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PICARD v. P & C GROUP 1

Cite as 306 Neb. 292

Halina Picard, appellee and cross-appellant, 

v. P & C Group 1, Inc., doing business as 

Camaco, LLC, and Hartford Fire 

Insurance Company, appellants 

and cross-appellees.

___ N.W.2d ___

Filed July 2, 2020. No. S-18-207.

1. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

2. Workers’ Compensation: Appeal and Error. 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.

3. Workers’ Compensation: Attorney Fees: Penalties and Forfeitures: 

Words and Phrases. Whether a reasonable controversy exists under 

Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016) is a question of fact.

4. Workers’ Compensation: Appeal and Error. 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. In workers’ compensation cases, an appellate court determines questions of law.

5. Workers’ Compensation. A determination as to whether an injured 

worker has had a loss of earning power is a question of fact.

6. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of 

whether the issue is raised by the parties.

Nebraska Supreme Court Online Library

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

09/18/2020 09:08 AM CDT
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7. Rules of the Supreme Court: Appeal and Error. In order to perfect 

a cross-appeal, an appellee need comply only with the rules of the 

Nebraska Supreme Court.

8. ____: ____. A party’s failure to file a cross-petition for further review 

does not preclude the party from cross-appealing because a cross-appeal 

on further review is properly perfected by complying with court rules.

9. Workers’ Compensation: Attorney Fees: Penalties and Forfeitures: 

Time. Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016) 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.

10. Workers’ Compensation: Attorney Fees: Words and Phrases. A “reasonable controversy” for the purpose of Neb. Rev. Stat. § 48-125 

(Cum. Supp. 2016) exists if (1) there is a question of law previously 

unanswered by the Supreme Court, which question must be answered 

to determine a right or liability for disposition of a claim under the 

Nebraska Workers’ Compensation Act, or (2) if the properly adduced 

evidence would support reasonable but opposite conclusions by the 

compensation court about an aspect of an employee’s claim, which conclusions affect allowance or rejection of an employee’s claim, in whole 

or in part.

11. Workers’ Compensation. The issue of apportionment arises when a 

compensable loss involves successive injuries. When two or more injuries combine, the effect of the injuries together may result in a more 

severe disability than the injuries’ scheduled allowances.

12. Workers’ Compensation: Statutes. Statutes may permit apportionment 

(1) between successive employers or insurance carriers, when prior injuries are traceable; (2) between an employer and the employee, when a 

personal preexisting disability contributes to the resulting disability; and 

(3) between an employer and a Second Injury Fund, when the preexisting disability is covered by the fund.

13. Workers’ Compensation: Statutes: Liability. Absent an apportionment statute, the general rule is that an employer takes the employee as 

the employer finds him or her, and the employer is liable for the entire 

resulting disability. This is known as the full-responsibility rule.

14. Workers’ Compensation. Neb. Rev. Stat. § 48-121 (Reissue 2010) 

provides compensation for three categories of job-related disabilities: 

subsection (1) sets the amount of compensation for total disability; 

subsection (2) sets the amount of compensation for partial disability, 

except in cases covered by subsection (3); and subsection (3) sets out 

“schedule” injuries to specified parts of the body with compensation 

established therefor.
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15. ____. Pursuant to Neb. Rev. Stat. § 48-121(2) (Reissue 2010), permanent partial disability benefits are measured not by loss of bodily function, but by reduction in or loss of earning power or employability.

16. Workers’ Compensation: Words and Phrases. Earning power, as used 

in Neb. Rev. Stat. § 48-121(2) (Reissue 2010), is not synonymous with 

wages, but includes eligibility to procure employment generally, ability 

to hold a job obtained, and capacity to perform the tasks of the work, 

as well as the ability of the worker to earn wages in the employment in 

which he or she is engaged or for which he or she is fitted.

17. Workers’ Compensation: Appeal and Error. With respect to questions 

of law in workers’ compensation cases, an appellate court is obligated to 

make its own determination.

18. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Petition for further review from the Court of Appeals, 

Riedmann, Bishop, and Welch, Judges, on appeal thereto 

from the Workers’ Compensation Court, Julie A. Martin, 

Judge. Judgment of Court of Appeals affirmed in part, and in 

part reversed and remanded with directions.

Jessica R. Voelker, of Law Office of Steven G. Piland, and 

Jarrod D. Reece and Bryan S. Hatch, of Likes Meyerson Hatch, 

L.L.C., for appellants.

Lee S. Loudon and Joseph A. Huckleberry, of Law Office of 

Lee S. Loudon, P.C., L.L.O., for appellee.

Todd D. Bennett, of Rehm, Bennett & Moore, for amicus 

curiae Nebraska Association of Trial Attorneys.

