12-0010. JUDITH LEWIS-WALUNGA Employee and WILLIAM ROSS D.C. Physician s v. MUNICIPALITY OF ANCHORAGE (Self-Insured) Employer Defendant.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0010. JUDITH LEWIS-WALUNGA Employee and WILLIAM ROSS D.C. Physician s v. MUNICIPALITY OF ANCHORAGE (Self-Insured) Employer Defendant Alaska Workers' Compensation Appeals Commission JUDITH LEWIS-WALUNGA, Employee, and, WILLIAM ROSS, D.C., Physician, Applicants, v. MUNICIPALITY OF ANCHORAGE, (Self-Insured) Employer, Defendant. AWCB Decision No. 12-0010 Filed with AWCB Anchorage, Alaska on January 13, 2012. AWCB Case No. 200403809 FINAL DECISION AND ORDER ON REMANDThe issue of the employee's counsels' attorneys' fees is before the Alaska Workers' Compensation Board (Board) on remand from the Alaska Workers' Compensation Appeals Commission (Commission).(fn1) The Commission vacated and remanded a prior Board decision(fn2) awarding William J. Soule, employee's counsel, two-thirds of his actual attorney fees because the prior Board panel failed to make sufficient findings of fact to permit review of the Board's award of fees to Mr. Soule. Attorney Michael Flanigan represented Mr. Soule on his claim for attorney fees. Attorney Erin Egan represented the self-insured employer (employer).(fn3) Careful review of the record and the parties' post-remand briefing revealed that the employee received benefits in excess of $86,000 as a result of Mr. Soule's efforts, not $20,000 as the prior board believed. After taking into account the nature, length, complexity and benefits received in this case, we find Mr. Soule should receive the full amount of fees requested in his fee affidavit, $38,920.00. As the prevailing party, Mr. Soule is also entitled to attorney fees and costs associated with this proceeding. ISSUE Shall the Board award attorney's fees and costs under AS 23.30.145? If so, in what amount? BACKGROUND The relevant facts and procedural history have been identified by the Alaska Supreme Court, the Commission and the Board in previous decisions regarding the employee's and her counsel's claims.(fn4) They are incorporated by reference here, and will not be repeated except where necessary to resolve the issues on remand. The employee, when she was 59 years old, was injured when she slipped and fell to the ground while walking across the employer's parking lot on March 31, 2004. Shortly thereafter, the employer controverted her claim and Mr. Soule entered his appearance as employee's counsel. Effective December 13, 2006, the parties entered into a stipulation, approved by the Board, acknowledging that some of the injuries were work related and that Mr. Soule should receive $25,000 for services rendered through December 13, 2006. There were many claims that remained unresolved. The dollar amount of the benefits received by the employee after December 13, 2006 totaled $86,702.08. Some claims were resolved prior to the hearing, some on the eve of hearing and some by Board order:

A number of subsidiary disputes were resolved, or claims and controversions withdrawn, as the parties proceeded to hearing, including Lewis-Walunga's objection to attending a neuropsychological examination, her request for a neurological second independent medical examination (SIME), TTD for certain periods, certain medical benefits, and her claim for cognitive deficits related to a brain injury. By the hearing on April 1, 2008, the only claims Lewis-Walunga asserted were for 5 weeks of TTD, additional PPI up to 33 percent, medical benefits, penalties on PPI previously paid, interest, and attorney fees and costs. Her chiropractor, Dr. Ross, also filed a claim for payment of services, which Lewis-Walunga supported. The board heard the case and decided Lewis-Walunga was entitled to 21 percent PPI, 5 weeks of TTD, interest, and some medical benefits. It denied Dr. Ross's claim and Lewis-Walunga's claim for penalties. It found, however, it did not have the evidence to decide the claim for attorney fees. It gave the parties time to attempt settlement of that issue, and retained jurisdiction.

The attempt to resolve Soule's fee request failed. . . The board awarded an attorney fee and full costs, but reduced the fee by 30 percent.(fn5)

The prior board panel, in its 2008 order reasoned:

Based on our review of the record, we find the benefit the employee requested and the Board denied was the request for a penalty on the balance of a PPI rating the employer paid in bi-weekly checks rather than in a lump sum.

The defendant argues that any charges related to the 'neuropsychological issue' should be excluded from any fee award. Despite the Board's finding the employee is entitled to reasonable attorney's fees in this case, it also asserts that only statutory fees should be awarded.

Based on our review of the record, we find that as a consequence of the employee's counsel's efforts, the results were favorable for the employee. The Board awarded the requested TTD from September 8, 2004 through October 11, 2004. The Board awarded PPI in excess of the 13% already paid by the defendant, which resulted in 8% more PPI being paid, or an additional $14,160.00. The Board granted the employee's request for an order requiring the defendant to pay her outstanding medical bills. The Board ordered the defendant to pay the employee interest on PPI, TTD and medical benefits. The employer did not appeal that decision and paid the awarded benefits. Based upon the statutes, the decisional law, and the results to the employee, we reaffirm the Board's finding the employee is entitled to reasonable attorney fees and costs.

With respect to the nature, length, and complexity of the services performed by the William J. Soule Law Office, the record reflects attorney Soule filed his entry of appearance in this case on August 16, 2004.

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