Mosher v. Whole Foods Market

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
Marlene Mosher, appellee, v.
Whole Foods Market, Inc., appellant.
___ N.W.3d ___
Filed July 5, 2024. 	No. S-23-645.
1. Workers’ Compensation: Appeal and Error. An appellate court may
modify, reverse, or set aside a Workers’ Compensation Court decision
only when (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. ____: ____. An appellate court is obligated in workers’ compensation
cases to make its own determinations as to questions of law.
3. Workers’ Compensation: Evidence: Appeal and Error. In testing the
sufficiency of the evidence to support the findings of fact in a workers’
compensation case, every controverted fact must be resolved in favor
of the successful party and the successful party will have the benefit of
every inference that is reasonably deducible from the evidence.
4. Workers’ Compensation: Penalties and Forfeitures: Appeal and
Error. Whether a reasonable controversy exists is a question of fact.
Accordingly, an appellate court reviews for clear error the compensa-
tion court’s findings concerning reasonable controversy underlying its
determination of waiting-time penalties. However, if the facts are not in
dispute and the inference is clear such that reasonable people could not
disagree about the matter, whether a reasonable controversy exists is a
question of law.
5. Workers’ Compensation: Statutes: Appeal and Error. The meaning
of a statute is a question of law, and an appellate court is obligated in
workers’ compensation cases to make its own determinations as to ques-
tions of law.
6. Workers’ Compensation: Attorney Fees. Determining the amount for
attorney fees under Neb. Rev. Stat. § 48-125(4)(a) (Reissue 2021) is
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
necessarily a question of fact that requires a factual determination on
several factors.
7. Workers’ Compensation. Temporary disability benefits under the
Nebraska Workers’ Compensation Act are discontinued at the point of
maximum medical improvement, because a disability cannot be both
temporary and permanent at the same time.
8. Workers’ Compensation: Time. The date of maximum medical
improvment for purposes of ending a workers’ compensation claimant’s
temporary disability is the date upon which the claimant has attained
maximum medical recovery from all of the injuries sustained in a par-
ticular compensable accident.
9. Workers’ Compensation. When an injured employee has reached maxi-
mum medical improvement, any remaining disability is, as a matter
of law, “permanent” within the meaning of the Nebraska Workers’
Compensation Act.
10. ____. Neb. Rev. Stat. § 48-125 (Reissue 2021) does not distinguish
between whether the disability is temporary or permanent, but refers
to all amounts of compensation payable under the Nebraska Workers’
Compensation Act.
11. ____. The Nebraska Workers’ Compensation Act should be construed
liberally to carry out its spirit and beneficent purpose of providing com-
pensation to employees injured on the job.
12. ____. The purpose of Neb. Rev. Stat. § 48-125 (Reissue 2021) is to
encourage prompt payment of workers’ compensation benefits by mak-
ing the delay costly if an award is finally established.
13. Workers’ Compensation: Attorney Fees: Penalties and Forfeitures.
The waiting-time penalty and attorney fees are available under Neb.
Rev. Stat. § 48-125 (Reissue 2021) in cases brought to the Workers’
Compensation Court only where there is no reasonable controversy
regarding an employee’s claim for workers’ compensation.
14. Workers’ Compensation: Attorney Fees: Words and Phrases. A
“reasonable controversy” for the purpose of Neb. Rev. Stat. § 48-125
(Reissue 2021) exists (1) if there is a question of law previously
unanswered by the Supreme Court, which question must be answered
to determine a right or liability for disposition of a claim under the
Nebraska Workers’ Compensation Act, or (2) if the properly adduced
evidence would support reasonable but opposite conclusions by the
compensation court about an aspect of an employee’s claim, which con-
clusions affect allowance or rejection of an employee’s claim, in whole
or in part.
15. Workers’ Compensation. Although the total amount of compensation
due may be in dispute, the employer’s insurer nevertheless has a duty to
promptly pay that amount which is undisputed.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
16. ____. The only legitimate excuse for delay of payment of workers’ com-
pensation benefits is the existence of genuine doubt from a medical or
legal standpoint that any liability exists.
17. Workers’ Compensation: Time. The fact that a portion of a disability
may be in dispute does not allow an employer to withhold payment
of all disability from a workers’ compensation claimant, but, rather,
the employer must pay, within 30 days of accrual, the payments that
are undisputed.
18. Workers’ Compensation: Statutes: Time. Absent a genuine dispute
that any liability exists, it is the statutory obligation of the employer and
its workers’ compensation insurer to begin making weekly payments no
later than expiration of 30 days after notice of disability.
19. Workers’ Compensation. It would be contrary to our precedent, the
language of Neb. Rev. Stat. § 48-125 (Reissue 2021), and the benefi-
cent purposes of the Nebraska Workers’ Compensation Act for an
employer, with impunity, to fail to pay any indemnity benefits when
there is no reasonable controversy as to the employee’s entitlement to
indemnity benefits and the only reasonable dispute is whether or when
the employee has reached maximum medical improvement such that
the benefits should be for a permanent partial disability rather than for
temporary total disability.
20. Workers’ Compensation: Penalties and Forfeitures. As opposed to an
unanswered question of whether the employee was entitled to any com-
pensation or medical payments, a question unanswered by the Supreme
Court as to whether waiting-time penalties are properly imposed or
calculated under the facts presented does not prevent the imposition of
waiting-time penalties.
21. Workers’ Compensation: Attorney Fees. The determination of
the amount of attorney fees to be awarded under Neb. Rev. Stat.
§ 48-125(4)(a) (Reissue 2021) is necessarily a question of fact that
requires a factual determination on several factors, including the value
of legal services rendered by an attorney by considering the amount
involved, the nature of the litigation, the time and labor required, the
novelty and difficulty of the questions raised, the skill required to
properly conduct the case, the responsibility assumed, the care and
diligence exhibited, the result of the suit, the character and standing of
the attorney, and the customary charges of the bar for similar services.
22. ____: ____. The amount involved in the claim is but one factor, and
the amount of the attorney fees is not necessarily limited to legal work
performed in recovering a specific, unpaid medical bill or delinquent
compensation.
23. Workers’ Compensation: Attorney Fees: Appeal and Error. An
appellate court gives great deference to the compensation court’s

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
determination of reasonable attorney fees pursuant to Neb. Rev. Stat.
§ 48-125 (Reissue 2021), which determination will not be disturbed on
appeal unless it is clearly wrong in light of the evidence.
24. Workers’ Compensation. Nonpayment of medical bills can have an
extremely deleterious result for an injured worker, including delaying
necessary medical care, which can result in a more severe perma-
nent injury.
25. Workers’ Compensation: Attorney Fees. The plain meaning of a “rea-
sonable attorney’s fee” in Neb. Rev. Stat. § 48-125(4)(a) (Reissue 2021)
encompasses the work of a legal assistant for the attorney.
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Affirmed.
Patrick J. Mack and Madaline McGill, of Hennessy &
Roach, P.C., for appellant.
David M. Handley, of Handley Law, P.C., L.L.O., for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. NATURE OF CASE
The employer contests the waiting-time penalty and attor-
ney fees awarded by the Nebraska Workers’ Compensation
Court. There was no conflict in the evidence that the employee
had suffered a work-related injury. The employer’s own medi-
cal examiner had found that the employee suffered from a
17-percent permanent impairment because of a work-related
injury. Nevertheless, the employer had not paid temporary
total disability benefits (TTD) or permanent disability ben-
efits. Nor had it paid for any of the employee’s medical
care. The employer argues the compensation court lacked
authority to award a waiting-time penalty for failing to pay
a 17-percent permanent impairment benefit, when the court
ultimately found the employee had not yet reached maxi-
mum medical improvement (MMI) and awarded TTD. The

