COLETTE COHEN-BARCE, Employee, Claimant,
v.
MICHAEL J VANSTROM d/b/a ALASKA ELITE OUTFITTERS, Uninsured Employer,
And
ALASKA WORKERS’ COMPENSATION BENEFITS GUARANTY FUND, Insurer, Defendants.
AWCB Decision No. 21-0035
AWCB No. 201916026
Alaska Workers Compensation Board
April 19, 2021
FINAL DECISION AND ORDER
Judith
A DeMarsh, Designated Chair
Colette
Cohen-Barce’s March 12, 2021 petition for an order
declaring Employer Michael J. Vanstom’s default amount
was heard on the written record in Anchorage, Alaska, on
April 8, 2021, a date selected on March 16, 2021. Attorney
Justin Eppler represents Colette Cohen-Barce (Employee).
Michael J. Vanstrom, uninsured employer, represents Alaska
Elite Outfitters. Velma Thomas represents the Alaska
Workers’ Compensation Benefits Guaranty Fund (Fund).
The record closed at the hearing’s conclusion on April
8, 2021. Colette Cohen-Barce v. Michael J. Vanstrom d/b/a
Alaska Elite Outfitters, AWCB Decision No. 21-0034
(April 14, 2021) (Cohen-Barce II) was issued on
April 14, 2021, granting Employee’s March 12, 2021
petition and issuing a supplemental order of default.
ISSUE
Employee
contends she is entitled to additional attorney fees and
costs incurred in securing the supplementary default order.
Neither
Employer nor the Fund filed hearing briefs or argument in
opposition to Employee’s petition or attorney fee
affidavits.
Is
Employee entitled to attorney’s fees and costs for her
successful petition to obtain a supplemental order of
default?
FINDINGS
OF FACT
All
findings in both Colette Cohen-Barce v. Michael J.
Vanstrom d/b/a Alaska Elite Outfitters, AWCB Decision
Numbers 21-0010 (February 8, 2021) (Cohen-Barce I)
and 21-0034 (April 14, 2021) (Cohen-Barce II) are
incorporated herein. The following facts and factual
conclusions are reiterated from Cohen-Barce I, Cohen
Barce II, are undisputed, or are established by a
preponderance of the evidence:
1) On
December 20, 2019, Employer entered into a settlement
agreement with the State of Alaska, Division of
Workers’ Compensation Investigation Unit for his
failure to insure for workers’ compensation liability.
Employer admitted he failed to insure for workers’
compensation liability while utilizing employee labor. He
admitted he is liable for any occupational injuries that
occur during any time he was uninsured. He also admitted
Employee was injured on or about September 1, 2019, while at
Employer’s remote camp located near the Nushagak and
Mulchatna rivers. However, Employer disputed Employee’s
September 1, 2019 injury was work-related. (Settlement
Agreement Penalty for Failure to Insure in Alaska
Workers’ Compensation Board case No. 700007594,
12/20/19.)
2)
Employer has paid none of the benefits to which Employee is
entitled under the Act, which constitutes a controversion in
fact because he never filed a formal controversion. Further,
Employer’s December 20, 2019 failure to insure
stipulation asserted Employee’s claim was not
compensable and is a post claim action opposing
compensability.
3) On
August 13, 2020, the Fund controverted all benefits stating
Employee’s WCC lacked sufficient grounds to establish
all the elements to collect against the Fund. (Controversion,
August 13, 2020.)
4) On
February 8, 2021, Cohen-Barce I determined
Employee’s injury arose out of and in the course of her
employment with Employer and ordered benefits be paid.
(Cohen-Barce I).
5) On
March 12, 2021, Employee filed her supplemental attorney fee
and paralegal affidavits for the period from January 4, 2021
through March 12, 2021documenting a total of 6.2 attorney
hours at the rate of $385.00 per hour for a total of
$2,387.00. Also documented were 9.95 paralegal hours at the
rate of $150.00 per hour for a total of $1,840.75. The total
attorney’s fees and costs were $4,227.75. (Attorney fee
affidavit and paralegal affidavit, March 12, 2021.)
6) On
April 14, 2021, Cohen-Barce II granted
Employee’s March 12, 2021 petition for a supplemental
order of default and declared the amount Employer is in
default is $248,794.55. (Cohen-Barce II).
PRINCIPLES
OF LAW
The
board may base its decision on not only direct testimony,
medical findings, and other tangible evidence, but also on
the board’s...
