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not within the exception. A herd of elephants cannot be fairly
characterized as a herd of zebras simply because one zebra is
traveling with the elephants. By treating multi-purpose PTO
as defined in the PayFlex policy as the equivalent of vacation
leave simply because vacation is one of the purposes for which
it can be used, the majority’s reasoning permits the exception
to swallow the rule.
Because I would hold that PayFlex’s PTO is not vaca-
tion leave within the meaning of § 48-1229(4), I would find
that the employees were not entitled to recover attorney fees
under § 48-1231. For these reasons, I would reverse the
judgment of the district court in each of these consolidated
cases and remand the causes with directions to reverse the
judgments of the county court and remand with directions
to dismiss.
Heavican, C.J., and Cassel, J., join in this dissent.
William Jerry Smith, appellant, v. Mark
Chrisman Trucking, Inc., appellee.
___ N.W.2d ___
Filed May 3, 2013. No. S-12-754.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ 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
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. ____: ____. With respect to questions of law in workers’ compensation cases, an
appellate court is obligated to make its own determination.
3. Statutes: Legislature: Intent. A legislative act operates only prospectively and
not retrospectively unless the legislative intent and purpose that it should operate
retrospectively is clearly disclosed.
4. Statutes: Time. Statutes covering substantive matters in effect at the time of the
transaction or event govern, not later enacted statutes.
5. ____: ____. Procedural amendments to statutes are ordinarily applicable to pend-
ing cases, while substantive amendments are not.
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SMITH v. MARK CHRISMAN TRUCKING 827
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6. Statutes: Words and Phrases. A substantive right is one which 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.
Appeal from the Workers’ Compensation Court: Michael K.
High, Judge. Affirmed.
Michael W. Meister for appellant.
Darla S. Ideus and Robert B. Seybert, of Baylor, Evnen,
Curtiss, Grimit & Witt, L.L.P., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman,
and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
William Jerry Smith, appellant, suffered an accident arising
out of and in the course of his employment on October 23,
2007. Smith filed this action in the Workers’ Compensation
Court on February 28, 2012, against his employer, Mark
Chrisman Trucking, Inc., appellee, seeking relief under an
amended version of Neb. Rev. Stat. § 48-121 (Reissue 2010).
Section 48-121(3) was amended by 2007 Neb. Laws, L.B. 588,
and Smith alleged that he was entitled to benefits calculated on
the basis of the loss of earning capacity pursuant to this amend-
ment. The Legislature specified that the operative date of the
L.B. 588 amendment to § 48-121(3) was January 1, 2008. The
Workers’ Compensation Court concluded that the amendment
to § 48-121(3) was substantive rather than procedural and
that because Smith’s accident and injuries occurred prior to
the operative date of the amendment, Smith could not recover
for a loss of earning capacity thereunder. Thus, the court
granted Mark Chrisman Trucking’s motion for summary judg-
ment and overruled Smith’s motion for summary judgment.
Smith appeals. We agree with the Workers’ Compensation
Court’s analysis of the amendment to § 48-121(3) and, accord-
ingly, affirm.
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STATEMENT OF FACTS
The parties in this case stipulated to the following facts:
1. [Smith] suffered an accident arising out of and
in the course of his employment on October 23, 2007.
Said accident caused a crush injury to [Smith’s] left
heel, injury to his right shoulder, and fractured ribs
on the right. Sufficient notice was provided to [Mark
Chrisman Trucking].
2. [Smith’s] average weekly wage at the time of said
accident was $540.60. As a result of the foregoing acci-
dent and injuries, [Smith] was temporarily totally disabled
from and including October 24, 2007, through August
12, 2008, for which [Mark Chrisman Trucking] has paid
[Smith] all indemnity benefits owed.
3. As a result of the foregoing accident and injuries,
[Smith] was assigned a 1% impairment to the left lower
extremity and an 11% permanent impairment to the right
upper extremity and no further treatment was recom-
mended. [Smith] was assigned no additional permanent
impairment due to the fractured ribs and no further treat-
ment is recommended for the fractured ribs.
