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MELTON v. CITY OF HOLDREGE

Cite as 309 Neb. 385

Benjamin Melton, appellant, v. 

City of Holdrege, appellee.

___ N.W.2d ___

Filed May 28, 2021. No. S-20-721.

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

award of the 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. ____: ____. On appellate review, the factual findings made by the trial 

judge of the Workers’ Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong.

3. ____: ____. An appellate court is obligated in workers’ compensation 

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

4. Workers’ Compensation. Neb. Rev. Stat. § 48-121(3) (Reissue 2010) 

generally provides the manner by which a worker is compensated for the 

loss or loss of use of a scheduled member.

5. Damages. As a general rule, a party may not have double recovery for a 

single injury.

6. Workers’ Compensation: Attorney Fees: Penalties and Forfeitures: 

Time. Neb. Rev. Stat. § 48-125 (Cum. Supp. 2020) authorizes a 

50-percent penalty payment for waiting time involving delinquent payment of compensation and an attorney fee, where there is no reasonable 

controversy regarding an employee’s claim for workers’ compensation.

7. Workers’ Compensation: Attorney Fees: Words and Phrases. A “reasonable controversy” exists (1) if 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 

Nebraska Supreme Court Online Library

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

06/08/2021 09:08 AM CDT
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MELTON v. CITY OF HOLDREGE

Cite as 309 Neb. 385

conclusions affect allowance or rejection of an employee’s claim, in 

whole or in part.

8. Workers’ Compensation: Words and Phrases. Whether a reasonable 

controversy exists under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2020) is 

a question of fact.

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

vocational rehabilitation is ordinarily a question of fact to be determined 

by the compensation court.

10. ____. A workers’ compensation award cannot be based on mere possibility or speculation.

Appeal from the Workers’ Compensation Court: Dirk V. 

Block, Judge. Affirmed.

Todd D. Bennett, of Rehm, Bennett, Moore & Rehm, P.C., 

L.L.O., for appellant.

David A. Dudley and Micah C. Hawker Boehnke, of Baylor 

Evnen, L.L.P., for appellee.

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

and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

Benjamin Melton sought workers’ compensation benefits 

after an injury resulted in a below-the-knee amputation of his 

leg. The trial court awarded compensation for a loss of foot and 

a partial loss of leg function. On appeal, Melton challenges the 

court’s determination of his loss and its decision to not award 

a penalty regarding permanent loss of his foot or vocational 

rehabilitation. Because the court’s factual findings were not 

clearly wrong and we find no error of law, we affirm.

II. BACKGROUND

1. Injury and Disability Payments

The City of Holdrege (City) employed Melton as a journeyman lineman. In October 2011, Melton sustained a workrelated injury resulting in an amputation of his left leg a few 
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MELTON v. CITY OF HOLDREGE

Cite as 309 Neb. 385

inches below the knee. In December, he was fitted for a prosthesis, but attaining a good fit was a recurring problem. In 

March 2012, Melton returned to his position with the City. He 

was able to perform at least some aspects of his job. Melton 

did not feel that he could perform his lineman duties without 

the prosthesis, having tried to do so. While performing his job 

duties, he encountered issues with the use of his prosthesis, 

such as shrinking, swelling, sweating, and obtaining a good 

fit. In 2014, Melton underwent a “stump revision” surgery that 

helped him obtain a better fit with his prosthetic leg, though he 

still encountered pain and discomfort.

From the date of the accident until Melton’s return to work, 

the City paid 23 weeks of temporary total disability benefits. 

Between March 14, 2012, and March 12, 2016, the City paid 

temporary partial disability benefits for 833⁄7 weeks. In May 

2017, Melton provided the City with a record from his physician stating that he had reached maximum medical improvement (MMI) and the City paid permanent partial disability 

benefits based on a 100-percent loss of Melton’s foot and an 

additional 5-percent loss to his leg. There is no dispute that the 

City paid all medical expenses under the fee schedule and all 

temporary disability benefits.

2. Petition and Trial

In May 2017, Melton filed a petition seeking workers’ compensation benefits. He requested temporary and permanent disability benefits, payment of medical expenses, and vocational 

rehabilitation benefits. He also asked for waiting-time penalties, attorney fees, and interest.

