Simmons v. Precast Haulers ( 2014 )

Nebraska Advance Sheets
480 288 NEBRASKA REPORTS
Michael Simmons, appellee and cross-appellant, v.
P recast Haulers, Inc., and Cherokee Insurance
Company, its workers’ compensation insurer,
appellants and cross-appellees.
___ N.W.2d ___
Filed July 3, 2014. No. S-13-848.
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. ____: ____. In determining whether to affirm, modify, reverse, or set aside a
judgment of the Workers’ Compensation Court, the findings of fact of the trial
judge will not be disturbed on appeal unless clearly wrong.
3. Workers’ Compensation: Evidence: Appeal and Error. In testing the suffi-
ciency 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 reason-
ably deducible from the evidence.
4. Workers’ Compensation: Health Care Providers. Generally, pursuant to Neb.
Rev. Stat. § 48–120 (Cum. Supp. 2012), an employee may be reimbursed for
nursing care in the employee’s home or at a nursing home, when such care
is necessitated by a work-related injury, so long as the cost of the care is fair
and reasonable.
5. ____: ____. There are three basic requirements that must be met before com-
pensation may be rendered for care to an injured employee by the spouse in the
home: (1) The employer must have knowledge of the employee’s disability and
need of assistance as a result of a work-related accident; (2) the care given by the
spouse must be extraordinary and beyond normal household duties; and (3) there
must be a means of determining the reasonable value of the services rendered by
the spouse.
6. ____: ____. A person rendering necessary medical services to a disabled worker
on an “as-needed” basis need not render the services during each moment of
compensated time, but, rather, must be available to perform the needed services
during the times when needed.
7. ____: ____. For compensability of in-home care, the focus is on the nature of the
service provided, not the status or devotion of the provider of the service.
8. Workers’ Compensation: Attorney Fees. Attorney fees in workers’ compensa-
tion cases are allowable only pursuant to statutory authorization.
9. ____: ____. The determination of an award of attorney fees pursuant to Neb. Rev.
Stat. § 48-125 (Cum. Supp. 2012) must be calculated on a case-by-case basis.
Nebraska Advance Sheets
SIMMONS v. PRECAST HAULERS 481
Cite as 288 Neb. 480Appeal from the Workers’ Compensation Court: Laureen K.
Van Norman, Judge. Affirmed.
Gregory D. Worth, of McAnany, Van Cleave & Phillips,
P.A., for appellants.
Travis Allan Spier, of Atwood, Holsten, Brown, Deaver &
Spier Law Firm, P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
McCormack, J.
NATURE OF CASE
Michael Simmons, while employed by Precast Haulers, Inc.,
sustained extensive injuries when he was run over by a fully
loaded tractor-trailer. Precast Haulers concedes that the injuries
and the related medical bills are compensable, but on appeal,
Precast Haulers challenges the trial court’s order requiring it
to provide a wheelchair-accessible van; to pay for the in-home
care provided by Michael’s wife, Courtney Simmons; and to
pay for Michael’s attorney fees under Neb. Rev. Stat. § 48-125(Cum. Supp. 2012). Michael cross-appeals for additional attor-
ney fees.
BACKGROUND
The parties stipulated that Michael was employed by Precast
Haulers on October 14, 2011, when he sustained compensable
injuries to his whole body during the course of his employ-
ment. At the time of the accident, Michael was attempting to
activate a hydraulic lever on a tractor-trailer when he slipped
and fell to the ground. The tires of the fully loaded tractor-
trailer ran over Michael’s body, crushing him.
Michael suffered extensive crush injuries from the accident.
His injuries included the following: complex pelvic fractures;
bowel and bladder dysfunction; lumbar spine fracture; SI joint
crush injury; retroperitoneal hemorrhage; urethral injury; frac-
tures to his hands, arms, feet, ankles, and legs; Chopart’s
amputation of his right foot; left upper arm degloving injury;
skin grafting; ileus; traumatic neuropathy; buttocks pressure
Nebraska Advance Sheets
482 288 NEBRASKA REPORTS
wounds; scrotal injury; rectal injury; abdominal wall wounds;
splenic injury; bladder rupture; depression; anxiety; adjust-
ment disorder; posttraumatic stress disorder; and cognitive
defects. Michael’s right foot was amputated. Michael’s left foot
required multiple grafting surgeries.
