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BOWER v. EATON CORP.

Cite as 301 Neb. 311

John J. Bower, appellant and cross-appellee, 

v. Eaton Corporation and Old Republic

Insurance Company, appellees

and cross-appellants.

___ N.W.2d ___

Filed October 12, 2018. No. S-17-1188.

1. Workers’ Compensation: Appeal and Error. An appellate court is 

obligated in workers’ compensation cases to make its own determinations as to questions of law.

2. ____: ____. Determinations by a trial judge of the Workers’ 

Compensation Court will not be disturbed on appeal unless they are 

contrary to law or depend on findings of fact that are clearly wrong in 

light of the evidence.

3. Workers’ Compensation. Whether an injured worker is entitled to 

vocational rehabilitation is ordinarily a question of fact to be determined 

by the Workers’ Compensation Court.

4. Workers’ Compensation: Appeal and Error. The percentage of permanent partial loss of use for an injured member is a question of fact 

that an appellate court reviews for clear error.

5. Workers’ Compensation: Expert Witnesses. As the trier of fact, the 

Workers’ Compensation Court is the sole judge of the credibility of the 

witnesses and the weight to be given their testimony.

6. Workers’ Compensation: Rules of Evidence: Due Process. The 

Workers’ Compensation Court is empowered to admit evidence not 

normally admissible under the rules of evidence applicable in the trial 

courts of this state, subject to the limits of constitutional due process.

7. Workers’ Compensation: Evidence. Given the beneficent purposes 

of workers’ compensation law, the Workers’ Compensation Court can 

admit evidence not normally admissible in order to investigate cases in 

the manner it judges is best calculated to ascertain the substantial rights 

of the parties and to carry out justly the spirit of the Nebraska Workers’ 

Compensation Act.

Nebraska Supreme Court Online Library

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

11/09/2018 08:12 AM CST
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8. Workers’ Compensation: Physicians and Surgeons: Words and 

Phrases. Only the supervising physician in a physician-physician assistant relationship falls under the definition of physician as stated in 

Workers’ Comp. Ct. R. of Proc. 49(O) (2018).

9. Workers’ Compensation: Appeal and Error. Whether an employee’s 

compensable scheduled member injury has resulted in a whole body 

impairment and loss of earning power is a question of fact, which an 

appellate court reviews for clear error.

10. Workers’ Compensation. Employees are not limited to benefits for a 

scheduled member injury when the effects of that injury have extended 

to other parts of the employee’s body in a manner that impairs the 

employee’s ability to work.

11. ____. The test for determining whether a disability is to a scheduled 

member or to the body as a whole is the location of the residual impairment, not the situs of the injury.

12. Workers’ Compensation: Proof. An employee has the burden to prove 

by a preponderance of the evidence compensability of a claim against an 

employer under the Nebraska Workers’ Compensation Act.

13. Workers’ Compensation. A workers’ compensation award cannot be 

based on mere possibility or speculation.

14. Workers’ Compensation: Evidence. An award of future medical 

expenses requires explicit evidence that future medical treatment is reasonably necessary to relieve the injured worker from the effects of the 

work-related injury.

15. Appeal and Error. An appellate court will not consider an issue on 

appeal that was not presented to or passed upon by the trial court.

16. Workers’ Compensation. The Nebraska Workers’ Compensation Act is 

construed liberally to carry out its spirit and beneficent purposes.

17. Workers’ Compensation: Jurisdiction: Statutes. As a statutorily created court, the Workers’ Compensation Court is a tribunal of limited and 

special jurisdiction and has only such authority as has been conferred on 

it by statute.

18. Workers’ Compensation: Jurisdiction: Contracts: Parties: Insurance. 

The Nebraska Workers’ Compensation Act does not afford the compensation court jurisdiction to resolve contractual disputes between employees and third-party insurers.

19. Workers’ Compensation: Jurisdiction: Contracts: Insurance. A contractual dispute over private agreements for disability coverage that is 

not workers’ compensation coverage is not ancillary to the compensation 

court’s primary jurisdiction.

20. Workers’ Compensation: Jurisdiction: Termination of Employment. 

Wrongful discharge in relation to filing a workers’ compensation claim 
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BOWER v. EATON CORP.

Cite as 301 Neb. 311

does not fall under the compensation court’s exclusive jurisdiction over 

accidents arising out of and in the course of employment.

21. Workers’ Compensation: Termination of Employment: Torts. 

Wrongful discharge is not one of the tort actions for which employers 

receive relief in exchange for liability under the Nebraska Workers’ 

Compensation Act.

22. Workers’ Compensation: Penalties and Forfeitures. To avoid the 

penalty provided for in Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016), 

an employer need not prevail in the employee’s claim, but must have 

an actual basis in law or fact for disputing the claim and refusing 

compensation.

23. Workers’ Compensation: Penalties and Forfeitures: Time: Appeal 

and Error. An appellate court reviews for clear error the compensation 

court’s findings concerning reasonable controversy underlying its determination of waiting-time penalties.

24. Workers’ Compensation: Proof. Depending on the circumstances, a 

reasonable controversy may exist regarding the employer’s liability until 

an employee presents the employer with competent medical evidence 

that he or she is entitled to workers’ compensation benefits.

25. Attorney Fees. The determination of the amount of attorney fees is 

necessarily a question of fact that requires a factual determination on 

several factors, including the value of legal services rendered by an 

attorney by considering the amount involved, the nature of the litigation, 

the time and labor required, the novelty and difficulty of the questions 

raised, the skill required to properly conduct the case, the responsibility assumed, the care and diligence exhibited, the result of the suit, the 

character and standing of the attorney, and the customary charges of the 

bar for similar services.

Appeal from the Workers’ Compensation Court: Thomas E. 

Stine, Judge. Affirmed.

Vikki S. Stamm and Jerad A. Murphy, of Stamm, Romero & 

Associates, P.C., L.L.O., for appellant.

Kent M. Smith and Michael J. Lunn, of Scheldrup, Blades, 

Schrock & Smith, P.C., for appellees.

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

Papik, and Freudenberg, JJ.
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BOWER v. EATON CORP.

Cite as 301 Neb. 311

Freudenberg, J.

NATURE OF CASE

The employee appeals from an award of the Nebraska 

Workers’ Compensation Court. The issues presented concern 

the employee’s member impairment rating, whether an injured 

extremity caused a whole body impairment, the sufficiency 

of the evidence to prove out-of-pocket medical expenses and 

future medical expenses, whether a physician assistant is a 

“physician” for the purpose of admitting signed written reports 

in lieu of testimony, whether there was no reasonable controversy as to the compensability of the injury such that greater 

waiting-time penalties should have been imposed, the compensation court’s jurisdiction to decide retaliatory discharge or a 

private disability insurer’s right to reimbursement, the necessity of vocational rehabilitation, and the amount of attorney 

fees. We affirm.