Dallas D. Jones, David A. Dudley, Jennifer S. Caswell, 

Thomas B. Shires, and Jenna M. Christensen, of Baylor 

Evnen, L.L.P., for amicus curiae Nebraskans for Workers’ 

Compensation Equity and Fairness et al.

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

Papik, and Freudenberg, JJ.
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Heavican, C.J.

INTRODUCTION

This case involves two workers’ compensation awards based 

on successive whole body injuries. P & C Group 1, Inc., 

doing business as Camaco, LLC, and Hartford Fire Insurance 

Company, P & C Group 1’s insurer (collectively P & C), petitioned this court for further review of the Nebraska Court of 

Appeals’ affirmance of the Nebraska Workers’ Compensation 

Court’s awards for injuries suffered by Halina Picard in two 

separate accidents. We granted further review in order to 

determine whether Nebraska law permits the apportionment 

of workers’ compensation awards outside of Neb. Rev. Stat. 

§ 48-128 (Reissue 2010). On further review, we affirm in part, 

and in part reverse and remand with directions.

BACKGROUND

Picard has been employed by P & C Group 1 as a production worker since 1989. In April 2012, Dr. Jeffrey Tiedeman 

diagnosed Picard with bilateral carpal tunnel syndrome after 

Picard was injured at work. Dr. Tiedeman performed bilateral 

carpal tunnel release surgery on Picard’s wrists. After concluding Picard had reached maximum medical improvement 

with a 10-percent permanent partial impairment of each hand, 

Dr. Tiedeman released Picard back to work with a permanent 

restriction of lifting no more than 5 pounds. Dr. Tiedeman 

also suggested Picard should only occasionally do work above 

shoulder level. P & C paid temporary total disability benefits, permanent partial disability benefits, and Picard’s medical 

expenses for the 2012 accident.

In 2015, Picard was working in a different position at P & C 

Group 1 that accommodated her restrictions. While bending 

over to pick up production parts, Picard experienced severe 

back pain and was later diagnosed by Dr. Geoffrey McCullen 

to have a herniated disk. Dr. McCullen performed a discectomy operation on Picard’s spine and eventually determined 

that Picard could return to her position at P & C Group 1 with 
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the following permanent restrictions: no bending to the floor; 

only occasional bending, squatting, or twisting; and no lifting 

greater than 10 pounds. In doing so, Dr. McCullen articulated: 

“The restrictions above are for the spine,” not the hands. Dr. 

McCullen concluded that Picard had suffered a 13-percent 

impairment of the whole body.

After the 2015 surgery, Picard returned to work at P & C 

Group 1 in the same position she held prior to her back injury, 

and she was able to perform her assigned job without additional accommodations. At the time of trial, Picard remained 

employed by P & C Group 1 in the same position, and her 

hourly rate of pay was greater than it had been prior to the 

2015 injury.

In January 2016, Picard filed claims against P & C relating 

to her 2012 and 2015 injuries. The cases were consolidated 

by the Nebraska Workers’ Compensation Court. A stipulated 

trial was held to determine whether (1) Picard suffered any 

loss of earning power as a result of the 2015 injury; (2) P & C 

was entitled to apportion any loss of earning power benefits 

attributable to Picard’s 2012 injury toward any benefits that 

may be due and owing for loss of earning power for the 2015 

injury; and (3) Picard was entitled to penalties, attorney fees, 

and interest for P & C’s failure to pay any permanent disability benefits.

Based on Picard’s permanent restrictions given by Dr. 

Tiedeman, court-appointed vocational counselor Kim Rhen 

opined that Picard had sustained a 60-percent loss of earning 

capacity as a result of the 2012 injury. Rhen determined that 

the 2012 restrictions would have resulted in a 100-percent 

loss of access to available jobs for Picard. However, recognizing the fact that Picard remains competitively employed 

by P & C in a full-time position that accommodates her 

disability and the fact that P & C would likely continue to 

employ her, Rhen estimated the loss of earning capacity from 

the injury to Picard’s hands to be 60 percent. As to the 2015 

injury, Rhen determined that Picard was employable after the 
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low-back injury, but opined that Picard had sustained a 50- to 

55-percent loss of earnings as a result.

Following trial, the compensation court determined Picard 

had not been adequately compensated for the 2012 injury under 

Neb. Rev. Stat. § 48-121(3) (Reissue 2010), which provides, in 

relevant part:

If, in the compensation court’s discretion, compensation benefits payable for a loss or loss of use of more than 

one member or parts of more than one member set forth 

in this subdivision, resulting from the same accident or 

illness, do not adequately compensate the employee for 

such loss or loss of use and such loss or loss of use results 

in at least a thirty percent loss of earning capacity, the 

compensation court shall, upon request of the employee, 

determine the employee’s loss of earning capacity consistent with the process for such determination under 

subdivision (1) or (2) of this section, and in such a case 

the employee shall not be entitled to compensation under 

this subdivision.

