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Michael Simmons, appellee and cross-appellant

Precast Haulers, Inc., and Cherokee 

Company, its workers’ compensation insu

appellants and cross-appellee

___ N.W.2d ___

Filed July 3, 2014. No. S-13-848.

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. ____: ____. In determining whether to affirm, modify, reverse, or set aside a 

judgment of the Workers’ Compensation Court, the findings of fact of the trial 

judge will not be disturbed on appeal unless clearly wrong.

3. Workers’ Compensation: Evidence: Appeal and Error. In testing the sufficiency of the evidence to support the findings of fact in a workers’ compensation 

case, every controverted fact must be resolved in favor of the successful party 

and the successful party will have the benefit of every inference that is reasonably deducible from the evidence.

4. Workers’ Compensation: Health Care Providers. Generally, pursuant to Neb. 

Rev. Stat. § 48–120 (Cum. Supp. 2012), an employee may be reimbursed for 

nursing care in the employee’s home or at a nursing home, when such care 

is necessitated by a work-related injury, so long as the cost of the care is fair 

and reasonable.

5. ____: ____. There are three basic requirements that must be met before compensation may be rendered for care to an injured employee by the spouse in the 

home: (1) The employer must have knowledge of the employee’s disability and 

need of assistance as a result of a work-related accident; (2) the care given by the 

spouse must be extraordinary and beyond normal household duties; and (3) there 

must be a means of determining the reasonable value of the services rendered by 

the spouse.

6. ____: ____. A person rendering necessary medical services to a disabled worker 

on an “as-needed” basis need not render the services during each moment of 

compensated time, but, rather, must be available to perform the needed services 

during the times when needed.

7. ____: ____. For compensability of in-home care, the focus is on the nature of the 

service provided, not the status or devotion of the provider of the service.

8. Workers’ Compensation: Attorney Fees. Attorney fees in workers’ compensation cases are allowable only pursuant to statutory authorization.

9. ____: ____. The determination of an award of attorney fees pursuant to Neb. Rev. 

Stat. § 48-125 (Cum. Supp. 2012) must be calculated on a case-by-case basis.
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Appeal from the Workers’ Compensation Court: Laureen 

Van Norman, Judge. Affirm

Gregory D. Worth, of McAnany, Van Cleave & Phillips, 

P.A., for appellants.

Travis Allan Spier, of Atwood, Holsten, Brown, Deaver & 

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

Heavican, C.J., Wright, Connolly, Stephan, 

Miller-Lerman, and Cassel,

McCormack, 

NATURE OF CASE

Michael Simmons, while employed by Precast Haulers, Inc., 

sustained extensive injuries when he was run over by a fully 

loaded tractor-trailer. Precast Haulers concedes that the injuries 

and the related medical bills are compensable, but on appeal, 

Precast Haulers challenges the trial court’s order requiring it 

to provide a wheelchair-accessible van; to pay for the in-home 

care provided by Michael’s wife, Courtney Simmons; and to 

pay for Michael’s attorney fees under Neb. Rev. Stat. § 48-125 

(Cum. Supp. 2012). Michael cross-appeals for additional attorney fees.

BACKGROUND

The parties stipulated that Michael was employed by Precast 

Haulers on October 14, 2011, when he sustained compensable 

injuries to his whole body during the course of his employment. At the time of the accident, Michael was attempting to 

activate a hydraulic lever on a tractor-trailer when he slipped 

and fell to the ground. The tires of the fully loaded tractortrailer ran over Michael’s body, crushing him.

Michael suffered extensive crush injuries from the accident. 

His injuries included the following: complex pelvic fractures; 

bowel and bladder dysfunction; lumbar spine fracture; SI joint 

crush injury; retroperitoneal hemorrhage; urethral injury; fractures to his hands, arms, feet, ankles, and legs; Chopart’s 

amputation of his right foot; left upper arm degloving injury; 

skin grafting; ileus; traumatic neuropathy; buttocks pressure 
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wounds; scrotal injury; rectal injury; abdominal wall wounds; 

splenic injury; bladder rupture; depression; anxiety; adjustment disorder; posttraumatic stress disorder; and cognitive 

defects. Michael’s right foot was amputated. Michael’s left foot 

required multiple grafting surgeries.

