Nebraska Revised Statutes
Chapter 48 - Labor
48-125 - Compensation; method of payment; payment by prepaid card; agreement; disclosure of fees or charges; election to rescind agreement; delay; appeal; attorney's fees; interest.

48-125. Compensation; method of payment; payment by prepaid card; agreement; disclosure of fees or charges; election to rescind agreement; delay; appeal; attorney's fees; interest.
(1) Except as hereinafter provided, all amounts of compensation payable under the Nebraska Workers' Compensation Act shall be payable periodically in accordance with the methods of payment of wages of the employee at the time of the injury or death or by a method of payment as provided in subsection (2) of this section. Such payments shall be sent directly to the person entitled to compensation or his or her designated representative except as otherwise provided in section 48-149 or subsection (2) of this section.
(2)(a) After an injury or death subject to the Nebraska Workers' Compensation Act, the employer, workers' compensation insurer, or risk management pool and the employee, the other person entitled to compensation, or a legal representative acting on behalf of such employee or other person entitled to compensation may enter into a written or electronic agreement that periodic or lump-sum payments to the employee or other person entitled to compensation may be made by check or by direct deposit, prepaid card, or similar electronic payment system.
(b) Payments made by direct deposit, prepaid card, or similar electronic payment system pursuant to this subsection shall not be subject to attachment or garnishment or held liable in any way for any debts, except as provided in section 48-149; and an agreement pursuant to this subsection shall include notice of this fact. If an amount is withheld pursuant to section 48-149, sufficient information to identify the jurisdiction, the case number or similar identifying information, and the amount withheld shall be provided to the employee or other person entitled to compensation or his or her legal representative at or near the time of withholding.
(c) Prior to entering into an agreement pursuant to this subsection for payment by prepaid card, the employer, workers' compensation insurer, or risk management pool shall provide to the employee or other person entitled to compensation information regarding the locations where such card may be used by the employee or other person.
(d) Pursuant to an agreement under this subsection, compensation may be transferred by electronic funds transfer or other electronic means to the trust account of an attorney representing the employee or other person entitled to compensation, for the benefit of such employee or other person. The payment or transfer shall include or be accompanied by information sufficient to identify the nature of the payment being made, including the employer, workers' compensation insurer, or risk management pool and the employee or other person entitled to compensation.
(e) If an employer, workers' compensation insurer, or risk management pool imposes any fees or other charges relating to payment by direct deposit, prepaid card, or a similar electronic payment system, prior to entering into an agreement pursuant to this subsection the employer, workers' compensation insurer, or risk management pool shall disclose such fees or charges to the employee or other person entitled to compensation.
(f) Any payment or transfer made pursuant to this subsection by direct deposit, prepaid card, or similar electronic payment system shall be in the full amount of the lump-sum or periodic payment awarded or paid pursuant to section 48-121 to the employee or other person entitled to compensation.
(g) A prepaid card offered by the employer, workers' compensation insurer, or risk management pool shall:
(i) Allow the employee or other person entitled to compensation to apply, initiate, transfer, and load payments with no charge by the employer, workers' compensation insurer, or risk management pool;
(ii) For the initial prepaid card, be distributed or delivered to the employee or other person entitled to compensation with no charge by the employer, workers' compensation insurer, or risk management pool; and
(iii) Provide the employee or other person entitled to compensation, with respect to each payment made to the prepaid card in accordance with this subsection, at least one method of accessing the full payment without fees.
(h) An employee, another person entitled to compensation, or a legal representative acting on behalf of such employee or other person entitled to compensation may elect at any time to rescind the agreement under this subsection regarding the method of payment by providing written or electronic notice of such rescission to the employer, workers' compensation insurer, or risk management pool that is a party to such agreement. If such election is made, the employer, workers’ compensation insurer, or risk management pool shall change the method of payment to the method of payment of wages of the employee at the time of the injury or death under subsection (1) of this section as soon as practicable after receiving the information necessary to do so and in a manner that allows the employer, workers’ compensation insurer, or risk management pool to comply with the requirements of subsection (3) of this section without making a delinquent payment. The employer, workers’ compensation insurer, or risk management pool is not required to rescind any payment transaction already made or made to comply with subsection (3) of this section.
(i) An employer, a workers' compensation insurer, or a risk management pool or an agent of any such entity shall not engage in unfair, deceptive, or abusive practices in relation to the method of payment. No employer, workers' compensation insurer, risk management pool, or agent of any such entity shall discharge, penalize, or in any other manner discriminate against any employee or other person entitled to compensation because such employee or other person has not consented to receive payments by check or by direct deposit, prepaid card, or a similar electronic payment system.
(j) An employer, workers' compensation insurer, or risk management pool that elects to make payment using a prepaid card shall comply with the requirements of 12 C.F.R. part 1005, as such part existed on April 1, 2018.
(3) Fifty percent shall be added for waiting time for all delinquent payments after thirty days' notice has been given of disability or after thirty days from the entry of a final order, award, or judgment of the Nebraska Workers' Compensation Court, except that for any award or judgment against the state in excess of one hundred thousand dollars which must be reviewed by the Legislature as provided in section 48-1,102, fifty percent shall be added for waiting time for delinquent payments thirty days after the effective date of the legislative bill appropriating any funds necessary to pay the portion of the award or judgment in excess of one hundred thousand dollars.
(4)(a) Whenever the employer refuses payment of compensation or medical payments subject to section 48-120, or when the employer neglects to pay compensation for thirty days after injury or neglects to pay medical payments subject to such section after thirty days' notice has been given of the obligation for medical payments, and proceedings are held before the compensation court, a reasonable attorney's fee shall be allowed the employee by the compensation court in all cases when the employee receives an award. Attorney's fees allowed shall not be deducted from the amounts ordered to be paid for medical services nor shall attorney's fees be charged to the medical providers.
(b) If the employer files an appeal from an award of a judge of the compensation court and fails to obtain any reduction in the amount of such award, the Court of Appeals or Supreme Court shall allow the employee a reasonable attorney's fee to be taxed as costs against the employer for such appeal.
(c) If the employee files an appeal from an order of a judge of the compensation court denying an award and obtains an award or if the employee files an appeal from an award of a judge of the compensation court when the amount of compensation due is disputed and obtains an increase in the amount of such award, the Court of Appeals or Supreme Court may allow the employee a reasonable attorney's fee to be taxed as costs against the employer for such appeal.
(d) A reasonable attorney's fee allowed pursuant to this subsection shall not affect or diminish the amount of the award.
(5) When an attorney's fee is allowed pursuant to this section, there shall further be assessed against the employer an amount of interest on the final award obtained, computed from the date compensation was payable, as provided in section 48-119, until the date payment is made by the employer. For any injury occurring prior to August 30, 2015, the interest rate shall be equal to the rate of interest allowed per annum under section 45-104.01, as such rate may from time to time be adjusted by the Legislature. For any injury occurring on or after August 30, 2015, the interest rate shall be equal to six percentage points above the bond investment yield, as published by the Secretary of the Treasury of the United States, of the average accepted auction price for the first auction of each annual quarter of the twenty-six-week United States Treasury bills in effect on the date of entry of the judgment. Interest shall apply only to those weekly compensation benefits awarded which have accrued as of the date payment is made by the employer. If the employer pays or tenders payment of compensation, the amount of compensation due is disputed, and the award obtained is greater than the amount paid or tendered by the employer, the assessment of interest shall be determined solely upon the difference between the amount awarded and the amount tendered or paid.
(6) For purposes of this section:
(a) Direct deposit means the transfer of payments into an account of a financial institution chosen by the employee or other person entitled to compensation; and
(b) Prepaid card means a prepaid debit card that provides access to an account with a financial institution established directly or indirectly by the employer, workers' compensation insurer, or risk management pool to which payments are transferred.
Source

