Russell v. Kerry, Inc.

K elly Russell , appellee , v. K eRRy, I nc.,
and lIbeRty Mutual FIRe
I nsuRance , appellants.
775 N.W.2d 420
Filed December 4, 2009. 	No. S-08-146.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual
dispute presents a question of law.
2. Statutes. Statutory interpretation presents a question of law.
3. Judgments: Appeal and Error. An appellate court independently decides ques-
tions of law.
4. Workers’ Compensation: Final Orders. An employer’s appeal from a post-
judgment proceeding to enforce a workers’ compensation award does not disturb
the finality of an award imposing a continuing obligation on the employer to
pay benefits.
5. Workers’ Compensation: Jurisdiction: Penalties and Forfeitures: Costs:
Appeal and Error. A trial judge of the Workers’ Compensation Court has con-
tinuing jurisdiction to enforce an employer’s obligation to pay benefits pending
the employer’s appeal of the judge’s previous order imposing a penalty and costs
for a delayed payment.
Petition for further review from the Court of Appeals, I nbody,
Chief Judge, and sIeveRs and cassel, Judges, on appeal thereto
from the Workers’ Compensation Court. Judgment of Court
of Appeals affirmed in part and in part reversed, and cause
remanded with directions.
Scott A. Lautenbaugh and Julie M. Martin, of Nolan, Olson,
Hansen & Lautenbaugh, L.L.P., for appellants.
Rolf Edward Shasteen, of Shasteen & Scholz, P.C., for
appellee.
H eavIcan, 	c.J., 	WRIgHt, 	connolly, 	geRRaRd, 	stepHan,
MccoRMacK, and MIlleR-leRMan, JJ.
connolly, J.
SUMMARY
Kerry, Inc., failed to timely pay the trial judge’s award of
workers’ compensation benefits to Kelly Russell within 30
days. Russell then sought a waiting-time penalty and attorney
fees. For brevity, we shall refer to the postjudgment filings
as “enforcement motions” and “enforcement orders.” While
RUSSELL v. KERRY, INC. 	981
Cite as 278 Neb. 981
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

Russell’s first enforcement motion was pending, Kerry also
stopped paying Russell’s ongoing temporary partial disability
benefits. Russell again sought an enforcement order for the
second violation. But before Russell filed her second motion,
Kerry had perfected its appeal to the workers’ compensation
review panel from the trial judge’s first enforcement order.
After the trial judge denied Russell’s second enforcement
motion, she appealed to the review panel, which consolidated
the two appeals.
Regarding 	Russell’s 	appeal, 	the 	workers’ compensation
review panel concluded that the trial judge did not have juris-
diction over the second enforcement motion while Kerry’s
appeal of the first enforcement order was pending. Regarding
Kerry’s appeal, the review panel recalculated the trial judge’s
interest assessment but otherwise affirmed. In a memorandum
opinion filed on June 16, 2009, in case No. A-08-146, the
Nebraska Court of Appeals affirmed. We granted Russell’s
petition for further review.
This appeal presents two issues:
• Did the Court of Appeals correctly conclude that the trial
judge did not have jurisdiction to consider Russell’s second
enforcement motion while Kerry’s appeal from the previous
enforcement order was pending?
• Did the review panel correctly recalculate the interest
Kerry owed?
We conclude that Kerry’s appeal of the first enforcement
order did not divest the trial judge of jurisdiction to consider
future violations of the award, which was final. We reverse that
part of the Court of Appeals’ decision, but otherwise affirm.
BACKGROUND
In 2004, Russell injured her back while lifting sacks of
ingredients at Kerry. On July 12, 2006, the trial judge entered
an award for benefits for temporary total disability and tempo-
rary partial disability. The order specified two different periods
for which she was entitled to temporary total disability bene-
fits; the second period was from “December 13, 2005, through
July 31, 2005.” In addition, because the court found she had
not yet reached maximum medical improvement, it awarded
982 	278 NEBRASKA REPORTS

