Annotations

• 1. Modification of award

• 2. Attorney's fees

• 3. Miscellaneous

• 1. Modification of award

• To establish a change in incapacity under this section, an applicant must show a change in impairment and a change in disability. In a workers' compensation context, impairment refers to a medical assessment, whereas disability relates to employability. Rader v. Speer Auto, 287 Neb. 116, 841 N.W.2d 383 (2013).

• The party seeking modification has the burden to prove the allegations in its petition to modify the running award of temporary total disability benefits. Visoso v. Cargill Meat Solutions, 285 Neb. 272, 826 N.W.2d 845 (2013).

• If future medical expenses are not a part of a final award, the judgment is final, and any future claims for medical expenses related to the same accident are absolutely barred unless the requirements of this section are met. Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002).

• Under this section, the applicant for modification must prove by a preponderance of the evidence that the increase in his incapacity was due solely to the injury resulting from the original accident. In proving an increase in incapacity, the applicant must prove by a preponderance of the evidence that there now exists a material and substantial change for the worse in the applicant's condition—a change in circumstances that justifies a modification, distinct and different from that for which an adjudication had been previously made. Gomez v. Kenney Deans, Inc., 232 Neb. 646, 441 N.W.2d 632 (1989).

• Before an employee may obtain a modification of an agreement or award for periodic payment of compensation, increasing the compensation paid on account of a previously compensable injury, the employee must prove, by a preponderance of the evidence, an increase in incapacity due solely to the previous compensable injury. Grauerholz v. Cornhusker Packing Co., 230 Neb. 641, 432 N.W.2d 831 (1988).

• The provisions in this section which bar proceedings to modify an award of compensation payable periodically over a period of less than six months are invalid as an unreasonable classification. Snyder v. IBP, Inc., 229 Neb. 224, 426 N.W.2d 261 (1988).

• A proceeding under section 48-141, R.R.S.1943, to modify a previous award of the compensation court to recover additional compensation for an increase in incapacity can only be brought within two years of the time the employee knows, or is chargeable with knowledge, that his condition has materially changed and there is such a substantial increase in his disability as to entitle him to additional compensation. O'Connor v. Anderson Bros. Plumbing & Heating, 207 Neb. 641, 300 N.W.2d 188 (1981).

• An award which is payable periodically for six months or more is subject to modification on the ground of increase of incapacity due solely to the injury. Camp v. Blount Bros. Corp., 195 Neb. 459, 238 N.W.2d 634 (1976).

• The amount payable periodically by agreement or award may be modified if recipient's condition changes thereafter. Shotwell v. Industrial Builders, Inc., 187 Neb. 320, 190 N.W.2d 624 (1971).

• Modification is limited to increase or decrease that has occurred since award of compensation was rendered. Pavel v. Hughes Brothers, Inc., 167 Neb. 727, 94 N.W.2d 492 (1959).

• Where amount of award is payable periodically for six months or more, application for increase in award may be made. Peek v. Ayers Auto Supply, 160 Neb. 658, 71 N.W.2d 204 (1955).

• Statute restricts basis for modification to increase or decrease of incapacity since original award. Peek v. Ayers Auto Supply, 157 Neb. 363, 59 N.W.2d 564 (1953).

• Right to maintain proceedings for modification is recognized. Dietz v. State, 157 Neb. 324, 59 N.W.2d 587 (1953).

• Basis for modification is limited to increase or decrease of incapacity which has occurred since the award and is due to the injury. Riedel v. Smith Baking Co., 150 Neb. 28, 33 N.W.2d 287 (1948).

• Basis for modification of award is limited to increase or decrease of incapacity due solely to injury. Ludwickson v. Central States Electric Co., 142 Neb. 308, 6 N.W.2d 65 (1942).

• Upon application to modify an award of compensation under this section, petitioner must establish that the disability has increased, decreased, or terminated. Kucera v. Village of Prague, 141 Neb. 180, 3 N.W.2d 201 (1942).

• Proceeding to recover additional compensation for increased disability must be brought within one year from time employee is chargeable with knowledge of his right to additional compensation. Scott v. State, 137 Neb. 348, 289 N.W. 367 (1939).

• Employee must establish a material change for the worse to entitle him to additional compensation. Huff v. Omaha Cold Storage Co., 136 Neb. 907, 287 N.W. 764 (1939).

• This section makes provision for situation where employee's injuries cause total permanent disability at some future date after award. Micek v. Omaha Steel Works, 136 Neb. 843, 287 N.W. 645 (1939).

• Judgment is not final in sense that it can never be inquired into again where increase or decrease of incapacity can be shown. Great Western Sugar Co. v. Hewitt, 127 Neb. 790, 257 N.W. 61 (1934).

• Application to modify follows same procedure as in case of dispute except that where award is made by district court, application should be filed in that court. Metropolitan Dining Room v. Jensen, 126 Neb. 765, 254 N.W. 405 (1934).