Contrary to the opinion offered by Rhen, the court made its 

own factual finding that Picard suffered a 75-percent loss of 

earning power as a result of the 2012 injury to her hands. The 

compensation court further found that (1) Picard was entitled 

to an award for a whole body injury based on the 2012 carpal 

tunnel syndrome, (2) Picard was entitled to a separate whole 

body injury award for a 55-percent loss of earning capacity 

based on the 2015 back injury, (3) apportionment was not 

appropriate because Picard’s injuries were to different parts of 

her body and she still would have sustained loss of earnings 

for the 2015 back injury even if she had not sustained the 2012 

carpal tunnel injuries, and (4) Picard was entitled to attorney fees and penalties under Neb. Rev. Stat. § 48-125 (Cum. 

Supp. 2016).

P & C appealed and assigned as error that the compensation court erred in (1) finding that apportionment did not 

apply, (2) assessing loss of earning power to the 2015 injury, 
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and (3) awarding attorney fees and penalties. P & C argued 

that apportionment should have been applied because Picard 

continued to suffer the effects of her 2012 injuries at the time 

she suffered her 2015 back injury. P & C further asserted that 

Picard’s subsequent back injury should not have been assessed 

for a loss of earning power because there was no additional 

loss in Picard’s ability to earn wages. Finally, P & C argued 

that penalties and attorney fees should not have been awarded 

because there was a sufficient basis in law and fact for P & C 

to dispute payment of benefits to Picard.

Noting that a lack of clarity existed in the Court of Appeals’ 

prior decisions regarding apportionment and/or successive 

whole body injury awards, the court reversed and vacated the 

compensation court’s award of attorney fees, penalties, and 

interest provisions. Affirming the awards for Picard’s 2012 and 

2015 injuries, the Court of Appeals held that Picard’s award 

for the second injury should not have been apportioned with 

the award for her earlier injury and that the limitations from 

the 2012 injury should not be considered when assessing the 

impact of the 2015 injury.

In regard to P & C’s argument that the doctrine of apportionment should apply, the Court of Appeals held that because 

Nebraska does not have an apportionment statute, apportionment was not applicable. In doing so, the Court of Appeals 

noted that because Picard’s injuries were to different parts of 

her body, the second injury and resulting disability would have 

existed regardless of whether the prior injury had occurred.

Addressing P & C’s second assignment of error, the Court 

of Appeals rejected the argument that Picard suffered no additional lost earning power from the second injury because 

Picard’s lifting restriction from the 2012 injuries to her wrists 

was greater than the lifting restrictions from the 2015 injury 

to her back. The Court of Appeals interpreted § 48-121(2) as 

requiring the compensation court to review a claimant’s lost 

earning power from a current injury independent of any limitations from a prior dissimilar compensable injury. It held that 
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Picard was entitled to compensation for lost earning power 

resulting from each of the two successive injuries. The court 

reasoned that a contrary holding would deny Picard compensation for her current injury and, therefore, offend “‘[t]he principal purpose of the [Nebraska Workers’ Compensation] Act 

[which] is to provide an injured worker with prompt relief from 

the adverse economic effects caused by a work-related injury 

or occupational disease.’” 1

Both Picard and P & C filed petitions for further review 

with this court. P & C sought further review of the Court of 

Appeals’ affirmance of the two compensation awards. Picard 

sought further review of the Court of Appeals’ holding that 

reversed and vacated the compensation court’s finding that 

Picard was entitled to penalties, attorney fees, and interest. We 

granted P & C’s petition and denied Picard’s.

Picard subsequently filed a cross-appeal, in which her sole 

assignment of error is that the Court of Appeals erred in reversing the compensation court’s finding that Picard was entitled to 

penalties, attorney fees, and interest under § 48-125.

The Nebraska Association of Trial Attorneys and Nebraskans 

for Workers’ Compensation Equity and Fairness, along with 

Crete Carrier Corporation; the Nebraska Intergovernmental 

Risk Management Association II; SFM Companies; Lockton 

Companies, LLC; Dakota Truck Underwriters; and Risk 

Administration Services, Inc. (collectively NWCEF), have 

filed briefs as amici curiae.