Three years later, the workers’ compensation court conducted a trial. The evidence established that in 2018, Melton 

secured a new position as a corrosion technician with a different employer. He remained in that employment at the time 

of trial. Melton testified that he continues to suffer pain in his 

knee, that his knee is weak, and that he does not have much use 

of his leg without employing a prosthetic device. He cannot 
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MELTON v. CITY OF HOLDREGE

Cite as 309 Neb. 385

stand for long periods of time or bear weight on the left leg 

without the prosthetic device. He testified that he would not 

even try to perform his job duties without his prosthesis.

The court received conflicting evidence concerning an 

impairment rating for Melton. In an April 2017 record, a doctor 

determined that Melton’s total combined whole person impairment was 40 percent and the “WP Impairment Converted to 

Lower Extremity” was 32 percent. On the other hand, a different doctor opined within a reasonable degree of medical certainty that Melton’s correct impairment rating was a 70-percent 

permanent partial impairment of his left lower extremity.

The evidence regarding MMI differed, also. A February 

2012 medical record stated, “Plan for MMI at one year post 

injury.” In an April 2017 record, a doctor stated that Melton 

had “reached a medically stable point in time.”

3. Award

The court awarded Melton future medical care and permanent disability benefits. It rejected Melton’s argument that he 

was entitled to an award for the loss of each toe on his left 

foot in addition to the loss of that foot. Interpreting Neb. Rev. 

Stat. § 48-121(3) (Reissue 2010), the court determined that 

Melton’s amputation below the knee entitled him to statutory 

benefits for 150 weeks. The court found credible Melton’s testimony regarding his limitations and retained use of his leg. It 

concluded that Melton had not lost all functional use of his left 

leg, but that “his loss of thigh strength and atrophy combined 

with his knee pain have reduced the function of his leg beyond 

the loss of his foot.” The court found that Melton suffered a 

20-percent loss of function to his leg, entitling him to 43 weeks 

of disability benefits. Thus, the court awarded a combined total 

of 193 weeks of compensation.

The court recognized the parties’ disagreement as to when 

the City should have begun making periodic permanent disability payments for the amputation of Melton’s left foot. 

It looked for an explanation concerning the City’s delay in 
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MELTON v. CITY OF HOLDREGE

Cite as 309 Neb. 385

paying for the loss of Melton’s foot and stated that “[t]he differing dates of MMI by [Dr. Dennis] McGowan (2012) and 

[Dr. Bryan] Scheer (2017), when combined with the unanswered question of when [the City] received McGowan’s opinion, create a factual controversy, if having a medical opinion 

is required.” The court declared that whether MMI must be 

proved by expert medical opinion was an unanswered question 

of law, but it concluded that an expert medical opinion was not 

required where temporary disability benefits are discontinued 

before MMI. The court found, as a matter of law, that in an 

uncontested case involving the amputation of a hand, arm, 

foot, or leg, payment for permanent disability for the amputation should begin immediately at the discontinuance of temporary disability benefits or MMI, whichever occurs first. Based 

on that finding, the court determined that Melton’s entitlement 

to payment for the amputation of his foot began on June 17, 

2012, when he returned to full-time work and his temporary 

disability benefits were discontinued.

The court denied Melton’s requests for a waiting-time penalty and vocational rehabilitation. In declining to award a 

penalty, the court found that “a reasonable controversy exists 

regarding an unanswered question of law” as to whether the 

discontinuance of temporary disability payments triggers payment of permanent disability payments in a case involving 

an amputation. Because Melton had secured substantial gainful employment, the court denied his request for vocational 

rehabilitation.

Melton filed a timely appeal, which we moved to our 

docket. 1

III. ASSIGNMENTS OF ERROR

Melton assigns that the court erred in (1) failing to evaluate 

his loss and the loss of use of his leg without the assistance 

of his prosthetic device in determining impairment; (2) failing 

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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Cite as 309 Neb. 385

to award him for the total loss of use of his leg; (3) failing to 

award him consecutive disability benefits for the total loss of 

all his toes, his foot, and use of his leg pursuant to § 48-121(3); 

(4) failing to award waiting-time penalties, attorney fees, and 

interest for late payment associated with the total loss of his 

foot; and (5) failing to find that he was entitled to an award of 

vocational rehabilitation services for satisfying criteria of Neb. 

Rev. Stat. § 48-162.01(3) (Reissue 2010) despite no further 

services being requested or necessary at the time of trial.

