*1 § 424a. Because there is no U.S.C. indica- legislature
tion intended that the 23.30.225(b) similarity, interpret- § regard to 42 ed without U.S.C. 424a. Ac- “average weekly wages” cordingly, as a bene- 23.30.225(b) cap synonymous fit weekly earnings” “gross under AS represent as both insofar terms earning capacity. measure of historical persuaded are not that this decision will be inequitable employees who receive both
state and federal superi-
We REVERSE the decision or court which affirmed the decisiоn of the Board, Alaska Workers’ REMAND this case for determination of the
compensation offset in accordance with this
decision. CONSTRUCTION, INC.,
UNDERWATER Indemnity Company and Industrial Alaska, Appellants/Cross-Appellees,
v. SHIRLEY, Appellee/Cross- William M.
Appellant. S-5247, Nos. S-5248. Supreme Court of Alaska.
Nov. *2 Figura, Anchor- Figura, Rose &
Mark L. age, appellants/cross-appellees. Office, Croft, Chancy Chancy Croft Law Anchorage, appellee/cross-appellant. RABINOWITZ, MOORE, C.J., and Before COMPTON, JJ. MATTHEWS
OPINION
COMPTON, Justice. Construction, appeals Inc.
Underwater to section Alaska Wоrkers’ 23.30.005-270, (Act), claiming that Act “con- improper since it never award was compensation. We payment of troverted” slight modification. award with affirm the n Shirley cross-appeals the deni- William W. that he request for a determination al of his awarding perma- him to an order is entitled disability payments pursuant partial nent 110(c) the Act. We reverse denial. AND PROCEDURAL
I. FACTUAL
BACKGROUND severely Shirley was W. William Construction, working for Underwater while Construction) (Underwater Inc. 23,1989, Con- Underwater 1989. On carrier, In- insurance struction’s (collectively, In- Company of Alaska demnity began paying Indemnity), (TTD) payments of temporary per Although Shirley Shirley’s request week. received also denied for “an award $449.37 treatment, specialists order,” extensive medical con- of PTD benefits until further board competitively cluded that would not be he noting that Industrial would be employed the future. changing warranted status improve were to the future. condition 21, 1990, Hadley, On Dr. Shawn *3 perma- performed a specialist, rehabilitative Indemnity appealed Industrial the attor- (PPI) rating partial impairment nent and court, ney’s ruling superior fee Shirley impairment had an concluded that 601; RApp.P. arguing that it rating of 54% of whole man. Industrial had not “controverted” the of dis- “may Indemnity rating that indicated be ability superior benefits. The court affirmed premature,” sought impairment clarify and Indemnity ap- the Board’s order. Industrial status consultation another through peals ruling. Shirley cross-appeals, Mateer, injury expert, head Katherine Ph.D. claiming in denying the Board erred Indemnity pay Industrial continued to “for an permanent claim total dis- ley week in TTD per benefits. $449.37 ability 202(a); R.App.P. benefits.” Alaska 22.05.010(c). Shirley attorney filed an contacted and permanent disability total for (PTD) Indemnity Industrial filed II. DISCUSSION provided by an answer on a form the Alaska A. AWARD OF ATTORNEY’S FEES (Board) in Compensation Workers’ UNDER AS disputed Shirley’s which it PTD claim: “Car- awaiting rier is clarification from record re- question The central before this P view to determine & T status. such Until court is whether the Board had the TTD on-going.” time Industriаl Indemni- of the Act to award ty right also “reserve[d] to raise further statutory attorney’s fees. Because this de discovery.” response defenses after In requires statutory termination interpretation Shirley’s attorney’s fees, claim Industrial involving expertise, no administrative Indemnity “No stated: benefits have been substitution-of-judgment appro standard is owing controverted. All benefits due and priate. Tesоro Alaska Petroleum Co. v. Ke under the Alaska Workers’ Co., 896, Pipe nai Line 903 accepted paid.” sup- Act have and been 1987). giveWe no deference to the interme this, port Indemnity of Industrial noted that appellate superior diate decisions same, since the TTD and rates court. Id. its no decision had effect on the amount of 23.30.145(a) provides Alaska Statute Shirley’s compеnsation benefits. part: January Indemnity 1991 Industrial re- When the board that a claim advises report ceived a from Dr. Mateer stated which