ASSIGNMENTS OF ERROR

In its petition for further review, P & C’s assignments 

of error, restated, are that the Court of Appeals erred (1) 

in holding that the disability benefits awarded for Picard’s 

2015 accident should not be apportioned with the benefits 

awarded for the 2012 accident; (2) by failing to analyze 

1 Picard v. P & C Group 1, 27 Neb. App. 646, 668, 934 N.W.2d 394, 409 

(2019) (quoting Risor v. Nebraska Boiler, 274 Neb. 906, 744 N.W.2d 693 

(2008)).
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Picard’s loss of earning power under the whole body injury 

framework as required by § 48-121(2); and (3) by reasoning 

that “‘Picard would be denied compensation for her current 

injury’” if apportionment applied and, thus, permitting double 

recovery.

On cross-appeal, Picard’s sole assignment of error is that the 

Court of Appeals erred in reversing the compensation court’s 

finding that Picard was entitled to penalties, attorney fees, and 

interest under § 48-125.

STANDARD OF REVIEW

[1] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter 

of law. 2

[2] 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. 3

[3] Whether a reasonable controversy exists under § 48-125 

is a question of fact. 4

[4] 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. 5 In workers’ compensation cases, an appellate court 

determines questions of law. 6

2 Cox Nebraska Telecom v. Qwest Corp., 268 Neb. 676, 687 N.W.2d 188 

(2004).

3 Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018).

4 Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (2015).

5 Id.

6 Id.
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[5] A determination as to whether an injured worker has 

had a loss of earning power is a question of fact. 7

ANALYSIS

Picard’s Cross-Appeal.

[6] As an initial matter, we must first address whether we 

have jurisdiction over the cross-appeal filed by Picard in this 

case. Before reaching the legal issues presented for review, it is 

the power and duty of an appellate court to determine whether 

it has jurisdiction over the matter before it, irrespective of 

whether the issue is raised by the parties. 8

Picard’s sole assignment of error on cross-appeal is that the 

Court of Appeals erred in reversing the compensation court’s 

finding that Picard was entitled to penalties, attorney fees, and 

interest under § 48-125. This assignment of error was set forth 

in Picard’s petition for further review, which this court denied. 

While Picard’s petition for further review is not properly before 

this court, our case law indicates that her cross-appeal is.

Neb. Ct. R. App. P. § 2-102(G) (rev. 2015) provides in relevant part:

If the Supreme Court grants review of a Court of Appeals 

decision, the Supreme Court will review only the errors 

assigned in the petition for further review and discussed 

in the supporting memorandum brief. The Supreme Court 

may limit the issues to one or more of those raised by the 

parties and may notice plain error at its discretion.

[7] In Williams v. Gering Pub. Schools,

 9 we explained:

A cross-appeal, as distinguished from the perfection of 

a direct appeal, exists in this state only by virtue of the 

rules of this court. There is no statutory authorization for 

7 See Swoboda v. Volkman Plumbing, 269 Neb. 20, 690 N.W.2d 166 (2004).

8 J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893 

(2017).

9 Williams v. Gering Pub. Schools, 236 Neb. 722, 726, 463 N.W.2d 799, 803 

(1990) (citing Edquist v. Commercial Sav. & Loan Assn., 191 Neb. 618, 

217 N.W.2d 82 (1974)).
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the procedure. . . . Therefore, in order to perfect a crossappeal, an appellee need comply only with the rules of 

the Nebraska Supreme Court.

[8] In Kline v. Farmers Ins. Exch.,

 10 we addressed a crossappeal on further review. In that case, we held that a party’s 

failure to file a cross-petition for further review does not preclude the party from cross-appealing because a cross-appeal 

on further review is properly perfected by complying with 

our court rules. 11 In doing so, we stated: “Neb. Ct. R. App. P. 

§ 2-102(H) provides that each party may file additional briefs 

in compliance with Neb. Ct. R. App. P. § 2-109 when further 

review is granted. Section 2-109 allows appellees to file a 

cross-appeal by noting on the cover of their brief ‘Brief on 

Cross-Appeal.’” 12

This court declined to exercise jurisdiction over Picard’s 

petition for further review; however, her cross-appeal was filed 

after further review was granted, and it complies with Neb. Ct. 

R. App. P. § 2-109 (rev. 2014). Therefore, we have jurisdiction 

over the cross-appeal.

After concluding that we have jurisdiction, we now turn 

to the merits of Picard’s cross-appeal. Picard assigns that 

the Court of Appeals erred in failing to affirm the Workers’ 

Compensation Court’s factual finding that she was entitled to 

penalties, attorney fees, and interest.

