                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 39747

BENJAMIN MORRIS,                                    )
                                                    )
     Claimant-Appellant,                            )
                                                             Coeur d’Alene, April 2013 Term
                                                    )
v.                                                  )
                                                             2013 Opinion No. 63
                                                    )
HAP TAYLOR & SONS, INC., Employer,                  )
                                                             Filed: May 23, 2013
and LIBERTY INSURANCE                               )
CORPORATION, Surety,                                )
                                                             Stephen W. Kenyon, Clerk
                                                    )
    Defendants-Respondents.                         )
______________________________________              )


       Appeal from the Industrial Commission of the State of Idaho.

       The order of the Industrial Commission is affirmed.

       Starr Kelso Law Office, Chtd., Coeur d’Alene, for appellant. Starr Kelso argued.

       Law Offices of Harmon & Day, Boise, for respondents. Kent W. Day argued.
                                _____________________

J. JONES, Justice.
       Benjamin Morris, a workers’ compensation claimant, appeals an order of the Idaho
Industrial Commission denying his motion to set aside a lump sum settlement agreement he made
with his employer’s surety, Liberty Northwest Insurance. Morris initiated his workers’
compensation action after he suffered injuries while working construction for his employer, Hap
Taylor & Sons, Inc. We affirm the Industrial Commission’s order.
                                        I.
                         FACTUAL AND PROCEDURAL HISTORY
       Morris sustained a serious head injury on October 18, 2006, when a twenty-five pound rock
thrown by a piece of heavy machinery struck him in the head. Morris filed a workers’
compensation complaint on November 19, 2007, seeking medical and disability benefits. At that
time he was represented by attorney James Hannon. Several months later, Hannon withdrew and
attorney Michael Walker substituted as his counsel in the proceeding.



                                                1
         Morris filed a request for calendaring on May 15, 2009, seeking a hearing before the
Commission to address his benefits claim. The request stated that settlement negotiations were
“being undertaken but have not been successful to date.” On June 1, 2009, the Commission granted
Morris’ request, and set a hearing for January 5, 2010. However, prior to the hearing, the parties
settled and the Commission vacated the hearing.
         Morris initiated settlement discussions in a fax to Liberty on December 17, 2009, indicating
he was willing to “settle the indemnity side of this case for $68,000 in new money.” The following
day, Liberty responded with a counter-offer—a single lump sum payment of $54,381, which
Morris accepted “with the clear understanding this is a partial settlement and does not resolve the
medical side.” On January 4, 2010, the parties executed a Stipulation and Agreement of Partial
Lump Sum Discharge (LSSA) and submitted it to the Commission for approval. Finding that the
LSSA was in the best interests of the parties, the Commission approved it by an order dated
January 19, 2010.
         Approximately eighteen months later, on July 8, 2011, a Notice of Appearance was filed
with the Commission whereby Morris substituted Walker with his present counsel, attorney Starr
Kelso. 1 On the same day, Morris filed a motion to review the LSSA, accompanied by an affidavit
signed by Kelso. Kelso’s affidavit expressed concern that Morris may not be “competent to testify”
due to his injury—however, no credible evidence of incompetence was ever offered. 2 Kelso went
on to recount the substance of conversations Morris claimed to have had with Walker. Kelso affied
that Morris recalled Walker advising him “that he wouldn’t get any more money from [Liberty]
than the amount of the settlement offer” and that there was a good chance Morris would end up
owing a lot of money to expert witnesses if they proceeded to hearing. Kelso conceded in a
subsequently filed second affidavit that, “I do not, and never have, professed to state that any or all
of the statements of Benjamin Morris to me as set forth in my [first] affidavit are completely true.”
         On July 22, 2011, Respondents filed an objection to Morris’ motion to review. Ultimately,

