HENRY BLATCHFORD,		)
				)
Employee,			)	DECISION AND ORDER
Applicant,			)	AWCB Case No. 8828004
				)	AWCB Decision No. 90-0126
TAYWOOD-BERG-RIEDEL,		)
				)	Filed with AWCB Fairbanks 
Employer,			)	June 13, 1990
				)
and				)
				)
FIREMAN'S FUND INSURANCE CO.,	)
				)
Insurer,			)
Defendants.			)
				)

We are deciding this Petition for Modification of our May 3, 1990 decision and order concerning this case on the basis of the documentary record. Attorney Michael Jensen represented the applicant employee, and attorneys Trena Heikes and Lee Glass represented the defendant employer and insurer. We closed the record when we next met following the pleading period provided at 8 AAC 45.050, June 13, 1990.

1. Shall we modify our decision and order of May 3, 1990 to award additional actual attorney fees under AS 23.30.145?

2. Shall we modify our decision and order to award continuing attorney fees under AS 23.30.145(a)?

3. Shall we modify our decision and order to award additional legal costs under AS 23.30.145(b)?

4. Is the employee barred from receiving temporary total disability (TTD) benefits under AS 23.30.187 for the period during which he received unemployment insurance benefits?

The employee injured his back while working as a loader operator for the employer on or about June 1, 1988. We held a hearing on the merits of the employee's claim on April 18, 1990, scheduled for 9:01 a.m. We issued a decision and order on the case on May 3, 1990, awarding continuing TTD benefits, interest, medical benefits, attorney fees, and costs.

On April 13, 1990 the employee had filed an affidavit of itemized attorney fees and costs, in which he requested both actual attorney fees and statutory minimum attorney fees on continuing compensation and medical benefits. The affidavit claimed 77.1 hours of attorney time at $125.00 per

hour, 9.1 hours of paralegal time at $75.00 per hour, and legal costs of $1,155.50. At the hearing he submitted a second affidavit itemizing 7.1 hours of attorney time, 4.4 hours of paralegal time, and $305.50 in costs. At the hearing he argued for actual attorney fees and costs, and he requested to supplement his affidavits with the hours he spend presenting the case. We calculated his time in hearing to be 5.5 hours. We left the record open following the hearing to receive a deposition of a treating physician, Kenneth Leung, M.D., and to allow the employer to respond to the request for attorney fees. The employer filed an Opposition to Request for Attorney Fees on April 24, 1990, arguing that the employee was entitled to no more than statutory minimum attorney fees under AS 23.30.145(a), and specifically criticizing certain of billed attorney activities as redundant, not reasonable, or not necessary.

In our decision on May 3, 1990, we awarded reasonable attorney fees, crediting him 5.5 hours for participation in the hearing, deleting 11.8 hours from the hours claimed in his affidavits, and awarding a total of 75.7 hours. We also awarded 11.3 hours of paralegal time claimed in the affidavits, and awarded a total of $2,002.60 in legal costs under AS 23.30.145(b). We found the claimed attorney and paralegal hourly fees to be reasonable.

The employee filed a Petition for Modification on May 9, 1990, asking us to modify order #4 of our May 3, 1990 decision, which awarded attorney fees and costs. He indicated that we overlooked the attorney's hours claimed in the second affidavit and requested that we award those hours and six hours for the hearing. He requested statutory minimum attorney fees under AS 23.30.145(a) on continuing benefits compensation benefits once fees calculated under AS 23.30.145(a) exceed the reasonable fees awarded in our first decision. He also requested $98.40 in transcript costs under AS 23.30.145(b) for the deposition of Dr. Leung.

We re-examined the employee's April 18, 1990 attorney fee affidavit. Although we had considered it in the April 18, 1990 hearing, we now discover that we overlooked two entries on the second page of that affidavit when evaluating it for our first decision: 2.2 hours of paralegal time for exhibit preparation and client conference on April 17, 1990, and 2.2 hours of attorney time for hearing preparation on April 18, 1990.

While reviewing the record we also noted a sub-issue we failed to address in our first decision. In the hearing the employer argued that TTD benefits should be denied for any week that the employee received unemployment insurance benefits. The Alaska Department of Labor records in the file show the employee to have received unemployment benefits for the period from August 20, 1988 through June 10, 1989. The first unemployment check was issued to him on September 9, 1988, and the last on June 19, 1989. On our own initiative we will address this issue under AS 23.30.130.

