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Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

LEWIS v. MBC CONSTR. CO.

Cite as 309 Neb. 726

Allen Michael Lewis, appellee and 

cross-appellant, v. MBC Construction 

Co., Inc., and Carolina Casualty 

Ins. Co., appellants and 

cross-appellees.

___ N.W.2d ___

Filed July 16, 2021. No. S-20-728.

1. Workers’ Compensation: Appeal and Error. Under Neb. Rev. Stat. 

§ 48-185 (Cum. Supp. 2020), a judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the 

grounds that (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.

2. ____: ____. On appellate review, the factual findings made by the trial 

judge of the Workers’ Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong.

Appeal from the Workers’ Compensation Court: Julie A. 

Martin, Judge. Vacated and remanded with directions.

Daniel P. Lenaghan and Christine E. Westberg Dorn, of 

Sodoro, Mooney & Lenaghan, L.L.C., for appellants.

Justin High and Erin N. Fox, of High & Younes, L.L.C., for 

appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/27/2021 01:07 AM CDT
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LEWIS v. MBC CONSTR. CO.

Cite as 309 Neb. 726

Per Curiam.

NATURE OF CASE

Allen Michael Lewis was injured in the course of his 

employment with MBC Construction Co., which injury ultimately resulted in the amputation of his left leg. This case 

arises from Lewis’ request for MBC Construction Co. and 

Carolina Casualty Ins. Co. (collectively MBC) to build accessible housing for him. The compensation court rejected Lewis’ 

proposal for a four-bedroom, three-garage accessible house, 

but found certain accessibility features reasonable, necessary, 

and required due to the nature of Lewis’ injury. It ordered 

MBC to modify an existing home or potentially build a unit 

to meet Lewis’ accessibility requirements. MBC appeals, and 

Lewis cross-appeals. Because of ambiguity in its order, we 

conclude that the compensation court’s order did not provide 

a meaningful basis for appellate review of its order regarding 

alternative accessible housing, and accordingly, we vacate the 

order and remand the cause with directions to enter an order 

in compliance with Workers’ Comp. Ct. R. of Proc. 11 (2021). 

In view of our disposition of the appeal, we do not consider 

Lewis’ cross-appeal.

STATEMENT OF FACTS

On May 1, 2015, while Lewis was working for MBC 

Construction Co., an autopaving machine rolled on Lewis and 

crushed his leg. The leg was ultimately amputated above the 

knee. Neither party disputes that the amputation was a consequence of Lewis’ original injury. Lewis now uses a wheelchair, 

scooter, and crutches. One of Lewis’ treating physicians, Dr. 

Toby Free, testified to Lewis’ challenges using a prosthesis, including edema, vascular damage, and other issues that 

affected the healing and fit at the amputation site.

Before and after the injury, Lewis lived with friends, with 

family, or in rental homes. The compensation court noted 

that most recently, he lived in a two-bedroom apartment with 

his sister.
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LEWIS v. MBC CONSTR. CO.

Cite as 309 Neb. 726

Because of his restrictions, Lewis sought modification of his 

rental property from MBC and retained a physician assistant 

to evaluate his residence and vehicle for medically necessary modifications to accommodate his injury. Based on this 

report from the physician assistant, Dr. Free agreed that Lewis 

should have an accessible home. However, before an accessibility solution was implemented, Lewis was evicted from that 

rental property.

Lewis sought an estimate from a home builder for an accessible house with four bedrooms—one for himself and each of 

his children. The estimate was nearly $400,000. Lewis filed a 

motion to compel that would direct MBC to build the accessible house for his use. Lewis submitted evidence that a fourbedroom accessible house is difficult to find.

Dr. Free opined that “Lewis will need a fully handicap 

accessible home with a bathroom on the main floor. His home 

needs to be fully wheelchair accessible. He sometimes needs to 

use the wheelchair now and I expect he will need to use it more 

in the future as he ages.” He opined that Lewis’ “current living 

situation is untenable.”

Although MBC claimed it was willing to make modifications to an existing home, it was not willing to purchase or 

construct a home for Lewis. It submitted an affidavit of Scott 

Vogt, the chief operating officer of a real estate company, 

which affidavit discussed homes in the Omaha, Nebraska, area 

meeting Lewis’ requirements. Vogt analyzed the Omaha rental 

market and found at least 105 available rental units that would 

meet Dr. Free’s requirements, ranging from $515 to $1,100 

per month.