4. [Mark Chrisman Trucking] has compensated [Smith]
for all permanent impairment ratings set forth above pur-
suant to the schedule for scheduled member injuries set
forth at Neb. Rev. Stat. § 48-121(3).
5. There is vocational evidence that [Smith’s] loss of
earning power due to his injuries to two scheduled mem-
bers is 30%. [Mark Chrisman Trucking] disputes this.
6. All medical bills incurred by [Smith] due to the
foregoing accident and injuries have been paid by [Mark
Chrisman Trucking].
7. Following the accident and injuries referenced
herein, [Smith] returned to work for a different employer
as a truck driver and is not entitled to vocational rehabili-
tation services.
8. The sole issue for the court’s determination is
whether Laws 2007, LB 588 adding the third paragraph
in subsection (3) of § 48-121, set forth below, applies to
the accident occurring on October 23, 2007. The relevant
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portion of § 48-121(3) provides as follows: “If, in the
compensation court’s discretion, compensation benefits
payable for a loss or loss of use of more than one mem-
ber or parts of more than one member set forth in this
subdivision, resulting from the same accident or illness,
do not adequately compensate the employee for such
loss or loss of use and such loss or loss of use results
in at least a thirty percent loss of earning capacity, the
compensation court shall, upon request of the employee,
determine the employee’s loss of earning capacity con-
sistent with the process for such determination under
subdivision (1) or (2) of this section, and in such a case
the employee shall not be entitled to compensation under
this subdivision.”
9. If the court finds this statutory provision applies to
the accident occurring October 23, 2007, a factual issue
exists as to the extent of [Smith’s] loss of earning power
and whether he is otherwise entitled to compensation
based upon a loss of earning power. If the court finds
this statutory provision does not apply to the accident
occurring on October 23, 2007, an Award may be entered
pursuant to the terms of this stipulation.
The statutory language in paragraph 8 of the stipulation is a
part of § 48-121(3) and was added to the statute by L.B. 588.
In § 6 of L.B. 588, the Legislature provided that the operative
date for the section of L.B. 588 at issue was January 1, 2008.
The language under consideration was first introduced as
2007 Neb. Laws, L.B. 77, and the Introducer’s Statement of
Intent reads:
LB 77 relates to the Nebraska Workers’ Compensation
Act and would change disability compensation provi-
sions. Under current law, if a worker sustains an injury
to multiple members, he or she is limited to the com-
pensation provided in the schedule contained in sec-
tion 48-121 of the Nebraska Workers’ Compensation
Act. LB 77 would give to the Nebraska Workers’
Compensation Court the discretion to award a loss of
earning capacity in an appropriate case involving loss of
use of multiple members.
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830 285 NEBRASKA REPORTS
Committee on Business and Labor, 100th Leg., 1st Sess. (Feb.
12, 2007). L.B. 77 was later inserted into L.B. 588 and finally
appears as part of § 48-121(3).
Other than the amendment at issue, the portions of
§ 48-121(3) then and now provide for compensation based on
designated amounts for scheduled member injuries, but no loss
of earning capacity. The amendment provides for the loss of
earning capacity at the court’s discretion where there is a loss
or loss of use of more than one member which results in at
least a 30-percent loss of earning capacity.
On February 28, 2012, Smith filed this action in the Workers’
Compensation Court against his employer, Mark Chrisman
Trucking, alleging that he was entitled to benefits based on his
loss of earning capacity under the amendment to § 48-121(3)
created by L.B. 588. The Workers’ Compensation Court filed
its order on July 30, 2012, which granted Mark Chrisman
Trucking’s motion for summary judgment and denied Smith’s
motion for summary judgment, thus denying Smith a loss
of earning capacity recovery. The court concluded that the
amendment to § 48-121(3) was substantive and that such
amendment created a “right or remedy that did not previously
exist and which, but for the creation of the substantive right,
would not entitle [Smith] to recover under this amendment to
§ 48-121(3).” Therefore, the court determined that because
Smith’s accident and injuries occurred prior to the operative
date of the amendment to § 48-121(3), the amendment to
§ 48-121(3) did not apply to Smith.