1
  According to affidavit testimony submitted by Walker, he received a Notice of Appearance from Kelso on July 11,
2011. Prior to receiving the notice, Walker believed that he still represented Morris and was unaware that Kelso was
communicating with Morris.
2
  In its final order, the Commission stated, “Mr. Kelso is concerned that Claimant may not be competent to sign an
affidavit, yet there has been no professional pronouncement of Claimant’s alleged incapacity.” In his briefing on
appeal, Morris’ attorney asserts that Morris may have been rendered incompetent by virtue of his injuries, but has
submitted no sworn professional testimony to indicate that Morris was incompetent at the time he signed the LSSA.
The attorney points out that Morris was approved for social security disability payments arising from the injuries, no
evidence from that proceeding has been presented here. There is no indication that a guardian has been appointed to
represent Morris’ interests. Thus, we do not consider the matter of Morris’ competence.


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the Commission denied Morris’ motion to review the LSSA. Following the Commission’s refusal
to review the LSSA, Morris filed a Motion to Set Aside Lump Sum Settlement Agreement, seeking
to void the LSSA on grounds of illegality and constructive fraud. With regard to the first ground,
Morris contended the LSSA was invalid for failing to include his current medical and employment
status, as required by a Commission rule. With regard to the second ground, Morris contended that
Walker had induced him to sign the agreement based on fraudulent representations. Morris
requested that the Commission grant a hearing on his motion.
          While Morris’ motion to set aside the LSSA was pending, Morris also moved the
Commission to provide him with all of the documents that it considered when approving the
LSSA. The Commission granted the motion and provided Morris with his entire “benefits file.”
          The Commission issued an order denying Morris’ motion to set the LSSA aside on
February 7, 2012. The order found that: (1) the LSSA was not critically flawed because the
Commission was adequately informed of Morris’ current medical and employment status prior to
its approval; (2) Morris had not shown the type of fraud that would allow setting aside the LSSA;
and (3) there was no need for a hearing. Morris filed a timely appeal to this Court.
                                                II.
                                        ISSUES ON REVIEW
   I.          Was the LSSA void for its failure to set out Morris’ current medical and employment
               status?
   II.         Did the Commission err in failing to grant a hearing on Morris’ fraud claim?
   III.        Is Morris entitled to attorney fees on appeal under I.C. § 72-804?
                                                III.
                                            DISCUSSION
          A.      Standard of Review.
          When reviewing a decision of the Industrial Commission, this Court exercises
          free review over questions of law, but reviews questions of fact only to determine
          whether substantial and competent evidence supports the Commission’s findings.
          Substantial and competent evidence is relevant evidence which a reasonable mind
          might accept to support a conclusion. It is more than a scintilla of proof, but less
          than a preponderance. All facts and inferences will be viewed in the light most
          favorable to the party who prevailed before the Industrial Commission.

Fowble v. Snoline Exp., Inc., 146 Idaho 70, 74, 190 P.3d 889, 893 (2008) (citations omitted).
“The interpretation of a statute is a question of law over which this Court exercises free review.”
Williams v. Blue Cross of Idaho, 151 Idaho 515, 521, 260 P.3d 1186, 1192 (2011).



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       B.         The LSSA is not illegal or void for failure to set out Morris’ current medical
                  and employment status.
       Morris urged the Commission to set the LSSA aside, claiming it to be void because the text
of the agreement did not set out his current medical and employment status, as required by Rule
18(C)(1)(c) of the Commission’s Judicial Rules of Practice and Procedure (J.R.P.). The
Commission denied Morris’ motion, stating:
       [Morris] first avers that the January 19, 2010 [LSSA] is void because there is no
       language setting forth [Morris’] current medical status and employment status as
       required by [J.R.P. 18(C)(1)(c)]. As stated in Rule 18, the purpose of the
       requirements are to ensure the Commission has information on which a
       determination can be made. While the text of the LSSA may not have set forth in
       detail [Morris’] medical status and employment status, the Commission was
       apprised of these facts with the supplemental information supplied by the parties
       through their respective attorneys.
       On appeal, Morris raises the same argument, contending that the Commission erred in
approving the LSSA because it did not comply with the requirements of J.R.P. 18(C)(1)(c). That
provision says:
       To ensure the Commission has information on which a determination can be made,
       the Commission requires the parties to submit the following information and serve
       a copy on each of the parties:

       1. Text of the terms of settlement, which shall include:

                  c.     Claimant’s current medical and employment status.

