2007-058. Municipality of Anchorage and NovaPro Risk Solutions Appellants vs. Robert Rehbock and Herb McKinney Appellees.

Case DateOctober 01, 2007
CourtAlaska
Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-058. Municipality of Anchorage and NovaPro Risk Solutions Appellants vs. Robert Rehbock and Herb McKinney Appellees Alaska Workers' Compensation Appeals CommissionMunicipality of Anchorage and NovaPro Risk Solutions, Appellants, vs. Robert Rehbock and Herb McKinney, Appellees.Decision No. 058 October 1, 2007AWCAC Appeal No. 07-003 AWCB Decision No. 07-0016AWCB Case No. 200318735Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 07-0016, issued on January 31, 2007, by the southcentral panel at Anchorage, Darryl Jacquot, Chairman, Janet Waldron, Member for Industry. Appearances: Trena Heikes, Law Office of Trena L. Heikes, for appellees Municipality of Anchorage and NovaPro Risk Solutions. Robert Rehbock, Rehbock and Rehbock, appellee, pro se. Herb McKinney, appellee, pro se.Commissioners: Jim Robison,Stephen T. Hagedorn,and Kristin Knudsen.This decision has been edtted to conform to technical standards for publication. By: Kristin Knudsen, Chair. This appeal asks the commission to determine whether the board may award an attorney fee against the employer, based on work performed by the employee's attorney that resulted in negotiation of a settlement that the employee refused to sign. We conclude that because a refused, unexecuted settlement is void for any purpose, the board may not compel the employer to pay an attorney fee to the employee's attorney based on the "benefit" of a refused settlement agreement. We reverse the board's decision. Factual background. Herb McKinney works for the Municipality of Anchorage as an engineering assistant. McKinney reported he strained his back while lifting a case of spray paint on November 2, 2003.(fn1) He saw his physician, Dr. Lewis, on November 3, 2003,(fn2) and, after two physical therapy sessions, he told the therapist he was "cured" and he returned to work.(fn3) On January 26, 2004, he went to the clinic again, having developed pain while using his home computer. He saw Dr. Keith Laufer, who recorded in his notes "sitting at desk (MLP) onset spasm pain R side."(fn4) Dr. Laufer sent him to have an MRI scan.(fn5 )He continued to have back pain, and eventually transferred his care to Susan Anderson, M.D.(fn6) McKinney initially submitted the bills to his union health trust, explaining he was at home sitting at his personal computer reaching for a mouse when his back pain began.(fn7) McKinney's health trust refused payment of the bill as treatment for a workers' compensation injury.(fn8) The workers' compensation adjuster, relying on Dr. Laufer's report and McKinney's statement to the adjuster that he was working at his computer when the injury occurred, paid for McKinney's treatment and compensated him for time lost from work.(fn9) McKinney filed a workers' compensation claim on June 25, 2004.(fn10) The employer's answer to the claim stated that no physician had indicated a time loss greater than three days, no permanent impairment rating had been received, and all medical bills received had been paid.(fn11) On October 29, 2004, the employer controverted further medical treatment and compensation payments based on a report by Drs. Green and Stump.(fn12) The employer asserts it over paid $9,000 in benefits and compensation to McKinney.(fn13) McKinney retained Rehbock, who filed a second workers' compensation claim for permanent partial disability compensation and medical benefits on November 24, 2004.(fn14) The employer controverted this claim on December 23, 2004.(fn15) At a pre-hearing conference on January 24, 2005, McKinney disclosed that the computer incident occurred at his home,(fn16) but he maintained that the January 2004 incident was connected to his November 2, 2003, work injury. The employer took McKinney's deposition.(fn17) On June 16, 2005, McKinney's physician signed an affidavit stating that the November 2, 2003, injury was a temporary, short-term aggravation of his pre-existing back condition and that the treatment after January 24, 2004, was not related to the prior work injury on November 2, 2003.(fn18) Based on this affidavit, the employer additionally controverted the treatment McKinney had received between May 17, 2004, and September 21, 2004.(fn19) McKinney's union health trust thereafter began coverage of treatment for the January 2006 injury.(fn20) To resolve any outstanding issues related to reimbursement, the parties negotiated a settlement, beginning in April 2006.(fn21) The settlement terms provided the municipality waived reimbursement of the asserted overpayment from McKinney or the health trust, McKinney waived future benefits for the November 2, 2003, injury, and Rehbock would receive an attorney fee of $4000. After a meeting in July 2006, McKinney refused to respond to his counsel's efforts to contact him or sign the agreement,(fn22) so the parties did not submit it to the board for approval. Board proceedings on Rehbock's petition. In October 2006, Rehbock petitioned the board for attorney fees paid by McKinney.(fn23) His petition stated:
Robert A. Rehbock, Attorney at Law, petitions the Board pursuant to 8 AAC 45.180. Costs and attorney fees (c)(d)(1)(2) [sic] for an award of fees and costs to be paid by Employee, Herb L. McKinney in the amount of $4,000.00. See Affidavit of Robert A. Rehbock in support of said Petition for an award of fees and costs to be paid by Employee, Herb L. McKinney.(fn24)
At hearing on the fee petition, Rehbock said he had "done services necessary so this man had some coverage for something that through misunderstandings was not initially covered by the correct provider and, in fact, by any provider initially."(fn25) He found "no law that allows the board to order that Mr. McKinney pay my fees directly out of his pocket except through workers' comp. benefits."(fn26) He believed that AS 23.30.145 would support an award of payment by McKinney.(fn27) The Municipality appeared and reviewed the history of the claim and settlement negations, concluding,
The problem was Mr. McKinney opted not to sign [the settlement agreement] and the City, because it's not going to get anything in re - in exchange for payment of attorney's fees, pulled out of any ag - any obligation to pay attorney's fees at that point. That prompted Mr. Rehbock to file the petition. The City still has a claim of an overpayment of $9,000 in medical and disability benefits . . . . I see no basis to order the Municipality to pay attorney's fees in this case when clearly there's been overpayment, they should have never paid anything . . . . Mr. McKinney's filing of a claim actually worked to the benefit for the City because it was finally able to get to the bottom of it and find out that it never should have been paying from the beginning. So we take no position with respect to this.(fn28)
The board's decision states:
We find that the employer controverted and otherwise resisted paying the employee medical and timeloss benefits associated with his back condition. We also find that, even though the employee's claim was ultimately shown to not be a workers' compensation injury, the employee enjoyed the benefit of approximately $9,000.00 that he would not have otherwise timely received. We find Mr. Rehbock provided valuable services on behalf of the employee which ultimately resulted in a benefit to the employee, to wit, a drafted CandR. We recognize the employee has refused to
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