Dragon v. Cheesecake Factory , 300 Neb. 548 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
DRAGON v. CHEESECAKE FACTORY
Cite as 300 Neb. 548
K eith T. Dragon, appellant, v. The Cheesecake
Factory and its workers’ compensation insurer,
Indemnity Insurance Company of
North A merica, appellees.
___ N.W.2d ___
Filed July 20, 2018. No. S-17-891.
1. 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.
2. Workers’ Compensation: Appeal and Error. 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. Legislature: Statutes: Time. Generally, legislation that is passed takes
effect 3 calendar months after the Legislature adjourns unless the
Legislature evidences otherwise.
4. Statutes: Time. Statutes covering substantive matters in effect at the
time of the transaction or event govern, not later enacted statutes. But
where there has been an amendment to a statute which was a procedural
change and not a substantive change, upon the effective date of the
amendment, it is binding upon a tribunal.
5. ____: ____. Procedural amendments to statutes are ordinarily applicable
to pending cases, while substantive amendments are not.
6. Statutes: Words and Phrases. A substantive amendment is one that
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.
7. Limitations of Actions: Statutes. Laws prescribing the time within
which particular rights may be enforced generally relate to remedies
only and not substantive rights.
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DRAGON v. CHEESECAKE FACTORY
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8. Workers’ Compensation: Statutes. 2018 Neb. Laws, L.B. 953, is a pro-
cedural amendment to Neb. Rev. Stat. § 48-139(4) (Cum. Supp. 2016).
9. Workers’ Compensation: Time. The reasonable controversy doctrine
has long been applied to excuse waiting-time penalties for delayed ben-
efit payments under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016).
10. ____: ____. The reasonable controversy doctrine has no application to
late-payment penalties under Neb. Rev. Stat. § 48-139(4) (Cum. Supp.
2016).
11. Attorney Fees. If an attorney seeks a fee for his or her client, that attor-
ney should introduce at least an affidavit showing a list of the services
rendered, the time spent, and the charges made.
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Order vacated in part and in part reversed, and
cause remanded with directions.
Brynne E. Holsten Puhl, of Atwood, Holsten, Brown, Deaver
& Spier Law Firm, P.C., L.L.O., for appellant.
Marc N. Middleton, of Adelson, Testan, Brundo, Novell &
Jimenez, and David A. Castello for appellees.
Danny C. Leavitt for amicus curiae Nebraska Association of
Trial Attorneys.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and Strong, District Judge.
Stacy, J.
In this workers’ compensation case, the parties reached a
lump-sum settlement and filed a verified release with the court
using the process set out in Neb. Rev. Stat. § 48-139(3) and
(4) (Cum. Supp. 2016). The employer did not pay the amounts
owed under the settlement within 30 days after the release
was filed, and the employee moved for late payment penalties
under § 48-139(4). The Workers’ Compensation Court over-
ruled the motion and dismissed the employee’s petition with
prejudice. The employee appealed.
While the case was pending on appeal, the Legislature
amended the process for finalizing lump-sum settlements under
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DRAGON v. CHEESECAKE FACTORY
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§ 48-139(4). Because we conclude this recent amendment is
procedural in nature, we apply it to this pending matter.1 Doing
so, we find the employee is entitled to a late payment penalty,
and to that extent only we vacate the order of dismissal with
prejudice, reverse the decision of the Workers’ Compensation
Court, and remand the cause with directions. In all other
respects, we affirm.
