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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sandra J. Rusch v. Southeast Alaska Regional Health Consortium and Alaska National Insurance Company, Brenda Dockter v SEARHC and Alaska National Insurance Company (12/6/2019) sp-7422
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are r equested to bring errors to the attention of the Clerk of the Appellate C ourts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
SANDRA J. RUSCH, )
) Supreme Court Nos. S-17069/17070
Appellant, ) (Consolidated)
)
v. ) Alaska Workers' Compensation
) Appeals Commission No. 17-001
)
SOUTHEAST ALASKA REGIONAL
)
HEALTH CONSORTIUM and ALASKA O P I N I O N
)
NATIONAL INSURANCE COMPANY,
)
Appellees. )
)
)
No. 7422 - December 6, 2019
)
BRENDA DOCKTER, )
)
Alaska Workers' Compensation
Appellant, ) Appeals Commission No. 17-002
)
v. )
)
SOUTHEAST ALASKA REGIONAL )
HEALTH CONSORTIUM and ALASKA )
NATIONAL INSURANCE COMPANY, )
)
Appellees. )
)
)
Appeals from the Alaska Workers' Compensation Appeals
Commission.
Appearances: J. John Franich, Franich Law Office, LLC,
Fairbanks, for Appellants. Michael A. Budzinski, Meshke
Paddock & Budzinski, Anchorage, for Appellees.
----------------------- Page 2-----------------------
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
STOWERS, Justice.
I. INTRODUCTION
Anattorneybegan representingtwo injured workers afterbothencountered
difficulties representing themselves in their workers' compensation claims against the
same employer. Both claimants then successfully resolved their claims through
mediation, with both receiving substantial settlements. The parties were unable to
resolve the question of their attorney's fees, so the Alaska Workers' Compensation
Board held hearings on that issue. The Board limited the witnesses at the hearings and
ultimately awarded significantly reduced attorney's fees in both claims. The Alaska
Workers' Compensation Appeals Commission affirmed the Board's decisions. Because
the Commission incorrectly interpreted our case law about attorney's fees, because the
Board denied the claimants the opportunity to present witnesses, and because the amount
of attorney's fees awarded to both claimants was manifestly unreasonable, we reverse
in part the Commission's decisions and remand for further proceedings.
II. FACTS AND PROCEEDINGS
A. Factual Summary Of Each Case Through Settlement
1. Rusch v. Southeast Alaska Regional Health Consortium
In June 2012 Sandra Rusch injured her back while working for Southeast
Alaska Regional Health Consortium (SEARHC) at its clinic in Klawock. Her healthcare
providers imposed various lifting restrictions while she received treatment. SEARHC
filed a controversion in October 2012 claiming it had no evidence to support time loss
from work. Rusch had fusion surgery on her lumbar spine in January 2013. Medical
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records show that doctors disagreed about the degree of "incorporation" of the fusion.
After the surgery Rusch's healthcare providers continued restrictions on lifting.
In January 2013 SEARHC paid Rusch temporary partial disability (TPD)
from June through December 2012 and began to pay temporary total disability (TTD)
as of early January. At about the same time SEARHC sent a form notice to the
Reemployment Benefits Section of the Board informing it that Rusch had "been totally
unable to return to [her] employment at the time of injury for 45 consecutive days as a
1 Its insurance adjuster handwrote that
result of the injury," beginning on June 24, 2012.
Rusch had received TPD from June 2012 until mid-December 2012 and had begun to
receive TTD in early January 2013. The only communication in the record from the
Board about reemployment benefits is a brief email to Rusch asking her to call if she had
questions.
Rusch was laid off from her job, purportedly due to a reduction in force, in
April 2013. Rusch had been disciplined the previous month for an incident she said was
related to "not lifting up to 50 pounds" as her job description required. Rusch's surgeon
had released her to "light duty as tolerated" effective March 1, 2013. The position she
previously held was advertised the month after her layoff and included the ability to lift
70 pounds as a job requirement.
In 2014 SEARHC offered Rusch "$15,000.00 in medical benefits to help
defray thecost ofadditional careother than fusion revision, if medically necessary within
the first year following Board approval" of a settlement; in exchange Rusch would give
1 See AS 23.30.041(c) (requiring notice of reemployment benefits to an
employee who has been unable to return to work for 45 consecutive days because of a
work-related injury). "Reemployment benefits are intended to return an injured worker
to remunerative employment when she cannot return to her former job or jobs for which
she has the relevant training or experience." Vandenberg v. State, Dep't of Health &
Soc. Servs., 371 P.3d 602, 607 (Alaska 2016).
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up all other compensation. The proposed agreement made clear that Rusch's future
medical benefits would be "restricted," specifically providing that SEARHC would "be
responsible for medical and related transportation benefits relating only to fusion
revision, if medically necessary within one year from the date of [Board] approval or
rejection of this Agreement." Rusch initially agreed, but she did not sign SEARHC's
proposed settlement document. SEARHC's attorney, Theresa Hennemann, informed
Rusch in May 2015 that her settlement authority had lapsed and that the workers'
compensation insurance carrier would be closing its file related to her claim.
Attorney David Graham of Sitka entered an appearance and filed a written
claim on Rusch's behalf in June 2015, seeking a number of compensation benefits
including TTD, permanent partial impairment (PPI), medical costs, and reemployment
benefits, and also claiming unfair or frivolous controversion. SEARHC filed an answer
and a controversion in late July denying that any further compensation was owed. In
October SEARHC offered to settle all claims for a total of $15,000, with $10,000 for
future medical benefits and $5,000 for attorney's fees. Rusch did not accept the offer.
The case was contentious,with anumber ofdiscovery disputes. The parties
later resolved all claims except attorney's fees through mediation. The settlement
agreement preserved Rusch's claim for attorney's fees and costs and required SEARHC
to pay $1,000 to one medical provider and an additional $100,000 to Rusch. The Board
approved the settlement in early August 2016.
2. Dockter v. Southeast Alaska Regional Health Consortium
In February 2014 Brenda Dockter injured her left knee while working for
SEARHC in Sitka. After physical therapy and medication did not resolve her pain
complaints, she had arthroscopic knee surgery, which improved her symptoms but did
not resolve them entirely. All doctors who examined her, including SEARHC's
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orthopedic physicians, said she would at some point need further knee surgery as a result
of the work injury.
In June 2015, based on its doctor's opinion, SEARHC controverted
physical therapy and two medications. Dockter's treating orthopedic physician
recommended in October 2015 that she undergo a partial knee replacement. The
surgeon's office asked SEARHC to preauthorize the surgery; through its attorney,
Hennemann, SEARHC informed the doctor it was "not in a position to preauthorize
surgery at this time" [emphasis in original] because in its view Dockter's pain complaints
did "not appear to be supported by objective medical evidence." If SEARHC sought an
opinion from one of its orthopedic physicians about the partial knee replacement, it did
not submit that opinion to the Board.
After Dockter sought clarification, Hennemann reiterated SEARHC's
refusal to preauthorize the surgery, informing Dockter that she could "make [her] own
arrangements." As an alternative SEARHC offered to settle the claim on the following
terms: SEARHC would pay medical expenses for the partial knee replacement and
follow-up care (excluding physical therapy) and a lump sum of $21,024 (representing
TTD, PPI, and a sum for physical therapy); in exchange Dockter would waive all future
workers' compensation benefits except for follow-up care related to the partial knee
replacement occurring within eight months of the Board's approval of the settlement.
Dockter filed a written claim seeking unspecified medical benefits in
August 2015, and the Board held its first prehearing conference on the claim the
following month. At this prehearing conference, SEARHC indicated it had "accepted
compensability for medical . . . costs relating to [Dockter's] left knee" with limited
exceptions unrelated to the partial knee replacement. A second prehearing conference
was held in late November "to review the status of [Dockter's] injuries/treatment and
claims." Dockter explained she had requested preauthorization for her knee surgery, and
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SEARHC told the prehearing conference officer that "no controversion [was] in place
regarding the knee injury/treatment." According to the prehearing conference summary,
"[w]hen asked why [SEARHC] will not pre-authorize the surgery, [SEARHC]stated that
'they were not saying that the surgery was not medically necessary, just that there is not
yet any objective evidence to support the surgery.' " The prehearing conference officer,
2 thought one issue - whether Dockter was "entitled to
after quoting AS 23.30.095(a),
an order" requiring SEARHC to pay for the surgery - was "ripe for a hearing" and set
another prehearing conference to schedule this hearing.
Hennemann wrote to the Board shortly afterward, taking the position that
SEARHC was "simply choosing to exercise [its] statutory right" to "take up to 30 days
to consider whether payment or denial should issue after" the doctor billed it for the
surgery. SEARHC objected to a prehearing conference on scheduling because Dockter
had not filed an affidavit of readiness for hearing.
On December 8 Graham entered an appearance for Dockter and filed
another written claim on her behalf. The parties agreed they were not yet ready for a
hearing. After obtaining discovery from SEARHC, Graham wrote a demand letter to
Hennemann in early February 2016; there he summarized the medical evidence
supporting the surgeon's recommendation and informed her that because SEARHC
refused to preauthorize the surgery, the doctor would not perform the surgery without
prepayment, which Dockter could not afford. Graham told Hennemann that he would
"request further assistance from the Board" if SEARHC did not clearly communicate to
the surgeon that it would preauthorize the surgery by a certain date.
2 AS 23.30.095(a) requires the employer to "furnish medical, surgical, and
other . . . treatment . . . which the nature of the injury . . . requires" within the first two
years of a work-related injury.
