Boring v. Zoetis LLC

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/04/2021 08:08 AM CDT
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BORING v. ZOETIS LLC
Cite as 309 Neb. 270Martin Boring, appellee, v.
Zoetis LLC, appellant.
___ N.W.2d ___
Filed May 21, 2021. No. S-20-275.
1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
Stat. § 48-185 (Cum. Supp. 2020), 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. Workers’ Compensation: Attorney Fees: Penalties and Forfeitures.
The waiting-time penalty and attorney fees are available under Neb.
Rev. Stat. § 48-125 (Cum. Supp. 2016) in cases brought to the Workers’
Compensation Court only where there is no reasonable controversy
regarding an employee’s claim for workers’ compensation.
3. Workers’ Compensation: Attorney Fees: Words and Phrases. A “rea-
sonable controversy” for the purpose of Neb. Rev. Stat. § 48-125(Cum. Supp. 2016) 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 con-
clusions affect allowance or rejection of an employee’s claim, in whole
or in part.
Petition for further review from the Court of Appeals, Bishop,
Arterburn, and Welch, Judges, on appeal thereto from
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BORING v. ZOETIS LLC
Cite as 309 Neb. 270the Workers’ Compensation Court, J. Michael Fitzgerald,
Judge. Judgment of Court of Appeals affirmed.
Eric T. Lanham, Sarah N. Boston, and A. Francesca Romano,
of McAnany, Van Cleave & Phillips, P.A., for appellant.
Ryan C. Holsten and Nolan J. Niehus, Senior Certified Law
Student, of Atwood, Holsten, Brown, Deaver, Spier & Israel
Law Firm, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
NATURE OF CASE
Martin Boring filed a petition in the Nebraska Workers’
Compensation Court (WCC) against Zoetis LLC, in which he
claimed a compensable injury arising from his employment
with Zoetis. The WCC awarded Boring, inter alia, temporary
and permanent benefits, and it ordered Zoetis to pay Boring
penalties and attorney fees pursuant to Neb. Rev. Stat. § 48-125(Cum. Supp. 2016). Zoetis appealed to the Nebraska Court of
Appeals, which affirmed the award of benefits but reversed and
vacated the award of penalties and attorney fees.
We granted Boring’s petition for further review in which he
assigned error to the Court of Appeals’ decision that reversed
and vacated the award of penalties and attorney fees. We deter-
mine that the WCC erred when it found that there was no rea-
sonable controversy based solely on its reliance on the judicial
admission in Zoetis’ answer, the effect of which Zoetis had
later been relieved. Because the case was tried without reliance
on a judicial admission, the WCC should have made its find-
ing as to whether there was a reasonable controversy based on
the evidence actually presented at trial. On appeal, the Court
of Appeals reversed the award of penalties and attorney fees.
On further review, although we articulate the rationale slightly
differently, we affirm.
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BORING v. ZOETIS LLC
Cite as 309 Neb. 270STATEMENT OF FACTS
Boring was employed by Zoetis from June 2004 to
September 2017. In October 2018, Boring filed a petition with
the WCC in which he generally claimed a compensable injury
arising from his employment with Zoetis. In paragraph 3 of
the petition, Boring alleged that on February 7, 2017, he “sus-
tained a work accident and injuries to his right upper extrem-
ity arising out of and in the course of his employment with”
Zoetis. In paragraph 5, Boring alleged that “the matter or
matters in dispute include the compensability of past, present,
and future medical expenses, temporary disability and waiting
time, interest and attorney’s fees and, to the extent [Boring]
has reached maximum medical improvement at the time of
trial, permanent impairment benefits.” Finally, in paragraph 6,
Boring alleged that
no reasonable controversy exists concerning the com-
pensability of [Boring’s] claim, and yet, despite more
than thirty (30) day [sic] notice of [Boring’s] accident
and injuries, [Zoetis] has failed and refused to make pay-
ment to [Boring] of compensable medical and mileage
expenses and indemnity benefits, and [Boring] is there-
fore entitled to interest, costs, waiting time and attorney’s
fees in accord with . . . §48-125.
