decide the parties’
rights and obligations.”13
[7] We find no ambiguity in this language, but read it as
a full waiver of any and all rights given to workers in the
Nebraska Workers’ Compensation Act. The statute does not
qualify or limit the rights given up by the worker in the release,
but states that the release is a waiver of “all rights under the
Nebraska Workers’ Compensation Act.”14 The Legislature also
highlighted the expansiveness of the waiver by including in
§ 48-139(3) the words “including, but not limited to,” which
ensures that the waiver will not be limited only to rights spe
cifically listed in the statute. Because we find no ambiguity,
we give the statutory language of § 48-139(3) “its plain and
ordinary meaning.”15 We “will not resort to interpretation to
ascertain the meaning of statutory words which are plain,
direct, and unambiguous.”16
[8] Without doubt, the waiting-time penalty and attorney
fees for waiting-time proceedings provided under § 48-125 are
rights under the Nebraska Workers’ Compensation Act. The
broadly inclusive language of § 48-139(3) gives us no rea
son to believe that the rights provided by § 48-125 should be
excluded from the scope of the statutory waiver.
Moreover, a worker cannot receive penalties under § 48-125
without relying upon another right explicitly waived by the
release—“[t]he right to ask a judge of the compensation court
to decide the parties’ rights and obligations.”17 As § 48-125 has
been interpreted by this court, there are only certain circum
stances in which a worker is entitled to a waiting-time pen
alty.18 Where the employer alleges that there was a reasonable
13
Id.
14
Id. (emphasis supplied).
15
See Pittman v. Western Engineering Co., 283 Neb. 913, 925, 813 N.W.2d
487, 496 (2012).
16
Id.
17
§ 48-139(3).
18
See Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d
51 (2009).
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controversy, the worker’s right to a waiting-time penalty must
be decided by the Workers’ Compensation Court.19 And, an
attorney fee may not be awarded pursuant to § 48-125(2)(a)
due to a delay in paying compensation unless the worker
receives an award of a waiting-time penalty. Therefore, a
worker’s entitlement to penalties under § 48-125 depends
upon the worker’s asking the court to decide both the worker’s
rights and the employer’s obligations. But under the settle
ment procedure in § 48-139(3), the worker’s release expressly
waives this right.
[9] In summary, the settlement procedures in § 48-139(3)
require a worker to waive “all rights under the Nebraska
Workers’ Compensation Act,” including both the right to penal
ties under § 48-125 and “[t]he right to ask a judge of the com
pensation court to decide the parties’ rights and obligations.”
Because a worker who enters into a lump-sum settlement
without court approval and files a waiver in compliance with
§ 48-139(3) thereby waives “all” rights under the Nebraska
Workers’ Compensation Act, he or she also effectively waives
the right to penalties under § 48-125. We agree with appellants
that the penalty provisions of § 48-125 were waived by imple
mentation of and compliance with the waiver procedures under
§ 48-139(3).
The partial dissent argues that the waiver required by
§ 48-139(3) is limited by the main paragraph of this subsec
tion and extends only to “those liabilities that can be consid
ered to be ‘on account of the injury.’” It interprets the release
statements required by § 48-139(3)(a) through (d) as implicitly
incorporating this limitation.
But this interpretation reads words into § 48-139(3) that are
not there. If the Legislature meant to limit the language of the
release to “those liabilities that can be considered to be ‘on
account of the injury,’” then it would have qualified the release
statement required by § 48-139(3)(a) so as to state that the
worker waives only those rights under the Nebraska Workers’
19
See, e.g., Hobza v. Seedorff Masonry, Inc., 259 Neb. 671, 611 N.W.2d 828
(2000) (superseded by statute as stated in Lovelace v. City of Lincoln, 283
Neb. 12, 809 N.W.2d 505 (2012)).
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Compensation Act “on account of the injury.” But it did not.
The statement of release provided by § 48-139(3)(a) would
not accomplish the result urged by the dissent without this
added language.
Additionally, the dissent’s interpretation ignores the plain
meaning of the word “all” in the various release statements.
Under its interpretation, the word “all” is meaningless, because
not all rights are waived, but only the rights and obligations
“on account of the injury.” Moreover, the Legislature not only
said “all,” it added the phrase “including, but not limited to.”20
This language cannot be reconciled with the approach urged by
the dissent.
