Jacobitz v. Aurora Co-op

                         Nebraska Advance Sheets
	                          JACOBITZ v. AURORA CO-OP	97
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   Even if we accept the finding of the district court that
Brauer admitted he experienced an “adrenaline” rush as a result
of touching J.N., such facts do not constitute proof that the
touch was “for the purpose of sexual arousal or gratification.”
The key issue is not what sensation Brauer experienced after
he touched the child, but, rather, what motivated him to touch
J.N. in the first place. The only evidence of this is Brauer’s
statement that he was reacting to the child’s striking him in the
genitals in an effort to stop such conduct. Of course, the reac-
tion was inappropriate and ill advised, but that does not mean
that it was for the purpose of sexual arousal or gratification.
In my view, there is no evidence in this record upon which
a finder of fact could reasonably conclude beyond a reason-
able doubt that Brauer touched the child for that purpose. His
actions may have constituted negligent child abuse or some
other offense, but not the offense of sexual assault with which
he was charged.
   Wright and Stephan, JJ., join in this dissent.



                       John Jacobitz, appellee, v.
                     Aurora Cooperative, appellant.
                                   ___ N.W.2d ___

                     Filed December 27, 2013.      No. S-13-091.

 1.	 Judgments: Appeal and Error. An appellate court independently reviews ques-
     tions of law decided by a lower court.
 2.	 Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual
     dispute presents a question of law.
 3.	 Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
     jurisdiction of an appeal, the party must be appealing from a final order or
     a judgment.
 4.	 Final Orders: Appeal and Error. Under 

 (Reissue
     2008), an appellate court may review three types of final orders: (1) an order that
     affects a substantial right and that determines the action and prevents a judgment,
     (2) an order that affects a substantial right made during a special proceeding, and
     (3) an order that affects a substantial right made on summary application in an
     action after a judgment is rendered.
 5.	 Workers’ Compensation: Appeal and Error. A party can appeal an order from
     the Workers’ Compensation Court if it affects the party’s substantial right.
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 6.	 Final Orders. Substantial rights under 

 (Reissue 2008)
      include those legal rights that a party is entitled to enforce or defend.
 7.	 Final Orders: Appeal and Error. A substantial right is affected if an order
      affects the subject matter of the litigation, such as diminishing a claim or
      defense that was available to an appellant before the order from which an appeal
      is taken.
  8.	 ____: ____. When multiple issues are presented to a trial court for simultaneous
      disposition in the same proceeding and the court decides some of the issues,
      while reserving other issues for later determination, the court’s determination of
      fewer than all the issues is an interlocutory order and is not a final order for the
      purpose of an appeal.
 9.	 Workers’ Compensation: Final Orders: Legislature: Intent: Appeal and
      Error. Permitting employers to appeal from an adverse ruling before the
      Workers’ Compensation Court has determined benefits is inconsistent with the
      Legislature’s intent to provide prompt benefits to injured workers.
10.	 Workers’ Compensation: Judgments: Final Orders. From the date of this
      decision, a Workers’ Compensation Court’s finding of a compensable injury or its
      rejection of an affirmative defense without a determination of benefits is not an
      order that affects an employer’s substantial right in a special proceeding.

   Appeal from the Workers’ Compensation Court: J. Michael
Fitzgerald, Judge. Appeal dismissed, and cause remanded for
further proceedings.
  Patrick R. Guinan, of Erickson & Sederstrom, P.C., for
appellant.
   Jacob M. Steinkemper, of Brock Law Offices, P.C., L.L.O.,
for appellee.
  Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman,
and Cassel, JJ.
   Connolly, J.
                           SUMMARY
   This workers’ compensation appeal presents a jurisdictional
issue: Did the appellant, Aurora Cooperative (Co-op), appeal
from a final order? In a bifurcated proceeding, the trial court
determined that the appellee, John Jacobitz, was injured in the
scope of his employment. Although the court had reserved the
issue of benefits for later determination, the Co-op appealed.
   Our case law has been inconsistent on the finality of work-
ers’ compensation orders when an employer appeals from an
                  Nebraska Advance Sheets
	                   JACOBITZ v. AURORA CO-OP	99
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adverse ruling. We now clarify that such rulings are not final
and appealable until the trial court determines benefits for the
prevailing claimant. We dismiss the appeal.