In its answer, Zoetis admitted portions of Boring’s petition,
including, inter alia, the allegations set forth in paragraph 3,
in which Boring alleged that he had sustained a work-related
accident and injury to his right upper extremity on February
7, 2017. With regard to both paragraphs 5 and 6, regarding
the extent of compensation and penalties respectively, Zoetis
stated that it was “without knowledge to form a belief as to
the allegations contained in” each of the paragraphs and that it
therefore denied paragraphs 5 and 6.
A trial was held on October 29, 2019. Without objection, the
WCC received into evidence a stipulation signed by both par-
ties. They stipulated to, inter alia, the award to which Boring
would be entitled “[s]hould the [WCC] find [Boring] suffered
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BORING v. ZOETIS LLC
Cite as 309 Neb. 270a compensable accident and injury.” Boring testified at trial,
and Zoetis presented testimony by a nurse practitioner who
operated Zoetis’ occupational health clinic and treated Boring
after he reported an injury in 2017. Without going into details
here, the record at trial showed that Boring’s condition had
been evaluated by a variety of health professionals, in addition
to the foregoing nurse practitioner. These individuals included
Dr. George Hansen, Dr. Patrick Hurlbut, a physical therapist,
Dr. Kirk Hutton, and Dr. Michael Morrison. There were widely
differing views about causation and the extent of Boring’s
injury. In addition, there was a debate among the professionals
as to whether Boring tripped in the autumn of 2017 and, if so,
the consequences of such incident.
After the trial, on January 30, 2020, the WCC filed an order
in which it found that on February 7, 2017, Boring injured his
right shoulder in an accident arising out of and in the scope
of his employment, and that such injury led to surgery on his
shoulder. The WCC dedicated nearly six pages of its order to
assessing the competing medical evidence. The WCC awarded
Boring temporary and permanent benefits, payment for future
medical care, a vocational evaluation and vocational rehabilita-
tion services, and medical bills and mileage.
The WCC also addressed Boring’s request for penalties and
attorney fees. The WCC rejected Zoetis’ argument in which
it contended that there was a reasonable controversy and that
therefore, Boring was not entitled to penalties and attorney
fees under § 48-125. Notwithstanding the trial record and the
WCC’s extensive weighing of the evidence that led it to find
a compensable injury, the WCC proceeded in the remainder
of its analysis as though injury had not been an issue. In its
order, the WCC stated that Zoetis “admitted in its Answer
that on February 7, 2017 [Boring] sustained a work accident
and injuries to his right upper extremity arising out of and
in the course of his employment with [Zoetis].” The WCC
cited precedent to the effect that an admission in a pleading
is a judicial admission, which is a substitute for evidence.
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BORING v. ZOETIS LLC
Cite as 309 Neb. 270The WCC reasoned that Zoetis’ judicial admission relieved
Boring of the burden to produce evidence that he injured his
right shoulder on February 7, 2017, and that as a result of such
admission Zoetis was “liable for treatment and medical care of
[Boring’s] right shoulder and the payment of weekly benefits.”
The WCC further reasoned that Zoetis’ admission of “the acci-
dent and injury entitles [Boring] to a penalty and attorney’s
fees for nonpayment of medical expenses and nonpayment
of weekly benefits.” After a subsequent hearing, the WCC
ordered Zoetis to pay a penalty of $408.50 per week for late
payment of temporary benefits that were due April 18, 2018,
through July 1, 2019, and a penalty of $408.50 per week for
33.75 weeks for late payment of permanent benefits. The WCC
also ordered that Boring was entitled to a reasonable attorney
fee of $15,333.
Zoetis appealed the WCC’s award to the Court of Appeals.
