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FOSTER-RETTIG v. INDOOR FOOTBALL OPERATING

Cite as 25 Neb. App. 551

Aldwin R. Foster-Rettig, appellee, v. 

Indoor Football Operating, 

L.L.C., appellant.

___ N.W.2d ___

Filed February 20, 2018. No. A-17-048.

1. Workers’ Compensation: Appeal and Error. A judgment, order, or 

award of the Workers’ Compensation Court may be modified, reversed, 

or set aside only upon the grounds that (1) the compensation court acted 

without or in excess of its powers; (2) the judgment, order, or award was 

procured by fraud; (3) there is not sufficient competent evidence in the 

record to warrant the making of the order, judgment, or award; or (4) 

the findings of fact by the compensation court do not support the order 

or award.

2. Workers’ Compensation: Evidence: Appeal and Error. In testing 

the sufficiency of the evidence to support the Workers’ Compensation 

Court’s findings, an appellate court considers the evidence in the light 

most favorable to the successful party. The appellate court resolves 

every controverted fact in the successful party’s favor and gives that 

party the benefit of every inference that is reasonably deducible from 

the evidence.

3. Workers’ Compensation: Appeal and Error. The Workers’ 

Compensation Court’s factual findings have the effect of a jury verdict, and an appellate court will not disturb them unless they are 

clearly wrong.

4. ____: ____. An appellate court independently reviews questions of law 

decided by a lower court.

5. Workers’ Compensation. Pursuant to the Nebraska Workers’ 

Compensation Act, the term “wage” means the money rate at which the 

service rendered is recompensed under the contract of hiring in force 

at the time of the accident. It shall not include gratuities received from 

the employer or others, nor shall it include board, lodging, or similar 

advantages received from the employer, unless the money value of such 

Nebraska Supreme Court Online Library

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FOSTER-RETTIG v. INDOOR FOOTBALL OPERATING

Cite as 25 Neb. App. 551

advantages shall have been fixed by the parties at the time of hiring, 

except that if the workers’ compensation insurer shall have collected 

a premium based upon the value of such board, lodging, and similar 

advantages, then the value thereof shall become a part of the basis of 

determining compensation benefits.

6. ____. When determining whether payments for an employee’s meals 

or lodging should be included in a calculation of weekly wages, there 

must be evidence to demonstrate that (1) the money value of the 

advantages was fixed by the parties at the time of hiring and (2) the 

advantages constitute a real and reasonably definite economic gain to 

the employee.

Appeal from the Workers’ Compensation Court: Daniel R. 

Fridrich, Judge. Affirmed.

James D. Garriott, of Cassem, Tierney, Adams, Gotch & 

Douglas, for appellant.

Jeffrey F. Putnam, of Law Offices of Jeffrey F. Putnam, P.C., 

L.L.O., for appellee.

Pirtle, Riedmann, and Arterburn, Judges.

Arterburn, Judge.

INTRODUCTION

Indoor Football Operating, L.L.C. (Indoor Football), appeals 

from the Nebraska Workers’ Compensation Court’s award of 

benefits to Aldwin R. Foster-Rettig. On appeal, Indoor Football 

asserts that the compensation court erred in calculating FosterRettig’s average weekly wage. For the reasons set forth herein, 

we affirm the decision of the compensation court.

BACKGROUND

On April 28, 2014, Foster-Rettig was playing football for 

the Omaha Beef football team when he suffered a back injury. 

As a result of the injury incurred by Foster-Rettig, he was 

unable to continue to play football and was ultimately placed 

on an “injured reserve” status by the Omaha Beef football 

team for the remainder of the season. He remains unable to 
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FOSTER-RETTIG v. INDOOR FOOTBALL OPERATING

Cite as 25 Neb. App. 551

play football; however, he has since found employment in a 

different capacity. Although it is not entirely clear from our 

record, it appears as though the Omaha Beef football team 

was owned by Indoor Football and, as such, Foster-Rettig was 

an employee of Indoor Football when he was playing for the 

Omaha Beef football team.