                        BACKGROUND
   Jacobitz sustained a traumatic brain injury when he fell off
a flatbed truck driven by Jerry Overturf, the location manager
for the Co-op’s facility in Ong, Nebraska. The Co-op had just
hosted a customer appreciation supper, and Jacobitz was help-
ing to clean and put away a large grill. Overturf towed the grill
to a shed on the Co-op’s property, and Jacobitz and another
manager helped Overturf put the grill inside. Jacobitz then
hopped on the back of the flatbed truck for a ride back to the
community center where the event was held. He fell off about
half a block later.
   The primary dispute at trial was whether Jacobitz was
injured in the scope of his employment. The court granted
Jacobitz’ motion to bifurcate the trial. Jacobitz had argued
that he had not yet reached maximum medical improvement
but that the court could first decide whether he was injured
in the scope of his employment. At the start of the trial, the
court stated, and the parties agreed, that they were trying only
the issue of liability. The parties disputed whether Overturf
asked Jacobitz to come and help host the event or whether
he was told only that he could come if he wished. They also
disputed whether the Co-op or its vendors had sponsored
the event.
   In its “Award” order, the court found that Jacobitz believed
that he had to attend, or that it would be in his best interests
to attend the event. The court found that Jacobitz’ testimony
was the best explanation for why he would have driven to his
home 30 miles away to clean up and come back to the event,
despite having a family and not earning high wages. It rejected
the Co-op’s argument that it had not sponsored the event. The
court also found that the Co-op had received a substantial
benefit from the event and had also benefited from Jacobitz’
assistance. It concluded that Jacobitz was injured in an accident
arising out of and in the course of his employment.
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   The court issued its order on January 28, 2013. At the end
of the order, the court scheduled a telephone conference for
February 4 to set a trial date to determine benefits. The Co-op
filed its notice of appeal on February 1.

                  ASSIGNMENTS OF ERROR
   The Co-op assigns, restated and reduced, that the trial
court erred as follows: (1) finding that Jacobitz was injured
in the scope of his employment; (2) finding that the customer
appreciation supper was a regular incident of employment;
(3) assigning liability because Jacobitz subjectively believed
he had to attend the supper and that his attendance would
be to his benefit; (4) finding that the Co-op received a sub-
stantial benefit from the supper and Jacobitz’ attendance and
assist­ nce, absent evidence of a “direct” benefit to the Co-op;
      a
(5) entering an “Award” based on facts that were irrelevant,
clearly wrong, and insufficient; (6) receiving an exhibit into
evidence over the Co-op’s objection; and (7) failing to render
a reasoned decision.

                  STANDARD OF REVIEW
   [1,2] We independently review questions of law decided by
a lower court.1 A jurisdictional issue that does not involve a
factual dispute presents a question of law.2

                         ANALYSIS
   [3] For an appellate court to acquire jurisdiction of an
appeal, the party must be appealing from a final order or a
judgment.3 Because workers’ compensation proceedings are
special proceedings,4 the issue is whether the court’s order
is final.

 1	
      Guinn v. Murray, 

, 

 (2013).
 2	
      In re Interest of Edward B., 

, 

 (2013).
 3	
      See, 

 (Reissue 2008); Becerra v. United Parcel
      Service, 

, 

 (2012); State v. McCave, 

, 

 (2011). See, also, 

(1)
      (Reissue 2008).
 4	
      Becerra, supra note 3.
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	                          JACOBITZ v. AURORA CO-OP	101
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   The Nebraska Court of Appeals ordered the parties to brief
whether the trial court’s order was final even though it had
not yet determined benefits. The Co-op argues that the order
affected a substantial right in a special proceeding because
the order eliminated its complete defense to Jacobitz’ claim.
Jacobitz cites cases holding that the order was not final because
the court reserved issues for later determination.
   [4] Under 

