Hagelstein v. Swift-Eckrich

Citation257 Neb. 312,597 N.W.2d 394
Decision Date23 July 1999
Docket NumberNo. S-98-363.,S-98-363.
PartiesDale E. HAGELSTEIN, appellant, v. SWIFT-ECKRICH DIVISION OF CONAGRA, appellee.
CourtSupreme Court of Nebraska

James F. Fenlon, P.C., Omaha, for appellant.

Theodore J. Stouffer, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee.




Dale E. Hagelstein appeals from the Workers' Compensation Court's denial of his petition seeking total disability benefits or, in the alternative, vocational retraining. The initial question presented to this court is whether a review panel of the Workers' Compensation Court is properly constituted when only two judges participate in the decision. Because we conclude that it is not and that as a consequence we lack appellate jurisdiction, we dismiss Hagelstein's appeal and remand the cause for further proceedings.


Hagelstein was injured on January 28, 1991, while in the employ of the appellee, the Swift-Eckrich Division of ConAgra (Swift-Eckrich). The Workers' Compensation Court, on December 26, entered an order granting Hagelstein temporary total disability benefits and ordering Swift-Eckrich to pay Hagelstein's injury-related medical expenses.

On March 6, 1996, Hagelstein filed a petition in the Workers' Compensation Court, alleging that he remained totally disabled but that Swift-Eckrich had only been paying partial disability benefits since 1995. Hagelstein also alleged that Swift-Eckrich had not paid certain medical expenses that he claimed were incurred because of his work-related injury. Hagelstein also sought, in the event that the court rejected his total disability claim, to be awarded vocational rehabilitation benefits.

In a modification of award dated January 27, 1997, a single judge of the Workers' Compensation Court rejected Hagelstein's total disability claim. The single judge found that Hagelstein had reached maximum medical improvement in 1995 and had since suffered a 35-percent loss of earning power and that Hagelstein did not require vocational rehabilitation. The single judge further found that Swift-Eckrich should pay certain medical expenses claimed by Hagelstein.

Hagelstein sought Workers' Compensation Court review of the modification of award. On March 18, 1998, a review panel of the Workers' Compensation Court entered an order affirming the order of the single judge. The order of affirmance, however, was not signed by three judges; only two signatures are shown on the order. No third judge is shown as participating in the decision.

Hagelstein timely appealed the decision of the review panel to the Nebraska Court of Appeals, and we granted his petition to bypass that court and remove the case to our docket.


Hagelstein assigns that the lower court erred in finding that he (1) reached maximum medical improvement on April 24, 1995, (2) suffered a 35-percent permanent loss of earning power after April 24, (3) is not entitled to vocational rehabilitation benefits, and (4) ceased being permanently totally disabled on or about April 24.


A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent from the lower court's decision. Shearer v. Leuenberger, 256 Neb. 566, 591 N.W.2d 762 (1999).

Regarding questions of law, an appellate court in workers' compensation cases is obligated to make its own determinations. Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845 (1999).

Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Pier v. Bolles, 257 Neb. 120, 596 N.W.2d 1 (1999).


In his petition to bypass, Hagelstein stated that his appeal to the review panel was heard on oral argument by a three-judge review panel on June 5, 1997, but that on October 20, one of the three judges died. The remaining two judges, according to Hagelstein, signed their order of affirmance nearly 5 months after the death of the third judge. Hagelstein's original appellate brief assigned error to the Workers' Compensation Court regarding the failure of a third judge to sign the order of affirmance. After Hagelstein filed his petition to bypass, however, he filed a second amended brief that purported to withdraw his arguments regarding the absence of a third judge on his Workers' Compensation Court review panel.

Hagelstein's withdrawal of his argument does not resolve the issue for this court. Parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties. Crabb v. Bishop Clarkson Mem. Hosp., 256 Neb. 636, 591 N.W.2d 756 (1999). See, also, Rice v. Adam, 254 Neb. 219, 575 N.W.2d 399 (1998). The participation of only two judges in the decision of the review panel raises jurisdictional issues, for the review panel and for this court on appeal, which we are dutybound to consider.

Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998). Notwithstanding whether the parties raise the issue of jurisdiction, an appellate court has a duty to raise and determine the issue of jurisdiction sua sponte. Schmidt v. State, 255 Neb. 551, 586 N.W.2d 148 (1998).


The first issue confronting this court in resolving this jurisdictional question is the determination of what facts to consider in our analysis. Hagelstein brought the matter of the death of a judge of his review panel to our attention in his appellate brief and petition to bypass, but there is no evidence in our record on appeal which indicates this fact, other than the presence of only two signatures on the review panel order of affirmance and the absence of a concurrence or dissent from a third judge. When questioned at oral argument, however, both parties conceded the death of a review panel member and the nonparticipation of a third judge. An appellate court may consider agreed circumstances presented to it in brief or argument. Putnam v. Fortenberry, 256 Neb. 266, 589 N.W.2d 838 (1999); Koenig v. Southeast Community College, 231 Neb. 923, 438 N.W.2d 791 (1989).

It is also provided by Neb.Rev. Stat. § 27-201 (Reissue 1995) that a court may take judicial notice of "adjudicative facts," given certain statutory limitations. It is also well established that judicial notice may be taken at any stage of a proceeding, see § 27-201(6), and that this includes judicial action in an appeal, Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990). Judicial notice may be taken whether or not it is requested by a party. See, § 27-201(3); Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997).

"Adjudicative facts" within the meaning of § 27-201 are simply the facts developed in a particular case, as distinguished from "legislative facts," which are established truths, facts, or pronouncements that do not change from case to case but apply universally. See, e.g., U.S. v. Hernandez-Fundora, 58 F.3d 802 (2d Cir.1995), cert. denied 515 U.S. 1127, 115 S.Ct. 2288, 132 L.Ed.2d 290; United States v. Gould, 536 F.2d 216 (8th Cir.1976) (cases applying Fed.R.Evid. 201, upon which § 27-201 is based). See, also, generally, 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 201.03[1] and [2] (1999); Fed.R.Evid. 201 advisory committee's notes. "`Stated in other terms, the adjudicative facts are those to which the law is applied in the process of adjudication....'" United States v. Gould, 536 F.2d at 219. Accord Van Meter v. Hellwege, 356 N.W.2d 541 (Iowa 1984).

In order to address the jurisdictional issue presented in this appeal, a factual basis for our analysis must be established, i.e.: (1) the identities of the three judges assigned to Hagelstein's review panel, (2) that no other judge participated in the decision of that review panel, and (3) that one of the judges died before participating in the decision by that review panel. By the standards set forth above, these would clearly be adjudicative facts, as they relate to the unique circumstances of this particular case, and these are the facts to which we must apply the law defining the review panel's, and our own, jurisdiction.

As the facts necessary to our disposition of this issue are adjudicative facts, they are subject to the requirements of § 27-201. Section 27-201(2) provides that we may take judicial notice of an adjudicative fact that is "not subject to reasonable dispute in that it is ... capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

With reference to the composition of Hagelstein's review panel, we note that the records of the Workers' Compensation Court show that three judges were assigned to the review panel in Hagelstein's case: Judges Laureen Van Norman, Paul LeClair, and Ronald Brown. The records of the compensation court do not indicate the assignment of another judge to consider the review of Hagelstein's case. The signatures of Judges Van Norman and Brown appear on the order of affirmance contained in our appellate record; neither our record nor the records of the compensation court contain any indication of Judge LeClair's participation in the final adjudication of the review panel.

It is well established that as a subject for judicial notice, existence of court records and certain judicial action reflected in a court's record are, in accordance with § 27-201(2)(b), facts which are capable of accurate and ready determination by resort to sources whose...

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