[10,11] When interpreting statutes, an appellate court will not
“read into a statute a meaning that is not there.”21 Additionally,
“[a] court must attempt to give effect to all parts of a statute,
and if it can be avoided, no word, clause, or sentence will
be rejected as superfluous or meaningless.”22 The dissent’s
interpretation effectively adds language to the release state
ments required by § 48-139(3) and erases the clear statement
in § 48-139(3)(a) that the worker waives “all” rights under the
Nebraska Workers’ Compensation Act.
Furthermore, the dissent claims that our interpretation will
lead to the absurd result that a worker who has reached a
settlement agreement with his employer would have no means
of enforcing the settlement once the release has been filed,
thereby allowing an employer “to indefinitely delay payment.”
Such an argument, however, ignores the reality that under
§ 48-139(3), the filing of a release by itself effects a discharge
from liability and not actual payment, as is the case under the
settlement procedures requiring court approval.23 The suppos
edly absurd result is easily avoided by the simple expedient
20
See § 48-139(3)(a).
21
Blakely v. Lancaster County, 284 Neb. 659, 679, 825 N.W.2d 149, 166
(2012).
22
In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 846, 825 N.W.2d
173, 182 (2012).
23
See § 48-139(2)(c).
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of not delivering the release or stipulating to the dismissal of
the case until the lump-sum payment is received. This happens
every day in tort settlements, and we are not persuaded that a
worker would be without a remedy where a release is fraudu
lently obtained.
In authorizing settlements without the protections inherent
in the process of court approval, the Legislature struck a bal
ance. Section 48-139(3) enables a worker to obtain a settlement
more quickly, but in order to do so, it requires the worker to
expressly waive his or her rights under the Nebraska Workers’
Compensation Act. It is the function of the Legislature, through
the enactment of statutes, to declare what is the law and public
policy of this state.24 Because the language of the statute is
clear and unambiguous, it is not our province to disturb the
balance framed by the Legislature.
R emaining Assignments of Error
[12] Because we have concluded that Holdsworth waived his
right to penalties by filing the release required by § 48-139(3),
we need not consider appellants’ remaining assignments of
error. An appellate court is not obligated to engage in an analy
sis that is not necessary to adjudicate the case and controversy
before it.25
CONCLUSION
Because jurisdiction is a matter of the power of a court and
not of the rights of the parties, the Workers’ Compensation
Court retains jurisdiction to consider additional matters fol
lowing the filing of a release pursuant to the settlement
procedures in § 48-139(3). However, because a worker
waives all of his or her rights under the Nebraska Workers’
Compensation Act, including the right to penalties under
§ 48-125, in such a release, a waiting-time penalty and the
corresponding attorney fees cannot be imposed following a
settlement reached under and implemented in compliance with
24
Bamford v. Bamford, Inc., 279 Neb. 259, 777 N.W.2d 573 (2010).
25
Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012).
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§ 48-139(3). Accordingly, we reverse the order of the Workers’
Compensation Court awarding a waiting-time penalty and
attorney fees to Holdsworth, and remand the cause with direc
tion to deny his petition for penalties.
R eversed and remanded with direction.
Miller-Lerman, J., participating on briefs.
McCormack, J., concurring in part, and in part dissenting.
I disagree with the majority’s determination that a non-court-
approved settlement, pursuant to Neb. Rev. Stat. § 48-139(3)
(Reissue 2010), waives the employee’s right to a waiting-
period penalty under Neb. Rev. Stat. § 48-125 (Cum. Supp.
2012). An employee does not waive his or her right to the
waiting-period penalty under § 48-139(3), because the penalty
is not awarded “on account of” the injury. It is awarded “on
account of” the employer’s failure to timely deliver payment.
Accordingly, I concur with the majority’s holding on subject
matter jurisdiction, but respectfully dissent on the issue of the
waiting-period penalty.
