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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harnish Group, Inc. v. Moore (6/15/2007) sp-6131
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| HARNISH GROUP, INC., d/b/a | ) |
| NC MACHINERY COMPANY; and | ) Supreme Court No. S- 12238 |
| ALASKA NATIONAL INSURANCE | ) |
| COMPANY, | ) Superior Court No. |
| ) 3AN-04-12249 CI | |
| Appellants, | ) |
| ) O P I N I O N | |
| v. | ) |
| ) No. 6131 - June 15, 2007 | |
| JERRY D. MOORE, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Fred Torrisi, Judge.
Appearances: Richard L. Wagg, Russell,
Tesche, Wagg, Cooper & Gabbert, Anchorage,
for Appellants. No appearance by Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
After injuring his back at work, Jerry Moore received
workers compensation benefits and participated in a reemployment
plan. When that plan did not work out, another was developed.
His employer, NC Machinery Company, changed his benefits to
permanent total disability benefits on January 23, 2004 but five
days later signed the second reemployment plan. On January 27,
2004, an attorney entered an appearance for Moore; a short while
later, the attorney filed a workers compensation claim on Moores
behalf. In response to this claim, NC Machinery admitted that it
was liable for permanent total disability benefits but denied
that it should have to pay attorneys fees, asserting that it had
not controverted the claim. The Alaska Workers Compensation
Board awarded statutory minimum attorneys fees under
AS 23.30.145(a) after finding that NC Machinery had controverted
in fact Moores claim. NC Machinery appealed to the superior
court, which affirmed the Boards ruling. NC Machinery appeals
the Boards determination that it controverted Moores claim.
Because NC Machinery did not controvert Moores claim, we reverse
the award of statutory minimum attorneys fees under AS
23.30.145(a). But we remand for an award of reasonable attorneys
fees under AS 23.30.145(b) because the Boards findings that NC
Machinery resisted payment of benefits and that Moores attorney
played a significant role in his receipt of benefits are
supported by substantial evidence.
II. FACTS AND PROCEEDINGS
Jerry Moore hurt his back moving a sixty-pound battery
while working for NC Machinery Company in Fairbanks. NC
Machinery promptly began to pay temporary total disability (TTD)
benefits to Moore. Almost a year after the injury, Moores
treating physician, Dr. George Vrablik, notified NC Machinery
that Moore would be unable to return to his usual work. Shortly
thereafter, both Moore and Alaska National Insurance Company, NC
Machinerys workers compensation insurer, asked that Moore be
evaluated for reemployment benefits.1 On September 16, 2002, the
Reemployment Benefits Administrator (RBA) found Moore eligible
for reemployment benefits. After an evaluation by his chosen
rehabilitation specialist, Moore selected the vocational goal of
parts salesperson. On December 23, 2002, Moore was involved in a
car accident that reinjured his back and left him medically
unstable. Because of the car accident, Moores reemployment plan
was suspended to give him time to recover from his new injuries.
On February 13, 2003, Moore signed a fee agreement with
Robert Beconovich to represent him in his workers compensation
case. Moore and his wife decided to retain counsel in the
workers compensation case because they were concerned after the
motor vehicle accident that things were going to be getting real
complicated and that we needed representation. On February 14,
2003, the Moores sent a letter to NC Machinery, telling it that
Beconovich was now handling the workers compensation case. The
Moores continued to have direct contact with NC Machinery and the
rehabilitation specialists.
On April 9, 2003, Moore was involved in a second car
accident, which he said caused further exacerbation of his back
injuries. Dr. Vrablik did not think that Moore had suffered any
permanent injury from the April 9 motor vehicle accident. On May
9, 2003, Dr. Vrablik reviewed and approved a job analysis,
releasing Moore to work three hours a day, five days a week; the
job was a trial work placement in hardware or sporting goods
sales. Moore began his trial work as a salesperson in sporting
goods on May 19, 2003; his new employer provided him with a
padded stool to use when he needed to get off his feet. After
three days at the trial work placement, Moore indicated that he
was in too much pain to continue.
In the meantime, NC Machinery arranged for an employers
independent medical examination (IME) of Moore. On May 14, 2003,
Dr. Shawn Hadley, a specialist in physical medicine and
rehabilitation, examined Moore and reviewed his medical records
and reports. Dr. Hadley expressed the opinion that Moores
employment with NC Machinery was a substantial factor in Moores
back-related complaints and chronic pain problems, and she
recommended that Dr. Paul Craig, a neuropsychologist, evaluate
Moore as part of the IME. Dr. Craig evaluated Moore on September
3, 2003. His testing showed that Moore had borderline
intellectual functioning and a learning disorder. Dr. Craig
recommended that any training for Moore be by seeing and doing
and stated that [o]n-the-job training would be critical for his
success.
On July 22, 2003, Dr. Vrablik determined that Moore was
medically stable as of June 24, 2003, and rated him as having a
thirteen percent whole person impairment. NC Machinery changed
Moores TTD benefits to permanent partial impairment (PPI)
benefits effective June 25, 2003. Moore continued to work with
his rehabilitation counselors; they wrote to the RBA in August
2003, informing him that they needed an assessment of Moores
functional capacities before they could develop a new
reemployment plan. NC Machinery reclassified Moores PPI benefits
as 41K benefits after Moore had used up his PPI benefits.2
Dr. Vrablik arranged for Moore to have a physical
capacities evaluation on October 8-9, 2003 in Fairbanks as part
of the vocational rehabilitation efforts. The physical
capacities evaluation showed limitations in all areas, and the
evaluator concluded that Moore was not able to work full time or
at a sedentary job.
After Moore was found eligible for Social Security
disability benefits, he told the rehabilitation specialists that
he felt unable to continue in reemployment efforts because he did
not believe that he could be retrained or employed. At some
point, however, the reemployment process began again, with Moores
participation. Moore was tested at Sylvan Learning Center in
December 2003 to assess his educational level. Moores vocational
counselors developed a reemployment plan to train Moore as a
check cashier, which was a more sedentary job than the sales job
he had previously attempted. To prepare him for this work, Moore
first needed to attend six months of basic adult education
classes. On January 15, 2004, Dr. Vrablik approved Moores
participation in the classes. The rehabilitation specialists
sent the reemployment plan to Moore and NC Machinery for
signature. On January 27 Moore told the rehabilitation
specialists that he wanted to review the plan with his attorney
before he signed it. The next day, NC Machinery signed the
reemployment plan.
On January 27, 2004, Beconovich filed his entry of
appearance with the Board. On January 30, 2004, NC Machinery
filed a compensation report showing that it had reclassified the
reemployment (41K) benefits as permanent total disability (PTD)
benefits. It sent Moore his first PTD check on January 23, 2004.
Moore received this check, labeled PTD, for an increased amount
of money on January 27, 2004.
Beconovich later filed a workers compensation claim on
Moores behalf. NC Machinery received the claim on February 4; it
was filed with the Board on February 10, 2004. The claim sought
PTD benefits from July 2, 2001 (the date of injury), as well as
interest, attorneys fees, and costs. In its answer to the claim,
NC Machinery admitted liability for PTD benefits from June 25,
2003 (the date of medical stability) through continuing but
denied the claims for attorneys fees and interest. As an
affirmative defense, NC Machinery alleged that Moores disability
benefits were converted to permanent total disability benefits
prior to an attorney entering an appearance and prior to any
claim being made. Therefore, no attorney[s] fees are due. NC
Machinery served its answer on Moore on February 10 and filed the
answer with the Board on February 17.
On February 4, 2004, Dr. Hadley again examined Moore to
complete her IME. She offered the opinion that Moores PPI rating
should be only five percent of the whole person, noted validity
issues with the physical capacities evaluation done in October
2003, and recommended that another one be performed in Anchorage
if reemployment options remained an issue. She saw no reason
that Moore could not be employed full time.
On February 12, after receiving NC Machinerys answer
admitting liability for PTD benefits, Beconovich wrote to the
rehabilitation specialists who worked with Moore, asking them to
close Moores reemployment case. They promptly wrote the RBA,
telling him that they were ending their work on Moores
reemployment benefits.