 (Reissue 2008), an
appellate court may review three types of final orders: (1) an
order that affects a substantial right and that determines the
action and prevents a judgment, (2) an order that affects a
substantial right made during a special proceeding, and (3) an
order that affects a substantial right made on summary applica-
tion in an action after a judgment is rendered.5
   [5-7] Only the second category is applicable here. A party
can appeal an order from the Workers’ Compensation Court if
it affects the party’s substantial right.6 Substantial rights under
§ 25-1902 include those legal rights that a party is entitled to
enforce or defend.7 A substantial right is affected if an order
affects the subject matter of the litigation, such as diminishing
a claim or defense that was available to an appellant before the
order from which an appeal is taken.8
   [8] But even in workers’ compensation cases, we have held
that when multiple issues are presented to a trial court for
simultaneous disposition in the same proceeding and the court
decides some of the issues, while reserving other issues for
later determination, the court’s determination of fewer than all
the issues is an interlocutory order and is not a final order for
the purpose of an appeal.9
   The tension between these two rules—one delineat-
ing an affected substantial right and the other delineating

 5	
      Id.
 6	
      See, e.g., id.
 7	
      Big John’s Billiards v. State, 

, 

 (2012).
 8	
      

 9	
      See, e.g., Becerra, supra note 3; Merrill v. Griswold’s, Inc., 

,
      

 (2005).
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interlocutory orders—has created two conflicting lines of
cases dealing with final orders in workers’ compensation
appeals. In two cases, Nebraska appellate courts have per-
mitted employers to appeal from the trial court’s rejection
of its “complete defense” to liability.10 Although we did not
define that term, in those cases, the complete defense was an
affirmative defense, which, if it had been successful, would
have permitted the employer to prevail even if the claimant
proved that he or she sustained a work-related injury.11 But in
cases where the employer’s defense is that the claimant failed
to prove a work-related injury, we have held that an appeal
is interlocutory when the trial court has reserved issues for
later determination.12
   This troubling body of cases has created confusion whether
an employer can appeal from a trial court’s finding of liability,
even if the court has reserved its decision regarding benefits.
The confusion exists because a failure of proof defense (e.g.,
a defense that the claimant has not shown the injury occurred
in the scope of employment) is also a complete defense
to liability. But more important, interlocutory appeals con-
flict with the beneficent purpose of the Nebraska Workers’
Compensation Act (Act) to provide injured workers with
prompt relief from the adverse economic effects caused by a
work-related injury.13
   “Under the Act, employees give up the complete compen-
sation that they might recover under tort law in exchange for
no-fault benefits that they quickly receive for most economic
losses from work-related injuries.”14 And unnecessary delays in

10	
      See, Larsen v. D B Feedyards, 

, 

 (2002);
      Morin v. Industrial Manpower, 

, 

 (2004).
11	
      See 

12	
      See, 

; Dawes v. Wittrock Sandblasting & Painting,
      

, 

 (2003); Hamm v. Champion Manuf.
      Homes, 

, 

 (2002).
13	
      See Zwiener v. Becton Dickinson-East, 

, 

      (2013).
14	
      Moyera v. Quality Pork Internat., 

, 978, 

,
      420 (2013).
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the payment of benefits are contrary to the purpose of provid-
ing prompt relief.15
   Moreover, this concern is present whether the trial court has
rejected an employer’s failure of proof defense or its affirma-
tive defense. In either case, permitting an employer to appeal
will frequently cause a hardship for the prevailing claimant
because Nebraska’s workers’ compensation statutes do not
require the employer to pay benefits or waiting-time penalties
pending an appeal based on a reasonable controversy.16
   But if the issue of benefits has been decided before an
employer appeals and the award is affirmed on appeal, then the
employer must pay the benefits within 30 days after the appel-
late court’s mandate is filed in the Workers’ Compensation
Court.17 We have explained that “because contested claims
cause a delay of compensation, it is imperative to discourage
any further delay following an appeal.”18
   Permitting piecemeal appeals, however, defeats the waiting-
time penalty rule that requires prompt payment of benefits
after an appeal, when an employer has appealed in good faith
but the claimant prevailed. Instead of receiving a speedy pay-
ment of benefits immediately after the mandate is issued, a
prevailing claimant would face further litigation on the issue
of benefits. At that point, the employer could appeal again if
a reasonable controversy existed regarding the court’s award
of benefits.
   Even if we limited interlocutory appeals to an employer’s
appeal from the court’s rejection of an affirmative defense, the
number of claimants who would be adversely affected by the
delay in determining benefits is potentially large. Affirmative
defenses would include all of the following: (1) defenses
that a claimant is not covered by the Act; (2) defenses that

15	
      Estate of Teague v. Crossroads Co-op Assn., 

, 

      (2013).
16	
      See, Lagemann v. Nebraska Methodist Hosp., 

, 

 (2009); 