Due to his injuries, Michael was hospitalized from October 

14 to December 23, 2011. Complications from his injuries 

required him to be in and out of inpatient care for several more 

months after December 23.

When Michael did return home, he required 24-hour inhome nursing to allow him to continue his outpatient recovery 

and rehabilitation. The uncontested evidence at trial establishes 

that Michael cannot care for himself without assistance. He 

needs assistance with everything from preparing food to bathing. Michael requires assistance to change his catheter and 

colostomy bags. Michael’s wounds require bandages to be 

changed and for the wounds to be packed.

Additionally, Michael has limited mobility and needs assistance moving. When he first returned home, Michael was 

unable to stand and required assistance to get into and out of 

his recliner. Due to repeated surgeries, Michael has had to learn 

how to walk three different times. At the time of trial, Michael 

could walk with his walker only 30 to 50 yards before needing 

a break. Michael primarily uses a heavy manual wheelchair 

for mobility. The heavy wheelchair was on loan from the 

University of Kansas Hospital. Precast Haulers’ insurance company did not provide Michael with a manual wheelchair until a 

week before the trial, which was held on May 30, 2013.

The wheelchairs Michael was provided with are heavy and 

cannot roll on carpet very well. Michael cannot push himself 

through his yard and cannot move on his gravel driveway. He 

cannot put the wheelchair in a vehicle himself, and it is difficult for Courtney to do so. Michael testified that he can drive 

a car and that he still has his license. However, when he drives 

by himself, he has to leave his nonmotorized wheelchair in 

the driveway.

Michael’s doctors recommended that he receive custom 

wheelchairs and a wheelchair accessible van. In February 

2012, Michael was issued a “Physician’s Order” to receive a 
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custom powered wheelchair, a custom manual wheelchair, and 

a wheelchair accessible van. Numerous other similar orders 

were subsequently made. In an affidavit, one of Michael’s 

treating physicians concurred with his associate physicians that 

Michael required a custom manual wheelchair, a custom powered wheelchair, a powered scooter, and a wheelchair accessible van to assist in his outpatient recovery and rehabilitation 

from his work-related injuries.

Michael’s 24-hour in-home care was originally provided by 

hired professionals. However, after 11⁄2 months of 24-hour care, 

Michael could not tolerate having a night nurse. Michael’s 

wife, Courtney, took over Michael’s care from 7 p.m. to 7 

a.m. Monday through Friday and for 24 hours per day on the 

weekends. During the week, Courtney works a full-time job 

outside the home. Therefore, from 7 a.m. to 7 p.m., Monday 

through Friday, Robin Chynoweth, a certified nursing assistant, 

provides Michael’s care.

Courtney has replaced all but one of the certified nursing assistants. With the help of her son, Courtney provides 

care for Michael 108 hours per week. She testified that for 

a 6-month period, she moved an air mattress into the living 

room, where Michael slept, to care for him overnight. She 

provides all of the care of a nursing professional. In addition 

to the services provided by Chynoweth, Courtney changes 

Michael’s fentanyl bandages and can give Michael his medication. Chynoweth’s certification does not allow her to perform those functions.