BACKGROUND
Keith T. Dragon worked as a dishwasher for The Cheesecake
Factory in Omaha, Nebraska. On February 9, 2017, Dragon
filed a petition for workers’ compensation benefits, alleging he
was injured in the course and scope of his employment. The
parties agreed to settle Dragon’s claim for a lump-sum payment
of $5,000. Both parties were represented by counsel, and they
agreed to use the verified release procedure under § 48-139(3)
rather than seek court approval of their settlement.2
On May 1, 2017, the employer filed with the Workers’
Compensation Court a verified release containing the lan-
guage required by § 48-139(3), thus triggering the 30-day
payment period under § 48-139(4).3 On June 8, the employer
mailed Dragon the settlement check. Thereafter, Dragon filed
a motion in the Workers’ Compensation Court seeking a
late payment penalty of $2,500 under § 48-139(4) and an
award of attorney fees under Neb. Rev. Stat. § 48-125 (Cum.
Supp. 2016).
At the hearing on the motion for late payment penalties, the
employer conceded the lump-sum settlement was paid more
1
See Smith v. Mark Chrisman Trucking, 285 Neb. 826, 829 N.W.2d 717
(2013).
2
Compare § 48-139(2) (detailing general process for court approval of
lump-sum settlement), with § 48-139(3) (detailing alternative process for
filing verified release to finalize lump-sum settlement).
3
§ 48-139(4) (“[a]mounts to be paid by the employer to the employee
pursuant to such release shall be paid within thirty days of filing the
release with the compensation court”).
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than 30 days after the release was filed, but it opposed the
imposition of a late payment penalty on two grounds.
First, the employer argued the “reasonable controversy”
doctrine4 should preclude an award of late payment penal-
ties, because the payment delay was the result of a reason-
able dispute over child support liens. Second, the employer
argued Dragon had waived any claim for a late payment
penalty under § 48-139(4). This argument was based on the
version of § 48-139(4) in effect at that time, which provided:
“Upon making payment owed by the employer as set forth
in the release, such release shall be a full and complete dis-
charge from further liability for the employer on account of
the injury . . . .” Given this statutory language, the employer
argued that even though the settlement payment was made
more than 30 days after the release was filed, the release
sprung into effect as soon as payment was made and extin-
guished all claims Dragon had under the Nebraska Workers’
Compensation Act, including a claim for late payment penal-
ties or attorney fees.
The Workers’ Compensation Court agreed with the employ-
er’s interpretation of § 48-139(4) and entered an order over-
ruling Dragon’s motion for a late payment penalty. In doing
so, the court relied on this court’s analysis in Holdsworth v.
Greenwood Farmers Co-op.5
In Holdsworth, the lump-sum settlement payment was made
42 days after the verified release was filed and the employee
moved for a 50-percent waiting-time penalty and attorney
fees. When Holdsworth was decided, § 48-139 did not have
its own late payment penalty provision, so the employee
sought penalties under § 48-125 (Reissue 2010). That statute
generally authorized a waiting-time penalty for “all delinquent
4
See, e.g., Armstrong v. State, 290 Neb. 205, 209, 859 N.W.2d 541, 547
(2015).
5
Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30
(2013).
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payments after thirty days’ notice has been given of disabil-
ity or after thirty days from the entry of a final order, award,
or judgment of the compensation court.”6 Section 48-125(2)
authorized an employee who received a waiting-time penalty,
and who also received an award, to recover reasonable attor-
ney fees.
In Holdsworth, the Workers’ Compensation Court awarded
the employee waiting-time penalties under § 48-125 and the
employer appealed. This court reversed, finding that once the
verified release was filed with the compensation court pur-
suant to § 48-139(3), the employee effectively waived “‘all
rights under the Nebraska Workers’ Compensation Act,’”
including any rights to late payment penalties and fees
the employee may have had under § 48-125.7 A key part
of this court’s analysis in Holdsworth was the broad lan-
guage required to be included in the verified release under
§ 48-139(3). We reasoned this broad release language was
unambiguous and resulted in “a full waiver of any and all rights
given to workers in the Nebraska Workers’ Compensation
Act,” including the right to waiting-time penalties and
attorney fees.8
After our decision in Holdsworth, the Legislature amended
§ 48-139 to specifically include a penalty provision for late
payments of lump-sum settlements.9 Thus, in 2017, when
the parties in this case reached their lump-sum settlement,
§ 48-139(4) provided:
A release filed with the compensation court in accord­
ance with subsection (3) of this section shall be final
and conclusive as to all rights waived in the release
unless procured by fraud. Amounts to be paid by the
6
§ 48-125(1)(b).
