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GIMPLE v. STUDENT TRANSP. OF AMERICA

Cite as 300 Neb. 708

Shelley R. Gimple, appellee and cross-appell

v. Student Transportation of 

and National Interstate Ins.

appellants and cross-appelle

___ N.W.2d ___

Filed August 3, 2018. No. S-17-985.

1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. 

Stat. § 48-185 (Cum. Supp. 2016), an appellate court may modify, 

reverse, or set aside a Workers’ Compensation Court decision only when 

(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. ____: ____. 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. Workers’ Compensation: Subrogation. Neb. Rev. Stat. § 48-118 

(Reissue 2010) grants an employer who has paid workers’ compensation 

benefits to an employee injured as a result of the actions of a third party 

a subrogation interest against payments made by the third party.

4. Workers’ Compensation: Statutes: Appeal and Error. In workers’ 

compensation cases, appellate courts give statutory language its plain 

and ordinary meaning.

5. Words and Phrases. The plain and ordinary meaning of “any” is “all” 

or “every.”

6. Workers’ Compensation: Appeal and Error. Findings of fact made by 

the Workers’ Compensation Court have the same force and effect as a 

jury verdict and will not be set aside unless clearly erroneous.

7. Workers’ Compensation: Evidence: Appeal and Error. When testing 

the sufficiency of the evidence to support findings of fact made by the 

Nebraska Supreme Court Online Library

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

09/28/2018 08:14 AM CDT
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Workers’ Compensation Court trial judge, the evidence must be considered in the light most favorable to the successful party and the successful party will have the benefit of every inference reasonably deducible 

from the evidence.

Appeal from the Workers’ Compensation Court: Daniel 

Fridrich, Judge. Affirmed in part, and in part reversed an

remanded with directions.

Abigail A. Wenninghoff and Jocelyn J. Brasher, of Larson, 

Kuper & Wenninghoff, P.C., L.L.O., for appellants.

Caroline M. Westerhold and Zachary W. Anderson, of 

Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.

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

Papik, JJ., and Vaughan, District Ju

Papik, J

A vehicle driven by a drunk driver struck the school bus 

Shelly R. Gimple was driving and injured her. For a time, 

Gimple’s employer, Student Transportation of America (Student 

Transportation), paid workers’ compensation benefits to 

Gimple. When Gimple later asserted that she was permanently 

disabled as a result of her injuries and Student Transportation 

refused to pay benefits to which Gimple claimed she was 

entitled, Gimple brought suit in the Workers’ Compensation 

Court. The compensation court found that Gimple was entitled 

to additional benefits and that it did not have jurisdiction 

to grant relief requested by Student Transportation concerning a settlement Gimple entered into with the driver who 

caused her injuries. The compensation court denied Gimple’s 

request that she be awarded penalties, attorney fees, and interest because of Student Transportation’s failure to pay the benefits she requested.

The parties have now appealed and cross-appealed. We 

affirm the compensation court’s findings that Gimple was entitled to benefits and that it did not have jurisdiction to resolve 
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issues regarding the third-party settlement, but we reverse its 

determination that Gimple was not entitled to penalties, attorney fees, and interest.

BACKGROUND

Gimple’s Claim for Benefits.

On April 22, 2014, a vehicle driven by a drunk driver struck 

the school bus Gimple was driving for Student Transportation. 

After being taken by ambulance to a hospital, doctors diagnosed her with a left distal radius intra-articular fracture dislocation. Gimple underwent multiple surgeries and treatments 

over the next few years as a result of her injury.

While Student Transportation initially paid some workers’ compensation benefits to Gimple as she incurred medical costs, a dispute eventually arose between the parties as to 

whether Gimple was entitled to additional benefits. Gimple 

claimed that she was permanently disabled as a result of her 

injuries and was entitled to permanent partial disability benefits (PPD benefits). After Student Transportation refused to 

pay such benefits, Gimple filed an action in the compensation 

court against Student Transportation and its workers’ compensation insurer.