Zoetis claimed that the WCC erred when it found that Boring’s
injury arose out of and in the course of his employment and
that he was entitled to temporary and permanent benefits, pay-
ment for past and future medical expenses and mileage, and
a vocational evaluation and vocational rehabilitation services.
Zoetis also claimed that the WCC erred when it awarded
penalties and attorney fees. The Court of Appeals generally
affirmed the award but reversed the portion of the order in
which the WCC awarded penalties and attorney fees pursuant
to § 48-125.
In a memorandum opinion, the Court of Appeals first
addressed the WCC’s finding that Boring’s injury arose out of
and in the course of his employment. See Boring v. Zoetis LLC,
No. A-20-275, 2020 WL 7227304 (Neb. App. Dec. 8, 2020)
(selected for posting to court website). The Court of Appeals
began its analysis by rejecting Boring’s argument that by
admitting paragraph 3 of Boring’s petition, Zoetis made a judi-
cial admission that constituted a waiver of its right to challenge
the finding that Boring’s shoulder injury arose out of and in the
course of his employment with Zoetis. The Court of Appeals
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BORING v. ZOETIS LLC
Cite as 309 Neb. 270reasoned that Zoetis’ admission to paragraph 3 constituted
only an admission to “some work-related accident and injury
suffered by Boring on February 7, 2017,” but that Zoetis’
denial of paragraph 6 of Boring’s petition made it “equally
clear that Zoetis disputed the nature and extent of that injury
and the benefits attributable thereto.” Id. at *7. The Court of
Appeals characterized Zoetis’ position as being that “although
Boring may have suffered a minor strain on February 7, 2017,
that injury eventually healed and Boring was treated for a dif-
ferent shoulder injury by 2018 which required two surgeries,”
and that therefore, “Boring’s injury on February 7, 2017, was,
at best, a mild strain and did not support the stipulated benefits
which were the result of a different injury.” Id. The Court of
Appeals concluded that “Zoetis did not admit to the full extent
of injury claimed by Boring.” Id.
The Court of Appeals proceeded to consider whether Boring
presented sufficient evidence to support the WCC’s finding
that the injury which required surgery arose out of and in the
course of Boring’s employment with Zoetis. After reviewing
the evidence, the Court of Appeals determined that there was
sufficient evidence and it therefore affirmed the finding. The
Court of Appeals further considered Zoetis’ claims that the
evidence did not support the WCC’s awards of temporary and
permanent benefits, and medical expenses and mileage, the
amount of which awards was stipulated by the parties. The
Court of Appeals concluded that because the record supported
the finding that the injury requiring surgery arose out of and in
the course of Boring’s employment with Zoetis, the WCC did
not err when it awarded the stipulated benefits. The Court of
Appeals therefore affirmed the awards, and it further affirmed
the award relating to a vocational evaluation and vocational
rehabilitation services.
Finally, the Court of Appeals considered Zoetis’ claim that
the WCC erred when it awarded Boring penalties and attorney
fees. The Court of Appeals cited § 48-125, which provides for
a waiting-time penalty and attorney fees when the employer
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BORING v. ZOETIS LLC
Cite as 309 Neb. 270fails to pay compensation within 30 days of notice of disability
and the employee must seek an award in the WCC. The Court
of Appeals cited precedent to the effect that penalties and
attorney fees may be awarded under § 48-125 only when no
reasonable controversy exists regarding the claim for workers’
compensation benefits.
The Court of Appeals noted that at trial, Zoetis “most cer-
tainly denied the nature and extent of Boring’s injuries and the
case was tried primarily on the issue of causation.” Boring v.
Zoetis LLC, 2020 WL 7227304 at *10. The Court of Appeals
reviewed the evidence presented on that issue and observed
that “there was evidence in this record that would support
reasonable but opposite conclusions . . . regarding the nature
and extent of Boring’s February 7, 2017, injury.” Id. The Court
of Appeals ruled that a waiting-time penalty and attorney fees
under § 48-125 were not justified. The Court of Appeals there-
fore reversed and vacated the portion of the WCC order award-
ing Boring penalties and attorney fees.
