Weber v. Gas 'N Shop

the fact that Cornelius is a homeless and destitute child at risk
of harm because currently there is no parent or legal guardian
providing care for him. Cornelius is thus properly subject to
the jurisdiction of the juvenile court under § 43-247(3)(a).
CONCLUSION
We conclude that because the relinquishment was not prop-
erly accepted, Laura’s parental rights have not been termi-
nated and the district court erred in dismissing her from the
proceedings. We vacate that portion of the adjudication order,
but affirm the order in all other respects and remand the cause
to the juvenile court for further proceedings consistent with
this opinion.
A ffirmed As modified, And cAuse remAnded
for further proceedings.
A rleen m. Weber , AppellAnt And cross -Appellee ,
v. gAs ’n shop, inc., And employers mutuAl
compAnies , Appellees And cross -AppellAnts.
786 N.W.2d 671
Filed July 23, 2010. 	No. S-09-1300.
1. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.
2. Workers’ Compensation: Garnishment. A garnishment action is an appropriate
proceeding to enforce an award of the Workers’ Compensation Court.
3. Garnishment: Notice. In a garnishment proceeding, the issue is whether the
garnishee is indebted to the garnishor or had property or credits of the garnishor
in its possession or under its control at the time it was served with notice of
the garnishment.
Appeal from the District Court for Douglas County: mArlon
A. polk , Judge. Affirmed.
Jerold V. Fennell and Michael J. Dyer, of Dyer Law, P.C.,
L.L.O., for appellant.
Tyler P. McLeod and Jeffrey J. Blumel, of Abrahams, Kaslow
& Cassman, L.L.P., for appellees.
296 	280 NeBrASKA rePOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

heAvicAn, c.J., Wright, gerrArd, stephAn, mccormAck,
and miller-lermAn, JJ.
miller-lermAn, J.
I. NATUre OF CASe
This case involves a garnishment proceeding to collect money
allegedly due pursuant to a workers’ compensation award. The
case was previously before this court in Weber v. Gas ’N Shop,
278 Neb. 49, 767 N.W.2d 746 (2009) (Weber I). In 2008,
appellant, Arleen M. Weber, filed her 1993 workers’ compensa-
tion award with the district court for Douglas County and com-
menced garnishment proceedings. She alleged that $184,875
was owed by appellees, employers Mutual Companies (eMC)
and Gas ’N Shop, Inc., representing temporary total disability
payments since 1994. The district court granted appellees’
motion to dismiss the garnishment proceedings, and Weber
appealed. This dismissal was reversed in Weber I, in which we
concluded, contrary to the ruling in district court, that Weber’s
workers’ compensation award was not a conditional judgment
and was not dormant. This court remanded the cause to the
district court with directions to consider appellees’ remaining
affirmative defenses. On remand, in an order filed December
2, 2009, the district court dismissed Weber’s action as being
barred by the statute of limitations found at Neb. rev. Stat.
§ 48-137 (reissue 2008). Weber appeals. Appellees cross-
appeal. For reasons others than those articulated by the district
court, we affirm the dismissal of Weber’s action.
II. STATeMeNT OF FACTS
The underlying facts relevant to the current appeal were
previously reported in Weber I and are as follows: In March
1991, Weber filed a workers’ compensation action alleging
that she sustained a compensable injury to her right knee
while employed at Gas ’N Shop. On September 22, 1993, the
Workers’ Compensation Court entered an award (the 1993
award), which was affirmed by a review panel on February
25, 1994. The court awarded Weber benefits of $255 per week
for temporary total disability from September 1, 1992, through
September 1, 1993, “and thereafter and in addition thereto a
WeBer v. GAS ’N ShOP 	297
Cite as 280 Neb. 296