The majority opinion errs in holding that all rights and
obligations under the Nebraska Workers’ Compensation Act
(the Act) are unambiguously waived under a § 48-139(3)
settlement agreement. A careful reading of § 48-139(3), in its
entirety, reveals the statute itself limits the scope of the waiver
signed by the employee. To understand the limited scope of the
waiver, it is important to view the complete provision:
(3) If such lump-sum settlement is not required to
be submitted for approval by the compensation court,
a release shall be filed with the compensation court in
accordance with this subsection that is signed and veri
fied by the employee and the employee’s attorney. Such
release shall be a full and complete discharge from fur-
ther 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. The release shall be made on a form approved
by the compensation court and shall contain a statement
signed and verified by the employee that:
(a) The employee understands and waives all rights
under the . . . Act, including, but not limited to:
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(i) The right to receive weekly disability benefits, both
temporary and permanent;
(ii) The right to receive vocational rehabilitation
services;
(iii) The right to receive future medical, surgical,
and hospital services as provided in section 48-120,
unless such services are specifically excluded from the
release; and
(iv) The right to ask a judge of the compensation court
to decide the parties’ rights and obligations;
(b) The employee is not eligible for medicare, is not
a current medicare beneficiary, and does not have a
reasonable expectation of becoming eligible for medi
care within thirty months after the date the settlement
is executed;
(c) There are no medical, surgical, or hospital expenses
incurred for treatment of the injury which have been
paid by medicaid and not reimbursed to medicaid by the
employer as part of the settlement; and
(d) There are no medical, surgical, or hospital expenses
incurred for treatment of the injury that will remain
unpaid after the settlement.1
Read properly as a whole statute, consisting of a main para
graph, subsections, and sub-subsections, the main paragraph
clearly limits the waiver to only those liabilities that can be
considered to be “on account of the injury.” This qualification
is crucial as it indicates a clear intent by the Legislature to limit
the liabilities that an employee waives in a non-court-approved
settlement. In contrast, the majority opinion does not give
due consideration to “on account of” and myopically focuses
on subsections (3)(a) through (d) as an extensive release for
the employer.
The majority opinion’s decision to ignore the main para
graph is in error, because the inclusion of “on account of”
by the Legislature was not by happenstance. When one reads
the entirety of § 48-139, one finds that “on account of”
is also used by the Legislature in § 48-139(2)(c). Section
1
§ 48-139(3) (emphasis supplied).
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48-139(2)(c) is the longstanding statute that enables court-
approved lump-sum settlement agreements. It states in its rel
evant part: “Upon paying the amount approved by the compen
sation court, the employer (i) shall be discharged from further
liability on account of the injury . . . .”2 The placement of “on
account of the injury” specifies which liability is discharged.
Therefore, the inclusion by the Legislature of “on account of”
in § 48-139(3) was included as an intentional limitation on the
employee’s release of liability.
The majority’s argument is that “on account of” is not used
in subsections (3)(a) through (d) and therefore is irrelevant to
interpreting those subsections. Such an argument ignores our
rule that when reading a statute, we must not look merely to a
particular clause but must read it in connection with the whole
statute.3 The majority’s focus on only the subsections ignores
the grammatical structure of § 48-139(3).
The grammatical structure indicates that the subsections
are dependent on the sentences and clauses found in the main
paragraph. Subsections (a) through (d) are offset underneath
the main paragraph of § 48-139(3). These subsections are
dependent on the main paragraph of § 48-139(3), because the
subsections would become nonsensical if the main paragraph
was removed. This is first evident in the use of a colon at the
end of the first paragraph, which indicates that subsections (a)
through (d) are a list. Without the main paragraph, the purpose
of the list would be unknown.
Second, if the subsections are read in a vacuum without
the main paragraph, the release language found in subsec
tion (3)(a), for instance, would forever waive the employee’s
rights under the Act. Likewise, reading subsections (3)(a) and
(a)(iv), in a vacuum and without adding implied language, an
employee would be prevented from seeking redress with the
compensation court even if the employee is injured again in an
unrelated accident. It is illogical to assume that the Legislature
intended to waive every right of an employee under the Act in
2
§ 48-139(2)(c) (emphasis supplied).
3
See Dada v. Mukasey, 554 U.S. 1, 128 S. Ct. 2307, 171 L. Ed. 2d 178
(2008).
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a sub-subsection, where the Legislature appears to have copied
and pasted “standard form” release language. For that reason,
it is necessary to understand that the grammatical structure of
§ 48-139(3) necessitates that the dependent subsections cannot
be read without due consideration of the independent clauses
found in the main paragraph.
