Burnham v. Pacesetter Corp.

is remanded with directions to reinstate the order of termina-
tion entered by the Board.
R eveRsed and Remanded with diRections.
Burnham v. pacesetter corp. 	707
cite as 280 neb. 707
thomas e. BuRnham , appellant, v. the pacesetteR
coRpoRation and liBeRty mutual
GRoup, appellees.
789 n.W.2d 913
Filed october 15, 2010. 	nos. s-10-229, s-10-344.
1. Jurisdiction: Judgments: Appeal and Error. Determination of a jurisdictional
issue which does not involve a factual dispute is a matter of law which requires
an appellate court to reach an independent conclusion.
2. Judgments: Appeal and Error. an appellate court independently decides ques-
tions of law.
3. Workers’ Compensation: Jurisdiction: Statutes. the Workers’ compensation
court is not a court of general jurisdiction, but, rather, is a statutorily cre-
ated court.
4. ____: ____: ____. no nebraska statute grants equity jurisdiction to the Workers’
compensation court.
5. Workers’ Compensation: Courts: Statutes. a statutorily created court, such
as the Workers’ compensation court, has only such authority as has been con-
ferred upon it by statute, and its power cannot extend beyond that expressed in
the statute.
appeals from the Workers’ compensation court. affirmed.
eric W. Kruger, of rickerson & Kruger, for appellant.
scott a. Lautenbaugh, of hansen, Lautenbaugh & Buckley,
L.L.p., for appellees.
heavican, 	c.J., 	wRiGht, 	connolly, 	G eRRaRd, 	stephan,
mccoRmack, and milleR-leRman, JJ.
heavican, c.J.
IntroDuctIon
this 	case 	comes 	to 	us 	from 	the 	nebraska 	Workers’
compensation court. thomas e. Burnham was injured while
working for the pacesetter corporation, and in 2007, the
nebraska 	court 	of 	appeals 	granted 	summary 	affirmance
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

to Burnham confirming his award. this appeal arises from
Burnham’s attempts to enforce the award against appellees,
the pacesetter corporation and Liberty mutual Group (Liberty
mutual), its insurance carrier, through the compensation court,
first by filing a motion to enforce the award and then by filing a
motion to compel. In both cases, the compensation court found
it did not have jurisdiction. Burnham appeals those decisions,
which have been consolidated for purposes of this appeal.
Facts
the background and procedural posture of this case involve
multiple appeals and multiple motions. Briefly, after several
appeals, the court of appeals upheld the decision of the
compensation court, finding that Burnham had suffered a 65-
percent loss of earning capacity. the court of appeals also
affirmed the imposition of a waiting-time penalty and attor-
ney fees.
on may 15, 2009, Burnham initiated a garnishment action
in the Douglas county District court to collect his award.
the district court garnished $28,191.90 from Liberty mutual
and ordered Liberty mutual to deliver that amount to the
court, 	pending 	appeal. 	the 	court 	of 	appeals 	eventually
summarily affirmed that order on January 13, 2010, in case
no. a-09-730.
While the garnishment proceeding was on appeal, Burnham
filed his “motion for enforcement of award and notice of
hearing” in the compensation court on February 10, 2009, and
filed a “motion to compel re: Liberty mutual’s Violation of
court orders” on December 8. that court denied both motions,
finding that it did not have the authority to enforce collection
of its own awards and that Burnham had a sufficient remedy in
the district court. the three-judge review panel of the compen-
sation court affirmed those decisions, and Burnham appeals.
Burnham alleges that our recent decisions in Russell v. Kerry,
Inc.1 and Midwest PMS v. Olsen2 allow the compensation court
to enforce its own decisions.
1 Russell v. Kerry, Inc., 278 neb. 981, 775 n.W.2d 420 (2009).
2 Midwest PMS v. Olsen, 279 neb. 492, 778 n.W.2d 727 (2010).
708 	280 neBrasKa reports