Due to his injuries, Michael was hospitalized from October
14 to December 23, 2011. Complications from his injuries
required him to be in and out of inpatient care for several more
months after December 23.
When Michael did return home, he required 24-hour in-
home nursing to allow him to continue his outpatient recovery
and rehabilitation. The uncontested evidence at trial establishes
that Michael cannot care for himself without assistance. He
needs assistance with everything from preparing food to bath-
ing. Michael requires assistance to change his catheter and
colostomy bags. Michael’s wounds require bandages to be
changed and for the wounds to be packed.
Additionally, Michael has limited mobility and needs assist­
ance moving. When he first returned home, Michael was
unable to stand and required assistance to get into and out of
his recliner. Due to repeated surgeries, Michael has had to learn
how to walk three different times. At the time of trial, Michael
could walk with his walker only 30 to 50 yards before needing
a break. Michael primarily uses a heavy manual wheelchair
for mobility. The heavy wheelchair was on loan from the
University of Kansas Hospital. Precast Haulers’ insurance com-
pany did not provide Michael with a manual wheelchair until a
week before the trial, which was held on May 30, 2013.
The wheelchairs Michael was provided with are heavy and
cannot roll on carpet very well. Michael cannot push himself
through his yard and cannot move on his gravel driveway. He
cannot put the wheelchair in a vehicle himself, and it is diffi-
cult for Courtney to do so. Michael testified that he can drive
a car and that he still has his license. However, when he drives
by himself, he has to leave his nonmotorized wheelchair in
the driveway.
Michael’s doctors recommended that he receive custom
wheelchairs and a wheelchair accessible van. In February
2012, Michael was issued a “Physician’s Order” to receive a
Nebraska Advance Sheets
SIMMONS v. PRECAST HAULERS 483
Cite as 288 Neb. 480custom powered wheelchair, a custom manual wheelchair, and
a wheelchair accessible van. Numerous other similar orders
were subsequently made. In an affidavit, one of Michael’s
treating physicians concurred with his associate physicians that
Michael required a custom manual wheelchair, a custom pow-
ered wheelchair, a powered scooter, and a wheelchair acces-
sible van to assist in his outpatient recovery and rehabilitation
from his work-related injuries.
Michael’s 24-hour in-home care was originally provided by
hired professionals. However, after 11⁄2 months of 24-hour care,
Michael could not tolerate having a night nurse. Michael’s
wife, Courtney, took over Michael’s care from 7 p.m. to 7
a.m. Monday through Friday and for 24 hours per day on the
weekends. During the week, Courtney works a full-time job
outside the home. Therefore, from 7 a.m. to 7 p.m., Monday
through Friday, Robin Chynoweth, a certified nursing assistant,
provides Michael’s care.
Courtney has replaced all but one of the certified nurs-
ing assistants. With the help of her son, Courtney provides
care for Michael 108 hours per week. She testified that for
a 6-month period, she moved an air mattress into the living
room, where Michael slept, to care for him overnight. She
provides all of the care of a nursing professional. In addition
to the services provided by Chynoweth, Courtney changes
Michael’s fentanyl bandages and can give Michael his medi-
cation. Chynoweth’s certification does not allow her to per-
form those functions.
At trial, Courtney testified that on the weekdays, she spends
at least 3 hours per day directly assisting Michael and spends
8 to 12 hours per day on the weekend. Courtney stated that
if she did not provide the care, 24-hour nursing care would
be required, and that the nurses hired would need to be more
qualified than Chynoweth. Courtney feared that if not for her
care, Michael would need to be in a nursing home. Michael’s
treating physicians agreed with Courtney and averred in their
affidavits that if Courtney was not available to provide assist­
ance to Michael, additional in-home nursing services would
have been required to allow Michael to continue his outpatient
recovery and rehabilitation.