[9,10] Section 48-125 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. 13 This court has held that a “reasonable controversy” 

for the purpose of § 48-125 exists if (1) there is a question 

10 Kline v. Farmers Ins. Exch., 277 Neb. 874, 766 N.W.2d 118 (2009).

11 Id.

12 Id. at 879-80, 766 N.W.2d at 123.

13 McBee v. Goodyear Tire & Rubber Co., 255 Neb. 903, 587 N.W.2d 687 

(1999).
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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. 14 Whether a reasonable controversy 

exists under § 48-125 is a question of fact. 15

The compensation court found that there was no reasonable controversy governing the substance of Picard’s 2015 

award and that therefore, she was entitled to attorney fees, 

penalties, and interest under § 48-125. Recognizing a lack 

of clarity in its prior authority governing the applicability of 

apportionment and/or considerations in determining an award 

for successive compensable injuries to the body as a whole, 

the Court of Appeals reversed and vacated that portion of 

Picard’s award.

We granted P & C’s petition for further review in this 

case in order to determine whether Nebraska law permits the 

apportionment of workers’ compensation awards outside of 

§ 48-128. We agree with the Court of Appeals in that a reasonable controversy did exist regarding the compensability of 

Picard’s 2015 injury. Thus, the Court of Appeals did not err in 

reversing and vacating Picard’s award under § 48-125.

Apportionment.

P & C and amici curiae NWCEF argue that the Court of 

Appeals erred in holding that the disability benefits awarded 

for Picard’s 2015 accident should not be apportioned with the 

benefits awarded for the 2012 accident. Before addressing 

this argument, we first survey the basic principles regarding 

apportionment and its history in Nebraska.

14 Id. (citing Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 

N.W.2d 280 (1987)).

15 McBee v. Goodyear Tire & Rubber Co., supra note 13.
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Principles of Apportionment.

[11] The issue of apportionment arises when a compensable loss involves successive injuries. 16 When two or more 

injuries combine, the effect of the injuries together may result 

in a more severe disability than the injuries’ scheduled allowances. 17 For example, if an employee is deaf in one ear and, 

as a result of a workplace accident, loses his hearing in the 

other ear, the loss of hearing in the second ear may result in 

total disability rather than partial disability. Some states have 

statutes which permit the employer to apportion, or assign, 

the loss attributable to an employee’s preexisting disability 

and pay for only the subsequent injury that occurred during 

employment. 18

[12,13] Statutes may permit apportionment (1) between successive employers or insurance carriers, when prior injuries are 

traceable; (2) between an employer and the employee, when 

a personal preexisting disability contributes to the resulting 

disability; and (3) between an employer and a Second Injury 

Fund, when the preexisting disability is covered by the fund. 19

However, absent an apportionment statute, the general rule is 

that an employer takes the employee as the employer finds him 

or her, and the employer is liable for the entire resulting disability. 20 This is known as the full-responsibility rule. 21

History of Apportionment in Nebraska.

Prior to 1947, Nebraska had a statute permitting apportionment between an employer and a claimant: “If an employee 

receives an injury, which, of itself, would only cause partial 

16 See 8 Arthur Larson et al., Larson’s Workers’ Compensation Law § 90 

(2019).

17 See id. at § 90.01.

18 See id.

19 See id. at § 90.02.

20 See id. at § 90.01.

21 See id.
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disability, but which, combined with a previous disability, 

does in fact cause total disability, the employer shall only be 

liable as for the partial disability, so far as the subsequent 

injury is concerned.” 22

In 1947, § 48-128 was amended to create Nebraska’s 

Second Injury Fund. 23 After World War II, the majority of 

states enacted Second Injury Fund statutes to protect workers with preexisting disabilities from employer discrimination through apportionment. 24 Under these statutes, employers 

were not liable for an employee’s preexisting injury that later 

combined with a workplace injury to create a greater overall disability. 25 The employer’s liability was limited to injuries that occurred during employment because Second Injury 

Funds paid the portion of disability benefits attributable to the 

preexisting injury. 26

Nebraska’s Second Injury Fund permitted the apportionment of compensation benefits attributable to a preexisting 

disability and provided, in relevant part:

If an employee who has a preexisting permanent partial 

disability whether from compensable injury or otherwise, 

which is or is likely to be a hindrance or obstacle to his 

or her obtaining employment or obtaining reemployment 

if the employee should become unemployed and which 

was known to the employer prior to the occurrence of 

a subsequent compensable injury, receives a subsequent 

compensable injury resulting in additional permanent 

partial or in permanent total disability so that the degree 

22 Comp. Stat. § 48-128 (1929). Accord Gilkeson v. Northern Gas Engineering 

Co., 127 Neb. 124, 254 N.W. 414 (1934).

23 See 1947 Neb. Laws, ch. 174, § 1, p. 559.

24 Rhett Buchmiller, Note, Second Injury Funds Nationally and in Missouri 

— Liability, Functionality, and Viability in Modern Times, 84 Mo. L. Rev. 

851 (2019).

