Estate of Elox v. Paul Johnson & Sons Cattle Co.
| Decision Date | 10 June 2014 |
| Docket Number | No. A-13-962,A-13-962 |
| Court | Nebraska Court of Appeals |
| Parties | ESTATE OF RUFINO CORTES ELOX, DECEASED, BY ALETA S. ALLEN, PERSONAL REPRESENTATIVE, APPELLANT, v. PAUL JOHNSON & SONS CATTLE CO., A NEBRASKA CORPORATION, APPELLEE. |
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the Workers' Compensation Court: J. MICHAEL FITZGERALD, Judge. Affirmed.
Larry R. Demerath, of Demerath Law Office, for appellant.
Daniel M. Placzek and Timothy G. Hruza, of Leininger, Smith, Johnson, Baack, Placzek & Allen, for appellee.
The estate of Rufino Cortes Elox appeals the decision of the Nebraska Workers' Compensation Court which denied its motion for the assessment of waiting-time penalties against Paul Johnson & Sons Cattle Co. (Paul Johnson & Sons) pursuant to Neb. Rev. Stat. § 48-125 (Cum. Supp. 2012) and which denied its request that Paul Johnson & Sons be required to provide "reasonable security" to ensure future payment of benefits. Upon our review, we affirm the decision of the workers' compensation court in its entirety.
The parties do not dispute the material facts in the case. On May 19, 2007, Elox died in an accident arising out of and in the course of his employment with Paul Johnson & Sons. On May 18, 2009, the personal representative of Elox's estate, Aleta S. Allen, filed a petition in theWorkers' Compensation Court to recover death benefits for Elox's mother, who is a citizen of Mexico. On April 18, 2013, the trial court entered an award which required Paul Johnson & Sons to pay Elox's mother "$60.44 per week beginning May 20, 2007, through the date of trial and for so long in the future as [his mother] shall live." Paul Johnson & Sons did not appeal the award.
On May 10, 2013, Paul Johnson & Sons issued a check in the amount of $18,917.72 payable to Allen, as personal representative of the estate, and the estate's two Nebraska attorneys. Three days later, on May 13, counsel for Paul Johnson & Sons authored a letter addressed to the estate's local attorneys, enclosed the May 10 check with the letter, and apparently mailed both documents to one of the attorneys. The letter explained that the check was "issued in payment of benefits at the rate of $60.44 per week beginning May 20, 2007 through May 18, 2013." The estate's attorney received the letter and the check on May 16, 2013.
On September 23, 2013, the estate filed an amended motion to specifically direct weekly benefit payments. As a part of this motion, the estate alleged that because the May 13, 2013, check was made payable to the personal representative and the estate's two local attorneys, actual delivery of the funds to Elox's mother in Mexico was delayed "well beyond the 30 day limit" established by § 48-125. As a result of this delay, the estate requested that it be awarded waiting-time penalties and attorney fees.
The amended motion also alleged that Paul Johnson & Sons "recently experienced a severe financial reversal of fortunes" as a result of a federal court judgment entered against them. The estate requested that Paul Johnson & Sons "be require[d] to provide reasonable security" in order to ensure future weekly payments to Elox's mother.
Following a hearing, the trial court denied the estate's request for penalties and attorney fees and its request for reasonable security to ensure future payments. The court found that the May 10, 2013, check issued by Paul Johnson & Sons was received by one of the estate's attorneys within 30 days of the April 18 award and that, as such, no penalties or attorney fees were due to the estate. The court also found, "There is no authority in the statute[s] which allows a judge of the Nebraska Workers' Compensation Court to require an employer to post a bond for payment of future benefits due under the award."
The estate appeals from the trial court's decision here.
The estate assigns and argues that the trial court erred in (1) finding that Paul Johnson & Sons complied with the requirements of § 48-125 and did not owe a waiting-time penalty and (2) failing to require Paul Johnson & Sons to post a reasonable security to ensure future payments.
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.Rader v. Speer Auto, 287 Neb. 116, 841 N.W.2d 383 (2013). In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court, an appellate court reviews the trial judge's findings of fact, which will not be disturbed unless clearly wrong. Id. Statutory interpretation presents a question of law. Brown v. Harbor Fin. Mortgage Corp., 267 Neb. 218, 673 N.W.2d 35 (2004). Regarding questions of law, an appellate court in workers' compensation cases is obligated to make its own decisions. Rader v. Speer Auto, supra.
Brief for appellant at 6. The estate also argues that because Paul Johnson & Sons violated the requirements of § 48-125 that it is entitled to waiting-time penalties. The estate's arguments are without merit.
Section 48-125 provides:
In this case, the award ordering Paul Johnson & Sons to pay Elox's mother $60.44 per week beginning May 20, 2007, and for the rest of his mother's life, was entered on April 18, 2013. Twenty-two days after the entry of the award, on May 10, Paul Johnson & Sons issued a check for its first payment of benefits under the award. This check was made payable to Allen, as personal representative of the estate, and to the estate's two local attorneys. Twenty-five days after the entry of the award, on May 13, counsel for Paul Johnson & Sons mailed the check to one of the estate's local attorneys. And, 28 days after the entry of the award, on May 16, counsel for the estate received the check.
Based on these facts, there can be no dispute that Paul Johnson & Sons sent the check for the initial benefits payment within 30 days of the entry of the award pursuant to § 48-125(1)(b). In fact, there is no dispute that counsel for the estate actually received the check within the 30-day time period. We note that, contrary to the estate's argument, there is no statutoryrequirement that the beneficiary of the payments actually receives the funds within the 30-day time period. See Brown v. Harbor Fin. Mortgage Corp., 267 Neb. 218, 673 N.W.2d 35 (2004). The statute merely requires that the funds be sent to the beneficiary or his designated representative within the time period. Id.
Because Paul Johnson & Sons sent the check within 30 days, the only question concerning its compliance with the requirements of § 48-125 is whether the check was sent directly to the person entitled to compensation or his or her designated representative pursuant to § 48-125(1)(a).
The Nebraska Supreme Court has previously indicated that an injured employee's attorney is a designated representative for the person entitled to compensation pursuant to the language of § 48-125(1). See Brown v. Harbor Fin. Mortgage Corp., supra. In that case, the Supreme Court held that a benefits payment was not delinquent where the payment was sent to the employee's attorney within 30 days of the entry of the award. In contrast, this court recently held that an employer's attorney is not an appropriate designated representative for the person entitled to compensation pursuant to the language of § 48-125(1). See Harris v. Iowa Tanklines, 20 Neb. App. 513, 825 N.W.2d 457 (2013). There, we found that a benefits payment was delinquent where the payment was sent to the employer's attorney within 30 days of the entry of the award, but was not forwarded to the employee's attorney until the 31st day after the award. Id.
The facts of this case are somewhat different than those in both Brown v. Harbor Fin. Mortgage Corp., supra, and Harris v. Iowa...
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