Annotations

1. Attorney's fees allowed


2. Attorney's fees not allowed


3. Reasonable controversy


4. Waiting time


5. Miscellaneous


1. Attorney's fees allowed


The requested fees need not have been incurred under a fee agreement in order to be recoverable as reasonable attorney fees under subdivision (4)(b) of this section. Sellers v. Reefer Systems, 305 Neb. 868, 943 N.W.2d 275 (2020).


Interest that is assessed when a claimant is awarded attorney fees on an enforcement motion is calculated from the time each installment of benefits became due to the date of payment, rather than being assessed on the full amount of benefits owed from the first date that compensation was payable. Russell v. Kerry, Inc., 278 Neb. 981, 775 N.W.2d 420 (2009).


An employee is entitled to reasonable attorney fees when he or she obtains an increase, however trivial, in the amount of a workers' compensation award upon review. Hagelstein v. Swift-Eckrich, Div. of ConAgra, 261 Neb. 305, 622 N.W.2d 663 (2001).


Payment of a court-approved lump-sum settlement is subject to the provisions of this section. Hollandsworth v. Nebraska Partners, 260 Neb. 756, 619 N.W.2d 579 (2000).


Pursuant to subsection (1) of this section, the phrase "reduction in the amount of such award" includes an attempt to apportion the responsibility for payment of an award among insurers and the Second Injury Fund. The elements required to establish the Second Injury Fund's liability are (1) a prior permanent partial disability known to the employer and hindering the employee's employability, (2) a subsequent compensable injury causing permanent disability to the employee, and (3) a combined permanent disability substantially greater in degree or percentage than would have resulted from the subsequent injury considered alone. The Second Injury Fund's liability cannot be determined until and unless the employee's subsequent injury is permanent. Miller v. Meister & Segrist, 255 Neb. 805, 587 N.W.2d 399 (1998).


The Second Injury Fund is "employer" within the meaning of this section. If the Second Injury Fund, on appeal, fails to obtain reduction of award of Workers' Compensation Court on rehearing, employee is entitled to reasonable attorney fees for appeal, to be assessed against the Second Injury Fund. Sherard v. Bethphage Mission, Inc., 236 Neb. 900, 464 N.W.2d 343 (1991).


Mere reduction of one aspect of the compensation award without a corresponding reduction of the total award does not mean that the employer obtained a reduction of the award such that the employee is not entitled to an attorney fee. Schlotfeld v. Mel's Heating & Air Conditioning, 233 Neb. 488, 445 N.W.2d 918 (1989).


Where there is no reasonable controversy regarding an employee's entitlement to workers' compensation, this section authorizes an award to the employee of an attorney fee and a fifty-percent payment for waiting time on delinquent payments. Roesler v. Farmland Foods, 232 Neb. 842, 442 N.W.2d 398 (1989).


Where an award for permanent partial disability is made on rehearing, following an award for temporary total disability, the employee is entitled to an award of attorney fees on the rehearing. Mulder v. Minnesota Mining & Mfg. Co., 219 Neb. 241, 361 N.W.2d 572 (1985).


An amendment to a workmen's compensation statute which provides for the payment of attorney fees relates to the remedy and affects procedure only, and does not interfere with substantive rights. Therefore, such fees as are provided may be taxed as an item of costs in entering judgment on a claim that arose before the amendatory act was passed. Smith v. Fremont Contract Carriers, 218 Neb. 652, 358 N.W.2d 211 (1984).


Statutory language, "reduction in the amount of such award", ordinarily refers to the total amount of the award to the employee and not to a reduction in the amount to be paid by a specific defendant who is liable to pay a portion of the award. The Second Injury Fund, within the meaning of this section, is an employer and if, on appeal to this court, it fails to obtain any reduction in the amount of the award on rehearing, the employee is entitled to a reasonable sum as attorney fees in this court, to be assessed against the fund. Pollard v. Wright's Tree Service, Inc., 212 Neb. 187, 322 N.W.2d 397 (1982).


