Bortolotti v. Universal Terrazzo & Tile Co., 304 Neb. 219

Terry Bortolotti was president and sole shareholder of Universal Terrazzo & Tile Co. (an S corporation); he was injured in June 2013.
Pleadings variably alleged different weekly earnings (early petition: ~$1,300; third amended petition: $3,625); Universal denied those allegations.
Record evidence included a 2013 Schedule E showing corporate "qualified production activities income" and a line showing $3,950 in "wages," payroll journal entries totaling $3,950, and Bortolotti’s testimony that he took a weekly draw of $3,625 and paid $9,849.38 out of pocket for medical care (Exhibit 41).
The Workers’ Compensation Court found the injury compensable, credited Bortolotti, used a superseded pleading allegation ($1,399.45/wk) to compute average weekly wage (awarding maximum benefit), and awarded $9,849.38 in out‑of‑pocket medical expenses despite rejecting Exhibit 41 for noncompliance with the rule for itemized bills.
The Court of Appeals reversed or modified: it rejected the compensation court’s wage finding (using payroll evidence showing $3,950 and awarding the statutory minimum $49/wk) and vacated the medical‑expense reimbursement.
The Nebraska Supreme Court granted further review, affirmed the Court of Appeals on average weekly wage, but reversed in part to reinstate the $9,849.38 out‑of‑pocket medical expense award.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether S‑corp net profits or a shareholder’s draw may be used to compute "wages" for average weekly wage	Bortolotti: his weekly draw/net income (including Schedule E figures) reflects his wages and justifies the maximum statutory benefit	Universal: pleadings are not evidence; payroll records showing $3,950 are the employee wages and S‑corp profits/shareholder draws should not be treated as wages	Mixed question of fact and law; §48‑126 requires focus on money rate recompensing services. Payments solely due to shareholder status are not "wages." Substantial evidence supported using payroll $3,950 -> statutory minimum $49/wk (affirmed Court of Appeals)
Whether Bortolotti proved $9,849.38 in out‑of‑pocket medical expenses	Bortolotti: his testimony and Exhibit 41 show he personally paid $9,849.38 and should be reimbursed	Universal: Exhibit 41 was noncompliant and the court had no admissible basis to award reimbursement	Compensation court credited Bortolotti’s testimony; on deferential review testimony plus the context of Exhibit 41 sufficed. Award of $9,849.38 reinstated

Hull v. Aetna Ins. Co., 249 Neb. 125, 541 N.W.2d 631 (1996) (discusses computation of average weekly wage for self‑employed claimants)
Bituminous Casualty Corp. v. Deyle, 225 Neb. 82, 402 N.W.2d 859 (1987) (no wages where claimant received no cash wages and benefits/profits were not reported as salary)
Elrod v. Prairie Valley, 214 Neb. 697, 335 N.W.2d 317 (1983) (treatment of average weekly wage as involving fact and law elements)
P & L Const. Co., Inc. v. Lankford, 559 S.W.2d 793 (Tenn. 1978) (use of comparable employee wages in closely held corporation context)
Paoletti v. Industrial Com’n, 279 Ill. App. 3d 988, 665 N.E.2d 507 (1996) (refusing to include net business profit as "actual earnings" for average wage)
Mullen v. W.C.A.B. (Mullen’s Truck), 945 A.2d 813 (Pa. Commw. Ct. 2008) (treating gross vs. net income as a factual issue for the workers’ compensation judge)