Smith appeals.
ASSIGNMENT OF ERROR
Smith claims, restated, that the Workers’ Compensation
Court erred when it granted Mark Chrisman Trucking’s motion
for summary judgment, thus denying Smith the opportunity to
seek benefits based upon a loss of earning capacity.
STANDARDS OF REVIEW
[1] A judgment, order, or award of the Workers’ Compensation
Court may be modified, reversed, or set aside only upon the
grounds that (1) the compensation court acted without or in
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excess of its powers; (2) the judgment, order, or award was
procured by fraud; (3) there is not sufficient competent evi-
dence in the record to warrant the making of the order, judg-
ment, or award; or (4) the findings of fact by the compensation
court do not support the order or award. Visoso v. Cargill Meat
Solutions, ante p. 272, 826 N.W.2d 845 (2013).
[2] With respect to questions of law in workers’ compen-
sation cases, an appellate court is obligated to make its own
determination. Id.
ANALYSIS
At issue in this appeal is whether the portion of § 48-121(3)
amended by L.B. 588 applies to this case. Smith claims that
the Workers’ Compensation Court erred when it granted Mark
Chrisman Trucking’s motion for summary judgment, thus
denying Smith the opportunity to seek recovery based on a
loss of earning capacity. The Workers’ Compensation Court
determined that the amendment to § 48-121(3) was substan-
tive rather than procedural and that therefore, Smith could not
recover under the amendment because his accident occurred
prior to the operative date of the amendment. We agree with
the reasoning of the Workers’ Compensation Court, and there-
fore, we find no merit to Smith’s assignment of error.
Section 48-121(3) generally provides the manner by which
a worker is compensated for the loss or loss of use of a
scheduled member. The portion of § 48-121(3) at issue in this
case provides:
If, in the compensation court’s discretion, compensa-
tion benefits payable for a loss or loss of use of more than
one member or parts of more than one member set forth
in this subdivision, resulting from the same accident or
illness, do not adequately compensate the employee for
such loss or loss of use and such loss or loss of use results
in at least a thirty percent loss of earning capacity, the
compensation court shall, upon request of the employee,
determine the employee’s loss of earning capacity con-
sistent with the process for such determination under
subdivision (1) or (2) of this section, and in such a case
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the employee shall not be entitled to compensation under
this subdivision.
This portion of § 48-121(3) provides for the potential recovery
based on a loss of earning capacity and was added to the stat-
ute by L.B. 588.
[3,4] Generally, legislation that is passed takes effect 3 cal-
endar months after the Legislature adjourns, see Neb. Const.
art. III, § 27, unless the Legislature evidences otherwise. See,
Proctor v. Minnesota Mut. Fire & Cas., 248 Neb. 289, 534
N.W.2d 326 (1995); No Frills Supermarket v. Nebraska Liq.
Control Comm., 246 Neb. 822, 523 N.W.2d 528 (1994); Young
v. Dodge Cty. Bd. of Supervisors, 242 Neb. 1, 493 N.W.2d
160 (1992). We have observed that a legislative act operates
only prospectively and not retrospectively unless the legisla-
tive intent and purpose that it should operate retrospectively
is clearly disclosed. Id. See, also, In re Interest of Clifford M.
et al., 261 Neb. 862, 626 N.W.2d 549 (2001). Statutes cover-
ing substantive matters in effect at the time of the transaction
or event govern, not later enacted statutes. See, Proctor v.
Minnesota Mut. Fire & Cas., supra; No Frills Supermarket v.
Nebraska Liq. Control Comm., supra; Young v. Dodge Cty. Bd.
of Supervisors, supra.
