12-0072. JERRY D. MOORE Employee v. N C MACHINERY Employer and AK NATIONAL INS CO Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0072. JERRY D. MOORE Employee v. N C MACHINERY Employer and AK NATIONAL INS CO Insurer Defendants ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512 JERRY D. MOORE, Employee, Applicant v. N C MACHINERY, Employer, and AK NATIONAL INS CO, Insurer, Defendants.AWCB Decision No. 12-0072Filed with AWCB Fairbanks, Alaskaon April 12, 2012AWCB Case No. 200112089 FINAL DECISION AND ORDER Jerry Moore's (Employee) February 10, 2004 workers' compensation claim was heard before a two-member panel in Fairbanks, Alaska on February 16, 2012. The sole issue at hearing was Employee's 2004 claim for attorney's fees and costs on remand from the Alaska Workers' Compensation Appeals Commission ("Commission"). Attorney Robert Beconovich appeared on behalf of Employee. Attorney Richard Wagg appeared on behalf of N-C Machinery Company (Employer). The record closed on February 16, 2012 at the hearing's conclusion. ISSUE Employee acknowledges the Commission's December 24, 2008 decision holds Employee has an obligation to establish reasonable attorney's fees, but contends the absence of billing records does not necessarily result in no attorney fees being awarded. Employee contends the Commission's decision states Employee is entitled to reasonable attorney fees, and further contends the decision does not state a reasonable attorney fee is zero. Employee disagrees with the board's November 21, 2011 decision (Moore IV), though he did not request reconsideration, and contends that decision has limited his offer of proof at this hearing. Employee contends he has not submitted an affidavit because his attorney is "not comfortable guessing on an affidavit." Employer contends even an affidavit based on approximations would suffice, but contends the board cannot award attorney fees in this case without evidence of work performed. Has Employee adduced evidence of the actual work performed by his attorney sufficient to determine a reasonable attorney fees and costs award? FINDINGS OF FACT A review of the relevant record establishes the following facts and factual conclusions by a preponderance of the evidence:

1) On July 2, 2001, Employee injured his back lifting batteries while working as a maintenance man for Employer. (Jerry D. Moore v. N C Machinery, AWCB Decision No. 04-0207 (August 27, 2004) at 1).

2) In 2003, Employer accepted the employee's injury as compensable, paid permanent partial impairment ("PPI") benefits, compensation under AS 23.30.041(k), medical benefits, and reemployment benefits. (Jerry D. Moore v. N C Machinery, AWCB Decision No. 08-0033 (February 26, 2008) at 1).

3) On January 27, 2004, Attorney Robert Beconovich entered an appearance for Employee. (Jerry D. Moore v. N CMachinery, AWCB Decision No. 04-0207 (August 27, 2004) at 1).

4) On February 10, 2004, Employee filed a Workers' Compensation Claim requesting permanent total disability ("PTD") benefits under AS 23.30.180, interest, attorney fees, and legal costs. (Id.).

5) On February 17, 2004, attorney Richard Wagg entered an appearance on behalf of Employer. (Id. at 2).

6) On February 17, 2004, Employer filed an Answer to Employee's claim, admitting Employee's entitlement to PTD benefits. However, Employer denied interest, attorney's fees and costs. (Id.).

7) On May 27, 2004, the Board Designee recorded Employer's agreement to pay PTD benefits in a prehearing conference summary, and set Employee's claim for attorney fees for a hearing on August 26, 2004. (Id ).

8) On August 26, 2004, hearing was held on Employee's attorney fees claim. The Board found Employee's attorney was instrumental in securing and preserving Employee's PTD benefits, and awarded statutory minimum attorney fees under AS 23.30.145(a). (Jerry D. Moore v. N CMachinery, AWCB Decision No. 04-0207 (August 27, 2004) (Moore I)).

9) On September 23, 2004, upon reconsideration, the Board concluded Employer's actions amounted to a controversion-in-fact, and confirmed its award of AS 23.30.145(a) attorney fees. (Jerry D. Moore v. N C Machinery, AWCB Decision No. 04-0229 (September 24, 2004) (Moore II)).

10) On February 1, 2006, the Superior Court affirmed the Board's decision concluding the award was supported by substantial evidence and was reasonable. (Harnish Group Inc. v. Moore, Decision on Appeal, 3AN-04-12249-CI (Alaska Super. Ct., February 1, 2006)).

11) On October 3, 2007, the Alaska Supreme Court reversed and remanded Moore I holding, although there was substantial evidence in the record supporting a conclusion Employer had resisted paying Employee's PTD benefits, such resistance could not have served as a basis for a controversion-in-fact because Employer's resistance occurred before Employee's claim had been filed. The Court stated Employer admitted liability for Employee's PTD benefits in Employer's Answer to Employee's claim. The Court reversed

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