Student Transportation admitted that Gimple suffered an 

injury arising out of and in the scope of her employment, but 

denied the remainder of the allegations. Student Transportation 

also alleged that Gimple had failed to comply with the 

Nebraska Workers’ Compensation Act by settling a claim 

against the third party who injured her for $25,000 without 

providing notice or reimbursement to Student Transportation. 

Student Transportation requested that the compensation court 

declare either that the settlement was void or that Student 

Transportation was entitled to a credit against past and future 

workers’ compensation benefits because of Gimple’s receipt of 

the settlement funds.

The compensation court conducted a trial. Importantly for 

purposes of this appeal, the parties stipulated that Gimple 
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suffered an injury arising out of and in the course and scope 

of her employment, that the past medical treatment Gimple 

received was reasonable and necessary, and that Gimple suffered a single scheduled member injury to her left upper 

extremity. In addition, both parties presented evidence. Among 

the evidence introduced by Gimple was a letter containing an 

opinion as to Gimple’s permanent impairment from Dr. Ian 

Crabb, an orthopedic doctor who had treated Gimple. In his 

letter, Dr. Crabb opined on the extent of Gimple’s permanent 

impairment as a result of the injury.

Initial Award.

The compensation court issued its initial award on August 

23, 2017. In the initial award, the compensation court determined that Gimple was entitled to some temporary total disability benefits, but was not entitled to PPD benefits. The 

compensation court’s stated reason for not awarding PPD 

benefits was that Gimple failed to offer evidence of permanent 

impairment. Despite the parties’ stipulation that the injury was 

to her left arm, the compensation court found that the injury 

was actually to Gimple’s left wrist and that Gimple failed to 

offer evidence of permanent impairment to her wrist.

The compensation court also found it was without jurisdiction to grant the relief Student Transportation sought with 

respect to the third-party settlement. It relied on Miller v. 

M.F.S. York/Stormor, 257 Neb. 100, 595 N.W.2d 878 (1999), 

in which this court held that the compensation court did not 

have jurisdiction to determine the amount of credit to which 

an employer was entitled on an employee’s workers’ compensation benefits as a result of the previous settlement of a suit 

against a third party.

Modified Award.

Gimple later filed a motion to modify the initial award. She 

asserted that the compensation court erred in rejecting the parties’ stipulation that her injury was to her left arm, because the 
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parties had relied upon that stipulation when presenting evidence and defining the issues for the court to decide. She sought 

modification of the compensation court’s award to accept the 

parties’ stipulation and award PPD benefits in accordance with 

Dr. Crabb’s medical opinion that she suffered a 13-percent 

permanent partial impairment to her left upper extremity. She 

further sought penalties, attorney fees, and interest for Student 

Transportation’s nonpayment of those benefits.

Following a hearing on the motion to modify, the compensation court sustained Gimple’s motion and issued a modified 

award finding that Gimple was entitled to PPD benefits in 

the amount of $12,721.70. It found that it had erred in rejecting the parties’ stipulation that Gimple injured her left arm. It 

noted that both parties tried the case based upon the stipulation that Gimple injured her left arm and that there was no 

good cause to reject that stipulation. In reliance on the report 

of Dr. Crabb, the compensation court found that Gimple’s left 

arm was permanently and partially disabled. Although the last 

sentence of Dr. Crabb’s report assigned the impairment rating 

to Gimple’s right arm, the compensation court found that to 

be a scrivener’s error. Finally, the compensation court denied 

Gimple’s request for penalties, attorney fees, and interest for 

Student Transportation’s nonpayment of PPD benefits. It found 

that there was a reasonable controversy in light of “the ‘hand 

vs. arm’ PPD [benefits] debate” and the scrivener’s error in Dr. 

Crabb’s report.