her $51.85 per week in temporary partial disability, beginning
August 1, 2005.
On July 20, 2006, the court, on its own motion, entered a
nunc pro tunc order, correcting the order’s designation of the
second period of temporary total disability benefits to read
“from December 13, 2004,” instead of 2005. Liberty Mutual
Fire Insurance (Liberty Mutual) sent a check to Russell for
benefits on August 16, 2006. But Liberty Mutual should have
paid benefits by August 11, using the original award date—July
12—as the commencement of the 30-day period.
Because of the late payment, on August 18, 2006, Russell
filed an enforcement motion for a waiting-time penalty and
attorney fees. In November, the trial judge sustained that
motion. He concluded that absent an appeal, an award is final
on the date it is entered, that Nebraska’s statutes mandate pay-
ment within 30 days of a final workers’ compensation award,
and that the nunc pro tunc order did not change the date of
the final award. Besides assessing a waiting-time penalty and
attorney fees, the trial judge determined that Nebraska’s stat-
utes required an assessment of interest when a court awards
attorney fees to a claimant.
On December 5, 2006, Kerry and Liberty Mutual (collec-
tively Kerry) appealed the enforcement order to the review
panel. Two days later, Russell filed her second enforcement
motion. She alleged that Kerry had stopped paying weekly ben-
efits for her temporary partial disability on October 24.
At the hearing, Russell argued that she was not required to
comply with Workers’ Comp. Ct. R. of Proc. 3(B)(4) (2002),
which at one time provided that parties filing motions must
show consultation with the nonmoving party.1 She argued that
the rule did not apply to Kerry’s failure to comply with an
unappealed award. But in January 2007, the trial judge over-
ruled Russell’s motion because she had not shown reasonable
efforts to resolve the issues and consult with Kerry. Russell
appealed that decision to the review panel. The review panel
consolidated the appeals.
1 See Workers’ Comp. Ct. R. of Proc. 3(D)(4) (2009) (current rule).
RUSSELL v. KERRY, INC. 	983
Cite as 278 Neb. 981

In deciding Russell’s appeal from the second enforcement
order, the review panel concluded that the trial judge did not
have jurisdiction to decide that motion while Kerry’s appeal
from the first enforcement order was pending. Accordingly, it
concluded that the order was void. In deciding Kerry’s appeal,
the review panel affirmed the trial judge’s order that the nunc
pro tunc order did not alter the final date of the original award
for commencing the 30-day period for paying benefits. It fur-
ther affirmed the trial judge’s award of interest but recalculated
the interest owed. Kerry appealed, and Russell cross-appealed.
In a memorandum opinion, the Court of Appeals affirmed in
all respects.
ASSIGNMENTS OF ERROR
Russell assigns that the Court of Appeals erred in affirming
the review panel’s conclusions that (1) the trial judge’s January
2007 order was void for lack of jurisdiction and (2) the trial
judge incorrectly calculated the interest assessment.
STANDARD OF REVIEW
[1-3] A jurisdictional issue that does not involve a factual
dispute presents a question of law.2 Statutory interpretation
presents a question of law.3 We independently decide questions
of law.4
ANALYSIS
JuRIsdIctIon
The Court of Appeals affirmed the review panel’s conclusion
that the trial judge was divested of jurisdiction to hear Russell’s
second enforcement order because Kerry had perfected its
appeal of the trial judge’s first enforcement order. It relied on
cases in which we have held that a district court is divested of
jurisdiction when a party perfects an appeal from the court’s
final judgment. We do not believe those cases apply.
2 See Miller v. Regional West Med. Ctr., 278 Neb. 676, 772 N.W.2d 872
(2009).
3 See Weber v. Gas ’N Shop, 278 Neb. 49, 767 N.W.2d 746 (2009).
4 See, Miller, supra note 2; Weber, supra note 3.
984 	278 NEBRASKA REPORTS

We have held that after a party perfects an appeal to an
appellate court, the lower courts are divested of subject mat-
ter jurisdiction over that case.5 But this rule is applied when a
party appeals the trial court’s final judgment. Here, Kerry was
not appealing from the award. It was appealing from a separate
postjudgment proceeding to enforce the award. Neither party
appealed from the trial judge’s determination that Russell was
entitled to benefits for temporary total disability and temporary
partial disability. The award was therefore final 30 days after
the trial judge entered it.6
[4] Neb. Rev. Stat. § 48-125 (Cum. Supp. 2008) clearly
authorizes the compensation court to enforce an award by
assessing a waiting-time penalty, attorney fees, and interest for
all delinquent payments made 30 days after the award becomes
final. The issues raised by Russell’s first enforcement motion
and Kerry’s appeal involved only (1) the trial judge’s determi-
nation that Kerry had not timely paid benefits by August 11,
2006, and (2) the judge’s assessment of interest. That appeal
obviously divested the trial judge of jurisdiction to reconsider
the issues decided in that proceeding. But an employer’s appeal
from a postjudgment proceeding to enforce a workers’ compen-
sation award does not disturb the finality of an award imposing
a continuing obligation on the employer to pay benefits. And
Kerry’s appeal of the first violation was entirely independent of
its second violation of the award.
[5] We believe these enforcement proceedings are akin to
postjudgment contempt proceedings in other types of civil
cases. And courts generally hold that an appeal of a contempt
order does not divest a trial court of jurisdiction to consider
a separate act of contempt.7 To conclude otherwise would
give the offending party carte blanche to decide whether to
5 Billups v. Scott, 253 Neb. 293, 571 N.W.2d 607 (1997).
6 See Roth v. Sarpy Cty. Highway Dept., 253 Neb. 703, 572 N.W.2d 786
(1998).
7 Hoffman, Etc. v. Beer Drivers & Salesmen’s, Etc., 536 F.2d 1268 (9th Cir.
1976); Yalem v. Yalem, 800 S.W.2d 811 (Mo. App. 1990); Town of Ruston
v. Wingard, 70 Wash. 2d 388, 423 P.2d 543 (1967).
RUSSELL v. KERRY, INC. 	985
Cite as 278 Neb. 981

