LESLIE E. LIPMAN, 
Employee, 
Respondant,
v. 
ANCHORAGE SCHOOL DISTRICT,
(Self-Insured),
Employer
Petitioner.

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FINAL
DECISION AND ORDER
AWCB Case No. 199617563
AWCB Decision No. 00-0028
Filed in Anchorage, Alaska
on February 17, 2000.

We heard the employer’s petition for review on January 27, 2000 at Anchorage, Alaska. The employee appeared, represented by Attorney, Chancy Croft. Attorney Patricia Shake represented the employer. We proceeded as a two-member panel, which constitutes a quorum (AS 23.30.005(f)). We closed the record at the hearing’s conclusion.

1. Whether to modify the employee’s finding of eligibility for reemployment benefits.
2. Whether to award interest on a compensation rate adjustment.
3. Whether to award attorney’s fees and costs.

We incorporate by reference the facts as detailed in our previous decision and orders. In Lipman v. Anchorage School District, AWCB Decision No. 98-0107 (April 27, 1998) (Lipman I), we found the reemployment benefits administrator (RBA) Designee did not abuse her discretion finding the employee eligible for reemployment benefits, and awarded attorney’s fees and costs. In Lipman v. Anchorage School District, AWCB Decision No. 98-0126 (May 26, 1998) (Lipman II), we denied and dismissed the employer’s petition for reconsideration, affirming our decision in Lipman I that the employee is eligible for reemployment benefits. We emphasized the statutorily required competitive component in AS 23.30.041(e)(2), that an employee be able to compete in a labor market for a job he has held within the past 10 years, must be considered before that job could render him not eligible for reemployment benefits.

Subsequently, the employer appealed to the Superior Court. In Anchorage School District v. Lipman, 3AN-98-7260 (Alaska Super., September 23, 1999) (ASD Super. I), the Honorable John Reese affirmed our decisions in Lipman I and II. Specifically, the court in ASD Super. I at 6 held:

In addition, Judge Reese concluded we did not err in Lipman I when we precluded the employer from introducing new evidence: "The Board was correct in precluding the evidence due to ASD’s lack of `due diligence’ in producing the report to the evaluator prior to her decision [under] 8 AAC 45.070(b)(a)(A). The court held:

We based our decision in Lipman I on the testimony and arguments heard at the April 15, 1998 hearing. On April 16, 1998 the employee underwent additional shoulder surgery with his treating physician, Robert E. Gieringer, M.D. (See also, Douglas G. Smith’s February 7, 1998 SIME report, concurring with the need for the 1998 reconstructive shoulder decision). In his December 7, 1998 report, Dr. Gieringer noted:

In his January 18, 1999 work slip, Dr. Gieringer checked the box which released the employee to "light duty" and checked the box indicating "Partial disability dates," adding the following notation: "Medium duty work or less." The following restrictions were also noted: "No lifting over 50 pounds; No repetitive lifting over 20 pounds; No forceful use of left shoulder." In that same note, Dr. Gieringer commented: "Cannot return to custodial (previous) work." In responding to the employer’s January 28, 1999 inquiry, Dr. Gieringer indicated the employee was medically stable and could be rated for permanent impairment (PPI).

At the request of the employer, the employee’s physical capacities were evaluated by Forooz Sakata, O.T.R., R.N., and by J. Michael James, M.D., for a PPI rating. In her April 6, 1999 report, Ms. Sakata concluded the employee’s physical assessment was consistent and valid, and placed him in the "medium-heavy category of physical demand level of work. "I have reviewed the job analysis that was provided to me by the school district at the time of this evaluation (DOT: 382-664.010). He is capable of performing this position based on his strength and functional capacities."