like sum per week for so long in the future as [Weber] remains
temporarily totally disabled.” The award provided that “[w]hen
[Weber] reaches maximum medical improvement, she shall
be entitled to the statutory amounts for any residual disabil-
ity.” The award further stated that “[i]f, after [Weber] reaches
maximum medical improvement, the parties are unable to agree
on the extent, if any, of permanent disability or on [Weber’s]
entitlement to vocational rehabilitation services, either party
may file a further petition herein for the determination of
such issues.”
On May 16, 2008, Weber filed the compensation award with
the district court for Douglas County and commenced garnish-
ment proceedings on June 10. The garnishment proceedings
were brought against UMB Bank. Weber alleged that UMB
Bank held funds belonging to eMC, which was the workers’
compensation insurer for Gas ’N Shop at the time of Weber’s
injury. In the garnishment proceeding, Weber claimed that she
was owed $184,875, representing temporary total disability
since 1994.
In response to the garnishment complaint, appellees filed a
motion to dismiss. In their motion, they asserted seven affirma-
tive defenses: (1) The compensation award was a conditional
judgment and wholly void; (2) the compensation award was
dormant; (3) appellees had complied with all terms of the
award; (4) Weber’s claim was barred by the statute of limita-
tions; (5) Weber’s claim was barred by res judicata and issue
preclusion; (6) Weber’s claim was barred by estoppel, laches,
acquiescence, inexcusable neglect, and unclean hands; and (7)
Weber’s claim violated appellees’ rights to due process.
An evidentiary hearing was held on the motion. evidence was
presented to establish that eMC received from Weber’s treating
physician a letter dated March 9, 1994, stating that Weber had
reached maximum medical improvement as of January 18,
1994. The physician gave Weber a 10-percent permanent dis-
ability rating to her right lower extremity. Upon receipt of this
information, eMC sent Weber’s attorney a draft in the amount
of $18,396.47, representing 721⁄7 weeks of temporary total dis-
ability benefits from September 1, 1992, through January 18,
1994. eMC also sent Weber’s attorney a draft in the amount of
298 	280 NeBrASKA rePOrTS

$2,550, representing 10 weeks of permanent partial disability
benefits at the rate of $255 per week for an additional 111⁄2
weeks based upon the 10-percent disability rating.
eMC received from Weber’s treating physician a second
report dated March 31, 1995. The physician revised Weber’s
disability rating to 20 percent based on ongoing problems with
her knee. Upon receipt of this report, eMC sent Weber’s attor-
ney a second letter detailing the payments it would make based
on this report. Appellees’ evidence showed that in total, eMC
paid Weber $18,396.47 in temporary total disability benefits
for the period of September 1, 1992, through January 18, 1994;
$5,500.61 in permanent partial disability benefits for the period
of January 19 through June 18, 1994; $5,100 in temporary total
disability benefits for the period of July 15 through December
1, 1994; and $5,464.40 in permanent partial disability benefits
for the period of December 2, 1994, through April 30, 1995.
eMC also paid various medical and hospital expenses incurred
by Weber between 1993 and 2008.
Weber did not dispute the amount paid to her until January
2008, at which time Weber’s attorney advised eMC that Weber
was claiming additional disability benefits, penalties, interest
and attorney fees pursuant to the 1993 award.
After the hearing, the district court entered an order granting
appellees’ motion to dismiss the garnishment proceeding. The
district court based its decision primarily on the conclusion
that in April 2000, the award became dormant pursuant to Neb.
rev. Stat. § 25-1515 (reissue 2008).
On appeal, in Weber I, this court reversed the district court’s
order and remanded the cause with directions. We initially con-
cluded that the award was sufficiently definite to be enforce-
able and was therefore not a conditional judgment. We further
concluded that the award was not dormant. In Weber I, we did
not address the remaining affirmative defenses raised by appel-
lees because the district court had not ruled on these defenses.
Instead, we reversed, and remanded to the district court to rule
on the remaining defenses on the existing record unless the
parties agreed to expand the record.
On remand, the court held a hearing on August 27, 2009. In
an order filed December 2, the district court granted appellees’
WeBer v. GAS ’N ShOP 	299
Cite as 280 Neb. 296

