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DRAGON v. CHEESECAKE FACTORY

Cite as 300 Neb. 548

Keith T. Dragon, appellant, v. The Che

Factory and its workers’ compensation ins

Indemnity Insurance C

North America, appellee

___ N.W.2d ___

Filed July 20, 2018. No. S-17-891.

1. Workers’ Compensation: Statutes: Appeal and Error. The meaning 

of a statute is a question of law, and an appellate court is obligated in 

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

2. Workers’ Compensation: Appeal and Error. 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 

which are clearly wrong in light of the evidence.

3. Legislature: Statutes: Time. Generally, legislation that is passed takes 

effect 3 calendar months after the Legislature adjourns unless the 

Legislature evidences otherwise.

4. Statutes: Time. Statutes covering substantive matters in effect at the 

time of the transaction or event govern, not later enacted statutes. But 

where there has been an amendment to a statute which was a procedural 

change and not a substantive change, upon the effective date of the 

amendment, it is binding upon a tribunal.

5. ____: ____. Procedural amendments to statutes are ordinarily applicable 

to pending cases, while substantive amendments are not.

6. Statutes: Words and Phrases. A substantive amendment is one that 

creates a right or remedy that did not previously exist and which, but for 

the creation of the substantive right, would not entitle one to recover. A 

procedural amendment, on the other hand, simply changes the method 

by which an already existing right is exercised.

7. Limitations of Actions: Statutes. Laws prescribing the time within 

which particular rights may be enforced generally relate to remedies 

only and not substantive rights.

Nebraska Supreme Court Online Library

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

09/28/2018 08:14 AM CDT
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8. Workers’ Compensation: Statutes. 2018 Neb. Laws, L.B. 953, is a procedural amendment to Neb. Rev. Stat. § 48-139(4) (Cum. Supp. 2016).

9. Workers’ Compensation: Time. The reasonable controversy doctrine 

has long been applied to excuse waiting-time penalties for delayed benefit payments under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016).

10. ____: ____. The reasonable controversy doctrine has no application to 

late-payment penalties under Neb. Rev. Stat. § 48-139(4) (Cum. Supp. 

2016).

11. Attorney Fees. If an attorney seeks a fee for his or her client, that attorney should introduce at least an affidavit showing a list of the services 

rendered, the time spent, and the charges made.

Appeal from the Workers’ Compensation Court: Daniel 

Fridrich, Judge. Order vacated in part and in part reversed, and

cause remanded with directions.

Brynne E. Holsten Puhl, of Atwood, Holsten, Brown, Deaver 

& Spier Law Firm, P.C., L.L.O., for appellant.

Marc N. Middleton, of Adelson, Testan, Brundo, Novell & 

Jimenez, and David A. Castello for appellees.

Danny C. Leavitt for amicus curiae Nebraska Association of 

Trial Attorneys.

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

JJ., and Strong, District Judg

Stacy, 

In this workers’ compensation case, the parties reached a 

lump-sum settlement and filed a verified release with the court 

using the process set out in Neb. Rev. Stat. § 48-139(3) and 

(4) (Cum. Supp. 2016). The employer did not pay the amounts 

owed under the settlement within 30 days after the release 

was filed, and the employee moved for late payment penalties 

under § 48-139(4). The Workers’ Compensation Court overruled the motion and dismissed the employee’s petition with 

prejudice. The employee appealed.

While the case was pending on appeal, the Legislature 

amended the process for finalizing lump-sum settlements under 
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§ 48-139(4). Because we conclude this recent amendment is 

procedural in nature, we apply it to this pending matter.1 Doing 

so, we find the employee is entitled to a late payment penalty, 

and to that extent only we vacate the order of dismissal with 

prejudice, reverse the decision of the Workers’ Compensation 

Court, and remand the cause with directions. In all other 

respects, we affirm.