Nebraska Advance Sheets
484 288 NEBRASKA REPORTS
The trial court also received evidence concerning the pay-
ment of Michael’s medical bills. Exhibit 5 in the record con-
tains affidavits from representatives from the various medical
care providers that took care of Michael after his accident. Each
affidavit states the total bill, the amount of unpaid charges, and
whether Cherokee Insurance Company made timely payments
within 30 days. By way of example, the exhibit contains an
affidavit from Bryan Medical Center. Michael received care at
Bryan Medical Center from October 14 to November 22, 2011,
incurring charges of $729,109.16. A representative from Bryan
Medical Center requested payments from Cherokee Insurance
Company on December 13, 2011, and again on March 21, April
6 and 9, May 7, July 24 and 26, August 7 and 29, and October
9, 2012. By October 9, no payments had yet been received. And
as of May 7, 2013, when the affidavit was signed, $110,279.89
was still outstanding.
Exhibit 6, which was compiled by Michael’s attorneys, is a
demonstrative exhibit detailing the charges incurred, paid, and
outstanding prior to and after the filing of the petition in this
case. The medical bills at the time of trial totaled $2,161,555.30,
of which $426,195.89 was still outstanding. Prior to the fil-
ing of the petition, Michael had incurred $1,498,065.68 in
medical bills and the Cherokee Insurance Company had paid
only $25,021.72.
Michael’s counsel offered exhibit 7, a billing statement
for services provided by Michael’s counsel in this case. The
affidavit states that reasonable rates of $150 per hour were
charged by the attorneys and $75 per hour for the paralegals.
The services and expenses listed by Michael’s counsel totaled
$36,555.
Prior to trial, Precast Haulers stipulated that Michael has
been temporarily totally disabled and will remain temporar-
ily totally disabled as the result of his work-related injuries
indefinitely into the future. Precast Haulers also stipulated that
Michael is entitled to an award of future medical care to treat
his work-related injuries.
The issues remaining for determination by the trial court
were Michael’s entitlement to attorney fees for late payment
of medical expenses, Michael’s entitlement to certain assistive
Nebraska Advance Sheets
SIMMONS v. PRECAST HAULERS 485
Cite as 288 Neb. 480devices, and whether Courtney was owed for home health
care services provided. After receiving evidence and hearing
testimony, the trial court held that (1) Precast Haulers was to
provide and pay for a custom lightweight wheelchair, a cus-
tom powered wheelchair, and a wheelchair accessible van; (2)
Precast Haulers was to reimburse Michael for home health
care services provided by Courtney, in the amount of $1,080
per week, which is 108 hours multiplied by $10 per hour, and
reimburse Michael for services rendered from the time he was
released from the hospital to the date of trial in the total sum
of $69,428.57; and (3) Precast Haulers was to pay Michael’s
attorney fees in the amount of $36,555.
ASSIGNMENTS OF ERROR
Precast Haulers assigns that the trial court erred in find-
ing that (1) Michael was entitled to attorney fees pursuant to
§ 48-125 in the amount of $36,555, (2) Courtney was entitled
to compensation for the provision of home health care, and (3)
Michael was entitled to a wheelchair accessible van.
On cross-appeal, Michael assigns that the trial court erred
as a matter of law by limiting the amount of § 48-125 attorney
fees awarded to the time expended by his attorneys.
STANDARD OF REVIEW
[1,2] 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.1 In
determining whether to affirm, modify, reverse, or set aside a
judgment of the Workers’ Compensation Court, the findings of
fact of the trial judge will not be disturbed on appeal unless
clearly wrong.2
1
Kim v. Gen-X Clothing, 287 Neb. 927, 845 N.W.2d 265 (2014).
2
Id.Nebraska Advance Sheets
486 288 NEBRASKA REPORTS
[3] In testing the sufficiency of the evidence to support the
findings of fact in a workers’ compensation case, every con-
troverted fact must be resolved in favor of the successful party
and the successful party will have the benefit of every infer-
ence that is reasonably deducible from the evidence.3
ANALYSIS
Wheelchair Accessible Van
Precast Haulers argues that the evidence does not support
an award of a wheelchair accessible van. We disagree. We find
the evidence provided in the record is sufficient competent evi-
dence to support the trial court’s award.
