                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 40568

VERDENE PAGE,                           )
                                        )
    Claimant-Appellant,                 )
                                        )
v.
                                        )
MCCAIN FOODS, INC., Employer, and       )
TRANSCONTINENTAL INSURANCE              )
COMPANY, Surety,                        )
                                                              Twin Falls, November 2013 Term
                                        )
    Defendants-Respondents,             )
                                                              2014 Opinion No. 1
                                        )
and                                     )
                                                              Filed: January 3, 2014
IDAHO INDUSTRIAL COMMISSION,            )
                                        )
                                                              Stephen Kenyon, Clerk
    Real Party in Interest-Respondent,  )
                                        )
and                                     )
                                        )
L. CLYEL BERRY, individually,
                                        )
    Intervenor-Appellant.               )
                                        )
_______________________________________ )


       Appeal from the Idaho Industrial Commission, State of Idaho.
       The decision of the Industrial Commission is affirmed.

       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

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when it unreasonably withholds compensation from an injured employee. Berry filed a timely
appeal to this Court.
                                             I.
                               FACTS AND PROCEDURAL HISTORY
        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


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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 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.



1
    I.C. § 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, or that an employer or
            his surety neglected or refused within a reasonable time after receipt of a written claim for
            compensation to pay to the injured employee or his dependents the compensation provided by law,
            or without reasonable grounds discontinued payment of compensation as provided by law justly
            due and owing to the employee or his dependents, the employer shall pay reasonable attorney fees
            in addition to the compensation provided by this law. In all such cases the fees of attorneys
            employed by injured employees or their dependents shall be fixed by the commission.

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       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
                             $195,693.73
              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 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 17.02.08.033. 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. Thus, the surety shall pay to Claimant’s attorney the sum of
       $76,496.12 as reasonable fees and costs.




                                                4
The Commission also ordered that $24,875.00, “the amount of the proceeds of the Lump Sum
Agreement requested for unsubstantiated attorney fees” be released by the surety to Berry, to be
held in trust pending further order by the Commission.
       Berry subsequently filed a Request for Calendaring Re Claimant’s Counsel’s Petition for
Approval of Fees/Request for IDAPA 17.02.08.033.03.b Hearing. At the hearing, Berry
“clarified that he was seeking an additional 10% in attorney fees from the September 2009 order,
as well as an additional 10% in attorney fees from the lump sum settlement amount.” In its Order
dated June 21, 2012, (the “June Order”) the Commission first determined that a ruling on the
April 12 motion to reconsider was warranted—Berry had filed this motion, but a hearing had not
been held because, as mentioned above, the Claimant wished to be present at the hearing but was
undergoing medical treatment around that time. The Commission ultimately denied Berry’s
motion, holding that Berry was entitled only to the 30% fee award that McCain Foods had
already given him in Check 3. As for whether Berry was entitled to 40% of the lump sum
settlement agreement, as opposed to the already-awarded 30%, the Commission agreed with
Berry, and held that he was entitled to attorney fees in the amount of 40% of $248,750.00 based
on his “dogged persistence” that he maintained throughout years of litigation. Berry had already
received 30% of that, which left 10%, or $24,875.00, as the remainder owed.
       It was, perhaps, this same dogged persistence that led Berry to file yet another motion for
reconsideration. The Commission denied this motion in its November 19, 2012 Order, (the
“November Order”) finding that its June Order was supported by substantial evidence.
       According to the Notice of Appeal, Berry now appeals the April Order, the June Order,
and the November Order. It appears as though Berry has received a total of $180,344.96 in fees
throughout this litigation; this appeal is occurring because he believes he is entitled to an
additional 10% fee for the benefits awarded in the September Order.
                                                II.
                                        ISSUES ON APPEAL
              I.     Was the Commission’s attorney fee award of 30% under I.C. § 72-804
       supported by substantial and competent evidence?
              II.    Do any Constitutional violations exist here?
              III.   Is Berry entitled to attorney fees on appeal?
                                                IV.
                                            DISCUSSION
       A.     Standard of Review.