When read in the proper context, I find that “on account
of the injury” qualifies the rights, obligations, and liabilities
waived by the employee throughout § 48-139(3). When the
employee signs the release statement, he or she is releasing the
employer from any obligation or liability that is on account of
that injury. For instance, § 48-139(3)(a) should be understood
to state that “[t]he employee understands and waives all rights
[on account of the injury] under the . . . Act . . . .” Section
48-139(3)(a)(ii) should be understood as “[t]he right to receive
vocational rehabilitation services [on account of the injury].”
And likewise, the language relied upon heavily by the major
ity should be read as “[t]he employee understands and waives
all rights [on account of the injury] under the . . . Act, includ
ing, but not limited to: . . . [t]he right to ask a judge of the
compensation court to decide the parties’ rights and obliga
tions [on account of the injury].”4 Such readings are logical
under the grammatical structure of the statute.
Having established that “on account of” qualifies the rights,
obligations, and liabilities discussed in § 48-139(3), it is
necessary to determine whether a waiting-period penalty is
awarded “on account of the injury.” To do so, I rely on the
plain meaning of “on account of,” which is defined as “for the
sake of: by reason of,”5 or “because of.”6 Using these defini
tions, I find that a waiting-period penalty is not a liability by
reason of or because of the employee’s injury, but, rather, is
levied under § 48-125 because of or by reason of the delay
in payment.
4
See § 48-139(3)(a)(iv).
5
Merriam-Webster’s Collegiate Dictionary 8 (10th ed. 2001), available at
http://www.merriam-webster.com/dictionary/account.
6
Webster’s Third New International Dictionary of the English Language,
Unabridged 13 (1993).
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As in O’Gilvie v. United States,7 where the U.S. Supreme
Court also defined “on account of” to mean “because of,” the
waiting-period penalty, like punitive damages, is not awarded
“on account of the injury,” but, rather, is awarded because of
the employer’s bad acts. In O’Gilvie, punitive damages were
awarded. The issue before the Court was whether the punitive
damages were excluded from gross income. “Internal Revenue
Code § 104(a)(2), as it read in 1988, excluded from ‘gross
income’ the ‘amount of any damages received (whether by suit
or agreement and whether as lump sums or as periodic pay
ments) on account of personal injuries or sickness.’”8
The Court used the dictionary definition “because of” and
held that punitive damages were not received on account of
the personal injuries, but, rather, were awarded on account of,
or because of, the defendant’s conduct and the jury’s need to
punish and deter such conduct.9 The Court found that punitive
damages “‘“are not compensation for injury [but] [i]nstead
. . . are private fines levied by civil juries to punish repre
hensible conduct and to deter its future occurrence.”’”10 In
coming to this holding, the U.S. Supreme Court rejected the
petitioners’ argument that but for the personal injury, there
would be no lawsuit, and but for the lawsuit, there would be
no damages.
Here, as in O’Gilvie, the waiting-period penalty under
§ 48-125 is not compensation for the worker’s injury but
instead is a penalty levied by the compensation court to pun
ish the employer for failure to make prompt payment. Thus,
the waiting-period penalty is not awarded on account of the
employee’s injury, but is awarded on account of the employer’s
failure to deliver timely payment.
Therefore, I believe the plain meaning of § 48-139(3),
read in its entirety, is that the employee waives his or her
rights under the Act that are on account of the underlying
7
O’Gilvie v. United States, 519 U.S. 79, 117 S. Ct. 452, 136 L. Ed. 2d 454
(1996).
8
Id., 519 U.S. at 81 (emphasis in original).
9
O’Gilvie v. United States, supra note 7.
10
Id., 519 U.S. at 83.
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Cite as 286 Neb. 49
injury. Thus, the statute does not waive the employee’s right
to ask the compensation court to enforce the payment of the
settlement agreement through the use of a § 48-125 waiting-
period penalty. Such a penalty is not awarded “on account of
the injury.”
I believe my plain reading of the statute is correct. However,
our rules of statutory interpretation state that a statute is
ambiguous if it is susceptible of more than one reasonable
interpretation.11 I will entertain the majority opinion as rea
sonable for purposes of examining the legislative history in
this dissent.