The compensation court found that Lewis’ proposed fourbedroom, three-car-garage house was not reasonable and necessary. However, it also found that Lewis’ injuries limited 

his ability to get around his home and take care of activities 

of daily living. It noted that the doors in his living quarters are not wide enough, the cabinets are not at the correct 
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LEWIS v. MBC CONSTR. CO.

Cite as 309 Neb. 726

height, and the ground presents tripping hazards documented 

in the exhibits.

At the time of the hearing, Lewis resided with family in their 

apartment. The court found that modifications to Lewis’ home 

are necessary and that “[h]ad it not been for the accident and 

injury sustained while employed by MBC Construction [Co.], 

[Lewis] would not now need accessible housing.” However, 

the compensation court explained that such modifications 

could not be completed on the apartment where Lewis was 

staying. It analyzed the case law and concluded, “[i]f modifications cannot be done to an existing property, the [court] 

reads the statute broadly . . . that would require defendants to 

obtain new living quarters for plaintiff that are accessible.” It 

ordered MBC to find new living quarters within 45 days that 

are accessible.

The compensation court directed MBC to find “an existing home . . . to which modifications need to be made.” As 

an alternative, it directed MBC to provide housing for Lewis 

by “either building or purchasing an accessible home for” 

him. The order provided that regardless of the eventuality, the 

potential housing should include at least 11 specified features 

to make it “accessible for [Lewis’] condition”:

1. At least three bedrooms;

2. 36-inch wide doorways throughout the home and at 

all entry points and exit points;

3. Either zero entry or a ramp for all entry and exit 

points into the structure;

4. Zero entry for the shower;

5. Reinforced shower bench and grab bars sufficient for 

his weight;

6. Cut-outs under the sinks in his home so the wheelchair can fit underneath;

7. 60 inches between the cabinets so he can move in 

and out while opening the cabinets;

8. Reinforced grab bars around the toilets and in the 

laundry room for safety;
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LEWIS v. MBC CONSTR. CO.

Cite as 309 Neb. 726

9. Nonslip flooring in the bathroom, laundry room, 

and kitchen;

10. An oversized commode; and

11. Electrical outlets in the garage, if there is one, for 

charging his scooter and in the bedroom for charging his 

prosthetic leg.

MBC appeals, and Lewis cross-appeals.

ASSIGNMENTS OF ERROR

As its sole assignment of error, MBC claims that the compensation court erred when it directed MBC “to purchase real 

property for the benefit of . . . Lewis.”

On cross-appeal, Lewis claims that the Workers’ Compensa

tion Court erred when it found his proposed new construction 

home was unreasonable and unnecessary. He also claims it 

was clearly wrong for the compensation court not to require 

garage space in its list of required features in its adaptive housing award. In view of our disposition of the appeal, we do not 

reach the cross-appeal.

STANDARD OF REVIEW

[1] Under Neb. Rev. Stat. § 48-185 (Cum. Supp. 2020), a 

judgment, order, or award of the compensation court may be 

modified, reversed, or set aside only upon the grounds that (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. See Boring v. Zoetis LLC, ante p. 270, 959 

N.W.2d 795 (2021).

[2] On appellate review, the factual findings made by the 

trial judge of the Workers’ Compensation Court have the 

effect of a jury verdict and will not be disturbed unless clearly 

wrong. Melton v. City of Holdrege, ante p. 385, 960 N.W.2d 

298 (2021).
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LEWIS v. MBC CONSTR. CO.

Cite as 309 Neb. 726

ANALYSIS

Both the appeal and cross-appeal taken in this case pertain 

to an employer’s responsibility for an injured worker’s home 

to be made accessible for the worker’s work-related injuries. 