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Hennemann responded that SEARHC "would not stand in the way of" a
hearing on what she called an "advisory ruling[]" from the Board about the
compensability of the surgery and suggested as an alternative that Dockter "find a
different physician who would not require payment before surgery"; she indicated she
would "encourage" her clients to "consider" a request for a change in physicians if
Dockter found such a surgeon.
On February 9 Dockter filed an affidavit of readiness for hearing, a request
for an emergency conference, and a request for "an immediate hearing" on the
"prospective determination of [the] compensability" of the knee surgery. On
February 18 SEARHC told the Board it agreed the knee surgery "would be compensable
and payable under the Act," making a hearing on that issue unnecessary. It later insisted,
however, that it had not preauthorized the surgery. Dockter had the surgery in
March 2016.
The parties mediated the remaining disputes and reached agreement on all
issues except attorney's fees. The Board approved the settlement in August 2016. Under
its terms, Dockter agreed to release SEARHC fromfurther claims (except attorney's fees
and costs) in exchange for an additional $122,500.
B. Procedure In Both Cases Following Mediation
Billing records from both attorneys suggest they remained in contact with
the mediator about the attorney's fees disputes after settlement. Hennemann's July 2016
billing records included entries related to a "memo to mediator" about fee issues as well
as communications with the mediator and both her clients about fee issues. Hennemann
submitted her billing records only through July 2016, so the record does not reveal
whether she communicated further with the mediator in August. Graham submitted to
the mediator a document he called a "mediation brief" that addressed specific concerns
raised by SEARHC as well as the mediator's responses to them. No mediation occurred,
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however, and the mediator wrote to the attorneys in September acknowledging their
request for a hearing on attorney's fees, "which the parties were unable to resolve
through mediation."
The Board scheduled twohearings on the sameday to resolvetheattorney's
fees disputes in both cases. The lead-up to the hearings was contentious. The prehearing
conference summaries set an October 19 deadline for submission of witness lists but also
allotted time for argument equal to the total time scheduled for hearing. Hennemann
wrote to the Board on October 14 because Graham intended to call witnesses at the
hearings and she thought this was "inconsistent with the discussions and agreements for
proceeding." Graham responded that on October 7 he had spoken with a Board
employee who told him he "would not need to request amendment or clarification of the
prehearing conference summary in order to" present witnesses at the hearing. The issue
was not addressed until the hearing.
Graham submitted an affidavit of fees for each case, seeking an hourly fee
of $425. He sought payment for 277.55 hours in Rusch's case and 180 hours in
Dockter's case. The witness list in each case included Graham, three other attorneys, and
the claimant in that case. The proposed attorney witnesses either practiced workers'
compensation law in Alaska or were familiar with Graham's legal experience.
The Board held both hearings on October 25, 2016. The Board decided to
"go through some preliminary issues" in both cases at once, then proceed separately with
argument related to each case individually. Both claimants attended telephonically (and
later testified) during the joint proceeding. SEARHC objected to all of the witnesses
except Graham, although it complained that allowing Graham to testify would give the
claimants a "time advantage" because the parties had an equal amount of argument time.
It argued that testimony fromthe other witnesses (including the claimants) was irrelevant
or unnecessary because the information the witnesses might provide was available in the
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Board's "system" or because SEARHC was willing to stipulate to certain facts, such as
the difficulties injured workers face in finding attorneys to represent them, "particularly
in the Juneau venue and the Fairbanks venue." SEARHC took the position that what it
called "enhanced fees" were only allowed "based upon an attorney's experience in the
field of workers' compensation." Graham argued that all factors in the Alaska Rules of
3 as well as workers' compensation law were relevant to the
Professional Conduct
reasonableness of the requested fees, making the attorney witnesses' testimony directly
relevant. He contended that the claimants should be allowed to testify because factors
relevant to an attorney's fees award included "issues relating to the client."
The Board permitted both claimants to testify, but decided none of the
attorneys, including Graham, could do so. The Board said that "case law" (which it did
not identify) directed the Board to consider only experience in workers' compensation
law when evaluating an attorney's fees request. The Board decided Graham had "been
afforded the opportunity to provide information in his brief" and declined to "provid[e]
extra time for testimony." The Board decided the testimony of other witnesses was
either irrelevant, repetitious, or both. The Board told the parties it would gather
information from its system about the hourly rates received by workers' compensation
attorneys and Graham's experience in workers' compensation cases to use in deciding
the case.
Grahamasked the Board to clarify how he could present evidence about his
experience because "[a]rgument is not evidence." He pointed out that the only evidence
in the record was his fee affidavit, which did not contain information about his
experience. The hearing officer said it was "difficult to distinguish between a legal
3 These factors are virtually identical to those we set out in Wise Mechanical
Contractors v. Bignell. See 718 P.2d 971, 974 n.7 (Alaska 1986) (listing factors from
Alaska Code of Prof. Resp. DR 2-106(B)).
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argument and testimony" from Graham and indicated the Board had "the record of
4
ICERS,"
which she characterized as "our workers' compensation system." She saw no
need to provide Graham with a copy or a printout of the information the Board would
use because decisions and orders were "in the public sphere"; she told Graham that he
could ask for reconsideration of the Board's decision if "there's something that's
incorrect or misstated or something that [he] felt wasn't considered that should have
been." Graham offered to submit a declaration he had prepared that summarized his
experience and discussed the contingent nature of both personal injury and workers'
compensation proceedings. SEARHC did not object, although it was concerned that it
would not "have means of questioning or challenging it." The declaration was admitted
as evidence.
The declaration briefly outlined Graham's experience, showing he had
more than 35 years experience practicing law in multiple states. Most of his work was
in "representing personal injury and workers' compensation claimants on a contingent
fee basis," and he estimated he had "formally represented hundreds of personal injury
clients and dozens of worker[s'] compensation clients," including about 12 in Alaska.
But he estimated he had "personally reviewed the status and the legal and factual issues
of more than 500 Alaska workers' compensation claimants" in over 20 years of
practicing in Alaska; had provided to many claimants "a number of hours" of time,
mostly pro bono; and had "been very selective in entering [an] appearance" in workers'
compensation cases, in part due to "the difficulties presented for earning a fee." Graham
elaborated in his argument to the Board - which we treat as a proffer of the testimony
4 ICERS, which stands for Incident and Claims Expense Reporting System,
is a case management system. Minutes, Alaska Workers' Comp. Bd., Workers'
Compensation Board Meeting Minutes at 2 (May 15-16, 2014),
http://labor.alaska.gov/wc/forms/2014-05-15-Board_Meeting_Minutes.pdf.
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he would have provided about his experience had he been permitted to
testify - asserting that he had also practiced in "federal jurisdictions" and had "handled
workers' compensation cases in Colorado, in New Mexico, and . . . in the federal system,
in . . . Federal Longshore[] & Harbor Workers' Compensation Act cases." He said he
had primarily represented personal injury claimants and drewparallels between the skills
needed in personal injury and workers' compensation cases.
Both Dockter and Rusch testified about the difficulties they encountered
while representing themselves, expressed satisfaction with Graham's representation and
the settlement of their cases, and recounted some of the work Graham did for them. The
Board first heard argument in Rusch's case, with the primary points of contention being
5 and the issues Rusch prevailed on. The parties' arguments
the complexity of the case
in Dockter's case centered on the extent to which Dockter obtained any benefit from her
attorney's efforts, with SEARHC taking the position that she had gotten no real gain
from the settlement. SEARHC expressed concern about Graham's billing methods,
including his use of quarter-hour time increments.
Graham had anticipated testifying at the hearing about the time he spent
following the initial fee affidavit, as the Board's regulation provides,6 but Hennemann
told the hearing officer that "under the rules" Graham's "updated fee affidavits [were]
due . . . at the hearing," and the hearing chair apparently agreed. No one identified the
source of this "rule." The Board left the record open so that Graham could submit a
5 AS 23.30.145(a) provides that the Board should consider "the nature,
length, andcomplexityoftheservices performed"when awarding attorney's fees. Under
8 Alaska Administrative Code (AAC) 45.180(d) (2011), the Board must consider these
same factors when awarding reasonable fees under AS 23.30.145(b).
6 8 AAC 45.180(b) (allowing an attorney to "supplement the [initial fee]
affidavit by testifying about the hours expended and the extent and character of the work
performed after the affidavit was filed").
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supplemental fee affidavit for the time related to the hearing and SEARHC could submit
detailed objections to Graham's affidavits of fees because SEARHC had not had the
opportunity to review the affidavits before filing its hearing briefs owing to deadlines set
at the prehearing conference. The Board allowed the claimants to file seven-page
responses to the objections, making the responses due by November 11.
SEARHC filed lengthy objections in both cases - a 21-page list of
objections with 23 exhibits and an affidavit in Dockter's case and a 31-page list of
objections with 32 exhibits and an affidavit in Rusch's case - and asked the Board to
reduce both the hourly fee requested and the total hours. The claimants filed responses
on November 14, the first business day following Veteran's Day, a state holiday.
SEARHC objected that the responses were filed late and should be stricken. The Board
rejected this argument.
The Board decided that Graham would be awarded an hourly rate of $300
an hour in both cases based on the Board's evaluation of the information it had gathered
about the workers' compensation cases in which Graham had entered an appearance.