Where an employer applies for a rehearing from an award by a single judge of the Workmen's Compensation Court and obtains a reduction in the award, the Workmen's Compensation Court should not allow the employee attorney fees for the rehearing. But if the employer then appeals to this court and fails to obtain a further reduction, then the employee should be awarded attorney fees for the appeal. Goers v. Bud Irons Excavating, 207 Neb. 579, 300 N.W.2d 29 (1980).


Attorney's fee of one thousand five hundred dollars allowed to claimant-appellee. Alcaraz v. Wilson & Co., Inc., 207 Neb. 255, 298 N.W.2d 160; Mohr v. Soil Mover Manufacturing Co., 207 Neb. 261, 298 N.W.2d 166 (1980).


Reasonable attorney's fee normally allowed where compensation court award is not reduced on appeal. Harrington v. State, 198 Neb. 4, 251 N.W.2d 653 (1977).


A reasonable attorney's fee is generally granted an employee if the employer appeals but fails to obtain a reduction of the award. Weikhorst v. Rural Electric Co., Inc., 186 Neb. 445, 183 N.W.2d 747 (1971).


Where award of compensation was affirmed, employee was entitled to an attorney's fee for services of attorney in Supreme Court. Welke v. City of Ainsworth, 179 Neb. 496, 138 N.W.2d 808 (1965).


Attorney's fee was properly awarded to plaintiff's attorneys upon affirmance of award for permanent total disability. Haskett v. National Biscuit Co., 177 Neb. 915, 131 N.W.2d 597 (1964).


Attorney's fee was properly allowed for services in Supreme Court. Appleby v. Great Western Sugar Co., Inc., 176 Neb. 102, 125 N.W.2d 103 (1963).


Allowance of attorney's fee was proper. Shada v. Whitney, 172 Neb. 220, 109 N.W.2d 167 (1961).


When employer refuses to pay compensation, attorney's fee can be allowed for services in compensation court. Pavel v. Hughes Brothers, Inc., 167 Neb. 727, 94 N.W.2d 492 (1959).


Where award of workmen's compensation court was affirmed, attorney's fee was properly allowed. Sears v. City of Omaha, 164 Neb. 869, 83 N.W.2d 857 (1957).


Where employer on appeal failed to obtain reduction in award, attorney's fee was authorized. Haler v. Gering Bean Co., 163 Neb. 748, 81 N.W.2d 152 (1957).


Statute limits the right to an attorney's fee to a specific situation. Fidelity & Casualty Co. v. Kennard, 162 Neb. 220, 75 N.W.2d 553 (1956).


Where employer failed to secure reduction of award, attorney's fee was authorized. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).


Attorney's fee was properly allowed. Dietz v. State, 157 Neb. 324, 59 N.W.2d 587 (1953).


Attorney's fee was allowed for services in Supreme Court. Schneider v. Village of Shickley, 156 Neb. 683, 57 N.W.2d 527 (1953).


Where employer failed to secure reduction in award on appeal to Supreme Court, attorney's fee was allowable. Anderson v. Bituminous Casualty Co., 155 Neb. 590, 52 N.W.2d 814 (1952).


Allowance of attorney's fee was proper. Miller v. Schlereth, 152 Neb. 805, 42 N.W.2d 865 (1950).


Where employer fails to obtain reduction of award in both district and Supreme Court, attorney's fee in each court may be allowed. Werner v. Nebraska Power Co., 149 Neb. 408, 31 N.W.2d 315 (1948).


Where employer appeals from award of district court and fails to obtain reduction in amount of award, Supreme Court will allow attorneys' fees for services in appellate court. McRae v. Ulrich, Inc., 147 Neb. 214, 22 N.W.2d 697 (1946).


When employer appeals to Supreme Court from an award of compensation and fails to obtain reduction in amount of award, Supreme Court will allow employee a reasonable attorney's fee. Gilmore v. State, 146 Neb. 647, 20 N.W.2d 918 (1945).


Attorney's fee should be allowed whenever employer appeals to district court and fails to obtain reduction in amount of award. Weitz v. Johnson, 143 Neb. 452, 9 N.W.2d 788 (1943).


Where award of compensation by district court is affirmed upon appeal, a reasonable attorney's fee for appellate services is taxable against employer as costs. Chatt v. Massman Construction Co., 138 Neb. 288, 293 N.W. 105 (1940).


Amendment of statute allowing attorneys' fees affected remedy only and applied to cases which arose prior to the amendment. Solomon v. A. W. Farney, Inc., 136 Neb. 338, 286 N.W. 254 (1939).


Allowance for services in Supreme Court was proper. Ludwickson v. Central States Electric Co., 135 Neb. 371, 281 N.W. 603 (1938).


Additional attorney's fee for services in Supreme Court should be allowed where no reduction in award is obtained. Perkins v. Young, 133 Neb. 234, 274 N.W. 596 (1937).


Where employer on appeal to district court secured reduction in award, employee was not entitled to attorney's fees there, but where further appeal was taken to Supreme Court and no further reduction obtained, attorney's fees for services in appellate court were proper. Harmon v. J. H. Wiese Co., 121 Neb. 137, 236 N.W. 186 (1931).


Compensation claimant is entitled to reasonable attorney's fees, where appealing employer fails to reduce award. Davis v. Lincoln County, 117 Neb. 148, 219 N.W. 899 (1928); Western Newspaper Union v. Dee, 108 Neb. 303, 187 N.W. 919 (1922); Derr v. Kirkpatrick, 106 Neb. 403, 184 N.W. 91 (1921); Ulaski v. Morris & Co., 106 Neb. 782, 184 N.W. 946 (1921).


Additional fees are allowable for services in Supreme Court where appealing employer fails to reduce award. Lincoln Gas & Electric Light Co. v. Watkins, 113 Neb. 619, 204 N.W. 391 (1925); Derr v. Kirkpatrick, 106 Neb. 403, 184 N.W. 91 (1921).