When construing an ambiguous statute, a court must look
at the statutory objective to be accomplished, the problem to
be remedied, or the purpose to be served, and then place on
the statute a reasonable construction which best achieves the
purpose of the statute, rather than a construction defeating the
statutory purpose.12
The Legislature enacted the Act to relieve injured workers
from the adverse economic effects caused by a work-related
injury or occupational disease.13 In light of this beneficent pur
pose of the Act, we have consistently given it a broad construc
tion to carry out justly the spirit of the Act.14
To carry out the spirit of the Act, this court has liberally
construed the waiting-period penalty provision in the past.
Section 48-125(1)(b) states in its relevant part: “Fifty percent
shall be added for waiting time for all delinquent 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 Nebraska Workers’ Compensation Court . . . .” We have
held that the purpose of the 30-day waiting-period penalty
and the provision for attorney fees in § 48-125 is to encour
age prompt payment by making delay costly if the award has
11
In re Interest of Erick M., 284 Neb. 340, 820 N.W.2d 639 (2012).
12
Travelers Indem. Co. v. Gridiron Mgmt. Group, 281 Neb. 113, 794 N.W.2d
143 (2011).
13
Foote v. O’Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001).
14
See Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409
(2013).
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66 286 NEBRASKA REPORTS
been finally established.15 The only legitimate excuse for delay
in the payment of compensation benefits is the existence of a
genuine dispute from a medical or legal standpoint that any
liability exists.16
To further encourage prompt payment, in Hollandsworth
v. Nebraska Partners,17 we held that the payment of a court-
approved lump-sum settlement in a workers’ compensation
case is subject to a waiting-period penalty under § 48-125.
We noted that because a delay in payment to the employee
results when a case is contested, the disabled worker’s need
for the prompt payment of benefits is especially urgent after
a final adjudicated award.18 In such instances, the employee
has had to do without a weekly stipend for a longer period
than when an employer does not contest the worker’s right
to benefits.19 Thus, it is important to discourage unneces
sary delay in the payment of a court-approved settlement
agreement.20
In addition, the legislative history of § 48-139(3)—which
was introduced after our opinion in Hollandsworth—reaffirms
the importance of discouraging unnecessary delay in the pay
ment of a settlement agreement under that section. The bill’s
introducer stated she “introduced this bill as a way to help
injured employees received [sic] their benefits more quickly.”21
She went on to explain to the Business and Labor Committee
that the purpose of the legislation was to expedite payments
from the employer to the employee, stating:
[T]he general purpose behind this legislation, it is really
about efficiency. When an injured person is fully rep
resented by competent counsel [and] both parties have
15
Roth v. Sarpy Cty. Highway Dept., 253 Neb. 703, 572 N.W.2d 786 (1998).
16
Id.
17
Hollandsworth v. Nebraska Partners, 260 Neb. 756, 619 N.W.2d 579
(2000).
18
Id.
19
Id.
20
Id.
21
Public Hearing, L.B. 194, Business and Labor Committee, 101st Leg., 1st
Sess. 1 (Feb. 9, 2009).
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HOLDSWORTH v. GREENWOOD FARMERS CO-OP 67
Cite as 286 Neb. 49
been able to reach agreement on what would be an
appropriate settlement and that injured worker is wait
ing, many times in dire circumstances without income
coming in and their [sic] receiving, for example, noti
fications that maybe their [sic] utilities might be turned
off and they [sic] have no resources available to them
[sic] until the settlement is granted. So by erasing the
undue burden that this additional administrative step
could impose, it just seeks to improve efficiency within
the system.22
The legislative history demonstrates that the statute was
not intended, and should not be interpreted, to waive every
employee right under the Act. Rather, the statute’s intention is
to expedite payment.
To be consistent with the legislative history, we should
reject the majority opinion, because its interpretation allows
an employer to indefinitely delay payment. This is because
the majority interpretation prevents Holdsworth from asking
the compensation court to enforce the settlement agreement
he signed with his employer. That would be asking the com
pensation court to decide the parties’ rights and obligations
concerning the settlement agreement. It gets worse. Under the
majority opinion, Holdsworth could not file a separate cause of
action in a Nebraska district court, or any court, because the
compensation court has exclusive subject matter jurisdiction
over § 48-139(3) settlement agreements.23 It is unclear how
an employee would be able, if at all, to force the employer to
make payment.