assIGnments oF error
Burnham assigns, consolidated and restated, that the com-
pensation court erred when it determined that it did not have
the authority to enforce the judgment or compel appellees to
pay the award and that Burnham’s sole remedy is in the dis-
trict court.
stanDarD oF reVIeW
[1] Determination of a jurisdictional issue which does not
involve a factual dispute is a matter of law which requires an
appellate court to reach an independent conclusion.3
[2] an 	appellate 	court 	independently 	decides 	questions
of law.4
anaLYsIs
We note at the outset that during oral argument, Burnham
claimed he was seeking clarification from the compensation
court as to the penalties that were ordered. Burnham makes no
argument in his brief regarding clarification, but instead argues
that the compensation court has the authority to enforce the
judgment against appellees, to compel appellees to pay what
they owe, and to find appellees in contempt for failing to fol-
low that court’s order. appellees argue that any award must be
enforced through the district court. We agree that Burnham’s
remedy must be pursued in the district court.
Burnham appealed the decisions of the compensation court,
and those two appeals were consolidated in the present case.
Burnham acknowledges that he received payment of $28,191.90
through the garnishment action, but alleges that the waiting-
time penalty was not part of that garnishment action and that
he is still owed in excess of $90,000. although Burnham does
not explain why he omitted the waiting-time penalties from
his motion for garnishment, he stated that he filed the actions
that make up the current appeal in response to our decision in
Russell v. Kerry, Inc.5
3 Harleysville Ins. Group v. Omaha Gas Appliance Co., 278 neb. 547, 772
n.W.2d 88 (2009).
4 Russell, supra note 1.
5 Id.
Burnham v. pacesetter corp. 	709
cite as 280 neb. 707

In Russell, the employee received an award before the com-
pensation court.6 the employer then failed to timely pay the
award, and the employee sought a waiting-time penalty and
attorney fees. While that enforcement motion was pending,
the employer ceased paying the employee weekly disability
benefits and he filed a second enforcement action before the
compensation court. While the second action was pending, the
employer perfected its appeal on the first action to the three-
judge review panel. Both enforcement actions were denied, and
the employee appealed.
In Russell, the compensation court found that it did not
have jurisdiction over the second enforcement action while
the appeal of the first enforcement order was pending. We dis-
agreed, finding that the compensation court did have jurisdic-
tion to assess a waiting-time penalty, attorney fees, and interest
for all delinquent payments.7 We determined that because the
employer’s appeal of the first violation (failing to make pay-
ments within 30 days) had nothing to do with the second vio-
lation (ending weekly benefit payments), the employee could
bring a second action to assess a penalty over which the com-
pensation court had jurisdiction.8 We further held that interest
should be assessed on each installment of compensation bene-
fits from the date interest becomes due.9
the second case Burnham cites in support of his claim is
Midwest PMS v. Olsen.10 the crux of Midwest PMS was a dis-
pute between two workers’ compensation insurance carriers.
the compensation court dismissed the case, finding it did not
have jurisdiction to decide a case between two insurance car-
riers. one insurance company appealed. We stated that neb.
rev. stat. § 48-161 (reissue 2004) granted the compensation
court the authority to exercise ancillary jurisdiction.11 We noted
6 Id.
7 Id.
8 Id.
9 Id.
10 Midwest PMS, supra note 2.
11 Thomas v. Omega Re-Bar, Inc., 234 neb. 449, 451 n.W.2d 396 (1990)
(superseded by statute as stated in Midwest PMS, supra note 2).
710 	280 neBrasKa reports

that the subrogation issue involved facts usually decided by the
compensation court. We determined that “the final resolution of
an employee’s right to workers’ compensation benefits does not
preclude an issue from being ‘ancillary’ to the resolution of the
employee’s right to benefits within the meaning of § 48-161.”12
therefore, the compensation court had authority to determine
liability as between insurance companies.
here, the three-judge review panel stated:
In the original award, [Burnham] received weekly bene-
fits plus penalties on weekly benefits and additional penal-
ties on weekly benefits until the benefits became current.
only one penalty can be awarded and only one attorney
fee awarded, and once [Burnham] recovers the penalty
and an attorney fee for late payment of weekly benefits
and late payment of medical benefits, the . . . compensa-
tion court is without authority to award additional penal-
ties and attorney’s fees. Without statutory authority to act
on [Burnham’s] request, the court has no jurisdiction on
the issue of additional attorney’s fees.
the three-judge review panel further stated that although inter-
est continued to accrue, the amount of the award was to be
determined by the district court.
We find that to the extent that Burnham is asking for a
clarification of his award, as suggested during oral argument,
the compensation court has the authority to do so. contrary
to Burnham’s allegation, however, although the compensation
court does have jurisdiction to clarify its award, it does not have
the authority to enforce the collection of its award. nor does
the compensation court have the authority to issue contempt
citations. In Russell,13 we held that the compensation court
can impose a penalty for refusing to pay an award. however,
Russell is distinguishable. after the employer was assessed a
waiting-time penalty for failing to pay medical expenses and
the matter was on appeal, the employer ceased to pay weekly
benefits, thereby incurring a second, separate penalty.
12 Midwest PMS, supra note 2, 279 neb. at 499, 778 n.W.2d at 733.
13 Russell, supra note 1.
Burnham v. pacesetter corp. 	711
cite as 280 neb. 707

