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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Circle De Lumber Co. v. Humphrey (03/03/2006) sp-5994

Circle De Lumber Co. v. Humphrey (03/03/2006) sp-5994, 130 P3d 941

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

CIRCLE DE LUMBER COMPANY, )
LIBERTY MUTUAL INSURANCE ) Supreme Court No. S-11086
COMPANY, )
) Superior Court No.
Appellants, ) 3AN-01- 3754 CI
) 3AN-01-5167 CI
v. ) 3AN-01-9452 CI
)
OTTO C. HUMPHREY, ALASKA ) O P I N I O N
WORKERS COMPENSATION )
BOARD, ) No. 5994 - March 3, 2006
)
Appellees. )
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Michael L. Wolverton, Judge.

          Appearances:  Colleen  Libbey,   Libbey   Law
          Offices,  Anchorage, for Appellant Circle  De
          Lumber Company, and Randall J. Weddle, Holmes
          Weddle  &  Barcott, Anchorage, for  Appellant
          Liberty   Mutual  Insurance   Company.    Tim
          MacMillan,  Attorney at Law,  Anchorage,  for
          Appellee Otto C. Humphrey.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          CARPENETI, Justice.

I.   INTRODUCTION
          Circle  De  Lumber Company was ordered to  pay  workers
compensation benefits to Otto Humphrey for a work-related  injury
that  Humphrey  suffered in 1993.  Circle De appeals  the  Alaska
Workers  Compensation  Boards methods  of  calculating  permanent
total  disability  benefits rates and temporary total  disability
benefits rates, the retrospective interest awards to Humphrey for
late-paid  benefits, and the award of attorneys fees to  Humphrey
in  excess  of  the  statutory minimum.   We  affirm  the  boards
decision in all respects.
II.  FACTS AND PROCEEDINGS
          On  February  22,  1993 the Circle  De  Lumber  Company
(Circle  De)  hired Otto Humphrey, a resident of Soldotna,  as  a
logging equipment operator.  In May 1993 Humphrey suffered a head
injury  during  his  employment with Circle  De.1   Humphrey  was
riding on the top of a skidder when it struck a tree, causing the
top  of  the  tree  to break off and hit Humphrey  on  the  head.
According  to  his workers compensation claim, Humphrey  suffered
from  severe headaches, head trauma, loss of hearing in his right
ear,  short-term memory loss, loss of equilibrium  in  his  right
ear,  impaired  equilibrium in his left ear, and ringing  in  his
right ear as a result of the accident.
          Circle  De  paid  Humphrey temporary  total  disability
(TTD)  benefits from May 29, 1993 until November 16, 1995.   From
November  11, 1995 until December 6, 1996 Circle De paid Humphrey
permanent  total  disability  (PTD)  benefits.   Then  Circle  De
resumed  paying  TTD  benefits,  as  well  as  permanent  partial
impairment  (PPI) benefits, until December 9, 1999.  On  December
7,  1999  a  panel of physicians examined Humphrey at Circle  Des
request  and  determined  that  he was  permanently  and  totally
disabled.  Following this determination, Circle De paid  Humphrey
PTD  benefits  effective  December 9, 1999.   In  June  2000  the
parties  entered into a stipulation declaring that  Humphrey  was
permanently  and totally disabled.  The stipulation was  approved
by  the Alaska Workers Compensation Board (hereinafter the board)
in  Humphrey  v. Circle De Lumber Co. (Humphrey I).2   The  board
also  determined that Humphrey had been permanently  and  totally
disabled beginning on December 7, 1999.
          In  Humphrey  II,3 issued in November 2000,  the  board
considered   Humphreys   request  to  adjust   his   PTD   weekly
compensation rate from $110 per week to $351 per week,  based  on
the  wage rate in 1998 of an experienced tree faller ($21.50  per
hour),  a  fifty-hour work week, and a six-month logging season.4
Following  Gilmore  v.  Alaska Workers Compensation  Board,5  the
board  agreed to calculate Humphreys lost earnings based  on  the
nature of his employment and work history under the version of AS
23.30.220(a)(2) that was in effect in 1993,6 rather than based on
the  historical  average calculation under  AS  23.30.220(a)(1).7
The  board  accepted  Humphreys calculation, resulting  in  gross
weekly  earnings  of $560 and a weekly PTD compensation  rate  of