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
compensation court said there was no reasonable contro-
versy that the employee was entitled to some benefit and
the employer “cannot have it both ways. It cannot deny the
[employee] TTD benefits on the basis that she is at MMI, but
fail to pay permanent disability benefits.” The employer con-
tests the award of attorney fees on the grounds that the court
allegedly relied on a judicial admission the employee had
failed to invoke at the hearing, the fees were disproportion-
ate to the total award, and the fees included the services of a
paralegal. We affirm.
II. BACKGROUND
1. Petition
On April 28, 2022, Marlene Mosher brought a petition in
the Workers’ Compensation Court against her employer, Whole
Foods Market, Inc. (Whole Foods), claiming she suffered an
injury from a fall on July 4, 2021, arising out of and in the
course of her employment. Mosher alleged that, as a result of
the accident, she sustained injury to her right lower extrem-
ity and right ankle and developed low-back pain. She alleged
she had suffered periods of temporary disability, required rea-
sonable and necessary medical care, incurred mileage and
expenses, and had not yet reached MMI. Mosher alleged that
despite there being no reasonable controversy as to her entitle-
ment to benefits under the Nebraska Workers’ Compensation
Act, Whole Foods had failed or refused to provide those
benefits; thus, she was entitled to waiting-time penalties and
attorney fees.
In its answer, Whole Foods admitted that the accident arose
out of Mosher’s employment with Whole Foods and that her
injuries had required reasonable and necessary medical care.
Whole Foods admitted it obtained a report from Dr. Peter
Cimino in October 2021, stating that Mosher was injured as a
result of her accident and was at MMI despite still reporting
pain. Whole Foods also admitted that a subsequent magnetic
resonance imaging (MRI) showed a tibial stress fracture.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
At the same time, Whole Foods denied that the MRI had
not yet been performed when Cimino completed his initial
report. Whole Foods also denied that Mosher’s injuries had
not reached MMI, that Mosher was injured performing her
duties, that she suffered an “accident” as defined in Neb.
Rev. Stat. § 48-151(2) (Reissue 2021), that she sustained an
“injury” as defined in § 48-151(4), that her accident occurred
in the course of her employment with Whole Foods, that her
accident occurred in the scope of her employment with Whole
Foods, that the accident caused Mosher’s injuries, that the
injuries caused periods of temporary disability, that the inju-
ries have or will cause periods of permanent disability and
impairment, that Mosher was entitled to a vocational rehabili-
tation assessment, and that Mosher was entitled to a loss-of-
earning capacity assessment.
2. Requests for Admissions
In responses to Mosher’s requests for admissions, Whole
Foods admitted Mosher was employed with Whole Foods on
the date of the accident, all the medical treatment sought for the
injury was reasonable and necessary, and all the medical bills
presented were fair and reasonable. But Whole Foods denied
Mosher sustained an accident as defined by § 48-151(2),
Mosher sustained an injury as defined by § 48-151(4), the
injury was caused by an accident, the accident or injury
arose out of her employment at Whole Foods, the accident
and injury occurred in the course of her employment, the
injury will cause permanent impairment or restrictions, the
injury is not likely to improve, the injury has not become
stable, Mosher is entitled to a loss-of-earning-capacity assess-
ment, and Mosher is entitled to a vocational rehabilitation
assessment.
3. Hearing
The hearing before the Workers’ Compensation Court was
held on May 15, 2023. Despite the denials in Whole Foods’
answer and its response to request for admissions, in opening

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
statements, Whole Foods’ counsel said that it “agrees with a
lot of what [Mosher’s] counsel has said,” but certain claimed
injuries “prevented us from being able to reach a resolu-
tion before this hearing,” because of preexisting conditions.
Whole Foods’ counsel explained that, thus, “we have to try all
the issues.”
Whole Foods also argued there was a reasonable contro-
versy for denying TTD benefits because Cimino did not give
Mosher any restrictions. Mosher offered into evidence Whole
Foods’ admission, in its response to requests for admissions,
that Mosher was employed with Whole Foods on the date of
the accident, all of the medical treatment sought for the injury
was reasonable and necessary, and all the medical bills pre-
sented were fair and reasonable. The admission was admitted
into evidence without objection.
By the end of the hearing, the compensation court observed
that Whole Foods no longer disputed Mosher’s entitlement to
some benefits, but instead argued she had reached MMI no
later than February 15, 2023, so her award of TTD benefits
could not go beyond that date. Mosher claimed entitlement to
TTD benefits from December 13, 2021, to February 20, 2022,
and again from March 21, 2022, until she reaches MMI. The
evidence suggested that Mosher had, at least in the begin-
ning, sometimes worked even though her medical provider
had advised her to rest. It was not contested that Mosher was
unable to work and did not work during the periods for which
she sought TTD benefits.
The most contested issues by the end of the hearing were
whether there was a reasonable controversy as to Mosher’s
entitlement to benefits and medical expenses such that Whole
Foods was subject to waiting-time penalties and attorney fees.
The evidence was undisputed at the hearing that although
Mosher had missed substantial periods of work, Whole Foods
had not paid Mosher any indemnity benefits at all. The only
payment made to Mosher was $6.50 for mileage to see Cimino
for an independent evaluation.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
It was also undisputed that Whole Foods had not approved
any medical treatment or paid the medical bills submitted by
Mosher for treatment of her injuries. Finally, the evidence
was undisputed that Whole Foods had refused to accommo-
date certain work restrictions placed on Mosher by her medi-
cal providers.
(a) Accident
The evidence at the hearing demonstrated that on July 4,
2021, Mosher was working for Whole Foods and fell onto her
left side while counting inventory located on a top shelf. The
fall resulted initially in symptoms to her left waist, left but-
tocks, and behind her left knee. At the time, Mosher was 66
years old. She suffered from osteopenia and had a prior right
knee replacement in 2015, a prior surgery on her right foot,
and a history of gout.
Her symptoms from the injury caused Mosher to begin put-
ting more weight on her right leg and foot when she walked.
Mosher continued to go to work but, several days later, was
seen by Dr. Shannon Lensing after Mosher woke up to find
her right foot swollen. Mosher was treated by Lensing for her
injuries from July 2021 until December 2022.
(b) Pain and Swelling in Right
Foot, Knee, and Ankle
Lensing observed edema in Mosher’s right foot and ankle,
with a slightly elevated temperature. Pain on palpitation was
severe. Lensing wrote in her assessment that the swelling
was secondary and related to Mosher’s work injury on July 4,
2021, resulting from “overload[ing]” the foot to compensate
for the injuries on her left side. She recommended Mosher not
return to work until she was reevaluated the following week.
The following week, Lensing observed effusion in the right
ankle and pain on palpitation of the right ankle and joints of
the right foot. Mosher was unable to properly bear weight
on the right foot. Some swelling was also noted in Mosher’s
right knee. Lensing discussed with Mosher the possibility of

