GREGORY THOMAS GUERRISSI, Employee, Claimant,
v.
STATE OF ALASKA, DEPARTMENT TRANSPORTATION Self Insured Employer, Defendant.
AWCB Decision No. 21-0024
AWCB No. 201902745
Alaska Workers Compensation Board
March 16,2021
.
INTERLOCUTORY
DECISION AND ORDER ON RECONSIDERATION
Employer's
December 14, 2020 petition for reconsideration was heard on
the written record on February 17, 2021 in Anchorage, AK, a
date selected on January 22, 2021. Attorney Keenan Powell
represented Gregory Guerrissi (Employee). Assistant Attorney
General Adam Franklin represented the State of Alaska,
Department of Transportation (Employer). A second independent
medical evaluation (SIME) was ordered in Guerrissi v.
State of Alaska, AWCB Decision No. 20-0013 (March 16,
2020) (Guerrissi I). Guerrissi v. State of Alaska,
AWCB Decision No. 20-0109, (December 4, 2020) (Guerrissi II)
granted in part and denied in part Employee's petition to
strike medical records unrelated to his work injury from the
SIME binders. Guerrissi II awarded Employee partial
attorney fees based on his prevailing in part on his petition
to strike medical records. The record closed at the
hearing's conclusion on February 17,2021.
ISSUE
Employer
contends the attorney fee award in Guerrissi II
should be reconsidered because the Board failed to follow the
Alaska Supreme Court decisions in Adamson v. University
of Alaska, 819 P.2d 886 (Alaska 1991), Childs v.
Copper Valley Electrical Association, 860 P.2d 1184
(Alaska 1993) and Sulkosky v. Morrison-Knudsen, 919
P.2d 158 (Alaska 1996).
Employee
contends Employer's argument that attorney fees may only
be awarded following a final decision on a claim is not
supported by statute, regulation or case law.
Should
Guerrissi II's attorney fees award be reconsidered?
FINDINGS
OF FACT
All
facts and factual conclusions from Guerrissi II are
incorporated herein by reference. A preponderance of the
evidence establishes the following additional facts and
factual conclusions:
1)
Guerrissi II was issued December 4, 2020, making the
following order concerning attorney fees:
4)
Employer shall pay $4,000.00 in attorney fees. (Guerrissi
II at 20).
2) On
December 14, 2020, Employer timely filed a reconsideration
petition for only Guerrissi II order four above.
3) On
December 31, 2020 Guerrissi v. State of Alaska, AWCB
Decision No. 20-0120 (Guerrissi III) was issued
granting reconsideration of Guerrissi II on the
attorney fee issue only and directing the parties to file
memorandums presenting their positions no later than January
22, 2021. (Guerrissi III at 4.)
PRINCIPLES
OF LAW
AS
01.05.006. Adoption of Alaska Statutes; notes, headings and
references not law.
The
bulk formal revision of the laws of Alaska which was
authorized by AS 24.20.070 and prepared under the direction
of the Alaska Legislative Council and published by The Michie
Company, legal publishers, of Charlottesville, Virginia, and
titled "Alaska Statutes," as set out in the 47
titles of the Alaska Statutes, but not including the table of
contents, indexes, citations to Alaska Compiled Laws
Annotated, 1949, and session laws, chapter, article, section,
subsection, and paragraph headings, annotations, collateral
references, notes, and decisions, is adopted and enacted as
the general and permanent law of Alaska.
In
DeNuptiis v. Unocal Corp., 63 P.3d 272 (Alaska 2003)
the Court found the Board had erred in applying a clear and
convincing standard of proof to an employer's claim for
reimbursement of benefits based on fraud under AS
23.30.250(b), which is entitled "[P]enalties for
fraudulent or misleading acts; damages in civil
actions." The Court stated the standard of proof in
administrative hearings is the preponderance of the evidence,
and, citing AS 01.05.006, although the caption of AS
23.30.250(b) mentions "penalties," captions are not
part of the statute and no penalties are in fact assessed.
The only remedy under AS 23.30.250(b) is restitution and
reimbursement. (Id. at 280.)
AS
23.30.008. Powers and duties of the commission, (a) The
commission shall be the exclusive and final authority for the
hearing and determination of all questions of law and fact
arising under this chapter in those matters that have been
appealed to the commission, except for an appeal to the
Alaska Supreme Court.... On any matter taken to the
commission, the decision of the commission is final and
conclusive, unless appealed to the Alaska Supreme Court, and
shall stand in lieu of the order of the board from which the
appeal was taken. Unless reversed by the Alaska Supreme
Court, decisions of the commission have the force of legal
precedent.
AS
23.30.108. Prehearings on Discovery Matters; Objections to
Requests for Release of Information; Sanctions for
Noncompliance.
(d) If
the employee files a petition seeking a protective order to
recover medical and rehabilitation information that has been
provided but is not related to the employee's injury, and
the board or the board's designee grants the protective
order, the board or the board's designee granting the
protective order shall direct the division, the board, the
commission, and the parties to return to the employee, as
soon as practicable following the issuance of the protective
order, all medical
and
rehabilitation information, including copies, in their
possession that is unrelated to the employee's injury
under the protective order.
AS
23.30.145. Attorney fees.
(a)
Fees for legal services rendered in respect to a claim are
not valid unless approved by the board, and the fees may not
be less than 25 percent on the first $1,000 of compensation
or part of the first $1,000 of compensation, and 10 percent
of all sums in excess of $1,000 of compensation. When the
board advises that a claim has been controverted, in whole or
in part, the board may direct that the fees for legal
services be paid by the employer or carrier in addition to
compensation awarded; the fees may be allowed only on the
amount of compensation controverted and awarded. When the
board advises that a claim has not been controverted, but
further advises that bona fide legal services have been
rendered in respect to the claim, then the board shall direct
the payment of the fees out of the compensation awarded. In
determining the amount of fees the board shall take into
consideration the nature, length, and complexity of the
services performed, transportation charges, and the benefits
resulting from the services to the compensation
beneficiaries.
(b) If
an employer fails to file timely notice of controversy or
fails to pay compensation or medical and related benefits
within 15 days after it becomes due or otherwise resists the
payment of compensation or medical and related benefits and
if the claimant has employed an attorney in the successful
prosecution of the claim, the board shall make an award to
reimburse the claimant for the costs in the proceedings,
including reasonable attorney fees. The award is in addition
to the compensation or medical and related benefits ordered.
The
board may base its decision on not only direct testimony,
medical findings, and other tangible evidence, but also on
the board's "experience, judgment, observations,
unique or peculiar facts of the case, and inferences drawn
from all of the above." Fairbanks North Star Borough
v. Rogers & Babler, 1A1 P.2d 528, 533-34 (Alaska
1987).
Wise
Mechanical Contractors v. Bignell, 718 P.2d 971, 974-75
(Alaska 1986), held attorney fees should be reasonable and
fully compensatory, considering the contingency nature of
representing injured...