In Burnham’s case, the award was finalized in 2006, and a
waiting-time penalty and attorney fees were assessed at that
time as well. But as the compensation court noted, “[a]ny argu-
ment that there was a continuing obligation to pay benefits
terminated on may 1, 2006, when the 300[-]week statutory
maximum period for payment of benefits occurred.” therefore,
unlike in Russell, where there were two separate violations, the
compensation court had no reason to impose a second penalty
on appellees for failing to pay weekly benefits.
In a supplemental letter, Burnham also relies on Smeal Fire
Apparatus Co. v. Kreikemeier,14 arguing that under that case,
the compensation court has the authority to find a party in
contempt for failing to comply with an order. In Smeal Fire
Apparatus Co.,15 we discussed a court’s “inherent contempt
powers,” particularly in light of neb. rev. stat. § 25-1072
(reissue 2008). and we stated that “a court properly exercis-
ing equity jurisdiction may completely adjudicate all matters
properly presented and grant relief, legal or equitable, as may
be required and thus avoid unnecessary litigation.”16 In effect,
any court of general jurisdiction has inherent power to rem-
edy violations of its orders, which includes finding a party
in contempt.17
[3-5] the compensation court is not a court of general
jurisdiction, but, rather, is a statutorily created court.18 and no
nebraska statute grants equity jurisdiction to the compensa-
tion court.19 “a statutorily created court, such as the Workers’
compensation court, has only such authority as has been con-
ferred upon it by statute, and its power cannot extend beyond
that expressed in the statute.”20
14 Smeal Fire Apparatus Co. v. Kreikemeier, 279 neb. 661, 782 n.W.2d 848
(2010).
15 Id. at 670, 782 n.W.2d at 859.
16 Id. at 673-74, 782 n.W.2d at 861.
17 Smeal Fire Apparatus Co., supra note 14.
18 see Schweitzer v. American Nat. Red Cross, 256 neb. 350, 591 n.W.2d
524 (1999).
19 Risor v. Nebraska Boiler, 274 neb. 906, 744 n.W.2d 693 (2008).
20 Schweitzer, supra note 18, 256 neb. at 358, 591 n.W.2d at 530.
712 	280 neBrasKa reports

after our decision in Thomas v. Omega Re-Bar, Inc.,21 the
Legislature amended § 48-161 to invest the compensation court
with ancillary jurisdiction “to determine insurance coverage
disputes in the claims before it, including the existence of
coverage, and the extent of an insurer’s liability.”22 We have
stated that the main purpose behind giving the compensation
court ancillary jurisdiction was to prevent delay in payment
of benefits.23 ancillary jurisdiction does not include the power
to enforce the collection of an award, as Burnham suggests.
We noted in Midwest PMS that the subrogation issue involved
facts usually decided by the compensation court. In the pres-
ent case, Burnham is asking the compensation court to enforce
the collection of its award and/or find appellees in contempt.
nowhere in the nebraska Workers’ compensation act is the
compensation court vested with the authority to issue contempt
orders. those powers have traditionally been reserved for the
district court.
neb. rev. stat. § 48-188 (cum. supp. 2008) provides
Burnham with a sufficient remedy. under that statute, Burnham
may file his award with the district court, which will give
it the same force and effect as a judgment of the district
court.24 Burnham has, in effect, done exactly this by pursuing
a garnishment proceeding in the district court. Burnham has
failed to present any compelling reason why he cannot con-
tinue to pursue through the district court what he claims he is
still owed.25
We therefore find Burnham’s assignment of error without
merit and affirm the decision of the three-judge review panel of
the compensation court finding that it did not have jurisdiction
over Burnham’s motions.
21 Thomas, supra note 11.
22 Schweitzer, supra note 18, 256 neb. at 358, 591 n.W.2d at 530.
23 Midwest PMS, supra note 2; Schweitzer, supra note 18.
24 see § 48-188.
25 see Koterzina v. Copple Chevrolet, 249 neb. 158, 542 n.W.2d 696 (1996),
disapproved on other grounds, Allen v. Immanuel Med. Ctr., 278 neb. 41,
767 n.W.2d 502 (2009).
Burnham v. pacesetter corp. 	713
cite as 280 neb. 707

concLusIon
the Workers’ compensation court is a statutorily created
court and has only the authority granted to it by statute. the
nebraska Workers’ compensation act does not grant the com-
pensation court the authority to enforce the collection of its
awards. under § 48-188, a worker must seek such enforcement
through the district court. We therefore affirm the decision of
the three-judge review panel of the compensation court.
affiRmed.
714 	280 neBrasKa reports