motion to dismiss. The December 2 order is the subject of the
current appeal. In its order, the district court concluded that
appellees should have sought a modification of the 1993 award
under Neb. rev. Stat. § 48-141 (Supp. 2009) before converting
from temporary to permanent benefits. The court also made
numerous findings, including that eMC had paid the amounts
recited earlier in this opinion pursuant to the 1993 award.
Notwithstanding these findings, the district court concluded
that the garnishment proceedings were barred by the 2-year
statute of limitations found at § 48-137 and granted the motion
to dismiss on this basis.
In connection with its statute of limitations analysis, the
court reasoned that between July 9, 1997, and December 17,
1999, a period of 2 years 5 months, appellees did not make
any payments for medical services on Weber’s behalf. On
December 17, appellees resumed making payments for medical
services on Weber’s behalf and continued to make such pay-
ments through August 3, 2006. The court concluded “from the
applicable statute and the cases cited” in its order, that Weber
“would have 2 years from the date of the last payment she
received from [appellees],” which date “would approximately
have been July 9, 1999,” and that “[a]ny claim filed after
July 9 . . . would be barred.” Weber appeals, and appellees
cross-appeal.
III. ASSIGNMeNTS OF errOr
1. A ssignment of error on A ppeAl
Weber claims that the district court erred as a matter of law
when it concluded that § 48-137 barred a claim made more
than 2 years after the last payment of compensation where the
compensation was paid pursuant to an award from the Workers’
Compensation Court.
2. A ssignments of error on cross -A ppeAl
Appellees claim that the district court erred (1) in ruling
that appellees were required to seek modification of the award
pursuant to § 48-141 before converting from temporary to per-
manent disability benefits and (2) in failing to grant appellees’
300 	280 NeBrASKA rePOrTS

motion to dismiss on the ground that they had complied with
all of the terms of the 1993 award.
IV. STANDArD OF reVIeW
[1] Statutory interpretation is a matter of law in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the trial court. City of Falls City v. Nebraska
Mun. Power Pool, 279 Neb. 238, 777 N.W.2d 327 (2010).
V. ANALYSIS
1. A ppeAl
(a) The District Court erred When It Concluded That
Weber’s Claim Asserted in the Garnishment
Proceeding Was Barred by the 2-Year
Limitation in § 48-137
Weber claims that the district court erred as a matter of law
when it concluded that her claim for further workers’ compen-
sation benefits and execution of garnishment was barred by the
2-year limitation in § 48-137. We agree with Weber that the
district court erred in this conclusion and erred in dismissing
her garnishment proceeding on this basis.
Section 48-137 provides as follows:
In case of personal injury, all claims for compensation
shall be forever barred unless, within two years after the
accident, the parties shall have agreed upon the compensa-
tion payable under the Nebraska Workers’ Compensation
Act, or unless, within two years after the accident, one of
the parties shall have filed a petition as provided in sec-
tion 48-173. In case of death, all claims for compensation
shall be forever barred unless, within two years after the
death, the parties shall have agreed upon the compensa-
tion under the Nebraska Workers’ Compensation Act, or
unless, within two years after the death, one of the parties
shall have filed a petition as provided in section 48-173.
When payments of compensation have been made in any
case, such limitation shall not take effect until the expira-
tion of two years from the time of the making of the last
WeBer v. GAS ’N ShOP 	301
Cite as 280 Neb. 296

payment. In the event of legal disability of an injured
employee or his or her dependent such limitation shall not
take effect until the expiration of two years from the time
of removal of such legal disability.
The district court reasoned that under § 48-137, Weber had
2 years from the last payment made by appellees on July 3,
1997, to assert a claim for the compensation she sought in
this garnishment proceeding. The district court’s reasoning is
contrary to our decision in Foote v. O’Neill Packing, 262 Neb.
467, 632 N.W.2d 313 (2001). In Foote, we considered a claim
for medical expenses asserted greater than 2 years after the
last payment made pursuant to an award previously entered
on a worker’s petition. We concluded that given the statutory
language and the continuing jurisdiction of the compensation
court with respect to its order awarding compensation, the 2-
year limitation in § 48-137 was not applicable. Although the
2-year limitation is applicable in the case of voluntary pay-
ments made in the absence of a petition, we concluded that the
2-year limitation was not a bar where the worker had previ-
ously filed a timely petition.
We agree with Weber that the district court erred when
it concluded that Weber’s garnishment proceeding should be
dismissed based on a purported failure to seek further compen-
sation within 2 years after appellees made the last payment.
however, notwithstanding this error in reasoning, because we
conclude that dismissal was warranted on another basis, this
error does not result in a reversal.
2. cross -A ppeAl
(a) The District Court erred in ruling That eMC
and Gas ’N Shop Were required to Seek
a Modification Under § 48-141
On cross-appeal, appellees claim that the district court erred
when it ruled that appellees were required under § 48-141 to
obtain an order modifying the 1993 award prior to convert-
ing payment of benefits from temporary total disability to
permanent partial disability. In response, Weber asserts that
the district court was correct and that, in the absence of a
modification, she is entitled to a continuation of temporary
302 	280 NeBrASKA rePOrTS