At trial, Courtney testified that on the weekdays, she spends 

at least 3 hours per day directly assisting Michael and spends 

8 to 12 hours per day on the weekend. Courtney stated that 

if she did not provide the care, 24-hour nursing care would 

be required, and that the nurses hired would need to be more 

qualified than Chynoweth. Courtney feared that if not for her 

care, Michael would need to be in a nursing home. Michael’s 

treating physicians agreed with Courtney and averred in their 

affidavits that if Courtney was not available to provide assistance to Michael, additional in-home nursing services would 

have been required to allow Michael to continue his outpatient 

recovery and rehabilitation.
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The trial court also received evidence concerning the payment of Michael’s medical bills. Exhibit 5 in the record contains affidavits from representatives from the various medical 

care providers that took care of Michael after his accident. Each 

affidavit states the total bill, the amount of unpaid charges, and 

whether Cherokee Insurance Company made timely payments 

within 30 days. By way of example, the exhibit contains an 

affidavit from Bryan Medical Center. Michael received care at 

Bryan Medical Center from October 14 to November 22, 2011, 

incurring charges of $729,109.16. A representative from Bryan 

Medical Center requested payments from Cherokee Insurance 

Company on December 13, 2011, and again on March 21, April 

6 and 9, May 7, July 24 and 26, August 7 and 29, and October 

9, 2012. By October 9, no payments had yet been received. And 

as of May 7, 2013, when the affidavit was signed, $110,279.89 

was still outstanding.

Exhibit 6, which was compiled by Michael’s attorneys, is a 

demonstrative exhibit detailing the charges incurred, paid, and 

outstanding prior to and after the filing of the petition in this 

case. The medical bills at the time of trial totaled $2,161,555.30, 

of which $426,195.89 was still outstanding. Prior to the filing of the petition, Michael had incurred $1,498,065.68 in 

medical bills and the Cherokee Insurance Company had paid 

only $25,021.72.

Michael’s counsel offered exhibit 7, a billing statement 

for services provided by Michael’s counsel in this case. The 

affidavit states that reasonable rates of $150 per hour were 

charged by the attorneys and $75 per hour for the paralegals. 

The services and expenses listed by Michael’s counsel totaled 

$36,555.

Prior to trial, Precast Haulers stipulated that Michael has 

been temporarily totally disabled and will remain temporarily totally disabled as the result of his work-related injuries 

indefinitely into the future. Precast Haulers also stipulated that 

Michael is entitled to an award of future medical care to treat 

his work-related injuries.

The issues remaining for determination by the trial court 

were Michael’s entitlement to attorney fees for late payment 

of medical expenses, Michael’s entitlement to certain assistive 
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devices, and whether Courtney was owed for home health 

care services provided. After receiving evidence and hearing 

testimony, the trial court held that (1) Precast Haulers was to 

provide and pay for a custom lightweight wheelchair, a custom powered wheelchair, and a wheelchair accessible van; (2) 

Precast Haulers was to reimburse Michael for home health 

care services provided by Courtney, in the amount of $1,080 

per week, which is 108 hours multiplied by $10 per hour, and 

reimburse Michael for services rendered from the time he was 

released from the hospital to the date of trial in the total sum 

of $69,428.57; and (3) Precast Haulers was to pay Michael’s 

attorney fees in the amount of $36,555.

ASSIGNMENTS OF ERROR

Precast Haulers assigns that the trial court erred in finding that (1) Michael was entitled to attorney fees pursuant to 

§ 48-125 in the amount of $36,555, (2) Courtney was entitled 

to compensation for the provision of home health care, and (3) 

Michael was entitled to a wheelchair accessible van.

On cross-appeal, Michael assigns that the trial court erred 

as a matter of law by limiting the amount of § 48-125 attorney 

fees awarded to the time expended by his attorneys.

STANDARD OF REVIEW

[1,2] 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.1 In 

determining whether to affirm, modify, reverse, or set aside a 

judgment of the Workers’ Compensation Court, the findings of 

fact of the trial judge will not be disturbed on appeal unless 

clearly wrong.2

1 Kim v. Gen-X Clothing, 287 Neb. 927, 845 N.W.2d 265 (2014).

2 Id.
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[3] In testing the sufficiency of the evidence to support the 

findings of fact in a workers’ compensation case, every controverted fact must be resolved in favor of the successful party 

and the successful party will have the benefit of every inference that is reasonably deducible from the evidence.3

ANALYSIS

Wheelchair Accessible

Precast Haulers argues that the evidence does not support 

an award of a wheelchair accessible van. We disagree. We find 

the evidence provided in the record is sufficient competent evidence to support the trial court’s award.

