Risor v. Nebraska Boiler

Decision Date25 January 2008
Docket NumberNo. S-07-269.,S-07-269.
Citation274 Neb. 906,744 N.W.2d 693
PartiesJames E. EISOR, appellee, v. NEBRASKA BOILER, appellee, and Twin City Fire Insurance Co., appellant.
CourtNebraska Supreme Court



Twin City Fire Insurance Co. (Twin City) appeals from the denial of its motion to intervene in a workers' compensation action while the appeal to the review panel, of the underlying award is pending. Although the review panel recognized that, through error, Twin City had only recently been notified of the action, it concluded that it lacked authority to grant the motion to intervene.


James E. Risor filed his petition in the Nebraska Workers' Compensation Court on January 20, 2004. Risor alleged bilateral hearing loss from exposure to a loud work environment at his employer, Nebraska Boiler. The accident date for the hearing loss was alleged to be on or about June 25, 2002. The petition also claimed various other injuries from work-related accidents in 2002 and 2003.

In the proceedings before the single judge of the compensation court, Fireman's Fund Insurance Company (Fireman's Fund) entered an appearance for Nebraska Boiler for the coverage period of September 1, 1992, through June 1, 2002. Another insurance company represented Nebraska Boiler for the period after June 2002. The evidence presented before the single judge demonstrated that Risor began experiencing hearing loss as early as 1988. Until his retirement, however, the only time that Risor missed any work due to the bilateral hearing loss was when he went to a doctor's appointment on October 19, 1993.

In its award entered on April 26, 2006, the single judge concluded that Risor was permanently and totally disabled as a result of the hearing loss arising out of and in the course of his employment with Nebraska Boiler. The accident date for the hearing loss was determined to be October 19, 1993. The single judge found that compensation for the other alleged injuries had already been paid. Payment for the total permanent disability was ordered to begin as of the date of Risor's retirement, February 12, 2004.

An adjuster for Fireman's Fund was sent notice of the award. This same adjuster had originally informed Fireman's Fund's attorney, who was hired to represent Nebraska Boiler, that Fireman's Fund provided workers' compensation coverage for Nebraska Boiler from September 1, 1992, through June 1, 2002. But when the adjuster was notified of the award setting the date of the hearing loss injury at October 19, 1993, she decided to investigate further into the dates of coverage.

Fireman's Fund provided coverage for Nebraska Boiler under a corporate account with the company Aqua Chem, in which any subsidiary companies acquired by Aqua Chem automatically became "additional named insureds." Nebraska Boiler was owned by Aqua Chem at the time Risor's claim was filed. The adjuster had apparently assumed that Nebraska Boiler was owned by Aqua Chem during the entire period of Aqua Chem's contract with Fireman's Fund. After the award, the adjuster discovered that, in fact, Aqua Chem did not acquire Nebraska Boiler until June 23, 1998. Accordingly, contrary to its representations to the single judge, Fireman's Fund was not Nebraska Boiler's workers' compensation insurer on the date of Risor's hearing loss injury.

The award had already been entered when Nebraska Boiler learned that Fireman's Fund was not its insurer on the date of Risor's injury. Nevertheless, Nebraska Boiler, "as its interests appear through June 1, 2002," filed a motion with the single judge seeking a continuation of the proceedings and allowing that "additional parties who may have an exposure to liability once a final determination has been made" be served and given an opportunity to present additional evidence to the court. Risor appealed the award to the review panel on May 9, 2006, on the ground that the single judge had failed to order compensation from the date of his injury, as opposed to the date of his retirement. On May 10, the single judge overruled Nebraska Boiler's motion, and Nebraska Boiler cross-appealed the underlying award to the review panel. Nebraska Boiler's cross-appeal asserted various errors with the award, including the absence of participation by the insurer for the time period of the accident. Risor's appeal and Nebraska Boiler's cross-appeal of the award are still pending before the review panel and are not at issue in this appeal.