Morris cites to I.C. § 72-508, which states: “Rules and regulations as promulgated and adopted, if
not inconsistent with law, shall be binding in the administration of [the workers’ compensation]
law.” Morris argues that the Commission is bound to strictly adhere to J.R.P. 18(C)(1)(c), and that
its failure to do so was an act outside of the Commission’s statutory power. Further, Morris
contends that the LSSA is an illegal contract, subject to being voided by this Court, citing
Wernecke v. St. Maries School Dist., 147 Idaho 277, 207 P.3d 1008 (2009) and Trees v. Kersey,
138 Idaho 3, 56 P.3d 765 (2002).
       Respondents counter that the Commission’s approval was proper because, although the text
of the LSSA did not include Morris’ current medical and employment status, the Commission
considered Morris’ medical and employment status prior to approval. Respondents also argue that
“[t]raditionally, this Court has not required the Industrial Commission to adhere to strict rules of
procedure and evidence in its hearings,” and that failing to strictly adhere to the text of J.R.P.


                                                 4
18(C)(1)(c) does not establish that the Commission acted in excess of its power.
       The Commission issued its order approving the LSSA on January 19, 2010. The order
recited “the above-entitled proceedings are DISMISSED WITH PREJUDICE as to permanent
indemnity benefits and WITHOUT PREJUDICE as to medical benefits and time loss benefits
relating to any future medical that is causally related to the October 18, 2006 injury.” With regard
to indemnity benefits, this constituted a final order of the Commission. The Commission’s decision
to approve a lump sum agreement is a final “decision” of the Commission. Davidson v. H.H. Keim
Co., Ltd., 110 Idaho 758, 760, 718 P.2d 1196, 1198 (1986). Thus, the order was appealable
pursuant to Idaho Appellate Rule 11(d). No appeal was timely filed from the order.
       Since there was no appeal of the order, Morris is clearly faced with an uphill task in
seeking to void the LSSA to obtain additional indemnity benefits. According to I.C. § 72-718: “A
decision of the commission, in the absence of fraud, shall be final and conclusive as to all matters
adjudicated by the commission.” This Court has set aside a lump sum agreement on grounds of
illegality but in that case the agreement was violative of the provisions of a workers’ compensation
statute. See Wernecke, 147 Idaho at 286, 207 P.3d at 1017 (the Commission “erred by approving
an agreement” that purported to waive an employee’s right to compensation for future injuries
because the Commission failed to make findings required by I.C. § 72-332). However, Morris does
not contend that the LSSA violates the provisions of any statute and has not shown that it is
afflicted by any other illegality. At most, the agreement fails to contain one item in a list of
requirements in a procedural rule adopted by the Commission. Morris cites no authority for the
proposition that a lump sum settlement agreement can be voided for illegality where the claimed
defect is a failure by the Commission to observe a requirement of one of its rules of procedure.
       It must be kept in mind that procedure before the Commission is less formal than in court
proceedings. I.C. § 72-708 provides: “Process and procedure under [the workers’ compensation]
law shall be as summary and simple as reasonably may be and as far as possible in accordance
with the rules of equity.” With regard to the Commission’s procedure, this Court has said:
       Since the inception of Idaho’s Workers’ Compensation Act, Industrial Commission
       proceedings have been informal and designed for simplicity; the primary purpose of
       these proceedings being the attainment of justice in each individual case . . . .
       Consistent with these policies, the Commission has historically been imbued with
       certain powers that specifically enable it to simplify proceedings and enhance the
       likelihood of equitable and just results.