benefits since 1993 which she sought by way of this garnish-
ment proceeding filed in 2008 in the amount of $184,875. We
conclude that given the language of the 1993 award, appellees’
payment of permanent partial disability benefits upon receipt
of the 1994 letter from Weber’s physician—stating Weber’s
maximum medical improvement and disability rating—was
a performance of the obligations imposed by the 1993 award
rather than a modification of the 1993 award, and that there-
fore, no modification proceeding under § 48-141 was required.
We agree with appellees that the district court’s ruling to the
contrary was error.
Section 48-141, which is relevant to our resolution of appel-
lees’ first assignment of error, provides as follows:
All amounts paid by an employer or by an insurance
company carrying such risk, as the case may be, and
received by the employee or his or her dependents by
lump-sum payments pursuant to section 48-139 shall be
final and not subject to readjustment if the lump-sum
settlement is in conformity with the Nebraska Workers’
Compensation Act, unless the settlement is procured by
fraud, but the amount of any agreement or award pay-
able periodically may be modified as follows: (1) At any
time by agreement of the parties with the approval of
the Nebraska Workers’ Compensation Court; or (2) if the
parties cannot agree, then at any time after six months
from the date of the agreement or award, an application
may be made by either party on the ground of increase
or decrease of incapacity due solely to the injury or that
the condition of a dependent has changed as to age or
marriage or by reason of the death of the dependent.
In such case, the same procedure shall be followed as
in sections 48-173 to 48-185 in case of disputed claim
for compensation.
This case involves an award payable periodically. Weber
asserts, and the district court concluded, that because convert-
ing from a temporary amount to a permanent amount was a
change in “the amount of any . . . award” under the language
of § 48-141, a modification was necessary under that stat-
ute before appellees could properly change periodic payment
WeBer v. GAS ’N ShOP 	303
Cite as 280 Neb. 296

amounts. Statutory interpretation is a matter of law in connec-
tion with which an appellate court has an obligation to reach
an independent, correct conclusion irrespective of the determi-
nation made by the trial court. City of Falls City v. Nebraska
Mun. Power Pool, 279 Neb. 238, 777 N.W.2d 327 (2010). As
a matter of law, we conclude that the amount of the award as
understood under § 48-141 did not change and that no modi-
fication proceeding was necessary. We note further that both
Weber and the district court relied on certain cases referred
to later in this opinion; however, we conclude that the cases
relied on are factually distinguishable and that reliance thereon
was misplaced.
The district court and Weber characterize the change in
benefits in this case from temporary total to permanent partial
as an improper unilateral cessation of temporary total benefits.
To the contrary, the change in disability payments was not a
unilateral act by appellees, but instead was both required and
outlined under the 1993 award. The 1993 award provided in
relevant part:
IX.
. . . .
IT IS ThereFOre OrDereD, ADJUDGeD AND
DeCreeD as follows:
1. [Weber] have and recover of [Gas ’N Shop] and
[eMC] the sum of $255.00 per week for temporary total
disability from September 1, 1992, through September 1,
1993, and thereafter and in addition thereto a like sum
per week for so long in the future as [Weber] remains
temporarily totally disabled as a result of said acci-
dent and injury. When [Weber] reaches maximum medi-
cal improvement, she shall be entitled to the statutory
amounts for any residual disability.
2. [Gas ’N Shop] and [eMC] pay the medical and hos-
pital reimbursement sums set forth in Paragraph V above.
3. A further hearing may be had herein as set forth in
Paragraph VIII above.
4. The amended petition of [Weber] as against the
defendant 	Milwaukee 	Insurance 	Company 	be 	and 	is
hereby dismissed.
304 	280 NeBrASKA rePOrTS