BACKGROUND

Keith T. Dragon worked as a dishwasher for The Cheesecake 

Factory in Omaha, Nebraska. On February 9, 2017, Dragon 

filed a petition for workers’ compensation benefits, alleging he 

was injured in the course and scope of his employment. The 

parties agreed to settle Dragon’s claim for a lump-sum payment 

of $5,000. Both parties were represented by counsel, and they 

agreed to use the verified release procedure under § 48-139(3) 

rather than seek court approval of their settlement.2

On May 1, 2017, the employer filed with the Workers’ 

Compensation Court a verified release containing the language required by § 48-139(3), thus triggering the 30-day 

payment period under § 48-139(4).3 On June 8, the employer 

mailed Dragon the settlement check. Thereafter, Dragon filed 

a motion in the Workers’ Compensation Court seeking a 

late payment penalty of $2,500 under § 48-139(4) and an 

award of attorney fees under Neb. Rev. Stat. § 48-125 (Cum. 

Supp. 2016).

At the hearing on the motion for late payment penalties, the 

employer conceded the lump-sum settlement was paid more 

1 See Smith v. Mark Chrisman Trucking, 285 Neb. 826, 829 N.W.2d 717 

(2013).

2 Compare § 48-139(2) (detailing general process for court approval of 

lump-sum settlement), with § 48-139(3) (detailing alternative process for 

filing verified release to finalize lump-sum settlement).

3 § 48-139(4) (“[a]mounts to be paid by the employer to the employee 

pursuant to such release shall be paid within thirty days of filing the 

release with the compensation court”).
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than 30 days after the release was filed, but it opposed the 

imposition of a late payment penalty on two grounds.

First, the employer argued the “reasonable controversy” 

doctrine4 should preclude an award of late payment penalties, because the payment delay was the result of a reasonable dispute over child support liens. Second, the employer 

argued Dragon had waived any claim for a late payment 

penalty under § 48-139(4). This argument was based on the 

version of § 48-139(4) in effect at that time, which provided: 

“Upon making payment owed by the employer as set forth 

in the release, such release shall be a full and complete discharge from further liability for the employer on account of 

the injury . . . .” Given this statutory language, the employer 

argued that even though the settlement payment was made 

more than 30 days after the release was filed, the release 

sprung into effect as soon as payment was made and extinguished all claims Dragon had under the Nebraska Workers’ 

Compensation Act, including a claim for late payment penalties or attorney fees.

The Workers’ Compensation Court agreed with the employer’s interpretation of § 48-139(4) and entered an order overruling Dragon’s motion for a late payment penalty. In doing 

so, the court relied on this court’s analysis in Holdsworth v. 

Greenwood Farmers Co-op.5

In Holdsworth, the lump-sum settlement payment was made 

42 days after the verified release was filed and the employee 

moved for a 50-percent waiting-time penalty and attorney 

fees. When Holdsworth was decided, § 48-139 did not have 

its own late payment penalty provision, so the employee 

sought penalties under § 48-125 (Reissue 2010). That statute 

generally authorized a waiting-time penalty for “all delinquent 

4 See, e.g., Armstrong v. State, 290 Neb. 205, 209, 859 N.W.2d 541, 547 

(2015).

5 Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 

(2013).
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payments after thirty days’ notice has been given of disability or after thirty days from the entry of a final order, award, 

or judgment of the compensation court.”6 Section 48-125(2) 

authorized an employee who received a waiting-time penalty, 

and who also received an award, to recover reasonable attorney fees.

In Holdsworth, the Workers’ Compensation Court awarded 

the employee waiting-time penalties under § 48-125 and the 

employer appealed. This court reversed, finding that once the 

verified release was filed with the compensation court pursuant to § 48-139(3), the employee effectively waived “‘all 

rights under the Nebraska Workers’ Compensation Act,’” 

including any rights to late payment penalties and fees 

the employee may have had under § 48-125.7 A key part 

of this court’s analysis in Holdsworth was the broad language required to be included in the verified release under 

§ 48-139(3). We reasoned this broad release language was 

unambiguous and resulted in “a full waiver of any and all rights 

given to workers in the Nebraska Workers’ Compensation 

Act,” including the right to waiting-time penalties and 

attorney fees.8

After our decision in Holdsworth, the Legislature amended 

§ 48-139 to specifically include a penalty provision for late 

payments of lump-sum settlements.9 Thus, in 2017, when 

the parties in this case reached their lump-sum settlement, 

§ 48-139(4) provided:

A release filed with the compensation court in accordance with subsection (3) of this section shall be final 

and conclusive as to all rights waived in the release 

unless procured by fraud. Amounts to be paid by the 

6 § 48-125(1)(b).