IV. STANDARD OF REVIEW

[1] A judgment, order, or award of the 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

[2] On appellate review, the factual findings made by the 

trial judge of the Workers’ Compensation Court have the 

effect of a jury verdict and will not be disturbed unless 

clearly wrong. 3

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

cases to make its own determinations as to questions of law. 4

V. ANALYSIS

1. Determination of Loss

Melton challenges three aspects of the court’s determination 

of his loss. First, he argues that in determining his impairment, 

the court failed to evaluate loss of use of his left leg without the prosthesis attached. Second, Melton contends that the 

2 Rogers v. Jack’s Supper Club, 308 Neb. 107, 953 N.W.2d 9 (2021).

3 Parks v. Hy-Vee, 307 Neb. 927, 951 N.W.2d 504 (2020).

4 Rogers v. Jack’s Supper Club, supra note 2.
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Cite as 309 Neb. 385

court should have awarded him compensation for the total loss 

of use of his leg. Third, Melton claims that the court erred in 

failing to award him consecutive disability benefits for a total 

loss of all his toes, his foot, and use of his left leg. Before 

addressing these challenges, we review statutory language central to our analysis.

[4] Section 48-121(3) generally provides the manner by 

which a worker is compensated for the loss or loss of use of 

a scheduled member. 5 Loss of a foot or leg are examples of 

scheduled member injuries. Under § 48-121(3), compensation for the loss of a foot lasts for 150 weeks while compensation for loss of a leg extends for 215 weeks. The statute 

specifies that “amputation between the knee and the ankle 

shall be considered as the equivalent of the loss of a foot,” 

while “amputation at or above the knee shall be considered as 

the loss of a leg.” 6 Under § 48-121(3), Melton’s amputation is 

considered a loss of a foot.

Section 48-121(3) also touches on loss of use of a scheduled 

member. A permanent total loss of the use of a leg is considered as the equivalent of the loss of such leg. 7 For a permanent 

partial loss of the use or function of a leg, “the compensation 

shall bear such relation to the amounts named in such subdivision as the disabilities bear to those produced by the injuries 

named therein.” 8 We now turn to Melton’s arguments.

(a) Consideration of Prosthesis

Melton argues that the court erred by determining the loss of 

use of his left leg with the prosthetic device rather than without 

the use of a prosthesis. We disagree that it did so.

The court’s award recognized Melton’s limitations and use 

of a prosthesis. It acknowledged Melton’s testimony that he 

5 Smith v. Mark Chrisman Trucking, 285 Neb. 826, 829 N.W.2d 717 (2013).

6 § 48-121(3).

7 See id.

8 Id.
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MELTON v. CITY OF HOLDREGE

Cite as 309 Neb. 385

would have no functional use of his leg without the prosthesis and that the function of his leg was reduced by his loss of 

thigh strength, atrophy, and knee pain. But the court found that 

Melton “has not lost all functional use of his left leg.”

The court’s factual finding is not clearly wrong. The court 

explained, “The retained strength and function in the knee and 

thigh, although reduced, enable [Melton] to walk, climb steps, 

navigate uneven terrain, and generally support the use of the 

prosthesis below the knee.” This comports with Melton’s testimony regarding what he could do without his prosthesis: he 

could “pick up [his left] leg . . . waist high,” crawl up stairs, 

climb ladders (although Melton qualified that doing so would 

be “tough” and not “very safe”), and navigate uneven terrain 

by “crawl[ing] or scoot[ing] or slid[ing].” Because the court 

did not determine Melton’s loss based on use of his prosthesis, 

this assignment of error lacks merit.

(b) Total Loss of Use of Leg

Melton next argues that the court should have awarded him 

for a total loss of use of his left leg. He claims that without the 

prosthesis, his leg is a useless object for all practical intents and 

purposes. But Melton’s left leg was not useless—he remained 

able to bend his knee and support weight on the residual limb. 

As discussed above, the court’s finding that Melton had not 

lost all functional use of his leg was not clearly wrong.

Melton relies on a Pennsylvania test mentioned by the 

Nebraska Court of Appeals in one of its decisions. In Jacob 

v. Columbia Ins. Group,

 9 an employee suffered such extensive 

injuries to his left hand that doctors considered amputating 

it, but were ultimately able to save part of it. The Court of 

Appeals found Pennsylvania’s “‘practical intents and purposes’ 

test” to be persuasive on the question of whether the employee 

suffered such disability to his hand that the hand served no 

real purpose. 10 The Court of Appeals found as a matter of 

9 Jacob v. Columbia Ins. Group, 2 Neb. App. 473, 511 N.W.2d 211 (1994).

10 Id. at 487, 511 N.W.2d at 219.
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law that the employee’s left hand was useless and that he suffered a 100-percent disability to his hand.