ASSIGNMENTS OF ERROR

On appeal, Student Transportation assigns that the compensation court erred (1) in finding that it lacked jurisdiction to 

determine the issues regarding the third-party settlement and 

(2) in finding that Gimple was entitled to PPD benefits for an 

impairment to her left upper extremity.

On cross-appeal, Gimple assigns that the compensation court 

erred in failing to award penalties, attorney fees, and interest 

for Student Transportation’s nonpayment of PPD benefits.
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Cite as 300 Neb. 708

STANDARD OF REVIEW

[1,2] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 

2016), an appellate court may modify, reverse, or set aside 

a Workers’ Compensation Court decision only when (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. Greenwood v. J.J. Hooligan’s, 297 Neb. 435, 

899 N.W.2d 905 (2017). 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. Id.

ANALYSIS

Jurisdiction to Resolve Dispute Regarding 

Third-Party Settlement.

We begin with Student Transportation’s contention that the 

compensation court incorrectly concluded it lacked jurisdiction 

to resolve disputes related to Gimple’s settlement with the third 

party who caused her injuries. For reasons we will explain 

below, we conclude that the compensation court did not have 

jurisdiction to decide these issues and that, therefore, neither 

does this court.

Student Transportation argues the compensation court should 

have found that the settlement was void because Gimple did 

not comply with statutory requirements governing third-party 

settlements or, alternatively, that Student Transportation was 

entitled to a credit with respect to its obligations to Gimple. 

Student Transportation contends that the compensation court 

has authority to resolve these issues by virtue of Neb. Rev. Stat. 

§§ 48-152 and 48-161 (Reissue 2010), two general jurisdictional statutes that authorize the Workers’ Compensation Court 

to administer the Nebraska Workers’ Compensation Act and to 

decide issues “ancillary to the resolution of an employee’s right 
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to workers’ compensation benefits.” But a different provision 

of the Nebraska Workers’ Compensation Act speaks directly to 

the issues Student Transportation sought to raise, and so our 

analysis must start there.

[3] Neb. Rev. Stat. § 48-118 (Reissue 2010) grants an 

employer who has paid workers’ compensation benefits to an 

employee injured as a result of the actions of a third party a 

subrogation interest against payments made by the third party. 

Kroemer v. Omaha Track Equip., 296 Neb. 972, 898 N.W.2d 

661 (2017). The next section, Neb. Rev. Stat. § 48-118.01 

(Reissue 2010), discusses claims or suits the injured employee 

or subrogated employer might pursue against third parties. That 

section requires that the employer and employee, before making such a claim or bringing such a suit, provide notice to the 

other of the opportunity to join in such claim or action. Section 

48-118.01 goes on to provide as follows:

Each party shall have an equal voice in the claim and the 

prosecution of such suit, and any dispute arising shall be 

passed upon by the court before which the case is pending and if no action is pending then by the district court 

in which such action could be brought.

(Emphasis supplied.)

We have previously found the above-quoted language controlling when a party sought a credit against benefits it owed 

as a result of the employee’s receiving funds in settlement 

of a claim against a third party. In Miller v. M.F.S. York/

Stormor, 257 Neb. 100, 595 N.W.2d 878 (1999), an employee 

was injured when the safety equipment on machinery he was 

repairing failed. The corporation alleged to have installed 

the safety equipment agreed to settle a personal injury suit 

against it. The federal district court in which the suit was 

brought subsequently allocated the settlement between the 

injured employee and the subrogated employer. The federal 

court did not, however, address the amount of credit to which 

the employer would be entitled for any disability benefits 

accruing thereafter.
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When the employee in Miller later sought additional workers’ compensation benefits, the compensation court found it 

lacked authority to determine the credit to which the employer 

was entitled. On appeal to this court, we agreed. We determined that the language of what is now § 48-118.01 quoted 

above precluded the compensation court from determining the 

amount of any credit, because the compensation court was neither, in the words of § 48-118.01, “the court before which the 

case [against the third party] is pending” nor “the district court 

in which such action could be brought.”