BACKGROUND

John J. Bower worked for Eaton Corporation (Eaton) as a 

relief operator. Bower earned approximately $19 per hour and 

worked approximately 56 hours per week. On September 30, 

2013, Bower injured his right shoulder in an accident arising 

out of and in the course of his employment.

Bower reported the incident to his supervisor that same day, 

but continued working until the end of his shift. Bower woke 

up the following morning with “the sharpest pain I’ve ever . . . 

felt before.” He saw his general physician, Dr. Chadd Murray. 

An x ray did not reveal an injury.

When nonsurgical treatments did not alleviate continuing 

symptoms, Bower was referred to Dr. Heber Crockett, an 

orthopedic surgeon, for treatment of his injury. Magnetic resonance imaging on November 25, 2013, revealed a moderate 

partial rotator cuff tear.

Over the course of the next 3 years, the injury was treated 

with medication, steroid injections, physical therapy, and four 

surgical procedures. The surgical procedures were performed 
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on February 4 and May 20, 2014, and March 17 and December 

22, 2015. During this time, Eaton did not acknowledge that the 

injury was work related and did not pay workers’ compensation benefits.

Bower filed a workers’ compensation claim on February 

24, 2015. Bower reached maximum medical improvement on 

June 6, 2016, during the pendency of the workers’ compensation proceedings. He submitted to an independent medical 

examination on July 7, conducted by Dr. Michael Morrison, an 

orthopedic surgeon.

Morrison opined that Bower suffered from a permanent 

12-percent impairment of his right upper extremity as a result 

of the September 2013 injury. After receiving Morrison’s 

report, Eaton determined that Bower had incurred a workrelated injury on September 30, 2013. Eaton determined that 

the February and May 2014 and March 2015 surgical procedures were compensable. But Eaton determined that the 

December 2015 surgery was not compensable.

On August 12, 2016, Eaton paid Bower temporary total disability benefits representing the periods from February 4 until 

July 17, 2014, and March 17 until August 16, 2015, in a total 

amount of $33,073.72. Eaton also paid on August 12, 2016, 

$19,718.91 in permanent partial disability benefits based on 

Morrison’s assessment of a 12-percent permanent impairment 

of Bower’s right upper extremity.

On September 1, 2016, Eaton discharged Bower from his 

employment, explaining to Bower that Eaton could not accommodate the work restrictions for his injury. Bower had been 

performing his regular duties without any accommodations, 

believing that he was adequately compensating with his left 

arm in order to avoid lifting too much weight with his right. 

Moreover, Bower believed he was qualified to continue working at Eaton in different positions as the “lead” or supervisor 

of the line. Nevertheless, representatives of Eaton told him 

that he was not working within his restrictions and that he 
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Cite as 301 Neb. 311

would be discharged unless he could convince a physician to 

reduce them.

In his petition, Bower had sought temporary total disability benefits, vocational rehabilitation, and payment of medical bills incurred and to be incurred in the future, as well as 

waiting-time penalties and attorney fees. In a joint pretrial 

memorandum, the parties presented several issues for determination, including reimbursement for out-of-pocket medical 

expenses and entitlement to future medical expenses, entitlement to return to work at Eaton or vocational rehabilitation 

services, the amount of Bower’s permanency rating to his 

right upper extremity and whether he suffered a whole body 

impairment, Eaton’s insurer’s entitlement to repayment for 

short-term disability payments made to Bower in relation to his 

injury, Bower’s entitlement to attorney fees and a waiting-time 

penalty, and whether Bower was entitled to compensation for 

allegedly being discharged in retaliation for Eaton’s payment 

of workers’ compensation benefits.

The statement of issues for determination in the joint pretrial memorandum did not include reimbursement for vacation 

time used during treatment of the September 2013 injury. In 

the court’s notice of trial and pretrial order, it had advised the 

parties that any issue not set forth in the joint pretrial memorandum would be deemed waived.

The court issued its award on October 16, 2017, following 

a trial.

Temporary Total

Disability Awarded

In the court’s award, it found that all the surgeries were 

compensable. Thus, in addition to the amount paid voluntarily 

by Eaton during the pendency of the proceedings, the court 

awarded temporary total disability benefits pertaining to the 

December 2015 surgery. This amounted to a total of $1,877.99, 

which neither party disputes on appeal.
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BOWER v. EATON CORP.

Cite as 301 Neb. 311

Permanent Disability Based on

Member Impairment Rating

of 12 Percent

The court awarded permanent disability benefits based on 

a 12-percent impairment to Bower’s right upper extremity. 

This member impairment rating was derived from Morrison’s 

report.

Bower had submitted a report by Crockett’s physician 

assistant, Yuji Kitabatake. Kitabatake opined in the report 

that Bower suffered a 15-percent permanent impairment to his 

right upper extremity. The report was signed “Yuji Kitabatake, 

PA-C for Heber C. Crockett, M.D.” Crockett did not sign the 

document. Eaton objected to the report as hearsay and outside 

the scope of Workers’ Comp. Ct. R. of Proc. 10 (2018). The 

court received the report into evidence, but stated it would 

give the report whatever weight it found was due after reviewing it.

In its award, the court concluded that the report was not 

due any weight. Citing to Neb. Rev. Stat. § 48-151(1) (Reissue 

2010) and Workers’ Compensation Court rule 10, the court 

found that the report failed to qualify as an expert medical 

opinion upon which it could rely for a determination of workers’ compensation benefits.

No Whole Body Impairment

The court declined Bower’s suggestion that his permanent 

disability benefits should be calculated based upon a loss of 

earning capacity under an impairment to the body as a whole. 

The only evidence of an impairment to the body as a whole 

was Kitabatake’s report which stated, “Conversion from upper 

extremity to whole person is from 15% to 9% of whole person 

. . . .” Kitabatake did not otherwise describe how the shoulder 

injury caused a whole body impairment.

In refusing to calculate the permanent partial disability 

award based on impairment to the body as a whole, the court 

reasoned that the medical evidence showed Bower’s residual 
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BOWER v. EATON CORP.

Cite as 301 Neb. 311

limitation and impairment were to his right upper extremity, 

and the court was “not persuaded that [Bower’s] impairment to 

his right upper extremity has in some manner manifested itself 

as a . . . whole [body] impairment.”

Partial Waiting-Time

Penalty Awarded

The court awarded Bower a waiting-time penalty pursuant 

to Neb. Rev. Stat. § 48-125(3) (Cum. Supp. 2016), but only in 

relation to Eaton’s failure to timely pay workers’ compensation benefits for the December 2015 surgery and corresponding 

recovery period. The waiting-time penalty for such benefits 

was $939. The court found that there was no longer a reasonable controversy as to the compensability of Bower’s injury 

and the resulting medical care, including the December 2015 

surgery and recovery period, as of the date of Eaton’s receipt 

of Morrison’s report.