The Board held a hearing solely on the issue of
attorneys fees on August 26, 2004.3 The only two witness were
Ryan LeVeque, the claims adjuster for Alaska National, and Lorrie
Moore, Moores wife. The focus of Moores request for fees was
that the second reemployment plan was unreasonable and the
employers pursuit of it demonstrated its resistance to paying PTD
benefits. LeVeque testified that he had told Moores vocational
rehabilitation counselors on January 21, 2004 that he would be
reclassifying Moores benefits as PTD. He stated that he had
given notice to the Moores of the conversion to PTD benefits by
means of the January 30 compensation report. He testified that
he did not recognize the Moores letter informing him of
Beconovichs representation as adequate to establish that
Beconovich was in fact their attorney. He also indicated that
before receiving the workers compensation claim on February 4,
2004, no one had asked telephonically or in writing that Moores
benefits be changed to PTD benefits. He stated that nothing that
Beconovich had done had caused him to change the benefits from
41K benefits to PTD benefits.
Mrs. Moore testified that she was the family record
keeper and told the Board when and why Moore retained Beconovich.
She also indicated that the Moores disagreed with the second
reemployment plan and had explained their concerns to the
rehabilitation specialists. She said that she had faxed many
documents to Beconovich over the course of the year to keep him
apprised of what was going on in the case.
In its August 27, 2004 decision, the Board found that
reemployment benefits were not terminated until February 12, 2004
and were terminated only at the employees request. It found that
it was very predictable that Moore would file for PTD benefits
and that Beconovich filed an entry of appearance and claim before
Moore had notice of NC Machinerys reclassification of benefits.
It further found that NC Machinery attempted to further the
reemployment plan after it began to pay PTD benefits and that the
employer attempted to resist the payment of PTD benefits. It
found that the employees attorney was instrumental in securing
and preserving the PTD benefits, that the PTD benefits were of
greater value than the reemployment benefits, and that Beconovich
provided valuable services in the securing of the PTD benefits.
It then awarded statutory minimum attorneys fees under AS
23.30.145(a), stating that they were reasonable given the
successful prosecution of the claim. It awarded statutory
minimum attorneys fees on all additional benefits paid to the
employee retroactive as PTD benefits on or about January 23,
2004, and on all PTD benefits paid to the employee thereafter,
and continuing. Its order directed NC Machinery to pay the
attorneys fees.
NC Machinery petitioned for reconsideration of the
Boards award of attorneys fees. It contended that the Board had
incorrectly awarded fees under AS 23.30.145(a) because AS
23.30.145(a) requires that a claim be controverted and the
decision did not identify the manner in which the claim was
controverted. NC Machinery also pointed out that the issue
identified at the beginning of the decision was whether to award
fees under AS 23.30.145(b) and that the decision used the
language of subsection .145(b), even though Moore had asked for
fees under subsection .145(a).
On September 24, 2004, the Board entered its decision
and order on reconsideration. The reconsideration decision
modified its initial decision in response to the petition in two
minor respects and affirmed all other aspects of the decision.
The Board changed its August decision so that the issue
identified was whether Moore was entitled to attorneys fees under
AS 23.30.145, rather than subsection .145(b). The Board also
clarified that NC Machinerys resistance to payment, mentioned in
its first decision, was actually a controversion in fact. The
Board also found that the letter from the Moores to NC Machinery
was adequate notice that Beconovich was representing Moore. It
found that the adjuster was not credible because his testimony
that he terminated reemployment efforts when he began PTD
benefits was inconsistent with the reports from the
rehabilitation specialists and his signing the reemployment plan
on January 28, 2004. The Board reconfirmed its finding that it
was predictable that Moore would file for PTD benefits.