Faced with our holding in Miller that the compensation court 

does not have jurisdiction to determine the amount of credit 

to which an employer is entitled when an employee receives 

settlement funds from a third party, Student Transportation 

attempts, in various ways, to distinguish the relief it is seeking 

from the relief sought in Miller. It contends that Miller held 

only that the compensation court cannot determine the amount

of a credit, but that it asked the compensation court only to 

find an entitlement to a credit. It also contends that it asked the 

compensation court to find the settlement was void and that 

Miller did not determine whether the compensation court could 

reach that question.

[4,5] We find Student Transportation’s attempts to distinguish Miller unpersuasive. The specific issue we decided in 

Miller was whether the compensation court could determine 

the amount of a credit, but, in concluding that it could not, we 

relied upon statutory language that is not limited to disputes 

regarding the amount of a credit. Rather, § 48-118.01 provides 

that “any dispute” between employer and employee concerning a claim or suit against a third party must be brought in the 

district court in which an action against a third party is pending 

or the district court in which such action could be brought. We 

give statutory language its plain and ordinary meaning. See, 

e.g., Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586, 883 

N.W.2d 676 (2016). The plain and ordinary meaning of “any” 

is “all” or “every.” See, e.g., In re Interest of Powers, 242 Neb. 
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19, 493 N.W.2d 166 (1992). Section 48-118.01 thus applies to 

every possible dispute that might arise between a subrogated 

employer and an injured employee regarding a claim against a 

third party, including the issues Student Transportation attempts 

to raise in this case.

Disputes governed by § 48-118.01 must be decided by the 

“court before which the case [against the third party] is pending and if no action is pending then by the district court in 

which such action could be brought.” Because there is no 

action pending against the driver who injured Gimple, Student 

Transportation’s contentions regarding the third-party settlement must be presented to “the district court in which such 

action could be brought.” And since an action against the 

third party who injured Gimple could not have been brought 

in the compensation court, the compensation court correctly 

concluded it did not have authority to grant the relief Student 

Transportation requested regarding the third-party settlement.

PPD Benefits.

We now turn to the parties’ remaining assignments of error, 

which are related and which we will address together. Both parties argue that the compensation court erred in its disposition 

of Gimple’s claim for PPD benefits. Student Transportation 

contends that the compensation court erred by finding that 

Gimple was entitled to such benefits, and Gimple claims that 

the compensation court erred by not finding that she was 

entitled to penalties, attorney fees, and interest for Student 

Transportation’s failure to pay them. We conclude that the 

compensation court correctly found that Gimple was entitled 

to PPD benefits, but erred by denying her penalties, attorney 

fees, and interest.

Student Transportation correctly points out that before PPD 

benefits can be awarded, the workers’ compensation claimant 

must prove not only that he or she suffered an injury arising 

out of and in the scope of his or employment, but also that 

his or her injury caused permanent impairment. See Gardner 
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v. International Paper Destr. & Recycl., 291 Neb. 415, 865 

N.W.2d 371 (2015). Student Transportation does not dispute 

that Gimple was injured: it acknowledges the parties’ stipulation that Gimple suffered an injury to her left upper extremity 

and disavows any argument that the stipulation should not be 

given effect. Rather, Student Transportation argues that Gimple 

introduced no evidence that she was permanently disabled as a 

result of the injury to which the parties stipulated.

Gimple counters that the letter of Dr. Crabb mentioned 

above contains a medical opinion that Gimple was permanently 

impaired. Dr. Crabb’s letter states in relevant part:

[Gimple’s] current diagnosis is status post left distal 

radius fracture with open reduction and internal fixation 

accompanied by carpal instability. This condition is certainly related to her previous work accident dated April 

22, 2014. . . . Gimple has reached Maximum Medical 

Improvement as of November 3, 2015. She has been 

released to full duty and has no permanent restrictions.

