IN THE WORKERS' COMPENSATION
COURT OF THE STATE OF MONTANA
ORDER DENYING REQUEST FOR WRIT
After this Court entered judgment and the Montana Supreme Court affirmed
that judgment, the claimant's attorney requested the Court issue a Writ
of Execution for attorney fees. He submitted a proposed writ.
A request for a Writ of Execution is denied where the proposed writ is
prolix and goes beyond the relief granted by the Court.
Execution. A request for a Writ of Execution is denied where the proposed
writ is prolix and goes beyond the relief granted by the Court.
See Writ of Execution.
in this matter was entered on January 15, 2004. With respect to the attorney
fees due to Patsy Siaperas' (claimant) attorney, this Court held:
attorney is entitled to a fee only on the additional benefits he has
secured for the claimant. He secured the claimant an additional $14.77
per week. However, claimant is obligated to repay the State Fund for
a substantial overpayment resulting from the award of social security
disability benefits. While I make no final determination as the retrospective
benefit to claimant, it is approximately $5,000.00, thus there is still
an overpayment in excess of $20,000.00. Thus, there are no retrospective
monies owed by the State Fund to which the lien can attach and any future
payments may be reduced by the remaining offset.
¶70 I therefore
determine that the lien applies only to future payments and authorize
the State Fund to deduct $5.91 ($14.77 x 2 x 20%) from claimant's
future biweekly benefits and send that amount directly to her attorney.
Claimant's attorney will have to seek payment of his fees on the $5,000.00
directly from claimant.
¶71 In authorizing
the deduction from future payments, I make no determination concerning
the amount of the overpayment to claimant or the manner in which it
may be recovered. As I noted earlier, the social security offset provisions
permit the State Fund to cut off all benefits until the overpayment
is repaid in full. If benefits are terminated to recover the overpayment,
there will be nothing from which to deduct the attorney fees. The lien
attaches only to future benefits actually paid.
4 (footnotes omitted).) My decision in this matter, including the foregoing
determination, was affirmed on appeal. 2004 MT 264N. Thus, the forgoing
determination regarding attorney fees is res judicata as to the
entitlement of the claimant's attorney to attorney fees.
the claimant's attorney has submitted a "Writ of Execution" which he asks
the Court to issue. The proposed writ is prolix. It authorizes fees beyond
what were authorized in the original decision. The Court therefore declines
to issue the requested writ.
DATED in Helena, Montana,
this 3rd day of December, 2004.
c: Mr. Robert C. Kelleher
Mr. Charles G. Adams
Submitted: December 1, 2004