The Board also found that NC Machinery resisted payment
of PTD benefits until it filed its answer, so that the workers
compensation claim was filed while NC Machinery was still trying
to undermine Moores continuing entitlement to PTD benefits. The
Board noted that even though the adjuster had reclassified the
benefits as PTD benefits, he just as easily could have
reclassified them again at some later date if NC Machinery was
successful in its pursuit of a reemployment plan. The Board
concluded that it [could not] find the employer would have
provided PTD benefits to the employee at the time it did, but for
the representation of the employee by Mr. Beconovich, and found
that Beconovich played a significant, if not decisive, role in
securing Moores PTD benefits. It thus confirmed its award of
attorneys fees under AS 23.30.145(a).
NC Machinery appealed to the superior court; the
superior court affirmed the Boards ruling based on substantial
evidence and reasonableness. NC Machinery appeals.
III. DISCUSSION
A. Standard of Review
In a workers compensation appeal, we directly review
the Boards findings and decision.4 Whether the Board had the
authority to award attorneys fees under AS 23.30.145(a) is a
question of statutory interpretation involving no administrative
expertise; therefore, the substitution-of-judgment standard is
the appropriate standard of review.5 We review the Boards
factual findings to see if they are supported by substantial
evidence.6 Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.7
B. The Board Erred in Awarding Statutory Minimum Fees
Rather than Reasonable Fees.
1. Statutory provisions
At issue in this case is the award of statutory minimum
attorneys fees under the Alaska Workers Compensation Act.8
Alaska Statute 23.30.145 provides for the award of attorneys fees
in workers compensation cases. Subsection (a) authorizes the
Board to award attorneys fees as a percentage of the amount of
benefits awarded to an employee when an employer controverts a
claim.9 An award under subsection .145(a) may include continuing
fees on future benefits.10 In contrast, subsection (b) requires
an employer to pay reasonable attorneys fees when the employer
delays or otherwise resists payment of compensation and the
employees attorney successfully prosecutes his claim.11
In a workers compensation case an employer can contest
a claimants entitlement to benefits in two ways. After a report
of injury is filed, if an employer disputes its liability and
refuses to pay benefits, it must file a notice of controversion.12
Whether or not it has filed a notice of controversion, an
employer may also deny liability for benefits in its answer to a
workers compensation claim.13
We have previously held that a formal notice of
controversion is not necessary for an award of attorneys fees
under AS 23.30.145(a).14 A controversion in fact is adequate to
require payment of statutory minimum fees.15 In this case NC
Machinery never filed a notice of controversion. It filed an
answer to Moores workers compensation claim in which it admitted
that he was eligible for PTD benefits as of the date of medical
stability but denied that it should pay attorneys fees. The
Board awarded attorneys fees to Moore pursuant to AS 23.30.145(a)
after the Board found, in its decision on reconsideration, that
NC Machinery had controverted in fact Moores claim.
2. The Board erred in awarding fees under subsection
.145(a).
NC Machinery contends that the Board erred in awarding
fees under subsection .145(a). It argues that the Boards
analysis in evaluating Moores request for attorneys fees actually
relied on the language and standards of AS 23.30.145(b) rather
than subsection .145(a), which requires a controversion in fact.
NC Machinery maintains that its actions on Moores claim do not
meet the standard for a controversion in fact; it alleges that a
controversion-in-fact occurs where the employer explicitly denies
the claimed benefits, and continues to do so throughout the
course of litigation in which the claimant ultimately prevails
and is awarded the disputed benefits.
We have never delineated the exact actions an employer
must take to oppose a claim in order for there to be a
controversion in fact. But we previously upheld the imposition
of subsection .145(a) fees when an employer did not unqualifiedly
accept the employees claim for PTD compensation.16 Here, NC
Machinery unqualifiedly accepted Moores claim for PTD benefits in
its answer to the claim, so it cannot have controverted in fact
Moores claim.
We therefore conclude that the Board erred in applying
AS 23.30.145(a) in Moores case. NC Machinery never controverted
in fact Moores claim for benefits because NC Machinerys answer to
Moores workers compensation claim admitted liability for PTD
benefits. All of the actions that the Board identified as
showing NC Machinerys resistance to paying Moore PTD benefits
occurred before Moore filed a workers compensation claim.
