State Codes and Statutes

State Codes and Statutes

Statutes > Nebraska > Chapter48 > 48-179

48-179. Review procedure; where held; joint stipulation of dismissal.Either party at interest who refuses to accept the final findings, order, award, or judgment of the Nebraska Workers' Compensation Court on the original hearing may, within fourteen days after the date thereof, file with the compensation court an application for review before the compensation court, plainly stating the errors on which such party relies for reversal or modification and a brief statement of the relief sought. Such application must be specific as to each finding of fact and conclusion of law urged as error and the reason therefor. General allegations shall not be accepted. The filing of an application for review shall vest in an appellee the right to cross appeal against any other party to the appeal. If appellee files a brief pursuant to rules of practice prescribed by the compensation court, the cross appeal need only be asserted in the appellee's brief. The party or parties appealing for review or cross appealing shall be bound by the allegations of error contained in the application or brief and will be deemed to have waived all others. The compensation court may, at its option, notice a plain error not assigned in an application for review or brief. No party may file a motion for new trial, a motion for reconsideration, or a petition for rehearing before the judge at the original hearing. A party filing an application for review shall at the same time file with the compensation court copies of such application for the other party or parties at interest. The compensation court shall then immediately serve upon such other party or parties by mail or otherwise, as elsewhere herein provided, a copy of such application for review, and shall proceed to hear the cause on the record of the original hearing. The review by the compensation court shall be held in Lancaster County, Nebraska, or in any other county in the state at the discretion of the compensation court. Within fourteen days after such review the compensation court shall make its findings, order, award, or judgment, determining the issues in such cause. Upon the joint stipulation of the parties to dismiss, the compensation court may dismiss such an application without a review. No new evidence may be introduced at such review hearing. The review panel may write an opinion, but need not do so, and may make its decision by a brief summary order. The compensation court may reverse or modify the findings, order, award, or judgment of the original hearing only on the grounds that the judge was clearly wrong on the evidence or the decision was contrary to law. On review, the compensation court may affirm, modify, reverse, or remand the judgment on the original hearing. SourceLaws 1935, c. 57, § 13, p. 193; C.S.Supp.,1941, § 48-174; R.S.1943, § 48-179; Laws 1949, c. 161, § 6, p. 413; Laws 1971, LB 251, § 1; Laws 1972, LB 1491, § 1; Laws 1983, LB 18, § 7; Laws 1986, LB 811, § 112; Laws 1992, LB 360, § 21; Laws 2000, LB 1221, § 14; Laws 2005, LB 236, § 1.Annotations1. Application for rehearing2. Manner of consideration3. Miscellaneous1. Application for rehearingPlaintiff failed to file application for rehearing within 14 days of single judge's order; therefore, three-judge panel was without jurisdiction to hear case. Schmidt v. Shoftstall Alfalfa, 239 Neb. 248, 475 N.W.2d 523 (1991).The language of this section specifying the time within which the Workers' Compensation Court shall hear and determine the issues presented by an application for rehearing is directory only and not mandatory; therefore, the compensation court's failure to perform its functions within the times specified by this section does not defeat the rights of an appellant who has seasonably filed an application for rehearing by that court. Tatara v. Northern States Beef Co., 230 Neb. 230, 430 N.W.2d 547 (1988).Waiver of rehearing and appeal direct to district court may be prevented by timely filing of application for rehearing. Light v. Nebraska Workmen's Compensation Court, 166 Neb. 540, 89 N.W.2d 833 (1958).Application for a rehearing filed on the fifteenth day is ineffectual. Dolner v. Peter Kiewit & Sons Co., 143 Neb. 384, 9 N.W.2d 483 (1943).A party may within fourteen days of the award, file application for and obtain a rehearing before the compensation court although the other party has previously filed a waiver of rehearing. Mook v. City of Lincoln, 143 Neb. 254, 9 N.W.2d 184 (1943).Right of either party to a compensation proceeding to refuse to accept the award of a judge of the compensation court and secure a rehearing before the full court is paramount to, and exclusive of, appeal to the district court from such original decision. City of Lincoln v. Nebraska Workmen's Compensation Court, 133 Neb. 225, 274 N.W. 576 (1937).2. Manner of considerationOn rehearing, the Workmen's Compensation Court hears a cause de novo. Pollard v. Wright's Tree Service, Inc., 212 Neb. 187, 322 N.W.2d 397 (1982).In a rehearing in the compensation court, a de novo consideration is required. Hula v. Soennichsen, 178 Neb. 484, 134 N.W.2d 47 (1965).On rehearing in compensation court, a de novo consideration is required. Spangler v. Terry Carpenter, Inc., 177 Neb. 740, 131 N.W.2d 159 (1964).Because this section provides that a party waives all errors of the workers' compensation trial judge not specifically assigned to the review panel in an application for review, an appellate court cannot consider errors of the trial judge which were not assigned to the review panel. State v. Soto, 11 Neb. App. 667, 659 N.W.2d 1 (2003).When acting as the first level of appellate review, a Workers' Compensation Court review panel is precluded from substituting its view of the facts for that of the trial judge if the record contains evidence, viewed in a light most favorable to the successful party and giving that party