As an initial matter, we set forth our statutory and case law on 

Neb. Rev. Stat. § 48-120 (Cum. Supp. 2020) as it applies to 

housing accommodations. Section 48-120(1)(a) provides:

The employer is liable for all reasonable medical, surgical, and hospital services, including plastic surgery or 

reconstructive surgery but not cosmetic surgery when the 

injury has caused disfigurement, appliances, supplies, 

prosthetic devices, and medicines as and when needed, 

which are required by the nature of the injury and which 

will relieve pain or promote and hasten the employee’s 

restoration to health and employment, and includes damage to or destruction of artificial members, dental appliances, teeth, hearing instruments, and eyeglasses, but, 

in the case of dental appliances, hearing instruments, or 

eyeglasses, only if such damage or destruction resulted 

from an accident which also caused personal injury entitling the employee to compensation therefor for disability 

or treatment, subject to the approval of and regulation 

by the Nebraska Workers’ Compensation Court, not to 

exceed the regular charge made for such service in similar cases.

Nebraska courts have previously held that modifications to 

an injured employee’s home can be medical expenses under 

the appliances or supplies categories of § 48-120(1)(a) when 

the modifications are “required by the nature of the injury” 

and if the modifications “relieve pain or promote and hasten 

the employee’s restoration to health and employment.” See, 

Miller v. E.M.C. Ins. Cos., 259 Neb. 433, 610 N.W.2d 398 

(2000); Koterzina v. Copple Chevrolet, 1 Neb. App. 1000, 

510 N.W.2d 467 (1993). We note that the first sentence of 

§ 48-120 provides a list of examples of reasonable services and 

items preceded by the word “including.” We have previously 
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LEWIS v. MBC CONSTR. CO.

Cite as 309 Neb. 726

stated that the word “include,” as used in a statute, connotes 

that the provided list of components is not exhaustive and that 

there are other items includable that are not specifically enumerated. In re Interest of Seth C., 307 Neb. 862, 951 N.W.2d 

135 (2020); See, also, Antonin Scalia & Bryan A. Garner, 

Reading Law: The Interpretation of Legal Texts 132 (2012). As 

its sole assignment of error, MBC contends that the compensation court ordered it to purchase real property for the benefit of 

Lewis, which MBC understands as a directive that it build or 

purchase an accessible house for Lewis, and that this directive 

exceeded the compensation court’s statutory authority under 

§ 48-120. Lewis claims that an employer is potentially liable 

to provide an accessible home for the benefit of an injured 

worker. See, e.g., Squeo v. Comfort Control Corp., 99 N.J. 588, 

494 A.2d 313 (1985); Peace River Elec. Corp. v. Choate, 417 

So. 2d 831 (Fla. App. 1982); Arce v. Mountain Wood Forestry, 

Inc., No. COA09-490, 2010 WL 10962 (N.C. App. Jan. 5, 

2010) (unpublished disposition listed in table at 201 N.C. App. 

726 (2010)). As we read the compensation court’s order, we 

agree it is plausible MBC would potentially be required to 

build or purchase real property thereunder. In this regard, the 

order states at one point that MBC “shall be responsible for 

either building or purchasing an accessible home for [Lewis].” 

However, the evidence relied on by the compensation court 

showed alternative housing arrangements that could meet 

Lewis’ needs, and other portions of the order indicate that the 

compensation court believed MBC’s obligation to Lewis could 

be met through a lease arrangement or by modifying rental 

property. The compensation court’s failure to clearly direct the 

parties’ future action precludes meaningful appellate review, 

and we vacate the order and remand the cause with directions 

to enter an order complying with the requirements of Rule 11 

of the compensation court rules of procedure.

Rule 11 provides, in relevant part, that “[d]ecisions of 

the court shall provide the basis for a meaningful appellate 

review.” Rule 11 ensures that compensation court orders are 
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LEWIS v. MBC CONSTR. CO.

Cite as 309 Neb. 726

sufficiently clear in addressing the parties’ requested relief so 

that an appellate court can review the evidence relied upon 

by the trial judge in support of his or her findings. It requires 

“explicit findings of fact and conclusions of law so that all 

interested parties and a reviewing court can determine the legal 

and factual basis upon which a decision is made.” Torres v. 

Aulick Leasing, 258 Neb. 859, 863, 606 N.W.2d 98, 102 (2000). 