TheBoard used information fromICERS, Westlaw,and the"Division'sLegal Database"
to compile a table that listed select attorneys, their years of workers' compensation
experience, the number of clients each had represented, and the hourly rates they had
been awarded. The Board reduced the number of hours Graham billed in both cases in
part because of his "billing methods," such as billing in quarter-hour increments and
7 The Board also reduced the hours billed because in its view
using block billing.
Graham had spent too much time on some tasks; it additionally reduced his hourly rate
based on the Board's assessment of his inexperience. The Board faulted Graham for
7 Block billing consists of "billing entries that do not specify the time taken
for each listed task but only give a total." Nautilus Marine Enters., Inc. v. Exxon Mobil
Corp., 332 P.3d 554, 563 (Alaska 2014).
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failing to explain some entries, such as why he had traveled to Klawock to consult in
person with Rusch, what issue he discussed with her in a phone call, and which medical
records he reviewed on certain dates.
The Board disallowed time for certain tasks because in its view the
claimants were not successful on claims related to those tasks. The Board did not
articulate the basis for its decisions about which issues the claimants prevailed on in their
settlements. The Board did not allow any time in either claim for the mediation brief on
attorney's fees because the Board deemed the document "unnecessary."
The Board decided that some tasks Graham had billed were actually
paralegal tasks, even though Graham argued in written materials that he had been unable
to find a part-time paralegal and did not employ one. The Board awarded Graham $130
an hour for these tasks. Ultimately the Board reduced Graham's hours in Rusch's case
from 292.05 to 131.30 at the rate of $300, for a total attorney's fees award of $39,390.
The Board awarded an additional .95 hour at a paralegal rate of $130 an hour. In
Dockter's case, the Board allowed 114.85 hours of attorney time - reduced from 194.5
hours - at $300 an hour and 2.45 hours of time as a paralegal cost at $130 an hour. The
Board indicated it was awarding fees under AS 23.30.145(b) in both cases, although it
8
also discussed subsection (a) in Rusch's case.
The claimants appealed to the Commission. After a joint oral argument, the
Commission affirmed both Board decisions in separate decisions. The Commission
declined to consider whether the Board had violated the claimants' due process rights by
8 Alaska Statute 23.30.145 authorizes attorney's fees to claimants' counsel
in workers' compensation proceedings. Under AS 23.30.145(a), the Board may order
an employer to pay attorney's fees on the "compensation controverted and awarded."
The Board is to award attorney's fees under AS 23.30.145(b) when an employer resists
payment of compensation or other benefits and "the claimant has employed an attorney
in the successful prosecution of the claim."
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prohibiting them from calling witnesses because that issue was beyond its jurisdiction.
The Commission decided the presumption of compensability did not apply to the
question whether requested fees were reasonable and also determined the Board had not
abused its discretion by not allowing the claimants to call the attorney witnesses.
According to the Commission, "the testimony of the proposed witnesses would not have
provided the Board with any information not already within its knowledge."
The Commission's legal discussion on the merits of the fees awarded in
both cases focused on AS 23.30.145(a); it decided the amount of fees awarded was not
manifestly unreasonable. TheCommission did not addresstheclaimants' arguments that
because they settled their claims, the Board could not determine the issues they prevailed
on and that whatever factual findings the Board made about issues they lost were not
supported by substantial evidence. The Commission decided that substantial evidence
in the record supported the Board's findings, writing that "[t]here is no area of the Act
in which the Board has had more opportunity to investigate and decide an issue of fact
than that concerning attorney['s] fees." In the Commission's view, the Board properly
decided Graham's requested hourly rate was "not justified" when compared to "more
experienced attorneys," and it belittled his work in both cases. The Commission did
nothing to disturb the Board's decisions, affirming the decisions related to Graham's
billing methods. The claimants appeal.
III. STANDARD OF REVIEW
"In an appeal from the Alaska Workers' Compensation Appeals
9 "Whether the Commission
Commission, we review the Commission's decision."
correctly applied the law in determining an award of attorney's fees is a question of law
9
Burke v. Raven Elec., Inc., 420 P.3d 1196, 1202 (Alaska 2018).
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10
that we review de novo." "We . . . apply our independent judgment to questions of
11
constitutional law."
"We independently review the Commission's conclusion that
substantial evidencein the record supports the Board's factual findings by independently
12 We also review the Commission's
reviewing the record and the Board's findings."
legal conclusions about the Board's exercise of discretion by "independently assess[ing]
the Board's rulings."13 The Board's "award of attorney's fees should be upheld unless
it is 'manifestly unreasonable.' "14
IV. DISCUSSION
We recently discussed the trade-off that underlies the workers'
compensation system - "the grand bargain" - in which employees relinquish the right
to sue for tort damages in exchange for limited but certain benefits and employers pay
15 One of the benefits retained by injured workers
limited benefits without regard to fault.
is the employer's payment of a worker's attorney's fees when the employer controverts
or otherwise resists timely payment of compensation to which the worker is entitled.16
Because the Alaska Workers' Compensation Act restricts the type of fee arrangement
10 D&D Servs. v. Cavitt , 444 P.3d 165, 168 (Alaska 2019) (quoting Lewis-
Walunga v. Municipality of Anchorage , 249 P.3d 1063, 1066 (Alaska 2011)).
11 Burke, 420 P.3d at 1202.
12 Humphrey v. Lowe's Home Improvement Warehouse, Inc., 337 P.3d 1174,
1178 (Alaska 2014).
13 Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009).
14 Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002) (quoting Bouse v.
Fireman's Fund Ins. Co., 932 P.2d 222, 241 (Alaska 1997)).
15 Burke, 420 P.3d at 1202.
16 AS 23.30.145(a)-(b).
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between claimants and their attorneys, 17 we have consistently construed the attorney's
fees provisions of the Act as requiring fees awards to be adequate to ensure that
18 We have rejected
competent counsel are available to represent injured workers.
attempts to tie the hourly fees paid claimants' counsel to the hourly fees for defense
counsel.19 We have also weighed in some cases claimants' attorneys having received
only partial fees "that may be dramatically lower than if the attorneys were compensated
on an hourly basis" to justify higher fees for them than for defense counsel.20 We have
observed that the objective of ensuring that competent counsel are available to represent
injured workers "would not be furthered by a system in which claimants' counsel could
receive nothing more than an hourly fee when they win while receiving nothing at all
when they lose."21
We have also recognized the importance to claimants of adequate
representation, noting that "[w]ithout counsel, a litigant's chance of success on a
22 In the cases at bar the Commission
workers' compensation claim may be decreased."
17 See State, Div. of Workers' Comp. v. Titan Enters., LLC, 338 P.3d 316, 323
(Alaska 2014) (summarizing statutory restrictions on claimants' fee arrangements).
18 See, e.g., State, Dep't of Revenue v. Cowgill, 115 P.3d 522, 524-25 (Alaska
2005).
19 Id. at 524-25.
20 Id. at 525.
21 Wise Mech. Contractors v. Bignell, 718 P.2d 971, 975 (Alaska 1986).
22 Bustamante v. Alaska Workers' Comp. Bd., 59 P.3d 270, 274 (Alaska
2002); see also Haile v. Pan Am. World Airways, Inc., 505 P.2d 838, 844 (Alaska 1973)
(Erwin, J., dissenting in part, concurring in part) (observing that "in a large number of
claims, no counsel represents the claimant" and expressing concern "that the uneven
position" of unrepresented claimants "may work to circumvent the purposes of the
(continued...)
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itself acknowledged the importance of representation, writing in both decisions that the
Board "is well awareofthe fact that represented claimants frequently aremore successful
than unrepresented claimants before the Board, primarily because attorneys are skilled
in collecting and presenting the kind of evidence necessary to succeed in a workers'
compensation case." As we explain in more detail below, the decisions on appeal to us
contain multiple errors and awarded an amount of attorney's fees to both claimants that
was manifestly unreasonable.
A. The Framework For Board-Awarded Attorney's Fees
AlaskaStatute23.30.145(a) and (b) authorizetheBoardtoawardattorney's
fees to an injured worker. We have observed that the subsections, while "construed
23
separately, . . . are not mutually exclusive." "[I]n a controverted case, the claimant is
entitled to a percentage fee under subsection (a) but may seek reasonable fees under
24
subsection (b)." SEARHC controverted benefits in both cases, but it did not controvert
all requested benefits in Dockter's case, as it did in Rusch's.
The claimants in both cases sought fees under Alaska Statute 23.30.145(b),
which requires the Board to award a claimant "the costs in the proceedings, including
reasonable attorney['s] fees . . . in addition to the compensation or medical and related
benefits ordered" when an employer resists payment of compensation. SEARHC's
Board hearing briefs cited AS 23.30.145(a), which has a provision about minimum fee
22 (...continued)
compensation act").
23 Circle De Lumber Co. v. Humphrey, 130 P.3d 941, 952 n.76 (Alaska 2006)
(internal citation omitted).
24 Id.
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25
awards; SEARHCalso discussed awards of reasonable fees in addition to the minimum
fees.
TheBoard and theCommissionciteddifferent statutory subsections in their
analyses, but neither party raised this as an issue before us. The Board's regulations
employ the same standards to fees requested under AS 23.30.145(b) and requests for fees
26
in excess of the statutory minimum under AS 23.30.145(a).
We have consistently construed AS 23.30.145 "in its entirety as reflecting
the legislature's intent that attorneys in compensation proceedings should be reasonably
compensated for services renderedto acompensation claimant."27 Given our recognition
that reasonable fees can be awarded in addition to statutory minimum fees under
subsection (a), we see no reason to distinguish between the subsections in setting out the
factors the Board needs to consider in awarding reasonable attorney's fees.
