dissenting in part.
I dissent from the court’s holding that the Board, in the factual context of this case, has authority under AS 23.30.145(a), to award attorney’s fees to Shirley.
In my view Section 145(a) does not furnish authority for the Board to award attorney’s fees since Industrial Indemnity did not controvert any amounts of compensation.' Under Section 145(a) attorney’s fees “may be allowed only on the amount of compensation controverted.” There is simply no record evidence that Industrial Indemnity was not prepared to pay any lifetime compensation benefits to which Shirley was entitled under the Act. What took place here was a temporary disagreement concerning the point at which the medical evidence justified classifying Shirley’s disability as permanent rather than temporary.
Under the court’s approach a difference over a few months regarding a change in Shirley’s status from TTD to PTD translates into an award of attorney’s fees based on a lifetime of compensation payments. This strikes me as basically unfair.1
The court advances three grounds in support of its holding that the Board can resort to Section 145(a) in awarding attorney’s fees to Shirley. First, the court observes that Industrial Indemnity would not have bothered to controvert Shirley’s claim for PTD if there wasn’t an “amount of compensation” at stake. This rationale overlooks an employer’s interest in accurate information as well as the possibility of an employer’s reasonable belief in the claimant’s recovery. Second, the court notes that even if Industrial Indemnity did not dispute the total amount it owed, it disputed the PTD amount it owed. This reasoning impliedly overrules Bignell v. Wise Mechanical Contractors, 651 P.2d 1163 (Alaska 1982). In Bignell, Wise classified its compensation payments incorrectly, just as Industrial Indemnity did in this case. Wise termed its payments PPD, and we held that Wise should have continued to pay TTD. Nonetheless, the $6,000 in mislabeled payments was subtracted from the “amount controverted” figure. In my view, the Bignell ease and the instant case are indistinguishable. Lastly, the court notes that the State’s controversion meant a dispute over “the total amount ... [Shirley] could collect during his lifetime.” As noted above, in my view this is not an accurate reading of the record.
Given the inapplicability of Section 145(a), I would require the parties to file supplemental briefs as to whether Section 145(b) authorizes the Board to award attorney’s fees to Shirley, or whether, due to the inapplicability of Sections 145(a) and (b),2 Section 145(c) authorizes this court to consider uncompensated attorney’s fees incurred before the Board, as well as attorney’s fees for proceedings before this court, in making an award for attorney’s fees.
. The court observes that "[i]f the fees awarded under Section 145(a) are disproportionately high, that fact should be taken into account by the superior court.” Assuming 145(a) allows for deviation from its fee schedule the "disproportionately high” standard strikes me as illusory.
. Alaska Statute 23.30.145(b) provides:
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 a reasonable attorney fee. The award is in addition to the compensation or medical and related benefits ordered.
AS 23.30.145(c) provides:
If proceedings are had for review of a compensation or medical and related benefits order before a court, the court may allow or increase an attorney’s fees. The fees are in addition to compensation or medical and related benefits ordered and shall be paid as the court may direct.