                                                 5
Hagler v. Micron Tech., Inc., 118 Idaho 596, 599, 798 P.2d 55, 58 (1990) (citations omitted). We
are presented with no grounds sufficient to declare the LSSA illegal or void for omitting one item
of information required under a procedural rule. 3
         C.       The Commission did not err in denying Morris’ request for a hearing on his
                  fraud claim.
         Morris contends that the Commission erred in denying his request for a hearing. The
thrust of his argument is that Walker induced him to sign the LSSA by making fraudulent
representations. Morris asserts that where a lump sum settlement agreement is procured through
fraud, the Commission’s decision approving it is not final under I.C. § 72-718 and may be set
aside.
         The Commission declined to grant a hearing on the ground that Morris had failed to
present an adequate showing of the type of fraud that would affect the finality of its order
approving the LSSA. The Commission’s order articulated three reasons why Morris’ evidence of
fraud was inadequate. First, the fraudulent statements attributed to Walker were all related
second hand by Kelso and he could not certify that they were true or accurate. Second, the
Commission found that, even if the statements Kelso claimed Walker to have made were
accurate, they were not fraudulent because “the advice given by prior counsel are statements of

3
  Although it does not provide grounds for invalidating the LSSA, it goes without saying that the Commission should
have required the parties to include Morris’ current medical and employment status in the LSSA. The rule reads that the
“Commission requires the parties to submit” the information. The Commission has the responsibility of observing the
requirements of its procedural rules, as well as ensuring that the parties comply with such rules. However, the plain
language of J.R.P. 18 makes it clear that the purpose of including a claimant’s “current medical and employment
status” is simply to ensure that the Commission has information on which a determination can be made. The
Commission’s order stated:
         While the text of the LSSA may not have set forth in detail Claimant’s medical status and
         employment status, the Commission was apprised of these facts with the supplemental information
         supplied by the parties through their respective attorneys. The parties submitted medical reports,
         rehabilitation reports, impairment ratings, and neurological reports. The Commission was well aware
         that Claimant suffered a head injury, that Claimant suffered impairment, and that Claimant suffered
         permanent disability.
The record contains over 100 pages of medical reports from various doctors and clinicians offering opinions about the
severity of Morris’ injuries, his resulting disability, and his employability. Based on all of this information, the
Commission concluded that the LSSA was in Morris’ best interests. As a result, the inclusion of Morris’ medical and
employment status in the text of the LSSA was not a serious omission because Morris’ benefits file, reviewed by the
Commission, contained the requisite information.
At no point in Morris’ argument on appeal has he argued that the benefits file reviewed by the Commission was
incorrect. Rather, Morris complains that a report from one of his physicians, Dr. Stanek, which contained more current
medical information, was not reviewed by the Commission. However, that report was made on January 18, one day
prior to the Commission’s approval of the LSSA, and there is no indication in the record that Morris’ attorney notified
the Commission of the report or provided a copy of the same to the Commission before it approved the LSSA.