7 Holdsworth, supra note 5, 286 Neb. at 56, 835 N.W.2d at 36.

8 Id.

9 See 2014 Neb. Laws, L.B. 961, § 11.
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employer to the employee pursuant to such release shall 

be paid within thirty days of filing the release with the 

compensation court. Fifty percent shall be added for payments owed to the employee if made after thirty days 

after the date the release is filed with the compensation 

court. Upon making payment owed by the employer as 

set forth in the release, such release shall be a full and 

complete discharge from further liability for the employer 

on account of the injury, including future medical, surgical, or hospital expenses, unless such expenses are specifically excluded from the release, and the court shall 

enter an order of dismissal with prejudice as to all rights 

waived in the release.

The Workers’ Compensation Court analyzed this statutory language and concluded it did “not cure the problem illuminated by Holdsworth.” The court reasoned that 

under Holdsworth, once the broad statutory release language 

becomes effective, it results in a full and complete discharge 

from all liability under the act, including a claim for late payment penalties and attorney fees. The Workers’ Compensation 

Court observed that because amendments to § 48-139(4) made 

the release effective “‘[u]pon making payment . . . as set forth 

in the release . . . ,’” the release in this case became effective 

once the employer paid Dragon. Thus, even though the settlement payment was late, it served to discharge the employer 

from all liability, including liability for late payment penalties 

and attorney fees.

The Workers’ Compensation Court thus overruled Dragon’s 

motion for penalties and attorney fees and dismissed his petition with prejudice. Dragon timely appealed, and we moved 

the case to our docket on our own motion10 to address the 

impact of the 2014 amendment to § 48-139(4).

10 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
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ASSIGNMENT OF ERROR

Dragon assigns the Workers’ Compensation Court erred 

in ruling he was not entitled to a late payment penalty under 

the 2014 version of § 48-139(4) and attorney fees under 

§ 48-125.

STANDARD OF REVIEW

[1] The meaning of a statute is a question of law, and an 

appellate court is obligated in workers’ compensation cases to 

make its own determinations as to questions of law.11

[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 which 

are clearly wrong in light of the evidence.12

ANALYSIS

We moved this case to our docket to address the impact of 

the 2014 amendments to § 48-139(4), but we begin our analysis by addressing a more recent amendment to that section.

L.B. 9

While this appeal was pending, the Legislature again 

amended § 48-139(4). Specifically, 2018 Neb. Laws, L.B. 953, 

made the following additions/changes to § 48-139(4):

Upon the entry of an order of dismissal with prejudice, 

a A release filed with the compensation court in accordance with subsection (3) of this section shall be final 

and conclusive as to all rights waived in the release 

unless procured by fraud. Amounts to be paid by the 

employer to the employee pursuant to such release shall 

be paid within thirty days of filing the release with the 

compensation court. Fifty percent shall be added for 

11 Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586, 883 N.W.2d 676 

(2016).

12 Greenwood v. J.J. Hooligan’s, 297 Neb. 435, 899 N.W.2d 905 (2017).
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payments owed to the employee if made after thirty days 

after the date the release is filed with the compensation 

court. Upon making payment owed by the employer as 

set forth in the release and upon the entry of an order of 

dismissal with prejudice, as to all rights waived in the 

release, such release shall be a full and complete discharge from further liability for the employer on account 

of the injury, including future medical, surgical, or hospital expenses, unless such expenses are specifically 

excluded from the release, and the court shall enter an 

order of dismissal with prejudice as to all rights waived 

in the release.