I. Modification

AS 23.30.130(a) provides:

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:

Id. at 169.

In reviewing the employee's second fee affidavit we discovered an error of fact in our original deliberations. We failed to consider two entries. Accordingly, we will consider a modification, and we will re-examine the issue of attorney fees and legal costs. On our own initiative we will examine the employee's entitlement to TTD benefits during the weeks he received unemployment benefits.

II. Actual Attorney Fees

We note that the employee's second affidavit of attorney fees was submitted on the day of the hearing, April 18, 1990, and was presumably prepared before that day. The affidavit showed the attorney spending 2.2 hours preparing his case during the hearing day. Inasmuch as the employee and his attorney were at our hearing room and ready to proceed at 9:01 that morning, we are hard-pressed to imagine when the attorney would have found the opportunity to devote a solid 2.2 hours to prepare his case in addition to the normal day's preparations, breakfast, transportation, attention to the general administration of his practice, and so on. Absent specific information concerning the character and extent of additional case preparation during the early morning hours before the hearing's docketed time, we cannot find that reasonable and necessary attorney time can be awarded for that day in excess of the 5.5 hours we have already recognized. We decline to modify our May 3, 1990 finding concerning reasonable actual attorney hours.

III. Statutory Minimum Attorney Fees

Although there has been some confusion over what subsection of the Workers Compensation Act should be applied to the employee's request for attorney fees, it is now clear that the employee requests fees under AS 23.30.145(a) in excess of the statutory minimum. AS 23.30.145(a) provides:

Our regulations expand on this provision. 8 AAC 45.180(b) provides, in part:

We find our examination of the employee's itemized attorney fees in our May 3, 1990 decision still accurate, and we affirm our finding that $9,462.50 is a reasonable fee for the itemized work we found necessary. We find that the employee's affidavit and supplementary testimony are in compliance with the requirements of 8 AAC 45.180(b) and we will award the employee $9,462.50 in attorney fees under AS 23.30.145(a) if that amount exceeds the total statutory minimum fees which would otherwise be due. If the total attorney fees under the statutory minimum formula should exceed $9,462.50, the employee shall be paid statutory minimum attorney fees under AS 23.30.145(a).

III. Costs

We specifically held the hearing record open to receive a transcript of Dr. Leung's deposition. We find the $98.40 in transcript costs were reasonable and necessary, and we will award them to the employee.

We also discovered an additional 2.2 hours of paralegal time on the affidavit of April 18, 1990 for exhibit preparation and a conference with the employee. We find this work was reasonable and necessary, and we reaffirm that the $75.00 per hour fee is reasonable. We will award an additional $165.00 in paralegal costs. We will add the additional $263.40 transcript and paralegal costs to our award of $2,002.60 in legal costs under AS 23.30.145(b), for a total of $2,266.00.

IV. Receipt of Unemployment Insurance Benefits

In our first decision we found the employee entitled to TTD benefits under AS 23.30.185 for a period in July 1988, and from August 18, 1988 continuing. AS 23.30.187 bars entitlement to TTD benefits for any week in which the employee received unemployment insurance benefits. Based on the documentary evidence in the record we find that the employee was entitled to unemployment benefits for the period from August 20, 1988 through June 10, 1989, and received unemployment benefits during the weeks from September 9, 1988 through June 19, 1989. We conclude that the employee is barred from entitlement to TTD benefits from September 9, 1988 through June 19, 1989.

1. The award of attorney fees and legal costs in order #4 of our Decision on AWCB Case No. 8828004, issued an May 3, 1990, is modified under AS 23.30.130 as follows:

The employer shall pay the employee attorney fees under AS 23.30.145(a) in the amount of $9,462.50 or at the statutory minimum rate, whichever is higher. The employer shall pay the employee a total of $2,266.00 in legal costs under AS 23.30.145(b).

2. The employee is barred from entitlement to temporary total disability benefits under AS 23.30.187 from September 9, 1988 through June 19, 1989.

DATED at Fairbanks, Alaska, this 13th day of June, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William S.L. Walters
William S.L. Walters, Designated Chairman

/s/ Harriet Lawlor
Harriet Lawlor, 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 an 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 Henry Blatchford, employee/applicant; v. Taywood-Berg-Riedel, employer; and Fireman's Fund Insurance Co., insurer/defendants; Case No. 8828004; dated and filed in the office of the Alaska Workers' Compensation Board at Fairbanks, Alaska this 13th day of June, 1990.

Clerk

SNO