When an attorney fee is allowed pursuant to this section, interest shall be assessed on the final award of weekly compensation benefits, not "medical payments." Bronzynski v. Model Electric, 14 Neb. App. 355, 707 N.W.2d 46 (2005).


An award of attorney fees under this section was remanded for evidence and specific findings as to the appropriate amount in accordance with Harmon v. Irby Constr. Co., 258 Neb. 420, 604 N.W.2d 813 (1999). Cochran v. Bill's Trucking, 10 Neb. App. 48, 624 N.W.2d 338 (2001).


The Second Injury Fund is an employer for purposes of this section. If the Second Injury Fund files an unsuccessful appeal, attorney fees are to be taxed against the Second Injury Fund and not against the employer. Bryson v. Vickers, Inc., 7 Neb. App. 595, 584 N.W.2d 44 (1998).


2. Attorney's fees not allowed


By filing a release pursuant to section 48-139(3), a worker waives his or her right to ask for penalties and attorney fees under this section. Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 (2013).


Because the employee did not receive an award in a proceeding before the compensation court, attorney fees cannot be awarded under subsection (1) of this section. The unequivocal language of this section clearly reads that an award of attorney fees is a prerequisite before interest on the compensation amount due to a claimant may be awarded under subsection (2) of this section. Blizzard v. Chrisman's Cash Register Co., 261 Neb. 445, 623 N.W.2d 655 (2001).


An employee is not entitled to an award of attorney fees when the employer, on appeal, obtains a reduction in the employee's overall award. Ira v. Swift-Eckrich, 251 Neb. 411, 558 N.W.2d 40 (1997).


This statute does not authorize the award of an attorney fee where there exists a reasonable controversy between the parties as to the entitlement of compensation. Beavers v. IBP, Inc., 222 Neb. 647, 385 N.W.2d 896 (1986).


If the employer received a reduction of the award of the compensation court, the employee's attorney fees in this court will not be taxed as costs against the employer. Hare v. Watts Trucking Service, 220 Neb. 403, 370 N.W.2d 143 (1985).


In a workmen's compensation case an employee may not withhold evidence of medical expense at the first hearing, inadvertent though it might be, and then claim on rehearing that an attorney fee should be awarded because the award was increased. Smith v. Fremont Contract Carriers, 218 Neb. 652, 358 N.W.2d 211 (1984).


Where an employer has obtained a termination of a previous running award for temporary total disability, it cannot be said that such employer has failed to obtain "any reduction in the amount of such award" so as to be liable for attorney fees within the meaning of this statute. Butler v. Midwest Supply Co., 212 Neb. 421, 322 N.W.2d 815 (1982).


Where an employer applies for a rehearing from an award by a single judge of the Workmen's Compensation Court and obtains a reduction in the award, the Workmen's Compensation Court should not allow the employee attorney fees for the rehearing. But if the employer then appeals to this court and fails to obtain a further reduction, then the employee should be awarded attorney fees for the appeal. Goers v. Bud Irons Excavating, 207 Neb. 579, 300 N.W.2d 29 (1980).


Under facts in this case, an award of an attorney's fee was not permitted. Reis v. Douglas County Hospital, 193 Neb. 542, 227 N.W.2d 879 (1975).


No attorney fee may be assessed against employer who offered no evidence in compensation court and alleged the award was correct and should be affirmed in the district court. Breed v. Interstate Glass Co., 188 Neb. 284, 196 N.W.2d 169 (1972).


An attorney's fee cannot be allowed for legal services where employer obtains a reduction of award on his appeal. Harrington v. Missouri Valley Constr. Co., 182 Neb. 434, 155 N.W.2d 355 (1967).


Where district court denied an award of compensation, attorney's fee was not authorized on reversal by Supreme Court. Tilghman v. Mills, 169 Neb. 665, 100 N.W.2d 739 (1960).


Where appealing party is not employer, attorney's fee cannot be allowed. Franzen v. Blakley, 155 Neb. 621, 52 N.W.2d 833 (1952).


Attorney's fee allowed for services in district court but disallowed in Supreme Court where district court increased award and Supreme Court reduced it. Solheim v. Hastings Housing Co., 151 Neb. 264, 37 N.W.2d 212 (1949).


Where employer secured modification of award in Supreme Court, attorney's fee in that court could not be allowed. Sporcic v. Swift & Co., 149 Neb. 489, 31 N.W.2d 404, modifying 149 Neb. 246, 30 N.W.2d 891 (1948).


The right to tax attorney's fees in compensation cases is purely statutory, and award for services rendered in compensation court is not authorized. Faulhaber v. Roberts Dairy Co., 147 Neb. 631, 24 N.W.2d 571 (1946).


When plaintiff is denied award in both compensation court and district court, Supreme Court cannot allow attorney's fee. Elliott v. Gooch Feed Mill Co., 147 Neb. 309, 23 N.W.2d 262 (1946).


Attorney's fee is not allowable to employee who appeals from adverse decision in the district court which denied an award of compensation and Supreme Court holds employee entitled to compensation. Lee v. Lincoln Cleaning & Dye Works, 145 Neb. 124, 15 N.W.2d 330 (1944).


Section does not authorize allowance of attorney's fees where employee takes an appeal. Rexroat v. State, 143 Neb. 333, 9 N.W.2d 305 (1943).


Attorney's fee is not allowable where an employee is denied recovery in compensation court, and, on appeal to district court, an award of compensation is made. Schirmer v. Cedar County Farmers Tel. Co., 139 Neb. 182, 296 N.W. 875 (1941).


Allowance of attorney's fee is erroneous where employer has not neglected or refused to pay compensation, or appealed from an award made to the employee. Wilson v. Brown-McDonald Co., 134 Neb. 211, 278 N.W. 254 (1938).