Moreover, AS 23.30.145(a) provides, in part, [w]hen the
board advises that a claim has been controverted, in whole or in
part, the board may direct that the fees for legal services be
paid by the employer or carrier in addition to compensation
awarded . . . . (Emphasis added.) The Alaska Workers
Compensation Act does not define the term claim.17 However, we
have previously construed the term claim to mean the written
application for benefits that is filed with the Alaska Workers
Compensation Board, not the initial report of injury.18 To
determine whether there has been a controversion in fact in cases
where an employer does not file a notice of controversion, the
Board needs to look at the employers answer to a claim for
benefits and its actions after the claim is filed to determine
whether the employer has controverted in fact the employees claim
for benefits.
In Moores case, the Board, on reconsideration, decided
that NC Machinerys resistance to paying PTD benefits was a
controversion in fact. The Board found in this case that NC
Machinery resisted paying Moores PTD benefits by continuing the
reemployment process after it had reclassified the benefits.
Specifically, the adjuster for NC Machinery signed the
reemployment plan after he had converted Moores benefits to PTD.
Based on the actions of the rehabilitation specialists working
with Moore, the Board did not believe that the adjuster informed
the specialists that NC Machinery considered Moore to be
permanently totally disabled and therefore not in need of
continuing reemployment benefits.19 Although substantial evidence
in the record supports the Boards conclusion that NC Machinery
resisted paying Moore PTD benefits, the actions that the Board
identified as resistance cannot serve as the basis for a
controversion in fact of Moores claim because Moores claim had
not been filed when the actions occurred.20 In order for an
employer to be liable for attorneys fees under AS 23.30.145(a),
it must take some action in opposition to the employees claim
after the claim is filed.
NC Machinery admitted liability for PTD benefits in its
answer to Moores claim. Because NC Machinery never actively
opposed Moores workers compensation claim after he filed it, the
Board erred in holding that NC Machinery controverted in fact
Moores claim.
3. Moore is entitled to reasonable fees under AS
23.30.145(b).
Although NC Machinery did not controvert in fact Moores
claim for PTD benefits, we also conclude that there is
substantial evidence in the record to support an award of
reasonable fees under AS 23.30.145(b). Fees may be awarded under
subsection .145(b) when an employer delays payment or otherwise
resists the payment of compensation and an employee retains an
attorney in the successful prosecution of the claim.21 We
recognize that the Board did not award attorneys fees pursuant to
subsection .145(b), even though it relied on Board precedent
construing subsection .145(b) in its initial decision.22 But we
can affirm the Boards decision to award fees on an alternative
ground23 and here the Board made adequate factual findings to
support the imposition of reasonable attorneys fees against NC
Machinery.
The first element for an award of fees under subsection
.145(b) is that the employer otherwise resisted payment of
benefits. The Boards finding that NC Machinery resisted payment
of the PTD benefits is supported by substantial evidence. The
Board found that NC Machinery was still engaged in the
reemployment process after it reclassified benefits based on
LeVeques signing the reemployment plan on January 28. The Board
did not believe LeVeques testimony that he terminated
reemployment efforts when he began to pay PTD benefits because it
was not consistent with other evidence, and the Board alone has
the power to determine the credibility of witnesses.24 LeVeque
never explained why he changed the benefits to PTD when he did;
he merely testified that nothing Beconovich did caused him to
reclassify the benefits. The Board also found that even though
NC Machinery had reclassified the benefits as PTD benefits on
January 23, it just as easily could have reclassified them later
if the reemployment benefits process was successful. Because an
employee cannot be considered permanently totally disabled as
long as he is involved in the rehabilitation process,25 any
attempt by NC Machinery to prolong the reemployment process could
reasonably be seen as an attempt to undermine Moores PTD claim.
The second element that must be shown in a subsection
.145(b) attorneys fees claim is that the claimant employed an
attorney in the successful prosecution of the claim. The Board
decided based on its review of the unique facts of this case,
that it could not find that the employer would have provided PTD
benefits to the employee at the time it did, but for the
representation of the employee by Mr. Beconovich. NC Machinery
attacks the Boards conclusion that Moores attorney played any
role in securing PTD benefits for Moore. It alleges that
Beconovich did absolutely nothing prior to his client receiving
PTD benefits and was merely lurking in the background, expending
effort only to get an award of attorneys fees.