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
obtaining an MRI and physical therapy. Mosher was given an
injection and told to continue to stay off work.
In Mosher’s third visit, Lensing observed swelling in the
knee, foot, and ankle and diffuse pain on palpitation. Lensing
believed the knee swelling was due to an altered gait and
recommended Mosher continue to rest and stay off work. On
August 10, 2021, Lensing continued to observe effusion in the
right ankle and pain. She recommended Mosher’s attempting to
work part time using a brace.
(c) Cimino’s Evaluation—October 2021
At Whole Foods’ request, Mosher was seen by Cimino
on October 1, 2021, for an independent medical evaluation.
Cimino issued a report concluding that Mosher had suffered a
soft tissue injury, a right knee sprain, and a right ankle sprain
as a result of the accident on July 4. He opined that all the
medical treatment and testing Mosher had undergone up to
that point was reasonable and related to the work injury.
Cimino believed Mosher was at MMI and needed no further
medical treatment or work restrictions. No MRI had yet been
taken of her ankle.
(d) Diagnosis of Stress Fracture
Mosher saw Lensing again on October 12, 2021. Lensing
again observed noticeable swelling to the right ankle and pain.
She emphasized that Mosher needed to get an MRI of the
ankle. She also recommended physical therapy. Lensing stated
in her report: “I do believe that all of this pain and aggrava-
tion is related to her fall though she does have underlying
joint issues but they have been aggravated and cause signifi-
cant impairment in pain for the patient since then.”
An MRI was conducted on November 15, 2021. It revealed
a distal tibial stress fracture.
Mosher continued to have significant edema on November
23, 2021, when she again saw Lensing. Mosher was pre-
scribed a soft cast and controlled ankle movement (CAM)
boot. Swelling was controlled by compression dressings when

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
she saw Lensing on December 3, but she still had significant
discomfort. Mosher ultimately continued to use the CAM boot,
as prescribed, for at least 6 more months.
Lensing stated in her December 3, 2021, report that the tib-
ial stress fracture was secondary to the “consequences and the
problems related to the fall” that occurred on July 4. Lensing
elaborated that the injuries from the fall caused Mosher to
have an abnormal gait, resulting in overuse and the stress
fracture. Lensing noted that a stress fracture normally takes a
minimum of 6 weeks to heal and that Mosher had comorbidi-
ties such as osteoporosis, which could delay bone healing.
Lensing found Mosher was still unable to work and needed
to be minimally weight bearing. Lensing took Mosher off
work for at least 3 weeks starting on December 10, 2021.
Lensing took Mosher off work again on December 21 until
her next appointment. On January 11, 2022, Mosher was taken
off work for another 2 weeks, at which time, she could return
to work for 2 days per week but not on 2 consecutive days.
In February 2022, Mosher saw Dr. Donald Buddecke, one
of Lensing’s partners. Buddecke observed edema and increased
temperature in the right foot. Buddecke stated the signs and
symptoms were consistent with “acute gouty arthropathy.”
On March 3, 2022, Mosher saw Lensing again. Lensing
described that she had suffered a gout flareup but it had
calmed down. Improvements to the right lower extremity
were noted. Lensing approved Mosher to go back to work but
limited her to working only 2 days per week.
On March 22, 2022, Mosher returned to Lensing with symp-
toms of swelling and pain in her right foot. Lensing applied
a soft cast and again took Mosher off work. That no-work
restriction continued from March 29 through May 6.
(e) Development of Neuritis
On March 29, 2022, Mosher reported to Lensing that
Mosher was experiencing shooting and tingling pain sen-
sations, and swelling was observed. On April 12, Mosher

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
reported “pins-and-needles” and “burning and throbbing pain”
in the right foot, ankle, and leg. Lensing began to be concerned
that the CAM boot prescribed for the stress fracture was irritat-
ing the common peroneal nerve. Mosher participated in physi-
cal therapy starting on April 26.
On May 17, 2022, Mosher was released by Lensing to
work in 2-to-3-hour shifts, two to three times a week, if she
was able to sit as necessary. Whole Foods would not accom-
modate the shortened shift or a different position involving
more sitting.
(f) Lensing Report—June 2022
Mosher continued to suffer chronic pain in her right foot.
In a report dated June 16, 2022, Lensing described that
Mosher had a fall on July 4, 2021, which injured her left
hip, causing her to favor the left leg and overload the right,
ultimately resulting in a stress fracture in her right tibia. The
stress fracture went undiagnosed until November, when an
MRI was finally ordered. Lensing opined that prolonged use
of a CAM boot as prescribed led to neuritis of the common
peroneal nerve and weakness.
Lensing opined that Mosher needed to continue with more
physical therapy before she could reach MMI. Lensing also
recommended that Mosher see a specialist in “neuro or pain
management” and have an electromyography (EMG) nerve
conduction study of the right lower extremity to evaluate for
the common peroneal nerve neuritis. Lensing continued to
recommend work restrictions consisting of shifts no longer
than 4 hours, not working 2 days in a row, and being allowed
to sit as needed. While Whole Foods provided a pad to stand
on and accommodated not working 2 days in a row, it did not
accommodate the other restrictions.
(g) Back Pain and Healing
of Stress Fracture
Lensing referred Mosher to Dr. Chris Criscuolo, who exam-
ined Mosher on September 8, 2022. In Criscuolo’s report, he

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
noted that Mosher had leg swelling and had developed back
pain secondary to the gait abnormality related to the pain in
her right foot.
A second MRI was conducted on September 27, 2022. It
showed that the stress fracture was healed, but swelling was
still present.
(h) October 2022 Report
At the request of her attorney, Mosher was examined on
October 14, 2022, by Dr. Sunil Bansal, who reviewed all of
Mosher’s medical records. Mosher reported numbness and
tingling of her right foot, which radiated up her leg. She also
reported back pain that increased after 1 hour of walking or 2
hours of standing. She generally could stand comfortably for
only 3 hours and had to climb stairs one at a time.
Bansal opined that as a result of the work accident, Mosher
suffered a right distal tibial stress fracture of the right ankle, a
common peroneal nerve neuropathy of the right foot, sacroili-
itis of the low back, and a left hip contusion.
Bansal explained it was logical that the back pain mani-
fested months after the right foot injury, as it was a cumula-
tive process resulting from the altered gait secondary to the
right foot pathology. Bansal opined that the back condition
and foot pathology were permanent, but recommended con-
tinuing treatment that included injections, nerve blocks, and
medication.
(i) Cimino’s Second Examination—February 2023
Whole Foods had Cimino examine Mosher a second time
on February 15, 2023. After his examination of Mosher and
review of the MRIs, Cimino opined that, as a result of the
work accident on July 4, 2021, Mosher had suffered a right
knee sprain, a right ankle sprain, a tibial stress fracture, and
postinjury neuritis.
Cimino noted that, during the examination, Mosher reported
a “numbing sensation on the dorsum of the ankle and down
to the toes” and that she could only tolerate up to 1 hour on