Where district court, on appeal from compensation commissioner, fixed date when payment of compensation should begin at later date than that fixed by compensation commissioner, such change amounted to reduction of the award, and district court had no authority to allow attorney's fee for plaintiff's attorney. Mulvey v. City of Lincoln, 131 Neb. 279, 267 N.W. 459 (1936).


Where employer is entitled to a reduction on appeal, employee is not entitled to an attorney's fee. Truka v. McDonald, 127 Neb. 780, 257 N.W. 232 (1934).


Where employer on appeal to district court secured reduction in award, employee was not entitled to attorney's fees there, but where further appeal was taken to Supreme Court and no further reduction obtained, attorney's fees for services in appellate court were proper. Harmon v. J. H. Wiese Co., 121 Neb. 137, 236 N.W. 186 (1931).


Compensation claimant is not entitled to attorney's fee where he, and not employer, appeals. Updike Grain Co. v. Swanson, 104 Neb. 661, 178 N.W. 618 (1920).


3. Reasonable controversy


A reasonable controversy existed due to an unanswered question of law regarding the timing of permanent disability payments in a case involving an amputation. Melton v. City of Holdrege, 309 Neb. 385, 960 N.W.2d 298 (2021).


A "reasonable controversy" for the purpose of this section 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) 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. Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).


Whether a reasonable controversy exists under this section is a question of fact. Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).


For the purposes of this section, 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. When there is some conflict in the medical testimony adduced at trial, reasonable but opposite conclusions could be reached by the compensation court. Nichols v. Fairway Bldg. Prods., 294 Neb. 657, 884 N.W.2d 124 (2016).


A reasonable controversy between an employer and an employee as to the payment of workers' compensation benefits can be shown by evidence adduced at trial but unknown at the time benefits were denied. Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (2015).


A reasonable controversy under this section may exist if the properly adduced evidence would support reasonable but opposite conclusions by the Workers' Compensation Court concerning an aspect of an employee's claim for workers' compensation, which conclusions affect allowance or rejection of an employee's claim, in whole or in part. Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008).


To avoid the penalty provided for in this section, an employer need not prevail in the employee's claim—it simply must have an actual basis in law or fact for disputing the claim and refusing compensation. Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008).


Whether a reasonable controversy exists under this section is a question of fact. Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008); Carter v. Weyerhaeuser Co., 234 Neb. 558, 452 N.W.2d 32 (1990); Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006).


A reasonable controversy under this section may exist (1) if there is a question of law previously unanswered by the appellate courts, 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 Nebraska Workers' Compensation Court concerning an aspect of an employee's claim for workers' compensation, which conclusions affect allowance or rejection of an employee's claim, in whole or in part. To avoid the penalty provided for in this section, an employer need not prevail in the employee's claim, but must have an actual basis in law or fact for disputing the claim and refusing compensation. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003).


This section authorizes a 50-percent penalty payment for waiting time involving delinquent payment of compensation and an attorney fee, where there is no reasonable controversy regarding an employee's claim for workers' compensation. A reasonable controversy may exist if 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. Hobza v. Seedorff Masonry, Inc., 259 Neb. 671, 611 N.W.2d 828 (2000).


This section authorizes a 50-percent penalty payment for waiting time where the employer fails to pay compensation after 30 days' notice of the disability and where no reasonable controversy exists regarding the employee's claim for benefits. Waiting-time penalties apply to final adjudicated awards or final orders of the Workers' Compensation Court. The purpose of the 30-day waiting-time penalty and the provision for attorney fees is to encourage prompt payment by making delay costly if the award has been finally established. The only legitimate excuse for delay in the payment of workers' compensation benefits is the existence of a genuine dispute from a medical or legal standpoint that any liability exists, and the fact that an employer is considering an appeal with no appeal actually filed is not sufficient evidence to sustain a finding of genuine medical or legal doubt as to liability. Gaston v. Appleton Elec. Co., 253 Neb. 897, 573 N.W.2d 131 (1998).


This section authorizes a 50-percent penalty payment for waiting time where the employer fails to pay compensation after 30 days' notice of the disability and where no reasonable controversy exists regarding the employee's claim for benefits. Waiting-time penalties apply to final adjudicated awards. The purpose of the 30-day waiting-time penalty and the provision for attorney fees is to encourage prompt payment by making delay costly if the award has been finally established. The only legitimate excuse for delay in the payment of workers' compensation benefits is the existence of a genuine dispute from a medical or legal standpoint that any liability exists, and the fact that an employer is considering filing an application for review with no such application actually filed is not a sufficient reason to sustain a finding of genuine medical or legal doubt as to liability. In order to refrain from paying workers' compensation benefits and to avoid the penalty assessable under this section, the employer must demonstrate that he or she has an actual basis, in law or fact, for disputing the employee's claim. Roth v. Sarpy Cty. Highway Dept., 253 Neb. 703, 572 N.W.2d 786 (1998).


The concept of the presence of a reasonable controversy is to be applied only to the determination as to whether an employee is entitled to the statutory penalties, not including attorney fees, as set out in this section. Snyder v. IBP, Inc., 235 Neb. 319, 455 N.W.2d 157 (1990).


Under this section, the concept of reasonable controversy is to be applied only to determinations of statutory penalties, not including attorney fees. Behrens v. American Stores Packing Co., 234 Neb. 25, 449 N.W.2d 197 (1989).


Although the total amount of compensation may be in dispute, the employer has a duty to promptly pay any undisputed compensation, and the only legitimate excuse for delay of compensation is the existence of genuine doubt from a medical or legal standpoint that any liability exists. Musil v. J.A. Baldwin Manuf. Co., 233 Neb. 901, 448 N.W.2d 591 (1989).


To avoid the payments assessable under this section, an employer need not prevail in opposition to an employee's claim for compensation, but must have an actual basis, in law or fact, for disputing the employee's claim and refraining from payment of compensation. Musil v. J.A. Baldwin Manuf. Co., 233 Neb. 901, 448 N.W.2d 591 (1989).