25 See id.

26 See id.
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or percentage of disability caused by the combined disabilities is substantially greater than that which would 

have resulted from the last injury, considered alone and 

of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the 

employer at the time of the last injury shall be liable only 

for the degree or percentage of disability which would 

have resulted from the last injury had there been no preexisting disability. 27

In 1990, the Americans with Disabilities Act, which prohibited employers from discriminating against a qualified 

employee based on his or her disability, was enacted, and 

Second Injury Funds became obsolete. 28 As a result, Nebraska 

closed its Second Injury Fund in 1993 to all claims for injuries 

occurring after December 1, 1997. 29

Nebraska does not presently have an apportionment statute 

for claims occurring after December 1, 1997, and this court 

has not yet decided whether Nebraska law permits apportionment of damages for successive work-related injuries outside 

of § 48-128. In Heiliger v. Walters & Heiliger Electric, Inc., 30

we addressed whether a claimant’s preexisting back injury 

should reduce a disability award when the back injury is later 

aggravated by a work-related accident resulting in further disability. We held that the presence of a prior injury should not 

reduce the employee’s recovery unless there is a claim against 

the Second Injury Fund. 31 Although Heiliger was decided 

prior to the Second Injury Fund’s abolishment, Heiliger

27 § 48-128 (Reissue 1993).

28 See, generally, Catherine M. Doud, Oklahoma’s Special Indemnity Fund: A 

Fund Without a Function?, 30 Tulsa L.J. 745 (1995); 8 Larson et al., supra

note 16, § 91.03[8].

29 See § 48-128 (Reissue 2010).

30 Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 

565 (1990).

31 Id.
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suggests that outside of § 48-128, apportionment did not exist 

in Nebraska even prior to the statutory abolition of the Second 

Injury Fund.

Apportionment in Court of Appeals.

In the present case, the Court of Appeals concluded that 

because Nebraska does not have an apportionment statute, 

apportionment is not appropriate. In doing so, the Court of 

Appeals described several of its earlier cases regarding apportionment as having a lack of clarity. We interpret that to mean 

that the Court of Appeals’ holding in this case is inconsistent 

with its prior jurisprudence governing the applicability of 

apportionment.

In Jacob v. Columbia Ins. Group,

 32 the Court of Appeals 

held that apportionment did not apply based on the facts presented, but the court established a test for determining under 

what circumstances apportionment should apply. The court 

stated that “‘[t]o be apportionable, then, an impairment must 

have been independently producing some degree of disability 

before the accident, and must be continuing to operate as a 

source of disability after the accident.’” 33 The court also noted 

that the problem of apportionment may be encountered when 

an employee’s disability from a prior injury contributes to a 

claimant’s total disability after a successive injury. 34

In Cummings v. Omaha Public Schools,

 35 the Court of 

Appeals concluded apportionment was appropriate in a case 

involving an employee’s previously compensated disability 

for a back injury and a series of work-related accidents that 

exacerbated the back injury. In that case, the Court of Appeals 

held that Heiliger did not prohibit apportioning a claimant’s 

32 Jacob v. Columbia Ins. Group, 2 Neb. App. 473, 511 N.W.2d 211 (1994).

33 Id. at 491, 511 N.W.2d at 221.

34 Jacob v. Columbia Ins. Group, supra note 32.

35 Cummings v. Omaha Public Schools, 6 Neb. App. 478, 574 N.W.2d 533 

(1998).
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recovery for disability between a prior, compensated injury to 

the body as a whole and a subsequent compensable injury to 

the body as a whole.

In Cummings, the Court of Appeals applied the test established in Jacob when holding that the employee was “not 

entitled to be compensated again” for the original disability 

because the claimant’s “prior disability [had continued] to 

act as a source of lost earning capacity even after the subsequent series of accidents.” 36 Distinguishing Jacob, the Court of 

Appeals stated:

Because both injuries [in Jacob] were injuries to members, rather than injuries to the body as a whole, the 

claimant [in Jacob] did not suffer any disability in terms 

of loss of earning capacity, as distinguished from functional disability, from the prior injury, and the award 

which he received for the prior injury did not need to be 

deducted from the disability benefits [to] which he was 

entitled as a result of the subsequent injury. 37

Picard and amicus curiae Nebraska Association of Trial 

Attorneys contend that apportionment is not appropriate in this 

case because it involves two separate disabilities—the 2012 

accident resulted in bilateral injuries to Picard’s hands and the 

2015 injury resulted in injuries to Picard’s back. However, the 

fact that Picard’s injuries involve separate body parts is not dispositive. A compensable aggravated disability may be caused 

by the combination of two or more injuries even when those 

injuries do not act directly upon each other. 38

Nevertheless, Nebraska does not have an apportionment 

statute applicable to the facts presented here. The Legislature’s 

1947 and 1993 amendments to § 48-128 effectively abrogated apportionment for all claims for injuries occurring after 

