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H0549aa.....................................by COMMERCE AND HUMAN RESOURCES
WORKER'S COMPENSATION - Amends existing law to further clarify attorney's
fees when claims are made against a third party in worker's compensation
cases.
02/10 House intro - 1st rdg - to printing
02/11 Rpt prt - to Com/HuRes
03/02 Rpt out - to Gen Ord
03/03 Rpt out amen - to engros
03/06 Rpt engros - 1st rdg - to 2nd rdg as amen
03/07 2nd rdg - to 3rd rdg as amen
03/13 3rd rdg as amen - PASSED - 43-24-3
AYES -- Alltus, Bell, Black, Bruneel, Callister, Campbell, Cheirrett,
Clark, Crow, Deal, Denney, Ellsworth, Field(13), Field(20), Gagner,
Geddes, Hadley, Hammond, Hansen(23), Hornbeck, Kempton, Kendell,
Lake, Linford, Loertscher, Meyer, Montgomery, Mortensen, Moyle,
Pearce, Pomeroy, Ridinger, Sali, Schaefer, Smylie, Stevenson, Stone,
Taylor, Tilman, Wheeler, Wood, Zimmermann, Mr Speaker
NAYS -- Barraclough, Bieter, Boe, Chase, Cuddy, Hansen(29), Henbest,
Jaquet, Jones, Judd, Kellogg, Kunz, Mader, Marley, McKague, Pischner,
Reynolds, Ringo, Robison, Sellman, Shepherd, Smith, Stoicheff, Trail
Absent and excused -- Barrett, Gould, Moss
Floor Sponsor - Lake
Title apvd - to Senate
03/14 Senate intro - 1st rdg as amen - to Com/HuRes
03/17 Rpt out - rec d/p - to 2nd rdg as amen
03/20 2nd rdg - to 3rd rdg as amen
03/23 3rd rdg as amen - PASSED - 32-1-2
AYES--Andreason, Boatright, Branch, Bunderson, Burtenshaw, Cameron,
Crow, Danielson, Darrington, Davis, Deide, Dunklin, Geddes, Hawkins,
Ingram, Ipsen, Keough, Lee, McLaughlin, Noh, Parry, Richardson,
Riggs, Risch, Sandy, Schroeder, Sorensen, Stegner, Stennett, Thorne,
Wheeler, Williams
NAYS--Whitworth
Absent and excused--Frasure, King-Barrutia
Floor Sponsor - Davis
Title apvd - to House
03/24 To enrol
03/27 Rpt enrol - Sp signed
03/28 Pres signed
03/29 To Governor
03/30 Governor signed
Session Law Chapter 119
Effective: 07/01/00
H0549
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 549, As Amended
BY COMMERCE AND HUMAN RESOURCES COMMITTEE
1 AN ACT
2 RELATING TO WORKER'S COMPENSATION; AMENDING SECTION 72-223, IDAHO CODE, TO
3 FURTHER CLARIFY ATTORNEY FEE OBLIGATIONS WHEN CLAIMS ARE MADE AGAINST A
4 THIRD PARTY; AND PROVIDING AN EFFECTIVE DATE.
5 Be It Enacted by the Legislature of the State of Idaho:
6 SECTION 1. That Section 72-223, Idaho Code, be, and the same is hereby
7 amended to read as follows:
8 72-223. THIRD PARTY LIABILITY. (1) The right to compensation under this
9 law shall not be affected by the fact that the injury, occupational disease or
10 death is caused under circumstances creating in some person other than the
11 employer a legal liability to pay damages therefor, such person so liable
12 being referred to as the third party. Such third party shall not include those
13 employers described in section 72-216, Idaho Code, having under them contrac-
14 tors or subcontractors who have in fact complied with the provisions of sec-
15 tion 72-301, Idaho Code; nor include the owner or lessee of premises, or other
16 person who is virtually the proprietor or operator of the business there car-
17 ried on, but who, by reason of there being an independent contractor or for
18 any other reason, is not the direct employer of the workmen there employed.
19 (2) Action may be instituted against such third party by the employee, or
20 in event compensation has been claimed and awarded, by the employee and
21 employer jointly, in the employee's name, or, if the employee refuses to par-
22 ticipate in such action, by the employer in the employee's name.
23 (3) If compensation has been claimed and awarded, the employer having
24 paid such compensation or having become liable therefor, shall be subrogated
25 to the rights of the employee, to recover against such third party to the
26 extent of the employer's compensation liability.