Foster-Rettig subsequently filed a claim in the compensation court alleging that he was entitled to disability benefits 

from Indoor Football as a result of his work-related injury. 

After a trial, the compensation court entered an award in favor 

of Foster-Rettig, awarding him both temporary total disability 

payments and permanent partial disability payments. Indoor 

Football appeals from the award.

Indoor Football’s appeal concerns only the compensation 

court’s calculation of Foster-Rettig’s average weekly wage. 

Accordingly, we focus our recitation of the evidence presented 

at trial on that evidence which is relevant to the calculation of 

Foster-Rettig’s average weekly wage.

Foster-Rettig testified at trial that when he played for the 

Omaha Beef football team, he received a weekly salary of 

between $225 to $250. This salary equated to a payment of 

$225 per game he played in, with the ability to earn an additional $25 per game if the team won or if Foster-Rettig played 

particularly well. In addition to this salary, Foster-Rettig testified that he received “room and board” from Indoor Football. 

In fact, he testified that his receiving “room and board was 

required” to his playing for the Omaha Beef football team, 

because he was not from Omaha, Nebraska.

Indoor Football paid for Foster-Rettig to stay at a particular 

hotel in Omaha 7 days a week during the football season. If he 

chose not to stay at the hotel on a particular night, however, 

he did not receive any additional compensation from Indoor 

Football. Foster-Rettig testified that he never paid anything to 

stay at the hotel and that he did not know exactly how much 

his staying at the hotel cost Indoor Football. He did offer into 

evidence a letter from a local travel agent who estimated that 
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from March to June 2012, the average nightly rate at that particular hotel was $50.

During the football season, Indoor Football also provided 

to Foster-Rettig “a stack of meal vouchers” every week so 

that he could eat three meals a day at local restaurants. FosterRettig testified that he would receive at least 21 meal vouchers per week. Some of those vouchers entitled him to a “free 

meal[]” and others entitled him to spend a specific amount 

of money on a meal, typically between $10 and $25. FosterRettig testified that each voucher would “take[] care” of the 

cost of a meal. However, he never received any additional 

money from Indoor Football if he did not use the full amount 

of a voucher or if he did not use all the vouchers allotted to 

him. In addition, he never had to return any unused vouchers to Indoor Football. Foster-Rettig offered into evidence a 

document indicating that the daily meal rates for traveling 

employees across the country ranged from $46 per day to $69 

per day.

At trial, Foster-Rettig alleged that his average weekly wage 

should include the amount that Indoor Football paid for his 

lodging and for the value of his meals. To the contrary, Indoor 

Football alleged that Foster-Rettig’s average weekly wage 

should be calculated based only on his salary of either $225 or 

$250 per week. Specifically, Indoor Football alleged that based 

on what Foster-Rettig actually earned while he played for the 

Omaha Beef football team, his average weekly wage should 

total $231.25.

In its award, the compensation court calculated FosterRettig’s average weekly wage to be $903.25. In calculating this 

amount, the court stated:

The court finds [Foster-Rettig’s] average weekly wage 

was $231.25 without adding in the per diem of meals and 

lodging. . . . When adding in $350.00 per week for lodging and $322.00 per week for meals, the average weekly 

wage of [Foster-Rettig] is $903.25 per week. The Court 

so finds.
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Cite as 25 Neb. App. 551

The compensation court went on to explain:

The Court finds the lodging [Indoor Football] paid 

on behalf of [Foster-Rettig] should be included in [his] 

average weekly wage calculation. The Court finds the 

payment of [Foster-Rettig’s] lodging constituted real and 

definite economic gain to [him]. [Foster-Rettig] had no 

other home. This hotel was his home. . . . Consequently, 

the payment of his lodging did not “offset” his costs of 

travel. . . .

The same is true of the meals paid by [Indoor Football]. 

