Tuesday, January 30, 2007
Nebraska Court of appeals dismisses workers request for waiting time penalties and attorney fees against employer who delayed funding a lump sum settlement that included terms requiring Medicare/Medicaid’s approval of the lump sum’s set-aside provisions. Garcia v. Platte Valley Constr. Co., 15 Neb. App. 357 Filed January 30, 2007. No. A-06-490. Worker who was injured in 1995 reached a lump sum settlement with the employer in January 2005. The lump sum documents reflected that final approval would not take place until the Center for Medicare Services, (CMS). CMS did not approve the lump until more than 30 days after the conditional lump sum approval date. Employee and attorney filed for additional waiting time penalties and attorney fees. See 48-125 RRS Neb. Trial court denies motion finding the award was not final. Court of appeals dismisses appeal finding the order was not final so it was not appealable. The lump sum order stated "Approval of this WCMSA is not effective until a copy of the final executed workers' compensation settlement agreement, which must include this approved WCMSA amount, is received by CMS at the following address[.]"Because that order did not "perform in praesenti," we further find that the January 12 order was wholly void. That order does not operate as a final judgment, and it is wholly ineffective as such. Therefore, we find that the instant appeal must be dismissed for lack of a final, appealable order and that the proper resolution is to remand to the review panel for remand to the trial court for entry of a final order in this case.