Haile v. Pan American World Airways, Inc.

RABINOWITZ, Chief Justice

(dissenting in part, concurring in part).

I dissent from the court’s holding that AS 23.30.145(a) requires the Alaska Workmen’s Compensation Board to approve the minimum attorneys’ fees therein provided for only in instances of controverted claims.

In my view, the first sentence of AS 23.-30.145(a) prescribes the formula by which the Board is to determine minimally acceptable attorneys’ fees in all cases, regardless of whether the employer controverts the employee’s compensation claim or otherwise resists payment of compensation. While the 'first sentence of AS 23.30.-145(a) sets the minimum attorneys’ fees in all cases, the fourth sentence gives the Board discretion, in conformity with stated criteria, to approve greater than the minimum fees in appropriate cases. It is clear that the first sentence of AS 23.30.145(a) is not limited by a controversy requirement since it is only concerned with the amount of compensation awarded.

The second sentence of AS 23.30.145(a) provides that: “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.” Thus, this provision determines when the Board may require the employer or carrier to pay attor*842neys’ fees in addition to the compensation awarded. The fees are determined under either the minimum fee schedule of the first sentence of AS 23.30.145(a) or the greater reasonable fee provision of the fourth sentence of AS 23.30.145(a). And in the case of controversy, the employer or carrier may be required to pay the attorneys’ fees only on the compensation controverted and awarded. The third sentence of AS 23.30.145(a) requires that when bona fide legal services have been rendered in respect to a claim which has not been controverted, “then the board shall direct the payment of the [attorneys’] fees out of the compensation awarded.”

From the foregoing, I think it reasonable to assume that under AS 23.30.145(a) the legislature provided for minimally reasonable attorneys’ fees in all cases in order to ensure that claimants might obtain effective representation. It is also reasonable to assume that the legislature divided the burden of paying attorneys in this fashion because the employer’s controversion of the claim often requires the employee to retain legal services. Thus, the employer is required to pay the attorneys’ fees relating to the. unsuccessfully controverted portion of the claim because he created the employee’s need for legal assistance. When the claim is uncontroverted, but the employee desires legal representation, the employee is required to pay the attorneys’ fees out of his compensation award.

Subsection (b) of AS 23.30.145 also plays a role in allocating the burden of paying attorneys’ fees in compensation proceedings. When the employer fails to file a timely notice of controversy, or fails to pay compensation within 15 days after it becomes due, or otherwise resists the payment of compensation, such conduct may require the employee to hire counsel in order to successfully prosecute his claim for compensation. In my view, the case at bar illustrates such behavior and comes within subsection (b) of AS 23.30.145. Under this subsection, the employee is partially or totally reimbursed “for his costs in the proceedings, including a reasonable attorney fee.” This award of costs and attorneys’ fees under AS 23.30.145(b) is in addition to the compensation awarded and is intended as reimbursement. Under subsection (b), the Board is empowered to determine what is a reasonable attorneys’ fee for purpose of awarding the claimant reimbursement for attorneys’ fees which have been determined and awarded under subsection (a) and which are payable out of the compensation awarded.

While I disagree with the court’s interpretation of subsection (a), I concur in the holding that the case should be remanded to the Board for an appropriate hearing on the question of attorneys’ fees to be awarded under subsection (b).