Boring v. Zoetis LLC, 309 Neb. 270

Background

Employee Martin Boring alleged a work-related right-upper-extremity injury on February 7, 2017, and sought compensation, medical expenses, waiting-time penalties, interest, and attorney fees under Neb. Rev. Stat. § 48-125.
Zoetis’ answer admitted paragraph 3 (that Boring sustained a work accident and injury on Feb. 7, 2017) but denied the allegations about the extent of compensation and penalties in paragraphs 5 and 6.
At trial the parties submitted a stipulation tying the agreed award to a WCC finding that Boring suffered a compensable accident; the trial focused on causation and the nature/extent of injury, with competing medical testimony.
The WCC found a compensable injury and awarded benefits, penalties, and $15,333 in attorney fees, reasoning that Zoetis’ judicial admission eliminated any reasonable controversy.
The Nebraska Court of Appeals affirmed the benefits awards but reversed and vacated the penalties and attorney fees, finding the record supported reasonable but opposite conclusions on causation and extent of injury.
The Nebraska Supreme Court affirmed the Court of Appeals: the WCC erred by relying solely on the now-relieved judicial admission rather than on the evidence; as a matter of law the trial record, disregarding the admission, permits only the conclusion that a reasonable controversy existed, so penalties/fees were improper.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a judicial admission in the defendant’s answer precludes a finding of a "reasonable controversy" under § 48-125 and thus mandates penalties/fees	Boring: Heesch controls; Zoetis’ admission to paragraph 3 waived controversy as to compensability, so penalties/fees are proper	Zoetis: Admission was superseded by trial stipulation and by trying causation; pleadings were implicitly amended by consent (Risor); the matter remained in controversy	Held: WCC erred to base no-reasonable-controversy finding solely on the admission; the case was tried on the merits, so the court must assess controversy from the evidence; here reasonable controversy existed and penalties/fees were vacated
Standard of review for whether a "reasonable controversy" exists	Boring: defer to WCC factual findings	Zoetis: appellate review may decide where only one inference is possible from undisputed trial facts	Held: Existence of a reasonable controversy is ordinarily factual (clear-error review), but if no reasonable factfinder could reach a contrary conclusion, appellate court may decide as a matter of law; here, disregarding admissions, only conclusion is reasonable controversy
Application of § 48-125 to medical expenses and waiting-time penalty	Boring: sought penalties/fees for nonpayment of medical and indemnity benefits	Zoetis: waiting-time penalty does not apply to medical expense delinquency; only indemnity qualifies	Held: Court reiterates precedent: waiting-time penalty applies to periodic indemnity benefits only; attorney fees may be awarded for medical expense disputes but penalties for medical payments are not authorized

Key Cases Cited

Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020) (defines when a "reasonable controversy" exists under § 48-125)
Bower v. Eaton Corp., 301 Neb. 311, 918 N.W.2d 249 (2018) (discusses employer’s duty to promptly pay undisputed amounts and legitimate excuses for delay)
Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009) (WCC not bound by formal procedures; pleadings may be implicitly amended where issues are tried by consent)
Heesch v. Swimtastic Swim School, 20 Neb. App. 260, 823 N.W.2d 211 (2012) (Court of Appeals holding that an employer’s admission in answer can be a binding judicial admission eliminating controversy)
VanKirk v. Central Community College, 285 Neb. 231, 826 N.W.2d 277 (2013) (waiting-time penalty relates only to delinquent indemnity benefits; statute does not authorize waiting-time penalty for medical expenses)
Saberzadeh v. Shaw, 266 Neb. 196, 663 N.W.2d 612 (2003) (judicial admissions ordinarily binding unless court timely relieves party of consequences)