DONALD H. DOUGLAS, 
Employee, 
Applicant
v. 
HILLS PET NUTRITION,
Employer,
and 
TRAVELERS INSURANCE CO,
Insurer,
Defendants.

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DECISION AND ORDER
AWCB Case No. 199702877
AWCB Decision No. 00-0004
Filed with AWCB Fairbanks, Alaska
on January 13, 2000

We heard the employee's petition to excuse a late filing of an affidavit of attorney fees on the written record at Anchorage, Alaska, on December 17, 1999. Attorney Meredith Ahearn represented the employee. Attorney Michael Budzinski represented the employer. We closed the record at the time of our deliberations on December 17, 1999.

The employee began working for the employer in December of 1995 as a route account manager. The employee testified at a May 11, 1999 hearing that, in addition to managing his accounts, his duties included delivering between 10,000 and 30,000 pounds of pet food per work day. The employee testified that on January 9, 1997, he unloaded and carried two 20-pound bags of pet food inside the Eagle River Veterinary Clinic. He testified he lost his balance and fell approximately two-thirds the way down a flight of stairs at the clinic.

The procedural history of this claim is described in the decision and order issued following the May 11, 1999 hearing.¹ In short, the employer argued the employee recovered from any injuries arising from the fall and reached medical stability no later than November 30, 1997, thus ending its liability for temporary total disability (TTD) benefits on November 30, 1997. The employer also argued the evidence presented at hearing did not support an award of permaneant partial impairment (PPI) benefits or continuing medical care after November 30, 1997.

The employee argued he was not medically stable, and that he would not be until his work-related psychological problems are treated, and he completes a pain program. Accordingly, the employee asserted he is entitled to TTD from November 30, 1997, continuing, and reimbursement for his medical expenses after November 30, 1997. The employee also asserted that an award of PPI can not be made until after he is medically stable.

Upon reviewing the record, we found the employee suffers from a depressive condition, substantially caused by to the January, 1997 work-related injury. We found the preponderance of the evidence supported our finding the employee was not malingering.

Regarding the employee's date of medical stability, we found he had not yet reached medical stability. Virtually all medical and psychological providers indicate the employee would benefit, and his condition would improve, with participation in and completion of a pain management program.

We found the medical opinions on this matter generally concur with the employee's position that his depressive psychological condition prevented his participation in a pain management program. We found this depressive condition is directly related to his January 1997 work-related injury. We also found the employee's work-related depressive condition must be resolved, before a pain management program can be attempted and/or completed. Accordingly, we concluded the employee was not yet medically stable. We concluded the employee is entitled to be paid TTD from November 30, 1997, and continuing. We ordered the employer to reimburse the employee's medical and psychological expenses incurred after May 1, 1998, including transportation expenses.

Regarding the employee's request for an award of a penalty and interest, we found the employer controverted both the employee's time-loss and medical benefits based on reports from its medical evaluators. We found these controversions were filed in good faith, and concluded a penalty was not due. Nevertheless, we also found the employee should be compensated for the time value of the time-loss and medical benefits awarded. We ordered, the employer to pay interest from the date those benefits were due, at the statutory rate under AS 45.45.010.

Given our conclusion the employee was not yet medically stable, we found an award for PPI benefits was premature. We reserved jurisdiction to decide any disputes regarding future PPI that may arise.

We found the employee did not file an affidavit of attorney's fees prior to or at the May 11, 1999 hearing. Accordingly, we concluded the employee is limited to an award of attorney's fees under AS 23.30.145(a). Given that we did not know the specific benefits awarded, however, we found we could not accurately calculate the employee's award of attorney's fees under AS 23.30.145(a). Accordingly, we reserved jurisdiction to resolve any disputes in regard to the amount of the employee's attorney's fees. We also found a statement of costs did not need to be filed contemporaneous with a hearing date under 8 AAC 45.180 and we reserved jurisdiction to award costs upon receipt of a cost affidavit from the employee.

On July 9, 1999 we received an itemized attorney fee and cost affidavit, along with a petition to excuse the employee’s failure to timely file the affidavit under 8 AAC 45.180, in order to obtain a full award of costs and attorney fees. The employer filed an opposition to the petition, contending that the petition and supporting affidavit offered no explanation as to why the affidavit was not submitted three days before the hearing, as required by 8 AAC 45.180. Therefore, the employer contends, the employee has not supplied good cause for excusing the delay.

Our regulation, 8 AAC 45.180(b) provides in pertinent part:

We have already found the employee did not file an affidavit of attorney's fees prior to or at the May 11, 1999 hearing. Therefore, we also found the employee is limited to an award of attorney's fees under AS 23.30.145(a) which provides in pertinent part:

We found the claim was controverted both by a Controversion Notice and by the employer's actions. Wein Air Alaska v. Arant, 592 P.2d 352 (Alaska 1979). We found the employer resisted paying benefits from November 30, 1997, and continuing; we found the value of these benefits to the employee were substantial. We found the issues were complicated, and vigorously contested. We found the employee obtained the services of an attorney who provided legal services, submitting evidence to support the employee's claims and aggressively pursued his claims. We found the attorney's actions resulted in the ultimate resolution and successful determination of his claims for benefits.

We found that, although we have awarded a substantial present award (time-loss and medical benefits) and potential future award (PPI), we could not ascertain an exact sum to the benefits awarded. Accordingly, we found we could not accurately calculate the employee's award of attorney's fees under AS 23.30.145(a). We directed the parties to privately resolve this issue and reserved jurisdiction to resolve any remaining disputes. We also found a statement of costs did not need to be filed contemporaneous with a hearing date under 8 AAC 45.180. We directed the employee to provide a cost affidavit and reserved jurisdiction to award costs upon receipt of the affidavit.

In essence, the employee now asks that we reconsider and modify our decision to award statutory minimum attorney fees under AS 23.30.145 (a) and to award actual attorney fees under AS 23.30.145 (b). As an administrative agency, we are permitted to reconsider a previously issued decision, in accordance with AS 44.62.540, which reads as follows:

We may also modify a previously issued decision under AS 23.30.130(a), which provides:

The Alaska Supreme Court discussed subsection 130(a) in Interior Paint Company v. Rodgers, 522 P.2d 161, 168 (Alaska 1974). Quoting from O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 256 (1971) the court stated: "The plain import of this amendment [adding "mistake in a determination of fact" as a ground for review] was to vest a deputy commissioner with broad discretion to correct mistakes of fact whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted." We have also applied AS 23.30.130 to changes in condition affecting vocational status and reemployment benefit determinations. See Imhof v. Eagle River Refuse, AWCB Decision No. 94-0330 (December 29, 1994).

Our regulation at 8 AAC 45.150(d)(e) requires as follows:

In this case, the employee provided an affidavit explaining the reasons he did not file the affidavit of fees at the time or after the hearing. The employee did not provide an explanation as to why the affidavit of fees was not supplied three days before the hearing, as required by 8 AAC 180(b)(2).

Accordingly, we conclude the employee has not provided good cause as to why we should excuse the late filing. Moreover, upon considering the nature, length, complexity and benefits awarded, we believe the award of statutory minimum attorney fees appears to be a reasonable award in this case. The employee’s request for excusal of late filing is denied.

Concerning the employee's cost affidavit, we note the employee requests reimbursement of copying costs in excess of the $.10 per page rate allowed by 8 AAC 45.180(f)(15), without required justification. Meanwhile, the employer did not object to the affidavit as submitted. Based on our review of the cost affidavit, we find the costs submitted are reasonable, except that the total cost reimbursement shall reflect a reduction in copying costs from $.20 to $.10 per page.

The employee’s petition to excuse his delay in submitting an affidavit of attorney’s fees is denied and dismissed.

Dated at Fairbanks, Alaska this __13th_ day of January 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Fred Brown
Fred Brown, Designated Chairman

/s/ Philip E. Ulmer
Philip E. Ulmer, Member

/s/ Harriet M. Lawlor
Harriet M. Lawlor, Member

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Proceedings to appeal must be instituted in Superior Court within 30 days of the filing of this decision and be brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

Within one year after the rejection of a claim or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200 or 23.30.215 a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of DONALD H. DOUGLAS employee / applicant; v. HILLS PET NUTRITION, employer; TRAVELERS INS. CO., insurer / defendants; Case No. 199702877; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this 13th day of January, 2000.

Lora Eddy,Clerk