December 1, 1997. And in the absence of such a statute, the 

36 Id. at 486, 574 N.W.2d at 540.

37 Id.

38 See, 8 Larson et al., supra note 16, § 90.04[3].
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full-responsibility rule applies, under which the employer is 

generally held liable for the entire disability. 39

Our decision in Heiliger suggests that outside of § 48-128, 

Nebraska applies the full-responsibility rule. We explained:

[A] claimant is entitled to an award under the [Nebraska] 

Workers’ Compensation Act for a work-related injury 

disability if the claimant shows, by a preponderance of 

evidence, that the claimant sustained the injury and disability proximately caused by an accident which arose 

out of and in the course of the claimant’s employment, even though a preexisting disability or condition 

had combined with the present work-related injury to 

produce the disability for which the claimant seeks an 

award. . . . Thus, allocation of disability attributable to 

a work-related injury and disability attributable to an 

antecedent or preexisting disability or condition which 

may or may not be work-related is irrelevant in this case 

inasmuch as there is no claim against the Second Injury 

Fund. 40

Therefore, we clarify that unless otherwise provided by 

statute, Nebraska applies the full-responsibility rule and generally does not apportion the recovery for two or more successive work-related injuries. We further conclude that because 

Picard’s injuries occurred after December 1, 1997, apportionment was inapplicable here. Finally, we find that the Court of 

Appeals did not err in its determination that Picard’s second 

injury award should not be apportioned with the first.

39 See id. at § 90.01. See, also, JBS Swift & Co. v. Ochoa, 888 N.W.2d 887 

(Iowa 2016) (articulating that absent statute permitting apportionment, 

full-responsibility rule generally applies). Accord, Mergentime Perini v. 

Dept. of Emp. Serv., 810 A.2d 901 (D.C. 2002); Liberty Mut. Ins. Co. v. 

Peoples, 595 S.W.2d 135 (Tex. Civ. App. 1979); Colorado Fuel & Iron 

Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962); Tomes 

v. Gray & Dudley Company, 201 Tenn. 697, 301 S.W.2d 389 (1957).

40 Heiliger v. Walters & Heiliger Electric, Inc., supra note 30, 236 Neb. at 

473, 461 N.W.2d at 575.
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Picard’s Earning Power.

P & C argues that the Court of Appeals erred in its analysis of Picard’s loss in earning capacity caused by the second 

injury. P & C and amici curiae NWCEF assert that by focusing 

on the part of the body involved, the Court of Appeals failed to 

analyze Picard’s injuries as injuries to the body as a whole, as 

required by § 48-121(2). Picard, on the other hand, maintains 

that she is entitled to separate awards because the successive 

accidents each independently reduced her earning power.

[14] Section 48-121 provides compensation for three categories of job-related disabilities: subsection (1) sets the amount 

of compensation for total disability; subsection (2) sets the 

amount of compensation for partial disability, except in cases 

covered by subsection (3); and subsection (3) sets out “schedule” injuries to specified parts of the body with compensation 

established therefor. 41

[15,16] The compensation court issued two awards in favor 

of Picard for permanent partial disability benefits pursuant to 

§ 48-121(2), under which benefits are measured not by loss of 

bodily function, but by reduction in or loss of earning power or 

employability. 42 Section 48-121(2) provides, in relevant part:

For disability partial in character, except the particular 

cases mentioned in subdivision (3) of this section, the 

compensation shall be sixty-six and two-thirds percent 

of the difference between the wages received at the time 

of the injury and the earning power of the employee 

thereafter, but such compensation shall not be more than 

the maximum weekly income benefit specified in section 

48-121.01.

Since 1939, this court has consistently held that earning power, 

as used in § 48-121, is not synonymous with wages, but 

includes eligibility to procure employment generally, ability to 

41 See Rodgers v. Nebraska State Fair, 288 Neb. 92, 846 N.W.2d 195 (2014).

42 See Davis v. Goodyear Tire & Rubber Co., 269 Neb. 683, 696 N.W.2d 142 

(2005).
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hold a job obtained, and capacity to perform the tasks of the 

work, as well as the ability of the worker to earn wages in the 

employment in which he or she is engaged or for which he or 

she is fitted. 43

After finding Picard had suffered a 75-percent loss of earning power as a result of the 2012 accident and injury to her 

hands, the compensation court determined Picard was entitled 

to the sum of $347.06 per week for 2923⁄7 weeks. The compensation court further concluded that Picard was entitled to 

the additional sum of $229.01 per week for 288 weeks after 

finding Picard had also suffered a 55-percent loss of earning capacity as a result of the 2015 accident and injury to 

her back.