The court declined to award additional waiting-time penalties in relation to the remaining benefits that were paid by 

Eaton voluntarily on August 12, 2016, because it concluded 

that a reasonable controversy existed as to the compensability 

of Bower’s injury until Eaton received Morrison’s report. The 

court explained that the reasonable controversy stemmed from 

Murray’s original progress note. The note described that Bower 

was seen on October 1, 2013, complaining of shoulder pain. 

And, in the “History of Present Illness” section, under the title, 

“Recent Interventions,” Murry wrote, “He has no injury to his 

shoulder just woke up with the pain.”

When an agent of Eaton advised Bower that Murray had 

failed to indicate the injury was work related, Murray revised 

the progress note. The revision was apparently faxed to Eaton 

on November 22, 2013. It added that Bower “had injured his 

shoulder at work when he was lifting a heavy item, he has had 

pain but it became much worse this morning.” However, the 

amended note continued to include the contradictory language 

from the original progress note.
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BOWER v. EATON CORP.

Cite as 301 Neb. 311

Exhibit 48 reflects that Eaton’s workers’ compensation 

insurer sent a letter to Murray on December 10, 2013, requesting that Murray explain the discrepancies between the initial 

report and the revised report and why it was changed. The 

letter stated that Eaton’s workers’ compensation insurer had 

attempted to speak with Murray on several occasions to discuss 

the discrepancy. There was no evidence that Murray responded 

to Eaton’s inquiries.

No Out-of-Pocket Medical

Expenses Awarded

The court denied Bower’s claim for unpaid out-of-pocket 

medical expenses. In its pretrial order, the court had ordered 

the parties to file a joint pretrial memorandum, including, 

among other things, a “medical expense cover sheet setting 

forth an itemization of each medical expense incurred and 

unpaid, or for which reimbursement is claimed, by provider, 

date, and amount.”

The parties jointly submitted a medical expense cover sheet 

that specified providers and amounts, but not dates. It showed 

a total paid by Bower in the amount of $3,975.41 and a total 

paid by Bower’s insurer in the amount of $38,735.88. The 

cover sheet showed a total amount of medical expenses, by 

provider, of $104,356.87.

At trial, Bower entered into evidence voluminous medical 

billing statements and records. The medical billing statements 

are contained in exhibits 23 through 32, and the medical 

records are found in exhibits 16 through 20. The billing statements show numerous payments made by health care insurance 

and by patient, but several statements contain overlapping 

dates, and thus duplicative payment receipts.

The court additionally accepted into evidence exhibits 14 

and 15, which contain Bower’s summarization of his out-ofpocket expenses. Most, but not all, of the items summarized 

are detailed by date and provider. Exhibits 14 and 15 claimed a 

total of $12,315.94 in out-of-pocket expenses. Bower testified 
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Cite as 301 Neb. 311

that he was never reimbursed for any out-of-pocket expenses 

he paid during the treatment of his injury.

After trial, the court contacted counsel and requested additional information to clarify the medical expenses. Counsel 

were to submit the information by stipulation on October 6, 

2017. Counsel did not provide the information as requested. 

Approximately 2 weeks later, the court again contacted counsel 

on October 10, requesting additional information. Counsel indicated they would have the information to the court by October 

12; but counsel did not provide any additional information.

In denying compensation for any out-of-pocket medical 

expenses, the court explained, “The medical expense information provided by the parties falls woefully short of what was 

ordered to be provided by the Pretrial Order, and the Court is 

unable to meaningfully analyze the information.” Specifically, 

the court noted that the cover sheet reflected medical expenses 

still owed in an amount of $61,645.58, which amount the court 

observed was not reflected in the exhibits entered into evidence. Furthermore, the court noted the discrepancy between 

the claimed amount of out-of-pocket medical expenses in 

exhibits 14 and 15 of $12,315.94 and the amount of $3,975.41 

stated as being paid by Bower in the medical expenses cover 

sheet of the joint pretrial memorandum.

The court concluded that Bower had “failed to satisfy his 

burden to prove that the medical expenses submitted in Exhibits 

14, 15, and 23 through 32, are fair, reasonable, and related to 

the work injury.” With this reasoning, the court awarded Bower 

no out-of-pocket medical expenses.

Attorney Fees Awarded

Because the court had determined that Eaton failed to timely 

pay benefits relating to the December 2015 surgery, the court 

awarded attorney fees under § 48-125(2)(a), in the amount of 

$7,500. The court explained that it had reached the amount of 

attorney fees to be awarded based upon the general nature of 

the case, the time spent in preparing and trying the case, the 
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Cite as 301 Neb. 311

novelty and difficulty of the questions raised, the skill required 

to properly conduct the case, the responsibility assumed, the 

care and diligence exhibited, the result of the suit, the character and standing of the attorney, and the customary charges of 

the bar for similar services.

No Future Medical

Expenses Awarded

The court did not award future medical expenses. The court 

found that Bower had failed to establish by explicit medical testimony that future medical care would be reasonably 

necessary.

Bower had testified at trial that Crockett told him he might 

need additional cortisone injections if his pain increased; 

Crockett did not testify. The only other evidence submitted by 

Bower as to future medical treatment was Kitabatake’s report, 

in which Kitabatake opined that “it is a reasonable degree of 

medical certainty that [Bower] may need injections and physical therapy in the future.”

In contrast, Morrison opined in his report that “no other 

treatment is necessary other than a home program of passive 

stretching and shoulder girdle strengthening that could be carried out on a self-motivated program.”

In denying an award of future medical expenses, the court 

reiterated that Kitabatake’s opinions lacked foundation and 

were accordingly insufficient to support an award of benefits. 

Additionally, the court reasoned that Kitabatake’s statement 

that Bower “may” need additional care lacked sufficient certainty to be considered explicit medical evidence of the necessity of future medical care.

Vocational Rehabilitation

Services Awarded

The court concluded that Bower was entitled to vocational 

rehabilitation services and temporary total disability benefits 

during the time that Bower participates in an approved vocational rehabilitation plan.
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The court had appointed a vocational rehabilitation counselor. The stipulation of facts in the joint pretrial memorandum 

stated, “[Bower] has been referred to a vocational rehabilitation 

expert through the Worker[s’] Compensation Court system.”

The counselor submitted four reports between February 

and August 2017. The reports indicate that the counselor had 

attempted to find suitable employment for Bower with Eaton, 

but was unsuccessful. The counselor’s labor market research 

indicated that if Bower returned to the labor market with his 

current qualifications, he could expect to obtain employment 

earning approximately 60 percent of the hourly wage he earned 

at Eaton, or approximately $12 per hour.

With the approval of the court, the counselor subsequently 

conducted a vocational evaluation. Based on the evaluation, 

the counselor recommended moving forward with developing a 

vocational rehabilitation plan.

The court found that Bower had met his burden to show he 

is entitled to vocational rehabilitation services. Referring to 

the stipulation of facts in the joint pretrial memorandum, the 

court reasoned, first, that “[t]he parties stipulated that [Bower] 

is entitled to vocational rehabilitation services and a counselor 

has been appointed by the Court to perform these services.” 

