Boring v. Zoetis LLC , 309 Neb. 270 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    07/09/2021 08:10 AM CDT
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    BORING v. ZOETIS LLC
    Cite as 
    309 Neb. 270
    Martin Boring, appellee, v.
    Zoetis LLC, appellant.
    ___ N.W.2d ___
    Filed May 21, 2021.     No. S-20-275.
    1. Workers’ Compensation: Appeal and Error. Pursuant to 
    Neb. Rev. Stat. § 48-185
     (Cum. Supp. 2020), an appellate court may modify,
    reverse, or set aside a Workers’ Compensation Court decision only when
    (1) the compensation court acted without or in excess of its powers; (2)
    the judgment, order, or award was procured by fraud; (3) there is not
    sufficient competent evidence in the record to warrant the making of the
    order, judgment, or award; or (4) the findings of fact by the compensa-
    tion court do not support the order or award.
    2. Workers’ Compensation: Attorney Fees: Penalties and Forfeitures.
    The waiting-time penalty and attorney fees are available under 
    Neb. Rev. Stat. § 48-125
     (Cum. Supp. 2016) in cases brought to the Workers’
    Compensation Court only where there is no reasonable controversy
    regarding an employee’s claim for workers’ compensation.
    3. Workers’ Compensation: Attorney Fees: Words and Phrases. A “rea-
    sonable controversy” for the purpose of 
    Neb. Rev. Stat. § 48-125
    (Cum. Supp. 2016) exists if (1) there is a question of law previously
    unanswered by the Supreme Court, which question must be answered
    to determine a right or liability for disposition of a claim under the
    Nebraska Workers’ Compensation Act, or (2) if the properly adduced
    evidence would support reasonable but opposite conclusions by the
    compensation court about an aspect of an employee’s claim, which con-
    clusions affect allowance or rejection of an employee’s claim, in whole
    or in part.
    Petition for further review from the Court of Appeals, Bishop,
    Arterburn, and Welch, Judges, on appeal thereto from
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    BORING v. ZOETIS LLC
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    309 Neb. 270
    the Workers’ Compensation Court, J. Michael Fitzgerald,
    Judge. Judgment of Court of Appeals affirmed.
    Eric T. Lanham, Sarah N. Boston, and A. Francesca Romano,
    of McAnany, Van Cleave & Phillips, P.A., for appellant.
    Ryan C. Holsten and Nolan J. Niehus, Senior Certified Law
    Student, of Atwood, Holsten, Brown, Deaver, Spier & Israel
    Law Firm, P.C., L.L.O., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Per Curiam.
    NATURE OF CASE
    Martin Boring filed a petition in the Nebraska Workers’
    Compensation Court (WCC) against Zoetis LLC, in which he
    claimed a compensable injury arising from his employment
    with Zoetis. The WCC awarded Boring, inter alia, temporary
    and permanent benefits, and it ordered Zoetis to pay Boring
    penalties and attorney fees pursuant to 
    Neb. Rev. Stat. § 48-125
    (Cum. Supp. 2016). Zoetis appealed to the Nebraska Court of
    Appeals, which affirmed the award of benefits but reversed and
    vacated the award of penalties and attorney fees.
    We granted Boring’s petition for further review in which he
    assigned error to the Court of Appeals’ decision that reversed
    and vacated the award of penalties and attorney fees. We deter-
    mine that the WCC erred when it found that there was no rea-
    sonable controversy based solely on its reliance on the judicial
    admission in Zoetis’ answer, the effect of which Zoetis had
    later been relieved. Because the case was tried without reliance
    on a judicial admission, the WCC should have made its find-
    ing as to whether there was a reasonable controversy based on
    the evidence actually presented at trial. On appeal, the Court
    of Appeals reversed the award of penalties and attorney fees.