Neb. Rev. Stat. § 48-120(1)(a) (Cum. Supp. 2012) of
Nebraska’s workers’ compensation statutes, states in part:
The employer is liable for all reasonable medical, surgi-
cal, and hospital services, including plastic surgery or
reconstructive surgery but not cosmetic surgery when
the injury has caused disfigurement, appliances, supplies,
prosthetic devices, and medicines as and when needed,
which are required by the nature of the injury and which
will relieve pain or promote and hasten the employee’s
restoration to health and employment.
The issue of whether a wheelchair accessible van is an
“appliance” under this state’s workers’ compensation statute
is one of first impression. Although the statutes under which
they were operating are not identical to Nebraska’s, other
courts have found that a wheelchair accessible van qualifies
as an “appliance,”4 a “‘mechanical appliance,’”5 an “‘artificial
replacement,’”6 and an “orthopedic appliance.”7 Other courts,
such as the Michigan Supreme Court, have found that the van
itself, as a vehicle, is not an “appliance,” but that the term
3
Id.4
Manpower Temporary Services v. Sioson, 529 N.W.2d 259, 264 (Iowa
1995).
5
Crouch v. W. Va. Workers’ Comp. Com’r, 184 W. Va. 730, 733, 403 S.E.2d
747, 750 (1991).
6
Meyer v. N.D. Workers Comp. Bureau, 512 N.W.2d 680, 684 (N.D. 1994).
7
Griffiths v. W.C.A.B., 596 Pa. 317, 321, 943 A.2d 242, 244 (2008).
Nebraska Advance Sheets
SIMMONS v. PRECAST HAULERS 487
Cite as 288 Neb. 480encompasses the necessary modifications to the van to make it
operable by the worker.8
When interpreting provisions of the Nebraska Workers’
Compensation Act, our court has consistently given the act a
liberal construction to carry out justly its beneficent purpose to
provide an injured worker with prompt relief from the adverse
economic effects caused by a work-related injury or occupa-
tional disease.9 Therefore, although we have not previously
explicitly defined “appliance,” we have broadly interpreted the
term. In Miller v. E.M.C. Ins. Cos.,10 we held that home modi-
fications for a man bound to a wheelchair could be medical
expenses under the appliances or supplies categories. We stated
that the modifications are compensable if they are “‘required
by the nature of the injury’” and if the modifications “‘relieve
pain or promote and hasten the employee’s restoration to health
and employment.’”11
Precast Haulers argues that a wheelchair accessible van
is not a “medical service” which will relieve Michael’s pain
or hasten his restoration to health and employment. Precast
Haulers also argues that Michael does not want a wheelchair
accessible van and that Michael would not be able to drive
it. Precast Haulers also notes other transportation services are
available to Michael.
We reject each of Precast Haulers’ arguments. The uncon-
tested evidence in the record indicates that a wheelchair
accessible van will hasten Michael’s restoration to health and
employment. One of Michael’s treating physicians averred that
Michael required a wheelchair accessible van to assist in his
outpatient recovery and rehabilitation from his work-related
injuries. There is no evidence in the record that a wheelchair
accessible van would not help in his restoration to health.
Precast Haulers’ other arguments are weak at best. The
overwhelming testimony given by Michael indicates that he
8
Weakland v. Toledo Engineering Co., Inc., 467 Mich. 344, 656 N.W.2d 175(2003).
9
Zwiener v. Becton Dickinson-East, 285 Neb. 735, 829 N.W.2d 113 (2013).
10
Miller v. E.M.C. Ins. Cos., 259 Neb. 433, 610 N.W.2d 398 (2000).
11
Id. at 451, 610 N.W.2d at 412 (quoting § 48-120).
Nebraska Advance Sheets
488 288 NEBRASKA REPORTS
wants to gain independence by having a wheelchair acces-
sible van. Although Precast Haulers asserts that Michael can-
not drive, Michael testified that he can drive and that he still
has his driver’s license. There is no evidence from Michael’s
doctors that Michael cannot or should not drive. Precast
Haulers’ argument also ignores that a wheelchair accessible
van is necessary to allow Michael and his family to transport
his new powered wheelchair, which was awarded by the trial
court. Without a wheelchair accessible van, it is logical to
assume that it may be difficult, if not impossible, for Michael
and Courtney to transport his new powered wheelchair. And
finally, although Michael has been provided with a transporta-
tion service to his medical appointments, it does not provide
transportation for his personal needs.
