Interiano-Lopez v. Tyson Fresh Meats , 294 Neb. 586 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/26/2016 02:10 PM CDT
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
INTERIANO-LOPEZ v. TYSON FRESH MEATS
Cite as 294 Neb. 586
Wilmer Interiano -Lopez, appellant, v.
Tyson Fresh Meats, Inc., self-insured
employer, appellee.
___ N.W.2d ___
Filed August 26, 2016. No. S-15-722.
1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
Stat. § 48–185 (Cum. Supp. 2014), an appellate court may modify,
reverse, or set aside a Workers’ Compensation Court decision only when
(1) the compensation court acted without or in excess of its powers; (2)
the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the
order, judgment, or award; or (4) the findings of fact by the compensa-
tion court do not support the order or award.
2. ____: ____. Determinations by a trial judge of the Workers’
Compensation Court will not be disturbed on appeal unless they are
contrary to law or depend on findings of fact which are clearly wrong in
light of the evidence.
3. Workers’ Compensation: Statutes: Appeal and Error. The meaning
of a statute is a question of law, and an appellate court is obligated in
workers’ compensation cases to make its own determinations as to ques-
tions of law.
4. Statutes: Appeal and Error. Appellate courts give statutory language
its plain and ordinary meaning and will not resort to interpretation
to ascertain the meaning of statutory words which are plain, direct,
and unambiguous.
5. Workers’ Compensation: Jurisdiction: Statutes. The Workers’
Compensation Court, as a statutorily created court, has only such author-
ity as has been conferred upon it by statute, and its power cannot extend
beyond that expressed in statute.
6. Workers’ Compensation: Dismissal and Nonsuit. The right of a
plaintiff to dismiss his or her workers’ compensation action under Neb.
Rev. Stat. § 48-177 (Cum. Supp. 2014) is not a matter of judicial grace
or discretion.
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INTERIANO-LOPEZ v. TYSON FRESH MEATS
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7. ____: ____. Neb. Rev. Stat. § 48-177 (Cum. Supp. 2014) gives a work-
ers’ compensation plaintiff the explicit right to dismiss the cause without
prejudice so long as the plaintiff is represented by counsel and requests
dismissal before the final submission of the case to the court.
8. Workers’ Compensation: Rules of Evidence. The Nebraska Workers’
Compensation Court is not bound by the usual common-law or statutory
rules of evidence or by any technical or formal rules of procedure.
9. Workers’ Compensation: Legislature: Intent: Employer and
Employee. The Nebraska Workers’ Compensation Act was intended by
the Legislature to simplify legal proceedings between injured employees
and their employers.
10. Workers’ Compensation: Legislature: Courts. Changes in the work-
ers’ compensation laws, and in the public policies recognized in those
laws, must emanate from the lawmaking powers of the Legislature and
not from the courts.
11. Pleadings: Dismissal and Nonsuit. An answer which merely alleges
defenses to a petition and prays for the inverse of the relief sought by
the petition does not survive after the petition is dismissed.
12. Statutes. It is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it within the
province of a court to read anything plain, direct, or unambiguous out of
a statute.
13. Statutes: Legislature: Intent. In reading a statute, a court must deter-
mine and give effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
14. ____: ____: ____. Components of a series or collection of statutes
pertaining to a certain subject matter are in pari materia and should
be conjunctively considered and construed to determine the intent of
the Legislature, so that different provisions are consistent, harmonious,
and sensible.
15. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a
judicial tribunal by either acquiescence or consent, nor may subject mat-
ter jurisdiction be created by waiver, estoppel, consent, or conduct of
the parties.
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Vacated and remanded with directions.
Laura L. Pattermann, T.J. Pattermann, and Harry A. Hoch
III, of Gallner & Pattermann, P.C., for appellant.
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INTERIANO-LOPEZ v. TYSON FRESH MEATS
Cite as 294 Neb. 586
Joshua J. Schauer, of Perry, Guthery, Haase & Gessford,
P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
Stacy, J.