                                                          6
opinion which are based on a wide spectrum of evidence and prior counsel’s professional
experience.” Third, the Commission stated that an order approving a lump sum settlement
agreement, like any other of its final decisions, can only be set aside upon a showing that the
“employer’s surety” committed fraud in procuring the agreement, citing Harmon v. Lute’s Const.
Co., Inc., 112 Idaho 291, 293−94, 732 P.2d 260, 262−63 (1986). Since the fraud was allegedly
committed by Morris’ attorney, rather than by the employer’s surety, the type of fraud required
under I.C. § 72-718 had not been shown. Based on its conclusion that the requisite fraud had not
been shown, the Commission found no need to hold a hearing on the matter.
       On appeal, Morris argues that the text of I.C. § 72-718 does not support the
Commission’s conclusion that only fraud on the part of the employer’s surety will suffice to set
aside a claimant’s award. Morris contends that it does not matter who committed the fraud.
Respondents, on the other hand, agree with the Commission―that in order to set aside a
Commission decision on grounds of fraud, the fraud must have been perpetrated by the
employer’s surety.
       The Commission accurately recited the Harmon Court’s statement that, “[t]he only
grounds sufficient to permit the commission to set aside claimant’s award would be allegations
and proof of fraud on the part of employer’s surety in procuring the agreement.” 112 Idaho at
293, 732 P.2d at 262. Although the statement was correct in the context of that case, where the
claimant was alleging fraud against the surety, the statement should not be read as limiting the
Commission’s ability to set aside a lump sum settlement agreement only for fraud committed by
a surety. For purposes of this case, the Commission should have cited Harmon for the more
generally applicable statement that “once a lump sum compensation agreement is approved by
the commission, that agreement becomes an award and is final and may not be reopened or set
aside absent allegations and proof of fraud.” Id. at 293, 732 P.2d at 262.
       It is highly unlikely the Commission meant that an award fraudulently obtained by a
workers’ compensation claimant is final and immune from attack. If any “party” to a workers’
compensation proceeding procures a decision through fraud, either personally or with the
assistance of its attorney, its finality can be challenged by another party under I.C. § 72-718.
That provision speaks of “the absence of fraud,” and does not limit fraud to that introduced by
the claimant, the surety, or the employer. It would be a strange result if a decision could only be
challenged for fraud committed by the surety and not by the claimant or employer. However, that



                                                 7
does not mean that fraud committed by an attorney for a party against his client would affect the
finality of a Commission decision. A distinction must be made between fraud committed by an
attorney on behalf of his client in obtaining a decision and fraud committed by an attorney
against his client. In the former instance, the attorney is acting on behalf of a party to the
proceeding. In the latter instance, the attorney is acting in his or her own interest. The Industrial
Commission is not charged with entertaining and deciding peripheral disputes between a party
and its counsel.
       In this case, Walker was purportedly acting on behalf of his client, Morris, in obtaining
the Commission’s approval of the LSSA. If Walker gave bad advice to his client or fraudulently
induced his signature on the LSSA, that is a matter for determination in separate proceedings,
such as an action for legal malpractice. With regard to claims that professional negligence or
unskillfulness provide grounds for setting aside a judgment, we have often stated:
       It is a well-settled rule in Idaho that the negligence, mistakes, or unskillfulness of
       counsel do not provide a basis for setting aside a civil judgment. Since civil
       litigants voluntarily choose their attorneys, the fault in ineffective representation
       cases is attributed to the party himself. Under this rule, litigants in such cases will
       not be able to avoid the consequences of their attorneys’ mistakes.
Danti v. Danti, 146 Idaho 929, 941−42, 204 P.3d 1140, 1152−53 (2009) (citations and quotations
omitted). Although this Court has not had occasion to apply this rule where a client alleges fraud
by his or her attorney, we note the Georgia Supreme Court has had occasion to do so:
       Assuming that the evidence in the present case demands a finding that the movant
       was imposed on, it affirmatively appears that this consisted of conduct and
       misrepresentations of her own counsel, and not counsel for the respondent. Fraud,
       such as would authorize the setting aside of the verdict at the instance of the
       movant, is fraud of respondent or his counsel. She is not at liberty to avail herself
       of the misconduct of her own counsel, for the purpose of annulling the verdict
       obtained by respondent.
Ketchem v. Ketchem, 11 S.E.2d 788, 790 (Ga. 1940).
       We take this opportunity to expand our existing rule to cover alleged fraud on the part of
the attorney. The courts provide an adequate remedy for a client to seek redress, either for mere
negligence or for intentional misconduct. The Commission is not suited to resolving this type of