25 AS 23.30.145(a) provides in part that "the fees may not be less than 25
percent on the first $1,000 of compensation or part of the first $1,000 of compensation,
and 10 percent of all sums in excess of $1,000 of compensation." The Board said Rusch
was entitled to attorney's fees under AS 23.30.145(a), but concluded by saying her
attorney would "be awarded . . . fees under AS 23.30.145(b)." It used AS 23.30.145(b)
consistently in Dockter's case.
26 8 AAC 45.180(b), (d); cf. Lewis-Walunga v. Municipality of Anchorage,
A W C A C D e c . N o . 1 2 3 a t 8 - 9 ( D e c . 2 8 , 2 0 0 9 ) ,
http://labor.state.ak.us/WCcomm/memos-finals/D_123.pdf(notingsimilarity in Board's
affidavit requirements for attorney's fees under AS 23.30.145(a) and (b)).
27 Rose v. Alaskan Vill., Inc., 412 P.2d 503, 509 (Alaska 1966); accord State,
Dep't of Revenue v. Cowgill, 115 P.3d 522, 524-25 (Alaska 2005); Bailey v. Litwin
Corp., 780 P.2d 1007, 1011 (Alaska 1989); Wise Mech. Contractors v. Bignell, 718 P.2d
971, 973 (Alaska 1986); Whaley v. Alaska Workers' Comp. Bd., 648 P.2d 955, 959
(Alaska 1982) ("AS 23.30.145 is unique in its generosity to claimants and their
counsel.").
-18- 7422
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When setting the reasonable attorney's fees in these cases, the Board made
findings related to two distinct questions: an hourly rate for Graham's services and the
number of hours it determined were reasonable for specific tasks. The amount of
reasonable fees was the product of multiplying these numbers. The method used here
is not the same method the Board used in cases we have reviewed in the past. For
example, in Circle De Lumber Co. v. Humphrey , the Board increased the statutory
minimum fees by a percentage, awarding the claimant "attorney's fees of thirty-five
28 On the other hand, in Bailey v. Litwin Corp. the Board first
percent of the award."
calculated a reasonable fee and then adjusted that fee using several factors.29 The
Board's regulation sets out factors the Board must consider in awarding fees but does not
say how those factors are to be applied to a request for fees.30 Neither party discussed
whether the method used here is a standard method the Board currently uses to determine
fees, nor did either party dispute that this was an appropriate method, so we do not
discuss the issue further. We now turn to the issues presented on appeal.
B. The Commission Erred In Affirming The Board's Analysis About The
Issues On Which The Claimants Prevailed.
Attorney's fees in workers' compensation cases are awarded to successful
claimants,31
and the parties here disputed which issues the claimants prevailed on. In
28 130 P.3d at 953.
29 780 P.2d at 1011-12. The method used in Bailey is similar to the "modified
lodestar" approach we recently adopted for Unfair Trade Practices and Consumer
Protection Act cases. See Adkins v. Collens , 444 P.3d 187, 200 (Alaska 2019).
30 8 AAC 45.180(b), (d).
31 AS 23.30.145(a) permits an award of fees on benefits that are controverted
and awarded. We have interpreted AS 23.30.145(b) as requiring success on a claim, not
solely on collateral issues. Adamson v. Univ. of Alaska , 819 P.2d 886, 895 (Alaska
-19- 7422
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both cases SEARHC argued that the claimants were not successful on certain claims and
issues and thus should not be awarded attorney's fees for related work. The Board found
that Dockter "prevailed on the primary dispute," the partial knee replacement, but said
Dockter had not succeeded on a compensation rate adjustment claim. It did not
otherwise discuss her success, even though her written claim sought other relief. The
Board decided Rusch was entitled to fees "for services provided on medical benefits,
TTD and reemployment benefits" but that she did not prevail on the following issues:
"interference with selection of physician, improper influence of physician's medical
opinion, unemployment benefits, excessive change of physician, and the ethics of
attorney fee negotiation in mediation." It did not offer a rationale for its decisions about
success, nor did it explore how the non-monetary issues might have impacted Rusch's
success on her monetary claims.
Theclaimants argueon appeal that becausetheir casesendedinsettlements,
they should be awarded attorney's fees for all of their claims unless the issue bargained
away "lacked merit or was without legal or factual basis." They rely on Singh v. State
Farm Mutual Automobile Insurance Co. , where we adopted from federal law a test to
32 SEARHC's
determine prevailing party status in civil rights litigation in state court.
response is that the claimants did not articulate a standard for "awarding fees in a
settlement context."
We have not been faced with the question how to determine a workers'
compensation claimant's success for purposes of awarding attorney's fees when other
claims were settled. In a contested case, the Board resolves more than just monetary
31 (...continued)
1991).
32 860 P.2d 1193, 1198 (Alaska 1993).
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----------------------- Page 21-----------------------
claims; it may decide procedural or evidentiary issues that can impact the ultimate
outcome of the claim. For example, if the Board finds that a party changed physicians
33 The Board
too many times, the Board cannot consider the opinions of those doctors.
34 Excessive changes of
can also sanction a party for disobeying its discovery orders.
physician and discovery disputes were at issue here, and while the cases settled before
the issues were fully developed and decided, the Board decreased some of Graham's fees
for work on these issues. Rusch additionally alleged that the insurer made multiple
misrepresentations and engaged in unfair claimsettlement practices aswell asinterfering
with her medical care; these allegations were connected to her claim for unfair or
frivolous controversion. Rusch acknowledged in her mediation brief that these were not
"claim[s], per se" with an easily identified value, but she argued that were she to prevail
on these issues, her chances of success on her monetary claims would "substantially
increase."
We agree with the claimants that the Board should use an analysis similar
to the one we adopted in Singh to evaluate a claimant's success on an issue in a workers'
compensation settlement. Singh, like this case, involved a fee-shifting statute that
allowed reasonable attorney's fees to be awarded to a prevailing party, and like this case,
the underlying litigation was resolved through a settlement.35 The parties disputed
whether the plaintiff had prevailed in the underlying suit, with the defendants implicitly
contending that "a settling litigant should not become eligible for . . . attorney's fees by
33 8 AAC 45.082(c) (2019).
34 AS 23.30.108(c).
35 Singh, 860 P.2d at 1197.
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----------------------- Page 22-----------------------
36
merely reciting an otherwise frivolous . . . civil rights claim in his complaint." To
resolve this issue, we adopted a test from the Fifth Circuit that "places the burden on the
party opposing attorney's fees to show lack of merit." 37
Before the Board SEARHC discounted the claimants' success and the
connection between their attorney's efforts and the settlement amounts. Because
workers' compensation attorney's fees awards are in some ways analogous to other fee-
shifting statutory schemes, we adopt the test from Singh for purposes of evaluating
38 Thus, in a workers' compensation
whether a claimant was successful in a settlement.
settlement where the parties dispute the issues on which a claimant prevailed for
purposes of attorney's fees, the employer "who contends that [its] conduct was a wholly
gratuitous response to a [claim] that lacked colorable merit, must demonstrate the
worthlessness of the . . . claim[] and explain why [it] nonetheless voluntarily gave the
39
[claimant] the requested relief."
Here SEARHC asserted that "Dockter fail[ed] in her insistence for
preauthorization" of the partial knee replacement and gained no more in TTD than it had
offered in 2015. And in Rusch's case SEARHC claimed that the litigation "involved an
honest dispute regarding two doctor bills totaling about $500" and that "most of the
36 Id. at 1198.
37 Id.
38 In Whaley v. Alaska Workers' Compensation Board, we adopted a test from
federal civil rights law when construing former Alaska Appellate Rule 508, requiring a
showing that the claimant's position "was frivolous, unreasonable, or brought in bad
faith." 648 P.2d 955, 960 & n.8 (Alaska 1982) (citing Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 422 (1978)).
39 Singh, 860 P.2d at 1198 (quoting Hennigan v. Ouachita Par. Sch. Bd., 749
F.2d 1148, 1153 (5th Cir. 1985)).
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----------------------- Page 23-----------------------
issues raised during [Graham's] representation completely lacked a factual basis and did
not result in any gain through settlement." On remand SEARHC will have the burden
of showing why it settled both claims in excess of $100,000 if they were so lacking in
merit.
We emphasize that the underlying, non-monetary issues, such as the ethics
issue and what the Board called "unemployment benefits," should be analyzed in the
same manner. The Board decided the claimants had not succeeded on what it called "the
ethics of attorney fee negotiation in mediation" and disallowed any time on that issue.
The Commission said, "Neither the Board nor the settlement agreement addressed this
issue, so it was not an issue for which fees could be awarded." SEARHC's mediation
brief in Dockter's case indicated that Graham told Hennemann he wanted "to negotiate
all of Ms. Dockter's claim but for fees first and when all preliminary issues are
addressed, then negotiate the issue of fees" and that she informed him that this procedure
was "not acceptable to [her] clients." The attorney's fees dispute was separated from
negotiation of other claims, so it is hard to understand the agencies' decisions that the
claimants did not succeed on that issue.
Both the Commission and the Board faulted Graham for research related
40 but she argued that her eligibility
to SEARHC's termination of Rusch's employment,
for TTD, and consequently her potential entitlement to reemployment benefits, was
40 The Commission wrote that the Board correctly "discounted" the
"considerable time" billed for a "wrongful termination" claim. SEARHC's list of
objections to Graham's attorney's fee affidavit does not mention any time billed for a
wrongful termination claim, nor did the Board mention a wrongful termination claim.