It was eventually discovered that Nebraska Boiler's insurer for the period of August 1, 1991, to August 1, 1998, was Twin City. Twin City insured Nebraska Boiler through a contract with its previous parent company, National Dynamics Corporation. Twin City was informed of Risor's claim on August 1, 2006. On October 25, 2006, Twin City filed with the review panel a motion for leave to intervene in Risor's pending review proceeding, which is the subject of the present appeal. The motion stated in part:

4. If allowed to intervene, [Twin City] will seek a reversal of the Award of April 26, 2006, and a remand for a new trial. If [Twin City] is not given an opportunity to intervene, fundamental principles of law will be violated, in that it will face significant exposure under the Nebraska Workers' Compensation Act, without having had the opportunity to even be heard on the issues herein.

5. [Twin City] respectfully notes that its insured has at all times been the only named Defendant herein, and that perhaps [Twin City] could simply have its counsel enter an appearance herein. However, as [Twin City] has not participated in this action to date in any way, this Motion is being filed to seek to have [Twin City's] right to participate in any further proceedings recognized.

The review panel denied Twin City's motion to intervene, noting that there was no statutory authority for such action and that the compensation court lacked equitable powers. Twin City appeals.


Twin City asserts that the review panel erred as a matter of law in refusing to grant Twin City's request for leave to intervene.


Whether a party has the right to intervene in a proceeding is a question of law.1 The determination of whether the procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law.2 An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law.3


The only issue in this case is whether Twin City had a right to intervene in the appeal of the award to the review panel when Twin City had no notice of Risor's action prior to that time. For reasons that will be explained further below, we conclude that Twin City did not have a right to postaward intervention in Risor's workers' compensation action brought solely against his employer, Nebraska Boiler.

We have said that the employer's workers' compensation insurer is a proper party defendant in a workers' compensation action, but that it is not a necessary party to the action.4 Both the Nebraska Workers' Compensation Act (the Act)5 and the rules of the compensation court are silent on the issue of intervention. And, as Risor points out, the compensation court is a tribunal of limited and special jurisdiction and has only such authority, as has been conferred on it by statute.6

Twin City, however, argues that the power to allow its intervention should be inferred from § 48-168(1) and the beneficent purposes of the Act.7 Most often, § 48-168(1) is cited for the proposition that within the confines of the Due Process Clause, the compensation court has flexibility in the admission and consideration of evidence relating to the employee claim.8 This is clearly the focus of § 48-168(1), which states in full:

The Nebraska Workers' Compensation Court shall not be bound by the usual common-law or statutory rules of evidence or by any technical or formal rules of procedure, other than as herein provided, but may make the investigation in such manner as in its judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of the Nebraska Workers' Compensation Act.

Nevertheless, Twin City points out that the Act is generally to be given a liberal construction in order to carry out justly its beneficent purposes.9 And thus, Twin City argues that § 48-168(1) should be construed to allow postaward intervention by an insurer despite the fact that no other provision specifically grants this power.

We are unconvinced that either § 48-168(1) or the Act's beneficent purposes, either alone or in conjunction with one another, authorize a postaward intervention of the insurer in this case. It is a general principle that intervention is not authorized after trial.10 When posttrial intervention has been authorized in the district courts of Nebraska, it is in the exercise of the court's equity jurisdiction.11 But no Nebraska statute grants equity jurisdiction to the compensation court.12

The beneficent purposes of the Act do not concern themselves with an insurer's interests in intervention. In fact, there is no provision in the Act that even requires notification of the workers' compensation insurer that an action against its insured is pending. The principal purpose of the Act is to provide an injured worker with prompt relief from the adverse economic effects caused by a work-related injury or occupational disease.13 That purpose is not implicated by an insurer's intervention in a review proceeding.


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12 cases
  • Risor v. Nebraska Boiler
    • United States
    • Nebraska Supreme Court
    • May 1, 2009
    ...denied intervention. But it stayed adjudication of the parties' appeals while Twin City appealed its denial of intervention. In Risor v. Nebraska Boiler (Risor I),2 we 3. REVIEW PANEL REVERSES STARTING DATE FOR COMPENSATION In May 2008, after this court issued its mandate, the review panel ......
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