Heppler v. Omaha Cable, Inc.

743 N.W.2d 383, 16 Neb. Ct. App. 267, 2007 Neb. App. LEXIS 213
CourtNebraska Court of Appeals
DecidedDecember 18, 2007
DocketA-07-365
StatusPublished

This text of 743 N.W.2d 383 (Heppler v. Omaha Cable, Inc.) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heppler v. Omaha Cable, Inc., 743 N.W.2d 383, 16 Neb. Ct. App. 267, 2007 Neb. App. LEXIS 213 (Neb. Ct. App. 2007).

Opinion

743 N.W.2d 383 (2007)
16 Neb. App. 267

Jerome G. HEPPLER, Appellee,
v.
OMAHA CABLE, INC., Appellant.

No. A-07-365.

Court of Appeals of Nebraska.

December 18, 2007.

*386 Jeffrey A. Silver, Omaha, for appellant.

Brett McArthur and Martin G. Cahill, Dakota City, for appellee.

INBODY, Chief Judge, and CARLSON and CASSEL, Judges.

CASSEL, Judge.

INTRODUCTION

Omaha Cable, Inc., ceased paying temporary total disability benefits to Jerome G. Heppler after making 300 weeks of payments. The trial court overruled Heppler's motion to compel payment of temporary total disability benefits and his motion for penalties and attorney fees. The review panel reversed, ordering the temporary total disability benefits to continue and awarding Heppler $2,500 in attorney fees. Omaha Cable appeals, arguing that Heppler's entitlement to temporary total disability payments ceased after 300 weeks and that Heppler should not have been awarded attorney fees. We conclude that under Neb.Rev.Stat. § 48-121(1) (Reissue 2004), the entitlement to temporary total disability benefits is not limited to 300 weeks. Because Heppler obtained an increase in benefits upon his application for review, the award of attorney fees was appropriate. We therefore affirm the decision of the review panel.

BACKGROUND

Heppler suffered a back injury in an accident arising out of and in the course of his employment with Omaha Cable. In its November 2004 award, the trial court found that Heppler was temporarily totally disabled during certain specified periods of time and that he remained temporarily totally disabled. The court ordered Omaha Cable to pay Heppler $487 per week for 187 weeks of temporary total disability, and a like sum each week for so long as Heppler remained temporarily totally disabled. The award also provided, "If [Heppler's] total disability ceases, he shall be entitled to the statutory amounts of compensation for any residual permanent partial disability or loss of earning capacity due to this accident and injury." Omaha Cable appealed to the review panel, which affirmed the trial court's award. On further appeal to this court, the decision of the review panel was affirmed in a memorandum opinion filed December 5, 2005, in case No. A-05-644.

*387 At some time, Heppler filed a motion to compel payment of temporary total disability benefits and attorney fees. This motion was not made a part of the record on appeal. On June 14, 2006, the trial court held a hearing. Heppler's counsel represented to the court that Heppler was still temporarily totally disabled. The trial court requested confirmation that no application for modification of the award had been filed. Heppler's counsel expressly confirmed that fact, and counsel for Omaha Cable did not disagree. Counsel for Omaha Cable stated that after the November 2004 award, Omaha Cable issued a check for 159 weeks of benefits totaling $77,433, which would bring Heppler up to his 300 weeks of benefits. On July 11, the trial court overruled Heppler's motion to compel payment of temporary total disability benefits and attorney fees and his motion for penalties and attorney fees. On July 19, Heppler filed an application for review.

On March 9, 2007, the review panel entered an order of reversal and remand on review. The order stated that Omaha Cable had not filed an application to modify and remained liable for weekly temporary total disability benefits. We digress to note that notwithstanding the review panel's recitation that Omaha Cable had not filed an application to modify, the record does show that an application to modify had been filed on January 8, 2007. Obviously, based upon the date of filing, the trial court did not consider or take action upon the application to modify. The merits of such application are not before us in the instant appeal. The review panel concluded that the trial court erred in denying Heppler's request for attorney fees and penalties, and it remanded the matter to the trial court for a determination of the same. The review panel reasoned that the trial court did not need to enter an order for continued payment of disability benefits because Omaha Cable was still obligated under the initial award to make such payments. Finally, the review panel awarded Heppler $2,500 in attorney fees because he appealed and received an increase in the award.

Omaha Cable timely appeals.

ASSIGNMENTS OF ERROR

Omaha Cable alleges that the review panel erred in (1) finding that Heppler was entitled to temporary total disability benefits beyond 300 weeks and (2) awarding attorney fees.

STANDARD OF REVIEW

Pursuant to Neb.Rev.Stat. § 48-185 (Reissue 2004), 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 no 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. Davis v. Crete Carrier Corp., 274 Neb. 362, 740 N.W.2d 598 (2007).

Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Id. An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Id.

ANALYSIS

Jurisdiction.

Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues *388 presented by a case. Merrill v. Griswold's, Inc., 270 Neb. 458, 703 N.W.2d 893 (2005). Omaha Cable argues that the July 11, 2006, order was not a final order and that thus, the review panel lacked jurisdiction.

A party may appeal from a court's order only if the decision is a final, appealable order. Merrill v. Griswold's, Inc., supra. Final orders include an order affecting a substantial right made during a special proceeding. See Neb.Rev.Stat. § 25-1902 (Reissue 1995). Special proceedings include workers' compensation cases. See Pfeil v. State, 273 Neb. 12, 727 N.W.2d 214 (2007).

The trial court's July 11, 2006, order overruled Heppler's motion to compel payment of temporary total disability benefits and attorney fees and his motion for penalties and attorney fees. The order eliminated Heppler's claims to temporary total disability benefits in excess of 300 weeks, to penalties, and to attorney fees. We conclude the order affected a substantial right and was a final, appealable order.

Entitlement to Temporary Total Disability Benefits.

Omaha Cable contends that § 48-121 provides for a maximum of 300 weeks of payments for temporary total disability. Upon that belief, Omaha Cable ceased payments after paying a lump sum amount representing the remainder of 300 weeks of payments.

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743 N.W.2d 383, 16 Neb. Ct. App. 267, 2007 Neb. App. LEXIS 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heppler-v-omaha-cable-inc-nebctapp-2007.