dissenting.
I dissent from the majority opinion, since I view it as an invasion of the fact finding process of the Industrial Commission and because I believe it inappropriately establishes a new standard for the award of attorney’s fees.
As noted by the majority, claimant was injured in what the commission determined was a compensable accident under the Workmen’s Compensation Law. In response to claimant’s application for hearing, counsel for surety wrote claimant’s counsel, “I can cite cases from other jurisdictions that are closer on the facts if we go to hearing but, frankly, I would rather settle the case by a reasonable compromise. Your demand of $5,000 to lump this out is just too much.” Following hearing, the commission found the injury to be a compensable accident, awarded claimant approximately $1,500, and held that there had been an unreasonable denial of the claim by the surety, warranting an award of attorney’s fees.
Counsel for claimant had a fee agreement providing, “If a lawsuit is instituted, 33 V3 per cent of any amount recovered through his efforts or attorney’s fees awarded by the court, whichever is greater.” Counsel for claimant contended at the commission and contends here that attorney’s fees should be awarded in the amount of $3,272.50.
Under the fee agreement between claimant and her counsel, the commission then had the option of awarding 33V3 per cent of claimant’s recovery or any other sum it deemed reasonable to claimant as attorney’s fees. I find nothing in the decision of the commission indicating it felt bound to award only 33*/3 per cent of claimant's recovery as attorney’s fees. Rather, the commission stated: “The commission also observes that the issues involved in the matter did not involve any novel or difficult issues.” While we are not favored with a reporter’s transcript, the findings of fact and the award by the referee indicate the hearing was relatively brief, taking less than one day. Rather than speculating that the commission felt bound to award only 33V3 per cent of claimant’s award as attorney’s fees, I prefer to note that the commission ordered, “Claimant’s counsel is ordered to submit an affidavit of services rendered so the commission can set the appropriate amount of attorney’s fees.” The commission thereafter stated, “Having reviewed all of the post decision memoranda and affidavits submitted by the attorneys of record in the case, the commission enters the following order fixing the amount of attorney’s fees due in this matter.” The commission thereafter found that the 33V3 per cent contingent fee agreement entered into by the parties was a reasonable fee. Although not expressly stated, I believe the commission could have well believed that the case should have been settled rather than litigated or that the time claimed to have been expended by claimant’s counsel was unreasonable, in view of the simple issues presented and the brevity of the hearing, or both. In any event, there can be no quarrel but that the commission awarded what it considered to be a reasonable attorney’s fee. In the absence of a manifest abuse of discretion, I believe the setting of such a fee to be a function of the commission rather than this *19Court, and I would not disturb the commission’s finding and its decision. Personally, I probably would have awarded a larger fee, but I am not the commission.
I would note that the Industrial Commission has not been reluctant to assess attorney’s fees against a recalcitrant surety who unreasonably denied compensation payment. Nor have I observed that injured workmen have had difficulty pursuing meritorious claims. As noted by the commission in the instant case, this Court has continued to hold, Clark v. Sage, 102 Idaho 261, 629 P.2d 657 (1981), Maile v. Safeway Stores, Inc., 93 Idaho 61, 457 P.2d 400 (1969), that the award of attorney’s fees under the instant circumstances was not punitive, but compensatory, as making the claimant whole and providing sure and certain relief for injured workmen and their families and dependents.
I would affirm the decision of the Industrial Commission.
BAKES, J., concurs.