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Cite as 309 Neb. 270

Martin Boring, appellee, v. 

Zoetis LLC, appellant.

___ N.W.2d ___

Filed May 21, 2021. No. S-20-275.

1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. 

Stat. § 48-185 (Cum. Supp. 2020), an appellate court may modify, 

reverse, or set aside a Workers’ Compensation Court decision only when 

(1) the compensation court acted without or in excess of its powers; (2) 

the judgment, order, or award was procured by fraud; (3) there is 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. Workers’ Compensation: Attorney Fees: Penalties and Forfeitures.

The waiting-time penalty and attorney fees are available under Neb. 

Rev. Stat. § 48-125 (Cum. Supp. 2016) in cases brought to the Workers’ 

Compensation Court only where there is no reasonable controversy 

regarding an employee’s claim for workers’ compensation.

3. 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.

Petition for further review from the Court of Appeals, Bishop, 

Arterburn, and Welch, Judges, on appeal thereto from 

Nebraska Supreme Court Online Library

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

08/06/2021 08:11 AM CDT
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the Workers’ Compensation Court, J. Michael Fitzgerald, 

Judge. Judgment of Court of Appeals affirmed.

Eric T. Lanham, Sarah N. Boston, and A. Francesca Romano, 

of McAnany, Van Cleave & Phillips, P.A., for appellant.

Ryan C. Holsten and Nolan J. Niehus, Senior Certified Law 

Student, of Atwood, Holsten, Brown, Deaver, Spier & Israel 

Law Firm, P.C., L.L.O., for appellee.

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

Papik, and Freudenberg, JJ.

Per Curiam.

NATURE OF CASE

Martin Boring filed a petition in the Nebraska Workers’ 

Compensation Court (WCC) against Zoetis LLC, in which he 

claimed a compensable injury arising from his employment 

with Zoetis. The WCC awarded Boring, inter alia, temporary 

and permanent benefits, and it ordered Zoetis to pay Boring 

penalties and attorney fees pursuant to Neb. Rev. Stat. § 48-125 

(Cum. Supp. 2016). Zoetis appealed to the Nebraska Court of 

Appeals, which affirmed the award of benefits but reversed and 

vacated the award of penalties and attorney fees.

We granted Boring’s petition for further review in which he 

assigned error to the Court of Appeals’ decision that reversed 

and vacated the award of penalties and attorney fees. We determine that the WCC erred when it found that there was no reasonable controversy based solely on its reliance on the judicial 

admission in Zoetis’ answer, the effect of which Zoetis had 

later been relieved. Because the case was tried without reliance 

on a judicial admission, the WCC should have made its finding as to whether there was a reasonable controversy based on 

the evidence actually presented at trial. On appeal, the Court 

of Appeals reversed the award of penalties and attorney fees. 

On further review, although we articulate the rationale slightly 

differently, we affirm.
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STATEMENT OF FACTS

Boring was employed by Zoetis from June 2004 to 

September 2017. In October 2018, Boring filed a petition with 

the WCC in which he generally claimed a compensable injury 

arising from his employment with Zoetis. In paragraph 3 of 

the petition, Boring alleged that on February 7, 2017, he “sustained a work accident and injuries to his right upper extremity arising out of and in the course of his employment with” 

Zoetis. In paragraph 5, Boring alleged that “the matter or 

matters in dispute include the compensability of past, present, 

and future medical expenses, temporary disability and waiting 

time, interest and attorney’s fees and, to the extent [Boring] 

has reached maximum medical improvement at the time of 

trial, permanent impairment benefits.” Finally, in paragraph 6, 

Boring alleged that

no reasonable controversy exists concerning the compensability of [Boring’s] claim, and yet, despite more 

than thirty (30) day [sic] notice of [Boring’s] accident 

and injuries, [Zoetis] has failed and refused to make payment to [Boring] of compensable medical and mileage 

expenses and indemnity benefits, and [Boring] is therefore entitled to interest, costs, waiting time and attorney’s 

fees in accord with . . . §48-125.