In explaining the reason for the amendment, the introducer of 

L.B. 953 stated:

LB 953 also addresses a recent Workers’ Compensation 

Court’s decision regarding the enforceability of late payment penalties. Currently, Neb. Rev. Stat. § 48-139(4) 

permits a fifty percent penalty for late payments to the 

employee, but the Workers’ Compensation Court has 

found that the employee has already waived his or her 

rights to enforce this. LB 953 corrects this issue by making the entry of an order of dismissal a prerequisite to the 

discharge of a defendant from liability.13

As applicable to the issues before us in this appeal, L.B. 953 

changed the point at which a verified release becomes effective under § 48-139(4). Before passage of L.B. 953, a verified 

release was effective upon payment of sums owed under the 

release. After L.B. 953, a verified release becomes effective 

once payment is made and the court enters an order of dismissal with prejudice.

[3] Generally, legislation that is passed takes effect 3 

calendar months after the Legislature adjourns unless the 

13 Introducer’s Statement of Intent, L.B. 953, 105th Leg., 2d Sess. (Feb. 5, 

2018).
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Legislature evidences otherwise.14 The Legislature’s 2018 session adjourned on April 18, 2018, so L.B. 953 has taken effect 

and we must decide, as a threshold matter, whether the provisions of L.B. 953 apply to this case. The necessary inquiry is 

whether the changes made by L.B. 953 to § 48-139(4) were 

procedural or substantive in nature.15

[4,5] It is a well-established principle that statutes covering 

substantive matters in effect at the time of the transaction or 

event govern, not later enacted statutes.16 But where there has 

been an amendment to a statute which was a procedural change 

and not a substantive change, upon the effective date of the 

amendment, it is binding upon a tribunal.17 Thus, procedural 

amendments to statutes are ordinarily applicable to pending 

cases, while substantive amendments are not.18

[6] We have explained that a substantive amendment is one 

that creates a right or remedy that did not previously exist and 

which, but for the creation of the substantive right, would not 

entitle one to recover.19 A procedural amendment, on the other 

hand, simply changes the method by which an already existing 

right is exercised.20

In Jackson v. Branick Indus.,

21 we applied these principles to 

determine whether an amendment to a workers’ compensation 

subrogation statute22 was substantive or procedural in nature. 

14 Smith, supra note 1, citing Neb. Const. art. III, § 27.

15 See, Smith, supra note 1; Jackson v. Branick Indus., 254 Neb. 950, 581 

N.W.2d 53 (1998).

16 Id.

17 Jackson, supra note 15; Behrens v. American Stores Packing Co., 228 Neb. 

18, 421 N.W.2d 12 (1988).

18 Smith, supra note 1.

19 See, id.; Jackson, supra note 15; Behrens, supra note 17.

20 Smith, supra note 1.

21 Jackson, supra note 15.

22 Compare Neb. Rev. Stat. § 48-118 (Reissue 1993), with § 48-118 (Cum. 

Supp. 1996).
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At the time of the employee’s injury in Jackson, § 48-118 gave 

the employer and its insurer a subrogation interest against a 

third-party tort-feasor in the amount of any compensation paid 

to or on behalf of the employee. This was construed to entitle 

the employer to “dollar-for-dollar” subrogation recovery from 

a third-party settlement.23 However, by the time the employee 

settled with a third party, § 48-118 had been amended to 

allow the court to make a “‘fair and equitable’” distribution 

of the third-party settlement as between the employee and the 

employer or its insurer.24

The district court in Jackson found the amendment was 

procedural, and thus made an equitable distribution of the 

third-party settlement proceeds. The employer appealed, and 

this court reversed, finding instead that the amendment was 

substantive in nature. We reasoned:

[The amendment] did not merely change the way in 

which the employer’s right to subrogation would be exercised, it actually changed the nature of the subrogation 

interest itself. The 1994 amendment to § 48-118 injected 

an element of equity into statutory subrogation where one 

was not present before and is, therefore, a substantive 

change in the law.25

Unlike the amendment considered in Jackson, the provisions of L.B. 953 changed neither the nature of the late payment penalty under § 48-139(4) nor the manner in which such 

a penalty is calculated. Instead, L.B. 953 merely changed 

the point in the settlement process when a verified release 

becomes effective.