    On further review, although we articulate the rationale slightly
    differently, we affirm.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    BORING v. ZOETIS LLC
    Cite as 
    309 Neb. 270
    STATEMENT OF FACTS
    Boring was employed by Zoetis from June 2004 to
    September 2017. In October 2018, Boring filed a petition with
    the WCC in which he generally claimed a compensable injury
    arising from his employment with Zoetis. In paragraph 3 of
    the petition, Boring alleged that on February 7, 2017, he “sus-
    tained a work accident and injuries to his right upper extrem-
    ity arising out of and in the course of his employment with”
    Zoetis. In paragraph 5, Boring alleged that “the matter or
    matters in dispute include the compensability of past, present,
    and future medical expenses, temporary disability and waiting
    time, interest and attorney’s fees and, to the extent [Boring]
    has reached maximum medical improvement at the time of
    trial, permanent impairment benefits.” Finally, in paragraph 6,
    Boring alleged that
    no reasonable controversy exists concerning the com-
    pensability of [Boring’s] claim, and yet, despite more
    than thirty (30) day [sic] notice of [Boring’s] accident
    and injuries, [Zoetis] has failed and refused to make pay-
    ment to [Boring] of compensable medical and mileage
    expenses and indemnity benefits, and [Boring] is there-
    fore entitled to interest, costs, waiting time and attorney’s
    fees in accord with . . . §48-125.
    In its answer, Zoetis admitted portions of Boring’s petition,
    including, inter alia, the allegations set forth in paragraph 3,
    in which Boring alleged that he had sustained a work-related
    accident and injury to his right upper extremity on February
    7, 2017. With regard to both paragraphs 5 and 6, regarding
    the extent of compensation and penalties respectively, Zoetis
    stated that it was “without knowledge to form a belief as to
    the allegations contained in” each of the paragraphs and that it
    therefore denied paragraphs 5 and 6.
    A trial was held on October 29, 2019. Without objection, the
    WCC received into evidence a stipulation signed by both par-
    ties. They stipulated to, inter alia, the award to which Boring
    would be entitled “[s]hould the [WCC] find [Boring] suffered
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    BORING v. ZOETIS LLC
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    a compensable accident and injury.” Boring testified at trial,
    and Zoetis presented testimony by a nurse practitioner who
    operated Zoetis’ occupational health clinic and treated Boring
    after he reported an injury in 2017. Without going into details
    here, the record at trial showed that Boring’s condition had
    been evaluated by a variety of health professionals, in addition
    to the foregoing nurse practitioner. These individuals included
    Dr. George Hansen, Dr. Patrick Hurlbut, a physical therapist,
    Dr. Kirk Hutton, and Dr. Michael Morrison. There were widely
    differing views about causation and the extent of Boring’s
    injury. In addition, there was a debate among the professionals
    as to whether Boring tripped in the autumn of 2017 and, if so,
    the consequences of such incident.
    After the trial, on January 30, 2020, the WCC filed an order
    in which it found that on February 7, 2017, Boring injured his
    right shoulder in an accident arising out of and in the scope
    of his employment, and that such injury led to surgery on his
    shoulder. The WCC dedicated nearly six pages of its order to
    assessing the competing medical evidence. The WCC awarded
    Boring temporary and permanent benefits, payment for future
    medical care, a vocational evaluation and vocational rehabilita-
    tion services, and medical bills and mileage.
    The WCC also addressed Boring’s request for penalties and
    attorney fees. The WCC rejected Zoetis’ argument in which
    it contended that there was a reasonable controversy and that
    therefore, Boring was not entitled to penalties and attorney
    fees under § 48-125. Notwithstanding the trial record and the
    WCC’s extensive weighing of the evidence that led it to find
    a compensable injury, the WCC proceeded in the remainder
    of its analysis as though injury had not been an issue. In its
    order, the WCC stated that Zoetis “admitted in its Answer
    that on February 7, 2017 [Boring] sustained a work accident
    and injuries to his right upper extremity arising out of and
    in the course of his employment with [Zoetis].” The WCC
    cited precedent to the effect that an admission in a pleading
    is a judicial admission, which is a substitute for evidence.
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    BORING v. ZOETIS LLC
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    309 Neb. 270
    The WCC reasoned that Zoetis’ judicial admission relieved
    Boring of the burden to produce evidence that he injured his
    right shoulder on February 7, 2017, and that as a result of such
    admission Zoetis was “liable for treatment and medical care of
    [Boring’s] right shoulder and the payment of weekly benefits.”
    The WCC further reasoned that Zoetis’ admission of “the acci-
    dent and injury entitles [Boring] to a penalty and attorney’s
    fees for nonpayment of medical expenses and nonpayment
    of weekly benefits.” After a subsequent hearing, the WCC
    ordered Zoetis to pay a penalty of $408.50 per week for late
    payment of temporary benefits that were due April 18, 2018,
    through July 1, 2019, and a penalty of $408.50 per week for
    33.75 weeks for late payment of permanent benefits. The WCC
    also ordered that Boring was entitled to a reasonable attorney
    fee of $15,333.