Second, the court noted that there was medical evidence in 

the record that Bower was unable to return to work at Eaton 

after the December 2015 surgery, because Eaton was unable to 

accommodate the permanent work restrictions set forth by the 

functional capacity examination.

No Jurisdiction Over Short- and

Long-Term Disability Payments

The court declined the parties’ invitation to address whether 

Bower was liable to Eaton’s private insurer for disability 

payments made in relation to Bower’s injury. Bower had 

submitted into evidence demands by Eaton’s insurance provider that Bower repay approximately $16,000 in short-term 

disability payments made by the insurer while Eaton refused 
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workers’ compensation benefits. The short-term disability 

insurance plan, signed by Bower, provided that Bower would 

reimburse the insurer to the extent that benefits paid should 

be offset by reason of benefits received under any workers’ compensation law. The court explained that this issue 

involved contract questions outside the jurisdictional scope of 

the Nebraska Workers’ Compensation Act and the Workers’ 

Compensation Court.

No Jurisdiction Over

Wrongful Termination

Likewise, the court determined that it lacked jurisdiction 

to consider Bower’s wrongful discharge allegations. Bower 

testified that he did not think Eaton had grounds to discharge 

him, because he believed he could perform his duties within 

the medical restrictions he had been given. The court concluded that any claim for retaliatory discharge is outside the 

framework of the Nebraska Workers’ Compensation Act. Thus, 

Bower’s potential remedy for the alleged retaliatory discharge 

must be brought in a different forum.

Reimbursement for Vacation Time

The court’s award did not address any claim for compensation of vacation time used during periods Bower could not 

work because of the September 2013 injury. This was presumably because Bower did not include this issue in the pretrial 

statement of issues for determination.

ASSIGNMENTS OF ERROR

Bower assigns that the Workers’ Compensation Court erred 

by failing to (1) award permanent disability based on a loss 

of earning capacity rather than a member impairment rating, 

(2) award permanent disability based on a 12-percent member 

impairment rating rather than a 15-percent member impairment rating, (3) award a waiting-time penalty from the date 

of the injury rather than the date of payment of benefits in 

August 2016, (4) award Bower out-of-pocket medical expenses 
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pursuant to the exhibits offered at trial, (5) award future medical expenses for cortisone injections, (6) award reimbursement 

of vacation time and short-term disability, (7) decide the issue 

of Eaton’s right to reimbursement of disability payments made 

by its insurer, and (8) decide Bower’s wrongful termination claim.

On cross-appeal, Eaton and its workers’ compensation insurance carrier, Old Republic Insurance Company (Old Republic), 

assign that the court erred in awarding Bower (1) vocational 

rehabilitation services and (2) $7,500 in attorney fees.

STANDARD OF REVIEW

Under Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016), the 

judgment made by the compensation court shall have the same 

force and effect as a jury verdict in a civil case and 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.

[1] An appellate court is obligated in workers’ compensation 

cases to make its own determinations as to questions of law.1

[2] Determinations by a trial judge of the Workers’ 

Compensation Court will not be disturbed on appeal unless 

they are contrary to law or depend on findings of fact that are 

clearly wrong in light of the evidence.2

[3] Whether an injured worker is entitled to vocational rehabilitation is ordinarily a question of fact to be determined by 

the Workers’ Compensation Court.3

1 See Dragon v. Cheesecake Factory, 300 Neb. 548, 915 N.W.2d 418 

(2018).

2 Id.

3 Anderson v. EMCOR Group, 298 Neb. 174, 903 N.W.2d 29 (2017).
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ANALYSIS

Bower claims on appeal that the court’s award of a 12-percent 

impairment was insufficient and that, in any event, he should 

have been awarded permanent partial disability based on an 

injury to his body as a whole. Bower argues, further, that the 

court clearly erred in failing to award him any out-of-pocket 

medical expenses and that it should have awarded a waitingtime penalty for all the compensation and medical payments 

unpaid within 30 days of Murray’s revised progress note. 

Finally, Bower asserts that the court should have addressed the 

merits of his retaliatory discharge claim, the employer’s private 

disability insurer’s right to reimbursement for temporary disability payments, and Bower’s right to reimbursement of vacation time used as a result of his injury. On cross-appeal, Eaton 

and Old Republic contest the necessity of vocational rehabilitation and the amount of attorney fees awarded. We address each 

of these arguments in turn.

Member Impairment Rating

[4] We first address Bower’s contention that the court should 

have given his scheduled member impairment a rating of 15 

percent rather than 12 percent. The percentage of permanent 

partial loss of use for an injured member is a question of fact 

that we review for clear error.4

[5] Impairment to a scheduled member is measured on the 

basis of loss of physical function.5 An impairment rating is 

simply a medical assessment of what physical abilities have 

been adversely affected or lost by an injury.6 The extent of loss 

4 See, Ideen v. American Signature Graphics, 257 Neb. 82, 595 N.W.2d 233 

(1999); Schmid v. Nebraska Intergov. Risk Mgt. Assn., 239 Neb. 412, 476 

N.W.2d 243 (1991); Knuffke v. Bartholomew, 106 Neb. 763, 184 N.W. 889 

(1921).

5 See, Neb. Rev. Stat. § 48-121 (Reissue 2010); Yager v. Bellco Midwest, 

236 Neb. 888, 464 N.W.2d 335 (1991).

6 Swanson v. Park Place Automotive, 267 Neb. 133, 672 N.W.2d 405 

(2003).
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of use does not necessarily equal the extent of medical impairment, and testimony need not establish a specific percentage 

impairment rating to be legally sufficient.7 Furthermore, the 

trial judge is not limited to expert testimony to determine the 

degree of disability, but instead may rely on the testimony 

of the claimant.8 Nonetheless, the medical impairment rating 

given by a doctor may be an important factor.9 And, as the trier 

of fact, the Workers’ Compensation Court is the sole judge 

of the credibility of the witnesses and the weight to be given 

their testimony.10

Kitabatake’s report was the only express medical opinion 

that Bower suffered from a 15-percent impairment to his right 

upper extremity. Bower asserts that the court erred as a matter 

of law in deciding not to give Kitabatake’s report weight on the 

ground that it failed to comply with Workers’ Compensation 

Court rule 10. We find no merit to this argument.

[6,7] The compensation court does not have the right to 

establish rules of evidence, procedure, or discovery that are 

more restrictive or onerous than the rules applicable to the 

trial courts in this state.11 But it is empowered to admit evidence not normally admissible under the rules of evidence 

applicable in the trial courts of this state, subject to the limits 

of constitutional due process.12 This is because the Workers’ 

Compensation Court is not bound by the usual common-law 

or statutory rules of evidence.13 Given the beneficent purposes of workers’ compensation law, the court can admit such 

7 See id.

8 See Tchikobava v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610 (2016).

9 See Swanson v. Park Place Automotive, supra note 6.

10 Kerkman v. Weidner Williams Roofing Co., 250 Neb. 70, 547 N.W.2d 152 

(1996).