SEARHC asserted at the Board hearing that Graham "spent hours and hours and hours
of time evaluating a potential wrongful discharge claim," but we have found nothing in
the record to substantiate this assertion.
-23- 7422
----------------------- Page 24-----------------------
41
related to the loss of her job (which she alleged was due to her continued lifting
restrictions) and her receipt of unemployment. Rusch offered in her amended claim to
42
repay all unemployment benefits she had received so that she could receive TTD.
Because reemployment eligibility is tied to the employee's inability to return to her
43 Rusch's termination and the reasons for it were not
employment at the time of injury,
wholly unrelated to her reemployment claim. SEARHC's stated reasons for terminating
Rusch's employment was one basis for her assertion that SEARHC had committed an
unfair claim settlement practice; she argued that the misrepresentation affected her TTD
and reemployment eligibility. The Board should also consider the discovery issues that
it did not have to resolve because of the settlement, such as SEARHC's redaction of
documents and its failure to file all medical reports, and the impact of these issues on the
amount of fees.
C. ExperienceInAlaska Workers'CompensationIs NotTheOnly Factor
Relevant To An Attorney's Hourly Rate.
We turn now to the question of assessing a reasonable fee. A main point
of contention in these cases was Graham's hourly rate. He requested $425 an hour and
told the Board that it had approved an hourly rate of $350 in other workers'
compensation cases he had settled. Graham's proposed rate was based on his 35 years
of experience in personal injury and workers' compensation, including brief service
41 A chronology Graham prepared for the mediation, evidently based in part
on discovery SEARHC provided, suggests that SEARHC's adjuster was aware of this
problem: the chronology shows an email from the adjuster to SEARHC asking why
Rusch had been laid off and noting they might "have to pay her TTD."
42 See Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227, 1233-37 (Alaska
2003) (affirming Board decision awarding claimant TTD if she repaid unemployment
benefits received during time that TTD was contested).
43 AS 23.30.041(c), (e).
-24- 7422
----------------------- Page 25-----------------------
work he had done in cases where he did not enter an appearance, as well as the fees he
was able to earn in other litigation in Southeast Alaska. The claimants presented
argument and proposed findings to the Board on factors set out in Wise Mechanical
44 of those factors, the claimants contended that only the nature
Contractors v. Bignell;
and length of the professional relationship with the client was not relevant. SEARHC
maintained that Graham should be awarded no more than $275 an hour because in its
view Graham had "limited experience in Alaska Workers' Compensation matters"; it
characterized his requested hourly rate as "truly egregious." At the hearing SEARHC
argued that our precedent allowed what it called "enhanced fees" only "based upon an
attorney's experience in the field of workers' compensation."
The Board evidently agreed with SEARHC: it refused to permit testimony
about Graham's experience as an attorney because of relevance, and it later wrote that
Graham's "experience representing claimants in civil litigation and workers'
compensation cases in other states has no weight in determining his hourly rate and will
notbeconsidered." TheCommission affirmedtheBoard'sdecision, writing, "TheBoard
measured [the claimants'] attorney's experience and expertise against more experienced
attorneys and came to a decision supported by the evidence that the hourly rate sought
was not justified." The Commission did not provide any legal reason why Graham's
experience in other civil litigation or in other states' workers' compensation cases was
not relevant.
On appeal the claimants contend that experience in Alaska workers'
compensation law, while relevant, should not be the sole criterion used to establish an
attorney's hourly ratebecausemanytasks performed in workers' compensation cases are
44
718 P.2d 971, 974 n.7 (Alaska 1986) (listing factors from Alaska Code of
Prof. Resp. DR 2-106(B)).
-25- 7422
----------------------- Page 26-----------------------
"no different from the work done by attorneys in other areas of litigation." They
maintain that the Commission acted arbitrarily in endorsing the Board's approach and
deprived them of due process. The claimants point out that the Board's approach favors
attorneys in the Anchorage area because of the smaller number of claims in other areas
of the state. SEARHC argues that the Board's hourly fee award was correct because of
the specialized nature of workers' compensation law. While SEARHC frames the issue
as one of substantial evidence, it is difficult to square SEARHC's argument that there
was a failure of substantial evidence in the face of SEARHC's successful efforts to
precludewitnesses who could have provided the very evidence SEARHCcomplains was
missing.
As set out above, the agencies did not cite the same statutory subsection for
the fees award, but both applied a reasonable fees analysis rather than discussing
statutory minimum fees. The statutory and regulatory factors for awarding fees include
45 46 and "the
the amount of benefits,
"the nature, length, and complexity of the services,"
47 Nothing in the regulation or statute ties an
benefits resulting from the services."
attorney's hourly rate solely to his experience in Alaska workers' compensation law.
Neither the Commission nor the Board cited any precedent or agency decisions to justify
the exclusive use of experience in Alaska workers' compensation law when determining
a reasonable hourly rate. The Commission, like SEARHC, viewed the issue as one of
45 AS23.30.145(a);8AAC45.180(d)(2) (setting out Board considerations for
fees under AS 23.30.145(b)).
46 See AS 23.30.145(a) (allowing attorney's fees on "the amount of
compensation controverted and awarded"); 8 AAC 45.180(d)(2) (listing "the amount of
benefits involved" as a factor for fees under AS 23.30.145(b)).
47 AS 23.30.145(a); 8 AAC 45.180(d)(2).
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----------------------- Page 27-----------------------
discretion and fact finding, even though the claimants made arguments similar to the
ones they have briefed on appeal to us.
We have not in our precedent limited the Board to considering only Alaska
workers' compensation experiencein attorney's fees awards. To thecontrary, in Bignell,
we set out all the factors in what was then the Alaska Code of Professional
48 In State,
Responsibility governing determinations of reasonable attorney's fees.
Department of Revenue v. Cowgill, we expressly rejected an employer's attempt to tie
Board-awarded attorney's fees for claimants to "[t]he hourly rates of the equivalently
experienced defense counsel."49 We also expressly rejected in Cowgill the employer's
request to "revisit" Bignell, and we refused to adopt a rule requiring an "individualized
inquiry" about the necessity of "enhanced compensation" in workers' compensation
50
cases.
To clarify our holding in Bignell, we hold that the Board must consider all
of the factors set out in Alaska Rule of Professional Conduct 1.5(a) when determining
51 Those factors are virtually the same as the ones set out in
a reasonable attorney's fee.
48 718 P.2d at 974 & n.7.
49 115 P.3d 522, 524 (Alaska 2005).
50 Id. at 527.
51 Alaska Rule of Professional Conduct 1.5(a) sets out eight non-exclusive
"factors to be considered in determining the reasonableness of a fee," specifically:
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill requisite to
perform the legal services properly;
(2) the likelihood, that the acceptance of the particular
employment will preclude other employment by the lawyer;
(continued...)
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----------------------- Page 28-----------------------
52
Bignell and must guide the Board's analysis of the reasonableness of requested fees.
Some factors mirror those set out in the Act, such as the amount involved and the results
obtained. On remand, the Board must consider each factor and either make findings
related to that factor or explain why that factor is not relevant.
We underscored in Bignell the importance of the contingent nature of
53 yet neither the Board nor the Commission
workers' compensation attorney's fees,
discussed how it applied the contingency factor to these cases. The Board mentioned
contingency as a factor in the sentence immediately before it lowered Graham's hourly
rate to $300. On remand the Board needs to explain how decreasing Graham's hourly
fee is consistent with the contingent nature of workers' compensation attorney's fees, if
it again decreases his hourly rate.
51 (...continued)
(3) the fee customarily charged in the locality for
similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and abilityofthe lawyer
or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
52 Compare id., with Bignell, 718 P.2d at 974 n.7 (quoting Alaska Code Prof.
Resp. DR2-106(B)).
53 Bignell, 718 P.2d at 975 (expressly including "the contingent nature of
counsel's right to compensation" in factors the Board must use when awarding fees).
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----------------------- Page 29-----------------------
The Commission also did not discuss why the Board was justified in
considering only those workers' compensation cases in which Graham had entered an
appearancerather than the cases in which headvised claimants or helpedself-represented
litigants navigate the system. The Board measured Graham's Alaska workers'
compensation experiencebasedonly on informationfromitsdatabases,which apparently
revealed that Graham had entered appearances in 20 Alaska workers' compensation
cases. The Board did not discuss the statement in Graham's declaration that he had
provided assistance without a formal entry of appearance in numerous other Alaska
workers' compensation cases. The agencies' failure to consider this evidence was
erroneous, particularly in light of their narrow focus on an attorney's experience in this
area of law.
Werecognizethat Alaska workers' compensation law is a specialized field,
and we do not mean that experience in that field cannot be taken into account. But an
attorney's experience in related legal fields, such as administrative law, occupational
disability law, or personal injury law, should be relevant as well. Here, for example,
Graham's experience as a trial attorney appears to have given him an understanding of
what constitutes evidence. And we see no reason that experience in other states' or
federal workers' compensation law would not be relevant to an attorney's reasonable
54 The Board's regulation expressly authorizes awards of attorney's fees to
hourly rate.