We granted Boring’s petition for further review.
ASSIGNMENT OF ERROR
Boring claims, combined and restated, that the Court of
Appeals erred when it reversed and vacated the WCC’s award
of penalties and attorney fees in contravention of its own prec-
edent in Heesch v. Swimtastic Swim School, 20 Neb. App. 260,
823 N.W.2d 211 (2012).
STANDARDS OF REVIEW
[1] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2020),
an appellate court may modify, reverse, or set aside a WCC
decision only when (1) the WCC 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 WCC do not support the
order or award. Parks v. Hy-Vee, 307 Neb. 927, 951 N.W.2d
504 (2020).
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BORING v. ZOETIS LLC
Cite as 309 Neb. 270ANALYSIS
We note as an initial matter that Boring’s assignments of
error on further review relate solely to the portion of the Court
of Appeals’ decision in which it reversed and vacated the
WCC’s award of penalties and attorney fees to Boring pursuant
to § 48-125. Boring did not challenge the remaining portions
of the Court of Appeals’ decision in which it affirmed the rest
of the award. Furthermore, Zoetis did not cross-petition for
further review. The only aspect of the Court of Appeals’ deci-
sion before us on further review is the part relating to penalties
and attorney fees. The Court of Appeals’ decision in which it
affirmed the WCC’s award of temporary and permanent ben-
efits, payment for future medical care, a vocational evaluation
and vocational rehabilitation services, and medical bills and
mileage is therefore affirmed.
Boring’s assignments of error on further review relate to the
WCC award of penalties and attorney fees pursuant to § 48-125,
which award the Court of Appeals overturned on appeal. We
therefore review statutory and case law standards governing
such awards. Section 48-125(3) provides for a “waiting time”
penalty for delinquent payments, and § 48-125(4) provides
for “a reasonable attorney’s fee” when the employer “refuses
payment of compensation or medical payments” and “proceed-
ings are held before the [WCC].” We have recognized that
the waiting-time penalty provided for in § 48-125(3) relates
only to delinquent payments of compensation, which includes
“‘periodic disability or indemnity benefits,’” and that the stat-
ute does not authorize a waiting-time penalty for delinquent
payment of medical expenses. VanKirk v. Central Community
College, 285 Neb. 231, 236, 826 N.W.2d 277, 281 (2013).
With regard to attorney fees, however, we have noted that
the Legislature amended the portion of the statute that is now
§ 48-125(4) to specifically provide for an award of attorney
fees related to medical expenses, as well as to compensation.
Id. See, also, Bronzynski v. Model Electric, 14 Neb. App. 355,
707 N.W.2d 46 (2005).
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BORING v. ZOETIS LLC
Cite as 309 Neb. 270[2,3] Although § 48-125 does not contain the words “reason-
able controversy,” our case law has long held that the waiting-
time penalty and attorney fees are available under § 48-125 in
cases brought to the WCC only “where there is no reasonable
controversy regarding an employee’s claim for workers’ com-
pensation.” Picard v. P & C Group 1, 306 Neb. 292, 302, 945
N.W.2d 183, 193 (2020). See, also, Bower v. Eaton Corp., 301
Neb. 311, 918 N.W.2d 249 (2018). A “reasonable controversy”
for the purpose of § 48-125 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 liabil-
ity 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
WCC about an aspect of an employee’s claim, which conclu-
sions affect allowance or rejection of an employee’s claim, in
whole or in part. Picard v. P & C Group 1, supra. We have
further noted:
Although the total amount of compensation due may be
in dispute, the employer’s insurer nevertheless has a duty
to promptly pay the amount which is undisputed, and the
only legitimate excuse for delay of payment is the exis-
tence of genuine doubt from a medical or legal standpoint
that any liability exists.
Bower v. Eaton Corp., 301 Neb. at 340, 918 N.W.2d at 272.