[Foster-Rettig] had no wife or child to support. He lived 

in Omaha. He was not living on the road. The meals that 

were paid for by [Indoor Football] obviated the need 

for [Foster-Rettig] to pay for his own meals out of his 

paycheck. This provided a real and economic gain to 

[Foster-Rettig].

The compensation court then calculated the amount of disability benefits owed to Foster-Rettig by utilizing its calculation of his average weekly wage.

Indoor Football appeals from the compensation court’s 

award.

ASSIGNMENT OF ERROR

On appeal, Indoor Football asserts that the compensation 

court erred in calculating Foster-Rettig’s average weekly wage.

STANDARD OF REVIEW

[1-4] A judgment, order, or award of the Workers’ 

Compensation Court may be modified, reversed, or set aside 

only upon the grounds that (1) the compensation court acted 

without or in excess of its powers; (2) the judgment, order, 

or award was procured by fraud; (3) there is not sufficient 

competent evidence in the record to warrant the making of the 

order, judgment, or award; or (4) the findings of fact by the 

compensation court do not support the order or award. Damme 

v. Pike Enters., 289 Neb. 620, 856 N.W.2d 422 (2014). In 

testing the sufficiency of the evidence to support the Workers’ 
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Cite as 25 Neb. App. 551

Compensation Court’s findings, an appellate court considers the evidence in the light most favorable to the successful 

party. Id. The appellate court resolves every controverted fact 

in the successful party’s favor and gives that party the benefit 

of every inference that is reasonably deducible from the evidence. Id. The Workers’ Compensation Court’s factual findings 

have the effect of a jury verdict, and an appellate court will 

not disturb them unless they are clearly wrong. Id. An appellate court independently reviews questions of law decided by 

a lower court. Id.

ANALYSIS

On appeal, Indoor Football alleges that the compensation court erred in calculating Foster-Rettig’s average weekly 

wage. Specifically, Indoor Football alleges that the court 

erred in including in its calculation estimates of what Indoor 

Football spent on meals and lodging for Foster-Rettig when 

he was employed as a football player. Upon our review, we 

find that the compensation court did not err in its calculation of Foster-Rettig’s average weekly wage. Accordingly, 

we affirm the decision of the compensation court which calculated Foster-Rettig’s average weekly wage to be $903.25 

per week.

[5] Neb. Rev. Stat. § 48-126 (Reissue 2010) defines how 

to calculate a person’s wages for the purpose of determining 

workers’ compensation benefits. Section 48-126 provides, in 

relevant part:

Wherever in the Nebraska Workers’ Compensation Act 

the term wages is used, it shall be construed to mean the 

money rate at which the service rendered is recompensed 

under the contract of hiring in force at the time of the 

accident. It shall not include gratuities received from 

the employer or others, nor shall it include board, lodging, or similar advantages received from the employer, 

unless the money value of such advantages shall have 

been fixed by the parties at the time of hiring, except 
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that if the workers’ compensation insurer shall have collected a premium based upon the value of such board, 

lodging, and similar advantages, then the value thereof 

shall become a part of the basis of determining compensation benefits.

The first case which addressed the issue before us is 

Maryland Casualty Co. v. Geary, 123 Neb. 851, 244 N.W. 797 

(1932). In that case, George Geary was employed by a company as a truckdriver. Geary’s weekly wage “was $10 a week, 

plus the cost of his meals and lodging while he was employed.” 

Id. at 854, 244 N.W. at 798. The record revealed that the cost 

of Geary’s meals and lodging was at least $12.50 per week. On 

appeal, the employer argued that the meals and lodging provided to Geary should not be considered a part of his weekly 

compensation “because the money value of these items was not 

fixed at the time of hiring.” Id. In support of this argument, it 

cited to § 48-126.

In the opinion, the Nebraska Supreme Court analyzed the 

language of § 48-126 to determine whether the cost of Geary’s 

meals and lodging should be included in a calculation of his 

weekly wage. Specifically, the court examined the following statutory language: “‘[T]he term “wages” . . . shall not 

include gratuities received from the employer or others, nor 

shall it include board, lodging, or similar advantages received 

from the employer, unless the money value of such advantages 

shall have been fixed by the parties at the time of hiring.’” 