Whether a reasonable controversy exists for the purpose of determining whether an attorney fee or delay penalty should be awarded under the provisions of this section is a question of fact. Roesler v. Farmland Foods, 232 Neb. 842, 442 N.W.2d 398 (1989).


Whether a reasonable controversy exists under this section is a question of fact for the Workers' Compensation Court. Tlamka v. Goodyear Tire & Rubber Co., 225 Neb. 789, 408 N.W.2d 291 (1987).


Reasonable controversy existed requiring denial of waiting time. Attorney's fee was properly allowed. Shamburg v. Shamburg, 153 Neb. 495, 45 N.W.2d 446 (1950).


A reasonable controversy under this section may exist (1) if there is a question of law previously unanswered by the appellate courts, 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 Nebraska Workers' Compensation Court concerning an aspect of an employee's claim for workers' compensation, which conclusions affect allowance or rejection of an employee's claim, in whole or in part. Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006); Milliken v. Premier Indus., 13 Neb. App. 330, 691 N.W.2d 855 (2005).


To avoid the penalty provided for in this section, an employer need not prevail in the employee's claim, but must have an actual basis in law or fact for disputing the claim and refusing compensation. Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006).


To avoid the penalty provided for in this section, an employer need not prevail in the employee's claim, but must have an actual basis in law or fact for disputing the claim and refusing compensation. Milliken v. Premier Indus., 13 Neb. App. 330, 691 N.W.2d 855 (2005).


The fact that an insurance company makes a settlement offer by itself does not show the existence of a reasonable controversy regarding the employee's claim for benefits pursuant to this section. Kubik v. Union Ins. Co., 4 Neb. App. 831, 550 N.W.2d 691 (1996).


4. Waiting time


This section authorizes a 50-percent penalty payment for waiting time involving delinquent payment of compensation and an attorney fee, where there is no reasonable controversy regarding an employee's claim for workers' compensation. Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).


This section authorizes a 50-percent payment for waiting time involving delinquent payment of compensation and attorney fees where there is no reasonable controversy regarding an employee's claim for workers' compensation. Nichols v. Fairway Bldg. Prods., 294 Neb. 657, 884 N.W.2d 124 (2016); Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280 (1987); Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006); Milliken v. Premier Indus., 13 Neb. App. 330, 691 N.W.2d 855 (2005).


The waiting-time penalty and attorney fees for waiting-time proceedings provided under this section are rights under the Nebraska Workers' Compensation Act. Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 (2013).


No waiting-time penalty is required for an employer's delinquent payment of medical expenses, because such expenses do not constitute compensation within the meaning of this section. VanKirk v. Central Community College, 285 Neb. 231, 826 N.W.2d 277 (2013).


Even if an employer disputes in good faith the total compensation owed a claimant pending trial, the employer must pay any portion of the claim for which it admits liability. Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009).


If an appellate court determines that no reasonable controversy existed regarding a claim for workers' compensation benefits, the employer must pay waiting-time penalties from the date of the award until it pays the benefits under the appellate court's mandate. Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009).


There are two circumstances under this section in which the 30-day time limit applies for the payment of compensation: (1) upon the employee's notice of disability if no reasonable controversy exists regarding the claim or (2) after a final adjudicated award if one of the parties appeals and a reasonable controversy existed regarding the claim pending trial. Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009).


When a party appeals a workers' compensation award to an appellate court, the award is not final and the waiting-time period for payment of benefits does not commence to run until the appellate court's mandate is filed in the Workers' Compensation Court. Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009).


Where a reasonable controversy exists between an employer and an employee as to the payment of workers' compensation, the employer is not liable for the waiting-time penalties during the time the case is pending in the courts for final determination. Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009).


Under former law, in order to harmonize this section and sections 48-199 and 48-1,102 in the context of waiting-time penalties in a manner which is consistent with the overall purpose of the Nebraska Workers' Compensation Act, the Supreme Court holds that in order to avoid assessment of a waiting-time penalty with respect to that portion of a workers' compensation award against the State which exceeds $50,000, the State must request review and appropriation of such amount during the first legislative session following the date the award became final and must pay such amount within 30 calendar days after the approval of the appropriation by the Legislature. Soto v. State, 270 Neb. 40, 699 N.W.2d 819 (2005).


Under former law, with respect to that portion of a workers' compensation award against the State which exceeds $50,000, the 30-day period specified in subsection (1) of this section does not begin until the first day after the judgment becomes final on which the State could request review and appropriation pursuant to section 48-1,102 during a regular session of the Legislature. A waiting-time penalty may be assessed pursuant to this section if payment is not made within 30 calendar days thereafter. Soto v. State, 269 Neb. 337, 693 N.W.2d 491 (2005).


Under former law, for purposes of subsection (1) of this section, compensation sent within 30 days of the notice of disability or the entry of a final order, award, or judgment of compensation is not delinquent. Brown v. Harbor Fin. Mortgage Corp., 267 Neb. 218, 673 N.W.2d 35 (2004).


This section authorizes a 50-percent penalty payment for waiting time involving the delinquent payment of compensation and an attorney fee, where there is no reasonable controversy regarding an employee's claim for workers' compensation. Whether a reasonable controversy exists pertinent to this section is a question of fact. McBee v. Goodyear Tire & Rubber Co., Inc., 255 Neb. 903, 587 N.W.2d 687 (1999).


Pursuant to subsection (1) of this section, a workers' compensation insurer's bad faith refusal to timely authorize needed medical treatment for an employee's work-related injury is completely intertwined with the employee's work-related injury; thus, the employee's remedy is limited to that provided for under the Nebraska Workers' Compensation Act. Ihm v. Crawford & Co., 254 Neb. 818, 580 N.W.2d 115 (1998).


Pursuant to subsection (1) of this section, where the total amount of compensation due for permanent disability is in dispute, the employer has a duty under the provisions of subsection (1) to pay within 30 days of the notice of disability any undisputed compensation; the only legitimate excuse for delay in the payment is the existence of a genuine dispute from a medical or legal standpoint that any liability exists. Grammer v. Endicott Clay Products, 252 Neb. 315, 562 N.W.2d 332 (1997).