    Zoetis appealed the WCC’s award to the Court of Appeals.
    Zoetis claimed that the WCC erred when it found that Boring’s
    injury arose out of and in the course of his employment and
    that he was entitled to temporary and permanent benefits, pay-
    ment for past and future medical expenses and mileage, and
    a vocational evaluation and vocational rehabilitation services.
    Zoetis also claimed that the WCC erred when it awarded
    penalties and attorney fees. The Court of Appeals generally
    affirmed the award but reversed the portion of the order in
    which the WCC awarded penalties and attorney fees pursuant
    to § 48-125.
    In a memorandum opinion, the Court of Appeals first
    addressed the WCC’s finding that Boring’s injury arose out of
    and in the course of his employment. See Boring v. Zoetis LLC,
    No. A-20-275, 
    2020 WL 7227304
     (Neb. App. Dec. 8, 2020)
    (selected for posting to court website). The Court of Appeals
    began its analysis by rejecting Boring’s argument that by
    admitting paragraph 3 of Boring’s petition, Zoetis made a judi-
    cial admission that constituted a waiver of its right to challenge
    the finding that Boring’s shoulder injury arose out of and in the
    course of his employment with Zoetis. The Court of Appeals
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    BORING v. ZOETIS LLC
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    309 Neb. 270
    reasoned that Zoetis’ admission to paragraph 3 constituted
    only an admission to “some work-related accident and injury
    suffered by Boring on February 7, 2017,” but that Zoetis’
    denial of paragraph 6 of Boring’s petition made it “equally
    clear that Zoetis disputed the nature and extent of that injury
    and the benefits attributable thereto.” Id. at *7. The Court of
    Appeals characterized Zoetis’ position as being that “although
    Boring may have suffered a minor strain on February 7, 2017,
    that injury eventually healed and Boring was treated for a dif-
    ferent shoulder injury by 2018 which required two surgeries,”
    and that therefore, “Boring’s injury on February 7, 2017, was,
    at best, a mild strain and did not support the stipulated benefits
    which were the result of a different injury.” Id. The Court of
    Appeals concluded that “Zoetis did not admit to the full extent
    of injury claimed by Boring.” Id.
    The Court of Appeals proceeded to consider whether Boring
    presented sufficient evidence to support the WCC’s finding
    that the injury which required surgery arose out of and in the
    course of Boring’s employment with Zoetis. After reviewing
    the evidence, the Court of Appeals determined that there was
    sufficient evidence and it therefore affirmed the finding. The
    Court of Appeals further considered Zoetis’ claims that the
    evidence did not support the WCC’s awards of temporary and
    permanent benefits, and medical expenses and mileage, the
    amount of which awards was stipulated by the parties. The
    Court of Appeals concluded that because the record supported
    the finding that the injury requiring surgery arose out of and in
    the course of Boring’s employment with Zoetis, the WCC did
    not err when it awarded the stipulated benefits. The Court of
    Appeals therefore affirmed the awards, and it further affirmed
    the award relating to a vocational evaluation and vocational
    rehabilitation services.
    Finally, the Court of Appeals considered Zoetis’ claim that
    the WCC erred when it awarded Boring penalties and attorney
    fees. The Court of Appeals cited § 48-125, which provides for
    a waiting-time penalty and attorney fees when the employer
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    BORING v. ZOETIS LLC
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    309 Neb. 270
    fails to pay compensation within 30 days of notice of disability
    and the employee must seek an award in the WCC. The Court
    of Appeals cited precedent to the effect that penalties and
    attorney fees may be awarded under § 48-125 only when no
    reasonable controversy exists regarding the claim for workers’
    compensation benefits.
    The Court of Appeals noted that at trial, Zoetis “most cer-
    tainly denied the nature and extent of Boring’s injuries and the
    case was tried primarily on the issue of causation.” Boring v.
    Zoetis LLC, 
    2020 WL 7227304
     at *10. The Court of Appeals
    reviewed the evidence presented on that issue and observed
    that “there was evidence in this record that would support
    reasonable but opposite conclusions . . . regarding the nature
    and extent of Boring’s February 7, 2017, injury.” 
    Id.
     The Court
    of Appeals ruled that a waiting-time penalty and attorney fees
    under § 48-125 were not justified. The Court of Appeals there-
    fore reversed and vacated the portion of the WCC order award-
    ing Boring penalties and attorney fees.