• Construing this with preceding section, award is subject to modification if it covers period over six months, part of which has expired before award was made. Harmon v. J. H. Wiese Co., 121 Neb. 137, 236 N.W. 186 (1931).

• Application for modification of award for increase or decrease of incapacity may be made at any time after six months from date of award. Updike Grain Co. v. Swanson, 103 Neb. 872, 174 N.W. 862 (1919).

• Lump sum settlements are final, and not subject to modification as in case of periodic payments. Bailey v. United States Fidelity & Guaranty Co., 99 Neb. 109, 155 N.W. 237 (1915).

• To establish a change in incapacity under this section, an applicant must show a change in impairment and a change in disability. Moss v. C&A Indus., 25 Neb. App. 877, 915 N.W.2d 615 (2018).

• Whether an applicant's incapacity has increased under the terms of this section is a finding of fact. Moss v. C&A Indus., 25 Neb. App. 877, 915 N.W.2d 615 (2018).

• Sections 48-139 and 48-140 and this section emphasize the finality of a lump-sum settlement and only contemplate "readjustment" if the "settlement" itself is procured by fraud; the statutes do not speak to readjusting underlying "awards" allegedly procured by fraud. Hunt v. Pick's Pack-Hauler, 23 Neb. App. 278, 869 N.W.2d 723 (2015).

• A court may modify a workers' compensation award based on a change in incapacity due to a mental condition arising out of a work-related physical injury if the change is due solely to the work-related injury. Jurgens v. Irwin Indus. Tool Co., 20 Neb. App. 488, 825 N.W.2d 820 (2013).

• An employee seeking temporary total disability benefits must file a petition for modification as soon as she becomes totally disabled. Jurgens v. Irwin Indus. Tool Co., 20 Neb. App. 488, 825 N.W.2d 820 (2013).

• Where the original award of benefits did not award vocational rehabilitation services, the applicant needed to comply with the requirements of this section and allege and prove that he had suffered an increase in incapacity since the entry of the original award in order to obtain the requested vocational rehabilitation services. McKay v. Hershey Food Corp., 16 Neb. App. 79, 740 N.W.2d 378 (2007).

• In order to achieve a modification of a lump-sum payment that has been approved by court order pursuant to section 48-139 on the ground of increased or decreased incapacity, a party must make an application on the ground of increase or decrease of incapacity due solely to the injury. Hubbart v. Hormel Foods Corp., 15 Neb. App. 129, 723 N.W.2d 350 (2006).

• In the context of body as a whole injuries, an applicant for modification who must fulfill the requirements set forth in this section by demonstrating a change in incapacity must establish both a change in the employee's physical condition, or impairment, and a change in the employee's disability. Bronzynski v. Model Electric, 14 Neb. App. 355, 707 N.W.2d 46 (2005).

• Lump-sum settlements in workers' compensation actions cannot be modified in the future or be considered when determining future workers' compensation awards, because such awards are "final." Dukes v. University of Nebraska, 12 Neb. App. 539, 679 N.W.2d 249 (2004).

• A workers' compensation award may be modified at any time after 6 months from the date of the agreement or award, following an application made by either party on the ground of increase or decrease of incapacity due solely to the injury. A finding that an applicant's incapacity has increased under the terms of this section is a finding of fact. Sands v. School Dist. of City of Lincoln, 7 Neb. App. 28, 581 N.W.2d 894 (1998).

• 2. Attorney's fees

• Attorney's fees are taxable against insurance carrier on denial of its application to reduce compensation payments. Southern Surety Co. v. Parmely, 121 Neb. 146, 236 N.W. 178 (1931).

• Attorney's fees are allowable in Supreme Court to employee successfully resisting effort to reduce modified award. Harmon v. J. H. Wiese Co., 121 Neb. 137, 236 N.W. 186 (1931).

• 3. Miscellaneous

• The Nebraska Workers' Compensation Act does not provide for a motion for new trial in the Nebraska Workers' Compensation Court. Carter v. Weyerhaeuser Co., 234 Neb. 558, 452 N.W.2d 32 (1990).

• Increase of incapacity must relate to condition for which original award was made, and not dissatisfaction with original award. Wilson Concrete Co. v. Rork, 216 Neb. 447, 343 N.W.2d 764 (1984).

• Remedy is provided to cover future rehabilitation of employee obtaining award of total permanent disability. Rapp v. Hale, 170 Neb. 620, 103 N.W.2d 851 (1960).

• Increase of incapacity must relate to condition for which original award was made. Chadd v. Western Cas. & Sur. Co., 166 Neb. 483, 89 N.W.2d 586 (1958).

• Where employer does not file application on ground of decrease of incapacity, but stops payment of compensation, application for continued compensation is an original action. Rexroat v. State, 142 Neb. 596, 7 N.W.2d 163 (1942).

• Legislature may impose restrictions in nature of time limitations on right created by statute. Park v. School District No. 27, Richardson Cty., 127 Neb. 767, 257 N.W. 219 (1934).