Neb. Rev. Stat. § 48-120(1)(a) (Cum. Supp. 2012) of 

Nebraska’s workers’ compensation statutes, states in part:

The employer is liable for all reasonable medical, surgical, and hospital services, including plastic surgery or 

reconstructive surgery but not cosmetic surgery when 

the injury has caused disfigurement, appliances, supplies, 

prosthetic devices, and medicines as and when needed, 

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.

The issue of whether a wheelchair accessible van is an 

“appliance” under this state’s workers’ compensation statute 

is one of first impression. Although the statutes under which 

they were operating are not identical to Nebraska’s, other 

courts have found that a wheelchair accessible van qualifies 

as an “appliance,”4 a “‘mechanical appliance,’”5 an “‘artificial 

replacement,’”6 and an “orthopedic appliance.”7 Other courts, 

such as the Michigan Supreme Court, have found that the van 

itself, as a vehicle, is not an “appliance,” but that the term 

3 Id.

4 Manpower Temporary Services v. Sioson, 529 N.W.2d 259, 264 (Iowa 

1995).

5 Crouch v. W. Va. Workers’ Comp. Com’r, 184 W. Va. 730, 733, 403 S.E.2d 

747, 750 (1991).

6 Meyer v. N.D. Workers Comp. Bureau, 512 N.W.2d 680, 684 (N.D. 1994).

7 Griffiths v. W.C.A.B., 596 Pa. 317, 321, 943 A.2d 242, 244 (2008).
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encompasses the necessary modifications to the van to make it 

operable by the worker.8

When interpreting provisions of the Nebraska Workers’ 

Compensation Act, our court has consistently given the act a 

liberal construction to carry out justly its beneficent purpose to 

provide an injured worker with prompt relief from the adverse 

economic effects caused by a work-related injury or occupational disease.9

 Therefore, although we have not previously 

explicitly defined “appliance,” we have broadly interpreted the 

term. In Miller v. E.M.C. Ins. Cos.,

10 we held that home modifications for a man bound to a wheelchair could be medical 

expenses under the appliances or supplies categories. We stated 

that the modifications are compensable if they are “‘required 

by the nature of the injury’” and if the modifications “‘relieve 

pain or promote and hasten the employee’s restoration to health 

and employment.’”11

Precast Haulers argues that a wheelchair accessible van 

is not a “medical service” which will relieve Michael’s pain 

or hasten his restoration to health and employment. Precast 

Haulers also argues that Michael does not want a wheelchair 

accessible van and that Michael would not be able to drive 

it. Precast Haulers also notes other transportation services are 

available to Michael.

We reject each of Precast Haulers’ arguments. The uncontested evidence in the record indicates that a wheelchair 

accessible van will hasten Michael’s restoration to health and 

employment. One of Michael’s treating physicians averred that 

Michael required a wheelchair accessible van to assist in his 

outpatient recovery and rehabilitation from his work-related 

injuries. There is no evidence in the record that a wheelchair 

accessible van would not help in his restoration to health.

Precast Haulers’ other arguments are weak at best. The 

overwhelming testimony given by Michael indicates that he 

8 Weakland v. Toledo Engineering Co., Inc., 467 Mich. 344, 656 N.W.2d 175 

(2003).

9 Zwiener v. Becton Dickinson-East, 285 Neb. 735, 829 N.W.2d 113 (2013).

10 Miller v. E.M.C. Ins. Cos., 259 Neb. 433, 610 N.W.2d 398 (2000).

11 Id. at 451, 610 N.W.2d at 412 (quoting § 48-120).
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wants to gain independence by having a wheelchair accessible van. Although Precast Haulers asserts that Michael cannot drive, Michael testified that he can drive and that he still 

has his driver’s license. There is no evidence from Michael’s 

doctors that Michael cannot or should not drive. Precast 

Haulers’ argument also ignores that a wheelchair accessible 

van is necessary to allow Michael and his family to transport 

his new powered wheelchair, which was awarded by the trial 

court. Without a wheelchair accessible van, it is logical to 

assume that it may be difficult, if not impossible, for Michael 

and Courtney to transport his new powered wheelchair. And 

finally, although Michael has been provided with a transportation service to his medical appointments, it does not provide 

transportation for his personal needs.

