Melendez v. Conagra Foods, 081015 IDWC, IC 2008-023987

Case DateAugust 10, 2015
CourtIdaho
MARIA GLORIA MELENDEZ, Claimant,
v.
CONAGRA FOODS/LAMB WESTON , Self-Insured Employer, Defendant.
Nos. IC 2008-023987, IC 2009-032750
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
August 10, 2015
          ORDER ON PETITION FOR DECLARATORY RELIEF           R.D. Maynard, Chairman          On or about January 17, 2015, L. Clyel Berry ("Berry"), Claimant's attorney, filed his Petition for Declaratory Relief under the provisions of J.R.P. 15, in which he asked the Industrial Commission to determine the treatment to be given to an overpayment of attorney's fees under the provisions of Idaho Code § 72-316, where Claimant has been adjudged totally and permanently disabled. Specifically, Berry asks the Commission to conclude, as it did in Fomichev v. Lynch, 2012 IIC 0087 (2012), that under Idaho Code § 72-316, Defendant must obtain prior approval from the Industrial Commission before applying an overpayment of benefits as an offset to an ongoing obligation to pay disability. Berry also asserts that the specific amount of the overpayment in question has not been quantified, and asks the Commission to make specific findings concerning the extent and degree of an alleged overpayment. Next, Berry argues that if there has been an overpayment of attorney's fees in this case, it should be treated the same way that an overpayment of disability benefits is treated under Idaho Code § 72-316. Finally, Berry argues that Claimant is entitled to an additional award of attorney's fees under Idaho Code § 72-804 as a sanction against Defendant for their unreasonable curtailment of attorney's fees payable to Claimant without prior approval of the Industrial Commission.          In response, Defendant argues that following the Commission's November 8, 2011 Decision, it should have been obvious to Berry that Defendant was paying total and permanent disability benefits to Claimant at an inflated rate. Defendant argues that it was improper for Berry to knowingly abide the overpayments as they compounded over a period of years, and that he should not be heard at this juncture to insist that Defendant is without recourse in its attempts to recoup the repayment of attorney's fees paid to Claimant pursuant to the provisions of Idaho Code § 72-316.          Following a telephone conference with the Commission on June 10, 2015, the parties filed their stipulation, as requested by the Commission, which memorializes the agreement they previously reached concerning the amount of attorney fees payable to Claimant as a result of the Commission's November 8, 2011 decision. Accompanying that stipulation is an Addendum to Reply Brief in Support of Motion for Determination, filed by Berry. That pleading is stricken as untimely, and is not considered by the Commission.          FINDINGS OF FACTS          1. On November 8, 2011, the Industrial Commission entered the following Order following hearing on Claimant's claim for benefits relating to her bilateral upper extremity injuries:
1. Claimant has proven her osteoarthritis in her bilateral thumb CMC joints and her right middle trigger finger condition were all caused by repetitive motion injuries she sustained at work.
2. Claimant has proven that she is entitled to reasonable and necessary medical care for her bilateral thumb CMC joint injuries and right middle trigger finger injury, including but not limited to her left thumb surgery in November 2008 and her trigger finger release in March 2009.
3. Claimant has proven that she is entitled to PPI in the amount of 8% of the whole person (6% in relation to her left thumb condition, 2% in relation to her right thumb condition and 0% in relation to her right middle trigger finger).
4. Claimant has proven that she is totally and permanently disabled as a result of her non-medical factors and either her left thumb CMC joint injury or her right thumb CMC joint injury.
5. Claimant has proven she is entitled to attorney fees under Idaho Code § 72-804 for Defendant's unreasonable denial of benefits related to her industrial injuries to her bilateral thumbs and right middle finger.
6. All other issues are moot.
         2. Following the November 8, 2011 Decision of the Industrial Commission, the parties came to agreement concerning the amount of the attorney fee award payable to Claimant pursuant to the Commission Decision. The parties agreed that Defendant would pay attorney's fees calculated at 30% of the benefits payable to Claimant pursuant to the Commission Decision, subject to reduction to 15% for payments due after September 22, 2019, and for the remainder of Claimant's life. That stipulation is approved by order of the Commission filed contemporaneously herewith, and is retroactive to November 8, 2011.          3. Following the November 8, 2011, Decision, Defendant paid to Claimant those total and permanent disability benefits to which she was entitled under the Commission Decision. Defendant also paid a 30% attorney fee on those benefits as they became due.          4. Unfortunately, the total and permanent disability benefits were paid at an incorrect weekly rate. The overpayment of permanent and total disability benefits was not noted until an administrative audit by the Idaho Industrial Commission uncovered said overpayment in September of 2014. The Industrial Commission audit tends to demonstrate that from some time in 2010 to December 31, 2013, total and permanent disability benefits were overpaid in the amount of $22,676.83. Per the agreement of the parties, Defendant also paid to Claimant attorney's fees on this overpayment in the amount of $6,803.05 ($22,676.83 x 30%).          5. It is also likely that Claimant...

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