Maryland Casualty Co. v. Geary, 123 Neb. at 854, 244 N.W. 

at 798. The court then stated, “Were it not for the statutory 

limitation above quoted, there would be no doubt that the 

meals and lodging furnished by the employer would constitute 

a part of the employee’s weekly wage.” Id. The court went 

on to consider that the value of Geary’s meals and lodging 

was not specifically fixed by the parties at the time of his hiring. Instead,

[Geary] was required to obtain his meals at various 

cafes, restaurants and hotels, and his lodging at various 
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Cite as 25 Neb. App. 551

hotels and boarding houses. Neither the employer nor the 

employee could know what the precise amount would be 

until such items were furnished to the latter. Whatever the 

cost of these items was, they were within the contemplation and agreement of the parties.

Id. at 855, 244 N.W. at 798.

Ultimately, the court found, “[A] liberal interpretation of 

[§ 48-126] requires us to hold that the cost of meals and lodging was a part of the compensation which [Geary] received.” 

Maryland Casualty Co. v. Geary, 123 Neb. at 855, 244 N.W. at 

799. The court explained:

In this case, the cost of the meals and lodging was capable 

of being, and actually was, rendered certain. The money 

value of the meals and lodging was fixed at the time of 

hiring. [Geary] furnished weekly a sheet on which these 

items were listed, and he was reimbursed therefor.

Maryland Casualty Co. v. Geary, 123 Neb. 851, 855, 244 N.W. 

797, 798-99 (1932). In reaching its conclusion, the court cited 

to the beneficent purposes of the workers’ compensation law. 

Maryland Casualty Co. v. Geary, supra.

[6] In a subsequent case which raised the issue of whether 

payments for meals or lodging should be included in a calculation of weekly wages, the Supreme Court interpreted the statutory language of § 48-126 to require evidence to demonstrate 

that (1) the money value of the advantages was fixed by the 

parties at the time of hiring and (2) the advantages constitute 

a real and reasonably definite economic gain to the employee. 

See Solheim v. Hastings Housing Co., 151 Neb. 264, 37 

N.W.2d 212 (1949).

Here, there is no question that the meals and lodging 

provided to Foster-Rettig as a part of his employment constituted a real and reasonably definite economic gain. The 

issue in contention is whether the money value of the meals 

and lodging was fixed by the parties at the time that Indoor 

Football hired Foster-Rettig. Upon our review of the record, 

we conclude that, based upon the rationale of the Supreme 
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FOSTER-RETTIG v. INDOOR FOOTBALL OPERATING

Cite as 25 Neb. App. 551

Court in Maryland Casualty Co. v. Geary, supra, the money 

value of the meals and lodging was fixed at the time of hiring. 

Accordingly, the compensation court did not err in including 

the value of these advantages in its calculation of FosterRettig’s average weekly wage.

At trial, Foster-Rettig testified that at the time he started 

playing football for the Omaha Beef football team, he and 

Indoor Football agreed that Indoor Football would provide 

him with meals and lodging during the football season. In fact, 

Foster-Rettig testified that “room and board was required” to 

his employment with Indoor Football. Indoor Football did not 

present any evidence to contradict Foster-Rettig’s assertion 

that “room and board” was to be a part of his compensation 

package. In fact, during its cross-examination of Foster-Rettig, 

Indoor Football appeared to concede that Foster-Rettig was 

provided with these benefits during his employment. Indoor 

Football questioned Foster-Rettig about both the meal vouchers and the lodging he received. Based on the evidence presented at trial, we find support for the compensation court’s 

determination that Indoor Football agreed, at the time of hiring 

Foster-Rettig, to provide him with meals and lodging as a part 

of his compensation.