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
her feet. She was observed to be ambulatory, “but clearly
favors the right lower extremity” and is “somewhat ginger with
her weightbearing.” Nevertheless, Cimino wrote: “[Mosher’s]
inability to work is based on subjective complaints and not
substantiated by the objective clinical exam.”
Because “[t]here is not likely to be any significant change
in subjective symptoms,” Cimino opined that Mosher was
at MMI as of February 15, 2023, and suffered a 17-percent
permanent impairment to the right leg. Nevertheless, Cimino
recommended further medical treatment in the form of an
EMG and followup with a neurologist. He explained that he
did not believe future medical treatment was likely to lead to
any significant changes but the EMG study and evaluation by
a neurologist “would be helpful to confirm my suspicions.”
(j) Lensing’s Report—May 2023
In a second report on May 9, 2023, Lensing opined Mosher
suffered a right tibial stress fracture, peroneal neuritis, and
right hip and back problems as a result of the work accident
on July 4, 2021. She explained that Mosher had to be in the
CAM boot for a prolonged period, because it took months for
the stress fracture to heal due to her osteoporosis, rheumatoid
arthritis, and advanced age.
Lensing opined that Mosher had reached MMI for the
stress fracture on October 18, 2022. However, Lensing did
not believe Mosher had reached MMI for her peroneal nerve
injury, low-back radiculopathy, right hip pain, and chronic
pain of the right leg, citing inadequate treatment for each of
these conditions. Lensing noted that lack of adequate treat-
ment was due to a lack of insurance coverage, a denial of
Mosher’s workers’ compensation claim, and her inability to
work to have income to pay copayments.
(k) Mosher’s Testimony
Mosher has not returned to work since March 20, 2022.
Mosher described that she continues to experience “burn-
ing and the needles” sensations in her right foot and limited

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
mobility. She described her attempts to recover from her
injuries as quickly as possible so she could return to work at
Whole Foods. At the time of the hearing, Mosher was still
doing prescribed daily stretches and exercises. Although she
was supposed to return to see Criscuolo, she had not yet done
so because of her inability to pay the copayments. Also, she
had not yet participated in an EMG study because of financial
concerns. She learned the day before the hearing that Whole
Foods had authorized the EMG study.
4. Award
(a) Injuries
The compensation court issued its decision on July 20, 2023.
The court found that, as a result of the work accident, Mosher
suffered a tibial stress fracture, peroneal neuritis, an ankle
sprain, a right knee sprain, an injury to her right hip, and low-
back pain in the form of sacroiliitis.
The court noted the experts’ agreement on the stress frac-
ture and neuritis, Cimono’s opinion as to the ankle and right
knee sprains, and Lensing’s opinion as to the injury to the
right hip. The court observed that the “true dispute between
the parties” in relation to the extent of Mosher’s injuries
was whether she injured her back as a result of the work
accident. But the court rejected Whole Foods’ argument that
Cimino’s silence in his report as to whether Mosher suf-
fered a back injury carried more weight than Lensing’s and
Bansal’s reports that she suffered a back injury as a result of
the work accident.
(b) Not at MMI and Not Able to
Work Without Restrictions
The court found that Mosher had not yet reached MMI.
It found Cimino’s report placing Mosher at MMI on October
1, 2021, unpersuasive, because Cimino did not have the results
of the MRI, which revealed the distal tibial stress fracture.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
The court was also unpersuaded by Cimino’s report issued
after reviewing the MRI, in which Cimino found Mosher had
reached MMI as of February 15, 2023. The court observed that
the report detailed how Mosher could tolerate being on her
feet for only up to 1 hour, complained of a numbing sensation,
and favored her right leg. Furthermore, the court noted that
Cimino referred Mosher for EMG testing and an examination
by a neurologist for future medical treatment.
Indeed, observed the court, every doctor who Mosher had
seen recommended additional medical care. The court also
found Mosher’s testimony as to her ongoing symptoms and
limitations, her attempts to get better, and her attempts to
work and inability to perform her regular job, to be credible.
Finally, it relied on Lensing’s opinion that Mosher was not at
MMI from any condition besides the tibial fracture. It noted
that, under Rodriguez v. Hirschbach Motor Lines, 1 a plaintiff is
not at MMI until the plaintiff reaches MMI for all the injuries
suffered as a result of the work accident. The court found that
Mosher was unable to return to work without restrictions.
(c) TTD
The parties stipulated that Mosher’s average weekly wage
for TTD is $330.42 and her average weekly wage for perma-
nent disability benefits is $660. The court found that Mosher
was entitled to TTD benefits in the amount of $220.28 per
week from and including December 13, 2021, to and includ-
ing January 25, 2022, which is 6 weeks, and starting again and
including March 22, 2022, through the date of trial and for
so long thereafter as Mosher shall remain temporarily totally
disabled. At the time of the court’s order, it had been 69 weeks
since March 22, 2022.
When Mosher reached MMI, explained the court, she would
be entitled to statutory amounts of compensation for any
residual permanent disability due to the accident.
1 Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757, 707 N.W.2d 232
(2005).

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(d) Medical Bills and Future Medical Care
The court found that the medical bills and mileage submit-
ted by Mosher were for treatment related to her work injury.
It ordered Whole Foods to pay medical bills to the provid-
ers in the amounts reflected in a summary found in exhibit
21, which showed a total of $19,913.89 in medical bills,
which included $927.68 paid by Mosher, $8,383.95 in adjust-
ments, $2,802.33 paid by Mosher’s insurers, and $8,379.57
still owing. It also ordered Whole Foods to pay $197.63 for
prescription medications and $293.90 in mileage for medi-
cal care.
The court awarded future medical care for the work-related
injuries. Based on agreement between all the medical experts’
opinions, the court found explicit evidence that future medical
treatment was reasonably necessary to relieve Mosher from the
effects of the work-related injury.
(e) Penalties
The court awarded a waiting time penalty pursuant to Neb.
Rev. Stat. § 48-125(3) (Reissue 2021). The court found a
reasonable controversy as to Mosher’s entitlement to TTD
based on Cimino’s opinion that she had reached MMI, because
a worker is no longer entitled to TTD benefits once MMI
has been reached. However, the court noted that Cimino had
opined that Mosher suffered a 17-percent permanent impair-
ment as part of his opinion that she had reached MMI; yet,
Whole Foods did not pay any benefits, either temporary or
permanent. The court stated there was no reasonable contro-
versy excusing Whole Foods’ failure to pay Mosher permanent
disability benefits.
The court explained that Whole Foods “cannot have it both
ways. It cannot deny [Mosher] TTD benefits on the basis that
she is at MMI, but fail to pay permanent disability benefits.”
The court calculated the statutory penalty under § 48-125
based on a 17-percent permanent impairment, resulting in a
total penalty benefit of $8,041. Because Mosher has not actu-
ally reached MMI, however, the court said Whole Foods “is