Paragraph VIII, to which reference is made in paragraph IX
(3), provided that “[i]f, after [Weber] reaches maximum medi-
cal improvement, the parties are unable to agree on the extent,
if any, of permanent disability or on [Weber’s] entitlement to
vocational rehabilitation services, either party may file a fur-
ther petition herein for the determination of such issues.”
By its terms, the 1993 award directed appellees to pay
temporary total disability until such time as Weber reached
maximum medical improvement and to thereafter pay “statu-
tory amounts” for “residual disability.” “residual disability”
undisputedly refers herein to permanent partial disability, and
the right knee injury involves a scheduled member. The award
provided a roadmap, and upon receipt of the disability rating
supplied by Weber’s physician, the dollar amounts could be
objectively determined by reference to the workers’ compensa-
tion statute which was incorporated by reference. The award
was sufficiently definite, as we concluded in Weber I.
Taken as a whole, the award directed the dollar amounts
of temporary total disability to be paid, and upon maximum
medical improvement and receipt of a permanent disability rat-
ing, appellees were directed to apply the statutes to determine
the dollar amounts to be paid for the right knee as permanent
partial benefits thereafter. Because Weber supplied the maxi-
mum medical improvement information and the permanent
disability rating, and given that the right knee injury is a
scheduled member injury, appellees had only to do the math,
which they did, and pay the resultant permanent partial dis-
ability amounts as directed in the award. No disagreement was
occasioned or further petition filed when appellees converted
from temporary total to permanent partial benefits in 1994, as
they were directed to do in the 1993 award. This conversion
was not a modification of an “amount of any award” under
§ 48-141, but, to the contrary, was in compliance and in obedi-
ence to the amounts inherent in the 1993 award. Because no
modification of the 1993 award was implicated when appellees
converted from paying temporary total to permanent partial
disability, appellees were not required to seek a modification
under § 48-141.
WeBer v. GAS ’N ShOP 	305
Cite as 280 Neb. 296

Our conclusion that, under the terms of the 1993 award, no
modification proceeding was necessary under § 48-141 is con-
sistent with Davis v. Crete Carrier Corp., 274 Neb. 362, 740
N.W.2d 598 (2007). In Davis, the rehearing award stated that
when the employee’s
“total disability ceases, he shall be entitled to the statu-
tory amounts of compensation for any residual permanent
partial disability due to this accident and injury” [and that
when the employee’s] “total disability ceases if thereafter
the parties cannot agree on the extent of [employee’s] dis-
ability, if any, then a further hearing may be had herein on
the application of either party.”
274 Neb. at 372, 740 N.W.2d at 606. Later, the parties in Davis
presented a stipulation which was ordered under which the
employer paid the employee’s temporary total benefits while
the employee underwent vocational rehabilitation. Because
the employee’s physician later stated that the employee had
reached maximum medical improvement and the employee
had completed vocational rehabilitation, the employer ceased
paying temporary total disability and paid permanent partial
disability for the remainder of the statutory timeframe. We con-
cluded upon these facts that no modification was necessary to
terminate the employee’s temporary total benefits and to begin
payment of his permanent partial disability benefits.
In reaching our conclusion in Davis, we distinguished Starks
v. Cornhusker Packing Co., 254 Neb. 30, 573 N.W.2d 757
(1998), and Hagelstein v. Swift-Eckrich, 261 Neb. 305, 622
N.W.2d 663 (2001). In the present case, Weber and the district
court relied on Starks and Hagelstein. We again distinguish
Starks and Hagelstein. Both Starks and Hagelstein involved
the unilateral termination of benefits by an employer, without
court direction and without first seeking a modification. We
disapproved of the practice. In Davis, we noted that, unlike
Starks and Hagelstein, the compensation court in Davis, as in
the present case, had directed the cessation of temporary bene-
fits and conversion to permanent benefits upon the happening
of an identified event, and further provided that a dissatisfied
party could seek further clarification from the compensation
court. The cessation of temporary benefits herein, as in Davis,
306 	280 NeBrASKA rePOrTS