In his April 7, 1999 report, Dr. James rated the employee PPI at 10% of the whole person. In this report, Dr. James answered as follows, questions posed by the employer:

On September 21, 1999, Loretta C. Cortis, C.D.M.S., the employee’s rehabilitation specialist, filed the employee’s reemployment plan dated September 15, 1999. The plan proposed to return the employee to employment as an accounting clerk in seven months, with plan costs totaling $9,600.00. As mentioned earlier, the Superior Court affirmed our decisions in Lipman I & II finding the employee eligible for reemployment benefits on September 23, 1999.

On October 22, 1999 the employer filed the present Petition for Modification. "ASD is seeking to modify the RBA’s determination and Board decision finding employee Leslie Lipman eligible for reemployment benefits. ASD asserts that a change in the employee’s physical capacities has occurred since the eligibility determination which renders him ineligible for reemployment benefits." (Employer’s October 22, 1999 Memorandum).

In his October 27, 1999 letter, the RBA deferred approval of the employee’s plan pending receipt of additional information regarding the employee’s learning abilities. In his December 29, 1999, letter, the RBA approved the September 21, 1999 plan. Neither the employer nor the employee have appealed the RBA’s plan approval.

The employer argues the change in the employee’s physical capacities after his reconstructive surgery requires the Board to modify its prior decision regarding the employee’s eligibility. The employee disagrees. The employee asserts the employer’s petition is procedurally incorrect, medically unjustified, and time barred. The employee seeks interest, attorney’s fees and costs, and payment of the rehabilitation specialist’s fees.

Also at the January 27, 2000 hearing, the employee argued a claim for interest on a compensation rate adjustment the employer acknowledged and paid on January 25, 1999. At the time of the employee’s injury (1996), he worked other jobs during the summer when school was not in session. On December 11, 1998, the employee filed a claim for a compensation rate adjustment to increase his rate to include his summer, non-ASD work. The employee provided some incorrect wage information on December 23, 1998. The employee acknowledged the error, and on January 13, 1999, the employee provided the correct wage information. The employer acknowledged a rate adjustment was due, and on January 25, 1999 paid the employee a lump amount reflecting the increased compensation rate.

I. Modification.

AS 32.30.130 provides in pertinent part:

We find the employer’s petition to modify our earlier decisions under section 130 is not timely. The employer rejected the employee’s entitlement to reemployment benefits when it appealed the RBA Designee’s determination of eligibility. Our decisions regarding the employee’s eligibility for reemployment benefits in Lipman I and I were issued on April 27, 1998 and May 26, 1998, respectively. We find our authority to modify our earlier decisions expired no later than May 26, 1999. The employer did not file its petition to modify until October 22, 1999. We specifically note that Ms. Sakata’s April 6, 1999 report and Dr. James’ April 7, 1999 report were both issued, at the employer’s request, prior to this deadline.

The employer began paying the employee AS 23.30.041(k) stipend benefits on September 5, 1999. Prior to that time, the employee was paid his AS 23.30.190 PPI benefits in periodic installments between January 19, 1999 through September 4, 1999. The employee last received temporary total disability (TTD) benefits under AS 23.30.185 for January 18, 1999. (See, September 20, 1999 compensation report).

The remaining portions of AS 23.30.130 provide, in pertinent part: The Board may "before one year after the date of the last payment of compensation benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200, or 23.30.215" review a compensation case. In Imhof v. Eagle River Refuse, AWCB Decision No. 94-0330 (December 29, 1994), the Board held:

As we find the employee’s last payment for TTD was January 18, 1999, we must conclude the employer’s October 22, 1999 petition for modification is timely.¹ We have jurisdiction to consider the Petition to Modify.

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."

The court went on to say:

Id. at 169.

We have adopted regulations to implement our authority to modify a decision. 8 AAC 45.150:

We take judicial notice that Ms. Sakata and Dr. James work for the same corporation; Dr. James adopted Ms. Sakata’s physical evaluation findings in his April 7, 1999 report. Accordingly, we consider these two reports together. Had these been the only reports filed regarding the employee’s ability to return to work at his job for the employer, we may have modified our decisions in Lipman I and II. Fortunately we have the benefit of Dr. Gieringer’s report.