7
Holdsworth, supra note 5, 286 Neb. at 56, 835 N.W.2d at 36.
8
Id.
9
See 2014 Neb. Laws, L.B. 961, § 11.
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employer to the employee pursuant to such release shall
be paid within thirty days of filing the release with the
compensation court. Fifty percent shall be added for pay-
ments owed to the employee if made after thirty days
after the date the release is filed with the compensation
court. Upon making payment owed by the employer as
set forth in the release, such release shall be a full and
complete discharge from further liability for the employer
on account of the injury, including future medical, surgi-
cal, or hospital expenses, unless such expenses are spe-
cifically excluded from the release, and the court shall
enter an order of dismissal with prejudice as to all rights
waived in the release.
The Workers’ Compensation Court analyzed this stat-
utory language and concluded it did “not cure the prob-
lem illuminated by Holdsworth.” The court reasoned that
under Holdsworth, once the broad statutory release language
becomes effective, it results in a full and complete discharge
from all liability under the act, including a claim for late pay-
ment penalties and attorney fees. The Workers’ Compensation
Court observed that because amendments to § 48-139(4) made
the release effective “‘[u]pon making payment . . . as set forth
in the release . . . ,’” the release in this case became effective
once the employer paid Dragon. Thus, even though the settle-
ment payment was late, it served to discharge the employer
from all liability, including liability for late payment penalties
and attorney fees.
The Workers’ Compensation Court thus overruled Dragon’s
motion for penalties and attorney fees and dismissed his peti-
tion with prejudice. Dragon timely appealed, and we moved
the case to our docket on our own motion10 to address the
impact of the 2014 amendment to § 48-139(4).
10
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
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DRAGON v. CHEESECAKE FACTORY
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ASSIGNMENT OF ERROR
Dragon assigns the Workers’ Compensation Court erred
in ruling he was not entitled to a late payment penalty under
the 2014 version of § 48-139(4) and attorney fees under
§ 48-125.
STANDARD OF REVIEW
[1] 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 questions of law.11
[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.12
ANALYSIS
We moved this case to our docket to address the impact of
the 2014 amendments to § 48-139(4), but we begin our analy-
sis by addressing a more recent amendment to that section.
L.B. 953
While this appeal was pending, the Legislature again
amended § 48-139(4). Specifically, 2018 Neb. Laws, L.B. 953,
made the following additions/changes to § 48-139(4):
Upon the entry of an order of dismissal with prejudice,
a A release filed with the compensation court in accord­
ance with subsection (3) of this section shall be final
and conclusive as to all rights waived in the release
unless procured by fraud. Amounts to be paid by the
employer to the employee pursuant to such release shall
be paid within thirty days of filing the release with the
compensation court. Fifty percent shall be added for
11
Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586, 883 N.W.2d 676
(2016).
12
Greenwood v. J.J. Hooligan’s, 297 Neb. 435, 899 N.W.2d 905 (2017).
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payments owed to the employee if made after thirty days
after the date the release is filed with the compensation
court. Upon making payment owed by the employer as
set forth in the release and upon the entry of an order of
dismissal with prejudice, as to all rights waived in the
release, such release shall be a full and complete dis-
charge from further liability for the employer on account
of the injury, including future medical, surgical, or hos-
pital expenses, unless such expenses are specifically
excluded from the release, and the court shall enter an
order of dismissal with prejudice as to all rights waived
in the release.