In its award in this case, the WCC rejected Zoetis’ argu-
ment that there was a reasonable controversy that prevented
an award of penalties and attorney fees under § 48-125. The
WCC found that there was no reasonable controversy solely
because in its answer Zoetis had judicially admitted the alle-
gations in paragraph 3 of Boring’s complaint. The WCC found
that the existence of such admission made Zoetis “liable for
treatment and medical care of [Boring’s] right shoulder and
the payment of weekly benefits” and that because Zoetis’
answer “admit[ted] the accident and injury,” Boring was enti-
tled “to a penalty and attorney’s fees for nonpayment of
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BORING v. ZOETIS LLC
Cite as 309 Neb. 270medical expenses and nonpayment of weekly benefits” under
§ 48-125.
On appeal, the Court of Appeals recognized the admis-
sion in Zoetis’ answer, but reasoned that although Zoetis had
made such admission, “it most certainly denied the nature
and extent of Boring’s injuries.” Boring v. Zoetis LLC, No.
A-20-275, 2020 WL 7227304 at *10 (Neb. App. Dec. 8, 2020)
(selected for posting to court website). The Court of Appeals
noted that the trial in this case was primarily focused on deter-
mining the nature and extent of the injury Boring sustained on
February 7, 2017. The Court of Appeals reasoned that because
“Zoetis did not judicially admit the nature and extent of
Boring’s injuries,” it was necessary for a court to “separately
determine if a reasonable controversy existed as to the nature
and extent of Boring’s injuries as contested by Zoetis.” Id.Because the WCC had not separately evaluated the evidence
to determine whether a reasonable controversy existed, the
Court of Appeals examined the record. The Court of Appeals
reviewed the evidence in the record and stated, inter alia,
that the evidence “would support reasonable but opposite
conclusions by the [WCC] regarding the nature and extent
of Boring’s February 7, 2017, injury.” Id. at *11. Given this
observation, the Court of Appeals determined that the WCC
erred when it found no reasonable controversy and awarded
penalties and attorney fees. The Court of Appeals reversed and
vacated the portion of the WCC award granting such penalties
and attorney fees.
Boring argues that the Court of Appeals’ decision in this
case is contrary to its reasoning in Heesch v. Swimtastic Swim
School, 20 Neb. App. 260, 823 N.W.2d 211 (2012), in which
the employee alleged in her petition that she sustained a back
injury arising out of and in the course of her employment and
the employer admitted that allegation in its answer. The Court
of Appeals in Heesch concluded that the employer’s admis-
sion in its answer was a binding judicial admission and that
therefore, “there was no reasonable controversy about the basic
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BORING v. ZOETIS LLC
Cite as 309 Neb. 270compensability of [the employee’s] workers’ compensation
claim.” 20 Neb. App. at 274, 823 N.W.2d at 222-23. Boring
contends that Heesch is controlling in this case and that Zoetis’
answer admitting paragraph 3 was a judicial admission of the
basic compensability of his workers’ compensation claim.
In response to Boring’s petition for further review, Zoetis
argues that this court’s precedent in Risor v. Nebraska Boiler,
277 Neb. 679, 765 N.W.2d 170 (2009), is controlling. Zoetis
relies on portions of Risor in which we reasoned that under
Neb. Rev. Stat. § 48-168 (Cum. Supp. 2008), the WCC is not
bound by formal rules of procedure, and that furthermore,
formal pleading rules do not preclude an implicit amendment
of pleadings to conform to the evidence when the parties try
issues by consent. Zoetis contends that Boring consented to
trying issues of causation and that there was an implicit amend-
ment of the pleadings which overcame any judicial admission
Zoetis had made in its answer. Zoetis argues that for purposes
of § 48-125, such issues presented a reasonable controversy
that precluded an award of penalties and attorney fees. Zoetis
urges us to affirm the decision of the Court of Appeals.