(1)(b) (Reissue 2010).
17	
      See 

.
18	
      

, 

, citing Leitz v. Roberts Dairy, 

,
      

 (1992).
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jurisdiction in a Nebraska court is improper; (3) defenses
that the claim is barred by the statute of limitations; defenses
that the claimant failed to properly notify the employer of the
injury; (4) defenses that the claimant deliberately violated a
safety rule; and (5) defenses that a claimant was willfully neg-
ligent or intoxicated.19 A prevailing claimant in any of these
types of cases would face a substantial economic hardship in
delayed benefits if we permitted employers to appeal before a
court awarded benefits.
   But comparable concerns are not raised by precluding an
employer’s interlocutory appeal when the court has deter-
mined only that the claimant’s injury is compensable or
that the employer’s affirmative defense is without merit,
but has not determined benefits. In that circumstance, the
employer sustains no economic detriment by waiting to appeal
until the trial court enters an award that specifies the claim-
ant’s benefits.
   [9,10] It remains true that an order in a special proceed-
ing is final for the purpose of an appeal if it affects a party’s
substantial right. But we cannot be blind to the unequal
effect of permitting interlocutory appeals in workers’ com-
pensation cases. And permitting employers to appeal from
an adverse ruling before the Workers’ Compensation Court
has determined benefits is inconsistent with the Legislature’s
intent to provide prompt benefits. So instead of ironing out
every wrinkle in our case law, we hold the following: From
the date of this decision, a Workers’ Compensation Court’s
finding of a compensable injury or its rejection of an affirm­
ative defense without a determination of benefits is not an
order that affects an employer’s substantial right in a spe-
cial proceeding.

19	
      See, e.g., 

, 48-102(a), 48-106(2), 48-127, 48-133,
      and 48-137 (Reissue 2010); Moyera, supra note 14; Risor v. Nebraska
      Boiler, 

, 

 (2009); Estate of Coe v. Willmes
      Trucking, 

, 

 (2004); 

;
      

; Guico v. Excel Corp., 

, 

 (2000); Nalley v. Consolidated Freightways, Inc., 

, 

 (1979); 

.
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                         CONCLUSION
  We conclude that the Co-op has not appealed from a final
order because the trial court has determined only that Jacobitz’
accident occurred in the scope of his employment, but has not
yet determined benefits. We therefore dismiss the appeal and
remand the cause for further proceedings.
	Appeal dismissed, and cause remanded
	                       for further proceedings.
  McCormack, J., participating on briefs.



                 In   re I nterest of
                                    Landon H., a child
                           under18 years of age.
                      State of Nebraska, appellee, v.
                          Bonnie H., appellant.
                                   ___ N.W.2d ___

                      Filed December 27, 2013.     No. S-13-140.

 1.	 Constitutional Law: Due Process: Appeal and Error. Whether the procedures
     given an individual comport with constitutional requirements for procedural
     due process presents a question of law, which an appellate court indepen-
     dently reviews.
 2.	 Constitutional Law: Parental Rights: Due Process. Because of a natural par-
     ent’s fundamental liberty interest in the care, custody, and management of their
     child, if the State intervenes to adjudicate a child or terminate the parent-child
     relationship, its procedures must meet the requisites of the Due Process Clause.
 3.	 Juvenile Courts: Parental Rights: Due Process. A juvenile court order that
     terminates parental rights through procedures that violate the parent’s due process
     rights is void.
 4.	 Constitutional Law: Due Process. Procedural due process requires notice to
     the person whose right is affected by the proceeding; reasonable opportunity to
     refute or defend against the charge or accusation; reasonable opportunity to con-
     front and cross-examine adverse witnesses and present evidence on the charge or
     accusation; representation by counsel, when such representation is required by
     the Constitution or statutes; and a hearing before an impartial decisionmaker.
 5.	 Juvenile Courts: Parental Rights: Right to Counsel. In juvenile proceedings,
     

(1)(b) (Reissue 2008) gives a parent the right to
     appointed counsel if the parent cannot afford an attorney.
 6.	 Juvenile Courts: Parental Rights: Due Process. When a juvenile court knows
     that a parent is incarcerated or confined nearby, it should take steps, without
     request, to afford the parent due process before adjudicating a child or terminat-
     ing the parent’s parental rights.