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       “The standard of review of an Industrial Commission decision is twofold. This Court
exercises de novo review of the Commission’s legal conclusions. However, the Court will not
disturb the Commission’s factual findings so long as they are supported by substantial and
competent evidence.” Allen v. Reynolds, 145 Idaho 807, 811, 186 P.3d 663, 667 (2008) (internal
citations omitted). “The decision that grounds exist for awarding a claimant attorney fees [under
I.C. § 72-804] is a factual determination which rests with the Commission.” Poss v. Meeker
Mach. Shop, 109 Idaho 920, 926, 712 P.2d 621, 627 (1985).
       B.     The Commission’s approval of a 30% attorney fee award under I.C. § 72-804
              was supported by substantial and competent evidence.
       Under I.C. § 72-804, the Industrial Commission has “the discretion to fix the amount of a
reasonable attorney fee awarded under that statute.” Swett v. St. Alphonsus Reg’l Med. Ctr., 136
Idaho 74, 78, 29 P.3d 385, 389 (2001). 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, or that an employer or his surety neglected or refused
       within a reasonable time after receipt of a written claim for compensation to pay
       to the injured employee or his dependents the compensation provided by law, or
       without reasonable grounds discontinued payment of compensation as provided
       by law justly due and owing to the employee or his dependents, the employer
       shall pay reasonable attorney fees in addition to the compensation provided by
       this law. In all such cases the fees of attorneys employed by injured employees or
       their dependents shall be fixed by the commission.
Fee awards pursuant to I.C. § 72-804 fall within “the exclusive jurisdiction of the Commission
and the worker’s compensation law.” Idaho State Ins. Fund v. Van Tine, 132 Idaho 902, 908, 980
P.2d 566, 572 (1999). Idaho Code § 72-804 “does not allow an award of fees to be made against
the claimant[,]” but only against the employer or surety. McAlpin v. Wood River Med. Ctr., 129
Idaho 1, 7, 921 P.2d 178, 184 (1996); see also Challis v. Louisiana-Pacific Corp., 126 Idaho
134, 138–139, 879 P.2d 597, 601–602 (1994).
       This Court has held that the Commission may make an attorney fee award under I.C. §
72-804 based on a percentage of the benefits awarded to the employee, so long as the Hogaboom
factors are considered. Bradley v. Washington Grp. Int’l, 141 Idaho 655, 658–59, 115 P.3d 746,
749–50 (2005) (discussing Swett, 136 Idaho at 78, 29 P.3d at 389).
       1.     The Commission correctly considered the Hogaboom factors and properly
              exercised its discretion in fixing a 30% fee award under I.C. § 72-804.


