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...