It also requires a record that elucidates the factors contributing 

to the lower court’s decision. Hynes v. Good Samaritan Hosp., 

285 Neb. 985, 830 N.W.2d 499 (2013).

In several cases where a compensation court made ambig

uous or contradictory findings, we found that meaningful 

appellate review was precluded, even though the failure was 

not a jurisdictional defect. Dawes v. Wittrock Sandblasting & 

Painting, 266 Neb. 526, 667 N.W.2d 167 (2003), disapproved 

on other grounds, Kimminau v. Uribe Refuse Serv., 270 Neb. 

682, 707 N.W.2d 229 (2005); Owen v. American Hydraulics, 

254 Neb. 685, 578 N.W.2d 57 (1998). The order before us 

is similarly ambiguous and contradictory. In its order, the 

compensation court acknowledged that MBC offered several 

alternatives which MBC was apparently willing to provide for 

Lewis. The court observed: “It did not seem to the Court that 

[MBC] so much objected to providing an accessible home, just 

that what [Lewis] proposed was not reasonable. . . . [MBC has] 

presented evidence that other alternatives are available that 

would meet [Lewis’] needs.”

The order cited the affidavit of Vogt with respect to available 

properties in the Omaha area. The properties described therein 

included a range of options at many price points, included both 

rental homes and houses for sale, and included homes that 

were already accessible and homes needing modification to be 

accessible. The court continued:

If an existing home is found for [Lewis] to which modifications need to be made, [MBC] must also see that 

plans are drawn up for any necessary modifications along 

with a timetable for completion of those modifications 
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LEWIS v. MBC CONSTR. CO.

Cite as 309 Neb. 726

and those plans must be presented to [Lewis] within this 

45-day deadline. The Court realizes the deadline is tight, 

but there have been numerous delays already on this issue, 

and [Lewis] should not be the one to suffer for them.

However, the compensation court’s order failed to clearly 

address whether and which of the housing options was reasonable and necessary, or the extent of MBC’s specific economic 

obligations, such as insurance, taxes, and rental or mortgage 

payments, once appropriate housing for Lewis is identified. 

Compare, Squeo v. Comfort Control Corp., 99 N.J. 588, 494 

A.2d 313 (1985) (addressing construction costs, maintenance, 

capital repairs, insurance, and taxation); Arce v. Mountain 

Wood Forestry, Inc., No. COA09-490, 2010 WL 10962 (N.C. 

App. Jan. 5, 2010) (unpublished disposition listed in table at 

201 N.C. App. 726 (2010)) (dividing cost of housing between 

employer and worker).

We have previously reversed orders and remanded causes 

under rule 11 when the order of the compensation court was 

unclear. See, e.g., Rogers v. Jack’s Supper Club, 304 Neb. 605, 

935 N.W.2d 754 (2019); Owen v. American Hydraulics, supra; 

Hale v. Standard Meat Co., 251 Neb. 37, 554 N.W.2d 424 

(1996). In a case where the order was ambiguous and contradictory, we said that “[n]either party should prevail on the basis 

of an ambiguity.” Owen v. American Hydraulics, 254 Neb. at 

695, 578 N.W.2d at 64. Compare Lovelace v. City of Lincoln, 

283 Neb. 12, 809 N.W.2d 505 (2012) (finding order was not 

confusing and complied with rule 11).

In the instant case, the order is confusing and the undertakings of each party are unclear. We vacate the order of the compensation court and remand the cause for further proceedings.

On remand, the compensation court shall, inter alia, enter an 

order based on the existing record, clarifying which accessible 

alternative housing options should be pursued and in which 

order, and it should clarify in findings MBC’s economic obligations under the Nebraska Workers’ Compensation Act with 

respect to the housing ultimately obtained.
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LEWIS v. MBC CONSTR. CO.

Cite as 309 Neb. 726

CONCLUSION

The compensation court erred when it issued a decision 

that did not comply with rule 11, and we vacate the order and 

remand the cause with directions to enter an order in compliance with rule 11 as described in our opinion above. In so 

doing, we express no opinion on an employer’s potential liability, if any, to construct or purchase adaptive housing under 

§ 48-120(1)(a), and we find it unnecessary to consider Lewis’ 

cross-appeal.

Vacated and remanded with directions.

Stacy, J., concurring.