                                               6
       In Hogaboom, this Court held:
       [I]n awarding reasonable attorneys’ fees pursuant to I.C. § 72-804, the Industrial
       Commission need not be constrained by the contingent fee agreement in effect
       between the claimant and his attorney in the presence of a clause providing for the
       alternative of awarded attorney’s fees. In such a case, as in the case of all awards
       of attorney’s fees, the Commission must arrive at a reasonable award considering
       not only the Clark [v. Sage] factors cited supra, but the legislative intent behind
       the Workmen’s Compensation laws and I.C. § 72-804.
Hogaboom v. Economy Mattress, 107 Idaho 13, 17–18, 684 P.2d 990, 994–95 (1984) (citing
Clark v. Sage, 102 Idaho 261, 629 P.2d 657 (1981)). In determining what a reasonable fee is, a
contingent fee agreement, “though persuasive evidence, is not itself dispositive, but rather must
be considered in conjunction with” the following factors:
       (1) the anticipated time and labor required to perform the legal services properly;
       (2) the novelty and difficulty of the legal issues involved in the matter; (3) the
       fees customarily charged for similar legal services; (4) the possible total recovery
       if successful; (5) the time limitations imposed by the client or circumstances of
       the case; (6) the nature and length of the attorney-client relationship; (7) the
       experience, skill and reputation of the attorney; (8) the ability of the client to pay
       for the legal services to be rendered; and (9) the risk of no recovery.
Hogaboom, 107 Idaho at 15, 684 P.2d at 992 (quoting Clark, 102 Idaho at 265, 629 P.2d at 657).
       Here, the Commission’s decision to award a 30% attorney fee award pursuant to I.C. §
72-804 was supported by substantial and competent evidence. In its April Order, the
Commission listed the Hogaboom factors and acknowledged that it needed to consider them. The
Commission then stated:
       Having considered Mr. Berry’s petition and the Hogaboom factors, we do not find
       the requested fee of 40% to be reasonable. Claimant and Defendants have
       stipulated to fees of 30%. . . . [W]e do not find it reasonable to approve a petition
       that would take a portion of the fees from Claimant’s awarded benefits rather than
       from Defendants.
       In its June Order, the Commission cited Hogaboom before noting “[t]he most important
fact in the assessment of attorney fees . . . is that Counsel and Defendants came to an agreement
as to the amount of attorney fees Defendants would pay Counsel in satisfaction of the award of
[I.C. § 72-804] attorney fees.” It stated further: “If Counsel wanted to argue for more than 30%
in attorney fees he could have made that argument to Defendants or to the Commission at that
time. . . . The Commission will not award additional attorney fees on the same benefits.”
       In conclusion, the record shows that the Commission considered the Hogaboom factors
before ultimately awarding the 30% fee. Because the Commission properly considered

                                                 7
Hogaboom, and because Berry stipulated to a 30% attorney fee award, we find that the
Commission’s determination was supported by substantial, competent evidence.
       2.      A fee agreement does not guarantee a certain attorney fee award, and an
               attorney fee award is not a “benefit.”
       Berry also argues that (1) without the Stipulation he undoubtedly would have been
awarded a 40% attorney fee award; and (2) the fee award is a “benefit obtained on appeal” that
should be lumped in with the other benefits before he takes his cut.
       Berry’s argument that he undoubtedly would have been awarded a 40% attorney fee
award without the Stipulation does not hold water because his own Fee Agreement even
recognizes that the Commission has the final word with regard to attorney fee awards:
       [I]n 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 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.
From the outset, then, Berry and his client knew that, ultimately, the fees they agreed upon
would be subject to the Commission’s approval. Even if Berry did not stipulate to the 30% fee
award, it does not necessarily follow that he automatically would have been awarded 40% based
on the Fee Agreement.
       Berry also asserts that an attorney fee award constitutes a “benefit” obtained on appeal,
and as such, he should be permitted to add that attorney fee award to the pot of other benefits
awarded—here, TTD and medical—before calculating his percentage. Berry instituted this
calculation scheme after the September Order, when McCain Foods issued him three checks: the
first for medical benefits, the second for temporary disability, and the third for attorney fees.
Rather than simply accepting the third check as his award, Berry added all three checks together
and then took 30% of that. Berry’s calculation resulted in a fee award not of 30%, but of 39%.
The Commission held that Berry had miscalculated, stating that “[a]ttorney fees granted after an
unreasonable denial are just that, attorney fees granted to pay the attorney so that a claimant does
not have to carry the additional burden of paying attorney fees from the benefits claimant
receives.”
       This determination by the Commission was proper. Looking to its plain language, Section
804 provides that “the employer shall pay reasonable attorney fees in addition to the
compensation provided by this law.” I.C. § 72-804 (emphasis added). Thus, “attorney fees” and