In its answer, Zoetis admitted portions of Boring’s petition, 

including, inter alia, the allegations set forth in paragraph 3, 

in which Boring alleged that he had sustained a work-related 

accident and injury to his right upper extremity on February 

7, 2017. With regard to both paragraphs 5 and 6, regarding 

the extent of compensation and penalties respectively, Zoetis 

stated that it was “without knowledge to form a belief as to 

the allegations contained in” each of the paragraphs and that it 

therefore denied paragraphs 5 and 6.

A trial was held on October 29, 2019. Without objection, the 

WCC received into evidence a stipulation signed by both parties. They stipulated to, inter alia, the award to which Boring 

would be entitled “[s]hould the [WCC] find [Boring] suffered 
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a compensable accident and injury.” Boring testified at trial, 

and Zoetis presented testimony by a nurse practitioner who 

operated Zoetis’ occupational health clinic and treated Boring 

after he reported an injury in 2017. Without going into details 

here, the record at trial showed that Boring’s condition had 

been evaluated by a variety of health professionals, in addition 

to the foregoing nurse practitioner. These individuals included 

Dr. George Hansen, Dr. Patrick Hurlbut, a physical therapist, 

Dr. Kirk Hutton, and Dr. Michael Morrison. There were widely 

differing views about causation and the extent of Boring’s 

injury. In addition, there was a debate among the professionals 

as to whether Boring tripped in the autumn of 2017 and, if so, 

the consequences of such incident.

After the trial, on January 30, 2020, the WCC filed an order 

in which it found that on February 7, 2017, Boring injured his 

right shoulder in an accident arising out of and in the scope 

of his employment, and that such injury led to surgery on his 

shoulder. The WCC dedicated nearly six pages of its order to 

assessing the competing medical evidence. The WCC awarded 

Boring temporary and permanent benefits, payment for future 

medical care, a vocational evaluation and vocational rehabilitation services, and medical bills and mileage.

The WCC also addressed Boring’s request for penalties and 

attorney fees. The WCC rejected Zoetis’ argument in which 

it contended that there was a reasonable controversy and that 

therefore, Boring was not entitled to penalties and attorney 

fees under § 48-125. Notwithstanding the trial record and the 

WCC’s extensive weighing of the evidence that led it to find 

a compensable injury, the WCC proceeded in the remainder 

of its analysis as though injury had not been an issue. In its 

order, the WCC stated that Zoetis “admitted in its Answer 

that on February 7, 2017 [Boring] sustained a work accident 

and injuries to his right upper extremity arising out of and 

in the course of his employment with [Zoetis].” The WCC 

cited precedent to the effect that an admission in a pleading 

is a judicial admission, which is a substitute for evidence. 
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The WCC reasoned that Zoetis’ judicial admission relieved 

Boring of the burden to produce evidence that he injured his 

right shoulder on February 7, 2017, and that as a result of such 

admission Zoetis was “liable for treatment and medical care of 

[Boring’s] right shoulder and the payment of weekly benefits.” 

The WCC further reasoned that Zoetis’ admission of “the accident and injury entitles [Boring] to a penalty and attorney’s 

fees for nonpayment of medical expenses and nonpayment 

of weekly benefits.” After a subsequent hearing, the WCC 

ordered Zoetis to pay a penalty of $408.50 per week for late 

payment of temporary benefits that were due April 18, 2018, 

through July 1, 2019, and a penalty of $408.50 per week for 

33.75 weeks for late payment of permanent benefits. The WCC 

also ordered that Boring was entitled to a reasonable attorney 

fee of $15,333.

Zoetis appealed the WCC’s award to the Court of Appeals. 