controverted, been or in whole Shirley permanently totally that “Mr. and may legal board direct that the fees for 4, disabled as a result paid by be services or carrier basis, injury.” Indemnity On this Industrial awarded; addition to Shirley’s PTD, converted status from TTD to only be on allowеd the amount January effective compensation controverted and award- In March hearing 1991 the Board held a ed.... Shirley’s The claim. Board found that Shir- ley permanently totally had been parties dispute disabled the effect of Industrial 21,1990. finding, Indemnity’s Based delay changing Shirley’s on this sta- Indemnity the Board held that Industrial had TTD Indemnity tus from to PTD. Industrial Employee’s in fact argues “controverted entitlement that it nеver controverted amount to PTD Accordingly, benefits.” Shirley the Board owed to and there- statuto- fore the Board did have ry disability minimum fees on grant *4 PTD Industrial Indemni- tlement to gainful pursue not be able to that he would ty option to claim that its liabili- retained the conclusions, employment. these Shir- Given point Shirley at which ty as of the ended changed at ley to have his status was entitled stability. pay- Amounts аchieved medical Accordingly, that time from TTD to PTD.1 voluntarily paid not able —and —after Indemnity’s refusal Industrial point thus controverted. were of Shirley’s status constituted a controversion part” “in under Shirley’s claim whole or policies underlying the attor The ney’s support our conclu fees statute further Nonetheless, limits 23.30.145(a) provides sion. Alaska Statute attorney’s to award fees to Board’s attorney’s in order to ensure that fees of controverted “the amount injured are able to obtain effective workers 23.130.145(a); Bignell and awarded.” AS see Arant, representation. Air Alaska v. Wien Contractors, P.2d v. Mechanical 651 Wise (Alaska 352, 1979), P.2d 365-66 overruled 592 1982) (“The (Alaska 1163, statute unam- 1169 N. Sch. grounds, on other Fairbanks Star attorney’s biguously restricts the Crider, Dist. v. controverted.”); fees to amounts which are emplоyer payment of bene an resists Where Roan, 986, 990 Warrack Co. v. 418 P.2d J.B. fits, an attor worker must retain (Alaska 1966) although (holding that where ney protect “The his interests. employ- of carrier did not controvert amount relating attorneys’ fees claim, attorney’s be award- ee’s fees could unsuccessfully portion of to the controverted ed). Indemnity argues that be- Industrial employee’s claim bеcause he created TTD was cause the amount under Haile v. Pan legal assistance.” need exactly the same as would have been Inc., Airways, 505 P.2d American World PTD, was con- no “amount 1973) J., (Alaska (Rabinowitz, 838, dis 842 troverted. concurring part). In this senting ease, regard Indemnity’s dispute Industrial disagree. con-
We
Shirley’s
re
ing the classification
troverted the
status of
representation. As the
quired him to obtаin
disability,
affecting the total amount he
thus
noted,
Indemnity “should
during
su- Board
collect
his lifetime. As the
could
noted,
changed [Shirley’s] status to PTD and
have
perior court
distinction between
“[t]he
[Shir
confirmation of
very important
pursued
medical
TTD and PTD can be
ley’s]
with
condition.”
employee since TTD
end
August
Shirley
as of
Hadley
explicitly
was entitled to PTD status
1.
did not conclude
Dr.
23.30.180;
21,
Shirley
(permanent
was entitled to PTD
total
v.
see J.B. Warrack Co.
21,
disability)
Following
1966) (For
Roan,
986,
status.
987-88
(permanent
Hadley gave Shirley
Dr.
a PPI
disability
purposes
visit.
workers’
rating
partial impairment)
the whole
54%
perform
inability
services other
"to
means
Nevertheless,
Hadley’s
Dr.
conclusion that
man.
quality,
de-
than those which are so limited
stable,
Shirley's
condition was
combined
reasonably
pendability
quantity
stable
that a
previous
her
statements that
would never
exit.").
market for them does not
again, support the Board's conclusion that
work
foregoing,
require
Based on the
we con
to obtain a Board
awarding
prior
clude that the Board was
correct
order
to termination of
bene-
However,
attorney’s
fees to
we dis
fits.
It
properly
concludes that
the Board
agree
specific
with the Board’s
Shirley’s request
formulation of
denied
for an order direct-
the fee award.
ing payment
awarded “statuto
of PTD benefits until further
ry
compensa
minimum
fees on all
Board order.