54 We have relied on cases decided under the federal Longshore and Harbor
Workers' Compensation Act in the past because our Act was "modeled" on it. McCarter
v. Alaska Nat'l Ins. Co. , 883 P.2d 986, 990 n.5 (Alaska 1994); see, e.g., Fischback &
Moore of Alaska, Inc. v. Lynn, 453 P.2d 478, 483-84 (Alaska 1969) (deciding that federal
case law was "dispositive" of legal issue because of substantial similarity between
federal statute and Alaska Act).
-29- 7422
----------------------- Page 30-----------------------
55
attorneys licensed in other states. It is hard to see why these attorneys' experience
practicing workers' compensation in their own states could not be considered in
determining their reasonable fees in an Alaska case. Finally, there is a general body of
workers' compensation law. General principles of workers' compensation law are set
56 a treatise cited by us,57 by the workers'
out in Larson's Workers' Compensation Law,
compensation agencies,58 and by workers' compensation attorneys.59 It was therefore
legal error to discount completely Graham's experience in workers' compensation in the
federal system and in other states.
D. The Board Denied The Claimants Due Process.
The claimants argue that the Board violated their due process rights by not
allowing them to call witnesses and by using "the Board's proprietary data" without
giving them an opportunity to address this information. They point out that the Board
reduced Graham's hours because he did not explain some entries, yet he was unable to
explain those entries (or answer other questions the Board or SEARHC might have had)
because the Board disallowed his testimony. SEARHC responds that the Board did not
55 8 AAC 45.180(b), (d).
56 ARTHUR LARSON ET AL ., L ARSON 'S WORKERS' C OMPENSATION LAW (rev.
ed. 2015).
57 See, e.g., Anderson v. Tuboscope Vetco, Inc. , 9 P.3d 1013, 1017 (Alaska
2000) (adopting three-part test for special employment from Larson's treatise).
58 See, e.g., Warnke-Green v. Pro West Contractors, LLC, AWCAC Dec. No.
235 at 12 (June 26, 2017), http://labor.state.ak.us/WCcomm/memos-finals/D_235.pdf;
Kolb v. Walmart Assocs., Inc., AWCB Dec. No. 16-0099 at 11 (Oct. 28, 2016),
http://appeals.dol.alaska.gov/docs/workerscomp/2016/16-0099.pdf.
59 See, e.g., Unisea, Inc. v. Morales de Lopez, 435 P.3d 961, 971, 973 (Alaska
2019) (summarizing employer's argument based on Larson's treatise).
-30- 7422
----------------------- Page 31-----------------------
violate due process, viewing the exclusion of the witnesses' testimony as a proper
exercise of the Board's discretion. The Commission did not reach this issue because of
limits on its jurisdiction. 60
"Due process requires the'opportunity to be heard at a meaningful time and
61 Procedural due process applies in administrative
in a meaningful manner.' "
proceedings, including workers' compensation hearings.62 "We have concluded that a
party's due process rights are violated when the record is supplemented with a new
rationale to which the party was not able to respond."63 We have also decided that an
administrative agency violated a party's due process rights by not allowing her the
opportunity to rebut evidence produced after a hearing when the final decision in the case
rested both on that evidence and on a new legal issue that had not been previously
raised.64
Here the Board did not allow Graham to testify but then reduced hours for
certain tasks because he either did not explain why the tasks were necessary or had not
provided a level of detail in his affidavit that the Board later deemed necessary. The
60 See Alaska Pub. Interest Research Grp. v. State , 167 P.3d 27, 36 (Alaska
2007) ("Administrative agencies do not have jurisdiction to decide issues of
constitutional law." (citing Dougan v. Aurora Elec., Inc. , 50 P.3d 789, 795 n.27 (Alaska
2002))).
61 Matson v. State, Commercial Fisheries Entry Comm'n, 785 P.2d 1200,
1206 (Alaska 1990) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
62 Barrington v. Alaska Commc'ns Sys. Grp., Inc., 198 P.3d 1122, 1132
(Alaska 2008).
63 Heustess v. Kelley-Heustess, 259 P.3d 462, 477 (Alaska 2011) (citing
Matson, 785 P.2d at 1206).
64 Bostic v. State, Dep't of Revenue, Child Support Enf't Div., 968 P.2d 564,
569-70 (Alaska 1998).
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----------------------- Page 32-----------------------
Board's regulations require "an affidavit itemizing the hours expended as well as the
65
extent and character of the work performed."
The regulation provides no additional
66 The Board did not inform Graham that his
guidance about the form of an affidavit.
affidavit was inadequate at the hearing, even though SEARHC commented in its hearing
brief that it "anticipated" Graham would use quarter-hour billing "rather than the
customary tenth of an hour billing," nor did the Board allow him an opportunity to
modify the affidavit before issuing its decision. We agree with the claimants that the
Board's actions here violate due process by reducing their attorney's fees without either
providing adequate notice about the information they needed to present to preserve their
claims or allowing them to present evidence to address the reasons for lowering their
fees.
Turning to the use of the Board's database, the Board consulted ICERS to
gather evidence related to Graham's experience - evidently after the hearing because
the Board chair said the information was "not available right now" when Graham asked
at the hearing to see the evidence so that he could argue about it. The Board chair told
him he could ask for reconsideration of its decision if he thought something was
incorrect in or improperly excluded from its decision. When discussing the related
question of abuse of discretion in not allowing the attorney testimony, the Commission
thought theBoard had "within itsdatabasesufficientinformation"to establishreasonable
attorney's fees without hearing from the attorney witnesses, including Graham.
65 8 AAC 45.180(d)(1).
66 It does not, for example, require the use of a specific time increment in
billing, nor does it forbid block billing. 8 AAC 45.180. As an example of the level of
detail the Board demanded, it reduced Graham's hours because he did not "state which
issue the medical records and research addressed" when he claimed hours spent
reviewing medical records and researching them. It also faulted himfor not "provid[ing]
the issue or benefit addressed" in phone calls to his clients.
-32- 7422
----------------------- Page 33-----------------------
We conclude that the Board's use of the extra-record information without
providing the claimants an opportunity to see and respond to it before the Board made
its decision violated due process. The Board's past decisions may have information
about the hourly fees awarded to attorneys, but the Board has no regulation tying a
certain number of clients or years of practice to a specific hourly fee - in short, it has
no regulation explaining howexperience in workers' compensation is measured and how
that experience is used to arrive at a reasonable hourly fee.
Graham submitted a declaration, which the Board admitted as evidence,
estimating that he had "reviewed the status and the legal and factual issues of more than
500 Alaska workers' compensation claimants over thelast 20 years"; the declaration also
provided an estimate of the number of cases in which he had either entered an
appearance or participated in a hearing. The Board did not allow Graham the
opportunity to argue how his experience was similar to or different fromthat of attorneys
listed in the Board's table, which showed rates it had approved for certain attorneys in
the past, because the Board created the table after the hearing. The Board used extra-
record judicial facts to make an individualized decision without providing the claimants
an opportunity to confront the evidence, dispute its accuracy, or argue about it. This
violated their rights to due process.
The Board and the Commission justified the use of ICERS and the lack of
notice to the claimants by citing our decision in Fairbanks North Star Borough v. Rogers
& Babler, where, in summarizing how we review questions of fact on appeal, we stated,
"The Board may base its decision not only on direct testimony, medical findings, and
other tangible evidence, but also on the Board's experience, judgment, observations,
-33- 7422
----------------------- Page 34-----------------------
67
unique or peculiar facts of the case, and inferences drawn from all of the above."
Rogers & Babler cannot be read as broadly as the agencies did here, and it does not, as
SEARHC contends, allow the Board to use "institutional experience" derived from its
database as evidence to decide disputed facts without giving parties an opportunity to
rebut that evidence. The point of our statement, derived from Beauchamp v. Employers
Liability Assurance Corp., was that administrative adjudicators' expertise gained from
repeated exposure to information in adjudications can support conclusions made from
68
the evidence presented in a specific case.
In sum, the Board violated the claimants' due process rights by using
information fromits database without providing an opportunity to rebut that information
and by reducing hours without adequate prior notice that the affidavits did not meet an
unwritten standard. It also violated due process by failing to provide adequate notice
about what information the Board would use to evaluate their fee requests and by not
providing them an opportunity to present evidence to support the reasonableness of the
requested fees.
E. The Board Abused Its Discretion By Not Allowing Testimony From
The Other Witnesses.
The claimants contend that they had a statutory right to call witnesses at the
hearing and that the Board abused its discretion when it excluded all of the attorney
67 747 P.2d 528, 533-34 (Alaska 1987) (citing Wilson v. Erickson , 477 P.2d
998, 1001 (Alaska 1970); Beauchamp v. Emp'rs Liab. Assurance Corp. , 477 P.2d 993,
996 (Alaska 1970)).
68 See Beauchamp, 477 P.2d at 996 & n.8 (quoting 2A ARTHUR LARSON,
WORKMEN'S COMPENSATION LAW § 79.50, at 299 (1970)) (discussing extent to which
RISTIN E.
expert medical testimony is necessary in compensation cases); see also 2 K
ICKMAN & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 9.6, at 1052-53
H
(6th ed. 2019) (discussing adjudicators' use of their own knowledge to assess evidence).
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witnesses. SEARHCresponds that the Board properly evaluated the proposed testimony
and correctly decided it was not relevant.
Theclaimants sought to call Grahamand three other attorneys as witnesses.
