Harris v. Iowa Tanklines, Inc.
| Decision Date | 05 February 2013 |
| Docket Number | No. A–12–354.,A–12–354. |
| Citation | 825 N.W.2d 457,20 Neb.App. 513 |
| Court | Nebraska Court of Appeals |
| Parties | Willie J. HARRIS, appellee, v. IOWA TANKLINES, INC., and Commerce & Industry, appellants. |
OPINION TEXT STARTS HERE
Syllabus by the Court
[20 Neb.App. 513]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. Workers' Compensation: Appeal and Error. In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the finding of the trial judge who conducted the original hearing; the findings of fact of the trial judge will not be disturbed on appeal unless clearly wrong.
3. Workers' Compensation: Appeal and Error. With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination.
4. Statutes. Statutory interpretation presents a question of law.
5. Appeal and Error. An appellate court resolves questions of law independently of the trial court.
6. Workers' Compensation.Neb.Rev.Stat. § 48–125 (Reissue 2010) is applicable to orders approving lump-sum settlements.
7. Workers' Compensation: Time. When a workers' compensation settlement check is sent to the employer's counsel, but not to the employee or his or her counsel, within 30 days after the entry of the award, it is not sent directly to the employee within the statutorily prescribed time.
8. Workers' Compensation: Time. A workers' compensation payment sent directly to the employee's counsel within 30 days after the entry of the award is in compliance with Neb.Rev.Stat. § 48–125(1) (Reissue 2010).
9. Workers' Compensation: Penalties and Forfeitures: Time.Neb.Rev.Stat. § 48–125(1) (Reissue 2010) does not include any requirement that there be actual prejudice suffered by the employee before waiting-time penalties are appropriate.
10. Workers' Compensation: Penalties and Forfeitures: Time. The plain language of Neb.Rev.Stat. § 48–125(1) (Reissue 2010) provides that a workers' compensation payment shall be sent directly to the person entitled to payment within 30 days after the entry of the award and that a waiting-time penalty shall be added for all delinquent payments.
Harry A. Hoch III and Ronald E. Frank, of Sodoro, Daly & Sodoro, P.C., Omaha, for appellants.
John K. Green, Omaha, of Pickens & Green, L.L.P., for appellee.
This appeal raises one primary issue: whether an employer and its insurer comply with Neb.Rev.Stat. § 48–125(1) (Reissue 2010) when they send payment to the employer's attorney on the 30th day following the entry of a workers' compensation award and that attorney then delivers it to the employee's attorney on the 31st day.
The appellants are the employer, Iowa Tanklines, Inc., and Iowa Tanklines' insurer, Commerce & Industry. They argue that they complied with the 30–day statutory requirement when, on the 30th day following the entry of the award, Commerce & Industry wrote and forwarded the award check to counsel for Iowa Tanklines and Commerce & Industry (Iowa Tanklines' counsel). Iowa Tanklines' counsel received the check the next day, the 31st day following the entry of the award. Iowa Tanklines' counsel gave the check to the employee's counsel later that day.
Contrary to the assertions of Iowa Tanklines and Commerce & Industry, we agree with the decision of the review panel that the payment to the employee was delinquent. In reaching our decision, we are bound by controlling Nebraska law that requires such awards shall be sent directly to the person entitled to compensation or his or her designated representative within 30 days of the award. Here, because Commerce & Industry initially sent the check to Iowa Tanklines' counsel instead of to the employee or his counsel, payment was not sent to the employee until 31 days after the entry of the award.
Because the review panel's decision in this case was correct, we affirm its decision and award of attorney fees.
The facts in this case are not in dispute. On June 5, 2003, Willie J. Harris suffered injuries in an accident arising out of and in the course of his employment with Iowa Tanklines. The parties reached a settlement agreement regarding a workers' compensation claim filed by Harris in regard to the work-related accident. The settlement agreement was subsequently approved by the Nebraska Workers' Compensation Court on May 11, 2010. The amount due Harris under the lump-sum settlement was $315,000, plus payment to a Medicare set-aside trust. The sum of $50,000 was paid to Harris on a timely basis, leaving a balance of $265,000.