In conclusion, the record provides sufficient competent evidence to establish that a wheelchair accessible van is an “appliance” that will help restore Michael’s health. We, therefore, 

cannot say that the trial court was clearly wrong in determining that Precast Haulers should pay for a wheelchair accessible van.

On-Call Compen

for Spous

Precast Haulers argues that the evidence is not sufficient 

to support Courtney’s receiving compensation for the provision of home health care for 48 hours of care on the weekends 

and 12 hours of care each weekday. In support of this argument, Precast Haulers argues that many of the hours spent by 

Courtney “on-call” were spent sleeping, completing ordinary 

household duties, and caring for herself, which hours should be 

considered noncompensable.

[4,5] Generally, pursuant to § 48-120, an employee may 

be reimbursed for nursing care in the employee’s home or at 

a nursing home, when such care is necessitated by a workrelated injury, so long as the cost of the care is fair and reasonable.12 We have repeatedly stated that it is not essential 

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

(1990).
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that the service be furnished by a doctor, nurse, or other 

medical person.13 With this understanding, we have allowed 

payments to spouses14 and unrelated persons15 who provide 

the care. There are three basic requirements that must be met 

before compensation may be rendered for care to an injured 

employee by the spouse in the home: (1) The employer 

must have knowledge of the employee’s disability and need 

of assistance as a result of a work-related accident; (2) the 

care given by the spouse must be extraordinary and beyond 

normal household duties; and (3) there must be a means of 

determining the reasonable value of the services rendered by 

the spouse.16

[6] Ordinary housekeeping tasks, which generally include 

cleaning, preparation of meals, and washing and mending 

clothes, are noncompensable.17 Compensable tasks include 

serving meals in bed, bathing and dressing, administering 

medication, and assisting with sanitary functions.18 However, 

we have held that a person rendering necessary medical services to a disabled worker on an “as-needed” basis need not 

render the services during each moment of compensated time, 

but, rather, must be available to perform the needed services 

during the times when needed.19 We stated, quoting the Rhode 

Island Supreme Court case of Bello v. Zavota Bros. Transp. 

Co., Inc.,

20 as follows:

“The fact that [a person] may not have been actively 

performing a strictly medical task at each and every 

13 See, Currier v. Roman L. Hruska U.S. Meat Animal Res. Ctr., 228 Neb. 38, 

421 N.W.2d 25 (1988); S & S LP Gas Co. v. Ramsey, 201 Neb. 751, 272 

N.W.2d 47 (1978).

14 Spiker v. John Day Co., 201 Neb. 503, 270 N.W.2d 300 (1978) (superseded 

by statute on other grounds as stated in Koterzina v. Copple Chevrolet, 1 

Neb. App. 1000, 510 N.W.2d 467 (1993)).

15 S & S LP Gas Co. v. Ramsey, supra note 13.

16 Currier v. Roman L. Hruska U.S. Meat Animal Res. Ctr., supra note 13.

17 Id.

18 Id.

19 Id.

20 Bello v. Zavota Bros. Transp. Co., Inc., 504 A.2d 1015 (R.I. 1986).
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moment of the day does not mean that she should not be 

compensated for her continuous attendance. This case is 

analogous to the situation in which a night nurse watches 

over a sleeping patient. The fact that the patient sleeps 

through the night does not support an argument that the 

nurse should not be paid for the night. He or she must 

be present and available to meet the patient’s needs, not 

according to some preestablished timetable, but as the 

patient experiences them.”21

The fact that an attendant service provider may perform household tasks during “on-call” time does not alter either the need 