    We granted Boring’s petition for further review.
    ASSIGNMENT OF ERROR
    Boring claims, combined and restated, that the Court of
    Appeals erred when it reversed and vacated the WCC’s award
    of penalties and attorney fees in contravention of its own prec-
    edent in Heesch v. Swimtastic Swim School, 
    20 Neb. App. 260
    ,
    
    823 N.W.2d 211
     (2012).
    STANDARDS OF REVIEW
    [1] Pursuant to 
    Neb. Rev. Stat. § 48-185
     (Cum. Supp. 2020),
    an appellate court may modify, reverse, or set aside a WCC
    decision only when (1) the WCC acted without or in excess
    of its powers; (2) the judgment, order, or award was procured
    by fraud; (3) there is not sufficient competent evidence in the
    record to warrant the making of the order, judgment, or award;
    or (4) the findings of fact by the WCC do not support the
    order or award. Parks v. Hy-Vee, 
    307 Neb. 927
    , 
    951 N.W.2d 504
     (2020).
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    BORING v. ZOETIS LLC
    Cite as 
    309 Neb. 270
    ANALYSIS
    We note as an initial matter that Boring’s assignments of
    error on further review relate solely to the portion of the Court
    of Appeals’ decision in which it reversed and vacated the
    WCC’s award of penalties and attorney fees to Boring pursuant
    to § 48-125. Boring did not challenge the remaining portions
    of the Court of Appeals’ decision in which it affirmed the rest
    of the award. Furthermore, Zoetis did not cross-petition for
    further review. The only aspect of the Court of Appeals’ deci-
    sion before us on further review is the part relating to penalties
    and attorney fees. The Court of Appeals’ decision in which it
    affirmed the WCC’s award of temporary and permanent ben-
    efits, payment for future medical care, a vocational evaluation
    and vocational rehabilitation services, and medical bills and
    mileage is therefore affirmed.
    Boring’s assignments of error on further review relate to the
    WCC award of penalties and attorney fees pursuant to § 48-125,
    which award the Court of Appeals overturned on appeal. We
    therefore review statutory and case law standards governing
    such awards. Section 48-125(3) provides for a “waiting time”
    penalty for delinquent payments, and § 48-125(4) provides
    for “a reasonable attorney’s fee” when the employer “refuses
    payment of compensation or medical payments” and “proceed-
    ings are held before the [WCC].” We have recognized that
    the waiting-time penalty provided for in § 48-125(3) relates
    only to delinquent payments of compensation, which includes
    “‘periodic disability or indemnity benefits,’” and that the stat-
    ute does not authorize a waiting-time penalty for delinquent
    payment of medical expenses. VanKirk v. Central Community
    College, 
    285 Neb. 231
    , 236, 
    826 N.W.2d 277
    , 281 (2013).
    With regard to attorney fees, however, we have noted that
    the Legislature amended the portion of the statute that is now
    § 48-125(4) to specifically provide for an award of attorney
    fees related to medical expenses, as well as to compensation.
    Id. See, also, Bronzynski v. Model Electric, 
    14 Neb. App. 355
    ,
    
    707 N.W.2d 46
     (2005).
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    BORING v. ZOETIS LLC
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    [2,3] Although § 48-125 does not contain the words “reason-
    able controversy,” our case law has long held that the waiting-
    time penalty and attorney fees are available under § 48-125 in
    cases brought to the WCC only “where there is no reasonable
    controversy regarding an employee’s claim for workers’ com-
    pensation.” Picard v. P & C Group 1, 
    306 Neb. 292
    , 302, 
    945 N.W.2d 183
    , 193 (2020). See, also, Bower v. Eaton Corp., 
    301 Neb. 311
    , 
    918 N.W.2d 249
     (2018). A “reasonable controversy”
    for the purpose of § 48-125 exists if (1) there is a question
    of law previously unanswered by the Supreme Court, which
    question must be answered to determine a right or liabil-
    ity for disposition of a claim under the Nebraska Workers’
    Compensation Act, or (2) if the properly adduced evidence
    would support reasonable but opposite conclusions by the
    WCC about an aspect of an employee’s claim, which conclu-
    sions affect allowance or rejection of an employee’s claim, in
    whole or in part. Picard v. P & C Group 1, 
    supra.
