That is the best word to describe an order from the Utah Court of Appeals in a case that could result in attorney fees being paid in addition to any awards made in workmen's compensation cases decided by the State Industrial Commission.The order from the appeals court denied a motion by the commission, Olympus Oil Co. and the Worker's Compensation Fund to dismiss an appeal filed by Stanley L. Harrison, Vernal, who was injured Nov. 16, 1982, while working for Olympus Oil.
He appealed to the Court of Appeals, asking for interest on the award he received from the commission. The commission, the oil company and the compensation fund filed a cross-appeal on two issues and made a motion to have the court dismiss Harrison's appeal, but the order denied the motion.
Signed by Judge Gregory K. Orem, the order sends the case back to the commission for 60 days to review its "prior conflicting decisions" and allow the commissioners to "hear and reconsider the issues raised below by the request for reconsideration."
If the commission takes no action in that period, the appeal will go back to the court for further action. In any event, most observers believe the issue ultimately will go the Utah Supreme Court because of the case's significance.
Industrial Commission Chairman Stephen M. Hadley and Commissioner John Florez are confused what the order means and likewise is Kevin M. McDonough, an attorney for the compensation fund. James Black, McDonough's co-attorney, was on vacation and unavailable for comment.
Also on vacation this week was Virginius Dabney, the attorney who represented Harrison before the commission in an attempt to get benefits to cover his injury nearly six years ago.
McDonough said when Black returns next week they will meet with other attorneys to decide what their next move will be. Hadley said he may get attorneys from both sides together and hold a hearing or a meeting because he isn't certain the commission should take some action without involving everyone.
Harrison suffered a severe knee injury while working for Olympus Oil and received some workmen's compensation benefits. But when he insisted on having a second operation, fund officials cut off his benefits and he hired Dabney to try to get them restored.
On Jan. 7, 1988, administrative law judge Gilbert A. Martinez issued an order that said any attorney fees that are the result of a case filed before the commission be paid in addition to the benefits that might be awarded rather than deducted from the award as has been tradition.
In late April, Florez and former commissioner Lenice L. Nielsen upheld Martinez's decision while Hadley dissented on the part regarding the attorney fee payment but agreed on some other parts of the decision.
Shortly after the order was issued, Nielsen retired and during a June commission meeting, a motion to reconsider the 2-1 decision was filed by Black and McDonough. Hadley believed that as commission chairman he had the authority to grant the motion for reconsideration.
Florez disagreed and issued his own order that said the 2-1 decision was final and attempted to deny the motion. It may be the confusion over the commission's procedure the appeals court wants straightened out before the appeal moves forward.
Another factor in the puzzle is what role newly appointed Commissioner Thomas R. Carlson will play, if any, as the other two commissioners attempt to sort out what happens next. If Carlson refuses to get involved, it could leave the commission deadlocked over the issue and if 60 days passes without any action taken, the order will stand and be considered by the appeals court.