                                                 8
claim. Therefore, the Commission correctly determined that the type of fraud alleged here did
not affect the finality of its order approving the LSSA. 4
         We now turn to the question of whether the Commission erred by declining to grant
Morris a hearing. It should first be observed that J.R.P. 18(D) does not require a hearing on a
proposed lump sum settlement agreement in the first instance. The rule provides:
         The submission of a proposed lump sum settlement or agreement shall not be
         considered a motion. If the Commission declines to approve a proposed lump sum
         settlement agreement, the Commission may request additional relevant
         information, or on its own motion or on the motion of the party to the agreement
         scheduled a hearing limited to the issue of whether the lump sum settlement and
         discharge of one or more defendants is in the best interests of all parties. There is
         no appeal from the Commission’s decision.
J.R.P. 18(D). While the latter sentence cannot restrict this Court’s jurisdiction, the rule clearly
does not grant a hearing, as a matter of right, when a proposed lump sum settlement agreement is
initially submitted to the Commission for approval. And, even where a party makes a timely
request for a new hearing or for reconsideration, the decision is at the Commission’s discretion.
See Hopkins v. Pneumotech, Inc., 152 Idaho 611, 614, 272 P.3d 1242, 1245 (2012); Curtis v.
M.H. King Co., 142 Idaho 383, 388, 128 P.3d 920, 925 (2005). Where Morris has not alleged the
type of fraud that would affect the finality of the Commission’s decision, the Commission clearly
acted within its discretion in denying a hearing.
         D.       Morris is not entitled to attorney fees under I.C. § 72-804.
         On appeal, Morris argues that he is entitled to an award of attorney fees under I.C. § 72-804
because Liberty made misrepresentations to the Commission that ultimately led to this appeal.
Respondents argue that attorney fees under I.C. § 72-804 are not warranted in this case because
they had reasonable grounds for asking this Court to affirm the Commission’s decision.
         “Attorney fees are not granted to a claimant as a matter of right under worker’s
compensation law, but may only be affirmatively awarded under the circumstances set forth in

4
  The record does disclose some issues of concern. In addition to the unverified claims made by Kelso that Morris
was pressured into settling against his best interests, there does appear to be some disregard of those interests. In a
memorandum seeking attorney fees, dated December 28, 2009, Walker stated that Morris “has been released to
return to work without significant physical work restrictions,” despite a December 15, 2009, report from Morris’
vocational rehabilitation consultant recommending that Morris “be involved in a sheltered employment placement
with a job coach assigned; along with a work hardening program in order for this case to resolve successfully.”
Further, one of Walker’s physicians, Dr. Stanek, issued a report on January 18, 2010, recommending that Morris be
referred to a pain clinic “for comprehensive program to facilitate return to work.” There is no indication in the
record that Walker made Dr. Stanek’s report available to the Commission before it approved the LSSA (which
occurred the next day), or that he sought to revisit the settlement terms.


                                                          9
I.C. § 72-804.” Stevens-McAtee v. Potlatch Corp., 145 Idaho 325, 336, 179 P.3d 288, 299
(2008). Idaho Code § 72-804 provides:
       If the commission or any court before whom any proceedings are brought under
       this law determines that the employer or his surety contested a claim for
       compensation made by an injured employee or dependent of a deceased employee
       without reasonable ground … the employer shall pay reasonable attorney fees in
       addition to the compensation provided by this law.
This Court has repeatedly held that I.C. § 72-804 allows for an award of attorney fees on appeal
where the employer or its surety unreasonably brought or contested a claim. Nelson v. City of
Bonners Ferry, 149 Idaho 29, 35, 232 P.3d 807, 813 (2010); Anderson v. Harper’s Inc., 143
Idaho 193, 199, 141 P.3d 1062, 1068 (2006).
       In this case, Respondents are the prevailing party on appeal and have not unreasonably
defended the case. Thus, Morris is not entitled to fees under I.C. § 72-804.

                                          IV.
                                    CONCLUSION
       The Commission’s decision to deny Morris’ motion to set the LSSA aside is affirmed.
Morris is not entitled to attorney fees on appeal. Costs to Respondents.

       Chief Justice BURDICK, and Justices EISMANN, W. JONES and HORTON CONCUR.




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