In explaining the reason for the amendment, the introducer of
L.B. 953 stated:
LB 953 also addresses a recent Workers’ Compensation
Court’s decision regarding the enforceability of late pay-
ment penalties. Currently, Neb. Rev. Stat. § 48-139(4)
permits a fifty percent penalty for late payments to the
employee, but the Workers’ Compensation Court has
found that the employee has already waived his or her
rights to enforce this. LB 953 corrects this issue by mak-
ing the entry of an order of dismissal a prerequisite to the
discharge of a defendant from liability.13
As applicable to the issues before us in this appeal, L.B. 953
changed the point at which a verified release becomes effec-
tive under § 48-139(4). Before passage of L.B. 953, a verified
release was effective upon payment of sums owed under the
release. After L.B. 953, a verified release becomes effective
once payment is made and the court enters an order of dis-
missal with prejudice.
[3] Generally, legislation that is passed takes effect 3
calendar months after the Legislature adjourns unless the
13
Introducer’s Statement of Intent, L.B. 953, 105th Leg., 2d Sess. (Feb. 5,
2018).
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Legislature evidences otherwise.14 The Legislature’s 2018 ses-
sion adjourned on April 18, 2018, so L.B. 953 has taken effect
and we must decide, as a threshold matter, whether the provi-
sions of L.B. 953 apply to this case. The necessary inquiry is
whether the changes made by L.B. 953 to § 48-139(4) were
procedural or substantive in nature.15
[4,5] It is a well-established principle that statutes covering
substantive matters in effect at the time of the transaction or
event govern, not later enacted statutes.16 But where there has
been an amendment to a statute which was a procedural change
and not a substantive change, upon the effective date of the
amendment, it is binding upon a tribunal.17 Thus, procedural
amendments to statutes are ordinarily applicable to pending
cases, while substantive amendments are not.18
[6] We have explained that a substantive amendment is one
that 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.19 A procedural amendment, on the other
hand, simply changes the method by which an already existing
right is exercised.20
In Jackson v. Branick Indus.,21 we applied these principles to
determine whether an amendment to a workers’ compensation
subrogation statute22 was substantive or procedural in nature.
14
Smith, supra note 1, citing Neb. Const. art. III, § 27.
15
See, Smith, supra note 1; Jackson v. Branick Indus., 254 Neb. 950, 581
N.W.2d 53 (1998).
16
Id.
17
Jackson, supra note 15; Behrens v. American Stores Packing Co., 228 Neb.
18, 421 N.W.2d 12 (1988).
18
Smith, supra note 1.
19
See, id.; Jackson, supra note 15; Behrens, supra note 17.
20
Smith, supra note 1.
21
Jackson, supra note 15.
22
Compare Neb. Rev. Stat. § 48-118 (Reissue 1993), with § 48-118 (Cum.
Supp. 1996).
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At the time of the employee’s injury in Jackson, § 48-118 gave
the employer and its insurer a subrogation interest against a
third-party tort-feasor in the amount of any compensation paid
to or on behalf of the employee. This was construed to entitle
the employer to “dollar-for-dollar” subrogation recovery from
a third-party settlement.23 However, by the time the employee
settled with a third party, § 48-118 had been amended to
allow the court to make a “‘fair and equitable’” distribution
of the third-party settlement as between the employee and the
employer or its insurer.24
The district court in Jackson found the amendment was
procedural, and thus made an equitable distribution of the
third-party settlement proceeds. The employer appealed, and
this court reversed, finding instead that the amendment was
substantive in nature. We reasoned:
[The amendment] did not merely change the way in
which the employer’s right to subrogation would be exer-
cised, it actually changed the nature of the subrogation
interest itself. The 1994 amendment to § 48-118 injected
an element of equity into statutory subrogation where one
was not present before and is, therefore, a substantive
change in the law.25
Unlike the amendment considered in Jackson, the provi-
sions of L.B. 953 changed neither the nature of the late pay-
ment penalty under § 48-139(4) nor the manner in which such
a penalty is calculated. Instead, L.B. 953 merely changed
the point in the settlement process when a verified release
becomes effective.
