Boring v. Zoetis LLC
309 Neb. 270
| Neb. | 2021Background
- Employee Martin Boring filed a WCC petition alleging a work-related right-shoulder injury on February 7, 2017, and sought compensation, medical expenses, waiting-time penalty, interest, and attorney fees under § 48-125.
- Zoetis’ answer admitted paragraph 3 (that Boring sustained a work accident/injury on Feb. 7, 2017) but denied allegations about the extent of compensation and denied paragraph 6 (including the absence of a reasonable controversy).
- At trial the parties submitted a stipulation providing that specified benefits would be awarded "should the WCC find [Boring] suffered a compensable accident and injury," and the case was tried on causation/nature and extent of the injury with conflicting medical testimony.
- The WCC found a compensable injury and awarded benefits, and—relying on Zoetis’ pleading admission—awarded waiting-time penalties and attorney fees under Neb. Rev. Stat. § 48-125.
- The Court of Appeals affirmed the benefits awards but reversed and vacated the penalties/attorney-fee award, concluding a reasonable controversy existed because the nature/extent of the injury was disputed at trial.
- The Nebraska Supreme Court affirmed the Court of Appeals: the WCC erred by basing no-reasonable-controversy finding solely on the admission (which was effectively superseded by the stipulation and the trial), and the record—disregarding the admission—shows a reasonable controversy as a matter of law, so § 48-125 relief was not warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Zoetis’ admission in its answer (paragraph 3) eliminated any "reasonable controversy" and thereby entitles Boring to penalties and attorney fees under § 48-125 | Boring: The admission was a judicial admission of basic compensability, so no reasonable controversy existed and § 48-125 penalties/fees apply | Zoetis: The admission did not concede the nature/extent of injury; the case was tried on causation and the stipulation and evidence superseded any pleading admission | Held: The WCC erred to rely solely on the answer admission. Because the case was tried on compensability and the admission was effectively superseded, the court must assess reasonable controversy from the trial evidence; here a reasonable controversy existed, so § 48-125 relief was not justified |
| Proper standard and scope of appellate review when trial record contains disputed evidence about compensability | Boring: He relied on Heesch to argue a pleading admission controls | Zoetis: Trial by consent and implicit amendment (Risor, Hall) permit treating compensability as tried; appellate court should review whether evidence permits only one conclusion on reasonable controversy | Held: Whether a reasonable controversy exists is a factual question reviewed for clear error, but where the record permits only one inference (that a reasonable controversy exists) the appellate court may decide as a matter of law; here only the conclusion that a reasonable controversy existed is permissible, so reversal of penalties/fees affirmed |
Key Cases Cited
- Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020) (defines when a "reasonable controversy" bars § 48-125 relief)
- Bower v. Eaton Corp., 301 Neb. 311, 918 N.W.2d 249 (2018) (discusses employer duty to promptly pay undisputed amounts and genuine doubt as sole excuse for delay)
- Heesch v. Swimtastic Swim School, 20 Neb. App. 260, 823 N.W.2d 211 (Neb. App. 2012) (discusses effect of judicial admissions on reasonable controversy analysis)
- Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009) (WCC not bound by formal pleading rules; pleadings may be implicitly amended when issues are tried by consent)
- Saberzadeh v. Shaw, 266 Neb. 196, 663 N.W.2d 612 (2003) (judicial admission ordinarily final unless court relieves party; opposing party may choose whether to invoke admission at trial)
- VanKirk v. Central Community College, 285 Neb. 231, 826 N.W.2d 277 (2013) (waiting-time penalty limited to delinquent periodic disability/indemnity benefits; statute does not authorize penalty for medical expense delays)