NATURE OF CASE
This is an appeal from a decision of the Nebraska Workers’
Compensation Court. Appellant, Wilmer Interiano-Lopez, filed
a petition seeking benefits, and appellee, Tyson Fresh Meats,
Inc. (Tyson), filed an answer which included a purported
counterclaim. Shortly thereafter, Interiano-Lopez moved to
dismiss the action. The compensation court dismissed the
petition but proceeded to trial on Tyson’s counterclaim and
found Interiano-Lopez had failed to prove a workplace injury.
Interiano-Lopez appeals. Because we conclude the compensa-
tion court acted without authority and in excess of its powers
by proceeding to trial rather than dismissing the cause, we
vacate the judgment of the court and remand the cause with
directions to dismiss.
FACTUAL BACKGROUND
In 2013, Interiano-Lopez was living in Sioux City, Iowa,
and working for Tyson at a meatpacking plant in Dakota City,
Nebraska. One of his jobs involved cutting the stomach or
“paunch” of cows to allow the contents to fall out as they were
processed on the “dump paunch line.”
On October 7, 2013, Interiano-Lopez was working with a
trainee. According to Interiano-Lopez, the trainee was hanging
meat incorrectly and it was falling off the hooks as it passed
down the dump paunch line. Interiano-Lopez had to lift and
place the meat back on the hooks to complete his work, and his
hands and arms became increasingly fatigued. At one point, a
paunch fell from the hook and hit Interiano-Lopez on the right
shoulder. He felt a pop in his shoulder and began experiencing
severe pain and loss of strength in his arm. Interiano-Lopez
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INTERIANO-LOPEZ v. TYSON FRESH MEATS
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was taken to the plant infirmary and thereafter to a hospital
emergency room. He was diagnosed with a shoulder separation
and was referred for orthopedic evaluation and treatment.
In March 2014, Interiano-Lopez, through counsel, filed a
petition in the Nebraska Workers’ Compensation Court seek-
ing a determination of the rights and liabilities of the parties
regarding the accident of October 7, 2013. Interiano-Lopez
sought to be declared permanently and totally disabled or,
in the alternative, to be awarded temporary total disability
benefits, ongoing medical benefits, and vocational rehabilita-
tion training.
In April 2014, Tyson filed an answer which included what it
characterizes as a counterclaim. Tyson’s answer denied liabil-
ity, alleged Interiano-Lopez’ physical problems were caused
by a preexisting condition, and alleged Interiano-Lopez had
“received some workers’ compensation benefits for which
[Tyson] is entitled to a credit.” In its counterclaim, Tyson
reiterated allegations set forth in the answer and included a
request that “the Court determine [Tyson’s] liabilities, if any,
and rights with respect to the alleged October 7, 2013 accident
at issue in this matter.”
Two weeks after Tyson filed its answer, the attorney for
Interiano-Lopez filed a motion to dismiss the action without
prejudice. The court subsequently entered an order of dismissal
which provided “[Interiano-Lopez’] Petition is dismissed
without prejudice.” After the dismissal was entered, Interiano-
Lopez filed a claim with the Iowa Workers’ Compensation
Commissioner regarding the October 7, 2013, injury. The
record indicates both parties considered Iowa’s workers’ com-
pensation law regarding shoulder injuries to be more favor-
able to Interiano-Lopez than Nebraska’s law.
Despite the dismissal, Tyson proceeded with discovery on
its counterclaim and, when Interiano-Lopez did not answer
the discovery, Tyson filed a motion to compel in the Nebraska
Workers’ Compensation Court. Interiano-Lopez opposed the
motion to compel, arguing the Nebraska action had been
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INTERIANO-LOPEZ v. TYSON FRESH MEATS
Cite as 294 Neb. 586
dismissed without prejudice and the discovery being sought
did not pertain to any issues being litigated in Nebraska.