I agree with the majority’s conclusion that the order of the 

Workers’ Compensation Court is too ambiguous for meaningful appellate review and therefore must be vacated. I write 

separately to suggest that any expansion of our holding in 

Miller v. E.M.C. Ins. Cos. 1 presents issues of public policy for 

the Legislature.

In Miller, the injured worker used a wheelchair and we 

affirmed an order of the Workers’ Compensation Court directing the employer’s insurer to pay for the modifications needed 

to make the worker’s home wheelchair accessible. We found 

that Neb. Rev. Stat. § 48-120(1) (Reissue 1993) provided the 

necessary authority for such an order, reasoning:

[M]odifications to an injured employee’s home [can] be 

considered medical expenses under the appliances or supplies categories if the modifications are “required by the 

nature of the injury,” and if the modifications “relieve 

pain or promote and hasten the employees’ restoration to 

health and employment.” 2

Miller found the first requirement was satisfied by evidence 

that doctors had recommended certain modifications to the 

employee’s home to allow him to access and use the home 

1 Miller v. E.M.C. Ins. Cos., 259 Neb. 433, 610 N.W.2d 398 (2000).

2 Id. at 451, 610 N.W.2d at 412.
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from his wheelchair. And the second requirement was satisfied 

by evidence that the employee’s “pain [was] caused by the loss 

of independence to function and to enter and move about his 

own home.” 3 The Nebraska Court of Appeals used similar reasoning in Koterzina v. Copple Chevrolet 4 to affirm a Workers’ 

Compensation Court order directing the insurer to pay $18,376 

in construction costs to modify the home of an injured worker 

who used a wheelchair.

In the 20-plus years since this court’s decision in Miller, the 

relevant provisions of § 48-120(1) on which that holding was 

based have not been amended by the Legislature. And although 

the Legislature has defined some of the terms appearing in 

§ 48-120, 5 it has not defined either “appliances” or “supplies” 

for purposes of that statute. Generally, when a statute has been 

judicially construed and that construction has not evoked an 

amendment, it is presumed the Legislature has acquiesced in 

the court’s determination of the Legislature’s intent. 6

But the primary question raised by the parties in this appeal 

is not whether the employer or its insurer can be ordered to 

pay for modifications to Lewis’ residence to make it accessible 

after his work-related injury. The parties agree that question 

was answered in the affirmative by Miller. Rather, the question 

here appears to be the extent of the employer’s responsibility 

for modifications under Miller and Koterzina when the injured 

worker does not have housing that can be modified.

We do not reach that question in this appeal, because we 

are not able to discern what the trial court has ordered in that 

regard. Has the court ordered the employer or its insurer to 

purchase or custom build an entire home that is accessible? 

3 Id. at 452, 610 N.W.2d at 412.

4 Koterzina v. Copple Chevrolet, 1 Neb. App. 1000, 510 N.W.2d 467 (1993).

5 See Neb. Rev. Stat. § 48-120.01 (Reissue 2010) (defining terms “plastic 

surgery” and “reconstructive surgery” for purposes of § 48-120).

6 Rodriguez v. Lasting Hope Recovery Ctr., 308 Neb. 538, 955 N.W.2d 707 

(2021).
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Cite as 309 Neb. 726

If so, how are the associated costs to be allocated between the 

employer and the employee to ensure the employer pays for the 

necessary modifications under Miller and Koterzina, but not 

for the ordinary features of the home?

It is a familiar proposition of law that the Nebraska Workers’ 

Compensation Court, as a statutorily created court, has only 

such authority as has been conferred upon it by statute, and its 

power cannot extend beyond that expressed in the statute. 7 I see 

nothing in the plain text of § 48-120, or in our current case law, 

that would support expanding the definition of medical “appliances” or “supplies” to include an entire home. Nor, in my 

opinion, are the courts the proper place to debate the various 

public policy concerns implicated by such an expansion.

So while I agree with the majority that the order of the 

workers’ compensation court is too ambiguous and confusing 

for meaningful appellate review, I respectfully suggest that any 

expansion of the rule announced in Miller and Koterzina implicates important public policy questions about the compensability of accessible housing for injured workers and is something 

properly left to the Legislature.

Funke, J., joins in this concurrence.

7 Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011).