At the time we decided Holdsworth, the verified release 

became effective once it was filed with the Workers’ 

Compensation Court. The 2014 amendments to § 48-139(4) 

made the verified release effective “[u]pon making payment 

23 Id. at 957, 581 N.W.2d at 57.

24 Id. at 953, 581 N.W.2d at 55.

25 Id. at 960-61, 581 N.W.2d at 59.
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owed by the employer as set forth in the release . . . .” And 

L.B. 953 makes the verified release effective once payment is 

made and the court enters an order of dismissal with prejudice.

[7,8] We have recognized that “[l]aws prescribing the time 

within which particular rights may be enforced generally 

relate to remedies only and not substantive rights.”26 In this 

case, the pertinent provisions of L.B. 953 merely changed the 

point in time when the verified release becomes effective in 

the lump-sum settlement process. We therefore conclude that 

L.B. 953 is a procedural amendment to § 48-139(4) and is 

applicable to this pending appeal.

Dragon Is Entitl

Late Payment Pe

Under § 48-139(4) as amended by L.B. 953, Dragon did not 

waive his right to a late payment penalty. It remains true under 

Holdsworth that once the verified release becomes effective, 

it results in a full and complete discharge from all liability 

under the Nebraska Workers’ Compensation Act, including 

a claim for late payment penalties and attorney fees.27 But 

post-L.B. 953, the verified release signed by Dragon does not 

become effective until the Workers’ Compensation Court files 

an order of dismissal with prejudice.28 Applying the current 

version of § 48-139(4), we find Dragon is entitled to a late 

payment penalty as a matter of law. Thus, it is contrary to law 

to conclude the release became effective upon the employer’s 

payment of the settlement sums, and we must reverse the 

Workers’ Compensation Court’s finding to the contrary, in 

light of the change in the law.

26 Harris v. Omaha Housing Auth., 269 Neb. 981, 986, 698 N.W.2d 58, 63-64 

(2005).

27 See Holdsworth, supra note 5.

28 See, also, Workers’ Comp. Ct. R. of Proc. 47J (2018) (when order 

of dismissal is required under § 48-139(4), parties must file receipt, 

satisfaction, or joint stipulation for dismissal setting forth amount(s) 

received by employee from employer).
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We thus vacate the order of dismissal with prejudice, reverse 

the finding that Dragon waived his right to late payment penalties under § 48-139(4), and remand the cause with directions 

to award such penalty based on the existing record.

Reasonable Controversy Do

Does Not App

The employer argues that even if § 48-139(4) authorizes a 

late payment penalty, it should be exempt from paying the penalty, because a “reasonable controversy” existed. Specifically, 

the employer claims it delayed paying the settlement sums in 

this case because it was waiting for information on whether 

and how to pay child support liens. The record is undisputed 

that the parties had notice of the child support liens prior to the 

time they reached a lump-sum settlement.

[9,10] The reasonable controversy doctrine has long been 

applied to excuse waiting-time penalties for delayed benefit payments under § 48-125.29 The employer urges us to 

extend the doctrine to excuse late payment penalties for 

delayed lump-sum settlement payments under § 48-139(4). We 

decline the invitation and conclude the reasonable controversy 

doctrine has no application to late payment penalties under 

§ 48-139(4).

In 1920, this court recognized an exception to waiting-time 

penalties imposed for delayed benefit payments when there is 

a reasonable controversy over entitlement to workers’ compensation benefits.30 We reasoned:

It was not intended by this provision of the statute that 

an employer should comply with every demand of the 

employee at his peril, and in every case, when it is later 

29 Armstrong, supra note 4 (recognizing “reasonable controversy” doctrine 

has been part of our waiting-time penalty jurisprudence under § 48-125 for 

more than 90 years).