the benefit of every inference reasonably deducible from the evidence, to support the factual findings of the trial judge. Mendoza v. Pepsi Cola Bottling Co., 8 Neb. App. 778, 603 N.W.2d 156 (1999).Remand for clarification of internal consistency in a workers' compensation court order is appropriate where there is evidence in the record supporting factual conclusions of the trial court; it would be error for the review panel to make a factual finding as to the extent and nature of the impairment. Underwood v. Eilers Machine & Welding, Inc., 6 Neb. App. 631, 575 N.W.2d 878 (1998).The findings of fact made by a Workers' Compensation Court trial judge are not to be disturbed upon appeal to a Workers' Compensation Court review panel unless they are clearly wrong, and if the record contains evidence to substantiate the factual conclusions reached by the trial judge, the review panel shall not substitute its view of the facts for that of the trial judge. If a Workers' Compensation Court review panel makes different findings of fact from those of the trial judge when there is evidence in the record before the trial judge to support the judge's findings, then the review panel has acted in excess of its powers. Pearson v. Lincoln Telephone Co., 2 Neb. App. 703, 513 N.W.2d 361 (1994).3. MiscellaneousA trial court's order reserving ruling on issues of permanent impairment, if any, and entitlement to vocational rehabilitation benefits is not a final order. Merrill v. Griswold's, Inc., 270 Neb. 458, 703 N.W.2d 893 (2005).An appeal to a review panel of the Workers' Compensation Court must be taken from a final order. Merrill v. Griswold's, Inc., 270 Neb. 458, 703 N.W.2d 893 (2005).Generally, when multiple issues are presented to a trial court for simultaneous disposition in the same proceeding and the court decides some of the issues, while reserving some issue or issues for later determination, the court's determination of less than all the issues is an interlocutory order and is not a final order for the purpose of an appeal. Merrill v. Griswold's, Inc., 270 Neb. 458, 703 N.W.2d 893 (2005).The issue of whether an appellant was entitled to interest on his entire award should have been raised on appeal or cross-appeal from the original award, and the appellant's failure to do so precludes him from raising the issue for the first time on appeal after the original cause had been remanded on a separate issue. Dietz v. Yellow Freight Sys., 269 Neb. 990, 697 N.W.2d 693 (2005).Under this section, the appeal from the single judge to the review panel must be taken from a final order. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003).While a Workers' Compensation Court review panel has the statutory authority to remand a case, it exceeds that authority when it remands a case with directions to reconsider a decision without first concluding that the single judge made an error of fact or law. An order of a single judge of the Workers' Compensation Court may be "contrary to law" within the meaning of this section if the order fails to satisfy the requirements of Workers' Comp. Ct. R. of Proc. 11. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003).Appeals from a workers' compensation trial court to a review panel are controlled by the statutory provisions found in the Nebraska Workers' Compensation Act, and specifically, this section and section 48-182, which provide for the review procedure for appeals brought from the trial court to the review panel. This section and section 48-182 pertain to the same subject matter and must be construed, if at all possible, as consistent with one another and in a sensible manner. Notwithstanding the individuation of examples of rulings listed in this section, section 48-182 makes clear that when reading the two provisions together, an order appealed from a workers' compensation trial court to a review panel must be a "final order" of the workers' compensation trial court. Neither this section nor section 48-182 defines a "final order" for purposes of a workers' compensation appeal from a trial court to a review panel, and accordingly, one must look to section 25-1902, which defines three types of final orders which may be reviewed on appeal, and the case law under it to define "final order" for purposes of an appeal from the trial court to the review panel. Thompson v. Kiewit Constr. Co., 258 Neb. 323, 603 N.W.2d 368 (1999).Absent statutory disqualification, bias, or other cause shown, it is not prejudicial for the one judge of the Workmen's Compensation Court to serve as one of the judges of that court on rehearing. Schademann v. Casey, 194 Neb. 149, 231 N.W.2d 116 (1975).Requirement of trial within thirty days does not apply to hearing in district court. McCoy v. Gooch Milling & Elevator Co., 156 Neb. 95, 54 N.W.2d 373 (1952).The filing of a statement of errors in an appeal from an award of a single judge of the compensation court is not a jurisdictional requirement. Peek v. Ayres Auto Supply, 153 Neb. 239, 44 N.W.2d 321 (1950).An appellate court does not have jurisdiction over an appeal from a decision by the Nebraska Workers' Compensation Court, unless such decision has been reviewed by a three-judge panel of the Workers' Compensation Court as provided in the Nebraska Workers' Compensation Act. Lyle v. Drivers Mgmt., Inc., 12 Neb. App. 350, 673 N.W.2d 237 (2004).An award wherein the court ordered a further hearing on medical expenses and mileage is not a final order. Hamm v. Champion Manuf. Homes, 11 Neb. App. 183, 645 N.W.2d 571 (2002).Under this section, an appellate court cannot consider errors of the trial judge which were not assigned to the Workers' Compensation Court review panel. Cochran v. Bill's Trucking, 10 Neb. App. 48, 624 N.W.2d 338 (2001).Pursuant to the amendments of the Workers' Compensation Act, a full panel of the compensation court now sits as an appellate court. Fordham v. West Lumber Co., 2 Neb. App. 716, 513 N.W.2d 52 (1994).