     We have
    further noted:
    Although the total amount of compensation due may be
    in dispute, the employer’s insurer nevertheless has a duty
    to promptly pay the amount which is undisputed, and the
    only legitimate excuse for delay of payment is the exis-
    tence of genuine doubt from a medical or legal standpoint
    that any liability exists.
    Bower v. Eaton Corp., 
    301 Neb. at 340
    , 918 N.W.2d at 272.
    In its award in this case, the WCC rejected Zoetis’ argu-
    ment that there was a reasonable controversy that prevented
    an award of penalties and attorney fees under § 48-125. The
    WCC found that there was no reasonable controversy solely
    because in its answer Zoetis had judicially admitted the alle-
    gations in paragraph 3 of Boring’s complaint. The WCC found
    that the existence of such admission made Zoetis “liable for
    treatment and medical care of [Boring’s] right shoulder and
    the payment of weekly benefits” and that because Zoetis’
    answer “admit[ted] the accident and injury,” Boring was enti-
    tled “to a penalty and attorney’s fees for nonpayment of
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    BORING v. ZOETIS LLC
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    309 Neb. 270
    medical expenses and nonpayment of weekly benefits” under
    § 48-125.
    On appeal, the Court of Appeals recognized the admis-
    sion in Zoetis’ answer, but reasoned that although Zoetis had
    made such admission, “it most certainly denied the nature
    and extent of Boring’s injuries.” Boring v. Zoetis LLC, No.
    A-20-275, 
    2020 WL 7227304
     at *10 (Neb. App. Dec. 8, 2020)
    (selected for posting to court website). The Court of Appeals
    noted that the trial in this case was primarily focused on deter-
    mining the nature and extent of the injury Boring sustained on
    February 7, 2017. The Court of Appeals reasoned that because
    “Zoetis did not judicially admit the nature and extent of
    Boring’s injuries,” it was necessary for a court to “separately
    determine if a reasonable controversy existed as to the nature
    and extent of Boring’s injuries as contested by Zoetis.” 
    Id.
    Because the WCC had not separately evaluated the evidence
    to determine whether a reasonable controversy existed, the
    Court of Appeals examined the record. The Court of Appeals
    reviewed the evidence in the record and stated, inter alia,
    that the evidence “would support reasonable but opposite
    conclusions by the [WCC] regarding the nature and extent
    of Boring’s February 7, 2017, injury.” Id. at *11. Given this
    observation, the Court of Appeals determined that the WCC
    erred when it found no reasonable controversy and awarded
    penalties and attorney fees. The Court of Appeals reversed and
    vacated the portion of the WCC award granting such penalties
    and attorney fees.
    Boring argues that the Court of Appeals’ decision in this
    case is contrary to its reasoning in Heesch v. Swimtastic Swim
    School, 
    20 Neb. App. 260
    , 
    823 N.W.2d 211
     (2012), in which
    the employee alleged in her petition that she sustained a back
    injury arising out of and in the course of her employment and
    the employer admitted that allegation in its answer. The Court
    of Appeals in Heesch concluded that the employer’s admis-
    sion in its answer was a binding judicial admission and that
    therefore, “there was no reasonable controversy about the basic
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    compensability of [the employee’s] workers’ compensation
    claim.” 20 Neb. App. at 274, 823 N.W.2d at 222-23. Boring
    contends that Heesch is controlling in this case and that Zoetis’
    answer admitting paragraph 3 was a judicial admission of the
    basic compensability of his workers’ compensation claim.
    In response to Boring’s petition for further review, Zoetis
    argues that this court’s precedent in Risor v. Nebraska Boiler,
    
    277 Neb. 679
    , 
    765 N.W.2d 170
     (2009), is controlling. Zoetis
    relies on portions of Risor in which we reasoned that under
    
    Neb. Rev. Stat. § 48-168
     (Cum. Supp. 2008), the WCC is not
    bound by formal rules of procedure, and that furthermore,
    formal pleading rules do not preclude an implicit amendment
    of pleadings to conform to the evidence when the parties try
    issues by consent. Zoetis contends that Boring consented to
    trying issues of causation and that there was an implicit amend-
    ment of the pleadings which overcame any judicial admission
    Zoetis had made in its answer. Zoetis argues that for purposes
    of § 48-125, such issues presented a reasonable controversy
    that precluded an award of penalties and attorney fees. Zoetis
    urges us to affirm the decision of the Court of Appeals.