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not ordered to pay PPD benefit at this time.” Rather, “[Whole
Foods] only owes the $8,041.00 in penalty benefits. [Whole
Foods] shall pay the same to [Mosher].”
(f) Attorney Fees
The court ordered that, pursuant to § 48-125(4)(a), Whole
Foods pay Mosher attorney fees as a penalty for failing to
pay medical bills or indemnity benefits within 30 days. In
addition to there being no reasonable controversy regarding
liability for indemnity benefits, the court also found no rea-
sonable controversy that Whole Foods was liable for Mosher’s
medical bills. First, the court observed Cimino’s report in
October 2021 opining that all treatment and testing had been
reasonable and related to the alleged work injury. Second, the
court observed Whole Foods’ admission in its responses to
“Requests for Admissions” on July 18, 2022, that the medical
treatment Mosher had sought was reasonable and necessary to
treat her injuries.
The court found that Mosher was entitled to attorney fees
in relation to all the time her attorney spent on the case, which
was 66.4 hours. The court reasoned that Whole Foods had
failed to pay any indemnity benefits or medical bills prior
to the hearing and did not stipulate to an accident and injury
arising out of Mosher’s employment. Therefore, Mosher’s
attorney “needed to prove each element of an accident to
prevail on [Mosher’s] claim for indemnity benefits and pay-
ment of her medical bills.” However, the court did not find
the requested hourly rate of $500 to be reasonable and instead
ordered attorney fees in the amount of $250 per hour.
Finally, the court found that the attorney fees should include
the work performed by Mosher’s attorney’s legal assistant at
a rate of $75 per hour and for a total of 80 hours, which the
court found reasonable. The court explained that if the assist-
ant had not done that work, Mosher’s attorney would have
had to do it at a much higher billing rate. The total attorney
fees awarded was $22,600.

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III. ASSIGNMENTS OF ERROR
Whole Foods assigns, summarized and restated, that the
Workers’ Compensation Court erred (1) in awarding a waiting-
time penalty for nonpayment of a permanent impairment rating
by finding no reasonable controversy and failing to explain
how a reasonable controversy did not exist, see Workers’
Comp. Ct. R. of Proc. 11(A) (2023), and (2) in awarding
attorney fees that were primarily focused on a judicial admis-
sion that had been waived, were unreasonable based on the
facts presented and work performed, and were in excess of the
court’s powers to the extent they were for fees incurred by a
legal assistant.
IV. STANDARD OF REVIEW
[1] An appellate court may modify, reverse, or set aside
a Workers’ Compensation Court decision only when (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 war-
rant 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
[2] An appellate court is obligated in workers’ compensation
cases to make its own determinations as to questions of law. 3
[3] In testing the sufficiency of the evidence to support the
findings of fact in a workers’ compensation case, every con-
troverted fact must be resolved in favor of the successful party
and the successful party will have the benefit of every infer-
ence that is reasonably deducible from the evidence. 4
[4] Whether a reasonable controversy exists is a question of
fact. 5 Accordingly, we review for clear error the compensation
2 See Neb. Rev. Stat. § 48-185 (Reissue 2021). See, also, Spratt v. Crete
Carrier Corp., 311 Neb. 262, 971 N.W.2d 335 (2022).
3 Spratt v. Crete Carrier Corp., supra note 2.
4 Simmons v. Precast Haulers, 288 Neb. 480, 849 N.W.2d 117 (2014).
5 Bower v. Eaton Corp., 301 Neb. 311, 918 N.W.2d 249 (2018).

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court’s findings concerning reasonable controversy underlying
its determination of waiting-time penalties. 6 However, if the
facts are not in dispute and the inference is clear such that rea-
sonable people could not disagree about the matter, whether a
reasonable controversy exists is a question of law. 7
[5] The meaning of a statute is a question of law, and an
appellate court is obligated in workers’ compensation cases to
make its own determinations as to questions of law. 8
[6] 	Determining 	the 	amount 	for 	attorney 	fees 	under
§ 48-125(4)(a) is necessarily a question of fact that requires a
factual determination on several factors. 9
V. ANALYSIS
The only issue raised on appeal is the court’s award of a
waiting-time penalty and attorney fees. Whole Foods argues
that there was a reasonable controversy excusing its payment
of any indemnity benefits and that the court improperly relied
on its admission in finding no reasonable controversy as to
its liability for medical bills. Whole Foods also contests that
the amount of the attorney fees are unreasonable in relation
to the benefits awarded and that they include the fees of a
legal assistant.
Compensability under the Nebraska Workers’ Compensation
Act 10 is determined by § 48-101, which provides:
When personal injury is caused to an employee by
accident or occupational disease, arising out of and in the
course of his or her employment, such employee shall
receive compensation therefor from his or her employer
if the employee was not willfully negligent at the time of
receiving such injury.
6 Id.
7 See Boring v. Zoetis LLC, 309 Neb. 270, 959 N.W.2d 795 (2021).
8 Fentress v. Westin, Inc., 304 Neb. 619, 935 N.W.2d 911 (2019).
9 Id.
10 Neb. Rev. Stat. §§ 48-101 to 48-1,117 (Reissue 2021).

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Under § 48-120, the employer is liable for reasonable medi-
cal, surgical, and hospital services. Additionally, a workers’
compensation claimant may receive permanent or temporary
benefits for either partial or total disability. 11
[7-9] Under § 48-121(5), temporary disability includes peri-
ods while undergoing physical or medical rehabilitation or
vocational rehabilitation. Temporary disability benefits under
the Nebraska Workers’ Compensation Act are discontinued at
the point of MMI, because a disability cannot be both tem-
porary and permanent at the same time. 12 The date of MMI
for purposes of ending a workers’ compensation claimant’s
temporary disability is the date upon which the claimant has
attained maximum medical recovery from all of the injuries
sustained in a particular compensable accident. 13 When an
injured employee has reached MMI, any remaining disability
is, as a matter of law, “permanent” within the meaning of the
Nebraska Workers’ Compensation Act. 14
Section 48-125(1) states that all amounts of “compensa-
tion” 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.”
Section 48-125(3) provides for a “waiting time” penalty
for delinquent compensation payments. “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 Nebraska Workers’ Compensation Court . . . .” 15
11 See Krause v. Five Star Quality Care, 301 Neb. 612, 919 N.W.2d 514
(2018). See, also, §§ 48-121 and 48-125.
12 Krause v. Five Star Quality Care, supra note 11.
13 Id.
14 Id.
15 § 48-125(3).

