ALASKA WORKERS' COMPENSATION BOARD
P.O. Box 25512 Juneau, Alaska 99802-5512
THOMAS E. HOLCOMB, ) ) Employee, ) DECISION AND ORDER Applicant, ) AWCB Case No. 903167 ) AWCB Decision No. 90-0103 v ) ) Filed with AWCB Fairbanks ALASKA WEST EXPRESS, ) May 11, 1990 ) Employer, ) ) and ) ) AMERICAN INTERNATIONAL ) ADJUSTMENT COMPANY, ) ) Insurer, ) Defendants. ) )
We heard this claim for attorney fees in Fairbanks, Alaska on May 8, 1990. Attorney Chancy Croft represented the applicant employee, and attorney Michael McConahy represented the defendant employer and insurer. A two-member quorum of the Board panel heard this claim because Joe Thomas, Board member representing labor, was unable to attend. We closed the record at the conclusion of the hearing.
ISSUE
Is the employee entitled to statutory attorney fees for medical benefits awarded in this case in Decision and Order AWCB No. 89-0278 (October 13, 1989)?
CASE HISTORY AND SUMMARY OF THE ARGUMENTS
The employee injured his left elbow and shoulder when he fell from the employer's truck on February 10, 1989. He suffered some work time loss and incurred medical costs as a result of the injury, but was released by his physician to return to work on April 8, 1989. His employer controverted all benefits, which led to a hearing and our first decision on this case, issued October 13, 1989. In that decision we awarded temporary total disability benefits, interest, medical benefits, attorney fees and costs. At the first hearing the employer requested statutory attorney fees. We interpreted that to be a request for fees under AS 23.30.145(a). Accordingly, we awarded statutory minimum attorney fees under that subsection based on the compensation received as a result of our decision.
Subsequently a dispute arose over the attorney fees. The employer paid statutory minimum fees on the time loss benefits paid the employee. The employee claimed attorney fees based on the medical benefits as well. That dispute was the subject of the second hearing on this case.
The employee argued that statutory minimum fees should have been paid on all benefits awarded to fully compensate the attorney for his efforts. He points out that in a number of our past decisions we have awarded reasonable attorney fees under AS 23.30.145(b) on medical benefits at the statutory rate established at AS 23.30.145(a).
The employer argues that our decision and order was clear and specific that attorney fees were to be awarded on "compensation" only. Although the employer appealed the issue from our decision concerning the compensability of the claim to the Superior Court, the appeal and reconsideration periods for the attorney fee issue were allowed to pass by the employee, so the issue should be considered res judicata and this claim dismissed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Res Judicata
AS 23.30.130(a) provides:
Upon its own initiative, or upon the application of any party in interest on the ground of a change in conditions, including, for the purposes of AS 23.30.175, a change in residence, or because of a mistake in the determination of a fact, the board may, before one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or before one year after the rejection of a claim, review a compensation case in accordance with the procedure prescribed in respect of claims in AS 23.30.110. In accordance with AS 23.30.110 the board may issue a new compensation order which terminates, continues, reinstates, increases, or decreases the compensation, or award compensation.
Our Supreme Court discussed §130 in Interior Paint Company v. Rodgers, 522 P.2d 161, 168 (Alaska 1987). 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:
The concept of mistake requires careful interpretation. It is clear that an allegation of mistake should not be allowed to become a back-door route to retrying a case because one party thinks he can make a better showing on the second attempt." 3 Larson, The Law of Workmen's Compensation §81.52, at 354.8 (1971).
Although the Board "may" review a compensation case, and this review can consist merely of further reflection on the evidence initially submitted, it is an altogether different matter to hold that the Board must go over all prior evidence every time an action is instituted under AS 23.30.130(a). Such a requirement would rob the Board of the discretion so emphatically upheld in O'Keefe v. Aerojet-General Shipyards, Inc., supra.
Id. at 169,
It appears to us that we made a mistake of fact in our first decision and order when we assumed that the employee asked for attorney fees under AS 23.30.145(a) exclusively. In accord with our statutory authority under AS 23.30.130 we will decline to apply the doctrine of res judicata, and we will consider the employee's request for attorney fees once again.
