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Page v. McCain Foods, Inc.

Supreme Court of Idaho, Twin Falls

January 3, 2014

Verdene PAGE, Claimant-Appellant,
McCAIN FOODS, INC., Employer, and Transcontinental Insurance Company, Surety, Defendants-Respondents, and Idaho Industrial Commission, Real Party in Interest-Respondent, and L. Clyel Berry, individually, Intervenor-Appellant.

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L. Clyel Berry, Twin Falls, argued for appellant.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. David B. Young argued.

J. JONES, Justice.

This appeal arises from a long-litigated worker's compensation case, but revolves solely around the issue of attorney fees. Claimant's counsel, L. Clyel Berry, argues that he is entitled to a 40% attorney fee award, based on a contingent fee agreement he entered into with Claimant VerDene Page. The Industrial Commission, however, awarded Berry a 30% attorney fee award pursuant to Idaho Code § 72-804, which requires an employer to pay reasonable attorney fees when it unreasonably withholds compensation from an injured employee. Berry filed a timely appeal to this Court.



This case revolves solely around the issue of reasonable attorney fees, stemming from the long-lived case of Page v. McCain Foods. Beginning chronologically, on April 24, 2002, the claimant, VerDene Page, and her attorney and the appellant in the instant matter, L. Clyel Berry, both signed a contingent fee agreement (" Fee Agreement" ). The Fee Agreement reads in relevant part:

Once hearing in the matter has been commenced, attorney's fees will then be equal to 30% of all benefits obtained for you by L. Clyel Berry. Following the filing of an appeal or if the matter is scheduled for rehearing, attorney's fees will then be 40% of all benefits obtained.... You are hereby advised that, in Idaho, attorney's fees in workers' compensation matters are regulated or governed by the Idaho State Industrial Commission and are subject to Commission approval. In workers' compensation matters, attorney's fees normally do not exceed twenty-five percent (25%) of the benefits obtained for the Claimant by his/her attorney in a case in which no hearing on the merits has been completed. In a case in which a hearing on the merits has been completed, attorney's fees then normally do not exceed thirty percent (30%) of the benefits obtained for a Claimant by his/her attorney.

Years of litigation ensued. Claimant initially sought benefits for a knee injury, and the Commission denied her claim. She appealed, and in Page v. McCain Foods, Inc., 141 Idaho 342, 109 P.3d 1084 (2005) (" Page I " ), the Court held that the Commission erred (1) in concluding that Page's claim was barred because of her alleged failure to give proper notice; and (2) in concluding that Page did not experience an " accident." Page I, 141 Idaho at 349, 109 P.3d at 1091. The Court then remanded the case to the Commission for further proceedings. Id. " On remand, the Commission awarded Page total disability and related medical care benefits through November 26, 2001 ... a ‘ 1% whole person’ permanent impairment, and ... a 5% permanent partial disability resulting from the accident. The Commission also determined Page failed to show she qualified for ‘ odd-lot’ status and determined she was not entitled to attorney fees for the first appeal." Page v. McCain Foods, Inc., 145 Idaho 302, 305, 179 P.3d 265, 268 (2008) (" Page II " ). Page again appealed, and in Page II, this Court held that the Commission's physical impairment finding was supported by substantial and competent evidence, but reversed and remanded as to the following issues: (1) the Commission's denial of Page's motion to review the case to correct a manifest injustice; (2) the Commission's finding of apportionment of Page's permanent disability; (3) the Commission's denial of Page's motion to reconsider on the basis of timeliness; and (4) the Commission's finding that Page is not entitled to attorney fees on the first appeal pursuant to I.C. § 72-804. Page II, 145 Idaho at 312, 179 P.3d at 275. After the Court's holding in Page II, the Commission issued its September 8, 2009 Order (the " September Order" ) where it examined the following three issues: (1) whether the Claimant is entitled to receive medical care

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benefits; (2) whether the Claimant is entitled to receive temporary disability benefits; and (3) whether the Claimant is entitled to attorney fees pursuant to I.C. § 72-804.[1] The Commission ultimately held that " Claimant is entitled to medical care benefits for the treatment she received ... following November 26, 2011, ... temporary total disability benefits from November 26, 2001 through September 21, 2008[, and] is entitled to attorney fees."

Within the September Order and with regard to the attorney fee award, the Commission indicated that " [i]f the parties are unable to agree regarding the amount of attorney fees, Claimant's counsel shall, within twenty-one (21) days of entry of the Commission's order, file with the Commission a memorandum requesting attorney fees incurred in counsel's representation of Claimant and an affidavit in support thereof." However, Berry never submitted a memorandum or affidavit with the Commission. Instead, the parties submitted to the Commission their " Stipulation Re: Attorney Fees" (" Stipulation" ) on October 20, 2009. The Stipulation states:

[T]he parties, each by and through counsel of record, pursuant to the Commission's Findings of Fact, Conclusions of Law, and Order, dated and filed September 8, 2009, and hereby stipulate that attorney fees due Claimant by and from Defendants herein pursuant to the September 8, 2009, Award shall be the sum equal to thirty (30%) percent of the value of Title 72 benefits awarded Claimant by and/or encompassed within said September 8, 2009, Findings of Fact, Conclusions of Law, and Order.

The Commission approved the Stipulation on October 22, 2009, finding that " [t]he parties have agreed that, pursuant to the Commission's September 8, 2009 decision, Defendants will pay to Claimant attorney fees in the amount of 30% of the value of the workers' compensation benefits awarded to Claimant by the decision."

In order to satisfy the amounts owing pursuant to the September Order, and in line with the Stipulation, McCain Foods submitted three checks to Berry:

Check 1 $131,595.32 Temporary disability benefits (TTD)

Check 2 $ 64,099.41 Medical benefits


Check 3 $ 58,708.13 Attorney fees— equaling 30% of $195,693.73

Rather than simply keeping Check 3 as his fee award, Berry instead added all three checks together and deducted 30% from that larger total. The end result of this unusual calculation was that instead of retaining 30% of the benefits awarded, he retained 39%. Berry then petitioned the Commission for its approval on December 30, 2009.

In its April 2010 Order Regarding Attorney Fees, (the " April Order" ) the Commission denied Berry's petition, finding that a 40% fee award is not reasonable. Berry subsequently filed a motion to reconsider and request for hearing; however, a hearing was not immediately held because the Claimant was receiving medical care and wished to be present at the hearing.

In the months that followed, the case settled via mediation. On October 25, 2011, the parties signed and submitted to the Commission a Stipulation and Agreement of Partial Lump Sum Discharge (" Lump Sum Agreement" ). Thereafter, on November 9, 2011, the Commission entered an order approving

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the Lump Sum Agreement, " with the exception of a portion of the claim for attorney fees submitted by Claimant's attorney." The Commission did, however, approve a 30% attorney fee award, stating:

The total lump sum amount is $248,750.00. Fees from that amount have been requested at 40%. Such a fee has not been substantiated to the Commission in accordance with IDAPA The Commission has approved fees of 30% from previous benefits awarded to claimant and will do so for this settlement. Fees and costs amount to $74,625.00 and $1,871.12, respectively, for a total of $76,496.12. ...

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