for or the nature of the services provided.22

[7] Precast Haulers attempts to distinguish this precedent 

by arguing that because Courtney is Michael’s spouse, she 

should not be compensated for her “on-call” time. We find 

no relevant distinction between a spouse and a nonrelated 

third party, so long as the evidence supports compensability 

under the three-part test set out in Currier v. Roman L. Hruska 

U.S. Meat Animal Res. Ctr.23 For compensability of in-home 

care, our focus is on the “‘nature of the service provided, not 

the status or devotion of the provider of the service.’”24 A 

paid third-party nurse might read, nap, or perform household 

tasks and would nevertheless be compensated for that time.25

Therefore, if the spouse is providing the same service while 

“on-call,” the fact that the spouse is able to sleep or perform 

household tasks during that time is likewise irrelevant.26 “This 

21 Currier v. Roman L. Hruska U.S. Meat Animal Res. Ctr., supra note 13, 

228 Neb. at 46, 421 N.W.2d at 30.

22 Id. (citing Standard Blasting & Coating v. Hayman, 476 So. 2d 1385 (Fla. 

App. 1985)).

23 Currier v. Roman L. Hruska U.S. Meat Animal Res. Ctr., supra note 13.

24 Spiker v. John Day Co., supra note 14, 201 Neb. at 522, 270 N.W.2d at 

310 (Brodkey, J., concurring; Boslaugh, McCown, and White, C. Thomas, 

JJ., join).

25 Currier v. Roman L. Hruska U.S. Meat Animal Res. Ctr., supra note 13 

(citing Brown v Eller Advertising Co, 111 Mich. App. 538, 314 N.W.2d 

685 (1981)).

26 Id.
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is so because, if the employer provided the services of an outside professional, that professional would be entitled to pursue 

his or her own interests during such ‘on call’ periods without 

diminution of compensation.”27 Compensation for a claimant’s 

spouse for “on-call” nursing hours is allowed if supported by 

the evidence.28

Here, the evidence clearly supports all three of our requirements for spousal compensation. Precast Haulers does not 

contest that it had knowledge of Michael’s disability and need 

of assistance as a result of a work-related accident or that 

there was a means of determining the reasonable value of the 

services rendered by Courtney. Rather, Precast Haulers argues 

that the evidence supports compensation of only 50 hours 

per week for services provided by Courtney, not 108 hours. 

We disagree.

This is a sufficiency of the evidence issue; therefore, every 

controverted fact must be resolved in favor of the successful 

party and the successful party will have the benefit of every 

inference that is reasonably deducible from the evidence.29

We begin by repeating that Precast Haulers does not contest 

that Michael needs 24 hours of care per day. In fact, Michael 

received 24 hours of care per day from paid third-party providers for 11

⁄2 months after he returned home from the hospital. The testimony of Michael, Courtney, and Chynoweth 

all support that Courtney has completely replaced the care 

of the night and weekend nurses. Indeed, Courtney has gone 

beyond the medical services the nurses originally provided. 

Courtney helps Michael move, bathes him, feeds him, tends 

to his open wounds, provides him with medication, and is 

available should he need emergency care. Michael’s treating 

physicians have ordered 24-hour care for Michael and have 

averred that if Courtney were not available to provide assistance to Michael, additional in-home nursing services would 

27 Edward Kraemer & Sons, Inc. v. Downey, 852 P.2d 1286, 1289 (Colo. 

App. 1992).

28 Close v. Superior Excavating Co., 166 Vt. 318, 693 A.2d 729 (1997); 

Edward Kraemer & Sons, Inc. v. Downey, supra note 27.

29 Kim v. Gen-X Clothing, supra note 1.
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be required to allow Michael to continue his outpatient recovery and rehabilitation. No evidence in the record indicates to 

the contrary.

When viewing this evidence in the light most favorable to 

Michael, it is apparent that the sum of $1,080 per week, with 

back compensation for a total of 642⁄7 weeks for the services 

provided by Courtney, was reasonable and supported by sufficient competent evidence.