    On further review, we agree with the Court of Appeals
    that the WCC’s treatment of penalties and attorney fees was
    flawed. As we explain below, the WCC erred when it failed to
    examine the trial evidence to determine whether there was a
    reasonable controversy. And, although our explanation differs
    slightly from the Court of Appeals, we agree with the Court
    of Appeals that reversal of the award of penalties and attorney
    fees was warranted.
    In its answer, Zoetis admitted Boring’s allegation that he
    “sustained a work accident and injuries to his right upper
    extremity arising out of and in the course of his employment
    with” Zoetis. At trial, contrary to this admission, the par-
    ties offered, and the court received, a trial stipulation signed
    by both parties in which, inter alia, the parties agreed to an
    award to which Boring would be entitled “[s]hould the [WCC]
    find [Boring] suffered a compensable accident and injury.”
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    Based on this stipulation, the parties agreed to litigate the exis-
    tence of a compensable injury and Zoetis was relieved of its
    admission. Thereafter, the court allowed into evidence various
    exhibits offered by both parties, including medical records to
    which we referred earlier, and heard testimony by Boring and
    by the person who operated Zoetis’ occupational health clinic.
    We have reviewed the evidence; it shows that compensability
    and the nature and extent thereof were in controversy.
    Comments made by both parties prior to trial recognized
    that there was an issue to be tried regarding whether there
    was a compensable accident and injury. The WCC asked the
    parties’ counsel “what is the argument about here?” Boring’s
    counsel responded, “There is a dispute between the doctors as
    to medical causation.” Zoetis’ counsel thereafter stated that the
    dispute was “a little more than that” and that “the real dispute
    is about, not just medical causation but whether there was an
    accident at all.” At the close of the evidence, when the WCC
    was setting a date for the parties to submit written arguments,
    the WCC stated:
    [T]he question is, do I pay him or do I not? Do I find he
    got hurt on the job or didn’t get hurt on the job? If he got
    hurt on the job, then all of the stuff is going to fall into
    place. If he didn’t get hurt on the job, then nothing false
    [sic] into place. Right?”
    We have recognized that pleadings and admissions therein
    may be superseded at trial. We have stated that a “pretrial
    order is binding upon the parties” and that “the issues set out
    in a pretrial order supplant those raised in the pleadings.” Hall
    v. County of Lancaster, 
    287 Neb. 969
    , 978, 
    846 N.W.2d 107
    ,
    115 (2014), overruled on other grounds, Davis v. State, 
    297 Neb. 955
    , 
    902 N.W.2d 165
     (2017). We have also recognized,
    “‘A judicial admission is ordinarily final and conclusive upon
    the party by whom it was made, unless the trial court, in the
    exercise of a judicial discretion, timely relieves [the party]
    from that consequence.’” Vermaas v. Heckel, 
    170 Neb. 321
    ,
    325, 
    102 N.W.2d 647
    , 652 (1960). Finally, as Zoetis argues,
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    in Risor v. Nebraska Boiler, 
    277 Neb. 679
    , 
    765 N.W.2d 170
    (2009), we stated that under § 48-168, the WCC is not bound
    by formal rules of procedure, and that formal pleading rules do
    not preclude an implicit amendment of pleadings to conform
    to the evidence when the parties try issues by consent. Each of
    the foregoing propositions lends support to our determination
    that compensability was an issue at the trial.
    We have stated that a judicial admission “constitutes a
    waiver of all controversy so far as the adverse party desires to
    take advantage of it, and therefore is a limitation of the issues,”
    and that a party may “invoke the language of the pleading of
    his [or her] adversary on which the case is tried on a particular
    issue as rendering certain facts indisputable.” Saberzadeh v.
    Shaw, 
    266 Neb. 196
    , 199, 
    663 N.W.2d 612
    , 615-16 (2003).
    In Saberzadeh, we noted that although one party may have
    made a judicial admission, the opposing party did not seek
    to take advantage of the judicial admission by invoking it at
    trial, and we determined that the opposing party was therefore
    not relieved of the burden of producing evidence in support of
    his allegation.
    Applying the foregoing principles, we determine that regard-
    less of the fact that Zoetis’ answer included a judicial admis-
    sion regarding Boring’s injury, whether Boring suffered a
    compensable injury was in fact an issue at trial in this case as
    indicated by the stipulation, the comments of the parties and
    the WCC, and the evidence. As this case was tried, Boring did
    not invoke a judicial admission to relieve himself of the burden
    of presenting evidence to establish a compensable injury, and
    the WCC found a compensable injury based on the evidence
    rather than on a judicial admission.