The Nebraska Workers’ Compensation Court sustained Tyson’s
motion to compel and ordered Interiano-Lopez to respond to
the discovery, adding that the failure to comply would sub-
ject him to possible sanctions. Interiano-Lopez subsequently
answered Tyson’s discovery. Tyson was dissatisfied with the
responses and filed a second motion to compel, which the
court also sustained, again referencing the possibility of sanc-
tions for noncompliance.
In July 2014, the Nebraska Workers’ Compensation Court
issued notice that “a trial in the above cause” was set for
October 29, 2014. The court subsequently continued trial to
January 12, 2015, and ordered the parties to exchange witness
and exhibit lists and file pretrial statements.
In December 2014, Interiano-Lopez filed a motion seek-
ing to stay the Nebraska proceedings pending resolution of
the Iowa proceedings. Interiano-Lopez again argued that his
motion to dismiss without prejudice had been granted by the
court and also alleged:
The remaining proceedings in this action are for a claim
by [Tyson] for repayment of overpaid benefits. This can
only be determined once Iowa has determined if the
injury was work related and the appropriate benefits to
be paid to . . . Interiano-Lopez. The action here is for the
same accident and injury pending in Iowa and . . . justice
would dictate these proceedings be stayed without preju-
dice, pending resolution of the Iowa action.
Tyson resisted the motion to stay, alleging:
Tyson is entitled to a determination of [Interiano-Lopez’]
rights and liabilities pursuant to the Nebraska Workers’
Compensation Act [and Interiano-Lopez] should not be
allowed to claim prejudice or controversy by subse-
quently initiating proceedings in the state of Iowa in an
attempt to disgorge Tyson of its right to a determination
under the Nebraska Workers’ Compensation Act.
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INTERIANO-LOPEZ v. TYSON FRESH MEATS
Cite as 294 Neb. 586
The Nebraska court treated Interiano-Lopez’ motion
to stay as a motion to continue trial and granted it. Tyson
then filed a motion to reconsider, which the court denied,
explaining:
The Court granted [Interiano-Lopez’] motion because the
Court believed [Interiano-Lopez] presented sufficient rea-
son to continue the trial scheduled for January 12, 2015.
[Interiano-Lopez] seeks to try this matter in Iowa and is
concerned that a judgment rendered in Nebraska could
be used as a weapon to prevent a decision being ren-
dered in Iowa pursuant to Iowa Code § 85.72. It is clear
that there is concurrent jurisdiction between both Iowa
and Nebraska. Each state could render a decision on the
merits of the case but only Iowa has a statute that would
prevent a decision being rendered in Iowa if a decision is
first rendered in Nebraska. This Court could still render
a decision in this case if Iowa were to render a decision
first. That being the case, the Court sees no reason it
should not at least grant [Interiano-Lopez] an opportunity
to try this case first in Iowa. That opportunity will con-
tinue not in ad infinitum.
The Nebraska Workers’ Compensation Court then contin-
ued the matter and set trial for May 27, 2015.
In March 2015, Interiano-Lopez filed a second motion to
continue trial. He asserted his Iowa workers’ compensation
claim was scheduled to be tried approximately 2 months after
the Nebraska matter. The Nebraska court overruled the motion
to continue trial, reasoning that the matter already had been
continued twice already and that “[t]he progression of litiga-
tion here in Nebraska cannot be unduly dependent upon the
progression of the litigation in Iowa.”
Trial was held on May 27, 2015. At the start of trial,
Interiano-Lopez renewed his motion to dismiss, arguing that
pursuant to Neb. Rev. Stat. § 48-177 (Cum. Supp. 2014), noth-
ing survived the dismissal of the cause without prejudice. The
compensation court overruled the renewed motion to dismiss,
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INTERIANO-LOPEZ v. TYSON FRESH MEATS
Cite as 294 Neb. 586
and the matter proceeded to trial on Tyson’s counterclaim.
Both parties presented evidence, and the court took the matter
under advisement.