Zoetis claimed that the WCC erred when it found that Boring’s 

injury arose out of and in the course of his employment and 

that he was entitled to temporary and permanent benefits, payment for past and future medical expenses and mileage, and 

a vocational evaluation and vocational rehabilitation services. 

Zoetis also claimed that the WCC erred when it awarded 

penalties and attorney fees. The Court of Appeals generally 

affirmed the award but reversed the portion of the order in 

which the WCC awarded penalties and attorney fees pursuant 

to § 48-125.

In a memorandum opinion, the Court of Appeals first 

addressed the WCC’s finding that Boring’s injury arose out of 

and in the course of his employment. See Boring v. Zoetis LLC, 

No. A-20-275, 2020 WL 7227304 (Neb. App. Dec. 8, 2020) 

(selected for posting to court website). The Court of Appeals 

began its analysis by rejecting Boring’s argument that by 

admitting paragraph 3 of Boring’s petition, Zoetis made a judicial admission that constituted a waiver of its right to challenge 

the finding that Boring’s shoulder injury arose out of and in the 

course of his employment with Zoetis. The Court of Appeals 
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reasoned that Zoetis’ admission to paragraph 3 constituted 

only an admission to “some work-related accident and injury 

suffered by Boring on February 7, 2017,” but that Zoetis’ 

denial of paragraph 6 of Boring’s petition made it “equally 

clear that Zoetis disputed the nature and extent of that injury 

and the benefits attributable thereto.” Id. at *7. The Court of 

Appeals characterized Zoetis’ position as being that “although 

Boring may have suffered a minor strain on February 7, 2017, 

that injury eventually healed and Boring was treated for a different shoulder injury by 2018 which required two surgeries,” 

and that therefore, “Boring’s injury on February 7, 2017, was, 

at best, a mild strain and did not support the stipulated benefits 

which were the result of a different injury.” Id. The Court of 

Appeals concluded that “Zoetis did not admit to the full extent 

of injury claimed by Boring.” Id.

The Court of Appeals proceeded to consider whether Boring 

presented sufficient evidence to support the WCC’s finding 

that the injury which required surgery arose out of and in the 

course of Boring’s employment with Zoetis. After reviewing 

the evidence, the Court of Appeals determined that there was 

sufficient evidence and it therefore affirmed the finding. The 

Court of Appeals further considered Zoetis’ claims that the 

evidence did not support the WCC’s awards of temporary and 

permanent benefits, and medical expenses and mileage, the 

amount of which awards was stipulated by the parties. The 

Court of Appeals concluded that because the record supported 

the finding that the injury requiring surgery arose out of and in 

the course of Boring’s employment with Zoetis, the WCC did 

not err when it awarded the stipulated benefits. The Court of 

Appeals therefore affirmed the awards, and it further affirmed 

the award relating to a vocational evaluation and vocational 

rehabilitation services.

Finally, the Court of Appeals considered Zoetis’ claim that 

the WCC erred when it awarded Boring penalties and attorney 

fees. The Court of Appeals cited § 48-125, which provides for 

a waiting-time penalty and attorney fees when the employer 
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fails to pay compensation within 30 days of notice of disability 

and the employee must seek an award in the WCC. The Court 

of Appeals cited precedent to the effect that penalties and 

attorney fees may be awarded under § 48-125 only when no 

reasonable controversy exists regarding the claim for workers’ 

compensation benefits.

The Court of Appeals noted that at trial, Zoetis “most certainly denied the nature and extent of Boring’s injuries and the 

case was tried primarily on the issue of causation.” Boring v. 

Zoetis LLC, 2020 WL 7227304 at *10. The Court of Appeals 

reviewed the evidence presented on that issue and observed 

that “there was evidence in this record that would support 

reasonable but opposite conclusions . . . regarding the nature 

and extent of Boring’s February 7, 2017, injury.” Id. The Court 

of Appeals ruled that a waiting-time penalty and attorney fees 

under § 48-125 were not justified. The Court of Appeals therefore reversed and vacated the portion of the WCC order awarding Boring penalties and attorney fees.

