Soto v. State

• Decision Date: 18 February 2005
• Docket Number: No. S-04-569.,S-04-569.
• Parties: ROBERT SOTO, APPELLANT, v. STATE OF NEBRASKA, DEPARTMENT OF ROADS, APPELLEE.
• Court: Nebraska Supreme Court

269 Neb. 337

693 NW 2d 491

ROBERT SOTO, APPELLANT, v. STATE OF NEBRASKA, DEPARTMENT OF ROADS, APPELLEE.

No. S-04-569.

Supreme Court of Nebraska.

Filed February 18, 2005.

James J. Paloucek, of Norman, Paloucek & Herman Law Offices, for appellant.

Jon Bruning, Attorney General, and Tom Stine for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

The issue presented in this appeal is whether the State of Nebraska, as an employer, may be assessed a waiting-time penalty and attorney fees when payment of a portion of a workers' compensation award issued against it is delayed for more than 30 days after becoming final because of the State's compliance with the payment procedure specified in Neb. Rev. Stat. § 48-1,102 (Reissue 2004).

BACKGROUND

On January 28, 2000, Robert Soto filed a petition in the Workers' Compensation Court seeking temporary and permanent total disability benefits due to injuries sustained while working for the State of Nebraska as an employee of the Department of Roads. On January 9, 2001, the Workers' Compensation Court entered an award in favor of Soto. On January 17, an order nunc pro tunc was entered to correct a mathematical error in the award. A review panel of the Workers' Compensation Court affirmed and awarded an attorney fee of $2,500. The Nebraska Court of Appeals affirmed the decision of the review panel in an opinion not designated for permanent publication, awarding an additional attorney fee of $3,000. Soto v. State, No. A-01-834, 2002 WL 976005 (Neb. App. May 14, 2002) (not designated for permanent publication). The decision of the Court of Appeals was not appealed by either party, and the mandate was issued on June 27, 2002. As of the date of the Court of Appeals' award, the State owed Soto $71,666.64 for past benefits and attorney fees and was obligated to pay further benefits of $409 per week. On June 7, before the mandate was issued, the State paid Soto $50,000 of the judgment amount but withheld payment of $21,666.64, asserting that § 48-1,102 prevented it from paying that balance until the Nebraska Legislature reviewed the award and made a specific appropriation. The State made the weekly payment of $409 as ordered beginning June 18, 2002.

On November 15, 2002, Soto filed a second petition seeking immediate payment of the $21,666.64 balance, as well as additional payments and/or fees for waiting time pursuant to Neb. Rev. Stat. § 48-125 (Reissue 2004). The State discontinued making weekly payments after January 27, 2003. As of April 21, 2003, the Legislature had not reviewed or made specific appropriation for the payment of the balance of Soto's award.

Following a hearing on May 15, 2003, the compensation court determined that the balance on the award subject to penalty was $16,166.64, and assessed a waiting-time penalty of $8,083.32 for this unpaid compensation. In addition, the court imposed a penalty of $204.50 per week for all weekly benefits unpaid after January 27, 2003, until weekly benefits were no longer delinquent.

The State appealed, and a review panel of the compensation court reversed the penalty award. The review panel reasoned that in enacting § 48-1,102, the Legislature could not have intended to make the State of Nebraska liable for additional compensation in the form of waiting-time penalties when the legislative review and specific appropriation required by the statute entailed a process which inevitably would delay payment "well in excess of thirty days." Soto perfected a timely appeal from this order, and we granted his petition to bypass.

ASSIGNMENT OF ERROR

Soto assigns, combined and restated, that the review panel erred in reversing the award on the basis of its determination that the State was not liable for a waiting-time penalty under § 48-125.

STANDARD OF REVIEW

[1] 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 did not support the order or award. Neb. Rev. Stat. § 48-185 (Reissue 2004).

[2] 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 findings of the trial judge who conducted the original hearing; the findings of fact of the trial judge will not be disturbed upon appeal unless clearly wrong. See Ludwick v. TriWest Healthcare Alliance, 267 Neb. 887, 678 N.W.2d 517 (2004).