At the time we decided Holdsworth, the verified release
became effective once it was filed with the Workers’
Compensation Court. The 2014 amendments to § 48-139(4)
made the verified release effective “[u]pon making payment
23
Id. at 957, 581 N.W.2d at 57.
24
Id. at 953, 581 N.W.2d at 55.
25
Id. at 960-61, 581 N.W.2d at 59.
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owed by the employer as set forth in the release . . . .” And
L.B. 953 makes the verified release effective once payment is
made and the court enters an order of dismissal with prejudice.
[7,8] We have recognized that “[l]aws prescribing the time
within which particular rights may be enforced generally
relate to remedies only and not substantive rights.”26 In this
case, the pertinent provisions of L.B. 953 merely changed the
point in time when the verified release becomes effective in
the lump-sum settlement process. We therefore conclude that
L.B. 953 is a procedural amendment to § 48-139(4) and is
applicable to this pending appeal.
Dragon Is Entitled to
Late Payment Penalty
Under § 48-139(4) as amended by L.B. 953, Dragon did not
waive his right to a late payment penalty. It remains true under
Holdsworth that once the verified release becomes effective,
it results in a full and complete discharge from all liability
under the Nebraska Workers’ Compensation Act, including
a claim for late payment penalties and attorney fees.27 But
post-L.B. 953, the verified release signed by Dragon does not
become effective until the Workers’ Compensation Court files
an order of dismissal with prejudice.28 Applying the current
version of § 48-139(4), we find Dragon is entitled to a late
payment penalty as a matter of law. Thus, it is contrary to law
to conclude the release became effective upon the employer’s
payment of the settlement sums, and we must reverse the
Workers’ Compensation Court’s finding to the contrary, in
light of the change in the law.
26
Harris v. Omaha Housing Auth., 269 Neb. 981, 986, 698 N.W.2d 58, 63-64
(2005).
27
See Holdsworth, supra note 5.
28
See, also, Workers’ Comp. Ct. R. of Proc. 47J (2018) (when order
of dismissal is required under § 48-139(4), parties must file receipt,
satisfaction, or joint stipulation for dismissal setting forth amount(s)
received by employee from employer).
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We thus vacate the order of dismissal with prejudice, reverse
the finding that Dragon waived his right to late payment penal-
ties under § 48-139(4), and remand the cause with directions
to award such penalty based on the existing record.
R easonable Controversy Doctrine
Does Not A pply
The employer argues that even if § 48-139(4) authorizes a
late payment penalty, it should be exempt from paying the pen-
alty, because a “reasonable controversy” existed. Specifically,
the employer claims it delayed paying the settlement sums in
this case because it was waiting for information on whether
and how to pay child support liens. The record is undisputed
that the parties had notice of the child support liens prior to the
time they reached a lump-sum settlement.
[9,10] The reasonable controversy doctrine has long been
applied to excuse waiting-time penalties for delayed ben-
efit payments under § 48-125.29 The employer urges us to
extend the doctrine to excuse late payment penalties for
delayed lump-sum settlement payments under § 48-139(4). We
decline the invitation and conclude the reasonable controversy
doctrine has no application to late payment penalties under
§ 48-139(4).
In 1920, this court recognized an exception to waiting-time
penalties imposed for delayed benefit payments when there is
a reasonable controversy over entitlement to workers’ compen-
sation benefits.30 We reasoned:
It was not intended by this provision of the statute that
an employer should comply with every demand of the
employee at his peril, and in every case, when it is later
29
Armstrong, supra note 4 (recognizing “reasonable controversy” doctrine
has been part of our waiting-time penalty jurisprudence under § 48-125 for
more than 90 years).
30
Updike Grain Co. v. Swanson, 104 Neb. 661, 178 N.W. 618 (1920)
(superseded by statute as stated in Lagemann v. Nebraska Methodist
Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009)).