. . . Gimple has suffered a permanent partial impairment rating related to her injury. Based off her limitations 

in motion, she receives nine percent (9%) of the upper 

extremity and due to additional unpredicted mechanical 

symptoms she receives an additional four percent (4%) 

of the upper extremity. This results in a total of thirteen 

percent (13%) permanent partial impairment rating of the 

right upper extremity.

(Emphasis supplied.)

Student Transportation cannot and does not dispute that Dr. 

Crabb’s letter expresses an opinion that Gimple suffered permanent impairment. Instead, it claims that Dr. Crabb’s letter 

cannot support an award of PPD benefits, because he refers 

to Gimple’s right arm being impaired despite there being no 

evidence of an injury to her right arm. In other words, Student 

Transportation seems to argue that Gimple was incorrectly 

awarded PPD benefits because of a mismatch between the 

injury and the evidence of impairment—the parties stipulated 
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to a left arm injury, but Gimple presented evidence of right 

arm impairment.

Student Transportation’s argument might present a problem 

for Gimple if we were obligated to look at bits and pieces of 

Dr. Crabb’s letter in isolation. It does, after all, refer to an 

impairment rating to Gimple’s right arm. But, as with any 

medical opinion, we must view that reference in the context 

of the expert’s entire statement. See Renne v. Moser, 241 Neb. 

623, 490 N.W.2d 193 (1992).

Viewed in context, it is obvious to us that it was Dr. 

Crabb’s intention to assign a 13-percent impairment rating of 

the left arm and that his reference to the right arm was a scrivener’s error. Dr. Crabb initially refers to Gimple’s injury as an 

injury to her left arm. When he later discusses his impairment 

rating, he refers to “her injury,” an unmistakable reference to 

the injury to the left side mentioned earlier. Furthermore, all 

of the evidence in the record of Gimple’s injury depicts an 

injury on the left side of her body, and Student Transportation 

stipulated to an injury to the left upper extremity. Given these 

facts, it would seem that everyone involved understood that 

Dr. Crabb had merely made a mistake by referencing the 

right arm. At oral argument, Student Transportation’s counsel 

conceded as much, admitting that she knew at the time that 

Dr. Crabb’s reference to the right arm was nothing more than 

a mistake.

[6,7] Because we find that Dr. Crabb’s letter, when viewed 

in context, expressed an opinion that Gimple’s left arm 

was permanently impaired as a result of her injury, Student 

Transportation’s challenge to the award of PPD benefits must 

fail. Findings of fact made by the Workers’ Compensation 

Court have the same force and effect as a jury verdict and will 

not be set aside unless clearly erroneous. Hintz v. Farmers 

Co-op Assn., 297 Neb. 903, 902 N.W.2d 131 (2017). When 

testing the sufficiency of the evidence to support findings of 

fact made by the Workers’ Compensation Court trial judge, 

the evidence must be considered in the light most favorable 
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to the successful party and the successful party will have the 

benefit of every inference reasonably deducible from the evidence. Id. Given the medical evidence supporting Gimple’s 

permanent impairment, we cannot say that the compensation 

court clearly erred by awarding PPD benefits.

This leaves only the question of whether Gimple should 

have received penalties, attorney fees, and interest as a result 

of Student Transportation’s failure to pay PPD benefits. Under 

Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016), an employee is 

entitled to a 50-percent waiting-time penalty as well as attorney fees and interest if (1) the employer fails to pay compensation within 30 days of the employee’s notice of disability and 

(2) no reasonable controversy existed regarding the employee’s 

claim for benefits. See Armstrong v. State, 290 Neb. 205, 859 

N.W.2d 541 (2015).