In conclusion, the record provides sufficient competent evi-
dence to establish that a wheelchair accessible van is an “appli-
ance” that will help restore Michael’s health. We, therefore,
cannot say that the trial court was clearly wrong in determin-
ing that Precast Haulers should pay for a wheelchair acces-
sible van.
On-Call Compensation
for Spouse
Precast Haulers argues that the evidence is not sufficient
to support Courtney’s receiving compensation for the provi-
sion of home health care for 48 hours of care on the weekends
and 12 hours of care each weekday. In support of this argu-
ment, Precast Haulers argues that many of the hours spent by
Courtney “on-call” were spent sleeping, completing ordinary
household duties, and caring for herself, which hours should be
considered noncompensable.
[4,5] Generally, pursuant to § 48-120, an employee may
be reimbursed for nursing care in the employee’s home or at
a nursing home, when such care is necessitated by a work-
related injury, so long as the cost of the care is fair and rea-
sonable.12 We have repeatedly stated that it is not essential
12
Bituminous Casualty Corp. v. Deyle, 234 Neb. 537, 451 N.W.2d 910(1990).
Nebraska Advance Sheets
SIMMONS v. PRECAST HAULERS 489
Cite as 288 Neb. 480that the service be furnished by a doctor, nurse, or other
medical person.13 With this understanding, we have allowed
payments to spouses14 and unrelated persons15 who provide
the care. There are three basic requirements that must be met
before compensation may be rendered for care to an injured
employee by the spouse in the home: (1) The employer
must have knowledge of the employee’s disability and need
of assistance as a result of a work-related accident; (2) the
care given by the spouse must be extraordinary and beyond
normal household duties; and (3) there must be a means of
determining the reasonable value of the services rendered by
the spouse.16
[6] Ordinary housekeeping tasks, which generally include
cleaning, preparation of meals, and washing and mending
clothes, are noncompensable.17 Compensable tasks include
serving meals in bed, bathing and dressing, administering
medication, and assisting with sanitary functions.18 However,
we have held that a person rendering necessary medical serv­
ices to a disabled worker on an “as-needed” basis need not
render the services during each moment of compensated time,
but, rather, must be available to perform the needed services
during the times when needed.19 We stated, quoting the Rhode
Island Supreme Court case of Bello v. Zavota Bros. Transp.
Co., Inc.,20 as follows:
“The fact that [a person] may not have been actively
performing a strictly medical task at each and every
13
See, Currier v. Roman L. Hruska U.S. Meat Animal Res. Ctr., 228 Neb. 38,
421 N.W.2d 25 (1988); S & S LP Gas Co. v. Ramsey, 201 Neb. 751, 272
N.W.2d 47 (1978).
14
Spiker v. John Day Co., 201 Neb. 503, 270 N.W.2d 300 (1978) (superseded
by statute on other grounds as stated in Koterzina v. Copple Chevrolet, 1
Neb. App. 1000, 510 N.W.2d 467 (1993)).
15
S & S LP Gas Co. v. Ramsey, supra note 13.
16
Currier v. Roman L. Hruska U.S. Meat Animal Res. Ctr., supra note 13.
17
Id.
18
Id.
19
Id.
20
Bello v. Zavota Bros. Transp. Co., Inc., 504 A.2d 1015 (R.I. 1986).
