WENDI L. SCOVELL, 
Employee, 
Applicant,
v. 
LAIDLAW TRANSIT, INC.,
Employer,
and 
INSURANCE CO OF STATE OF PA,
Insurer,
Defendants.

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FINAL
DECISION AND ORDER
AWCB Case No. 199724598
AWCB Decision No. 99- 0238 
Filed in Anchorage, Alaska
November 22 , 1999

We heard this claim for attorney fees and legal costs by the employee’s former attorney in Anchorage, Alaska, on November 16, 1999. Attorney William Soule represented himself, as the employee’s former attorney. Attorney Robert Stone represented the employer and insurer ("employer"). Neither the employee nor the employee’s present attorney participated. We closed the record at the conclusion of the hearing.

Is the employee former attorney entitled to attorney fees and legal costs under AS 23.30.145?

The employee injured her spine, head, arms, and legs in a minor traffic accident, while driving a bus for the employer on October 26, 1997. The employer initially accepted the compensability of the employee’s injury, and paid temporary total disability (TTD) benefits through January 10, 1998. The employee claimed to suffer from persistent neck and extremity symptoms and post-concussion syndrome. She saw a number of physicians for chiropractic and other conservative treatment.

At the employer’s request, neurologist Mark Gabr, M.D., evaluated the employee on January 10, 1998. Dr. Gabr found her medically stable, gave her no permanent impairment rating, and indicted further medical treatment would not be warranted. The employer controverted all benefits on January 27, 1998.

The employee filed a Workers’ Compensation Claim on July 22, 1998, claiming TTD benefits, permanent partial impairment (PPI) benefits, medical benefits, interest, attorney fees and legal costs. The employer controverted the employee’s claim on November 10, 1998.

At the November 16, 1999 hearing, Mr. Soule indicated the employee had been seeing a neuropsychologist, Paul Turner, Ph.D., but because Dr. Turner was not a physician, his opinion could not trigger a second independent medical examination (SIME) by the Alaska Workers’ Compensation Board. Mr. Soule arranged consultation for the employee with a number of physicians, including Ann Adams, D.C., Glenn Ferris, M.D., and Marcus Deede, M.D. Based on Dr. Adams’ opinion, Mr. Soule requested an SIME.

At the Board’s direction, the employee was examined by Douglas Smith, M.D., and psychologist Paul Craig, Ph.D. In his July 14, 1999 SIME report, Dr. Smith rated the employee with a 5 percent whole-person rating under the American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition, and found that she is unable to return to her work at the time of her injury. The employer began paying PPI benefits from July 28, 1999, continuing, and requested an evaluation of the employee’s eligibility for reemployment benefits.

On, or about, August 3, 1999, the employee dismissed Mr. Soule as her attorney. Mr. Soule filed a Notice of Withdrawal from representing the employee, as well as a Workers’ Compensation Claim for attorney fees and legal costs on August 3, 1999. He filed an affidavit of attorney fees and legal costs, dated August 3, 1999, itemizing 37.7 hours, at a fee of $175.00 per hour. In the affidavit, Mr. Soule claimed attorney fees of $6,247.50, and legal costs of $328.32 expended by him on this case. On August 3, 1999, the employer voluntarily paid Mr. Soule statutory minimum attorney fees of $825.00. On August 4, 1999, Mr. Soule filed a Notice of Attorney’s Lien For Fees & Costs.

The employer filed an Answer on August 17, 1999, denying Mr. Soule was entitled to any fees, because it had voluntarily paid all benefits to the employee. Mr. Soule filed an Affidavit of Readiness for Hearing, dated September 24, 1999. The employer did not file a timely opposition to the affidavit, and the case was set for hearing on November 16, 1999, in accord with AS 23.30.110(c).

Attorney Joseph Kalamarides filed an Entry of Appearance on behalf of the employee on September 27, 1999. Neither Mr. Kalamarides nor the employee responded to Mr. Soule’s claim, or participated in the hearing.

At the hearing on November 16, 1999, Mr. Soule indicated the employee’s claim had been very complex and difficult to pursue. He noted the employee suffered diverse and subtle physical symptoms, emotional problems, and loss of memory. Her case had been repeatedly controverted, he argued, and his efforts to get additional evaluation and an SIME had resulted in the employee receiving PPI benefits and evaluation for reemployment benefits. He spoke at some length concerning the nature of his work on her behalf. He requested only his fees and costs as itemized, and indicated his intent to withdraw his lien upon payment of those fees and costs.

