KATHLYN R. DENNIS, Claimant,
v.
SCHOOOL DISTRICT #91, Employer,
and
STATE INSURANCE FUND Surety, Defendants.
No. IC 94-862892
Idaho Workers Compensation
Before The Industrial Commission Of The State Of Idaho
August 13, 1999
ORDER GRANTING RECONSIDERATION
Rachel
S. Gilbert, Chairman
In its
order dated February 12, 1999, the Commission awarded
attorney’s fees to Claimant based on the
Defendants’ unreasonable failure to pay permanent
disability benefits in the amount of 17% beyond impairment.
Defendants filed a motion to reconsider the award of
attorney’s fees on March 2, 1999. The parties
thereafter filed additional briefs and legal arguments
regarding their respective positions on this issue.
Defendants
contend attorney’s fees are not appropriate because
they reasonably relied on substantial and competent evidence.
Defendants further maintain that to award attorney’s
fees would unduly penalize them for reasonably disputing the
contention of Claimant.
In its
prior order, the Commission found the Defendants’
expert opined Claimant suffered disability beyond impairment
in the amount of 17%. Therefore, the Commission found the
Defendants unreasonably withheld payment beyond 19%
impairment.
On
reconsideration of this issue, the Commission finds the facts
of this case do not warrant an award of atorney’s fees
pursuant to Idaho Code § 72-804. The extent of
Claimant’s disability was clearly at issue, and the
parties took widely varying positions on the issue of
disability. Claimant presented evidence that she was unable
to perform any work whatsoever. Defendants presented evidence
that she could perform light duty tasks, and was not totally
disabled. Defendants’ final brief urged the Commission
to award no more than 36% permanent partial disability
inclusive of impairment.
The
evidence was conflicting. As a result, until the extent of
disability was finally resolved, the nature of
Defendants’ position was merely an argument and not an
admission of ultimate responsibility. Even though this
Commission does find it concerning that Defendants would not
begin payment of...