On July 15, 2015, the Nebraska Workers’ Compensation
Court entered a written “Order on [Tyson’s] Counterclaim.”
Before addressing the merits, the court made an express find-
ing that “[Tyson’s] counterclaim survived the dismissal of
[Interiano-Lopez’] petition.” The court reasoned:
[Tyson] has a right to file an action to adjudicate the
rights and liabilities of the parties under the Nebraska
Workers’ Compensation Act. See Neb. Rev. Stat. § 48-173.
Importantly, Neb. Rev. Stat. § 25-603 provides that “[i]n
any case where a setoff or counterclaim has been pre-
sented, the defendant shall have the right of proceeding
to the trial of his claim, although the plaintiff may have
dismissed the action or failed to appear.” Based upon the
clear language of § 25-603, [Interiano-Lopez’] motion to
dismiss is hereby overruled.
The court then proceeded to the merits of Tyson’s coun-
terclaim. It observed, “The central issue in this case is
whether [Interiano-Lopez] suffered an accident and result-
ing injury to his right shoulder in an accident on October 7,
2013 that arose out of and in the course of his employment
with [Tyson].” The court noted the “operative pleading” was
Tyson’s counterclaim “and not a petition for benefits filed by
[Interiano-Lopez],” but it nevertheless concluded “the burden
of proof lies with [Interiano-Lopez].” After summarizing the
evidence, the court concluded Interiano-Lopez had failed
to meet his burden of proving a work-related accident on
October 7, 2013, and concluded Tyson “owe[d] no benefits
under the Nebraska Workers’ Compensation Act.” Interiano-
Lopez timely appeals.
ASSIGNMENTS OF ERROR
Interiano-Lopez assigns, restated, that the Workers’
Compensation Court erred in (1) failing to dismiss the cause,
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INTERIANO-LOPEZ v. TYSON FRESH MEATS
Cite as 294 Neb. 586
including Tyson’s counterclaim, when Interiano-Lopez filed
a motion to dismiss without prejudice; (2) finding Interiano-
Lopez had the burden of proof in the trial on Tyson’s counter-
claim; and (3) finding Interiano-Lopez did not suffer a work-
place injury.
STANDARD OF REVIEW
[1] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2014),
an appellate court may modify, reverse, or set aside a Workers’
Compensation Court decision only when (1) the compensa-
tion 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
[2] Determinations by a trial judge of the Workers’
Compensation Court will not be disturbed on appeal unless
they are contrary to law or depend on findings of fact which
are clearly wrong in light of the evidence.2
ANALYSIS
[3] Interiano-Lopez’ first assignment of error concerns the
court’s ruling on his motion to dismiss without prejudice and
requires interpretation of the workers’ compensation statute
governing such dismissals.3 The meaning of a statute is a
question of law, and an appellate court is obligated in work-
ers’ compensation cases to make its own determinations as to
questions of law.4 Appellate courts give statutory language its
plain and ordinary meaning and will not resort to interpretation
1
Hynes v. Good Samaritan Hosp., 291 Neb. 757, 869 N.W.2d 78 (2015).
2
Id.
3
See § 48-177.
4
Knapp v. Village of Beaver City, 273 Neb. 156, 728 N.W.2d 96 (2007).
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to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.5
Section 48-177 governs when a workers’ compensation
plaintiff may dismiss a case without prejudice and provides in
relevant part:
(1) At the time a petition or motion is filed, one of the
judges of the Nebraska Workers’ Compensation Court
shall be assigned to hear the cause. . . .
(2) Any such cause may be dismissed without prejudice
to a future action (a) by the plaintiff, if represented by
legal counsel, before the final submission of the case to
the compensation court or (b) by the compensation court
upon a stipulation of the parties that a dispute between the
parties no longer exists.
The Legislature has amended § 48-177 several times over the
years, and we begin our analysis with an overview of the gov-
erning statute and our cases interpreting it.
