Curr v. Curr
| Decision Date | 18 November 1993 |
| Docket Number | 19944,20032 and 20124,AMBROSE-MONTANA,Nos. 19473,s. 19473 |
| Citation | 864 P.2d 132,124 Idaho 686 |
| Parties | Jeff D. CURR, Claimant, v. Scott D. CURR dba Sequoia Builders, Employer, and West American Insurance Company, Surety, Defendants. Ronald L. SWAFFORD, Real Party In Interest-Appellant, v. INDUSTRIAL COMMISSION, State of Idaho, Real Party In Interest-Respondent. Kerri Sinclair ROMER, Claimant, v. VENEER SLICING SYSTEMS, INC., Employer, and Argonaut N.W. Insurance Co., Surety, Defendants. Byron K. MEREDITH, Real Party In Interest-Appellant, v. INDUSTRIAL COMMISSION, State of Idaho, Respondent. Kelly ASKEW, Claimant, v. ARLO G. LOTT TRUCKING, Employer, and Industrial Indemnity Company, Surety, Defendants. L. Clyel BERRY, Real Party In Interest-Appellant, v. INDUSTRIAL COMMISSION, State of Idaho, Real Party In Interest-Respondent. Sally Elizabeth FAHRENWALD, Claimant, v. FISH BREEDERS OF IDAHO, INC., Employer, and Argonaut Northwest Insurance Company, Surety, Defendants. Kenneth D. FAHRENWALD, Claimant, v.EXPRESS, INC., Employer, and Liberty Northwest Insurance Corporation, Surety, Defendants. Breck SEINIGER, Real Party In Interest-Appellant, v. INDUSTRIAL COMMISSION, State of Idaho, Real Party In Interest-Respondent. Boise, February 1993 Term |
| Court | Idaho Supreme Court |
Swafford Law Office, Chtd., Idaho Falls, for appellant Swafford. Ronald L. Swafford, argued.
L. Clyel Berry, Twin Falls, for appellant Berry.
Byron Meredith, Nampa, for appellant Meredith.
Seiniger, Nevin, Kofoed & Herzfeld, Boise, for appellant Seiniger. Wm. Breck Seiniger, Jr., argued.
Larry EchoHawk, Atty. Gen. and David G. High, Deputy Atty. Gen., Boise, for respondent.
Claimant, Jeff Curr ("Curr"), suffered an employment-related back injury on May 5, 1989. West American Insurance Company ("West"), the employer's workers' compensation surety, assumed liability on the claim and paid temporary disability benefits to Curr from May 6, 1989, to January 11, 1990. Curr also received temporary total disability benefits from October 30, 1990, through November 26, 1990, after he was admitted to the hospital for a second operation on his back.
On August 18, 1989, Curr retained Ronald L. Swafford ("Swafford"), complaining of inadequate temporary total disability payments and problems with the surety. A written contingency fee agreement was entered into between Swafford and Curr, wherein Swafford was to receive 33 1/3% of any award recovered if the matter was litigated, and 25% of any award if the matter was resolved without litigation.
On May 14, 1991, a lump sum settlement agreement was entered into between Curr and West, wherein Curr was to receive $30,000.00, in addition to the medical bills already paid by West. Under the lump sum agreement, Curr received $11,641.62 in temporary total disability compensation, and $15,988.50 in permanent partial disability compensation established from an impairment rating of 18% of the whole person. Curr received additional consideration in the amount of $23,484.86. The settlement agreement stated that the additional consideration was paid to cover "disputed compensation benefits of any nature, accrued and future, outstanding and future medicals and retraining." From this total, deductions of $11,641.62 and $9,473.36 were taken for payments already paid by West in temporary total disability and permanent partial disability compensation respectively, leaving a net balance of $30,000.00.
The lump sum agreement was submitted to the Idaho Industrial Commission ("Commission") for approval. Also at that time, Swafford requested the Commission's approval of $7,500.00 in attorney fees, and $300.00 for reimbursement of costs. Swafford calculated his fee based on 25% of the $30,000.00 paid to Curr. The Commission approved the lump sum agreement and granted an order of discharge, but refused to approve the attorney fee agreement. After conducting a hearing on the matter, the Commission determined that Swafford was only entitled to $5,871.22 in attorney fees, or 25% of the $23,484.86 "additional compensation" portion of the lump sum agreement. The Commission's decision was based in part on a finding that it was inappropriate in this case to calculate attorney fees on any portion of the permanent impairment rating because "[t]here is no indication that the 18% impairment rating was due to efforts on the part of Mr. Swafford."