On further review, we agree with the Court of Appeals
that the WCC’s treatment of penalties and attorney fees was
flawed. As we explain below, the WCC erred when it failed to
examine the trial evidence to determine whether there was a
reasonable controversy. And, although our explanation differs
slightly from the Court of Appeals, we agree with the Court
of Appeals that reversal of the award of penalties and attorney
fees was warranted.
In its answer, Zoetis admitted Boring’s allegation that he
“sustained a work accident and injuries to his right upper
extremity arising out of and in the course of his employment
with” Zoetis. At trial, contrary to this admission, the par-
ties offered, and the court received, a trial stipulation signed
by both parties in which, inter alia, the parties agreed to an
award to which Boring would be entitled “[s]hould the [WCC]
find [Boring] suffered a compensable accident and injury.”
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Cite as 309 Neb. 270Based on this stipulation, the parties agreed to litigate the exis-
tence of a compensable injury and Zoetis was relieved of its
admission. Thereafter, the court allowed into evidence various
exhibits offered by both parties, including medical records to
which we referred earlier, and heard testimony by Boring and
by the person who operated Zoetis’ occupational health clinic.
We have reviewed the evidence; it shows that compensability
and the nature and extent thereof were in controversy.
Comments made by both parties prior to trial recognized
that there was an issue to be tried regarding whether there
was a compensable accident and injury. The WCC asked the
parties’ counsel “what is the argument about here?” Boring’s
counsel responded, “There is a dispute between the doctors as
to medical causation.” Zoetis’ counsel thereafter stated that the
dispute was “a little more than that” and that “the real dispute
is about, not just medical causation but whether there was an
accident at all.” At the close of the evidence, when the WCC
was setting a date for the parties to submit written arguments,
the WCC stated:
[T]he question is, do I pay him or do I not? Do I find he
got hurt on the job or didn’t get hurt on the job? If he got
hurt on the job, then all of the stuff is going to fall into
place. If he didn’t get hurt on the job, then nothing false
[sic] into place. Right?”
We have recognized that pleadings and admissions therein
may be superseded at trial. We have stated that a “pretrial
order is binding upon the parties” and that “the issues set out
in a pretrial order supplant those raised in the pleadings.” Hall
v. County of Lancaster, 287 Neb. 969, 978, 846 N.W.2d 107,
115 (2014), overruled on other grounds, Davis v. State, 297
Neb. 955, 902 N.W.2d 165 (2017). We have also recognized,
“‘A judicial admission is ordinarily final and conclusive upon
the party by whom it was made, unless the trial court, in the
exercise of a judicial discretion, timely relieves [the party]
from that consequence.’” Vermaas v. Heckel, 170 Neb. 321,
325, 102 N.W.2d 647, 652 (1960). Finally, as Zoetis argues,
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Cite as 309 Neb. 270in Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170(2009), we stated that under § 48-168, the WCC is not bound
by formal rules of procedure, and that formal pleading rules do
not preclude an implicit amendment of pleadings to conform
to the evidence when the parties try issues by consent. Each of
the foregoing propositions lends support to our determination
that compensability was an issue at the trial.
We have stated that a judicial admission “constitutes a
waiver of all controversy so far as the adverse party desires to
take advantage of it, and therefore is a limitation of the issues,”
and that a party may “invoke the language of the pleading of
his [or her] adversary on which the case is tried on a particular
issue as rendering certain facts indisputable.” Saberzadeh v.
Shaw, 266 Neb. 196, 199, 663 N.W.2d 612, 615-16 (2003).
In Saberzadeh, we noted that although one party may have
made a judicial admission, the opposing party did not seek
to take advantage of the judicial admission by invoking it at
trial, and we determined that the opposing party was therefore
not relieved of the burden of producing evidence in support of
his allegation.
Applying the foregoing principles, we determine that regard-
less of the fact that Zoetis’ answer included a judicial admis-
sion regarding Boring’s injury, whether Boring suffered a
compensable injury was in fact an issue at trial in this case as
indicated by the stipulation, the comments of the parties and
the WCC, and the evidence. As this case was tried, Boring did
not invoke a judicial admission to relieve himself of the burden
of presenting evidence to establish a compensable injury, and
the WCC found a compensable injury based on the evidence
rather than on a judicial admission.