One Juneau attorney would have testified about thereasons"he declines to accept Alaska
compensation cases" and Graham's "legal abilities and experience." Another attorney
would also have testified about "Graham's experience and abilities" as well as his
"ability to earn large fees handling personal injury cases." Finally, an Anchorage
attorney would have testified about the "hourly rates received by experienced Alaska
compensationattorneys,"among other things. Grahamevidently intended tosupplement
69 The Board decided
his fee affidavit through testimony, as a Board regulation allows.
that the proposed testimony was either irrelevant, repetitious, or both. The Commission
70
decided that the Board had not abused its discretion.
The Board's failure to allow Graham to testify is troubling in light of the
express regulatory provision that authorizes attorney testimony at a hearing to
supplementfeeaffidavits. SEARHC's assertionthat "undertherules"theclaimants were
required to file "updated fee affidavits" at the hearing is perplexing given the regulatory
69 8 AAC 45.180(b).
70
The Commission erroneously evaluated this issue as the application of a
Board regulation and incorrectly stated that AS 44.62.460 does not apply to Board
hearings because of a Board regulation. The Alaska Administrative Procedure Act
applies to Board proceedings "where procedures are not otherwise expressly provided
by the Alaska Workers' Compensation Act." AS 44.62.330(a)(12). While the Board has
the power to promulgate regulations interpreting the Act, AS 23.30.005, a regulation is
not a statute and cannot overrule one. We have applied AS 44.62.460 to workers'
compensation proceedings in the past. See, e.g., DeNuptiis v. Unocal Corp., 63 P.3d
272, 277-78 (Alaska 2003) (applying AS 44.62.460(e) and concluding that the standard
of proof was preponderance of the evidence); Emp'rs Commercial Union Ins. Grp. v.
Schoen, 519 P.2d 819, 823-24 (Alaska 1974) (applying AS 44.62.460(b)).
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language. Moreover, SEARHC said it could not object to Graham "testifying about his
fee affidavit." The Board's exclusion of Graham's testimony was an abuse of discretion.
Although wehaveexplainedthattheBoardandCommissionmisunderstood
our precedent and improperly narrowed the inquiry related to reasonable fees, the
Board's blanket exclusion of all testimony from the attorney witnesses was improper
even if the Board had been right about the relevant factors. Two of the attorneys would
have provided testimony about Graham's experience; while the Board was interested
only in workers' compensation experience, the record does not show that the witnesses
had no knowledge of this issue. Likewise, the Anchorage attorney would have testified
about the very information the Board derived from its database - the hourly rates
received by workers' compensation attorneys. The Board also said some testimony
would be unduly repetitious, but testimony is not repetitious if no testimony has been
allowed.
We do not mean to imply that administrative adjudicators have no
discretion to control hearings and limit witnessesto relevanttestimony: AS44.62.460(d)
expressly permits exclusion of "[i]rrelevant and unduly repetitious evidence." But the
Board prevented the witnesses from testifying at all - it did not sustain objections to
specific questions eliciting irrelevantinformation -eventhough theproposed testimony
was relevant. TheCommission's comment that "the testimony of the proposed witnesses
would not have provided the Board with any information not already within its
knowledge" is simply not accurate. At the time the claimants sought to call the
witnesses, the Board panel did not have the information the witnesses might have
supplied - the Board presumably had to look up the information after the hearing since
it was unable to provide the claimants with it when they asked at the hearing. The
Commission's conclusion that the Board did not abuse its discretion in excluding the
attorney witnesses' testimony was incorrect, and we reverse that decision.
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F. The Commission Correctly Concluded That The Presumption Of
Compensability Does Not Apply To The Amount Of Fees.
The claimants argue that the presumption of compensability should apply
to attorney's fees because we have held that a claimant is entitled to the presumption of
71
compensability on evidentiary issues involved in the determination of compensability.
In response SEARHC relies on an unpublished decision in which we decided that the
72
presumption of compensability did not apply to a request for attorney's fees. We said
there that the Board was "to determine the reasonableness of each request for fees" and
concluded that attorney's fees "are subject to the broad discretion of the Board and will
73
be upheld unless manifestly unreasonable." SEARHC also points out that the
reasonableness of fees involves discretion.
We agree with the Commission that the presumption of compensability
does not apply to the amount of fees and their reasonableness, but our reasoning differs
from the Commission's. We have held that the presumption does not apply to all
contested issues in a workers' compensation claim, with our decisions considering
74 In Rockney v.
whether application of the presumption furthered statutory goals.
Boslough Construction Co. we held that the presumption did not apply to evaluating
whether a specific reemployment plan met the relevant statutory requirements because
71 See Sokolowski v. Best W. Golden Lion Hotel , 813 P.2d 286, 292 (Alaska
1991) (setting out that claimant "is entitled to presumption of compensability as to each
of those questions" involved in determining whether a judicially recognized exception
applied).
72 Soule v. Mid-Town Car Wash, No. S-5634, 1994 WL 16459431 (Alaska
Aug. 3, 1994).
73 Id. at *1.
74 Burkev.HoustonNANA, L.L.C., 222P.3d851,861(Alaska2010); Rockney
v. Boslough Constr. Co., 115 P.3d 1240, 1243-44 (Alaska 2005).
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the insurer and employer did not dispute the claimant's "entitlement to reemployment
75
benefits or their liability for those benefits."
We observed that the claimant was not
seeking coverage and reasoned that "applying the presumption to evaluating
reemployment plans does not promote the goals of encouraging coverage and prompt
76
benefit payments."
A similar rationale applies here. The parties did not dispute the claimants'
entitlement to attorney's fees; they disputed the fees' reasonableness. A determination
of reasonableness requires consideration and application of various factors that may
involve factual determinations,77 but the reasonableness of the final award is not in itself
a factual finding. The difference is illustrated by what we consider in reviewing these
questions. We use the substantial evidence test for review of factual determinations,
78
considering whether the record has adequate evidence to support the factual finding.
In contrast when we review the Board's exercise of discretion in an award of attorney's
79
fees, we consider whether the award is manifestly unreasonable.
75 115 P.3d at 1244.
76 Id.
77 See AS 23.30.145(a) (requiring consideration of "nature, length, and
complexity of the services" as well as benefits resulting from attorney's services); 8
AAC 45.180(b), (d).
78 Rockney, 115 P.3d at 1242.
79 Williams v. Abood , 53 P.3d 134, 139 (Alaska 2002); see also Reid v.
Williams, 964 P.2d 453, 460 n.17 (Alaska 1998) ("An award of attorney's fees will only
be reversed for an abuse of discretion, which exists if the award is arbitrary, capricious,
manifestly unreasonable, or the result of an improper motive." (quoting Hughes v. Foster
Wheeler Co., 932 P.2d 784, 793 (Alaska 1997))).
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G. The Commission Erred In Affirming Use Of A Paralegal Rate.
TheCommissionaffirmedtheBoard's decisionthatsomeofGraham'stime
should only be paid at a paralegal rate. Neither the Board nor the Commission
articulated a standard to distinguish attorney tasks from paralegal tasks. The Board cited
only one prior Board decision about paralegal work, which involved an attorney's
voluntary reduction in her hourly rate for tasks she considered paralegal tasks. 80
We agree with the claimants that it was improper to award a paralegal's
hourly rate for legal tasks performed by an attorney. The Board's regulations allow
81
awards of attorney's fees only to licensed attorneys and permit paralegal work to be
billed as a cost only when the paralegal "is employed by an attorney licensed in this state
82 In other words, the training of the person doing the work, not the task
or another state."
performed, determines whether the award is for attorney's fees or costs. As the claimants
argue, many tasks in a workers' compensation case can be performed by paralegal staff
because the Board permits nonattorney representatives at all stages of its proceedings.83
Reducing an attorney's hourly fee to a paralegal rate for work the attorney
performed discourages rather than encourages representation of injured workers. The
Board and Commission should not penalize an attorney who does not employ a paralegal
and performs legal tasks that either an attorney or a paralegal can perform. Even when
attorneysemployparalegals,attorneys musthave discretion to managetheir lawpractices
80 Baker v. Pro West Contractors L.L.C. , AWCB Dec. No. 15-0069 at 11,
(June 16, 2015), http://appeals.dol.alaska.gov/docs/workerscomp/2015/15-0069.pdf.
81 8 AAC 45.180(b), (d); cf. AS 23.30.260(b) (permitting attorney licensed
in this state to charge a one-time fee of $300 for services when attorney does not enter
an appearance).
82 8 AAC 45.180(f)(14).
83 8 AAC 45.178 (2011).
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and select which tasks to delegate to paralegals. An attorney's voluntary decision to
charge only a paralegal rate in one claim does not create a legal rule that permits the
Board to reduce arbitrarily the fees awarded when an attorney performs tasks that are
necessary to the claim but might be within a paralegal's duties in a larger firm.
The Act is to be construed and applied in a manner that encourages, not
84 We agree with the claimants'
discourages, attorney representation of injured workers.
argument before the Board that awarding only a paralegal rate for work done by an
attorney will result in fewer attorneys who will represent claimants. The Commission's
decision that paralegal tasks were properly "reduced in value" is contrary to the goal of
ensuring that competent counsel are available to represent injured workers and must be
reversed.
H. The Commission Erred In Concluding That Substantial Evidence
Supported The Board's Findings.