Attorney F

Finally, both parties argue that the trial court erred in the 

amount of attorney fees it awarded. Precast Haulers argues that 

the award of the entire amount of attorney fees requested was 

unreasonable and excessive. On cross-appeal, Michael argues 

that the amount of § 48-125 attorney fees awarded should 

not be limited to the hours worked by the attorneys, because 

Precast Haulers would be rewarded by delaying payment. We 

hold that the trial court did not err in awarding the full amount 

of attorney fees and no more.

[8] Attorney fees in workers’ compensation cases are 

allowable only pursuant to statutory authorization.30 Section 

48-125(2)(a) states in part:

Whenever the employer refuses payment of compensation 

or medical payments subject to section 48-120, or when 

the employer neglects to pay compensation for thirty days 

after injury or neglects to pay medical payments subject 

to such section after thirty days’ notice has been given 

of the obligation for medical payments, and proceedings 

are held before the compensation court, a reasonable 

attorney’s fee shall be allowed the employee by the compensation court in all cases when the employee receives 

an award.

The purpose of the provision for attorney fees in § 48-125 

is to encourage prompt payment by making delay costly 

if an employer neglects to pay medical payments after 

30 days’ notice has been given of the obligation for the 

30 Elwood v. Panhandle Concrete Co., 236 Neb. 751, 463 N.W.2d 622 

(1990).
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medical payments.31 Nonpayment of medical bills can have an 

extremely deleterious result for an injured worker.32 Necessary 

medical care may be delayed for months pending litigation, 

which in itself may cause more severe permanent injury.33

[9] The determination of an award of attorney fees pursuant to § 48-125 must be calculated on a case-by-case basis.34

In making that calculation, the trial court should consider, as 

in other attorney fee contexts, 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.35 Particular attention should be 

given to the amount of legal work performed in relation to 

the amount of the unpaid medical bill and the amount of the 

unpaid medical bill in relation to the workers’ compensation 

award received.36

Precast Haulers argues that the award for attorney fees was 

unreasonable for three reasons: (1) Michael’s counsels’ work 

involved minimal legal skill, (2) Precast Haulers has been 

late in paying a small amount of the bills, and (3) attorney 

fees awarded should be only for fees directly attributed to the 

collection of unpaid bills. We find each argument to be without merit.

The trial court specifically found:

This case involved extremely complex documentation, 

and while not all of the issues were litigated at trial, 

a very thorough set of exhibits was prepared and a 

31 Harmon v. Irby Constr. Co., 258 Neb. 420, 604 N.W.2d 813 (1999) 

(Gerrard, J., concurring; McCormack, J., joins).

32 Id.

33 Id.

34 Harmon v. Irby Constr. Co., supra note 31.

35 Id.

36 Id.
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competent brief was presented. Counsel has gone to great 

lengths to ensure that all of the medical documentation 

was comprehensible to the Court.

We give deference to the findings of the trial court. Considerable 

time was put into compiling the medical records, and a trial 

was held. Precast Haulers does not contest the number of hours 

worked by Michael’s counsel. We find Precast Haulers’ contention that opposing counsel did little to no skilled work to be 

wholly without merit.

Additionally, Precast Haulers’ argument that very few bills 

were paid late is not supported by the record. At the time 

the petition was filed, the trial court found that Michael had 

incurred $1,498,065.68 in compensable medical expenses, but 

only approximately $25,000 had been paid. The record indicates that demands for payment had been made by certain 

medical providers over a month prior to the filing of the petition. Bryan Medical Center had requested payment a total of 

11 times, and the first payment from Precast Haulers was not 

received until a year after the first request. After our review of 

the record, we cannot find error in the trial court’s factual finding that payment was unjustifiably delayed on the majority of 

Michael’s medical bills.

And finally, Precast Haulers argues that under Harmon v. 

