Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

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

Harnish Group, Inc. v. Moore (6/15/2007) sp-6131, 160 P3d 146

     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).

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC