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finality; periodic payment; modification.
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
payable 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
- Laws 1913, c. 198, § 42, p. 597;
- R.S.1913, § 3683;
- Laws 1917, c. 85, § 18, p. 213;
- Laws 1921, c. 122, § 1, p. 527;
- C.S.1922, § 3065;
- Laws 1929, c. 81, § 2, p. 274;
- C.S.1929, § 48-142;
- Laws 1935, c. 57, § 27, p. 201;
- C.S.Supp.,1941, § 48-142;
- R.S.1943, § 48-141;
- Laws 1975, LB 187, § 6;
- Laws 1986, LB 811, § 59;
- Laws 1989, LB 410, § 2;
- Laws 1993, LB 757, § 12;
- Laws 2009, LB630, § 8.Effective Date: May 27, 2009
1. Modification of award2. Attorney's fees3. Miscellaneous1. Modification of award
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
- 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
- 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
- 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
- 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
- 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.
- 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
- 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).
2. Attorney's fees
- 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).
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
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.