In Grady v. Visiting Nurse Assn.,6 we considered language
in § 48-177 which had been in effect since 1949. At that
time, § 48-177 permitted a workers’ compensation plaintiff
to dismiss his or her case without prejudice only upon an
affirmative showing that no dispute existed between the par-
ties.7 The plaintiff in Grady argued that her right to dismiss
a workers’ compensation case should be governed by the
general civil statute which allows plaintiffs to dismiss an
action without prejudice any time before final submission of
the case.8 We rejected that suggestion, noting the Nebraska
5
Id.
6
Grady v. Visiting Nurse Assn., 246 Neb. 1013, 524 N.W.2d 559 (1994).
7
§ 48-177 (Reissue 1993) (providing that “[u]pon a motion for dismissal
duly filed by the plaintiff, showing that a dispute between the parties no
longer exists, the compensation court may dismiss any such cause without
a hearing thereon”).
8
See Neb. Rev. Stat. § 25-601(1) (Reissue 2008).
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INTERIANO-LOPEZ v. TYSON FRESH MEATS
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Workers’ Compensation Court is not “‘bound by the usual
common-law or statutory rules of evidence or by any techni-
cal or formal rules of procedure . . . .’”9 We further explained
that if general civil procedure statutes “were deemed appli-
cable in the Workers’ Compensation Court unless specifi-
cally excluded, then §§ 48-163 and 48-168, which specifically
exempt that court from formal rules of procedure, would be
without meaning.”10 Grady held that § 25-601 did not apply to
dismissals in the Workers’ Compensation Court.11
In 2005, the Legislature amended § 48-177 to insert the
language relevant to the instant appeal: “An action may be
dismissed by the plaintiff, if represented by legal counsel,
without prejudice to a future action, before final submission of
the case to the compensation court.”12 In Knapp v. Village of
Beaver City,13 we interpreted this amended language to grant
workers’ compensation plaintiffs a statutory right to dismiss
the action without prejudice, even when a dispute still existed
between the parties. And we expressly rejected the employer’s
suggestion that the natural delay resulting from a dismissal,
or the added expense of employing attorneys in further litiga-
tion over the same matter, were reasons that justified impos-
ing limitations on a plaintiff’s statutory right to dismiss under
§ 48-177.14
In 2011, the Legislature again amended § 48-177. As it
regards the issues in this case, the 2011 amendments did not
change the substance of a plaintiff’s statutory right to dismiss,
9
Grady, supra note 6, 246 Neb. at 1016, 524 N.W.2d at 561 (quoting Neb.
Rev. Stat. § 48-168 (Reissue 1988)).
10
Id. at 1017, 524 N.W.2d at 562.
11
Id.
12
§ 48-177 (Reissue 2010).
13
Knapp, supra note 4.
14
Id.
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but merely altered the words used to describe the proceedings
before the compensation court.15
Interiano-Lopez argues it was error for the court to dismiss
his petition but proceed to trial on Tyson’s counterclaim. He
contends that under § 48-177, the trial court did not have
authority to dismiss only part of the cause before it.
[5,6] Before addressing the contentions of the parties,
we emphasize the familiar proposition that the Workers’
Compensation Court, as a statutorily created court, has only
such authority as has been conferred upon it by statute, and
its power cannot extend beyond that expressed in statute.16 We
also note generally that the right of a plaintiff to dismiss his
or her workers’ compensation action under § 48-177 is not a
matter of judicial grace or discretion.17 The central question
presented here is whether the Workers’ Compensation Court
had the authority to continue litigating any aspect of the cause
before it once the attorney for Interiano-Lopez requested dis-
missal without prejudice. We conclude, based on a plain read-
ing of the operative statute, that it did not.