On June 10, 2010, Commerce & Industry, Iowa Tanklines' insurance provider, issued a check in the amount of $265,000 payable to Harris and his attorney. On that same day, Commerce & Industry gave a package containing the check to United Parcel Service (UPS) for the purpose of effectuating delivery. The package was addressed to Iowa Tanklines' counsel in Omaha, Nebraska, for next-day delivery. UPS delivered the package with the check to Iowa Tanklines' counsel's office on June 11. Upon receipt of the check, a representative from Iowa Tanklines' counsel called Harris' counsel to arrange delivery of the check. The representative told Harris' counsel that the check would be hand-delivered to his office or, if preferred, that he could come pick it up. Harris' counsel chose to pick up the check, and it was, in fact, picked up on June 11, the same day it arrived at the office of Iowa Tanklines' counsel. The check was subsequently deposited into Harris' counsel's account.
On June 6, 2011, nearly 1 year after cashing the check, Harris filed a motion for penalties and attorney fees, which was captioned “Complaint,” alleging that he did not receive the lump-sum settlement within 30 days of the court's order and that therefore, he was entitled to waiting-time penalties and attorney fees pursuant to § 48–125(1).
Following a hearing, the trial court denied Harris' request for penalties and attorney fees. The court found that the check was issued and sent on June 10, 2010, which was 30 days after the court's approval of the settlement, and was received by Harris' counsel on June 11. The court concluded that the check was timely sent and delivered to Harris' counsel through Iowa Tanklines' counsel. The trial court found that “[t]he fact that the check was not mailed directly to [Harris] or [Harris'] counsel should not subject [Iowa Tanklines] to penalties when sent to [Iowa Tanklines'] counsel and delivered to [Harris] or his counsel on the same day as received by [Iowa Tanklines'] counsel.”
Harris filed an application for review. The review panel found that because the check was sent to Iowa Tanklines' counsel before it was delivered to Harris, payment was not sent “directly to the person entitled to compensation or his or her designated representative” as required by § 48–125(1). Therefore, the review panel concluded that Harris' request for penalties and attorney fees should have been granted, and reversed the trial court's order and remanded the matter for an assessment of penalties due and owing, along with an attorney fee of $2,500 and interest as allowed by law.
Iowa Tanklines and Commerce & Industry assign that the review panel erred in (1) reversing the trial court's finding that the settlement check was timely sent and delivered to Harris' counsel and (2) awarding Harris attorney fees on the ground that he obtained an increase in benefits owed to him.
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. Parks v. Marsden Bldg. Maintenance, 19 Neb.App. 762, 811 N.W.2d 306 (2012). In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the finding of the trial judge who conducted the original hearing; the findings of fact of the trial judge will not be disturbed on appeal unless clearly wrong. Id. With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination. Id.
Statutory interpretation presents a question of law. Downey v. Western Comm. College Area, 282 Neb. 970, 808 N.W.2d 839 (2012). An appellate court resolves questions of law independently of the trial court. Id.
The question we must address in this appeal is whether Iowa Tanklines and Commerce & Industry complied with the terms of § 48–125(1) requiring payments be sent directly to the person entitled to compensation within 30 days of the award, when the settlement check was sent from the insurance company to Iowa Tanklines' counsel within 30 days of the award, but was not sent to Harris or his counsel until 31 days after the award.
Section 48–125(1) provides:
(a) Except as hereinafter provided, all amounts of compensation payable under the Nebraska Workers' Compensation Act shall be payable periodically in accordance with the methods of payment of wages of the employee at the time of the injury or death. Such payments shall be sent directly to the person...
To continue reading
Request your trial
- Armbruster v. Brower (In re Trust Created by Crawford)
-
Estate of Elox v. Paul Johnson & Sons Cattle Co.
...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 with......