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[10] Section 48-125(4)(a) provides for “a reasonable attor-
ney’s fee” when the employer “refuses payment of compensa-
tion or medical payments” and “proceedings are held before
the compensation court.” 16 “Compensation,” in reference to
additional sums for waiting time, an attorney fee, and inter-
est, means periodic disability or indemnity benefits payable
on account of the employee’s work-related injury or death. 17
We have said that § 48-125(1) does not distinguish between
whether the disability is temporary or permanent, but refers
to “all amounts of compensation payable under the Nebraska
Workers’ Compensation Act.”
[11,12] It has long been established that the “policy of liberal
construction of the [Nebraska Workers’] Compensation Act
for the benefit of the claimant is . . . the rule in Nebraska.” 18
The Nebraska Workers’ Compensation Act should be con-
strued liberally to carry out its spirit and beneficent purpose
of providing compensation to employees injured on the job. 19
We have explained that the purpose of § 48-125 is to encour-
age prompt payment of workers’ compensation benefits by
making the delay costly if an award is finally established. 20
1. Reasonable Controversy
(a) Compensation
Whole Foods argues it should not have to pay any waiting
time penalties because there was a reasonable controversy as
to whether Mosher had reached MMI and, thus, as to whether
its obligations to pay TTD ceased and its obligations to pay
16 Boring v. Zoetis LLC, supra note 7.
17 Bower v. Eaton Corp., supra note 5.
18 Osteen v. A.C. and S., Inc., 209 Neb. 282, 290, 307 N.W.2d 514, 519
(1981).
19 Sellers v. Reefer Systems, 305 Neb. 868, 943 N.W.2d 275 (2020).
20 See, Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667
N.W.2d 167 (2003), disapproved on other grounds, Kimmina v. Uribe
Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005); Roth v. Sarpy Cty.
Highway Dept., 253 Neb. 703, 572 N.W.2d 786 (1998).

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permanent disability began. Whole Foods relatedly argues the
compensation court lacked authority to calculate the penalty
based on Cimino’s report of a permanent impairment, when
the court ultimately found that Mosher had not yet reached
MMI and awarded TTD instead. Whole Foods does not sug-
gest that Mosher is therefore entitled to a waiting-time pen-
alty for Whole Foods’ failure to pay any TTD. Rather, Whole
Foods seems to believe that the controversy as to when
Mosher reached MMI excused Whole Foods from timely pay-
ing any compensation at all.
In awarding the waiting-time penalty, the court reasoned
that Whole Foods “cannot have it both ways. It cannot deny
[Mosher] TTD benefits on the basis that she is at MMI, but fail
to pay permanent disability benefits.” We agree.
[13] Although “reasonable controversy” appears nowhere
in the text of § 48-125, the phrase has been part of our
jurisprudence for more than 90 years, and we have pre-
sumed that the Legislature acquiesced in such determination
of the Legislature’s intent because it has never amended
the Nebraska Workers’ Compensation Act to address rea-
sonable controversy. 21 Our case law has long held that the
waiting-time penalty and attorney fees are available under
§ 48-125 in cases brought to the Workers’ Compensation
Court only “where there is no reasonable controversy regard-
ing an employee’s claim for workers’ compensation.” 22
[14] We have said that a “reasonable controversy” for the
purpose of § 48-125 exists (1) if there is a question of law
previously unanswered by the Supreme Court, which question
must be answered to determine a right or liability for disposi-
tion of a claim under the Nebraska Workers’ Compensation
Act, or (2) if the properly adduced evidence would sup-
port reasonable but opposite conclusions by the compensation
21 See Bower v. Eaton Corp., supra note 5.
22 Boring v. Zoetis LLC, supra note 7, 309 Neb. at 278, 959 N.W.2d at 802
(internal quotation marks omitted).

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court about an aspect of an employee’s claim, which conclu-
sions affect allowance or rejection of an employee’s claim, in
whole or in part. 23 To avoid statutory penalties, an employer
need not prevail in the employee’s claim, but must demon-
strate an actual basis in law or fact for disputing the claim and
refraining from payment of compensation. 24
[15-18] Moreover, although the total amount of compensa-
tion due may be in dispute, the employer’s insurer neverthe-
less has a duty to promptly pay that amount which is undis-
puted. 25 We have said the only legitimate excuse for delay of
payment of workers’ compensation benefits is the existence
of genuine doubt from a medical or legal standpoint that any
liability exists. 26 The fact that a portion of a disability may
be in dispute does not allow an employer to withhold pay-
ment of all disability from a workers’ compensation claimant,
but, rather, the employer must pay, within 30 days of accrual,
the payments that are undisputed. 27 Absent a genuine dispute
that any liability exists, it is the statutory obligation of the
employer and its workers’ compensation insurer to begin mak-
ing weekly payments no later than the expiration of 30 days
after notice of disability. 28
Thus, in Hale v. Vickers, Inc., 29 where the facts at the hear-
ing showed no dispute that there was an impairment, and the
only possible dispute was whether the impairment was 30
23 Id.
24 See Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562
(2006). See, also, Roth v. Sarpy Cty. Highway Dept., supra note 20;
Grammer v. Endicott Clay Products, 252 Neb. 315, 562 N.W.2d 332
(1997).
25 Boring v. Zoetis LLC, supra note 7.
26 Bower v. Eaton Corp., supra note 5.
27 Hale v. Vickers, Inc., 10 Neb. App. 627, 635 N.W.2d 458 (2001).
28 See Grammer v. Endicott Clay Products, supra note 24.
29 Hale v. Vickers, Inc., supra note 27. See, also, Kubik v. Union Ins. Co., 4
Neb. App. 831, 550 N.W.2d 691 (1996).

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percent or 37 percent, the Court of Appeals held there was no
reasonable controversy that the employer owed the employee
compensation for at least a 30-percent impairment.
In Hall v. Germantown State Bank, 30 where the evidence
was undisputed that the employee suffered some permanent
partial disability, but the medical experts disagreed as to
the percentage thereof, we construed the testimony of the
employer’s expert, who opined that there was a 5-percent per-
manent disability, as a “practical admission” of the same. We
then said that the “mere fact that the plaintiff was claiming
a greater percentage of disability was no legal justification
for the defendants[’] withholding the payments admittedly
due.” 31 As such, “to relieve themselves from the penalty, the
defendants should have at least made tender of the amount
admittedly due.” 32 Because there was a reasonable contro-
versy as to whether the percentage of disability exceeded 5
percent, we held that the employee was entitled to a pen-
alty based on compensation calculated based on a 5-percent
impairment rating.
Perhaps most similar to the case at bar, in Musil v. J.A.
Baldwin Mfg. Co., 33 the evidence showed a reasonable contro-
versy as to when the employee reached MMI and the extent
of the permanent disability, but there was “no reasonable
controversy as to the plaintiff’s being disabled.” Despite this,
“instead of paying compensation to the plaintiff for some
amount of permanent partial disability, the defendant has paid
no compensation to the plaintiff since . . . .” 34 Focusing on
30 Hall v. Germantown State Bank, 105 Neb. 709, 712, 181 N.W. 609, 610
(1921).
31 Id.
32 Id.
33 Musil v. J.A. Baldwin Manuf. Co., 233 Neb. 901, 905, 448 N.W.2d 591,
593 (1989).
34 Id. at 906, 448 N.W.2d at 594.