Using that test, Melton argues that he has sustained a 

100-percent loss of use of his left leg for all practical intents 

and purposes. However, the court’s finding that Melton retained 

enough strength in his left leg to use the prosthetic device is 

supported by the record. We cannot find that Melton’s left leg 

was useless.

Melton next contends that the effects of his amputation 

were not usual, logical, and expected. Long ago, in considering whether an employee who sustained an injury to his thumb 

should also be compensated on the basis of an injury to the 

hand, we observed that injuries to the thumb and to the hand 

were separate scheduled injuries under § 48-121(3) and that we 

had “consistently held that where the effect of an injury to a 

finger only is the usual and natural one, compensation cannot 

be allowed for loss of use of the hand.” 11 In Jacob, the Court 

of Appeals applied the principle for loss of or injury to any of 

the scheduled members listed in § 48-121(3), stating that “so 

long as the injury is only to a lesser member, the scheduled 

compensation for loss of or injury to that member controls, 

unless there is an unusual and unexpected result to the greater 

members.” 12 Here, the trial court found that Melton suffered 

an additional 20-percent loss of function in his leg that went 

beyond what would have otherwise been expected after amputation of his left leg below the knee. We find no clear error in 

this regard.

(c) Failure to Make Consecutive Awards

Melton further argues that the court erred in failing to award 

him consecutive amounts of disability benefits for the loss 

11 Herold v. Constructors, Inc., 201 Neb. 697, 701, 271 N.W.2d 542, 544 

(1978).

12 Jacob v. Columbia Ins. Group, supra note 9, 2 Neb. App. at 484, 511 

N.W.2d at 217.
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of his five toes, the loss of his left foot, and the total loss of his 

left leg. He relies on the following statutory language:

In any case in which there is a loss or loss of use 

of more than one member or parts of more than one 

member set forth in this subdivision, but not amounting 

to total and permanent disability, compensation benefits 

shall be paid for the loss or loss of use of each such 

member or part thereof, with the periods of benefits to run 

consecutively. 13

[5] Melton’s argument is refuted by statutory language found 

in the same paragraph. As we mentioned above, § 48-121(3) 

explicitly states that a below-the-knee amputation is the equivalent of a loss of a foot. It is obvious that such a loss would 

include a loss of the toes on the foot, but the Legislature limited the loss to the foot. This is in line with the general rule 

that a party may not have double recovery for a single injury. 14

For the reasons discussed above, the trial court’s finding that Melton did not suffer a total loss of use of his leg 

was not clearly wrong. The court appropriately compensated 

Melton for the functional loss of his leg that was not already 

accounted for in the compensation for the loss of his foot. 

Being mindful that double recovery is disallowed and that loss 

of a leg is compensated for 215 weeks, the court was careful to 

award loss of use benefits for the leg that when coupled with 

the 150-week award for loss of a foot, would not exceed 215 

weeks. We affirm the court’s award of a combined total of 193 

weeks of compensation.

2. Penalty, Interest, and Attorney Fees

Melton argues that the court erred by failing to award a 

waiting-time penalty, interest, and attorney fees with respect 

to late payment of permanent disability benefits for the loss of 

13 § 48-121(3).

14 See D’Quaix v. Chadron State College, 272 Neb. 859, 725 N.W.2d 558 

(2007).
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his foot. He does not quarrel with the trial court’s conclusion 

regarding when permanent disability benefits become due for 

an amputation. Rather, he challenges only the court’s factual 

finding that a reasonable controversy existed.

Here, the parties’ disagreement centered on when the City 

should have made payments for the permanent loss of Melton’s 

foot. Melton argued that payment was due when his entitlement to temporary disability ceased. On the other hand, the 

City asserted that permanency benefits should be paid only 

after MMI has been reached and that it timely paid such 

benefits within 30 days of being provided proof that Melton 

had reached MMI. The City contends that this disagreement 

amounted to a reasonable controversy.