11 Cunningham v. Leisure Inn, 253 Neb. 741, 573 N.W.2d 412 (1998).

12 See, Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354 

(2007); Cunningham v. Leisure Inn, supra note 11.

13 Cunningham v. Leisure Inn, supra note 11.
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evidence in order to investigate cases in the manner it judges 

is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of the Nebraska Workers’ 

Compensation Act.14

Rule 10 is an evidentiary rule that we have held is not more 

restrictive than the rules applied to trial courts in this state.15

Rather, rule 10 allows the compensation court to admit into 

evidence medical reports that would not normally be admissible in the trial courts of this state.16 Rule 10 states in relevant part:

A. Medical and Vocational Rehabilitation. . . . [W]ith 

respect to medical evidence on hearings before a judge of 

[the Workers’ Compensation C]ourt, written reports by 

a physician or surgeon duly signed by him, her or them 

and itemized bills may, at the discretion of the court, be 

received in evidence in lieu of or in addition to the personal testimony of such physician or surgeon; with respect 

to evidence produced by vocational rehabilitation experts, 

physical therapists, and psychologists on hearings before 

a judge of said court, written reports by a vocational rehabilitation expert, physical therapist, or psychologist duly 

signed by him, her or them and itemized bills may, at the 

discretion of the court, be received in evidence in lieu of 

or in addition to the personal testimony of such vocational 

rehabilitation expert, physical therapist, or psychologist.

The only requirements for a medical report to be admissible 

under rule 10 are that the report be a medical report and be 

signed by the physician, surgeon, vocational rehabilitation 

expert, physical therapist, or psychologist.17 Physician assistants are not listed in rule 10.

14 Olivotto v. DeMarco Bros. Co., supra note 12.

15 See Johnson v. Ford New Holland, 254 Neb. 182, 575 N.W.2d 392 (1998).

16 Id.

17 See Baucom v. Drivers Management, 12 Neb. App. 790, 686 N.W.2d 98 

(2004).
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The court concluded that Kitabatake’s signature did not satisfy the requirements of rule 10, because Kitabatake is not a 

“physician.” We agree.

“Physician” is defined by Workers’ Comp. Ct. R. of Proc. 

49(O) (2018) as “any person licensed to practice medicine 

and surgery, osteopathic medicine, chiropractic, podiatry, or 

dentistry in the State of Nebraska or in the state in which 

the physician is practicing.” Other statutes make clear that 

it is the supervising physician, not the physician assistant, 

who has the license to practice medicine. The Medicine and 

Surgery Practice Act,18 under § 38-2047, specifies that physician assistants are considered agents of a supervising physician 

to perform activities delegated by the supervising physician. 

Under § 38-2050(1)(a), to be a supervising physician of a 

physician assistant, a person must “[b]e licensed to practice 

medicine and surgery under the Uniform Credentialing Act.” 

Finally, in the context of the Interstate Medical Licensure 

Compact,19 the Legislature has defined the practice of medicine as clinical prevention, diagnosis, or treatment of human 

disease, injury, or condition requiring a “physician” to obtain 

and maintain a license in compliance with the Medicine and 

Surgery Practice Act.

[8] As such, only the supervising physician in a 

physician-physician assistant relationship falls under the definition of physician as stated in Workers’ Compensation Court 

rule 49(O). Kitabatake’s report, signed only by Kitabatake, was 

not signed by a physician as required by rule 10.

We have upheld the compensation court’s decision to exclude 

evidence that fails to strictly comply with rule 10. In Johnson 

v. Ford New Holland,

20 for example, we held that the court 

18 See Neb. Rev. Stat. § 38-2001 et seq. (Reissue 2016 & Supp. 2017) and 

2018 Neb. Laws, L.B. 701, §§ 5 and 6, and L.B. 1034, §§ 30 and 31 

(effective July 19, 2018).

19 See Neb. Rev. Stat. § 38-3603(j) (Supp. 2017).

20 See Johnson v. Ford New Holland, supra note 15.
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did not abuse its discretion in refusing to admit into evidence 

a physician’s written report that failed to comply with rule 10 

because it lacked a signature.

Similarly here, the court did not abuse its discretion in refusing to admit into evidence a report that was not signed by a 

physician, as is required by the relevant provisions of rule 10. 

The court’s conclusion that Bower suffered from a 12-percent 

impairment to his right upper extremity was supported by 

Morrison’s report and was not the result of erroneously failing to consider the written report signed only by Kitabatake, 

a physician assistant. The court did not clearly err in finding a 

permanent partial loss of 12 percent.

Whole Body Impairment

[9] We find no merit to Bower’s alternative argument that he 

should have been awarded permanent total disability benefits 

for an injury to his body as a whole, rather than permanent partial disability benefits for his injury to his right upper extremity. Whether an employee’s compensable scheduled member 

injury has resulted in a whole body impairment and loss of 

earning power is a question of fact, which we review for 

clear error.21

[10] Under Nebraska’s workers’ compensation statutes, an 

injury to the upper extremity constitutes a scheduled member 

injury.22 Permanent total disability benefits are not generally 

available for a single scheduled member injury.23 However, 

employees are not limited to benefits for a scheduled member injury when the effects of that injury have extended to 

other parts of the employee’s body in a manner that impairs 

the employee’s ability to work.24 When a member injury 

21 See Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409 

(2013).

22 See Ideen v. American Signature Graphics, supra note 4.

23 Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008).

24 Moyera v. Quality Pork Internat., supra note 21.
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results in a whole body impairment, the court should enter an 

award for loss of earning capacity rather than for the member injury.25

[11] The test for determining whether a disability is to a 

scheduled member or to the body as a whole is the location 

of the residual impairment, not the situs of the injury.26 If, by 

the point of maximum medical improvement, an employee has 

developed a whole body impairment in addition to a scheduled member injury, the question is whether the work-related 

injury proximately caused the whole body impairment.27 For 

instance, we have held that the compensation court did not 

err in finding that a foot injury proximately caused a whole 

body impairment, upon evidence that the resulting change in 

an employee’s gait caused chronic pain in the employee’s hips 

and lower back.28

But there was no evidence in this case that Bower’s shoulder injury extended to other parts of his body. The only medical opinion that Bower suffered a whole body impairment 

was found in Kitabatake’s report, which, as discussed, the 

court refused to give weight. Even in Kitabatake’s report, 

however, there is no evidence that Bower suffered impairment to other parts of his body. Kitabatake simply reasoned 

that “[c]onversion from upper extremity to whole person is 

from 15% to 9% of whole person . . . .” Bower’s testimony 

and the exhibits admitted at trial likewise failed to demonstrate that Bower suffered residual impairment in other parts 

of his body.

The court did not clearly err in concluding that Bower did 

not have a whole body impairment as a result of the September 

2013 injury.