                                                 8
“compensation” are not one and the same. Rather, “compensation” is defined as “any or all of the
income benefits and the medical and related benefits and medical services.” I.C. § 72-102.
“Income benefits” are defined in I.C. § 72-102(16); “medical and related benefits” are defined in
I.C. § 72-102(20); and “medical services” are defined in I.C. § 72-102(21). None of these
definitions can be construed to include “attorney fees.” Instead, an employer must pay attorney
fees, plus any benefits that are owed. The statute’s plain, unambiguous language precludes any
interpretation that would allow “compensation” to include “attorney fees”: a fee award under
Section 804 is simply not a “benefit.”
        3.      The Commission did not err in considering Berry’s petition for attorney fees
                under I.C. § 72-804, as opposed to I.C. § 72-803.
        Berry asserts that “[i]t was error for the Commission to consider the Petition for Approval
of Fees upon the basis of I.C. § 72-804. Rather, the Commission should have considered the
Petition upon the basis of I.C. § 72-803.” To understand why this argument is a classic example
of “too little, too late,” a brief review of the case’s lengthy procedural history is helpful.
        In Page II, this Court remanded several issues to the Commission, and also held that the
Commission’s decision that Claimant was not entitled to attorney fees pursuant to I.C. 72-804
was not supported by substantial, competent evidence. Page II, 145 Idaho at 311–12, 179 P.3d
265, 274–75. The Commission’s resulting order, the September Order, listed one of the
remaining issues as “[w]hether and to what extent Claimant is entitled to attorney fees pursuant
to [I.C.] § 72-804.” In the September Order, the Commission awarded attorney fees pursuant to
I.C. § 72-804. Additionally, in that same order, the Commission indicated that Berry could,
within twenty-one days, submit a memorandum and affidavit requesting attorney fees. He did not
do so. Instead, on October 20, which was after the twenty-one days were up, he stipulated to a
30% fee award, and that stipulation was approved by the Commission on October 22, 2009. It
was only after all of that that Berry—for the first time—brought up an attorney fee award
pursuant to I.C. § 72-803. Indeed, it was not until December 30, 2009, that Berry filed a petition
for approval of fees pursuant to I.C. § 72-803. The Commission subsequently entered its April
Order, holding that a 40% fee award was not reasonable under I.C. § 72-804, but did not analyze
I.C. § 72-803. Berry filed a motion to reconsider, arguing that the Commission erred by failing to
analyze his petition under I.C. § 72-803. The Commission eventually held a hearing on the
matter, on April 10, 2012, and in denying Berry’s motion it noted that, while instructive, “the


                                                   9
contingent fee agreement is not determinative of the fees to be awarded by the Commission in an
award of Idaho Code § 72-804 attorney fees or Idaho Code § 72-803.”
       The record indicates that this is, and has been throughout, an I.C. § 72-804 case. Berry
had ample opportunity to raise an attorney fee claim pursuant to I.C. § 72-803 early on, and, at
the latest, should have done so within twenty-one days after the September Order was issued,
when the Commission gave him the opportunity to submit a memorandum and accompanying
affidavit requesting attorney fees. Because Berry instead stipulated to an attorney fee award
under I.C. § 72-804, we hold that he may not also recover attorney fees under I.C. § 72-803 for
work that has already been paid for by the employer under I.C. § 72-804.
       Our holding does not preclude the possibility that an attorney may be awarded attorney
fees under both I.C. § 72-803 and I.C. § 72-804 for separate work. Here, however, Berry sought
fees under both provisions for the same work and on the same benefits. While we do find that the
Commission’s fee award was supported by substantial, competent evidence, it must be noted that
Berry did make extraordinary efforts on behalf of his client, and for that he is to be commended.
       C.      Berry’s constitutional arguments are without merit.
       Berry raises two constitutional arguments on appeal. He first argues that he had a
property interest in the 40% fee he was to receive under the Fee Agreement following the filing
of an appeal and that he was deprived of 10% of that fee without due process because the
Commission “had not enacted guidelines, clear or otherwise, regarding attorney’s fees in Title 72
matters following appeals or upon rehearing.” Berry further claims that by refusing “to approve a
Claimant’s attorney’s fee upon the value of an I.C. § 72-804 award,” the Commission violated
“the equal protection clauses of the Idaho and United States Constitutions; the Contract Clause of
the United States Constitution; and, the Fourteenth Amendment to the United States
Constitution, together with Article 1, Section 13, of the Idaho Constitution.” We find no merit in
either argument.
       In support of his first argument, Berry cites Curr v. Curr, 124 Idaho 686, 864 P.2d 132
(1993) for the proposition that the Commission must “at a minimum . . . formally publish clear
guidelines upon which it will base . . . fee modifications in order to eliminate any latent
arbitrariness.” Id. at 692, 864 P.2d at 138. The foregoing statement was part of this Court’s
explanation that a claimant’s attorney was entitled to procedural due process before the
Commission could reduce the amount of the fee contracted between the attorney and his client.