Nebraska Advance Sheets
490 288 NEBRASKA REPORTS
moment of the day does not mean that she should not be
compensated for her continuous attendance. This case is
analogous to the situation in which a night nurse watches
over a sleeping patient. The fact that the patient sleeps
through the night does not support an argument that the
nurse should not be paid for the night. He or she must
be present and available to meet the patient’s needs, not
according to some preestablished timetable, but as the
patient experiences them.”21
The fact that an attendant service provider may perform house-
hold tasks during “on-call” time does not alter either the need
for or the nature of the services provided.22
[7] Precast Haulers attempts to distinguish this precedent
by arguing that because Courtney is Michael’s spouse, she
should not be compensated for her “on-call” time. We find
no relevant distinction between a spouse and a nonrelated
third party, so long as the evidence supports compensability
under the three-part test set out in Currier v. Roman L. Hruska
U.S. Meat Animal Res. Ctr.23 For compensability of in-home
care, our focus is on the “‘nature of the service provided, not
the status or devotion of the provider of the service.’”24 A
paid third-party nurse might read, nap, or perform household
tasks and would nevertheless be compensated for that time.25
Therefore, if the spouse is providing the same service while
“on-call,” the fact that the spouse is able to sleep or perform
household tasks during that time is likewise irrelevant.26 “This
21
Currier v. Roman L. Hruska U.S. Meat Animal Res. Ctr., supra note 13,
228 Neb. at 46, 421 N.W.2d at 30.
22
Id. (citing Standard Blasting & Coating v. Hayman, 476 So. 2d 1385 (Fla.
App. 1985)).
23
Currier v. Roman L. Hruska U.S. Meat Animal Res. Ctr., supra note 13.
24
Spiker v. John Day Co., supra note 14, 201 Neb. at 522, 270 N.W.2d at
310 (Brodkey, J., concurring; Boslaugh, McCown, and White, C. Thomas,
JJ., join).
25
Currier v. Roman L. Hruska U.S. Meat Animal Res. Ctr., supra note 13
(citing Brown v Eller Advertising Co, 111 Mich. App. 538, 314 N.W.2d
685 (1981)).
26
Id.Nebraska Advance Sheets
SIMMONS v. PRECAST HAULERS 491
Cite as 288 Neb. 480is so because, if the employer provided the services of an out-
side professional, that professional would be entitled to pursue
his or her own interests during such ‘on call’ periods without
diminution of compensation.”27 Compensation for a claimant’s
spouse for “on-call” nursing hours is allowed if supported by
the evidence.28
Here, the evidence clearly supports all three of our require-
ments for spousal compensation. Precast Haulers does not
contest that it had knowledge of Michael’s disability and need
of assistance as a result of a work-related accident or that
there was a means of determining the reasonable value of the
services rendered by Courtney. Rather, Precast Haulers argues
that the evidence supports compensation of only 50 hours
per week for services provided by Courtney, not 108 hours.
We disagree.
This is a sufficiency of the evidence issue; therefore, 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.29
We begin by repeating that Precast Haulers does not contest
that Michael needs 24 hours of care per day. In fact, Michael
received 24 hours of care per day from paid third-party pro-
viders for 11⁄2 months after he returned home from the hos-
pital. The testimony of Michael, Courtney, and Chynoweth
all support that Courtney has completely replaced the care
of the night and weekend nurses. Indeed, Courtney has gone
beyond the medical services the nurses originally provided.
Courtney helps Michael move, bathes him, feeds him, tends
to his open wounds, provides him with medication, and is
available should he need emergency care. Michael’s treating
physicians have ordered 24-hour care for Michael and have
averred that if Courtney were not available to provide assist­
ance to Michael, additional in-home nursing services would
27
Edward Kraemer & Sons, Inc. v. Downey, 852 P.2d 1286, 1289 (Colo.
App. 1992).
28
Close v. Superior Excavating Co., 166 Vt. 318, 693 A.2d 729 (1997);
Edward Kraemer & Sons, Inc. v. Downey, supra note 27.
29
Kim v. Gen-X Clothing, supra note 1.
Nebraska Advance Sheets
492 288 NEBRASKA REPORTS
be required to allow Michael to continue his outpatient recov-
ery and rehabilitation. No evidence in the record indicates to
the contrary.
When viewing this evidence in the light most favorable to
Michael, it is apparent that the sum of $1,080 per week, with
back compensation for a total of 642⁄ 7 weeks for the services
provided by Courtney, was reasonable and supported by suf-
ficient competent evidence.