However, similar to the situation presented in Maryland 

Casualty Co. v. Geary, 123 Neb. 851, 244 N.W. 797 (1932), 

Indoor Football and Foster-Rettig did not agree to a particular 

value for the meals and lodging which was to be a part of 

Foster-Rettig’s compensation package. As the Supreme Court 

found in Maryland Casualty Co. v. Geary, supra, though, 

whatever the cost of the meals and lodging was, it was clearly 

within the contemplation and agreement of the parties. Given 

the Supreme Court’s decision in Maryland Casualty Co. v. 

Geary, supra, and given the beneficent purpose of the workers’ compensation law, we do not find that the compensation 

court erred in concluding that the cost of meals and lodging 

was a part of the compensation which Foster-Rettig contracted to receive.
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FOSTER-RETTIG v. INDOOR FOOTBALL OPERATING

Cite as 25 Neb. App. 551

Unlike the employee in Maryland Casualty Co. v. Geary, 

supra, however, Foster-Rettig was unable to establish with 

precision the amount that Indoor Football actually spent on his 

meals and lodging while he was employed by the company. 

The evidence Foster-Rettig presented about the value of the 

meals and lodging he received from Indoor Football did not 

demonstrate exactly what Indoor Football paid for these advantages, but, rather, it only estimated what such advantages may 

have cost during the spring of 2012 when Foster-Rettig was 

playing for the Omaha Beef football team.

Foster-Rettig testified that he did not know how much 

Indoor Football paid the hotel for members of the team to stay 

there, because Indoor Football paid the hotel directly. Prior to 

the trial, Foster-Rettig was unable to obtain records about the 

payments directly from the hotel, because it had gone out of 

business since the time he stayed there. In addition, Exhibit 

17 reveals that when Foster-Rettig made discovery requests 

to Indoor Football regarding his accomodations for room and 

board, Indoor Football did not provide him with any payment 

records. In fact, during the discovery process the company 

denied paying for such benefits, even though it conceded at 

trial that such benefits were provided to Foster-Rettig. Instead 

of pursuing additional discovery from Indoor Football, FosterRettig chose to seek out estimates of the value of his lodging 

at the hotel. He offered into evidence a letter from a local 

travel agent, who estimated that from March to June 2012, the 

average nightly rate at the hotel was $50.

Foster-Rettig had similar difficulties in supplying the compensation court with an exact value of the meals he was given 

by Indoor Football during his employment, because he was 

provided with meal vouchers for each meal, rather than with 

a specific dollar amount or reimbursement for the amount he 

spent on food. Foster-Rettig indicated during his testimony that 

many of the meal vouchers he received were from restaurants 

that sponsored the Omaha Beef football team. As we stated 

above, during the discovery process, Indoor Football denied 
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FOSTER-RETTIG v. INDOOR FOOTBALL OPERATING

Cite as 25 Neb. App. 551

providing this benefit to Foster-Rettig. As such, Foster-Rettig 

was unable to provide the compensation court with records of 

exactly how much was spent on his meals during his employment. Instead, he offered into evidence a document indicating 

that the daily meal rates for traveling employees across the 

country ranged from $46 per day to $69 per day.

The compensation court utilized Foster-Rettig’s evidence 

regarding the estimated values of his meals and lodging in 

calculating his average weekly wage. We cannot say that 

the court erred in relying on such evidence. Foster-Rettig 

attempted to obtain the exact values of the benefits he received 

from his employment with Indoor Football, but, due to intervening factors such as the closing of the hotel, and due to 

Indoor Football’s failure to cooperate with discovery requests, 

Foster-Rettig was unable to obtain precise figures. Under these 

circumstances, we find Foster-Rettig’s evidence of the value 

of the benefits to be sufficient to warrant inclusion in a calculation of his average weekly wage. Accordingly, we find that the 

court did not err in calculating Foster-Rettig’s average weekly 

wage to be $903.25.

CONCLUSION

We affirm the finding of the compensation court that FosterRettig’s average weekly wage totaled $903.25. As such, we 

affirm the award to Foster-Rettig in its entirety.

Affirmed.