Contrary to the assertions of the employer, we find Dr. Gieringer released the employee to "light" duty work, not "medium to heavy." On January 18, 1999, Dr. Gieringer specifically opined the employee can not return to work as a custodian. Dr. Gieringer has long served as the employee’s attending and surgical physician. Dr. James and Ms. Sakata only evaluated the employee once. As he has spent considerably more time over the entire history of the employee’s treatment, we give more weight to Dr. Gieringer’s opinion, regarding whether e should return to work as a custodian. Furthermore, we find, after reviewing the extensive medical and vocational history involved, that the totality of the record supports Dr. Gieringer’s conclusion that the employee should not return to work as a custodian.

Accordingly, we conclude we will not exercise our discretion and order modification of our earlier decisions in Lipman I and II. The employer’s petition to modify is denied and dismissed; the employee remains eligible for reemployment benefits.

II. Interest.

Based on the employee’s testimony, we find the employee did not provide correct wage documentation for his summer, non-ASD work until January 12, 1999. We find the employer appropriately re-calculated his compensation rate to show the increased wage rate and paid in full by January 25, 1999 (13 days after receiving the wage information). We find the employer had no control over the employee's provision of this information, and could not calculate without it. We conclude the employer paid in a very timely matter once the employee provided the documentation. We conclude the employee’s request for interest on his compensation rate adjustment must be denied and dismissed.

III. Attorney’s Fees and Costs.

AS 23.30.145 provides in pertinent part:

The employee seeks an award of attorney's fee under subsection 145(b) for the successfully defending the employer's petition to modify our earlier decision finding the employee eligibility for reemployment benefits. We find the employer resisted the employee's eligibility by appealing the RBA Designee's determination, and requesting modification of our earlier decisions. Accordingly, we can award a fee under subsection 145(b). Alaska Interstate v. Houston, 586 P.2d 618, 620 (Alaska 1978).

Subsection 145(b) requires the attorney's fee awarded be reasonable. Our implementing regulation, 8 AAC 45.180(d), requires that a fee awarded under subsection 145(b) be reasonably commensurate with the work performed. It also requires we consider the nature, length, and complexity of the services performed, as well as the amount of benefits involved.

Although not highly complicated or lengthy,² we find the benefits at issue, reemployment benefits, are very valuable, to the employee. According to the employee's physician, he can no longer work in his job at time of injury. We find the hours Mr. Croft billed to be reasonable (24.10 + 2.5 hearing time = 26.6); none of the hours billed appear to relate to the compensation rate interest issue. We also find Mr. Croft’s hourly rate is reasonable, considering the contingent nature of claimant's work, and Mr. Croft’s extensive experience; furthermore, the employer did not object to the employee’s attorney’s hourly rate. 26.6 X $250.00 = $6,650.00. We conclude the employer shall pay the employee $6,650.00 for a reasonable attorney's fee. The only costs claimed are 3.35 hours of paralegal costs at $90.00 per hour. We find these costs are reasonable and awardable under 8 AAC 45.180(f)(14), and shall be awarded. 3.35 X $90.00 = $301.50. $301.5 + $6,650.00 = $6,951.50. In total, we conclude the employer shall pay the employee’s reasonable attorney fees and costs of $6,951.50.

1. The employer’s petition for modification is denied and dismissed. The employee remains eligible for reemployment benefits.
2. The employee’s request for interest on a retroactive compensation rate adjustment is denied and dismissed.
3. The employer shall pay $6,951.50 for reasonable attorneys’ fees and costs.

Dated at Anchorage, Alaska this 17^th day of February, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Darryl Jacquot
Darryl Jacquot,
Designated Chairman

/s/ Marc D. Stemp
Marc Stemp, 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 LESLIE E. LIPMAN employee / reondant; v. ANCHORAGE SCHOOL DISTRICT, (Self-Insured) employer / petiitoner; Case No. 199617563; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 17^th day of February, 2000.

Debra C. Randall, Clerk