[7] Section 48-177 gives a workers’ compensation plaintiff
the explicit right to dismiss the cause without prejudice so
long as the plaintiff is represented by counsel and requests dis-
missal before the final submission of the case to the court. It
is undisputed that Interiano-Lopez was represented by counsel
and that he filed his motion to dismiss before the final sub-
mission of the case to the compensation court. He therefore
15
Compare § 48-177(2) (Cum. Supp. 2014) (providing that “[a]ny such
cause may be dismissed without prejudice to a future action . . . by the
plaintiff, if represented by legal counsel, before the final submission of the
case to the compensation court”), with § 48-177 (Reissue 2010) (providing
that “[a]n action may be dismissed by the plaintiff, if represented by legal
counsel, without prejudice to a future action, before final submission of
the case to the compensation court”).
16
Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011).
17
Knapp, supra note 4.
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was entitled as a matter of law to have the cause dismissed
without prejudice.18
But after granting Interiano-Lopez’ motion to dismiss, the
compensation court proceeded to trial on what Tyson charac-
terized as a counterclaim. The compensation court relied on
Neb. Rev. Stat. § 25-603 (Reissue 2008) as authority for doing
so, but that reliance was misplaced, because, as we clearly
held in Grady, the general civil statutes governing pleadings
and dismissal do not apply in Workers’ Compensation Court.19
Moreover, there is nothing in the plain language of § 48-177
which gives the compensation court authority to dismiss some-
thing less than the entire cause in response to a motion
to dismiss.
Tyson presents several arguments in support of its conten-
tion that the Workers’ Compensation Court had the statutory
authority to proceed to trial on Tyson’s counterclaim despite
Interiano-Lopez’ repeated requests to dismiss the entire cause.
First, Tyson argues that counterclaims are permitted in civil
cases and should be permitted in workers’ compensation cases
as well. Next, Tyson argues that its counterclaim was a permis-
sible pleading because it was made part of its answer. Finally,
Tyson argues its counterclaim was permissible because it was
the functional equivalent of a petition under § 48-177. We
address each argument in turn.
Civil Pleading Rules
Do Not A pply
[8,9] Tyson devotes a significant portion of its brief on
appeal to arguing that counterclaims are statutorily permitted
in civil cases and so should be permitted in workers’ compen-
sation cases too. It is true that the Legislature has expressly
authorized counterclaims, cross-claims, and third-party claims
18
Id.
19
See § 48-168(1) (Cum. Supp. 2014).
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in civil cases.20 But the Nebraska Workers’ Compensation
Court is not “‘bound by the usual common-law or statutory
rules of evidence or by any technical or formal rules of pro-
cedure . . . .’”21 The Nebraska Workers’ Compensation Act
was intended by the Legislature to simplify legal proceed-
ings between injured employees and their employers.22 The
streamlined statutory pleading rules in workers’ compensation
cases permit the filing of a petition,23 an answer,24 and various
motions, including but not limited to motions for judgment on
the pleadings and motions for summary judgment.25
[10] Tyson’s argument to this court that counterclaims should
be permitted under the Nebraska Workers’ Compensation Act
is a recommendation more appropriately presented to the
Legislature. Changes in the workers’ compensation laws, and
in the public policies recognized in those laws, must emanate
from the lawmaking powers of the Legislature and not from
the courts.26 We decline the invitation to judicially expand the
basic pleading structure enacted by the Legislature in work-
ers’ compensation cases.
Tyson’s Counterclaim
Was Not A nswer
Tyson argues the compensation court had authority to pro-
ceed to trial on its counterclaim because it was asserted as
20
Neb. Ct. R. Pldg. § 6-1113 (as authorized by Neb. Rev. Stat. § 25-801.01(1)
and (2)(a) (Reissue 2008)).
21
Grady, supra note 6, 246 Neb. at 1016, 524 N.W.2d at 561 (quoting
§ 48-168 (Reissue 1988)).
22
See Cleaver-Brooks, Inc. v. Twin City Fire Ins. Co., 291 Neb. 278, 865
N.W.2d 105 (2015).
23
Neb. Rev. Stat. § 48-173 (Reissue 2010).