In Young, we observed that the statutory language reflect-
ing the amendment under consideration expressly provided
the operative date of the amendment, thus evidencing the leg-
islative intent that the amendment should apply to the type of
transactions at issue prospectively and not retrospectively. We
reasoned that
[q]uite apart from the [transaction date at issue], the
express language of [Neb. Rev. Stat.] § 39-1716 (Reissue
1988) does not evidence an intent for retroactive applica-
tion of the statute, but evidences a legislative intent that
the 1982 amendment of § 39-1716 apply prospectively,
that is, apply to any real estate acquired after January
1, 1982.
Young v. Dodge Cty. Bd. of Supervisors, 242 Neb. at 6, 493
N.W.2d at 164. We determined in Young that the amended
statute did not apply to the transaction that occurred prior to
the amendment.
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Although the text of the particular section in the present case
does not expressly identify the operative date of the amend-
ment, the analysis from Young v. Dodge Cty. Bd. of Supervisors,
supra, applies. There is no dispute that the operative date of
the amendment to § 48-121(3) was January 1, 2008. In § 6 of
L.B. 588, the Legislature specified that the section of the bill
pertaining to the amendment to § 48-121(3) at issue in this case
was to “become operative on January 1, 2008.” The Legislature
has expressed no intent that the amendment apply retroactively,
and we decline to do so.
[5,6] The central issue in this appeal is the applicability of
the identified amendment to § 48-121(3) to Smith’s claim. As
we observed in Kratochvil v. Motor Club Ins. Assn., 255 Neb.
977, 984, 588 N.W.2d 565, 572 (1999): “We have often had
to deal with new amendments to existing legislation in order
to establish whether the amendment applied retroactively . .
. .” The critical question can turn on whether the amendment
was substantive or procedural. Id. Procedural amendments
to statutes are ordinarily applicable to pending cases, while
substantive amendments are not. In re Interest of Karlie D.,
283 Neb. 581, 811 N.W.2d 214 (2012). This is because a
substantive right is one which 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. Harris v.
Omaha Housing Auth., 269 Neb. 981, 698 N.W.2d 58 (2005).
A procedural amendment, on the other hand, simply changes
the method by which an already existing right is exercised. In
re Interest of Karlie D., supra.
Before it was amended, § 48-121(3) provided that a worker
could receive compensation for injuries to members based on
the schedule set forth in that subsection, but a worker could
not receive compensation for the loss of earning capacity
attributable to scheduled member injuries. Thus, for example,
in Jeffers v. Pappas Trucking, Inc., 198 Neb. 379, 385, 253
N.W.2d 30, 33-34 (1977), we stated that
“it was clearly the intent of the Legislature to fix the
amount of the benefits for loss of specific members
under subdivision (3), section 48-121, R. S. Supp., 1963,
without regard to the extent of the subsequent disability
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suffered with respect to the particular work or industry of
the employee.”
Since the amendment to § 48-121(3), however, a worker can
now receive compensation for the loss of earning capacity if, in
the court’s discretion, compensation as set forth in § 48-121(3)
would not adequately compensate the worker and where there
is a loss or loss of use of more than one member resulting from
the same accident which results in at least a 30-percent loss of
earning capacity. Thus, the amendment to § 48-121(3) created
a new remedy that did not previously exist under the statute
and the amendment is substantive not procedural. Because the
amendment is substantive, as a matter of law, we conclude it
applies prospectively, not retrospectively. See, Visoso v. Cargill
Meat Solutions, ante p. 272, 826 N.W.2d 845 (2013); Young
v. Dodge Cty. Bd. of Supervisors, 242 Neb. 1, 493 N.W.2d
160 (1992).
Because Smith’s accident occurred prior to the operative
date of the amendment, the amendment is inapplicable to
Smith’s action. The Workers’ Compensation Court did not err
when it reached this conclusion and granted Mark Chrisman
Trucking’s motion for summary judgment.
CONCLUSION
Because the amendment to § 48-121(3) created by L.B. 588
does not apply to Smith’s action, he cannot recover for an
alleged loss of earning capacity on this basis. We determine
that the Workers’ Compensation Court did not err when it
granted Mark Chrisman Trucking’s motion for summary judg-
ment and denied Smith’s motion for summary judgment.
Affirmed.
McCormack, J., participating on briefs.