30 Updike Grain Co. v. Swanson, 104 Neb. 661, 178 N.W. 618 (1920) 

(superseded by statute as stated in Lagemann v. Nebraska Methodist 

Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009)).
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proved that the employer was mistaken as to his liability, 

that he should be required to increase the award 50 per 

cent . . . and be penalized in that amount. The statute was 

not intended to prevent the employer from having a fair 

opportunity to be heard and to have his just controversies 

tried . . . .31

Since that time, we have consistently held that an employer 

is not liable for the waiting-time penalty under § 48-125 when 

there is a reasonable controversy over entitlement to benefits.32 In that context, we have explained that a reasonable 

controversy 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.33

We have not previously addressed whether the reasonable 

controversy exception applies to late payment penalties for 

lump-sum settlement payments made more than 30 days after 

the verified release is filed under § 48-139. But given the 

rationale for the doctrine, we see no compelling reason to 

extend the doctrine to excuse penalties for delayed payments 

of lump-sum settlements.

The waiting-time penalty provisions of § 48-125 are 

designed to encourage prompt payment of benefits34 and to 

31 Id. at 665, 178 N.W. at 619.

32 See Armstrong, supra note 4.

33 Id.

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

167 (2003), disapproved on other grounds, Kimminau v. Uribe Refuse 

Serv., 270 Neb. 682, 707 N.W.2d 229 (2005); Hollandsworth v. Nebraska 

Partners, 260 Neb. 756, 619 N.W.2d 579 (2000).
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encourage employers and insurers to promptly handle and 

decide disputed claims.35 We have said that to avoid waitingtime penalties under 48-125, an employer must have an actual 

basis in law or fact for disputing the claim and refusing 

compensation.36

But once an employer and an employee reach a lump-sum 

settlement agreement, there is no remaining factual or legal 

dispute over the claim and thus no reason to refuse to pay the 

agreed-upon settlement amount.37 If, as in this case, there are 

concerns about the enforceability of liens against the proceeds 

of a lump-sum settlement, parties should endeavor to resolve 

such issues before they file the verified release and trigger the 

30-day payment period under § 48-139(4).

For these reasons, we find the reasonable controversy 

exemption is inapplicable to late payment penalties under 

§ 48-139(4) and does not exempt the employer from paying 

such penalties in this case.

Attorney Fe

Finally, Dragon argues it was error for the Workers’ 

Compensation Court to deny his request for attorney fees under 

§ 48-125. We find no abuse of discretion in denying attorney 

fees on this record.

[11] If an attorney seeks a fee for his or her client, that 

attorney should introduce at least an affidavit showing a list of 

the services rendered, the time spent, and the charges made.38

The record on appeal contains no such evidence supporting 

Dragon’s request for attorney fees. We thus are unable to 

35 See Armstrong, supra note 4; Dawes, supra note 34.

36 Dawes, supra note 34, citing Mendoza v. Omaha Meat Processors, 225 

Neb. 771, 408 N.W.2d 280 (1987).

37 See § 48-139.

38 Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011).
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address this assignment of error,39 and we express no opinion 

on Dragon’s argument that an employee who is entitled to 

a late payment penalty under § 48-139(4) may also recover 

attorney fees under § 48-125.

CONCLUSION

For the foregoing reasons, we vacate the order of dismissal 

with prejudice, reverse the finding that Dragon waived his 

right to late payment penalties under § 48-139(4), and remand 

the cause with directions to award such penalties based on the 

existing record. In all other respects, we affirm the decision of 

the Workers’ Compensation Court.

 Order vacated in part and in part reve

and cause remanded with direct

39 See, Centurion Stone of Neb. v. Whelan, 286 Neb. 150, 835 N.W.2d 62 

(2013); InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 

(2012) (holding appellant must present record supporting errors assigned; 

absent such record, appellate court will affirm lower court’s decision).