The employer argued that AS 23.30.145(a) requires an award of benefits before attorney fees are due. It asserted it paid all benefits promptly and voluntarily whenever it had evidence benefits were due. It argued that, since no benefits have been awarded, no attorney fees or costs are due. It also argued the SIME was overwhelmingly in the employer’s favor, and that the employee’s claim has little merit. It challenged the nature, length and complexity of the services provided by Mr. Soule, expressing concern that his fees are nearly as high as the PPI benefits paid to the employee.

Mr. Soule asserted there is considerable merit to the employee’s claim. He argued the Alaska Supreme Court in Childs v. Copper Valley Electrical Association, 860 P.2d 1184, 1890 (Alaska 1993) ruled that an employer’s resistance to the payment of workers’ compensation benefits is the equivalent of a formal controversion, and attorney fees can be awarded. He also cited two Board decision and orders: Soule v. Reichert Shake and Fence , AWCB Decision No. 96-0063 (February 15, 1996) and Plummer v. Wards Cove Packing Co., AWCB Decision No. 99-0130 (June 11, 1999), in which the Board awarded attorney fees in situations similar to this case.

AS 23.30.145(b) provides:

8 AAC 45.180 provides, in part:

We find the payment of the benefits claimed by the employee, was resisted by the action of the employer. Wien Air Alaska v. Arant, 592 P.2d 352 (Alaska 1979). The employee seeks an award of attorney's fee under subsection 145(b) for the benefits obtained. Based on the record, we find the employer provided PPI benefits and reemployment evaluation benefits as a result of the efforts of Mr. Soule. Consequently, we can award fees and costs under subsection 145(b). Alaska Interstate v. Houston, 586 P.2d 618, 620 (Alaska 1978); Childs 860 P2d at 1190.

Subsection 145(b) requires the award of attorney's fee and costs be reasonable. Our regulation 8 AAC 45.180(d) requires a fee awarded under subsection 145(b) be reasonably commensurate with the work performed. The Alaska Supreme Court in Wise Mechanical Contractors v. Bignell, 718 P.2d 971, 974-975 (Alaska 1986), held that our attorney fee awards should be reasonable and fully compensatory, considering the contingency nature of representing injured workers, to insure adequate representation.

In light of these legal principals, we have examined the record of this case, and the written and oral itemization of fees and costs in the employee's affidavit. In Delacruz v. Alaska Business Cleaning Services, AWCB Decision No. 99-0227 (November 9, 1999), and Gertlar v. H & H Contractors, Inc., AWCB Decision No. 97-0105 (May 12, 1997), we found hourly fees similar to these claimed by this attorney to be a reasonable fee for a well-experienced workers' compensation attorney, considering his competence and expertise. Now, having considered the nature, length, and complexity of the services performed; the tenacious resistance of the employer, as well as the amount of benefits resulting from the services obtained, we find the time spent, the fees claimed, and the costs recorded were reasonable for the successful prosecution of this claim. Thompson v. Alyeska Pipeline Service Co., AWCB Decision No. 98-0315 (December 14, 1998). We will award Mr. Soule $6,247.50 in reasonable attorney fees, and $328.32 in legal costs, under AS 23.30.145(b).

The employer shall pay the employee’s former attorney, William Soule, $6,247.50 in reasonable attorney fees, and $328.32 in legal costs, under AS 23.30.145(b).

Dated at Anchorage, Alaska this 22nd day of November, 1999.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William Walters
William Walters, Designated Chairman

/s/ John A. Abshire
John A. Abshire, Member

/s/ S.T. Hagedorn
S. T. Hagedorn, Member

If compensation is payable under terms of this decision, it is due on the date of issue. A penalty of 25 percent will accrue if not paid within 14 days of the due date, unless an interlocutory order staying payment is obtained in Superior Court.

If compensation is awarded, but not paid within 30 days of this decision, the person to whom the compensation is payable may, within one year after the default of payment, request from the board a supplementary order declaring the amount of the default.

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 Final Decision and Order in the matter of WENDI L. SCOVELL employee / applicant; v. LAIDLAW TRANSIT, INC., employer; INSURANCE CO OF THE STATE OF PA, insurer/ defendants; Case No. 199724598; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 22nd day of November, 1999.

Debra C. Randall, Clerk

SNO