Holmes v. Chief Industries, Inc.

747 N.W.2d 24, 16 Neb. Ct. App. 589, 2008 Neb. App. LEXIS 60
CourtNebraska Court of Appeals
DecidedMarch 18, 2008
DocketA-07-550
StatusPublished

This text of 747 N.W.2d 24 (Holmes v. Chief Industries, 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
Holmes v. Chief Industries, Inc., 747 N.W.2d 24, 16 Neb. Ct. App. 589, 2008 Neb. App. LEXIS 60 (Neb. Ct. App. 2008).

Opinion

747 N.W.2d 24 (2008)
16 Neb. App. 589

Edmon T. HOLMES, appellant,
v.
CHIEF INDUSTRIES, INC., appellee.

No. A-07-550.

Court of Appeals of Nebraska.

March 18, 2008.

*25 Brenda S. Spilker and Amanda A. Dutton, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellant.

Mark A. Fahleson and Sarah S. Pillen, of Rembolt Ludtke, L.L.P., Lincoln, for appellee.

SIEVERS, CARLSON, and MOORE, Judges.

SIEVERS, Judge.

Chief Industries, Inc. (Chief), sought and obtained a reduction in Edmon T. *26 Holmes' workers' compensation benefits via an order from a Nebraska Workers' Compensation Court trial judge. Holmes appealed this order to a compensation court review panel that found that Holmes' award had been modified by agreement of the parties pursuant to Neb.Rev.Stat. § 48-141(1) (Reissue 2004), and as a result, the trial judge's reduction of benefits was affirmed. Holmes has now appealed to this court, arguing that no such modification ever occurred.

FACTUAL AND PROCEDURAL BACKGROUND

On September 10, 1997, and September 4, 1998, Holmes was employed as a truckdriver by Chief. On both of those dates, Holmes sustained a compensable injury while on the job, the details of which are not pertinent to this appeal. On March 22, 2000, the compensation court entered an award for Holmes. The relevant portions of that award for this appeal are as follows:

At the time of the accident and injury of September 10, 1997, [Holmes] was receiving an average weekly wage of $340.63 being sufficient to entitle him to benefits of $227.09 for temporary total disability from September 11, 1997 through October 6, 1997, July 23, 1998 through August 6, 1998 and May 26, 1999 through the date of hearing and for so long in the future as [Holmes] shall remain temporarily totally disabled.

(Emphasis supplied.)

On October 9, 2003, Holmes's former attorney, Tony Brock, made a motion to the compensation court for an order approving a lien for attorney fees. On October 16, the compensation court held a hearing in which Chief and Brock participated, but Holmes was not in attendance or represented. Brock had stated in his motion for approval of an attorney's lien that he no longer represented Holmes, and thus he was only appearing for himself. On October 24, the court entered an order finding that Brock was entitled to a lien. The order provided that "Brock represented that [Holmes] now receives permanent indemnity of $45.42 per week which entitles... Brock to an attorney's fee of $15.14 per week." Chief consequently reduced Holmes' periodic disability payments by an amount equal to Brock's attorney's lien.

On January 4, 2006, Holmes filed a motion with the compensation court, asserting, among other things, that no modification had been made to the March 22, 2000, award, which as set forth above gave him a "running" award of temporary total disability (TTD), but that Chief had failed to pay Holmes his weekly benefits required by the running award of TTD. On August 14, 2006, the compensation court trial judge entered an order which found, among other things, that in accordance with § 48-141, a modification had been made to the original award.

Holmes timely appealed the August 14, 2006, order to a compensation court review panel, which affirmed the trial judge's order and dismissed the appeal, citing our decision in Davis v. Crete Carrier Corp., 15 Neb.App. 241, 725 N.W.2d 562 (2006). Holmes now appeals to this court.

ASSIGNMENT OF ERROR

Holmes assigns error to the compensation court's finding that the order of October 24, 2003, was a modification of the March 22, 2000, award, pursuant to § 48-141(1).

STANDARD OF REVIEW

Pursuant to Neb.Rev.Stat. § 48-185 (Reissue 2004), an appellate court may modify, reverse, or set aside a Workers' *27 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 compensation court do not support the order or award. Ortiz v. Cement Products, 270 Neb. 787, 708 N.W.2d 610 (2005). 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. Statutory interpretation presents a question of law. Id. With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination. Id.

ANALYSIS

Holmes contends that there was no modification of the March 22, 2000, award of continuing TTD payments and that the order of October 24, 2003, awarding Brock an attorney's lien is not a modification of the March 22, 2000, award, pursuant to § 48-141. Resolution of this issue requires us to determine the meaning of the October 24, 2003, order as it relates to the provisions of § 48-141. This presents a question of law about which we must make our own determination. See Ortiz v. Cement Products, supra. The pertinent portion of § 48-141 provides:

All amounts paid by an employer or by an insurance company carrying such risk, as the case may be, and received by the employee or his or her dependents by lump-sum payments, approved by order pursuant to section 48-139, shall be final, but the amount of any agreement or award payable periodically may be modified as follows: (1) At any time by agreement of the parties with the approval of the Nebraska Workers' Compensation Court[.]

We now turn to the meaning of the compensation court's judgment entered on October 24, 2003, with respect to Brock's application for an attorney's lien. The meaning of a judgment is determined, as a matter of law, by its contents. See Kerndt v. Ronan, 236 Neb. 26, 458 N.W.2d 466 (1990). In the absence of an ambiguity, the effect of a judgment must be declared in light of the literal meaning of language used. Dougherty v. Swift-Eckrich, 251 Neb. 333, 557 N.W.2d 31 (1996). If the language of a judgment is ambiguous, there is room for construction. Label Concepts v. Westendorf Plastics, 247 Neb. 560, 528 N.W.2d 335 (1995). In ascertaining the meaning of an ambiguous judgment, resort may be had to the entire record. Id. A judgment is ambiguous if a word, phrase, or provision has at least two reasonable but conflicting meanings. See Shivvers v. American Family Ins. Co., 256 Neb. 159, 589 N.W.2d 129 (1999); Kerndt v. Ronan, supra. However, the fact that the parties have suggested opposing meanings of the disputed instrument does not necessarily compel the conclusion that the instrument is ambiguous. Fraternal Order of Police v.

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Related

Ortiz v. Cement Products, Inc.
708 N.W.2d 610 (Nebraska Supreme Court, 2005)
Davis v. Crete Carrier Corp.
725 N.W.2d 562 (Nebraska Court of Appeals, 2006)
ITT Hartford v. Rodriguez
543 N.W.2d 740 (Nebraska Supreme Court, 1996)
Fraternal Order of Police v. County of Douglas
612 N.W.2d 483 (Nebraska Supreme Court, 2000)
Label Concepts v. Westendorf Plastics, Inc.
528 N.W.2d 335 (Nebraska Supreme Court, 1995)
Shivvers v. American Family Insurance
589 N.W.2d 129 (Nebraska Supreme Court, 1999)
Kerndt v. Ronan
458 N.W.2d 466 (Nebraska Supreme Court, 1990)
Dougherty v. Swift-Eckrich, Inc.
557 N.W.2d 31 (Nebraska Supreme Court, 1996)

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747 N.W.2d 24, 16 Neb. Ct. App. 589, 2008 Neb. App. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holmes-v-chief-industries-inc-nebctapp-2008.