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the language of § 48-125 that the 50-percent waiting-time
penalty be “for all delinquent payments,” we ordered that the
penalty be calculated on all payments that had accrued, and not
just the lesser of the controverted amounts.
[19] These cases illustrate that when there is no reasonable
controversy that the employee has been injured in a work-
place accident and is entitled to some indemnity benefit, the
employer is not excused from timely payments thereof. As
stated, § 48-125(1) does not distinguish between whether the
disability is temporary or permanent but refers to “all amounts
of 	compensation 	payable 	under 	the 	Nebraska 	Workers’
Compensation Act.” It would be contrary to our precedent,
the language of § 48-125, and the beneficent purposes of the
Nebraska Workers’ Compensation Act for an employer, with
impunity, to fail to timely pay any indemnity benefits when
there is no reasonable controversy as to the employee’s entitle-
ment to indemnity benefits and the only reasonable dispute
is whether or when the employee reached MMI such that the
benefits should be for a permanent partial disability rather
than for TTD.
The evidence at the hearing showed no reasonable contro-
versy that Mosher suffered an ankle sprain, knee sprain, hip
injury, tibial stress fracture, peroneal neuritis, and back pain
as a result of an accident arising out of and in the course of
her employment with Whole Foods. Whole Foods was well
aware by the time of Cimino’s second report that there was
no dispute that Mosher suffered some form of disability as a
result of a work accident and had incurred reasonable medi-
cal expenses related to her injury. Despite this, as of the date
of the court’s order, the only payment Whole Foods made to
Mosher was $6.50—for mileage to see Cimino.
The court did not clearly err in finding there was no
reasonable controversy that compensation was due, which
justified a waiting-time penalty. As to the basis upon which
the waiting-time penalty was calculated, imposing a penalty

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based on the employer’s own expert’s opinion is supported by
our opinion in Hall. 35
Whole Foods also argues the court erred in awarding a
waiting-time penalty because it is an issue of first impression
whether a court can award a waiting-time penalty based on the
employer’s expert’s opinion of MMI, when the compensation
court ultimately finds the employee has not yet reached MMI.
We disagree.
First, Whole Foods’ narrow characterization of the legal
issue presented ignores the precedent discussed above.
Second, we have explained that there is a reasonable contro-
versy when there is a question of law previously unanswered
by the Supreme Court, which question must be answered to
determine a right or liability for disposition of a claim under
the Nebraska Workers’ Compensation Act. This refers to the
underlying claim and whether there was no reasonable con-
troversy as to entitlement to compensation and medical pay-
ments. As already set forth, § 48-125(4) provides for “a rea-
sonable attorney’s fee” when the employer “refuses payment
of compensation or medical payments.” And “‘[c]ompensa-
tion’” in reference to additional sums for waiting time, attor-
ney fees, and interest, means periodic disability or indemnity
benefits payable on account of the employee’s work-related
injury or death. 36
[20] “[C]ompensation,” as set forth in § 48-125(4), does
not mean the waiting-time penalty and attorney fees the
employee is entitled to for the failure to timely pay com-
pensation and medical bills. As opposed to an unanswered
question of whether the employee was entitled to any com-
pensation or medical payments, a question unanswered by
the Supreme Court as to whether waiting-time penalties are
properly imposed or calculated under the facts presented does
not prevent the imposition of waiting-time penalties. To hold
35 See Hall v. Germantown State Bank, supra note 30.
36 Bower v. Eaton Corp., supra note 5, 301 Neb. at 339, 918 N.W.2d at 271.

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differently would not only be circular, but contrary to both the
plain language of § 48-125(4) and the beneficent purposes of
the Nebraska Workers’ Compensation Act to encourage prompt
payment of workers’ compensation benefits by making delays
costly if an award is finally established.
The compensation court did not clearly err in finding that
there was no reasonable controversy as to the compensability
of Mosher’s injuries. Nor did it err in using Whole Foods’
expert’s opinion as the basis for its calculation of the waiting-
time penalty.
There is no merit to Whole Foods’ assignment of error
that the court’s reasoning was so confusing that it violated
Workers’ Comp. Ct. R. of Proc. 11(A). The court’s reason-
ing was sound when it said Whole Foods could not escape its
obligation to pay some indemnity benefit simply because of a
dispute over when and if Mosher had reached MMI, because
it “cannot have it both ways.”
(b) Medical Expenses
As to whether there was a reasonable controversy pertaining
to the submitted medical expenses, Whole Foods argues that
the compensation court erred by relying on its judicial admis-
sion that all medical treatment was reasonable and related to
the work accident. Whole Foods asserts Mosher waived this
admission by not “invok[ing]” it at the hearing. 37
Notably, Whole Foods does not argue in its brief on appeal
that the evidence at the hearing demonstrated a reasonable
controversy as to the amount or liability for Mosher’s medical
expenses. And the record is clear that there was no reasonable
controversy concerning medical expenses. Whole Foods does
not explain how the court’s allegedly erroneous reliance on
Whole Foods’ admission rendered it reversible error for the
court to impose penalties for failing to timely pay Mosher’s
medical expenses that the evidence was undisputed Whole
Foods owed.
37 Brief for appellant at 21.

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Regardless, Mosher did not waive the admission. The facts
here presented are distinct from those presented in Boring
v. Zoetis LLC, 38 wherein we held that the employer’s admis-
sion had been waived. In Boring, the employer admitted in
its answer to the petition that the employee sustained a work
accident and the injuries he sought compensation for arose out
of and in the course of his employment. However, the parties
thereafter entered into a stipulation that acknowledged that
whether there was a compensable injury was still at issue.
Furthermore, in Boring, the employer’s position at the hear-
ing was that while the employee may have suffered a minor
strain in a workplace accident, the injury for which he sought
recovery was not the result of a workplace accident, and both
parties recognized there was an issue to be tried regarding
whether there was a compensable accident and injury. Finally,
the evidence presented at the hearing reflected “widely differ-
ing views about causation and the extent” of the employee’s
injury and the compensation court had to conduct “extensive
weighing of the evidence . . . to find a compensable injury.” 39
Despite this, the compensation court awarded penalties and
attorney fees, reasoning solely that because of the judicial
admission in the employer’s answer, there was no reasonable
controversy that the employee sought recovery for a compen-
sable injury.
We held in Boring that the court’s reliance on the judicial
admission was misplaced because the parties’ stipulation, the
comments of the parties, and the evidence all indicated the
admission had been superseded at trial and that the ques-
tion of compensability of the injury was tried by consent.
Furthermore, we held as a matter of law that, under the facts
presented, a reasonable fact finder could reach only the con-
clusion that a reasonable controversy existed. Thus, we held it
was clear error for the court to find no reasonable controversy.
38 Boring v. Zoetis LLC, supra note 7.
39 Id. at 273, 959 N.W.2d at 799.

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While Whole Foods points to a statement it made before
the hearing that the court would need to decide medical
bills, the presentation of the evidence at trial did not indi-
cate a reasonable controversy as to whether the medical bills
were work-related injuries or whether their amount was rea-
sonable or accurate. Furthermore, unlike in Boring, where
the admission was in the employer’s answer and no further
action thereon was undertaken, here, the admission was in the
response to requests for admissions and Mosher offered that
admission into evidence at the hearing. Whole Foods did not
object, and the admission was entered into evidence for pur-
poses of the hearing.
Finally, the compensation court did not rely solely on the
judicial admission. It also cited to the evidence that supported
its conclusion, which, again, clearly supported the conclu-
sion that there was no reasonable controversy as to medical
expenses. The court did not err in finding there was no reason-
able controversy as to medical expenses.
2. Reasonableness of Amount
of Attorney Fees
[21] Whole Foods alternatively argues that the amount of
the attorney fees was excessive. A determination of an award
of attorney fees under § 48-125 must be calculated on a case-
by-case basis. 40 The determination of the amount of attorney
fees to be awarded under § 48-125(4)(a) is necessarily a ques-
tion of fact that requires a factual determination on several
factors, including the value of legal services rendered by an
attorney by considering the amount involved, the nature of
the litigation, the time and labor required, the novelty and dif-
ficulty of the questions raised, the skill required to properly
conduct the case, the responsibility assumed, the care and
diligence exhibited, the result of the suit, the character and
40 Fentress v. Westin, Inc., supra note 8.