We granted Boring’s petition for further review.

ASSIGNMENT OF ERROR

Boring claims, combined and restated, that the Court of 

Appeals erred when it reversed and vacated the WCC’s award 

of penalties and attorney fees in contravention of its own precedent in Heesch v. Swimtastic Swim School, 20 Neb. App. 260, 

823 N.W.2d 211 (2012).

STANDARDS OF REVIEW

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

an appellate court may modify, reverse, or set aside a WCC 

decision only when (1) the WCC 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 WCC do not support the 

order or award. Parks v. Hy-Vee, 307 Neb. 927, 951 N.W.2d 

504 (2020).
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ANALYSIS

We note as an initial matter that Boring’s assignments of 

error on further review relate solely to the portion of the Court 

of Appeals’ decision in which it reversed and vacated the 

WCC’s award of penalties and attorney fees to Boring pursuant 

to § 48-125. Boring did not challenge the remaining portions 

of the Court of Appeals’ decision in which it affirmed the rest 

of the award. Furthermore, Zoetis did not cross-petition for 

further review. The only aspect of the Court of Appeals’ decision before us on further review is the part relating to penalties 

and attorney fees. The Court of Appeals’ decision in which it 

affirmed the WCC’s award of temporary and permanent benefits, payment for future medical care, a vocational evaluation 

and vocational rehabilitation services, and medical bills and 

mileage is therefore affirmed.

Boring’s assignments of error on further review relate to the 

WCC award of penalties and attorney fees pursuant to § 48-125, 

which award the Court of Appeals overturned on appeal. We 

therefore review statutory and case law standards governing 

such awards. Section 48-125(3) provides for a “waiting time” 

penalty for delinquent payments, and § 48-125(4) provides 

for “a reasonable attorney’s fee” when the employer “refuses 

payment of compensation or medical payments” and “proceedings are held before the [WCC].” We have recognized that 

the waiting-time penalty provided for in § 48-125(3) relates 

only to delinquent payments of compensation, which includes 

“‘periodic disability or indemnity benefits,’” and that the statute does not authorize a waiting-time penalty for delinquent 

payment of medical expenses. VanKirk v. Central Community 

College, 285 Neb. 231, 236, 826 N.W.2d 277, 281 (2013). 

With regard to attorney fees, however, we have noted that 

the Legislature amended the portion of the statute that is now 

§ 48-125(4) to specifically provide for an award of attorney 

fees related to medical expenses, as well as to compensation. 

Id. See, also, Bronzynski v. Model Electric, 14 Neb. App. 355, 

707 N.W.2d 46 (2005).
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[2,3] Although § 48-125 does not contain the words “reasonable controversy,” our case law has long held that the waitingtime penalty and attorney fees are available under § 48-125 in 

cases brought to the WCC only “where there is no reasonable 

controversy regarding an employee’s claim for workers’ compensation.” Picard v. P & C Group 1, 306 Neb. 292, 302, 945 

N.W.2d 183, 193 (2020). See, also, Bower v. Eaton Corp., 301 

Neb. 311, 918 N.W.2d 249 (2018). A “reasonable controversy” 

for the purpose of § 48-125 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 

WCC 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, supra. We have 

further noted:

Although the total amount of compensation due may be 

in dispute, the employer’s insurer nevertheless has a duty 

to promptly pay the amount which is undisputed, and the 

only legitimate excuse for delay of payment is the existence of genuine doubt from a medical or legal standpoint 

that any liability exists.

Bower v. Eaton Corp., 301 Neb. at 340, 918 N.W.2d at 272.