Attorney Fees
Finally, both parties argue that the trial court erred in the
amount of attorney fees it awarded. Precast Haulers argues that
the award of the entire amount of attorney fees requested was
unreasonable and excessive. On cross-appeal, Michael argues
that the amount of § 48-125 attorney fees awarded should
not be limited to the hours worked by the attorneys, because
Precast Haulers would be rewarded by delaying payment. We
hold that the trial court did not err in awarding the full amount
of attorney fees and no more.
[8] Attorney fees in workers’ compensation cases are
allowable only pursuant to statutory authorization.30 Section
48-125(2)(a) states in part:
Whenever the employer refuses payment of compensation
or medical payments subject to section 48-120, or when
the employer neglects to pay compensation for thirty days
after injury or neglects to pay medical payments subject
to such section after thirty days’ notice has been given
of the obligation for medical payments, and proceedings
are held before the compensation court, a reasonable
attorney’s fee shall be allowed the employee by the com-
pensation court in all cases when the employee receives
an award.
The purpose of the provision for attorney fees in § 48-125
is to encourage prompt payment by making delay costly
if an employer neglects to pay medical payments after
30 days’ notice has been given of the obligation for the
30
Elwood v. Panhandle Concrete Co., 236 Neb. 751, 463 N.W.2d 622(1990).
Nebraska Advance Sheets
SIMMONS v. PRECAST HAULERS 493
Cite as 288 Neb. 480medical payments.31 Nonpayment of medical bills can have an
extremely deleterious result for an injured worker.32 Necessary
medical care may be delayed for months pending litigation,
which in itself may cause more severe permanent injury.33
[9] The determination of an award of attorney fees pursu-
ant to § 48-125 must be calculated on a case-by-case basis.34
In making that calculation, the trial court should consider, as
in other attorney fee contexts, the value of legal services ren-
dered by an attorney by considering the amount involved, the
nature of the litigation, the time and labor required, the nov-
elty 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 char-
acter and standing of the attorney, and the customary charges
of the bar for similar services.35 Particular attention should be
given to the amount of legal work performed in relation to
the amount of the unpaid medical bill and the amount of the
unpaid medical bill in relation to the workers’ compensation
award received.36
Precast Haulers argues that the award for attorney fees was
unreasonable for three reasons: (1) Michael’s counsels’ work
involved minimal legal skill, (2) Precast Haulers has been
late in paying a small amount of the bills, and (3) attorney
fees awarded should be only for fees directly attributed to the
collection of unpaid bills. We find each argument to be with-
out merit.
The trial court specifically found:
This case involved extremely complex documentation,
and while not all of the issues were litigated at trial,
a very thorough set of exhibits was prepared and a
31
Harmon v. Irby Constr. Co., 258 Neb. 420, 604 N.W.2d 813 (1999)
(Gerrard, J., concurring; McCormack, J., joins).
32
Id.33
Id.34
Harmon v. Irby Constr. Co., supra note 31.
35
Id.
36
Id.
Nebraska Advance Sheets
494 288 NEBRASKA REPORTS
competent brief was presented. Counsel has gone to great
lengths to ensure that all of the medical documentation
was comprehensible to the Court.
We give deference to the findings of the trial court. Considerable
time was put into compiling the medical records, and a trial
was held. Precast Haulers does not contest the number of hours
worked by Michael’s counsel. We find Precast Haulers’ conten-
tion that opposing counsel did little to no skilled work to be
wholly without merit.
Additionally, Precast Haulers’ argument that very few bills
were paid late is not supported by the record. At the time
the petition was filed, the trial court found that Michael had
incurred $1,498,065.68 in compensable medical expenses, but
only approximately $25,000 had been paid. The record indi-
cates that demands for payment had been made by certain
medical providers over a month prior to the filing of the peti-
tion. Bryan Medical Center had requested payment a total of
11 times, and the first payment from Precast Haulers was not
received until a year after the first request. After our review of
the record, we cannot find error in the trial court’s factual find-
ing that payment was unjustifiably delayed on the majority of
Michael’s medical bills.
And finally, Precast Haulers argues that under Harmon v.