Because the issue of compensability was not resolved based
on a judicial admission, the WCC’s finding of fact that there
was no reasonable controversy was clear error because such
finding was based entirely on the erroneous premise that the
case had been resolved by a judicial admission rather than by
the evidence. Instead of relying on a judicial admission, the
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Cite as 309 Neb. 270WCC should have recognized the manner in which this case
was actually tried and thereafter looked to the evidence that
was presented in order to make a finding of whether or not
the evidence presented a reasonable controversy. The Court of
Appeals recognized this flaw and reversed the WCC’s award of
penalties and attorney fees.
Because this case is before us on further review, we must
further determine whether the Court of Appeals erred when
it vacated the award of penalties and attorney fees. We find
no error.
As the Court of Appeals recognized, compensability and the
nature and extent of the injury were all at issue at trial. Upon
noticing that the WCC’s finding of reasonable controversy
was problematic, the Court of Appeals observed that “there
was evidence in this record that would support reasonable but
opposite conclusions . . . regarding the nature and extent of
Boring’s February 7, 2017, injury.” Boring v. Zoetis LLC, No.
A-20-275, 2020 WL 7227304 at *10 (Neb. App. Dec. 8, 2020)
(selected for posting to court’s website). As we read the Court
of Appeals’ opinion, at this point, the Court of Appeals deter-
mined that the existence of competing conclusions created a
reasonable controversy and that this was sufficient to reverse
the WCC’s award of penalties and attorney fees. But this
approach implies that the Court of Appeals found, as a question
of fact, that there was a reasonable controversy.
Focusing on an appellate court’s review, two standards inter-
sect. On the one hand, whether a reasonable controversy exists
under § 48-125 is a question of fact. Bower v. Eaton Corp.,
301 Neb. 311, 918 N.W.2d 249 (2018). And an appellate court
reviews a question of fact for clear error. See id. But on the
other hand, where the facts are not in dispute concerning what
is ordinarily a question of fact and where the inference is clear
that reasonable people could not disagree about the matter, the
matter is a question of law. See, Aboytes-Mosqueda v. LFA Inc.,
306 Neb. 277, 944 N.W.2d 765 (2020); A.W. v. Lancaster Cty.
Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (2010). As
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Cite as 309 Neb. 270to questions of law, an appellate court is obligated to make its
own determinations. See Bower v. Eaton Corp., supra.Thus, the correct statement of the appellate exercise is as
follows: Based on a review of this record and disregarding the
purported judicial admissions, could a reasonable fact finder
have made the same decision—that no reasonable controversy
existed? If so, the issue must be remanded to the WCC as the
finder of fact. On the other hand, if the only possible conclu-
sion of a reasonable fact finder, disregarding the purported
admissions, is that a reasonable controversy existed, then the
matter becomes a question of law to be resolved by the appel-
late court.
Applying this exercise, we believe that, as a matter of
law, based on the trial record and disregarding the purported
judicial admissions, a reasonable fact finder could reach only
one conclusion—that a reasonable controversy existed. Given
this determination, the Court of Appeals did not err when it
reversed the WCC’s award of penalties and attorney fees.
CONCLUSION
Neither party sought further review of the portions of the
Court of Appeals’ decision that affirmed the WCC’s order
awarding Boring temporary and permanent benefits, payment
for future medical care, vocational evaluation and vocational
rehabilitation services, and medical bills and mileage. We
therefore affirm those portions of the Court of Appeals’ deci-
sion that affirmed these awards.
With regard to the portion of the Court of Appeals’ decision
that reversed the WCC’s award of penalties and attorney fees
pursuant to § 48-125, for reasoning different from the Court of
Appeals, we affirm.
Affirmed.