The parties dispute the Commission's conclusion that substantial evidence
in the record supports the Board's findings. These were highly contentious cases, and
many of SEARHC's objections to fees were based on assertions of fact, leaving the
adjudicators with the difficult task of combing through the records to resolve multiple
picayune disputes. Not all of the disputes centered on facts; instead, they involved
questions of the reasonableness of the time spent. For example, SEARHC asserted that
Graham spent an unreasonable amount of time reviewing discovery even though it
acknowledged that it had provided him with discovery at those times. The Commission
decided in conclusory fashion that substantial evidence supported the Board's decisions
84 See, e.g., Cortay v. Silver Bay Logging, 787 P.2d 103, 109 (Alaska 1990)
("Awarding fees at half a lawyer's actual rate is inconsistent with the purpose of
awarding full attorney's fees in the worker's compensation scheme.").
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85
but only provided analysis on a few issues. Even though we are remanding this case
for further proceedings, we address a few factual findings that do not appear to be
supported by the record to assist the Board on remand.
In Dockter's case the Commission affirmed the Board's decision that
Dockter had not prevailed on the compensation rate adjustment, writing that the
settlement "did not provide money for resolving this issue." Yet the settlement
agreement describes a dispute over the weekly compensation rate and says that the
parties' settlement of TTD "reflects a compromised rate," suggesting that SEARHC did
in fact provide some money for the compensation rate adjustment. If that is the case, the
Board's decision was not supported by the evidence.
We also question the Commission's conclusion that the Board justifiably
eliminated all of Graham's time for work on what he called a mediation brief in the
attorney's fees dispute. TheCommission thought thedocument was "unnecessary." The
Board said that the brief was prepared "after mediation ended," but it did not account for
evidence from both parties suggesting that the parties anticipated working further with
the mediator to resolve the attorney's fees dispute. It is unclear why a document
prepared to assist a mediator would have been unnecessary, particularly when it appears
the mediator shared the document's contents with SEARHC's attorney. After the Board
reassesses the claimants' success, it will also need to reassess the hours permitted as
reasonable attorney's fees.
85 As we pointed out above, we found nothing to support the Commission's
conclusion that the Board reduced Graham's hours for researching wrongful termination
in Rusch's case. The Commission made a similar determination in Dockter's case. We
are unaware of any dispute about the termination of Dockter's work with SEARHC.
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I. The Commission Erred In Concluding That The Board Properly
Exercised Its Discretion In Awarding Fees.
In both decisions, theBoardmadeatableshowingreductionsintheclaimed
86
attorney time based on Graham's "billing methods," i.e. his use of block billing and
quarter-hour time increments. The Board constructed a second table in each case
showing reductions for what it considered "unreasonable time spent on relatively simple
87
tasks." The total reduction was not trivial: in Dockter's case the reductions totaled
more than 25 hours, and in Rusch's case they exceeded 50 hours.
The Board apparently considered the complexity and novelty of the issues
in the cases, but it is not clear how it used these factors in its analysis; it seems to have
used these factors to decide that the total number of hours billed was unreasonable, but
88
it did not explicitly cite the factors in reducing any time entry. The Board decided that
Rusch's "medical and legal issues were not complex or novel" because "[b]ack injuries
are the most common injuries claimed by injured workers." It considered Dockter's
legal issues to be "of average complexity."
The Commission affirmed the Board's decisions because in its view the
Board acted within its discretion in making these reductions. The Commission agreed
that the medical issues were neither complex nor novel, it thought the cases were not
86 We find it significant that both attorneys' billing records here used block
billing.
87 Because the Board identified time entries in these tables by date and hours
claimed, it is not always evident which time entries were reduced or eliminated. The
Board reduced to zero some time entries in Rusch's case; it did not explain why those
tasks were unnecessary.
88 As we mentioned above, neither party raised an issue about the method of
calculating fees here; the awarded fees were the product of the hours the Board allowed
and the hourly rate the Board awarded.
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lengthy, and it concluded that the amount of fees awarded in both claims was not
manifestly unreasonable. In Rusch's case the Commission amplified the Board's
findings about the lack of complexity, explaining that the lack of a second independent
medical evaluation (SIME) or doctors' depositions was "evidence that this was not a
complex case." Neither agency mentioned issues of redacted documents or SEARHC's
failure to file at least one medical report in Rusch's case, nor did they explore the
relationship between reemployment benefits, TTD, and Rusch's layoff.
The claimants argue that the Board abused its discretion when it reduced
their attorney's hours because of block billing and his use of quarter-hour increments for
89 SEARHC responds that substantial evidence in the record supports the
time records.
Board's reductions in hours. It contends that disallowing time for block billing "was
perfectly logical and rational" and an appropriate "observation" based on the Board's
experience "as an administrative tribunal." It maintains that reducing hours because of
Graham's use of quarter-hour time increments was supported by substantial evidence
because the Board found "that billing in increments of one-tenth of an hour was
customary."
Turning first to the use of a specific time increment, the fact that workers'
compensation attorneys generally bill in increments of one-tenth of an hour does not
make that custom a rule of law. The Board's regulations do not require use of a specific
time increment, and the Board did not tell Graham at the hearing that he needed to use
tenths of an hour so that he could modify his affidavit. The reduction in hours solely
based on the use of quarter-hour increments was an abuse of discretion.
89
The claimants ask us, without explanation, to increase the fees awarded
under AS 23.30.145(c). We have never construed this statutory subsection as allowing
us to increase Board-awarded fees; because the claimants provided no argument to
support their request, we consider this issue waived.
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The reductions solely based on block billing were also an abuse of
discretion. The Board's regulation does not prohibit block billing, and prior Board
90 The Board
decisions do not have a clear rule about reductions solely for block billing.
here said that block billing made it difficult to determine whether the specific tasks were
related to issues on which the claimants succeeded, but in some instances the Board
reduced the attorney's time when all of the tasks appear to be related to issues on which
the claimants prevailed. And in evaluating entries with block billing, the Board at times
awarded less time than SEARHC agreed was reasonable without explaining why.
The fact that back injuries are common does not support a finding that a
particular case is not complex,91 nor is the fact that certain benefits are "common" or
"routinely addressed" evidence that the legal issues related to those benefits are not
complex. And the lack of an SIME or multiple medical depositions is as much evidence
that the cases settled early in the litigation process as it is that they were not complex.
By any measure the fees awarded in these cases were unreasonably low.
Rusch received in her final settlement far more than SEARHC ever offered before
Graham entered an appearance. According to Hennemann's billing records, her firm
90 See Lavallee v. Bucher Glass Inc. , AWCB Dec. No. 16-0055 at 32-33 (July
8, 2016), http://appeals.dol.alaska.gov/docs/workerscomp/2016/16-0055.pdf
("encourag[ing]" employee's attorney to avoid block billing in future but listing multiple
factors in adjusting fees); Mullen v. Municipality of Anchorage , AWCB Dec. No. 10-
0172 at 11 (Oct. 14, 2010) (reducing by three hours attorney time for duplicate billing
for conferences after observing that block billing made using estimate necessary). The
Board has also approved block billing, writing that a hearing officer can evaluate the
reasonableness and necessity of the tasks listed for a day. McKenna v. ARCO Alaska,
Inc., AWCB Dec. No. 12-0070 at 60 (Apr. 9, 2012).
91 See, e.g., Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 789-90
(Alaska 2007) (reversing Board's decision not to consider lay testimony in medically
complex back-injury case).
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----------------------- Page 45-----------------------
billed the employer over $44,500 in legal fees through the end of July for representing
it in Rusch's case; the records do not include the hearing or time related to SEARHC's
objections to Graham's fee affidavit. The amount of fees the Board awarded Rusch for
work through the time Graham filed his supplemental fee affidavit in October, after the
hours-long hearing, was $39,513.50. In Dockter's case the difference was not as great:
Hennemann's firm billed its clients just over $33,700 in legal fees through the end of
July, and the Board awarded Dockter $34,773.50 for Graham's work through the filing
of his supplemental fee affidavit in October. But, as with Rusch, Dockter received far
more in settlement than SEARHC had previously offered, and she additionally obtained
the partial knee replacement surgery she sought. And because of the procedure the
Board used here, the claimants were not able to document and get payment for their
attorney's time spent responding to SEARHC's extensive objections to the fee affidavits
or its objection to the timeliness of their responses.
Wehave"noted that employees'attorneys need to earn morethan a'normal
92
hourly fee' on successful cases because they receive nothing on unsuccessful cases."
We have consistently instructed that the Act is to be construed and applied to ensure that
competent counsel are available to represent claimants.93 The fees awarded here do not
meet this standard and are manifestly unreasonable. Neither the Board's nor the
Commission's decisions can fairly be characterized as consistent with the goals we have
identified, even though the Board cited our precedent and acknowledged the policies
underlying them. Using a legal standard like an incantation, in the hope that the mere
recitation of the standard will transform a decision contrary to the standard into one
92 State, Dep't of Revenue v. Cowgill , 115 P.3d 522, 526 (Alaska 2005)
(quoting Wise Mech. Contractors v. Bignell , 718 P.2d 971, 975 (Alaska 1986)).
93 E.g., id. at 524; Cortay v. Silver Bay Logging, 787 P.2d 103, 108 (Alaska
1990); Bignell, 718 P.2d at 973.
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conforming to it, is not the point of the law. For the law to have meaning, application
of standards must be more than an empty exercise. The Commission's decisions here,
while reciting the law about the importance of representation, work to discourage rather
than encourage representation of claimants and must be reversed.
V. CONCLUSION
We AFFIRM the Commission's decision that the presumption of
compensability does not apply to the reasonableness of an attorney's requested fees. In
all other respects, we REVERSE the Commission's decisions and REMAND the cases
to the Commission with instructions to remand to the Board for further proceedings
consistent with this opinion.
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