Under this section, the 50-percent penalty for waiting time applies only when payments are delinquent after 30 days' notice has been given of disability or there is no reasonable controversy and the employer refuses payment or neglects to pay compensation for 30 days after injury. In the latter situation, a reasonable attorney fee shall be allowed if the employee receives an award after proceedings in the compensation court. Briggs v. Consolidated Freightways, 234 Neb. 410, 451 N.W.2d 278 (1990).


Where there is no reasonable controversy regarding an employee's entitlement to workers' compensation, this section authorizes award to the employee of an attorney fee and a 50-percent payment for waiting time on delinquent payments, and the worker is entitled to recover interest on the payments which have accrued at the time payment is made by the employer. Musil v. J.A. Baldwin Manuf. Co., 233 Neb. 901, 448 N.W.2d 591 (1989).


Where there is no reasonable controversy regarding an employee's claim for workers' compensation, this section authorizes the award to the employee of an attorney fee and a fifty-percent payment for waiting time on delinquent payments. Rodriquez v. Prime Meat Processors, 228 Neb. 55, 421 N.W.2d 32 (1988).


Where a reasonable controversy exists between the parties as to the payment of workers' compensation, which is a fact question, an injured employee is not entitled to the statutory penalties for waiting time. McGee v. Panhandle Technical Sys., 223 Neb. 56, 387 N.W.2d 709 (1986).


The right to tax attorney fees is purely statutory, and where a reasonable controversy exists between the parties as to the payment of compensation, an injured employee is not entitled to the statutory penalties for waiting time. Savage v. Hensel Phelps Constr. Co., 208 Neb. 676, 305 N.W.2d 375 (1981).


The provision of this section providing added amount for waiting time does not impose a penalty to an individual within prohibition of Article VII, section 5, of the Constitution. University of Nebraska at Omaha v. Paustian, 190 Neb. 840, 212 N.W.2d 704 (1973).


Penalty for delinquent payments not allowable where delay is due to a reasonable controversy as to amount and number of payments and litigation required to determine limitation. Marshall v. Columbus Steel Supply, 187 Neb. 102, 187 N.W.2d 607 (1971).


Waiting time begins to run when employer receives notice of disability, not when notice given to carrier. Gill v. Hrupek, 184 Neb. 436, 168 N.W.2d 377 (1969).


Penalty for waiting time should not be allowed where reasonable controversy exists. Wheeler v. Northwestern Metal Co., 175 Neb. 841, 124 N.W.2d 377 (1963).


Where defense made raised a question of law of first impression, waiting time penalty was not appropriate. Hauff v. Kimball, 163 Neb. 55, 77 N.W.2d 683 (1956).


Where reasonable controversy exists, imposition of penalty for waiting time is not authorized. Faulhaber v. Roberts Dairy Co., 147 Neb. 631, 24 N.W.2d 571 (1946).


Where reasonable controversy exists between an employer and an employee as to employer's liability, employer is not liable for penalty for waiting time or for allowance of attorney's fees. Redfern v. Safeway Stores, Inc., 145 Neb. 288, 16 N.W.2d 196 (1944).


Where contentions of employer present a reasonable controversy, penalty for waiting time will not be allowed, although a reasonable attorney's fee should be allowed for appellate services where award is affirmed. Dobesh v. Associated Asphalt Contractors, Inc., 138 Neb. 117, 292 N.W. 59 (1940).


Where a reasonable controversy exists, employer is not liable for penalty for waiting time during the time the cause is pending in the courts for final determination. Steward v. Deuel County, 137 Neb. 516, 289 N.W. 877 (1940).


If there is a reasonable controversy over the liability of employer for compensation, he is not liable for the penalty for waiting time. Hiestand v. Ristau, 135 Neb. 881, 284 N.W. 756 (1939).


Penalty is recoverable, where no reasonable controversy exists, and employer withholds periodic payment. Lincoln Gas & Electric Light Co. v. Watkins, 113 Neb. 619, 204 N.W. 391 (1925); Western Newspaper Union v. Dee, 108 Neb. 303, 187 N.W. 919 (1922); Abel Const. Co. v. Goodman, 105 Neb. 700, 181 N.W. 713 (1921).


Penalty is not recoverable, where reasonable controversy exists, until employer's obligation is definitely ascertained or settled, in exercise of proper diligence on his part. McGuire v. Phelan-Shirley Co., 111 Neb. 609, 197 N.W. 615 (1924); McCrary v. Wolff, 109 Neb. 796, 192 N.W. 237 (1923); Hall v. Germantown State Bank, 105 Neb. 709, 181 N.W. 609 (1921); Osborn v. Omaha Structural Steel Co., 105 Neb. 216, 179 N.W. 1022 (1920); Updike Grain Co. v. Swanson, 104 Neb. 661, 178 N.W. 618 (1920).


Penalty provision is constitutional and does not violate due process. United States Fidelity & Guaranty Co. v. Wickline, 103 Neb. 21, 170 N.W. 193 (1918).


Subsection (1) of this section requiring that payments be sent directly to the person entitled to compensation within 30 days of the award and imposing waiting-time penalties if the statute is violated is applicable to orders approving lump-sum settlements. Harris v. Iowa Tanklines, 20 Neb. App. 513, 825 N.W.2d 457 (2013).


When a workers' compensation settlement check is sent from an insurance carrier to the employer's counsel, but not to the claimant or his or her counsel, within 30 days after the entry of the award, it is not sent directly to the claimant within the statutorily prescribed time, as would warrant the imposition of waiting-time penalties. Harris v. Iowa Tanklines, 20 Neb. App. 513, 825 N.W.2d 457 (2013).