[6,7] Neb. Rev. Stat. § 48-125 (Cum. Supp. 2020) authorizes 

a 50-percent penalty payment for waiting time involving delinquent payment of compensation and an attorney fee, where 

there is no reasonable controversy regarding an employee’s 

claim for workers’ compensation. 15 A “reasonable controversy” 

exists (1) if 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. 16

[8] Whether a reasonable controversy exists under § 48-125 

is a question of fact. 17 The compensation court determined 

that a reasonable controversy existed due to “an unanswered 

question of law” regarding the timing of permanent disability payments. Our case law is clear that temporary disability 

benefits are discontinued at the point of MMI and that when 

15 Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).

16 See id.

17 Id.
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an injured employee reaches MMI, any remaining disability is 

permanent. 18 We have also declared that MMI is not reached 

until all of the injuries resulting from an accident have reached 

maximum medical healing and that our law does not provide 

for partial MMI. 19 In this case, the City last paid temporary partial disability benefits in March 2016, which suggests 

Melton had reached MMI. That Melton had reached MMI was 

made clear in a May 2017 letter in which Melton’s counsel 

informed the City that “Melton is now at MMI for the remaining impairment for the injury to his knee and leg.” Ten days 

later, the City mailed a check for the 100-percent loss of a foot. 

In finding a reasonable controversy, the court explained that 

“[o]ur appellate courts have not ruled that the discontinuance 

of temporary disability payments triggers payment of permanent disability payments in a case involving an amputation.” 

We agree that this was an unanswered question. Accordingly, 

we find no clear error in the compensation court’s finding that 

a reasonable controversy existed.

3. Vocational Rehabilitation

Finally, Melton faults the court for not awarding vocational 

rehabilitation benefits. He emphasizes the importance of his 

prosthesis and of coworkers’ assistance in his ability to return 

to work. Melton argues that the court was “required to enter an 

award of vocational services as [he] has satisfied criteria a, b, 

c and d as set forth in [§] 48-162.01.” 20 Melton misconstrues 

the statute.

Under § 48-162.01(3), an employee who, due to an injury, 

“is unable to perform suitable work for which he or she 

has previous training or experience, . . . is entitled to such 

18 See Gardner v. International Paper Destr. & Recycl., 291 Neb. 415, 865 

N.W.2d 371 (2015).

19 See Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757, 707 N.W.2d 232 

(2005).

20 Brief for appellant at 30.
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vocational rehabilitation services, including job placement and 

training, as may be reasonably necessary to restore him or her 

to suitable employment.” The statute sets forth priorities to “be 

used in developing and evaluating a vocational rehabilitation 

plan.” 21 The priorities are contained in a list from (a) to (e), 

which are listed in order from lower priority to higher priority. 

Section 48-162.01(3) specifies that no higher priority may be 

used unless the lower priorities would be unlikely to result in 

suitable employment for the injured employee.

[9] Whether an injured worker is entitled to vocational 

rehabilitation is ordinarily a question of fact to be determined 

by the compensation court. 22 In declining to award vocational 

rehabilitation, the court relied on Melton’s testimony that he 

had secured, and was capable of performing, substantial gainful employment. Although Melton believed he would need 

vocational rehabilitation if he became unable to continue his 

present employment, the court stated that it could not engage 

in speculation or give advisory opinions.

[10] We find no clear error in the court’s decision to deny 

vocational rehabilitation benefits. The evidence establishes that 

Melton is able to perform suitable work for which he has previous training or experience. He testified that he felt comfortable 

with his ability to continue performing the essential functions 

of his job. Although Melton desired an award of vocational 

rehabilitation in case he needed services in the future, a workers’ compensation award cannot be based on mere possibility 

or speculation. 23

To the extent Melton is arguing he should be entitled to 

vocational rehabilitation based on a future loss of his existing 

employment but without an increase in his disability, this argument invites us to provide an advisory opinion. We decline to 

do so.

21 § 48-162.01(3).

22 Bower v. Eaton Corp., 301 Neb. 311, 918 N.W.2d 249 (2018).

23 See id.
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VI. CONCLUSION

We find no clear error in the court’s determination that 

Melton did not suffer a total loss of his leg, but, rather, suffered 

a 20-percent loss of function to his leg that went beyond what 

would have been otherwise expected following amputation 

of his leg below the knee. We cannot say that the court was 

clearly wrong in finding the existence of a reasonable controversy regarding timing of payments for the loss of Melton’s 

foot. Finally, because Melton was performing suitable work 

for which he had previous training or experience, the court did 

not err in denying vocational rehabilitation benefits. We affirm 

the judgment.

Affirmed.

Stacy, J., not participating.