                                               10
Id. The Court disapproved the Commission’s sua sponte reduction of contracted attorney fees of
several attorneys, including Berry, without “suitable advance notice to all of the parties directly
involved, accomplished through properly enacted regulations, and without a meaningful
hearing.” Id. The Commission had failed to make findings supporting the order reducing attorney
fees until the attorneys appealed to this Court two months later. Id. at 690, 864 P.2d at 136. “The
findings were generated after the order in an attempt to justify the earlier conclusions.” Id. at
691, 864 P.2d at 137. The Commission did not have a duly enacted regulation at the time and
acted under a “letter of understanding.” Id. The Court stated, “[w]ithout clear guidelines nestled
in appropriately promulgated regulations, attorneys’ actions are plagued by doubt. . .” Id.
       Curr provides no support for Berry in this case. Here, the Commission acted pursuant to
a properly adopted regulation, IDAPA 17.02.08.033. Among other things, the rule provides that
in a case where a hearing has been held and briefs submitted, a fee of “thirty percent (30%) of
available funds shall be presumed reasonable.” IDAPA 17.02.08.033.01.e.ii. The rule further
provides that a proponent of a fee greater than that percentage “shall have the burden of
establishing by clear and convincing evidence entitlement to the greater fee.” IDAPA
17.02.08.033.03.d.
       The Curr decision was based on fee agreements that were modified by the Commission
acting without a promulgated regulation. However, after those agreements were made, and
“prompted by a major concern that fees charged by claimants’ attorneys in workers’
compensation cases were unduly high, the Commission published a draft of formal regulations
which proposed mandatory attorney fee guidelines.” Rhodes v. Industrial Commission, 125 Idaho
139, 140, 868 P.2d 467, 468 (1993). The Commission adopted such a regulation, the predecessor
of IDAPA 17.02.08.033, and the Court upheld the same against equal protection and due process
challenges. Rhodes, 125 Idaho at 142, 868 P.2d at 470. The Court observed that “[t]he regulation
satisfies due process analysis under the” United States and Idaho constitutions. Id.
       Furthermore, in Seiniger Law Offices, P.A. v. State, 154 Idaho 461, 299 P.3d 773 (2013),
the Court observed that the claimant’s attorney “admits that the Commission has the authority, as
we have held, to determine what is a reasonable contingent attorney fee for representing
claimants in worker’s compensation cases.” 154 Idaho at 467, 299 P.3d at 779. In that case we
turned away a number of constitutional challenges to the Commission’s current attorney fee
regulation, noting that the challenge in Curr was successful because the attorneys had been