Affirming the awards, the Court of Appeals determined that 

Picard was entitled to independent awards for both the 2012 

injury to her wrists and the 2015 injury to her back because 

the successive injuries involved different parts of her body. 

In doing so, the Court of Appeals recognized that the compensation court had “assess[ed] Picard’s lost earning power from 

the 2015 back injury as if the 2012 injury did not exist.” 44

It further stated: “In short, it appears that because the court 

correctly concluded that apportionment was not applicable, it 

disregarded any disability from the first accident in assessing lost earnings from the second, resulting in the court’s 

ordering an additional award for a 55-percent loss of earning capacity.” 45

[17] A determination as to whether an injured worker has 

had a loss of earning power is a question of fact. 46 In this case, 

43 Id.; Sidel v. Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482 (1980); 

Anderson v. Cowger, 158 Neb. 772, 65 N.W.2d 51 (1954); Micek v. Omaha 

Steel Works, 136 Neb. 843, 287 N.W. 645 (1939).

44 Picard v. P & C Group 1, supra note 1, 27 Neb. App. at 667, 934 N.W.2d 

at 408.

45 Id. at 667-68, 934 N.W.2d at 408.

46 Swoboda v. Volkman Plumbing, supra note 7.
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the Court of Appeals recognized that Picard’s earning power 

was not further reduced after her 2015 back injury, but went on 

to find that Picard was entitled to independent awards because 

the injuries were to separate body parts. The issue of whether a 

worker may recover independent awards for successive whole 

body injuries when the subsequent injury is to a separate body 

part, but does not result in a further loss of earning power, 

presents a question of law rather than fact. With respect to 

questions of law in workers’ compensation cases, an appellate 

court is obligated to make its own determination. 47

Pursuant to § 48-121(2), permanent partial disability benefits are measured not by loss of bodily function, but by 

reduction in or loss of earning power or employability. 48 The 

compensation is “the difference between the wages received at 

the time of the injury and the earning power of the employee 

thereafter.” 49

Picard’s loss of earning power after the subsequent injury 

cannot be accurately assessed without considering her disability from the first injury. At the time of the 2015 injury, Picard 

was working in a position that accommodated the limitations 

and restrictions from her 2012 injury. At the time of trial, 

Picard remained competitively employed at P & C in the same 

position she held prior to the 2015 injury; she was capable of 

performing her assigned job without any additional accommodations, limitations, or restrictions; and her hourly rate was 

greater than her hourly rate at the time of the 2015 accident. 

This demonstrates that Picard suffered no loss of earning 

capacity, and the Court of Appeals agreed.

But the Court of Appeals then held that the 2015 injury 

and impact on Picard’s lost earning power should be assessed 

independently of any limitations from Picard’s 2012 injury. 

Although the 2015 injury involved a different body part, 

47 Madlock v. Square D. Co., 269 Neb. 675, 695 N.W.2d 412 (2005).

48 See Davis v. Goodyear Tire & Rubber Co., supra note 42.

49 § 48-121(2) (emphasis supplied).
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Picard did not suffer a loss of earning power or employability 

as a result. Because Picard’s earning power was not impaired 

by the 2015 accident, the injury was not compensable under 

§ 48-121(2). We conclude that both the compensation court 

and the Court of Appeals erred in disregarding Picard’s disability from the 2012 accident when assessing her lost earnings from the 2015 injury. Accordingly, we reverse the Court 

of Appeals’ affirmance of the compensation court’s award of 

benefits for Picard’s 2015 accident and injury.

Double Recovery.

[18] P & C and amici curiae NWCEF argue that the Court 

of Appeals erred in holding that apportionment was inapplicable because the award for Picard’s 2015 injury resulted in an 

impermissible double recovery. Picard contends that P & C’s 

claim regarding double recovery is an equitable claim and that 

the compensation court lacks equitable jurisdiction. Having 

determined that Picard’s award for the 2015 injury should be 

reversed, we need not address this argument. An appellate 

court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. 50

CONCLUSION

We conclude that the Court of Appeals was correct in its 

conclusion that apportionment was inapplicable here. However, 

the Court of Appeals erred in affirming the compensation 

court’s award of benefits for Picard’s 2015 accident and injury. 

We therefore reverse this portion of the Court of Appeals’ 

decision and remand the cause with directions to enter an 

order affirming the compensation court’s award of benefits 

for the 2012 injury and reversing the award of benefits for the 

2015 injury.

Affirmed in part, and in part reversed 

and remanded with directions.

50 Whitesides v. Whitesides, 290 Neb. 116, 858 N.W.2d 858 (2015).