25 See Bishop v. Speciality Fabricating Co., 277 Neb. 171, 760 N.W.2d 352 

(2009).

26 Moyera v. Quality Pork Internat., supra note 21.

27 Id.

28 See id.
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Out-of-Pocket Medical Expenses

Neither did the court clearly err in concluding that Bower 

failed to satisfy his burden of proof to support an award of 

out-of-pocket medical expenses. This determination involved 

findings of fact, which will not be disturbed on appeal unless 

they are clearly wrong in light of the evidence.29

Neb. Rev. Stat. § 48-120(1)(a) (Cum. Supp. 2016) provides 

that the employer is liable for, among other things, all reasonable medical, surgical, and hospital services, and medicines, 

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. Section 48-120(8) states in relevant 

part that the compensation court shall order “reimbursement to 

anyone who has made any payment to the supplier for services 

provided in this section.” It states in full:

The compensation court shall order the employer to make 

payment directly to the supplier of any services provided 

for in this section or reimbursement to anyone who has 

made any payment to the supplier for services provided 

in this section. No such supplier or payor may be made 

or become a party to any action before the compensation court.30

[12] An employee has the burden to prove by a preponderance of the evidence compensability of a claim against an 

employer under the Nebraska Workers’ Compensation Act.31

Where the evidence shows that certain medical and hospital 

expenses have been incurred by an injured employee, a prima 

facie case is made out.32

29 Id.

30 § 48-120(8).

31 See, Brandt v. Leon Plastics, Inc., 240 Neb. 517, 483 N.W.2d 523 (1992); 

Bituminous Casualty Corp. v. Deyle, 234 Neb. 537, 451 N.W.2d 910 

(1990).

32 Schoenrock v. School Dist. of Nebraska City, 179 Neb. 621, 139 N.W.2d 

547 (1966).
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Bower presented exhibits 14 and 15, which are a detailed 

summary of $12,315,94 in out-of-pocket medical expenses. 

But, as the court pointed out, that amount is contradicted by 

the joint medical expense cover sheet claiming only $3,975.41 

in out-of-pocket medical expenses. And it is difficult to surmise what the medical bills established in out-of-pocket medical expenses.

[13] The court twice sought clarification. The record does not 

reflect that the parties jointly or Bower individually attempted 

to provide such clarification. An award cannot be based on 

mere possibility or speculation.33 The court did not clearly err 

in concluding that, based on the self-contradictory evidence 

presented by Bower and the confusing state of the medical bills 

presented, it would be mere speculation to determine a sum 

certain for out-of-pocket medical expenses.

Future Medical Expenses

[14] We find no error in the court’s refusal to award future 

medical expenses. Before an order for future medical benefits 

may be entered, there should be a stipulation of the parties or 

evidence in the record to support a determination that future 

medical treatment will be reasonably necessary to relieve the 

injured worker from the effects of the work-related injury or 

occupational disease.34 An award of future medical expenses 

requires explicit evidence that future medical treatment is 

reasonably necessary to relieve the injured worker from the 

effects of the work-related injury.35

Morrison opined that no other treatment would be necessary 

for the September 2013 injury other than a “self-motivated 

program” of stretching and strengthening. The only evidence to 

the contrary is found in Kitabatake’s report. But, as discussed, 

33 See Maroulakos v. Walmart Associates, 300 Neb. 589, 915 N.W.2d 432 

(2018).

34 Tchikobava v. Albatross Express, supra note 8.

35 Id.
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the court did not err in discounting the opinion expressed 

therein. Thus, the court did not err in failing to award future 

medical expenses.

Reimbursement for Vacation, Sick, 

Personal, and Holiday Time

We turn next to Bower’s claims regarding reimbursement 

for vacation, sick, personal, and holiday time used when he 

was unable to work as a result of the 2013 injury. In its award, 

the court did not expressly address whether Bower had a right 

to reimbursement for any vacation, sick, personal, and holiday 

time. But the court had clearly advised the parties in its pretrial 

order that any issue not set forth in the joint pretrial memorandum would be waived. Bower did not set forth in the joint 

pretrial memorandum the issue of compensation for vacation, 

sick, personal, and holiday time. Indeed, this issue was only 

briefly mentioned in opening statements.

[15] An appellate court will not consider an issue on appeal 

that was not presented to or passed upon by the trial court.36

Furthermore, we have on numerous occasions affirmed the 

limiting of the issues at trial to those specified in the pretrial 

order.37 We will not reverse the court’s award for failing to 

address an issue that Bower failed to present in the pretrial 

memorandum after the court had advised the parties that the 

issues at trial would be limited to those specified by the parties in the joint pretrial memorandum. We find no merit to this 

assignment of error.

Vocational Rehabilitation Services

Eaton and Old Republic argue on cross-appeal that there 

was insufficient competent evidence to warrant the court’s 

award of vocational rehabilitation services. Further, Eaton 

disputes the court’s conclusion that Eaton had stipulated that 

36 Turney v. Werner Enters., 260 Neb. 440, 618 N.W.2d 437 (2000).

37 Cockrell v. Garton, 244 Neb. 359, 507 N.W.2d 38 (1993).
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Bower was entitled to vocational rehabilitation services. We 

agree that the record fails to demonstrate a stipulation that 

Bower was entitled to vocational rehabilitation. However, we 

find that the court did not clearly err in concluding upon the 

evidence presented that Bower was entitled to vocational 

rehabilitation.

[16] Whether an injured worker is entitled to vocational 

rehabilitation is ordinarily a question of fact to be determined 

by the compensation court.38 To determine whether findings of 

fact made by the compensation court support an order granting or denying vocational rehabilitation benefits, an appellate 

court must consider the findings of fact in light of the statute 

authorizing vocational rehabilitation benefits, Neb. Rev. Stat. 

§ 48-162.01 (Reissue 2010). Furthermore, in considering the 

compensation court’s factual findings, we are mindful that the 

Nebraska Workers’ Compensation Act is construed liberally to 

carry out its spirit and beneficent purposes.39

Section 48-162.01(1) describes that “[o]ne of the primary 

purposes of the Nebraska Workers’ Compensation Act is restoration of the injured employee to gainful employment” and that 

“[t]o this end the Nebraska Workers’ Compensation Court may 

employ one or more specialists in vocational rehabilitation.” 

Under § 48-162.01(3):

When as a result of the injury an employee is unable to 

perform suitable work for which he or she has previous 

training or experience, he or she is entitled to such vocational rehabilitation services, including job placement and 

training, as may be reasonably necessary to restore him or 

her to suitable employment.

