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Spaulding v. Alliant Foodservice11/16/2004
ecided by the Nebraska Court of Appeals or the Nebraska Supreme Court." Both the trial court's and the review panel's orders reflect an analysis of the five factors as set forth in Guico v. Excel Corp., 260 Neb. 712, 619 N.W.2d 470 (2000).
We find that although no evidence exists on the record to support an opposite finding that Spaulding was willfully negligent, it appears as though there is confusion as to the law regarding willful negligence. Both the trial court and the review panel applied the factors set forth in Guico to determine whether Spaulding's violation of Alliant's safety rule constituted willful negligence, despite the fact that neither side argued that Spaulding intentionally violated the rule. Accordingly, we cannot find that it was error for the trial court to have denied Spaulding's request for a waiting-time penalty and attorney fees, and we uphold the review panel's affirmance of the trial court's decision.
However, Spaulding is entitled to attorney fees for the appeal to the review panel. Section 48-125(1) provides, in pertinent part:
If the employer files an application for review before the compensation court from an award of a judge of the compensation court and fails to obtain any reduction in the amount of such award, the compensation court shall allow the employee a reasonable attorney's fee to be taxed as costs against the employer for such review, and the Court of Appeals or Supreme Court shall in like manner allow the employee a reasonable sum as attorney's fees for the proceedings in the Court of Appeals or Supreme Court.
In the case at bar, the review panel affirmed the award of the trial court "in all respects." Pursuant to ยง 48-125, Spaulding is thus entitled to an award of reasonable attorney fees for the appeal to the review panel, and the review panel erred in failing to award such fees.
V. CONCLUSION
For the reasons stated above, we find that the trial court did not err in finding that Spaulding was not willfully negligent. We further find that the trial court did not err in denying Spaulding's request for a waiting-time penalty and attorney fees. However, the review panel did err in failing to award Spaulding attorney fees for his appeal to the review panel, because there was no reduction in Spaulding's award. Accordingly, we uphold the review panel's decision affirming the ruling of the trial court, but remand the case to the review panel with instructions to award attorney fees to Spaulding for his appeal to the review panel.
Affirmed in part, and in part reversed and remanded with directions.
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