21,
tion benefits
disagree
Indemnity’s
with Industrial
However,
Hadley’s
report.”
date of Dr.
final
argument that this issue is moot. The Board
improperly
this award
includes Industrial In
requested by
did not take “the action
Mr.
demnity’s payments
prior
made
Shirley,”
expressly
Bignell,
Bоard’s decision.
we affirmed
most,
very
benefits. At the
the Board con-
the Board’s decision that
cluded that
had been
entitled to
employer’s voluntary
could not attach to the
21, 1990,
benefits after
and that In-
$6000,
payment of
since that amount was not
Indemnity’s
refusal to
controverted.
that it authority grant did not have the to Shirley’s request. law, question This is a B. DENIAL OF RE- SHIRLEYS requiring statutory interprеtation QUEST and involv FOR AN AWARD OF PTD ing expertise. According administrative BENEFITS UNTIL FURTHER ly, we review the decision under the substitu BOARD NOTICE Tesoro, tion-of-judgment standard. Shirley argues cross-appeal that at 903. by explicitly the Board erred granting clearly him an award of PTD did not believe that an Shirley ap express parently desires an benefits would have made order from the Board that difference to pay The Board stated: must bеnefits until further order of the Board. (and it always We believe is clear Shirley claims that the ripe issue was for been) employer that the and insurer have 23.30.110(c) determination, and AS authority change injured to an work- the Board to make a determination and pay er’s status when the evidence a compensation. award of PTD given change.... claim warrants a nothing prevent [TJhere is in the to [Act] response, argues preclude change]. or [such a this issue is moot because the Board expressly found that to likely entitled This statement is most based on AS PTD benefits after 1991. In provides which compensation alternative, argues the statute does disability “during supported by 2. This conclusion is also Despite payment, our deci entitled. Id. at 1106. this however, sion in Alaska International Constructоrs v. Kin the earner's answer to Kinter’s claim ter, Kinter, denying for PTD benefits indicated that it was all liability. insurance carrier also claimed that essentially no amount of Since the carrier had made paid was controverted payments protest,” since it had the TTD "under we conclud weekly TTD benefits which were the same ed that it had controverted all amounts 1106-07, amounts as the PTD benefits to which Kinter was the answer was filed. Id. at 1107 n. 11. modify disability.” employer seeking Because to or of the total terminate continuance continuing payments to made under a Board order must would not be entitled approval improve condition were to first seek the of the Board. The initiative, provides: “Upon unexpectedly, the Board concluded that the statute its own unilaterally upon аny party employer or insurer could cease interest conditions, change improvement. ground on the of a ... payments upon the the board ... review a statutory Our review of procedure prescribed in case under the re- that,this conclusion was framework indicates spect of claims in AS 23.30.110.” AS concluding incorrect. The Board erred applicable regulation fur- emрloyer that an or insurer has the unilater requirements ther clarifies the which must modify al to or terminate an em met an can before be modified on change injured ployee’s or to change peti- the basis of a in conditions: “A Further, status. the Board erred in worker’s rehearing tion for a or modification based refusing express to make an award of PTD upon change spe- of conditions must set out Shirley. Contrary to benefits to the Board’s cifically history and in detail the of the claim view, important such an award was injury from the date of the to the date of because it would have made it more difficult filing petition and the nature of the his status 45.150(c). change of conditions.” 8 AAC at a later time. statutory regulatory provi- The above 23.30.150-.170, enti Statutes sions that an indicate or insurer “Paymеnt Compensation,” outline the tled does not “have by compensation payments are manner which pay worker’s status when the evi- payable “with to be made. given change.” in a claim dence warrants award, except liability out an where being made to a employ controverted order, must insurer *6 23.30.155(a). payment If of com er.” AS petition rehearing the Board for or modifica- controverted, employee pensation is the is change tion of its order on the basis of “a hearing3 compensation entitled to a and a 23.30.130(a). conditions.” AS This conclu- “rejecting making order the claim or the why Shirley requested explains sion an ex- 23.30.110(e). If an award.”4 AS award is benefits, why press award of and Indus- made, “payable compensation is Indemnity opposed trial suсh award. 23.30.155(f). the terms of an award.” AS an award would make it more difficult Such Indemnity modify to or termi- modify If an wishes to or nate the of benefits at a later date. payments, required “notify it is terminate to employee the Board and of the nature the III. CONCLUSION twenty- and substance” of the within eight days.5 8 Alaska Administrative We AFFIRM the Board’s conclusion that Code (AAC) (1991). Indemnity importantly, an “controverted” Shir- 45.136 More awarded,” 23.30.100-.145, "Compensation compensation "only entitled but on the AS procedures Proceedings,” compensation outline to be followed ... awarded.” AS amount dispute regarding when a arises work- hearing requested compensation. a er's If is 23.30.110(c), holding the of a to AS provides 5.The statute also the Board with hearing mandatory, discretionary. is Sum- if an decides to intervene Constr., mers v. Korobkin modify оr terminate benefits: 1991). may upon at its own initiative 4. The Board to “file its decision” is being a case in which time in agency days within 30 after the record closes. award, right without an where made with or 23.30.110(c). AS The decision is referred to in controverted, compensation pay- or where order,” "compensation as a reviewa- statute [modified have been ments of judicial proceеding, a and ble in AS hearings, ... hold the and take the terminated] modifiable the Board on its own initiative or properly further action which considers will it party. a of a AS 23.30.130. protect rights parties. of all claim is controverted in whole or in 23.30.155(h). attorney’s allow fees "in addition to ley’s purposes PTD claim for there wasn’t an “amount of at 23.30.145(a), however, employ- we MODIFY the stake. This rationale ovеrlooks an attorney’s Board’s award of RE-We er’s interest in accurate information as well regarding VERSE the Board’s decision possibility employer’s as the of an reasonable ley’s entitlement and we Second, recovery. belief in the claimant’s REMAND with directions to enter an order the court notes that even Industrial Indem- opinion. consistent with this nity owed, dispute did not the total it amount disputed the PTD amount it This owed.