Because Student Transportation did not pay Gimple PPD 

benefits within 30 days of Gimple’s providing notice of her 

disability, she is entitled to penalties, attorney fees, and interest 

if there was no reasonable controversy regarding her entitlement to benefits. We have said that a reasonable controversy 

exists if (1) there is a question of law previously unanswered 

by the Nebraska Supreme Court, which question must be 

answered to determine a right or liability for disposition of a 

claim, 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 and those conclusions 

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

whole or in part. See id.

In affirming the compensation court’s award of PPD benefits, we have already determined that there was sufficient 

medical evidence to justify awarding PPD benefits. In order to 

determine whether there was a reasonable controversy, we must 

now revisit that same issue, this time to determine whether the 

evidence was so one-sided that the only reasonable conclusion 

that could be drawn therefrom was that Gimple was entitled to 

such benefits.
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It is here that we diverge from the compensation court for 

the first time. It stated that a reasonable controversy existed 

“in light of the ‘hand vs. arm’ PPD [benefits] debate and by 

virtue of Dr. Crabb’s report in which he ostensibly assigned 

permanent impairment to [Gimple’s] right arm rather than 

her left.” We do not believe either of the issues mentioned by 

the compensation court creates a reasonable controversy as to 

Gimple’s entitlement to PPD benefits.

The compensation court’s reference to the “hand vs. arm” 

debate presumably refers to the compensation court’s having some question as to whether the injury was actually to 

Gimple’s arm and not her wrist. It was this issue that caused 

the compensation court to initially reject the parties’ stipulation and deny Gimple PPD benefits. This court has said, however, that voluntary stipulations are to be enforced “‘unless 

some good cause is shown for declining to do so, especially 

where the stipulations have been acted upon so that the parties 

could not be placed in status quo.’” In re Estate of Mithofer, 

243 Neb. 722, 727, 502 N.W.2d 454, 457-58 (1993), quoting Martin v. Martin, 188 Neb. 393, 197 N.W.2d 388 (1972). 

Student Transportation presents no argument that there was 

good cause for rejecting the parties’ stipulation, and we cannot discern any in the record. Because we do not see a basis 

to reject the stipulation of a left arm injury, we find that the 

issue did not amount to a reasonable controversy as to whether 

Gimple was entitled to PPD benefits.

Neither do we believe that Dr. Crabb’s scrivener’s error created a reasonable controversy. For all the reasons explained 

above, we find that despite the mistaken reference to 

Gimple’s right arm, it was quite clear from the context that 

it was Dr. Crabb’s intention to assign an impairment rating to 

Gimple’s left arm. As evidenced by the concession of Student 

Transportation’s counsel at oral argument, this was not a case 

in which a scrivener’s error led to confusion as to the substance 

of the testimony. Everyone involved knew the reference to 

the right arm was just a mistake. Under those circumstances, 
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we do not believe the scrivener’s error created a reasonable controversy.

Having set to the side the grounds upon which the compensation court found a reasonable controversy existed, we 

are left with a stipulation that Gimple injured her left arm and 

an undisputed medical opinion that she was permanently disabled as a result of that injury. In light of these facts, we do 

not believe there was a reasonable controversy as to whether 

Gimple was entitled to PPD benefits.

We are aware that whether a reasonable controversy exists 

under § 48-125 is a question of fact and that we will reverse 

the factual findings of the Workers’ Compensation Court only 

if we find them to be clearly wrong. See Armstrong v. State, 

290 Neb. 205, 859 N.W.2d 541 (2015). In this case, however, 

we find that the compensation court was clearly wrong. We 

therefore reverse the court’s finding that a reasonable controversy existed and remand this matter with directions to award 

Gimple relief in accordance with § 48-125 and consistent with 

this opinion.

CONCLUSION

For the reasons set forth above, we affirm the judgment of 

the compensation court in part, and in part reverse, and remand 

the matter with directions to award Gimple relief in accordance with § 48-125 and consistent with this opinion.

 Affirmed in part, and in part rev

and remanded with directi