27 (4) On any recovery by the employee against a third party, the employer
28 shall pay or have deducted from his subrogated portion thereof, a proportion-
29 ate share of the costs and attorney's fees incurred by the employee in obtain-
30 ing such recovery Unless otherwise agreed, upon any recovery by the employee
31 against the third party, the employer shall pay or have deducted from its sub-
32 rogated portion thereof, a proportionate share of the costs and attorney's
33 fees incurred by the employee in obtaining such recovery unless one (1) or
34 more of the following circumstances exist:
35 (a) If prior to the date of a written retention agreement between the
36 employee and an attorney, the employer has reached an agreement with the
37 third party, in writing, acknowledging the third party's obligation to pay
38 the subrogated interest;
39 (b) If the employee alleges or asserts a position in the third party
40 claim adverse to the employer, then the commission shall have jurisdiction
41 to determine a reasonable fee, if any, for services rendered to the
42 employer;
43 (c) If there is a joint effort between the employee and employer to pur-
2
1 sue a recovery from the third party, then the commission shall have juris-
2 diction to determine a reasonable fee, if any, and apportion the costs and
3 attorney's fees between the employee and employer.
4 (5) If the amount recovered from the third party exceeds the amount of
5 the subrogated portion payable to the employer for past compensation benefits
6 paid, then to the extent the employer has a future subrogated interest in that
7 portion of the third party recovery paid to the employee, the employer shall
8 receive a credit against its future liability for compensation benefits. Such
9 credit shall apply as future compensation benefits become payable, and the
10 employer shall reimburse the employee for the proportionate share of
11 attorney's fees and costs paid by the employee in obtaining that portion of
12 the third party recovery corresponding to the credit claimed. The employer
13 shall not be required to pay such attorney's fees and costs related to the
14 future credit prior to the time the credit is claimed. However, the employer
15 and employee may agree to different terms if approved by the industrial com-
16 mission.
17 (6) If death results from the injury or occupational disease and if the
18 employee leaves no dependents entitled to benefits under this law, the surety
19 shall have a right of action against the third party for recovery of income
20 benefits, reasonable expenses of medical and related services and burial
21 expense actually paid by the surety and for recovery of amounts paid into the
22 industrial special indemnity account pursuant to section 72-420, Idaho Code,
23 and such right of action shall be in addition to any cause of action of the
24 heirs or personal representatives of the deceased.
25 (7) All rights and restrictions herein granted to the employer have pre-
26 viously been intended to be, and are hereby expressly granted to the indus-
27 trial special indemnity account.
28 SECTION 2. This act shall be in full force and effect on and after July
29 1, 2000.
AH0549
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
Moved by Lake
Seconded by Ridinger
IN THE HOUSE OF REPRESENTATIVES
HOUSE AMENDMENT TO H.B. NO. 549
1 AMENDMENT TO SECTION 1
2 On page 1 of the printed bill, in line 38, delete "a" and insert: "the";
3 delete lines 39 through 42; in line 43, delete "(c)" and insert: "(b)"; on
4 page 2, in line 4, delete "(d)" and insert: "(c)".
STATEMENT OF PURPOSE
RS 09697
The purpose of this legislation is to further clarify the
circumstances and conditions under which an employer must
pay a portion of the claimant's attorney's fees in workers'
compensation third party liability cases.
Under current law the employer is required to pay a proportionate
share of the claimant's costs and attorney's fees when there is a
recovery from a third party regardless of whether: (a) the employer
has already reached a written agreement with the third party, (b)
the employer has already commenced action on their own behalf against
the third party, or (c) there is a conflict of interest between the
claimant's attorney and the employer regarding the case.
This bill will remove the requirement that the employer pay a
proportionate share of the claimant's attorney's fees if any of the
three conditions listed above exist. It will also allow for a joint
effort between the employee's (injured worker's) attorney and the
employer, and their attorney, to pursue a recovery from the third
party, with the Industrial Commission determining a reasonable
attorney fee, if appropriate, and apportioning the legal costs
between the employee and employer.
Under this legislation, employers will pay any claimant's attorney fees
in third party cases when such fees are in fact earned by the claimant's
attorney.
FISCAL NOTE
There will be no impact to the General Fund.
CONTACT: Rep. Dennis Lake
Dawn Justice Idaho Association of Commerce and Industry
343-1849
STATEMENT OF PURPOSE/FISCAL NOTE H 549