Again, we find that the Boards conclusion is supported
by substantial evidence. Beconovich filed a claim on Moores
behalf. Although NC Machinery had already changed the benefits
to PTD by the time the claim was filed with the Board, the filing
of the claim forced NC Machinery to decide whether to admit PTD
liability to the Board or contest it. It chose to admit it.
Without the filing of the claim, however, NC Machinery could, as
the Board observed, have simply reclassified Moores benefits at a
later date. Mrs. Moores testimony provided additional evidence
about Beconovichs work on the case.26 Beconovich also wrote to
the rehabilitation specialists and told them to close the
reemployment benefits file. By doing this, he ensured that his
client could be considered permanently totally disabled, as Moore
would no longer be involved in the rehabilitation process.27
The Board found that LeVeque did not reclassify the
benefits as PTD voluntarily but instead did so in the face of an
impending claim for those benefits by an experienced attorney.
It further found that Beconovich played a significant, if not
decisive role, in Moores receipt of PTD benefits. NC Machinery
contends that there is no evidence to support the Boards
conclusions. But the Board can base its decision not only on
direct testimony, but also on the Boards experience, judgment,
observations, unique or peculiar facts of the case, and
inferences drawn from all of the above.28 The Board could thus
permissibly decide that Beconovichs representation of Moore
resulted in the PTD award based either on Moores unique facts or
on its own experience of adjusters reactions to the presence of a
claimants attorney.
The Board also made a finding that NC Machinery was
aware that Moore had retained Beconovich for about a year before
PTD benefits were paid. NC Machinery does not dispute that this
finding is supported by substantial evidence; instead, it seems
to read the Boards remark as a finding that the letter served as
a formal entry of appearance, and it challenges the correctness
of this finding. But the argument made by NC Machinery that a
formal entry of appearance is required under Board regulations is
not material to the Boards decision. Even if NC Machinery is
correct and the letter cannot serve as an entry of appearance,
there is substantial evidence in the record to support the Boards
conclusion that NC Machinery knew Beconovich was representing
Moore. A reasonable mind could conclude that the letter should
have alerted NC Machinery to the presence of an attorney in the
case. Mrs. Moore testified that LeVeque had expressed concern
about communicating with her because of Beconovichs involvement.
Others involved in the case understood that Beconovich was
assisting Moore: Dr. Craig, NC Machinerys expert, provided his
report directly to Beconovich, and the vocational rehabilitation
specialists also supplied a copy of their report to Beconovich
before the reclassification of benefits. Mrs. Moore testified
that she tried to inform everybody who had any interest in the
case about Beconovichs representation. Thus, the Boards findings
that NC Machinery was aware of Beconovichs involvement and that
the attorneys actions played a significant role in facilitating
Moores receipt of PTD benefits are supported by substantial
evidence. Because the Board made findings based on substantial
evidence that satisfied both requirements for an award of
attorneys fees pursuant to AS 23.30.145(b), Moore is entitled to
reasonable attorneys fees in this case.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the superior
courts decision affirming the Board and REMAND the case to the
Board for a determination of what reasonable fees are due under
AS 23.30.145(b).
_______________________________
1 In this opinion, we refer to both NC Machinery and
Alaska National as NC Machinery.
2 Under AS 23.30.041(k), employers are required to
provide additional compensation to workers participating in the
reemployment process if PPI benefits are exhausted before the
completion of the reemployment plan.
3 Moore did not ask that the hearing include a
determination that benefits from the date of injury to the date
of medical stability be characterized as PTD benefits rather than
TTD benefits.
4 Rockney v. Boslough Constr. Co., 115 P.3d 1240, 1242
(Alaska 2005) (citing Handley v. State, Dept of Revenue, 838 P.2d
1231, 1233 (Alaska 1992)).