Irby Constr. Co.,

37 the attorney fees should be limited to the 

fees directly attributable to the collection of unpaid medical 

bills. In Harmon, $3,904 in attorney fees was awarded for the 

late payment of a $165 medical bill.38 We found the attorney 

fees to be unreasonable, because only a fraction of the fees 

could be directly attributed to the collection of the unpaid 

medical bill. In fact, as noted by the concurring opinion, it was 

clear from the record that the collection of this medical bill was 

incidental to the filing of the plaintiff’s claim for permanent 

total disability benefits.39 Our opinion in Harmon does not, as 

Precast Haulers contends, affirmatively state that only attorney 

37 Id.

38 Id.

39 Id. (Gerrard, J., concurring; McCormack, J., joins).
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Cite as 288 Neb. 480

fees directly related to the collection of unpaid medical bills 

can be awarded. Rather, we simply found that the attorney fees 

in that case were unreasonable. As explained in the concurring 

opinion, it is appropriate to assess the “entire attorney fee in 

those cases where one of the underlying reasons for the filing 

of the workers’ compensation claim is to establish compensability for a delinquent medical bill.”40 We find this statement is 

consistent with the statute. Section 48-120 does not limit reasonable attorney fees to those directly attributable to the collection of an unpaid medical bill. Rather, as already discussed, 

what constitutes reasonable attorney fees is determined on a 

case-by-case basis.41

In this case, we find that the trial court did not err in awarding the full amount of attorney fees. The primary reason that 

Michael filed this petition was Precast Haulers’ and its insurer’s failure to promptly pay for his medical expenses and bills. 

There was no controversy regarding the compensability of 

Michael’s injuries. As discussed in the trial court’s order and in 

this opinion, had Precast Haulers and its insurer paid Michael’s 

bills and medical expenses, Michael would likely not have 

incurred such a hefty bill for attorney fees.

Michael’s cross-appeal wants to take it one step further. 

Michael argues that reasonable attorney fees under our precedent can be, as a matter of law, greater than the actual attorney fees and expenses billed. Michael’s argument is that due to 

the large amount of unpaid medical bills, the interest Precast 

Haulers’ insurer made from late payment is greater than the 

award of attorney fees, and that thus, there is little deterrent in 

the trial court’s award.

Regardless of whether a trial court could, as a matter of 

law, find reasonable attorney fees to be greater than the hours 

billed and expenses, the trial court did not do so in this case. 

We find that the trial court did not clearly err in awarding only 

the hours billed and expenses, $36,555. There is no indication 

in the trial court’s order that the judge felt that she was limited, 

40 Id. at 431, 604 N.W.2d at 821.

41 Harmon v. Irby Constr. Co., supra note 31.
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496 288 NEBRASKA REPORTS

as a matter of law, in the amount she could award attorney 

fees. Rather, the record shows that she awarded the entire 

amount requested by Michael. Exhibit 7 is the attorney fees 

and expenses given to the court, which total $36,555. Nowhere 

in the record does it appear that the trial court was asked to 

award more than that amount. An issue not presented to or 

passed on by the trial court is not appropriate for consideration 

on appeal.42 With no indication in the record that this issue was 

presented, we cannot say as a matter of law that the trial court 

erred in not awarding attorney fees greater than the amount 

billed. It is incumbent upon the party appealing to present a 

record that supports the errors assigned.43

Again, we stress that the determination of an award of attorney fees pursuant to § 48-125 must be calculated on a case-bycase basis.44 The determination of the amount of attorney fees 

is necessarily a question of fact that requires a factual determination on several factors.45 We, therefore, give great deference 

to the trial court’s findings of fact and find that the trial court 

did not clearly err in awarding only the full amount of attorney 

fees requested by Michael.

CONCLUSION

For the reasons stated herein, we affirm the decision of the 

trial court.

Affirmed

42 In re Interest of Kodi L., 287 Neb. 35, 840 N.W.2d 538 (2013).

43 See, e.g., Sindelar v. Hanel Oil, Inc., 254 Neb. 975, 581 N.W.2d 405 

(1998).

44 See Harmon v. Irby Constr. Co., supra note 31.

45 Id.