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G. Hulsey v. Johnson & Holen (7/26/91), 814 P 2d 327
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
GENEVA HULSEY, )
Appellant, ) File No. S-3859
v. ) 3AN-88-2897 SC
JOHNSON & HOLEN, ) O P I N I O N
________________________________) [No. 3725 - July 26, 1991]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Rene J. Gonzalez, Judge. On appeal
from the Small Claims Court, Third Judicial
District, Anchorage, Paul E. Olson, Judge.
Appearances: Helen L. Simpson, Anchorage,
for Appellant. Elizabeth I. Johnson,
Anchorage, for Appellee.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
In February 1987, Ms. Geneva Hulsey contacted the law firm
of Johnson & Holen, seeking representation in her efforts to
reopen two related claims: a workers' compensation claim and
an arbitration claim. Elizabeth Johnson, of Johnson & Holen,
undertook to represent Ms. Hulsey in both actions.
In March 1988, before it would agree to hear the merits of
Ms. Hulsey's request to reopen the compensation claim, the
Alaska Workers' Compensation Board (Board) directed the
parties to address a statute of limitations issue. Soon
thereafter, in May 1988, Ms. Hulsey filed a notice of
withdrawal of counsel with the Board. Ms. Hulsey and Johnson
& Holen then terminated their attorney-client relationship.
Johnson & Holen submitted a bill to Ms. Hulsey for $8,483.27
for efforts spent in the attempt to reopen both the workers'
compensation claim and the arbitration claim. Ms. Hulsey
paid Johnson & Holen $5,323.60, but refused to pay the
remaining $3,159.67. Johnson & Holen filed a small claims
action in district court for the latter amount.
The district court, Judge Paul E. Olson, tried the small
claims action in August 1988. At trial, Ms. Hulsey did not
dispute the number of hours claimed by Johnson & Holen;
rather, she argued that the portion of Johnson's fee related
to her workers' compensation claim required Board approval,
before Johnson & Holen legally could bill her for the work.
The district court disagreed and ruled that Johnson's efforts
to reopen the workers' compensation claim did not constitute
the rendering of services related to a claim before the Board,
because the Board "had not agreed to hear the case." The
district court entered judgment against Ms. Hulsey for
Ms. Hulsey appealed the district court's decision to the
superior court. The superior court, Judge Rene J. Gonzalez,
exercising independent judgment, affirmed the judgment of the
lower court. Ms. Hulsey petitioned this court for hearing,
and her petition was granted.
Alaska Statute 23.30.145(a) provides that "[f]ees for legal
services rendered in respect to a claim are not valid unless
approved by the board."1 (Emphasis added.) Johnson & Holen
admit that they have not sought Board approval of any part of
the fee they have charged Ms. Hulsey. Thus, the only
question in this case is whether Johnson & Holen performed
"legal services rendered in respect to a claim," within the
meaning of AS 23.30.145, when they undertook to "reopen" Ms.
The obvious answer, in view of the controlling statutes and
this court's prior decisions interpreting them, is that
Johnson & Holen did render service in respect to a claim. To
begin with, the Board correctly treated Ms. Hulsey's petition
to "reopen"her claim as a petition for modification under AS
18.104.22.168 See Metcalf v. Felec Serv., 784 P.2d 1386, 1387
(Alaska 1990). As we previously have explained, a
modification proceeding under AS 23.30.130 "originates in the
initial claim for compensation." Interior Paint Co. v.
Rodgers, 522 P.2d 164, 167 (Alaska 1974). Thus, an
application to modify a prior order invokes the Board's
jurisdiction over the original claim. As a result, any effort
by Johnson & Holen to modify the original Board order amounted
to "legal services rendered in respect to a claim"-- i.e., in
respect to Ms. Hulsey's original claim -- within the meaning
of AS 23.30.145.
Johnson & Holen argue that the Board somehow avoided "taking
jurisdiction"of Ms. Hulsey's case by directing the parties to
address the statute of limitations issue as a threshold
matter. This argument is illogical. Alaska Statute 23.30.130
imposes evidentiary standards for Board review of petitions
and a limitations period in which Board review may occur.
The Board thus acts within its jurisdiction with respect to
modification of the original claim when it decides whether the
limitations period has run. Cf. Interior Paint Co., 522 P.2d
at 167. Hence, all efforts in this case rendered in respect
to the modification of Ms. Hulsey's original claim, including
any preliminary efforts related to the statute of limitations
problem, fall within the purview of AS 23.30.145. Johnson &
Holen had no right to charge Ms. Hulsey a fee for the time
spent on those efforts.
The decisions of the superior court and the district court
1. The Board itself, under its regulatory power, has
established an exception to the Board-approval rule of AS
23.30.145 for some small attorney's fees payments in workers'
compensation cases. See 8 AAC 45.180(c) (Supp. 1991). The
Board's regulation provides that if the fee is a one-time-only
charge, if the attorney has not actually entered "an
appearance"before the Board in the case, and if the fee is
$300 or less, then the attorney may receive the fee without
seeking further Board approval. Id. Of course, Johnson &
Holen claim significantly more than $300 for their services in
Notably, AS 23.30.260 makes receiving a fee "on account of
services in respect to a claim"a misdemeanor unless the Board
has approved that fee.
2. Modification of Awards. (a) Upon its own
initiative, or upon the application of any
party in interest on the ground of a change
in conditions . . . or because of a mistake
in its determination of a fact, the board may
. . . before one year after the rejection of
a claim, review a compensation case . . . .