5 Underwater Constr., Inc. v. Shirley, 884 P.2d 156, 158
(Alaska 1994).
6 DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).
7 Id. (quoting Grove v. Alaska Constr. & Erectors, 948
P.2d 454, 456 (Alaska 1997)).
8 AS 23.30.001.400.
9 AS 23.30.145(a) provides, in part:
Fees for legal services rendered in respect
to a claim are not valid unless approved by
the board, and the fees may not be less than
25 percent on the first $1,000 of
compensation . . . . When the board advises
that a claim has been controverted, in whole
or in part, the board may direct that the
fees for legal services be paid by the
employer or carrier in addition to
compensation awarded; the fees may be allowed
only on the amount of compensation
controverted and awarded. When the board
advises that a claim has not been
controverted, but further advises that bona
fide legal services have been rendered in
respect to the claim, then the board shall
direct the payment of the fees out of the
compensation awarded.
10 Gibeau v. Kollsman Instrument Co., 896 P.2d 822, 822-23
(Alaska 1995) (refusing to award subsection .145(a) attorneys
fees on a PTD award as a lump sum).
11 AS 23.30.145(b) provides:
If an employer fails to file timely notice of
controversy or fails to pay compensation or
medical and related benefits within 15 days
after it becomes due or otherwise resists the
payment of compensation or medical and
related benefits and if the claimant has
employed an attorney in the successful
prosecution of the claim, the board shall
make an award to reimburse the claimant for
the costs of the proceedings, including
reasonable attorney[s] fees. The award is in
addition to the compensation or medical and
related benefits ordered.
12 AS 23.30.155(a). An employer who disputes liability
solely because another employer may be responsible for some or
all of the claim may still be required to pay benefits while the
dispute is pending. AS 23.30.155(d).
13 AS 23.30.110; 8 Alaska Administrative Code (AAC) 45.050
(2004).
14 Wien Air Alaska v. Arant, 592 P.2d 352, 365 (Alaska
1979), overruled on other grounds by Fairbanks N. Star Borough
Sch. Dist. v. Crider, 736 P.2d 770 (Alaska 1987); Alaska
Interstate v. Houston, 586 P.2d 618, 620 (Alaska 1978).
15 Houston, 586 P.2d at 620.
16 Shirley, 884 P.2d at 159.
17 AS 23.30.395; Jonathan v. Doyon Drilling, Inc., 890
P.2d 1121, 1123 (Alaska 1995).
18 Jonathan, 890 P.2d at 1124. In Jonathan, we noted that
[t]here is a presumption that the same words used twice in the
same act have the same meaning when we concluded that the term
claim referred to the written application for benefits. Id. at
1123 (quoting Kulawik v. ERA Jet Alaska, 820 P.2d 627, 634
(Alaska 1991)).
19 AS 23.30.041(k) provides, in part, that an employee may
not be considered permanently totally disabled so long as the
employee is involved in the rehabilitation process . . . .
20 NC Machinery argues that its efforts to offer [Moore]
the opportunity to re-enter the work force should not serve as
the basis for a finding of a controversion in fact. Because we
conclude that NC Machinery did not controvert in fact Moores
claim, we do not need to address this question.
21 AS 23.30.145(b).
22 Thompson v. Alyeska Pipeline Serv. Co., AWCB Decision
No. 98-0315 (December 14, 1998).
23 See McGee v. State, 614 P.2d 800, 805-06 n.10 (Alaska
1980).
24 AS 23.30.122.
25 AS 23.30.041(k).
26 In its pleadings before the Board, NC Machinery
conceded that Beconovich had provided valuable information and
assistance to the Moores in the form of counseling before
entering an appearance in the case.
27 AS 23.30.041(k).
28 Kodiak Oilfield Haulers v. Adams, 777 P.2d 1145, 1151
(Alaska 1989) (citing Fairbanks N. Star Borough v. Rogers &
Babler, 747 P.2d 528, 533 (Alaska 1987)); cf. 7 Arthur Larson &
Lex K. Larson, Workers Compensation Law 127.05[3] & 128.01
(2006).
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