Irby Constr. Co.,37 the attorney fees should be limited to the
fees directly attributable to the collection of unpaid medical
bills. In Harmon, $3,904 in attorney fees was awarded for the
late payment of a $165 medical bill.38 We found the attorney
fees to be unreasonable, because only a fraction of the fees
could be directly attributed to the collection of the unpaid
medical bill. In fact, as noted by the concurring opinion, it was
clear from the record that the collection of this medical bill was
incidental to the filing of the plaintiff’s claim for permanent
total disability benefits.39 Our opinion in Harmon does not, as
Precast Haulers contends, affirmatively state that only attorney
37
Id.
38
Id.
39
Id. (Gerrard, J., concurring; McCormack, J., joins).
Nebraska Advance Sheets
SIMMONS v. PRECAST HAULERS 495
Cite as 288 Neb. 480fees directly related to the collection of unpaid medical bills
can be awarded. Rather, we simply found that the attorney fees
in that case were unreasonable. As explained in the concurring
opinion, it is appropriate to assess the “entire attorney fee in
those cases where one of the underlying reasons for the filing
of the workers’ compensation claim is to establish compensa-
bility for a delinquent medical bill.”40 We find this statement is
consistent with the statute. Section 48-120 does not limit rea-
sonable attorney fees to those directly attributable to the col-
lection of an unpaid medical bill. Rather, as already discussed,
what constitutes reasonable attorney fees is determined on a
case-by-case basis.41
In this case, we find that the trial court did not err in award-
ing the full amount of attorney fees. The primary reason that
Michael filed this petition was Precast Haulers’ and its insur-
er’s failure to promptly pay for his medical expenses and bills.
There was no controversy regarding the compensability of
Michael’s injuries. As discussed in the trial court’s order and in
this opinion, had Precast Haulers and its insurer paid Michael’s
bills and medical expenses, Michael would likely not have
incurred such a hefty bill for attorney fees.
Michael’s cross-appeal wants to take it one step further.
Michael argues that reasonable attorney fees under our prec-
edent can be, as a matter of law, greater than the actual attor-
ney fees and expenses billed. Michael’s argument is that due to
the large amount of unpaid medical bills, the interest Precast
Haulers’ insurer made from late payment is greater than the
award of attorney fees, and that thus, there is little deterrent in
the trial court’s award.
Regardless of whether a trial court could, as a matter of
law, find reasonable attorney fees to be greater than the hours
billed and expenses, the trial court did not do so in this case.
We find that the trial court did not clearly err in awarding only
the hours billed and expenses, $36,555. There is no indication
in the trial court’s order that the judge felt that she was limited,
40
Id. at 431, 604 N.W.2d at 821.
41
Harmon v. Irby Constr. Co., supra note 31.
Nebraska Advance Sheets
496 288 NEBRASKA REPORTS
as a matter of law, in the amount she could award attorney
fees. Rather, the record shows that she awarded the entire
amount requested by Michael. Exhibit 7 is the attorney fees
and expenses given to the court, which total $36,555. Nowhere
in the record does it appear that the trial court was asked to
award more than that amount. An issue not presented to or
passed on by the trial court is not appropriate for consideration
on appeal.42 With no indication in the record that this issue was
presented, we cannot say as a matter of law that the trial court
erred in not awarding attorney fees greater than the amount
billed. It is incumbent upon the party appealing to present a
record that supports the errors assigned.43
Again, we stress that the determination of an award of attor-
ney fees pursuant to § 48-125 must be calculated on a case-by-
case basis.44 The determination of the amount of attorney fees
is necessarily a question of fact that requires a factual determi-
nation on several factors.45 We, therefore, give great deference
to the trial court’s findings of fact and find that the trial court
did not clearly err in awarding only the full amount of attorney
fees requested by Michael.
CONCLUSION
For the reasons stated herein, we affirm the decision of the
trial court.
Affirmed.
42
In re Interest of Kodi L., 287 Neb. 35, 840 N.W.2d 538 (2013).
43
See, e.g., Sindelar v. Hanel Oil, Inc., 254 Neb. 975, 581 N.W.2d 405(1998).
44
See Harmon v. Irby Constr. Co., supra note 31.
45
Id.