    Because the issue of compensability was not resolved based
    on a judicial admission, the WCC’s finding of fact that there
    was no reasonable controversy was clear error because such
    finding was based entirely on the erroneous premise that the
    case had been resolved by a judicial admission rather than by
    the evidence. Instead of relying on a judicial admission, the
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    BORING v. ZOETIS LLC
    Cite as 
    309 Neb. 270
    WCC should have recognized the manner in which this case
    was actually tried and thereafter looked to the evidence that
    was presented in order to make a finding of whether or not
    the evidence presented a reasonable controversy. The Court of
    Appeals recognized this flaw and reversed the WCC’s award of
    penalties and attorney fees.
    Because this case is before us on further review, we must
    further determine whether the Court of Appeals erred when
    it vacated the award of penalties and attorney fees. We find
    no error.
    As the Court of Appeals recognized, compensability and the
    nature and extent of the injury were all at issue at trial. Upon
    noticing that the WCC’s finding of reasonable controversy
    was problematic, the Court of Appeals observed that “there
    was evidence in this record that would support reasonable but
    opposite conclusions . . . regarding the nature and extent of
    Boring’s February 7, 2017, injury.” Boring v. Zoetis LLC, No.
    A-20-275, 
    2020 WL 7227304
     at *10 (Neb. App. Dec. 8, 2020)
    (selected for posting to court’s website). As we read the Court
    of Appeals’ opinion, at this point, the Court of Appeals deter-
    mined that the existence of competing conclusions created a
    reasonable controversy and that this was sufficient to reverse
    the WCC’s award of penalties and attorney fees. But this
    approach implies that the Court of Appeals found, as a question
    of fact, that there was a reasonable controversy.
    Focusing on an appellate court’s review, two standards inter-
    sect. On the one hand, whether a reasonable controversy exists
    under § 48-125 is a question of fact. Bower v. Eaton Corp.,
    
    301 Neb. 311
    , 
    918 N.W.2d 249
     (2018). And an appellate court
    reviews a question of fact for clear error. See 
    id.
     But on the
    other hand, where the facts are not in dispute concerning what
    is ordinarily a question of fact and where the inference is clear
    that reasonable people could not disagree about the matter, the
    matter is a question of law. See, Aboytes-Mosqueda v. LFA Inc.,
    
    306 Neb. 277
    , 
    944 N.W.2d 765
     (2020); A.W. v. Lancaster Cty.
    Sch. Dist. 0001, 
    280 Neb. 205
    , 
    784 N.W.2d 907
     (2010). As
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    BORING v. ZOETIS LLC
    Cite as 
    309 Neb. 270
    to questions of law, an appellate court is obligated to make its
    own determinations. See Bower v. Eaton Corp., 
    supra.
    Thus, the correct statement of the appellate exercise is as
    follows: Based on a review of this record and disregarding the
    purported judicial admissions, could a reasonable fact finder
    have made the same decision—that no reasonable controversy
    existed? If so, the issue must be remanded to the WCC as the
    finder of fact. On the other hand, if the only possible conclu-
    sion of a reasonable fact finder, disregarding the purported
    admissions, is that a reasonable controversy existed, then the
    matter becomes a question of law to be resolved by the appel-
    late court.
    Applying this exercise, we believe that, as a matter of
    law, based on the trial record and disregarding the purported
    judicial admissions, a reasonable fact finder could reach only
    one conclusion—that a reasonable controversy existed. Given
    this determination, the Court of Appeals did not err when it
    reversed the WCC’s award of penalties and attorney fees.
    CONCLUSION
    Neither party sought further review of the portions of the
    Court of Appeals’ decision that affirmed the WCC’s order
    awarding Boring temporary and permanent benefits, payment
    for future medical care, vocational evaluation and vocational
    rehabilitation services, and medical bills and mileage. We
    therefore affirm those portions of the Court of Appeals’ deci-
    sion that affirmed these awards.
    With regard to the portion of the Court of Appeals’ decision
    that reversed the WCC’s award of penalties and attorney fees
    pursuant to § 48-125, for reasoning different from the Court of
    Appeals, we affirm.
    Affirmed.