                                                11
denied procedural due process, while the attorney in Seiniger had received procedural due
process under the regulation. Id. at 468−69, 299 P.3d at 780−81. We noted in Seiniger that “the
challenged rule was in effect prior to the execution of the fee agreement . . . and Seiniger was
given notice and an opportunity for a hearing before the Commission ruled as to the
reasonableness of the attorney fees claimed.” Id. at 469, 299 P.3d at 781. That statement applies
equally here.
       The Commission’s regulation is not defective simply because it does not contain a
guideline for every potential action taken by an attorney in worker’s compensation litigation. The
regulation merely sets a presumptively reasonable fee of 25% when there is no hearing on the
merits and 30% where a hearing has been held and briefs submitted or waived. IDAPA
17.02.08.033.01.e. The Commission clearly has discretionary authority to consider a variety of
factors and determine a reasonable attorney fee, either at the presumptive 30%, or for a lesser or
greater amount. In this case, the Commission determined that a 30% fee award under I.C. § 72-
804 was reasonable for the work performed up to the time of the September Order and declined
to approve a fee award under I.C. § 72-803 in excess of that amount. Berry did not point to any
work that was done prior to the September Order that was not compensated by that award. He
could possibly have made the case for an additional amount if he had provided clear and
convincing evidence to that effect but it does not appear from the record that he did so.
       Berry’s second constitutional argument―that the Commission erred in failing to award
him an attorney fee on the I.C. § 72-804 fee award―is also without merit. It might first be noted
that the Fee Agreement provides that Berry’s contingency fee will be calculated based on
“benefits obtained for [Page] by L. Clyel Berry.” As shown above, nothing in Title 72 defines an
attorney fee award, whether under I.C. § 72-804, or otherwise, as a “benefit.” Berry points to no
case decided by this Court, either under the Worker’s Compensation Act or otherwise, where a
contingency fee is calculated upon another fee award. On the surface, this certainly appears to be
a form of double dipping. In any event, Berry fails to provide any convincing constitutional
argument in favor of his claim.
       He does argue that it is a violation of equal protection to regulate the fees charged by
claimants’ attorneys, while leaving the fees charged by defendants’ attorneys completely
unregulated. However, I.C. § 72-803 applies only to claimants’ attorneys. The Legislature has
not seen fit to regulate fees charged by defendants’ attorneys. The motivation for focusing on


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claimants’ attorneys was, as noted in the Rhodes case, that payment of a larger fee for the
attorney out of a benefit award, results in a lesser benefit for the injured worker. The same does
not apply in the context of fees paid by defendants to their attorneys. The Court is aware that
attorneys representing worker compensation defendants do not work on a contingency basis, as
claimants’ attorneys generally do. “The Supreme Court of the United States has consistently held
that the Equal Protection Clause does not prohibit states from treating different classes of people
differently.” Credit Bureau of E. Idaho, Inc. v. Lecheminant, 149 Idaho 467, 470, 235 P.3d 1188,
1191 (2010). It is fairly obvious that claimants’ attorneys and defendants’ attorneys are subject to
different treatment, being different categories. “[W]hen faced with a constitutional challenge,
this Court makes every presumption in favor of the constitutionality of the challenged regulation,
and the burden of establishing unconstitutionality rests upon the challengers.” Rhodes, 125 Idaho
at 142, 868 P.2d at 470. Like the attorney in Rhodes, Berry has “failed to show how the
regulation violates the equal protection clause of the constitution of the United States or art. I, §
2 of the Idaho constitution.” Id.
       D.      Berry is not entitled to attorney fees on appeal.
       In his plea for attorney fees pursuant to the “Private Attorney General Doctrine and/or
Idaho Code § 12-117(1)[,]” Berry candidly acknowledges that this Court has previously held that
attorney fees on appeal in worker’s compensation cases are not available under either theory. The
Court indeed so held in Curr. 124 Idaho at 694, 864 P.2d at 140. He asks that we revisit the issue
but we find no ground for doing so. In any event, Berry is not the prevailing party.
                                                 IV.
                                             CONCLUSION
       We affirm the Commission’s fee award in the September Order. Costs to the Commission
on appeal.
       Chief Justice BURDICK, and Justices EISMANN, HORTON, and Justice Pro Tem
SCHROEDER CONCUR.




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