comply with the court’s order pending its appeal. We conclude
that the trial judge had continuing jurisdiction to enforce
Kerry’s obligation to pay benefits pending its appeal of the
judge’s previous order imposing a penalty and costs for a
delayed payment.8
I nteRest assessMent
The Court of Appeals affirmed the review panel’s conclu-
sion that the trial judge incorrectly calculated the interest Kerry
owed. The trial judge determined that under Neb. Rev. Stat.
§ 48-119 (Reissue 2004) and § 48-125, when a judge awards
a claimant attorney fees, he or she is also entitled to interest
on the total compensation owed when the employer paid the
award, starting from the date that the compensation was first
payable. But the review panel stated that interest does not
accrue on the entire balance for the entire period. Instead, it
concluded that the employer owed interest on each week of
benefits as they became due until it paid the award.
In her petition for further review, Russell does not dispute
the review panel’s method for calculating interest from the
date each weekly installment of benefits became due until the
date of payment. Instead, she contends that the trial judge’s
ruling was correct because the statutes show the Legislature
intended to make the employer’s delinquent payments costly to
encourage the prompt payment of benefits. We view the ques-
tion presented as whether the statutes require a trial judge to
assess interest on the full amount of benefits owed from the
first date that compensation was payable or to assess interest
from the time each installment of benefits became due to the
date of payment.
Absent a statutory indication to the contrary, we will give
words in a statute their ordinary meaning.9 To the extent
an appeal calls for statutory interpretation or presents ques-
tions of law, we must reach a conclusion independent of
8 Compare Foote v. O’Neill Packing, 262 Neb. 467, 632 N.W.2d 313
(2001).
9 In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).
986 	278 NEBRASKA REPORTS

the lower court’s determination.10 A court must place on a
statute a reasonable construction which best achieves the
statute’s purpose, rather than a construction which would
defeat that purpose.11
Section 48-125(3), in relevant part, provides:
When an attorney’s fee is allowed pursuant to this section,
there shall further be assessed against the employer an
amount of interest on the final award obtained, computed
from the date compensation was payable, as provided in
section 48-119, until the date payment is made by the
employer, at a rate equal to the rate of interest allowed
per annum under section 45-104.01, as such rate may
from time to time be adjusted by the Legislature. Interest
shall apply only to those weekly compensation benefits
awarded which have accrued as of the date payment is
made by the employer.
Section 48-119 provides: “No compensation shall be allowed
for the first seven calendar days of disability . . . except that if
such disability continues for six weeks or longer, compensation
shall be computed from the date disability began.”
We do not view these statutes to specify whether a court can
impose interest on the full amount of benefits owed from the
first day that any compensation was payable or from the date
that the benefits were due. But contrary to the trial judge’s
conclusion, the reference to § 48-119 in § 48-125(3) simply
clarifies the start date for calculating interest—not that interest
must be assessed on the full amount of benefits owed from the
first day of compensation. And we reject Russell’s argument
that the Legislature intended this result to make delayed pay-
ments costly.
The 	penalty 	for 	a 	delayed 	payment 	is 	imposed 	under
§ 48-125(1), which provides that “[f]ifty percent shall be
added for waiting time for all delinquent payments . . . .” But
it does not follow that every allowable cost under § 48-125
10 See In re Interest of Dustin S., 276 Neb. 635, 756 N.W.2d 277 (2008).
11 Concrete Indus. v. Nebraska Dept. of Rev., 277 Neb. 897, 766 N.W.2d 103
(2009).
RUSSELL v. KERRY, INC. 	987
Cite as 278 Neb. 981