The Commission filed its "Order Fixing Attorney Fees" on June 18, 1991. On August 20, 1991, the Commission filed findings of fact and conclusions of law in supplementation of that order. Swafford now appeals.
On February 7, 1991, Kerri S. Romer ("Romer") retained the services of Byron K. Meredith ("Meredith") to handle her workers' compensation claim. At that time, Romer's employer and surety refused to pay Romer any compensation for treatment of carpal tunnel syndrome, an employment-related affliction, arguing that Romer was not entitled to any more temporary disability benefits, that she could return to her normal job duties, that she was medically stable, and that she had no permanent impairment. The contingency fee agreement between Romer and Meredith provided for a fee of 33 1/3 of all monies On July 25, 1991, Meredith applied for and obtained a hearing before the referee to reinstate the temporary disability benefits that the surety discontinued. At the hearing the referee determined that Romer was not medically stable. On January 15, 1992, the Commission ordered the employer to pay additional temporary disability benefits to Romer, and awarded attorney fees against the employer based upon unreasonable discontinuance of the benefits.
[124 Idaho 689] recovered from any settlement effected after the filing of a lawsuit.
On December 30, 1991, Romer's physician, Dr. Botimer, issued a permanent impairment rating. Shortly thereafter, the parties agreed to a lump sum settlement of $25,000.00 prior to any ruling from the Commission on the amount of attorney fees to be awarded. The settlement covered the temporary disability award and attorney fee award. The Commission reduced the contingency fee agreement from 33 1/3% to 25% of all monies above the temporary disability benefit award, finding the 33 1/3% fee to be unreasonable. The Commission allegedly based the 25% fee upon the "customary" fees of the industry. Meredith now appeals.
Ken Fahrenwald and Sally Fahrenwald, both employed by the same company, were injured in separate accidents on the job. The employer/surety refused workers' compensation benefits to both claimants. Claimants retained Breck Seiniger ("Seiniger") to help them recover benefits wrongfully denied them. Claimants and counsel entered into contingency fee agreements providing that counsel would receive one-third of any amounts recovered after filing an application for hearing but before appeal. Application for hearing was filed in both cases and a hearing was held in the case of Ken Fahrenwald, but not in the case of Sally Fahrenwald. Subsequent to the submission of lump sum settlement agreements in both cases, the Commission, on its own motion, advised the attorney that the fees agreed to between the claimants and counsel would not be approved.
Counsel testified at a subsequent hearing concerning the amount of work he put into the cases and the value of his services. His uncontroverted testimony estimated that the fee agreement was approximately one-third of what he would have charged if the case had been accepted on an hourly basis. The Commission thereafter refused to approve the fee agreement without providing the Fahrenwalds and/or their counsel with a statement of reasons for doing so, and arbitrarily set its own fee arrangement, never expressly finding the original agreement to be unreasonable. Seiniger now appeals.
On June 30, 1987, claimant Kelly Askew ("Askew") suffered a work-related back injury during the course of her employment with defendant-employer. She was treated at the expense of the defendant-surety, and released by January 8, 1988, with a one month check-up scheduled. Askew never made the check-up appointment. Askew subsequently injured her back in January 1989, during her employment with another employer in Nevada. On August 20, 1990, she returned to Idaho. At this time, she sought the defendant-surety's permission to have her back reexamined by the same doctor that treated her in 1987. When the request was denied, Askew retained the services of L. Clyel Berry ("Berry"). Berry obtained authority from the surety for the reexamination. When the surety denied the doctor's request for an MRI, Berry filed an application for hearing. After preliminary discovery, the surety authorized the MRI. As a result of the MRI obtained by Berry, the doctor recommended that claimant finalize her claim, stating that she was stabilized and giving her an impairment rating. Berry negotiated a settlement in the amount of $5,370.00 on Askew's behalf.
Berry's contingency fee agreement with claimant provided for attorney fees in the amount of 33 1/3% of benefits obtained plus reimbursement of costs incurred during the representation of claimant. Following submission of the lump sum agreement to the Commission, Berry was advised that the This Court must address the following issues:
[124 Idaho 690] Commission would not approve attorney fees at the 33 1/3% rate, and would only approve fees at a 25% rate. The Commission did not specifically find the fee agreement to be unreasonable. It simply ruled that a fee of 25% was reasonable and appropriate. Berry now appeals.
I. Whether the Commission's findings concerning proper attorney fees are supported by substantial competent evidence.
II. Whether appellants are entitled to attorney fees on appeal.
This Court's review on appeal from an Industrial Commission decision is limited to questions of law, and an...
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