“‘[S]uitable employment’” is “‘employment which is 

compatible with the employee’s pre-injury occupation, age, 

education, and aptitude.’”40 We have affirmed vocational 

38 Anderson v. EMCOR Group, supra note 3.

39 Id.

40 Id. at 182, 903 N.W.2d at 34.
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rehabilitation services aimed at placing the employee into 

employment paying wages similar to those earned before the 

work-related injury41 because the statutory goal of suitable 

employment includes a similar earning capacity.42

The vocational counselor’s reports show that after much 

investigation, the counselor determined Bower could not 

return to his previous job with Eaton, return to his previous 

job with Eaton with modification, or return to employment at 

Eaton with a new job.43 Bower had indicated that he preferred 

to continue working at Eaton, where he earned a wage and 

benefits commensurate with his 20 years of employment at 

the company. But while Bower believed that he could compensate for his injury and perform his past job within his 

medical restrictions, Eaton was clear that it would not employ 

Bower given the medical restrictions of his permanent partial disability.

The counselor’s labor market research demonstrated that 

with Bower’s current qualifications, Bower would not be 

able to obtain employment earning wages commensurate with 

his past wages at Eaton. Thus, the counselor recommended 

vocational rehabilitation so that Bower could obtain suitable 

employment.

Eaton and Old Republic argue on cross-appeal that vocational rehabilitation was not necessary in order for Bower to 

obtain suitable employment, because Bower testified that he 

believed himself to be physically capable of doing the same 

or similar jobs at Eaton or with another manufacturer. Eaton 

ignores the part of Bower’s testimony where he explains that 

a job with another manufacturer would not pay as well as a 

41 See, Anderson v. EMCOR Group, supra note 3; Becerra v. United Parcel 

Service, 284 Neb. 414, 822 N.W.2d 327 (2012); Yager v. Bellco Midwest,

supra note 5.

42 See, Becerra v. United Parcel Service, supra note 41; Yager v. Bellco 

Midwest, supra note 5.

43 See § 48-162.01(3).
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job with Eaton. Eaton also ignores the fact that it refused to 

continue to employ Bower. The court did not clearly err in 

finding that vocational rehabilitation was reasonably necessary 

to restore Bower to suitable employment.

Private Disability Payments

and Wrongful Discharge

[17] We find as a matter of law that the compensation court 

did not err in concluding that it lacked jurisdiction to determine the merits of Bower’s claims for damages for wrongful 

discharge and for a declaration as to his liability to reimburse 

Eaton’s insurer for private disability payments. As a statutorily 

created court, the Workers’ Compensation Court is a tribunal 

of limited and special jurisdiction and has only such authority 

as has been conferred on it by statute.44 Under Neb. Rev. Stat. 

§ 48-152 (Reissue 2010), the Nebraska Workers’ Compensation 

Court has only the “authority to administer and enforce all of 

the provisions of the Nebraska Workers’ Compensation Act, 

and any amendments thereof, except such as are committed to 

the courts of appellate jurisdiction.”

[18] We have held that the Nebraska Workers’ Compensation 

Act does not afford the compensation court jurisdiction to 

resolve contractual disputes between employees and thirdparty insurers.45 Neb. Rev. Stat. §§ 48-130 and 48-147 (Reissue 

2010) prohibit the compensation court from taking into consideration when determining workers’ compensation any benefits 

independent of the act paid to the employee.

Still, Bower asserts that his alleged contractual obligation 

to reimburse Eaton’s insurer for payments under a private 

disability policy is “ancillary” to resolution of his workers’ 

44 Rader v. Speer Auto, 287 Neb. 116, 841 N.W.2d 383 (2013).

45 Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 

167 (2003), disapproved in part, Kimminau v. Uribe Refuse Serv., 270 

Neb. 682, 707 N.W.2d 229 (2005). See, also, Nerison v. National Fire Ins. 

Co. of Hartford, 17 Neb. App. 161, 757 N.W.2d 21 (2008).
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compensation claim and within the compensation court’s jurisdiction pursuant to Neb. Rev. Stat. § 48-161 (Reissue 2010).46

Section 48-161 provides that the compensation court shall have 

jurisdiction to decide issues that are “ancillary” to resolution of 

the workers’ compensation claim.

We have held that § 48-161 grants the compensation court 

jurisdiction to resolve contractual disputes concerning coverage by providers of workers’ compensation insurance.47 We 

have never held, however, that § 48-161 confers upon the compensation court jurisdiction to resolve contractual disputes for 

coverage that is not workers’ compensation coverage. Bower 

seems to acknowledge that questions of contractual obligations 

under private disability insurance contracts would not usually 

be considered ancillary to the compensation court’s primary 

jurisdiction. But he asserts the fact that “the disability provider 

and Eaton are one in the same”48 is an unusual circumstance 

that makes a difference.

Bower fails to explain why this would make a difference. 

With the exception of reimbursement of health care insurance 

providers as specifically described in § 48-120(8), providers of insurance coverage other than workers’ compensation 

coverage are third-party insurers outside the scope of the 

Nebraska Workers’ Compensation Act. This is true regardless of whether the private insurance coverage was provided 

through the employer as a benefit of employment.

[19] A contractual dispute over private agreements for disability coverage that is not workers’ compensation coverage is 

not ancillary to the compensation court’s primary jurisdiction. 

As stated by §§ 48-130 and 48-147, nothing in the Nebraska 

Workers’ Compensation Act shall affect any existing insurance 

46 Brief for appellant at 38.

47 See, also, Kruid v. Farm Bureau Mut. Ins. Co., 17 Neb. App. 687, 770 

N.W.2d 652 (2009).

48 Brief for appellant at 32.
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contract for benefits in addition to the compensation provided 

for by the act, and no insurance of the injured employee independent of the act shall be taken into consideration by the 

compensation court. Bower’s contractual obligations toward 

Eaton’s private disability insurer had no bearing on the court’s 

determinations of the compensability of Bower’s injury, the 

amount of the award, or Bower’s ability to receive the award. 

The court did not err in refusing to address Bower’s obligation 

to reimburse Eaton’s private disability insurer under the offset 

provisions of the private insurance contract.

[20] Likewise, the court did not err in refusing to consider 

Bower’s claim for wrongful discharge. We have recognized 

that an employee can state a claim in district court for wrongful 

discharge in retaliation for filing a claim under the Nebraska 

Workers’ Compensation Act.49 We have never said that the 

compensation court has jurisdiction over such a claim. To the 

contrary, by recognizing such a claim in district court, we have 

implicitly held that wrongful discharge in relation to filing a 

workers’ compensation claim does not fall under the compensation court’s exclusive jurisdiction over accidents arising out 

of and in the course of employment.50

[21] The Nebraska Workers’ Compensation Act does not 

describe wrongful discharge, and as a statutorily created court, 

it is the role of the Legislature to determine what acts fall 

within the Workers’ Compensation Court’s exclusive jurisdiction.51 Wrongful discharge is not one of the tort actions for 

which employers receive relief in exchange for liability under 

the act. The court was correct in concluding that it lacked jurisdiction over Bower’s wrongful discharge claim.

49 Jackson v. Morris Communications Corp., 265 Neb. 423, 657 N.W.2d 634 

(2003).

50 See Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 

236 (2013).