[3] When an appeal calls for statutory interpretation or presents a question of law, an appellate court must reach an independent, correct conclusion irrespective of the determination made by the court below. Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 33 (2004); Campbell v. Omaha Police & Fire Ret. Sys., 268 Neb. 281, 682 N.W.2d 259 (2004).

ANALYSIS

[4-6] The Constitution of the State of Nebraska permits the State to lay its sovereign immunity aside and consent to be sued on such terms and conditions as the Legislature may prescribe. Neb. Const. art. V, § 22; Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994). Statutes authorizing suits against the State are to be strictly construed because such statutes are in derogation of the State's sovereign immunity. Id. A waiver of sovereign immunity is found only where stated by the most express language of a statute or by such overwhelming implication from the text as will allow no other reasonable construction. Butler Cty. Sch. Dist. No. 502 v. Meysenburg, 268 Neb. 347, 683 N.W.2d 367 (2004); Salazar v. Scotts Bluff Cty., 266 Neb. 444, 665 N.W.2d 659 (2003).

With respect to workers' compensation claims, the Legislature has stated that "[t]he Nebraska Workers' Compensation Act shall apply to the State of Nebraska [and] to every governmental agency created by it . . . ." Neb. Rev. Stat. § 48-106(1) (Reissue 2004). In part V of the act, codified at Neb. Rev. Stat. §§ 48-192 through 48-1,109 (Reissue 2004), the Legislature set forth "uniform procedures for the bringing of workers' compensation claims against the state" which "shall be used to the exclusion of all others." § 48-192. Two statutes within part V of the act are pertinent to our analysis of this case. Section 48-199 provides:

In all suits brought under sections 48-192 to 48-1,109, the state shall be liable in the same manner and to the same extent as a private individual under like circumstances, except that no writ of execution shall issue against the state or any state agency, and disposition of or offer to settle any claim made under sections 48-192 to 48-1,109 shall not be competent evidence of liability of the state or any employee or amount of damages.

(Emphasis supplied.) Section 48-1,102 provides:

Any award to a claimant and any judgment in favor of a claimant under sections 48-192 to 48-1,109 shall be certified by the Attorney General to the Director of Administrative Services, who shall promptly issue his or her warrant for payment of such award or judgment out of the Workers' Compensation Claims Revolving Fund, if sufficient money is available in such fund, except that no portion in excess of fifty thousand dollars of any award or judgment shall be paid until such award or judgment has been reviewed by the Legislature and specific appropriation made therefor. Delivery of any warrant in satisfaction of an award or judgment shall be made only upon receipt of a written receipt by the claimant in a form provided by the Attorney General.

(Emphasis supplied.)

[7-8] The dispute in this case involves the relationship of these two statutes with § 48-125, which provides in pertinent part that

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, except that fifty percent shall be added for waiting time for all delinquent payments after thirty days' notice has been given of disability or after thirty days from the entry of a final order, award, or judgment of the compensation court.

As construed by this court, this section authorizes a 50-percent penalty payment for waiting time involving delinquent payment of compensation and an attorney fee, where there is no reasonable controversy regarding an employee's claim for workers' compensation benefits. Hobza v. Seedorff Masonry, Inc., 259 Neb. 671, 611 N.W.2d 828 (2000); McBee v. Goodyear Tire & Rubber Co., 255 Neb. 903, 587 N.W.2d 687 (1999). Waiting-time penalties, as provided in § 48-125, apply to final adjudicated awards. Roth v. Sarpy Cty. Highway Dept., 253 Neb. 703, 572 N.W.2d 786 (1998).

[9] Soto argues that because § 48-199 makes the State "liable in the same manner and to the same extent as a private individual under like circumstances," with no stated exception for waiting-time penalties, a penalty should be assessed with respect to that portion of the award which was not paid within 30 days after it became final. The State does not argue that the statutes present any tension with regard to timely payment of ordered weekly benefits. The State does argue, however, that it is not liable for waiting-time penalties for amounts over $50,000 because § 48-1,102 requires it to submit the portion of the award exceeding $50,000 to the Legislature for review and specific appropriation prior to payment, a process which ordinarily requires more than 30 days because the Legislature does not sit in continuous session. The trial judge generally agreed with Soto's reading of the relevant statutes, but the review panel agreed with the State's interpretation. A statute is open for construction...