24
Neb. Rev. Stat. § 48-176 (Reissue 2010).
25
Neb. Rev. Stat. § 48-162.03 (Cum. Supp. 2014).
26
Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236
(2013).
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part of Tyson’s answer. Neb. Rev. Stat. § 48-176 (Reissue
2010) sets forth the requirements of an answer in work-
ers’ compensation cases and provides in relevant part that
“the party at interest . . . shall file an answer to such peti-
tion, which shall admit or deny the substantial averments of
the petition, and shall state the contention of the defendant
with reference to the matters in dispute as disclosed by
the petition.”
[11] Even if we construe Tyson’s pleading as an answer
under § 48-176, the outcome does not change. An answer
which merely alleges defenses to a petition and prays for the
inverse of the relief sought by the petition does not survive
after the petition is dismissed.27 If Tyson’s pleading was an
answer, it did not survive the dismissal of Interiano-Lopez’
petition and there was nothing for the compensation court to
rule upon.
Tyson’s Counterclaim Was Not
Functional Equivalent of
Petition Under § 48-173
Finally, Tyson argues the Workers’ Compensation Court
was acting within its authority to proceed to trial on Tyson’s
counterclaim, because the counterclaim was the functional
equivalent of a petition under § 48-173. It is true the Nebraska
Workers’ Compensation Act permits a petition to be filed by
“either party at interest” when there is a dispute over a work-
ers’ compensation injury.28 And there is no dispute that if the
27
See Giesler v. City of Omaha, 175 Neb. 706, 123 N.W.2d 650 (1963)
(stating that it is error to dismiss only petition and retain case for trial
on answer where allegations of answer were merely inverse statement of
relief plaintiff sought and stated no separate cause of action; entire action
should have been dismissed).
28
§ 48-173. See, also, Fidelity & Casualty Co. v. Kennard, 162 Neb. 220, 75
N.W.2d 553 (1956) (permitting employer-initiated workers’ compensation
case over objections of employee).
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court here had dismissed the entire cause—as it was required
to do under § 48-177—Tyson could have filed its own petition
if it desired to litigate the dispute over the compensability of
the October 7, 2013, injury in Nebraska.
In light of this, Tyson asks this court to conclude as a mat-
ter of statutory construction that an employer’s right to file
a petition under § 48-173 can also be exercised by bring-
ing a counterclaim when answering an employee’s petition.
Tyson argues its counterclaim “meets the elements” required
of a petition under § 48-173 and suggests the court was cor-
rect in treating the counterclaim as the functional equivalent
of a petition and allowing it to proceed to trial even after
Interiano-Lopez exercised his right to dismiss the cause under
§ 48-177.29
[12-14] In considering Tyson’s argument, we are guided
by familiar rules of statutory construction. It is not within the
province of a court to read a meaning into a statute that is not
warranted by the language; neither is it within the province
of a court to read anything plain, direct, or unambiguous out
of a statute.30 In reading a statute, a court must determine
and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute consid-
ered in its plain, ordinary, and popular sense.31 Components
of a series or collection of statutes pertaining to a certain
subject matter are in pari materia and should be conjunc-
tively considered and construed to determine the intent of the
Legislature, so that different provisions are consistent, harmo-
nious, and sensible.32
29
Brief for appellee at 18.
30
State v. Warriner, 267 Neb. 424, 675 N.W.2d 112 (2004); State v. Gartner,
263 Neb. 153, 638 N.W.2d 849 (2002).
31
State v. Mucia, 292 Neb. 1, 871 N.W.2d 221 (2015); State v. Huff, 282
Neb. 78, 802 N.W.2d 77 (2011).
32
State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012).