In its award in this case, the WCC rejected Zoetis’ argument that there was a reasonable controversy that prevented 

an award of penalties and attorney fees under § 48-125. The 

WCC found that there was no reasonable controversy solely 

because in its answer Zoetis had judicially admitted the allegations in paragraph 3 of Boring’s complaint. The WCC found 

that the existence of such admission made Zoetis “liable for 

treatment and medical care of [Boring’s] right shoulder and 

the payment of weekly benefits” and that because Zoetis’ 

answer “admit[ted] the accident and injury,” Boring was entitled “to a penalty and attorney’s fees for nonpayment of 
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medical expenses and nonpayment of weekly benefits” under 

§ 48-125.

On appeal, the Court of Appeals recognized the admission in Zoetis’ answer, but reasoned that although Zoetis had 

made such admission, “it most certainly denied the nature 

and extent of Boring’s injuries.” Boring v. Zoetis LLC, No. 

A-20-275, 2020 WL 7227304 at *10 (Neb. App. Dec. 8, 2020) 

(selected for posting to court website). The Court of Appeals 

noted that the trial in this case was primarily focused on determining the nature and extent of the injury Boring sustained on 

February 7, 2017. The Court of Appeals reasoned that because 

“Zoetis did not judicially admit the nature and extent of 

Boring’s injuries,” it was necessary for a court to “separately 

determine if a reasonable controversy existed as to the nature 

and extent of Boring’s injuries as contested by Zoetis.” Id.

Because the WCC had not separately evaluated the evidence 

to determine whether a reasonable controversy existed, the 

Court of Appeals examined the record. The Court of Appeals 

reviewed the evidence in the record and stated, inter alia, 

that the evidence “would support reasonable but opposite 

conclusions by the [WCC] regarding the nature and extent 

of Boring’s February 7, 2017, injury.” Id. at *11. Given this 

observation, the Court of Appeals determined that the WCC 

erred when it found no reasonable controversy and awarded 

penalties and attorney fees. The Court of Appeals reversed and 

vacated the portion of the WCC award granting such penalties 

and attorney fees.

Boring argues that the Court of Appeals’ decision in this 

case is contrary to its reasoning in Heesch v. Swimtastic Swim 

School, 20 Neb. App. 260, 823 N.W.2d 211 (2012), in which 

the employee alleged in her petition that she sustained a back 

injury arising out of and in the course of her employment and 

the employer admitted that allegation in its answer. The Court 

of Appeals in Heesch concluded that the employer’s admission in its answer was a binding judicial admission and that 

therefore, “there was no reasonable controversy about the basic 
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compensability of [the employee’s] workers’ compensation 

claim.” 20 Neb. App. at 274, 823 N.W.2d at 222-23. Boring 

contends that Heesch is controlling in this case and that Zoetis’ 

answer admitting paragraph 3 was a judicial admission of the 

basic compensability of his workers’ compensation claim.

In response to Boring’s petition for further review, Zoetis 

argues that this court’s precedent in Risor v. Nebraska Boiler, 

277 Neb. 679, 765 N.W.2d 170 (2009), is controlling. Zoetis 

relies on portions of Risor in which we reasoned that under 

Neb. Rev. Stat. § 48-168 (Cum. Supp. 2008), the WCC is not 

bound by formal rules of procedure, and that furthermore, 

formal pleading rules do not preclude an implicit amendment 

of pleadings to conform to the evidence when the parties try 

issues by consent. Zoetis contends that Boring consented to 

trying issues of causation and that there was an implicit amendment of the pleadings which overcame any judicial admission 

Zoetis had made in its answer. Zoetis argues that for purposes 

of § 48-125, such issues presented a reasonable controversy 

that precluded an award of penalties and attorney fees. Zoetis 

urges us to affirm the decision of the Court of Appeals.

On further review, we agree with the Court of Appeals 

that the WCC’s treatment of penalties and attorney fees was 

flawed. As we explain below, the WCC erred when it failed to 

examine the trial evidence to determine whether there was a 

reasonable controversy. And, although our explanation differs 

slightly from the Court of Appeals, we agree with the Court 

of Appeals that reversal of the award of penalties and attorney 

fees was warranted.