was intended as a penalty to the employer. The principal pur-
pose of the Nebraska Workers’ Compensation Act is to provide
an injured worker with prompt relief from the adverse eco-
nomic effects caused by a work-related injury or occupational
disease.12 Courts have reasoned that preaward interest is not
a penalty but a means of fully compensating the claimant
for not having use of the money that the employer owed.13
Consistent with that purpose, courts have held that interest may
be assessed on each installment of compensation benefits from
the date it became due.14
We agree with these decisions. Absent a clear indication that
the Legislature intended an employer to pay interest on the
full amount of benefits as a penalty, we believe that interest is
assessed to fully compensate the claimant for not having the
use of money to which he or she is entitled. Permitting interest
on the full amount of benefits from a date when they were not
yet owed is inconsistent with that purpose. We conclude that
the review panel’s calculation of interest from the date each
installment became due was correct.
CONCLUSION
We conclude that the Court of Appeals incorrectly deter-
mined that the workers’ compensation trial judge did not have
jurisdiction to entertain Russell’s second enforcement motion
while Kerry’s appeal from the judge’s first enforcement order
was pending before the review panel. We reverse that part of
the Court of Appeals’ decision. But we affirm the Court of
Appeals’ determination that under § 48-125(3), the review
panel correctly assessed interest on Russell’s final award from
12 Risor v. Nebraska Boiler, 274 Neb. 906, 744 N.W.2d 693 (2008).
13 See, McLaughlin v. Hill City Oil Co., 702 So. 2d 786 (La. App. 1997), cit-
ing Sharbono v. Steve Lang & Son Loggers, 696 So. 2d 1382 (La. 1997);
Drake v. Norge Division, Borg-Warner, 367 Mich. 464, 116 N.W.2d 842
(1962); Frymiare v. W.C.A.B. (D. Pileggi & Sons), 105 Pa. Cmwlth. 325,
524 A.2d 1016 (1987).
14 See, e.g., Strachan Shipping Company v. Wedemeyer, 452 F.2d 1225 (5th
Cir. 1971); McLaughlin, supra note 13; Petrulo v. M. O’Herron Company,
122 Pa. Super. 163, 186 A. 397 (1936).
988 	278 NEBRASKA REPORTS

the date that each installment of benefits became due to the
date of Kerry’s payment. We remand the cause to the Court of
Appeals with instructions to remand the cause to the workers’
compensation review panel to address Russell’s appeal from
the trial court’s second enforcement order.
aFFIRMed In paRt, and In paRt ReveRsed
and ReManded WItH dIRectIons.
MYERS v. CHRISTENSEN 	989
Cite as 278 Neb. 989
RIcHaRd d. MyeRs , tRustee oF tHe F looRs & MoRe , I nc.,
cHapteR 7 banKRuptcy estate , appellee , v.
JeFF cHRIstensen et al ., appellees , and
cHaRteR West natIonal banK,
gaRnIsHee -appellant.
776 N.W.2d 201
Filed December 4, 2009. 	No. S-08-1212.
1. Garnishment: Appeal and Error. Garnishment is a legal proceeding. To the
extent factual issues are involved, the findings of the fact finder will not be set
aside on appeal unless clearly wrong; however, to the extent issues of law are
presented, an appellate court has an obligation to reach independent conclusions
irrespective of the determinations made by the court below.
2. Garnishment: Liability: Service of Process: Time. A garnishee’s liability is to
be determined as of the time the garnishment summons is served.
3. Judgments: Debtors and Creditors: Garnishment. The claim of a judgment
creditor garnishor against a garnishee can rise no higher than the claim of the
garnishor’s judgment debtor against the garnishee.
4. Garnishment: Liability: Service of Process: Time. In determining the liability
of a garnishee to a garnishor, the test is whether, as of the time the summons in
garnishment was served, the facts would support a recovery by the garnishor’s
judgment debtor against the garnishee.
Appeal from the District Court for Douglas County: gRegoRy
M. scHatz, Judge. Reversed and remanded with directions.
Jeffrey A. Silver for garnishee-appellant.
Brett S. Charles, of McGill, Gotsdiner, Workman & Lepp,
P.C., L.L.O., for appellee Richard D. Myers.
H eavIcan, 	c.J., 	WRIgHt, 	connolly, 	geRRaRd, 	stepHan,
MccoRMacK, and MIlleR-leRMan, JJ.