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standing of the attorney, and the customary charges of the bar
for similar services. 41
According to Whole Foods, the amount of the attorney
fees is unreasonable because it is approximately 60 percent
of Mosher’s present recovery under the award. However, in
Bower v. Eaton Corp., 42 for example, we affirmed an award
of attorney fees well in excess of the amount of the award.
Likewise, in Starks v. Cornhusker Packing Co., 43 we held
the employee was entitled to attorney fees even though the
increase in the award obtained in pursuing an application for
review was “trivial at best.” In Simmons v. Precast Haulers, 44
we held that, even though the primary reason for filing the
petition was the employer’s failure to pay medical expenses
and there was no controversy regarding the compensability of
the injuries, the compensation court did not err in awarding
the full amount of attorney fees, which was $36,555, instead
of limiting attorney fees to those attributable to the collection
of the unpaid medical bills.
[22,23] The amount involved in the claim is but one factor,
and the amount of the attorney fees is not necessarily lim-
ited to legal work performed in recovering a specific, unpaid
medical bill or delinquent compensation. 45 And we give “great
deference” 46 to the compensation court’s determination of rea-
sonable attorney fees pursuant to § 48-125, which determina-
tion will not be disturbed on appeal unless it is clearly wrong
in light of the evidence. 47
41 Bower v. Eaton Corp., supra note 5.
42 Id.
43 Starks v. Cornhusker Packing Co., 254 Neb. 30, 39, 573 N.W.2d 757, 764
(1998).
44 Simmons v. Precast Haulers, supra note 4.
45 Bower v. Eaton Corp., supra note 5.
46 Simmons v. Precast Haulers, supra note 4, 288 Neb. at 496, 849 N.W.2d
at 131.
47 See Bower v. Eaton Corp., supra note 5.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
As the Workers’ Compensation Court noted in awarding the
full number of hours spent pursuing Mosher’s claim, Mosher
had to pursue both unpaid indemnity benefits and unpaid
medical expenses, and there was no reasonable controversy
that she was entitled to both. Furthermore, because Whole
Foods did not stipulate to an accident and injury arising out
of Mosher’s employment, Mosher’s attorney “needed to prove
each element of an accident to prevail on [Mosher’s] claim for
indemnity benefits and payment of her medical bills.”
[24] As stated in the concurring opinion in Harmon v. Irby
Constr. Co., 48 where one of the underlying reasons for filing
the workers’ compensation claim is to establish compensabil-
ity for a delinquent medical bill, the claimant must prove all
elements of compensability to successfully obtain an award on
the medical payments. A court should not hesitate to assess an
entire attorney fee in such cases, because “[n]onpayment of
medical bills can have an extremely deleterious result for an
injured worker,” including delaying necessary medical care,
which can result in a more severe permanent injury. 49
The compensation court did not clearly err in awarding
attorney fees based on all the hours spent pursuing Mosher’s
claim.
3. Fees for Legal Assistant
Lastly, Whole Foods argues that the award of attorney fees
should not have included the work of the attorney’s legal
assistant. Whole Foods argues that the plain meaning of the
phrase “attorney’s fee” is that it is solely work done by the
attorney personally. Section 48-125(4)(a) states simply that “a
reasonable attorney’s fee shall be allowed.” “[A]ttorney’s fee”
is not defined by the Nebraska Workers’ Compensation Act.
48 Harmon v. Irby Constr. Co., 258 Neb. 420, 604 N.W.2d 813 (1999)
(Gerrard, J., concurring).
49 Id. at 431, 604 N.W.2d at 822 (Gerrard, J., concurring).

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MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
In Missouri v. Jenkins, 50 the U.S. Supreme Court explained
that reasonable attorney fees must include not only the work
of the attorneys personally but the work of others, such as
paralegals, whose labor contributes to the work product for
which an attorney bills the client. Although the Court was
addressing a different law, its wording was similar to § 48-125
in that it simply referred to a “reasonable attorney’s fee.” 51
The Court said that this term “cannot have been meant to
compensate only work performed personally by members of
the bar.” 52 Furthermore, “encouraging the use of lower cost
paralegals rather than attorneys wherever possible . . . encour-
ages cost effective delivery of legal services.” 53
This same understanding of reasonable attorney fees was
applied in Schroff, Inc. v. Taylor-Peterson 54 to a state workers’
compensation law allowing for a “reasonable attorney’s fee.”
The court stated that while attorney fees are a matter of dis-
cretion, “paralegal fees should not be categorically eliminated
from the calculus of attorney’s fees since reasonable out-of-
pocket expenditures, beyond normal overhead, are routinely
included in the counsel fee award.” 55 A similar result has been
reached in other states with similarly worded workers’ com-
pensation statutes. 56
[25] As the compensation court observed, if the legal
assistant had not done that work, Mosher’s attorney would
have done it at a much higher billing rate. As noted by the
50 Missouri v. Jenkins, 491 U.S. 274, 109 S. Ct. 2463, 105 L. Ed. 2d 229
(1989).
51 Id., 491 U.S. at 285 (internal quotation marks omitted).
52 Id.
53 Id., 491 U.S. at 288 (internal quotation marks omitted).
54 Schroff, Inc. v. Taylor-Peterson, 732 A.2d 719, 721 (R.I. 1999).
55 Id.
56 See, e.g., Vitac Corp. v. W.C.A.B. (Ronzac), 578 Pa. 574, 854 A.2d 481
(2004); Schefke v. Reliable Collection Agency, Ltd., 96 Haw. 408, 32 P.3d
52 (2001); Kinsey v. World PAC, 152 Conn. App. 116, 98 A.3d 66 (2014).

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MOSHER v. WHOLE FOODS MARKET
Cite as 317 Neb. 26
U.S. Supreme Court, including legal assistants’ work under
the definition of “attorney fees” encourages the cost-effective
delivery of legal services. 57 Furthermore, it is fundamentally
part of the supervising attorney’s work product. It is cus-
tomary that an attorney will bill the client for legal services
that include the work of nonattorney legal staff. We hold
that the plain meaning of a “reasonable attorney’s fee” in
§ 48-125(4)(a) encompasses the work of a legal assistant for
the attorney. The compensation court did not clearly err in
including the work of Mosher’s attorney’s legal assistant in its
calculation of a “reasonable attorney’s fee.”
VI. CONCLUSION
For the foregoing reasons, we affirm the award of the
Workers’ Compensation Court.
Affirmed.
57 See Missouri v. Jenkins, supra note 50.