In its answer, Zoetis admitted Boring’s allegation that he 

“sustained a work accident and injuries to his right upper 

extremity arising out of and in the course of his employment 

with” Zoetis. At trial, contrary to this admission, the parties offered, and the court received, a trial stipulation signed 

by both parties in which, inter alia, the parties agreed to an 

award to which Boring would be entitled “[s]hould the [WCC] 

find [Boring] suffered a compensable accident and injury.” 
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Based on this stipulation, the parties agreed to litigate the existence of a compensable injury and Zoetis was relieved of its 

admission. Thereafter, the court allowed into evidence various 

exhibits offered by both parties, including medical records to 

which we referred earlier, and heard testimony by Boring and 

by the person who operated Zoetis’ occupational health clinic. 

We have reviewed the evidence; it shows that compensability 

and the nature and extent thereof were in controversy.

Comments made by both parties prior to trial recognized 

that there was an issue to be tried regarding whether there 

was a compensable accident and injury. The WCC asked the 

parties’ counsel “what is the argument about here?” Boring’s 

counsel responded, “There is a dispute between the doctors as 

to medical causation.” Zoetis’ counsel thereafter stated that the 

dispute was “a little more than that” and that “the real dispute 

is about, not just medical causation but whether there was an 

accident at all.” At the close of the evidence, when the WCC 

was setting a date for the parties to submit written arguments, 

the WCC stated:

[T]he question is, do I pay him or do I not? Do I find he 

got hurt on the job or didn’t get hurt on the job? If he got 

hurt on the job, then all of the stuff is going to fall into 

place. If he didn’t get hurt on the job, then nothing false 

[sic] into place. Right?”

We have recognized that pleadings and admissions therein 

may be superseded at trial. We have stated that a “pretrial 

order is binding upon the parties” and that “the issues set out 

in a pretrial order supplant those raised in the pleadings.” Hall 

v. County of Lancaster, 287 Neb. 969, 978, 846 N.W.2d 107, 

115 (2014), overruled on other grounds, Davis v. State, 297 

Neb. 955, 902 N.W.2d 165 (2017). We have also recognized, 

“‘A judicial admission is ordinarily final and conclusive upon 

the party by whom it was made, unless the trial court, in the 

exercise of a judicial discretion, timely relieves [the party] 

from that consequence.’” Vermaas v. Heckel, 170 Neb. 321, 

325, 102 N.W.2d 647, 652 (1960). Finally, as Zoetis argues, 
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in Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 

(2009), we stated that under § 48-168, the WCC is not bound 

by formal rules of procedure, and that formal pleading rules do 

not preclude an implicit amendment of pleadings to conform 

to the evidence when the parties try issues by consent. Each of 

the foregoing propositions lends support to our determination 

that compensability was an issue at the trial.

We have stated that a judicial admission “constitutes a 

waiver of all controversy so far as the adverse party desires to 

take advantage of it, and therefore is a limitation of the issues,” 

and that a party may “invoke the language of the pleading of 

his [or her] adversary on which the case is tried on a particular 

issue as rendering certain facts indisputable.” Saberzadeh v. 

Shaw, 266 Neb. 196, 199, 663 N.W.2d 612, 615-16 (2003). 

In Saberzadeh, we noted that although one party may have 

made a judicial admission, the opposing party did not seek 

to take advantage of the judicial admission by invoking it at 

trial, and we determined that the opposing party was therefore 

not relieved of the burden of producing evidence in support of 

his allegation.

Applying the foregoing principles, we determine that regardless of the fact that Zoetis’ answer included a judicial admission regarding Boring’s injury, whether Boring suffered a 

compensable injury was in fact an issue at trial in this case as 

indicated by the stipulation, the comments of the parties and 

the WCC, and the evidence. As this case was tried, Boring did 

not invoke a judicial admission to relieve himself of the burden 

of presenting evidence to establish a compensable injury, and 

the WCC found a compensable injury based on the evidence 

rather than on a judicial admission.