Workers' compensation payment sent directly to the claimant's counsel within 30 days after the entry of the award is in compliance with the section requiring that payments be sent directly to the person entitled to compensation within 30 days of the award and imposing waiting-time penalties if the statute is violated. Harris v. Iowa Tanklines, 20 Neb. App. 513, 825 N.W.2d 457 (2013).


Workers' compensation statute requiring that payments be sent directly to the person entitled to compensation within 30 days of the award does not include any requirement that there be actual prejudice suffered by the claimant before waiting-time penalties are appropriate. Harris v. Iowa Tanklines, 20 Neb. App. 513, 825 N.W.2d 457 (2013).


Where there is no reasonable controversy, this section authorizes the award of attorney fees. Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006).


A 50-percent waiting-time penalty cannot be awarded on the basis of an award of delinquent medical payments; a waiting-time penalty is available only on awards of delinquent payments of disability or indemnity benefits. Bronzynski v. Model Electric, 14 Neb. App. 355, 707 N.W.2d 46 (2005).


The purpose of the 30-day waiting-time penalty and the provision for attorney fees, as provided in this section, is to encourage prompt payment by making delay costly if the award has been finally established. Milliken v. Premier Indus., 13 Neb. App. 330, 691 N.W.2d 855 (2005).


5. Miscellaneous


Interest may be assessed only when attorney fees are allowed. VanKirk v. Central Community College, 285 Neb. 231, 826 N.W.2d 277 (2013).


The prohibition against assessing attorney fees against medical providers set forth in the last sentence of subdivision (2)(a) of this section cannot be avoided by instead filing an action in the district court seeking fees under the common fund doctrine. Walentine, O'Toole v. Midwest Neurosurgery, 285 Neb. 80, 825 N.W.2d 425 (2013).


A workers' compensation trial judge has continuing jurisdiction to enforce an employer's obligation to pay benefits pending the employer's appeal of the judge's previous order imposing a penalty and costs for a delayed payment. Russell v. Kerry, Inc., 278 Neb. 981, 775 N.W.2d 420 (2009).


An employer's appeal from a postjudgment proceeding to enforce a workers' compensation award does not disturb the finality of an award imposing a continuing obligation on the employer to pay benefits. Russell v. Kerry, Inc., 278 Neb. 981, 775 N.W.2d 420 (2009).


Preaward interest, as assessed by an enforcement order in a workers' compensation proceeding, is not a penalty but a means of fully compensating the claimant for not having use of the money that the employer owed. Russell v. Kerry, Inc., 278 Neb. 981, 775 N.W.2d 420 (2009).


When an employer appeals a benefits award, it will not be excused from paying compensation 30 days following the date of the award unless the employer has an actual basis in law or fact for disputing the award. Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009).


Under former law, "such payments" contained in the second sentence of subsection (1) of this section refers to all "amounts of compensation" provided for in the first sentence of said subsection. Brown v. Harbor Fin. Mortgage Corp., 267 Neb. 218, 673 N.W.2d 35 (2004).


Pursuant to subsection (1) of this section, the award of attorney fees pursuant to this section must be calculated on a case-by-case basis, and particular attention should be given to the amount of legal work performed in relation to the amount of the unpaid medical bill and the amount of the unpaid medical bill in relation to the workers' compensation award received. Harmon v. Irby Constr. Co., 258 Neb. 420, 604 N.W.2d 813 (1999).


The filing of a cross-appeal by an employer constitutes the filing of an appeal within the meaning of this section. An award of attorney fees pursuant to section 25-824(2) may eliminate any prejudice in not awarding attorney fees pursuant to this section. U.S. West Communications, Inc. v. Taborski, 253 Neb. 770, 572 N.W.2d 81 (1998).


"Compensation," used in subsection (1) of this section in reference to additional sums for waiting time, an attorney fee, and interest, means periodic disability or indemnity benefits payable on account of the employee's work-related injury or death. When a court awards attorney fees against an employer pursuant to subsection (1) of this section, the employer shall be liable for interest pursuant to subsection (2). Koterzina v. Copple Chevrolet, 249 Neb. 158, 542 N.W.2d 696 (1996).


The employer's liability for interest exists, and execution for interest may issue, even when the judgment is silent as to interest. Sherard v. State, 244 Neb. 743, 509 N.W.2d 194 (1993).


This section applies to final adjudicated awards. The award in this case was not final, and the penalty did not commence to run until 30 days after the mandate of the Supreme Court had been filed in the compensation court. Leitz v. Roberts Dairy, 239 Neb. 907, 479 N.W.2d 464 (1992).


When a workers' compensation case is remanded for a rehearing on an issue as to which this court has determined that a proper rehearing has not been held, the hearing held after remand is a rehearing in which expenses and attorney fees may be awarded pursuant to this section. Snyder v. IBP, Inc., 235 Neb. 319, 455 N.W.2d 157 (1990).


"Compensation", used in subsection (1) of this section in reference to additional sums for waiting time, an attorney fee, and interest, means periodic disability or indemnity benefits payable on account of the employee's work-related injury or death. Bituminous Casualty Corp. v. Deyle, 234 Neb. 537, 451 N.W.2d 910 (1990).


Ordinarily, the term "reduction in the amount of such award" refers to the total amount of the award to the employee. However, the "amount of such award" includes the issue of total disability. Behrens v. American Stores Packing Co., 228 Neb. 18, 421 N.W.2d 12 (1988).


A workmen's compensation insurance carrier for an employer should be deemed to be an employer within the meaning of this section. Neeman v. Otoe County, 186 Neb. 370, 183 N.W.2d 269 (1971).


An agreement to pay compensation must be approved by a compensation commissioner or compensation court or it is void, and part payment does not make such agreement actionable at common law. Duncan v. A. Hospe Co., 133 Neb. 810, 277 N.W. 339 (1938).


An award of attorney fees is a prerequisite before interest on the compensation amount due to a claimant may be awarded under this section. Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006).

Structure Nebraska Revised Statutes