and the further payment of permanent benefits were done with
compensation court approval pursuant to existing awards and
orders. reliance on Starks and Hagelstein by Weber and the
district court was misplaced.
Because appellees were following the 1993 award when
converting from temporary total to permanent partial bene-
fits, there was no change in the amount of the award under
§ 48-141. Appellees were not required to seek a modification
of that award. had Weber objected to such conversion, under
paragraph VIII of the 1993 award, she was entitled to—but
failed to—dispute that conversion by filing a “further petition”
in the Workers’ Compensation Court. We agree with appellees
that they were not obliged to seek a purported modification
under § 48-141 and that the district court erred when it ruled
to the contrary.
(b) The District Court erred When It Failed to Dismiss
on the Ground That Appellees had Complied
With All Terms of the Award
On cross-appeal, appellees claim that the district court erred
when it failed to grant appellees’ motion to dismiss the gar-
nishment proceeding on the ground appellees had complied
with all terms of the 1993 award and that therefore, UMB
Bank did not hold funds belonging to eMC to which Weber
was entitled. We find merit to this assignment of error and
conclude that, for reasons other than those given by the district
court, Weber’s garnishment proceeding should be dismissed on
this basis.
[2,3] We have held that a garnishment action is an appropriate
proceeding to enforce an award of the Workers’ Compensation
Court. See ITT Hartford v. Rodriguez, 249 Neb. 445, 543
N.W.2d 740 (1996). In a garnishment proceeding, the issue
is whether the garnishee is indebted to the garnishor or had
property or credits of the garnishor in its possession or under
its control at the time it was served with notice of the garnish-
ment. See Neb. rev. Stat. § 25-1030.02 (reissue 2008).
In Weber I, we reversed, and remanded for further pro-
ceedings and directed the district court to consider appellees’
remaining defenses on the existing record unless the parties
WeBer v. GAS ’N ShOP 	307
Cite as 280 Neb. 296

agreed to reopen and expand the record. Upon remand, the
record was not expanded and the district court in its order filed
on December 2, 2009, now on appeal, made findings on the
existing record.
In its findings, the district court relied on the affidavit of a
senior claims representative of eMC detailing the disability
amounts eMC had paid to Weber. The district court found
that eMC had paid temporary total disability benefits fol-
lowed by permanent partial disability benefits for the time
periods set forth earlier in this opinion and that the permanent
partial disability amount was based on the impairment rating
supplied by Weber’s physician. Notwithstanding its factual
finding that eMC had paid the amounts directed in the 1993
award, the district court concluded that eMC was required to
seek a modification of the award under § 48-141 prior to con-
verting benefits from temporary total disability to permanent
partial disability, and in view of this erroneous conclusion, it
could not find that eMC had complied with the 1993 award.
As discussed earlier in this opinion, no modification of the
award was required in this case before eMC ceased paying
temporary total disability and began paying permanent partial
disability, and the district court therefore erred when it failed
to find merit to the defense that eMC had complied with the
terms of the 1993 award.
Because the factual findings of the district court indicate
that eMC has in fact complied with the 1993 award, nothing is
owed to Weber by eMC and UMB Bank does not hold funds of
eMC to which Weber is entitled. As urged in appellees’ cross-
appeal, the district court erred when it failed to grant appellees’
motion to dismiss based on the ground that appellees had com-
plied with the terms of the award.
VI. CONCLUSION
As asserted in Weber’s appeal, the district court erred when
it concluded that her claim asserted in this garnishment pro-
ceeding was barred by the 2-year limitation in § 48-137. As
asserted in appellees’ cross-appeal, given the language of the
1993 award, the district court erred when it concluded that
appellees were required by § 48-141 to seek a modification
308 	280 NeBrASKA rePOrTS

before converting disability benefit payments from temporary
total disability to permanent partial disability. As asserted in
appellees’ cross-appeal, the district court erred when it failed to
grant appellees’ motion to dismiss on the ground that appellees
had complied with all the terms of the 1993 award. Although
our reasoning differs from that of the district court, we affirm
its order dismissing Weber’s summons and order of garnish-
ment and interrogatories with prejudice.
A ffirmed.
connolly, J., not participating.
WeBer v. GAS ’N ShOP 	309
Cite as 280 Neb. 296