51 See id.
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Waiting-Time Penalty

We turn next to the penalties imposed by the court against 

Eaton for its failure to timely pay all amounts of compensation due to Bower. Eaton does not contest that it was liable 

for the $939 imposed for its failure to timely pay benefits 

relating to the December 2015 surgery. But Bower argues that 

the waiting-time penalty should have been more, because no 

reasonable controversy existed as to the compensability of his 

injury by November 8, 2013, the date of his initial medical 

visit to Crockett.

Section 48-125(1)(a) states that all amounts of “compensation” payable under the Nebraska Workers’ Compensation Act 

“shall be payable periodically in accordance with the methods 

of payment of wages of the employee at the time of the injury 

or death.” “Compensation” in reference to additional sums for 

waiting time, an attorney fee, and interest, means periodic disability or indemnity benefits payable on account of the employee’s work-related injury or death.52 Section 48-125(1)(b) provides for a 50-percent waiting-time penalty in the event such 

periodic payments are not timely made.

[22] Although “reasonable controversy” appears nowhere 

in the text of § 48-125, the phrase has been part of our 

waiting-time penalty jurisprudence for more than 90 years, 

and we have presumed that the Legislature acquiesced in 

such determination of the Legislature’s intent because it has 

never amended the Nebraska Workers’ Compensation Act to 

address reasonable controversy.53 Thus, under § 48-125(1)(b), 

an employer must pay a 50-percent waiting-time penalty if (1) 

the employer fails to pay compensation within 30 days of the 

employee’s notice of disability and (2) no reasonable controversy existed regarding the employee’s claim for benefits.54

52 Bituminous Casualty Corp. v. Deyle, supra note 31.

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

54 Id.
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To avoid the penalty provided for in § 48-125, an employer 

need not prevail in the employee’s claim, but must have an 

actual basis in law or fact for disputing the claim and refusing compensation.55

[23] Whether a reasonable controversy exists is a question 

of fact.56 Accordingly, we review for clear error the compensation court’s findings concerning reasonable controversy underlying its determination of waiting-time penalties.57

[24] Depending on the circumstances, a reasonable controversy may exist regarding the employer’s liability until 

an employee presents the employer with competent medical 

evidence that he or she is entitled to workers’ compensation 

benefits.58 Although the total amount of compensation due 

may be in dispute, the employer’s insurer nevertheless has a 

duty to promptly pay that 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.59

The court found that a reasonable controversy existed at 

the time of the injury and up until Morrison’s report, because 

internally inconsistent and self-contradictory medical reports 

by Murray created genuine doubt from a medical standpoint 

whether Bower had an injury that was incurred at work. 

Murray’s first report on October 1, 2013, stated that Bower had 

55 Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280 

(1987).

56 Starks v. Cornhusker Packing Co., 254 Neb. 30, 573 N.W.2d 757 (1998).

57 See Dragon v. Cheesecake Factory, supra note 1.

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

687 (1999). Compare Heesch v. Swimtastic Swim School, 20 Neb. App. 

260, 823 N.W.2d 211 (2012).

59 See, Musil v. J.A. Baldwin Manuf. Co., 233 Neb. 901, 448 N.W.2d 591 

(1989); Kubik v. Union Ins. Co., 4 Neb. App. 831, 550 N.W.2d 691 (1996); 

13 Arthur Larson et al., Larson’s Workers’ Compensation Law § 135.03 

(2017).
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“no injury to his shoulder just woke up with pain.” Murray’s 

revised report faxed to Eaton on November 22 did not eliminate 

that statement. Instead, Murray added that Bower “injured his 

shoulder at work when he was lifting a heavy item, he has had 

pain but it became much worse this morning.” The evidence 

indicates that Eaton tried to speak with Murray on multiple 

occasions in order to obtain clarification as to why Murray had 

changed the medical record and why it was inconsistent. There 

is no evidence that Murray responded to these inquiries.

In reviewing workers’ compensation cases, this court is not 

free to weigh the facts anew; rather, it accords to the findings 

of the compensation court the same force and effect as a jury 

verdict in a civil case.60 Applying these principles, we find that 

the court did not clearly err in finding there was a reasonable 

controversy as to the compensability of Bower’s injury until 

the report of Eaton’s independent medical examiner.

Attorney Fees

Lastly, we address attorney fees. Eaton does not contest that 

some assessment of attorney fees was appropriate as part of 

the penalty for its late payment of compensation relating to the 

December 2015 surgery. Rather, in their cross-appeal, Eaton 

and Old Republic assert that the amount of the fees is unreasonable. Section 48-125(2)(a) provides for a “reasonable attorney’s fee” when the employer fails to timely pay compensation 

or medical payments.61

[25] The determination of an award of attorney fees pursuant to § 48-125 must be calculated on a case-by-case basis.62

The determination of the amount of attorney fees is necessarily a question of fact that requires a factual determination on 

several factors, including the value of legal services rendered 

60 Rodriquez v. Prime Meat Processors, 228 Neb. 55, 421 N.W.2d 32 (1988).

61 See, VanKirk v. Central Community College, 285 Neb. 231, 826 N.W.2d 

277 (2013); Bituminous Casualty Corp. v. Deyle, supra note 31.

62 Simmons v. Precast Haulers, 288 Neb. 480, 849 N.W.2d 117 (2014).
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by an attorney by considering the amount involved, the nature 

of the litigation, the time and labor required, the novelty and 

difficulty of the questions raised, the skill required to properly 

conduct the case, the responsibility assumed, the care and diligence exhibited, the result of the suit, the character and standing of the attorney, and the customary charges of the bar for 

similar services.63

In arguing that the amount of $7,500 was unreasonable, 

Eaton focuses on the small award of $1,877.99 in contested 

temporary total disability benefits and $939 in penalty benefits. Eaton argues that Bower’s attorney should not be compensated for that portion of the work attributable to Bower’s 

unsuccessful claims for reimbursement of medical expenses, 

future medical expenses, loss of earning capacity, and wrongful termination.

We have said that while particular attention should be 

given to the amount of legal work performed in relation to 

the unpaid compensation and medical bills, the award is not 

necessarily limited to legal work performed in recovering a 

specific, unpaid medical bill or delinquent compensation.64

Like other questions of fact, the compensation court’s determination of reasonable attorney fees pursuant to § 48-125 

will not be disturbed on appeal unless it is clearly wrong in 

light of the evidence.65 The court’s award of $7,500 was not 

clearly wrong.

CONCLUSION

For the foregoing reasons, we affirm the court’s award.

Affirmed.

63 Id.

64 Simmons v. Precast Haulers, supra note 62. See, also, Harmon v. Irby 

Constr. Co., 258 Neb. 420, 604 N.W.2d 813 (1999) (Gerrard, J., concurring; 

McCormack, J., joins).

65 Simmons v. Precast Haulers, supra note 62; Harmon v. Irby Constr. Co., 

supra note 64.