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INTERIANO-LOPEZ v. TYSON FRESH MEATS
Cite as 294 Neb. 586
We reject Tyson’s statutory construction argument. The
invitation to construe a counterclaim as the functional equiva-
lent of a petition under § 48-173 is not warranted by a plain
reading of the statute and is unsupported by the existing statu-
tory scheme. Construing § 48-173 to provide that an employ-
er’s right to file a petition can also be exercised by bringing
a counterclaim would not only expand the statutory pleading
scheme enacted by the Legislature, it would also necessitate
creation of a procedure by which a plaintiff could answer the
counterclaim. As mentioned previously, the workers’ compen-
sation statutes authorize a petition33 and an answer.34 Because
counterclaims are not part of the pleading scheme, there is no
procedure enabling a plaintiff to admit or deny the substantial
averments of a counterclaim, and no procedure by which a
plaintiff can state his or her contention with reference to any
additional matters in dispute as disclosed by the counterclaim.
As such, the averments in Tyson’s counterclaim went unan-
swered, because no procedural filing authorized by the rel-
evant statutes would facilitate it.
Moreover, construing § 48-173 to permit counterclaims in
lieu of petitions would effectively nullify a workers’ compen-
sation plaintiff’s statutory right to dismiss the cause without
prejudice under § 48-177. Tyson explained during oral argu-
ment that it began filing counterclaims asking for a determi-
nation of the rights and liabilities of the parties as a way to
protect itself against any last-minute dismissals by plaintiffs
under § 48-177. As such, this pleading practice was designed
to interfere with a plaintiff’s statutory right of dismissal. We
will not construe an employer’s right to file a petition under
§ 48-173 in a manner which negates a plaintiff’s right to dis-
miss the cause under § 48-177.
33
§ 48-173.
34
§ 48-176.
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INTERIANO-LOPEZ v. TYSON FRESH MEATS
Cite as 294 Neb. 586
Interiano -Lopez Did Not Waive
His Objection to Compensation
Court’s Authority
For the sake of completeness, we address Tyson’s argu-
ment that Interiano-Lopez waived any objection to the court’s
authority to proceed to trial on Tyson’s counterclaim by
participating in the trial and asking the court to find in
his favor. We conclude Interiano-Lopez did not waive his
objection to the court’s authority. Rather, the record clearly
shows he consistently challenged the compensation court’s
authority to proceed to trial after dismissing his petition.
Moreover, we reject the suggestion that the authority of the
Workers’ Compensation Court can be expanded by waiver
or agreement.
[15] Even if Interiano-Lopez’ participation in the trial
could be viewed as voluntary, his participation cannot confer
authority on the Workers’ Compensation Court if it did not
otherwise exist. As a statutorily created court, the Workers’
Compensation Court is a tribunal of limited and special juris-
diction and has only such authority as has been conferred on
it by statute.35 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.36 As such, the voluntary
participation of the parties is immaterial to the central question
on appeal—whether the Workers’ Compensation Court had the
authority to proceed to trial after a represented plaintiff asked
to dismiss the action without prejudice.
CONCLUSION
Through a variety of arguments, Tyson urges this court to
construe § 48-173 to authorize not only the filing of a petition
35
Cruz-Morales v. Swift Beef Co., 275 Neb. 407, 746 N.W.2d 698 (2008).
36
Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30
(2013).
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INTERIANO-LOPEZ v. TYSON FRESH MEATS
Cite as 294 Neb. 586
by an employer, but also to authorize the employer to file a
counterclaim which recites the statutory pleading elements of
the petition. We decline Tyson’s invitation, because doing so
would judicially expand the statutory pleading procedure set
out by the Legislature and, as is demonstrated by the pres-
ent case, it would have the effect of nullifying a plaintiff’s
statutory right to dismiss the cause without prejudice under
§ 48-177.
We conclude the Workers’ Compensation Court acted with-
out authority and in excess of its powers in proceeding to trial
after Interiano-Lopez exercised his right to dismiss the cause
without prejudice. Accordingly, we vacate the decision of
the Workers’ Compensation Court and remand the cause with
directions to dismiss the cause without prejudice.37
Vacated and remanded with directions.
37
See, § 48-185; Hynes, supra note 1.