Cohen-Barce v. Vanstrom, 041921 AKWC, 21-0035

Docket NºAWCB Decision 21-0035
Case DateApril 19, 2021
COLETTE COHEN-BARCE, Employee, Claimant,
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...

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