Croft v. Pan Alaska Trucking, Inc.

MOORE, Justice,

dissenting.

I agree with the majority that AS 23.30.-155(j) provides the exclusive remedy for overpayments of compensation in a workers’ compensation case.

I must dissent, however, from that portion of the majority opinion which concludes that attorney’s fees are compensation within the meaning of AS 23.30.155(j). That conclusion is directly contrary to the language and policy of the Act.

“Compensation” is defined in the Act as “the money allowance payable to an employee or the dependents of the employee as provided for in this chapter, and includes the funeral benefits provided for in this chapter.” AS 23.30.265(8). Alaska Statute 23.30.045(a) provides in part that an employer “is liable for and shall secure the payment to employees of the compensation payable under ... [AS] 23.S0.145.” (Emphasis added). Contrary to the opinion of the majority, not all payments made pursuant to AS 23.30.145 constitute “compensation” for purposes of the Act. Alaska Statute 23.30.145(a) expressly provides that when attorney’s fees are payable by the employer or carrier, which the statute requires in controverted cases like the one involved here, the fees are to be paid “in addition to the compensation awarded.” The majority blatantly and without expla*1068nation ignores this distinction between attorney’s fees and compensation, in effect creating a new definition of “compensation.” Such a construction effectively renders meaningless the statute’s distinction between “compensation” and attorney’s fees, in violation of the rule that a “statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Libby v. City of Dillingham, 612 P.2d 33, 43 (Alaska 1980) (Rabinowitz, J., concurring), citing 2A Sands, Sutherland Statutory Construction, § 46.06, at 63 (4th ed. 1973).

The purpose of AS 23.30.155(j) is to prevent a claimant from retaining funds he is not entitled to, while providing a reimbursement mechanism which softens the financial burden on claimants who have been overpaid. This framework is inapplicable to cases involving an employer’s payment of attorney’s fees to the employee’s attorney during the pendency of a workers’ compensation appeal which is ultimately resolved in favor of the employer. The Act’s generous legal rate schedule was designed to account for the contingent nature of recovery in workers’ compensation cases.1 The majority’s desire to compensate Croft for his efforts in this case is thus misplaced; Croft is overcompensated for the workers’ compensation cases which he wins.

If the legislature had intended to provide a statutory mechanism for repaying the overpayment of attorney’s fees, I am puzzled why it would have chosen the gradual repayment mechanism provided by AS 23.-30.155(j). Unlike the injured claimants whom the repayment mechanism is designed to protect, attorneys are not often in such dire financial circumstances that policy dictates gradual repayment of over-payments.

Instead of deviating from the mandates of the Act’s language and purpose, I would hold that the overpayments received by an attorney in a workers’ compensation case are not “compensation” within the meaning of the Act, and therefore that AS 23.30.-155(j) does not limit the recovery by an employer or insurance carrier of overpaid attorney’s fees. If this law is to be changed, I believe it is the province of the legislature to do so.

. Wien Air Alaska v. Arant, 592 P.2d 352, 366 (Alaska 1979) (“high awards for successful claims may be necessary for an adequate overall rate of compensation, when counsel’s work on unsuccessful claims is considered").