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proved that the employer was mistaken as to his liability,
that he should be required to increase the award 50 per
cent . . . and be penalized in that amount. The statute was
not intended to prevent the employer from having a fair
opportunity to be heard and to have his just controversies
tried . . . .31
Since that time, we have consistently held that an employer
is not liable for the waiting-time penalty under § 48-125 when
there is a reasonable controversy over entitlement to ben-
efits.32 In that context, we have explained that a reasonable
controversy exists if (1) there is a question of law previously
unanswered by the Supreme Court, which question must be
answered to determine a right or liability for disposition of a
claim under the Nebraska Workers’ Compensation Act, or (2)
if the properly adduced evidence would support reasonable
but opposite conclusions by the compensation court about
an aspect of an employee’s claim, which conclusions affect
allowance or rejection of an employee’s claim, in whole or
in part.33
We have not previously addressed whether the reasonable
controversy exception applies to late payment penalties for
lump-sum settlement payments made more than 30 days after
the verified release is filed under § 48-139. But given the
ration­ale for the doctrine, we see no compelling reason to
extend the doctrine to excuse penalties for delayed payments
of lump-sum settlements.
The waiting-time penalty provisions of § 48-125 are
designed to encourage prompt payment of benefits34 and to
31
Id. at 665, 178 N.W. at 619.
32
See Armstrong, supra note 4.
33
Id.
34
Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d
167 (2003), disapproved on other grounds, Kimminau v. Uribe Refuse
Serv., 270 Neb. 682, 707 N.W.2d 229 (2005); Hollandsworth v. Nebraska
Partners, 260 Neb. 756, 619 N.W.2d 579 (2000).
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encourage employers and insurers to promptly handle and
decide disputed claims.35 We have said that to avoid waiting-
time penalties under 48-125, an employer must have an actual
basis in law or fact for disputing the claim and refusing
compensation.36
But once an employer and an employee reach a lump-sum
settlement agreement, there is no remaining factual or legal
dispute over the claim and thus no reason to refuse to pay the
agreed-upon settlement amount.37 If, as in this case, there are
concerns about the enforceability of liens against the proceeds
of a lump-sum settlement, parties should endeavor to resolve
such issues before they file the verified release and trigger the
30-day payment period under § 48-139(4).
For these reasons, we find the reasonable controversy
exemption is inapplicable to late payment penalties under
§ 48-139(4) and does not exempt the employer from paying
such penalties in this case.
Attorney Fees
Finally, Dragon argues it was error for the Workers’
Compensation Court to deny his request for attorney fees under
§ 48-125. We find no abuse of discretion in denying attorney
fees on this record.
[11] If an attorney seeks a fee for his or her client, that
attorney should introduce at least an affidavit showing a list of
the services rendered, the time spent, and the charges made.38
The record on appeal contains no such evidence supporting
Dragon’s request for attorney fees. We thus are unable to
35
See Armstrong, supra note 4; Dawes, supra note 34.
36
Dawes, supra note 34, citing Mendoza v. Omaha Meat Processors, 225
Neb. 771, 408 N.W.2d 280 (1987).
37
See § 48-139.
38
Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011).
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address this assignment of error,39 and we express no opinion
on Dragon’s argument that an employee who is entitled to
a late payment penalty under § 48-139(4) may also recover
attorney fees under § 48-125.
CONCLUSION
For the foregoing reasons, we vacate the order of dismissal
with prejudice, reverse the finding that Dragon waived his
right to late payment penalties under § 48-139(4), and remand
the cause with directions to award such penalties based on the
existing record. In all other respects, we affirm the decision of
the Workers’ Compensation Court.
Order vacated in part and in part reversed,
and cause remanded with directions.
39
See, Centurion Stone of Neb. v. Whelan, 286 Neb. 150, 835 N.W.2d 62
(2013); InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12
(2012) (holding appellant must present record supporting errors assigned;
absent such record, appellate court will affirm lower court’s decision).