RABINOWITZ, Justice, dissenting part. reasoning impliedly Bignell overrules v. Wise Contractors, holding I dissent from the court’s that the Mechanical Board, case, in the factual context of Bignell, this In Wise classified its 23.30.145(a), authority under AS to award compensation payments just incorrectly, as attorney’s fees to did this case. Wise PPD, termed its and we held that 145(a) my view Section does not furnish Wise should havе continued to TTD. attorney’s for the Board to award Nonetheless, $6,000 pay- in mislabeled fees since Industrial did con- was subtracted from ments the “amount con- compensation.' trovert amounts of Un- view, figure. my troverted” Bignell 145(a) attorney’s “may der Section indistinguish- ease and the instant case are only allowed on the amount of Lastly, able. the court notes that the State’s simply controvеrted.” There no record dispute controversion meant a over “the total evidence that Industrial was not [Shirley] during amount ... could collect prepared pay any lifetime above, my lifetime.” As noted view this is benefits to which was entitled under reading not an accurate of the record. place tempo- the Act. took What here was a rary disagreement concerning point at inapplicability 145(a), Given the of Section justified classify- which the medical evidence require I parties supplemen- would to file ing as rather 145(b) tal briefs as to whether Section autho- temporary. than rizes the Board to award fees to approach
Under the court’s whether, a difference Shirley, inapplicability due to the regarding over a few 145(c) months (b),2 of Sections Section Shirley’s status from TTD to PTD translates authorizes this uncompen- court to consider into an award of fees based on a sated fees incurred before the *7 compensation payments. lifetime This Board, as well as proceed- fees for basically strikes me as unfair.1 ings court, making before this an award grounds sup-
The court advances three port holding of its that the Bоard can resort 145(a) in awarding attorney’s Section First, the court observes that would not have both-
ered to controvert claim PTD if claim, 1. The court "[i]f observes that the fees awarded the board shall make an reim- 145(a) disproportionately under Section high, proceed- burse the claimant for the costs in the that fact should be taken into account ings, including attorney a reasonable fee. The superior Assuming court.” allows for award is in addition to the "dispropor- deviation from its fee schedule the medical and related benefits ordered. tionately high” illusory. standard strikes me as 23.30.145(c) provides: proceedings are had for review of a com- 23.30.145(b) provides: 2. Alaska Statute pensation or medical and related benefits or- timely If an fails file notice оf court, may der before a the court allow or controversy pay compensation or fails to increase an fees. The fees are in days medical and related benefits within 15 addition to or medical and relat- after it becomes due or otherwise resists the ed benefits ordered and shall be as the or medical and re- court direct. employed lated benefits аnd if the claimant has attorney prosecution in the successful all notes It that it has paid Shirley weekly made after 21. TTD $449.37 benefits stability do not.” medical while benefits amount for which injury same since his —the per week PTD. Re- granted PTD status. claimed eligible $449.37 he would being paid, TTD Indus- gardless of Shirley responds that Industrial Indemnity’s dollars trial action zero unqualified- claim “never controverted his Furthermore, Indemnity’s PTD. Shirley’s ly accept[ing] claim have suggestion that a status would In- Because compensation.” on the amount that receives effect the controver- satisfied disingenuous. If indeed there is somewhat requirement, the award sion no “amount of at had been appropriate. fees was stake, would not have been reason there Shirley’s physician, Dr. Had- agree. Indemnity to controvert Shir- July August 1990 ley, in her indicated ley’s By controverting enti- claim. medically stable and reports that