II. Attorney Fees
AS 23.30.145 provides in the pertinent parts:
(a) Fees for legal services rendered in respect to a claim are not valid unless approved by the board, and the fees may not be less than 25 percent on the first $1,000 of compensation or part of the first $1,000, and 10 percent of all sums in excess of $1,000 of compensation. When the board advises that a claim has been controverted, in whole or in part, the board may direct that the fees for legal services be paid by the employer or carrier in addition to compensation awarded. . . .
(b) If an employer fails to file timely notice of controversy or fails to pay compensation or medical and related benefits within 15 days; after it becomes due or otherwise resists the payment of compensation or medical and related benefits and if the claimant has employed an attorney in the successful prosecution of this claim, the board shall make an award to reimburse the claimant for his costs in the proceedings, including a reasonable attorney fees. The award is in addition to the compensation or medical and related benefits ordered.
It is clear from the supplemented record that the employee seeks attorney fees on all benefits awarded in our first decision at the statutory minimum rate established in AS 23.30.145(a). The employer argues that compensation" in AS 23.30.145(a) applies to time-loss benefits only. We have concurred with the employer's interpretation in a long line of cases. See, e.g., Khalil v. Sitka Community Hospital, AWCB Case No. 8906050 (May 2, 1990). Nevertheless, the Alaska Supreme Court has gradually expanded the definition of compensation under the Alaska Workers' Compensation Act. Most recently, in deciding that medical benefits are "compensation" for purposes of awarding interest, the Supreme Court observed:
IIC argues that medical benefits should not be treated as part of a "compensation" award within the meaning of the Workers' Compensation Act, and should therefore fall outside of the policy expressed in Rawls. See AS 23.30.205(a). In addressing whether medical benefits constitute "compensation", this court noted in Williams v. Safeway Stores, 525 P.2d 1087 (Alaska 1974). that the only reasonable reading of the work "compensation" is one which includes medical benefit payments. Williams, 525 P.2d at 1089n.....
Moretz v. O'Neill Investigation, 783 P.2d 764, 766 (Alaska 1989). That decision casts a shadow on our long-standing, narrower interpretation of the meaning of compensation in our statute.
The employee rendered this dilemma of interpretation moot (as far as this case is concerned) when he suggested that an award of fees should be made under AS 23.30.145(b). We have awarded medical benefits and we conclude that it is proper to award the prevailing employee his reasonable legal fees under AS 23.30.145(b) for those benefits in addition to the statutory minimum attorney fees under AS 23.30.145(a) for the time-loss benefits awarded by this decision. The employee requests attorney's fees under AS 23.30.145(b) for all medical benefits awarded by this decision at the statutory minimum rate formula provided at AS 23.30.145(a). Considering the average length and complexity of this case and the small amount of benefits in dispute, we find the rate established under subsection (a) to be reasonable as a basis for attorney's fees under AS 23.30.145(b) when applied to the medical benefits awarded in this case. See, Stevenson v. Grandmet/Ahtna, AWCB No. 89-0029 (February 1, 1989); Earwood v. North Slope Borough, AWCB 87-0336 (December 22, 1987).
Under AS 23.30.130 we will modify our decision in AWCB No. 89-0278 (October 13, 1989) to award the employee additional reasonable attorney fees under AS 23.30.145(b) at the rate established at AS 23.30.145(a) on all medical benefits awarded in our first decision.
ORDER
We modify our Decision and Order AWCB No. 89-0278 (October 13, 1989) under AS 23.30.130. We award the employee additional reasonable attorney fees under AS 23.30.145(b) for all medical benefits awarded in that decision at the statutory minimum rate established in AS 23.30.145(a).
DATED at Fairbanks, Alaska, this 11th day of May, 1990.
ALASKA WORKERS' COMPENSATION BOARD
/s/ William S.L. Walters
William S.L. Walters, Designated Chairman
/s/ Steve M. Thompson
Steve M. Thompson , Member
WSLW/ml
If compensation is payable under terms of this decision, it is due on the date of issue and penalty of 20 percent will accrue if not paid within 14 days of the due date unless interlocutory order staying payment is obtained in Superior Court.
APPEAL PROCEDURES
A compensation order may be appealed through proceedings in the Superior Court 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 compensation order becomes effective when filed in the office of the Board, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.
CERTIFICATION
I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of Thomas Holcomb, employee/applicant; v. Alaska West Express, employer; and AIAC, insurer/defendants; Case No. 903157; dated and filed in the office of the Alaska Workers' Compensation Board at Fairbanks, Alaska this 11th day of May, 1990.
Mari Lynch, Clerk
SNO