An interpretation that allows for an indefinite delay of pay
ment is an absurd result. In Soto v. State,24 we held that we
should never interpret a provision of the Act in a manner that
creates a circumstance whereby an employer could indefinitely
delay payment of a portion of a workers’ compensation judg
ment without penalty. The majority opinion does just that.
22
Id.
23
See Abbott v. Gould, Inc., 232 Neb. 907, 443 N.W.2d 591 (1989).
24
Soto v. State, 269 Neb. 337, 693 N.W.2d 491 (2005), modified on denial of
rehearing 270 Neb. 40, 699 N.W.2d 819.
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68 286 NEBRASKA REPORTS
In response, the majority opinion argues that the “suppos
edly absurd result is easily avoided by the simple expedient of
not delivering the release or stipulating to the dismissal of the
case until the lump-sum payment is received.” This ignores
the realities of this case and the realities discussed by both of
the parties’ attorneys during oral argument. In this instance,
Holdsworth’s experienced workers’ compensation attorney did
not demand that the insurance company pay before having
his client sign the release agreement. During oral argument,
the employer’s attorney acknowledged that it was common
practice for the release to be filed prior to payment. He
attributed this to the practice of receiving court approval of
a signed settlement agreement reached under § 48-139(2)(c)
before payment. Likewise, Holdsworth’s attorney agreed with
opposing counsel and argued during oral argument that in his
experience, an insurance company would not issue a check
prior to a signed release statement. Although both attorneys
did acknowledge that, in theory, payment and signing of the
release could happen simultaneously, neither attorney was
willing to endorse it as practical. Either way, in the world of
the majority opinion, an employee will have to require pay
ment before signing the release statement—a practice insur
ance companies may not be willing to accommodate. Thus,
non-court-approved settlements will risk falling out of favor,
defeating the statute’s purpose of expediting payment.
My interpretation of § 48-139(3), which encourages prompt
payment by allowing waiting-period penalties, is consistent
with the legislative history of § 48-139(3) and with the
beneficent purpose of the Act. This court should continue
to recognize the necessity of enforcing timely payment by
allowing the waiting-period penalty to apply to this settle
ment agreement.
Because a waiting-period penalty can be awarded to non-
court-approved settlements, we must determine whether the
facts of this case meet the requirements for awarding the
penalty under § 48-125. The compensation court’s dismissal
in this case was a final adjudicated order under our prec
edent in Hollandsworth, and the payment was due within
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Cite as 286 Neb. 69
30 days of the dismissal order.25 Payment was received by
Holdsworth 42 days after the compensation court dismissed
his claim pursuant to the settlement agreement. There can be
no legal or medical dispute over liability, because the par
ties had reached an agreement for payment. Therefore, the
employer’s failure to promptly pay is not excused, and the
award was proper.
I respectfully dissent from the majority opinion’s conclu
sion that an employee waives his or her right to a waiting-
period penalty when reaching a non-court-approved settlement
pursuant to § 48-139(3). Accordingly, I would affirm the
compensation court’s decision to grant Holdsworth’s motion
for penalties.
25
See Hollandsworth v. Nebraska Partners, supra note 17.
State of Nebraska ex rel. Commission on
Unauthorized P ractice of Law, relator,
v. Paul J. H ansen, respondent.
___ N.W.2d ___
Filed June 14, 2013. No. S-12-475.
1. Rules of the Supreme Court: Attorneys at Law. The Nebraska Supreme Court
has the inherent power to define and regulate the practice of law and is vested
with exclusive power to determine the qualifications of persons who may be per
mitted to practice law.
2. ____: ____. The inherent power of the Nebraska Supreme Court to define and
regulate the practice of law includes the power to prevent persons who are not
attorneys admitted to practice in this state from engaging in the practice of law.
3. Attorney and Client: Actions. A legal proceeding in which a party is repre
sented by a person not admitted to practice law is considered a nullity and is
subject to dismissal.
4. Rules of the Supreme Court: Attorneys at Law. Pursuant to its inherent author
ity to define and regulate the practice of law in Nebraska, the Nebraska Supreme
Court has adopted rules specifically addressed to the unauthorized practice of
law. The purpose of the rules is to protect the public from potential harm caused
by the actions of nonlawyers engaging in the unauthorized practice of law.
Original action. Injunction issued.