Because the issue of compensability was not resolved based 

on a judicial admission, the WCC’s finding of fact that there 

was no reasonable controversy was clear error because such 

finding was based entirely on the erroneous premise that the 

case had been resolved by a judicial admission rather than by 

the evidence. Instead of relying on a judicial admission, the 
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WCC should have recognized the manner in which this case 

was actually tried and thereafter looked to the evidence that 

was presented in order to make a finding of whether or not 

the evidence presented a reasonable controversy. The Court of 

Appeals recognized this flaw and reversed the WCC’s award of 

penalties and attorney fees.

Because this case is before us on further review, we must 

further determine whether the Court of Appeals erred when 

it vacated the award of penalties and attorney fees. We find 

no error.

As the Court of Appeals recognized, compensability and the 

nature and extent of the injury were all at issue at trial. Upon 

noticing that the WCC’s finding of reasonable controversy 

was problematic, the Court of Appeals observed that “there 

was evidence in this record that would support reasonable but 

opposite conclusions . . . regarding the nature and extent of 

Boring’s February 7, 2017, injury.” Boring v. Zoetis LLC, No. 

A-20-275, 2020 WL 7227304 at *10 (Neb. App. Dec. 8, 2020) 

(selected for posting to court’s website). As we read the Court 

of Appeals’ opinion, at this point, the Court of Appeals determined that the existence of competing conclusions created a 

reasonable controversy and that this was sufficient to reverse 

the WCC’s award of penalties and attorney fees. But this 

approach implies that the Court of Appeals found, as a question 

of fact, that there was a reasonable controversy.

Focusing on an appellate court’s review, two standards intersect. On the one hand, whether a reasonable controversy exists 

under § 48-125 is a question of fact. Bower v. Eaton Corp., 

301 Neb. 311, 918 N.W.2d 249 (2018). And an appellate court 

reviews a question of fact for clear error. See id. But on the 

other hand, where the facts are not in dispute concerning what 

is ordinarily a question of fact and where the inference is clear 

that reasonable people could not disagree about the matter, the 

matter is a question of law. See, Aboytes-Mosqueda v. LFA Inc., 

306 Neb. 277, 944 N.W.2d 765 (2020); A.W. v. Lancaster Cty. 

Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (2010). As 
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to questions of law, an appellate court is obligated to make its 

own determinations. See Bower v. Eaton Corp., supra.

Thus, the correct statement of the appellate exercise is as 

follows: Based on a review of this record and disregarding the 

purported judicial admissions, could a reasonable fact finder 

have made the same decision—that no reasonable controversy 

existed? If so, the issue must be remanded to the WCC as the 

finder of fact. On the other hand, if the only possible conclusion of a reasonable fact finder, disregarding the purported 

admissions, is that a reasonable controversy existed, then the 

matter becomes a question of law to be resolved by the appellate court.

Applying this exercise, we believe that, as a matter of 

law, based on the trial record and disregarding the purported 

judicial admissions, a reasonable fact finder could reach only 

one conclusion—that a reasonable controversy existed. Given 

this determination, the Court of Appeals did not err when it 

reversed the WCC’s award of penalties and attorney fees.

CONCLUSION

Neither party sought further review of the portions of the 

Court of Appeals’ decision that affirmed the WCC’s order 

awarding Boring temporary and permanent benefits, payment 

for future medical care, vocational evaluation and vocational 

rehabilitation services, and medical bills and mileage. We 

therefore affirm those portions of the Court of Appeals’ decision that affirmed these awards.

With regard to the portion of the Court of Appeals’ decision 

that reversed the WCC’s award of penalties and attorney fees 

pursuant to § 48-125, for reasoning different from the Court of 

Appeals, we affirm.

Affirmed.