$351,  awarded retrospectively to December 7, 1999, the  date  of
the  PTD classification.8  The board also required Circle  De  to
pay  interest on any late-paid PTD benefits, and awarded Humphrey
          the statutory minimum in attorneys fees and costs.9
          Following the boards decision in Humphrey II,  Humphrey
asked  the  board to retroactively increase his TTD  compensation
rate.    On  January  19,  2001,  in  Humphrey  III,  the   board
retroactively adjusted Humphreys TTD compensation rate from  $110
per  week  to $236.55 per week.10  As in Humphrey II,  the  board
departed  from  the  standard practice of  calculating  Humphreys
gross  weekly wage by using former AS 23.30.220(a)(1), this  time
using  his  hourly  wage  at the time of injury  to  compute  his
compensation rate.11  The board also awarded Humphrey interest on
any late TTD benefits payments, statutory minimum attorneys fees,
and costs.12
          On  July  23, 2001, in Humphrey IV,13 the board granted
Humphreys request for retroactive PPI benefits, paid at  his  TTD
compensation  rate; granted Humphrey interest on his  retroactive
PPI  benefits;  found Circle De in default  for  failure  to  pay
interest on Humphreys TTD benefits; awarded Humphrey interest and
a  penalty on Circle Des defaulted interest payments; and granted
Humphrey attorneys fees of thirty-five percent, in excess of  the
statutory minimum.14
          Circle De appealed the boards decisions in Humphrey II-
IV  to  the  superior court.  Its appeals were  consolidated  and
heard  by  Superior Court Judge Michael L. Wolverton.  Circle  De
argued  that  the board erred in setting Humphreys  PTD  and  TTD
compensation rates; that interest should have accrued only  after
the boards due date for payment set in its order, not on the date
when  Humphrey originally became entitled to TTD or PPI benefits;
and  that the board erred in awarding enhanced attorneys fees  in
Humphrey IV.  Judge Wolverton found the boards compensation rates
for Humphreys PTD and TTD benefits to be supported by substantial
evidence.   However,  because the boards  order  was  unclear  on
whether  the awarded compensation rates were excessive under  the
statute,  he remanded the case for additional findings.15   Judge
Wolverton affirmed the boards awards of interest, reasoning  that
the  purpose of an interest award is to recognize the time  value
of  money  and to reimburse the aggrieved party for  value  lost.
Judge  Wolverton  also remanded the award of  enhanced  attorneys
fees;  in  order  to  determine whether the  enhanced  award  was
manifestly unreasonable, Judge Wolverton needed findings  by  the
board that explained the basis for its decision.
          Upon  remand,  in  Humphrey V16 the  board  found  that
Humphrey worked for Circle De for nine weeks and four days.17  The
board  calculated that, using this period of employment, the  PTD
compensation rate set by the board ($351 per week) did not exceed
Humphreys gross weekly earnings at the time of injury (which  the
board calculated to be $421.18 per week).18
          In a separate decision, Humphrey VI, the board ruled on
attorneys fees and costs.19  The board supported its earlier award
by finding the award of enhanced fees to have been reasonable and
necessary for the successful presentation of Humphreys claim, and
that  the  failure  to  award attorneys fees  in  excess  of  the
statutory minimum would result in manifest injustice.20
          Circle  De  then  brought  an  appeal  to  this  court,
alleging error in the boards findings in Humphrey IIVI.  However,
          because the boards findings in Humphrey V and VI had not first
been  appealed to the superior court, we concluded that we lacked
appellate  jurisdiction under Alaska Rule of Appellate  Procedure
202(a).21  We therefore remanded the issues presented in Humphrey
V  and  VI  to  the  superior court for a final  judgment,  while
staying our consideration of all other issues appealed by  Circle
De.   On remand, Judge Wolverton held that the board did not  err
in  its  conclusions in Humphrey V and VI.  Circle De  now  seeks
review on all of its contentions.
III. STANDARD OF REVIEW
          When  the superior court acts as an intermediate  court
of   appeals,  we  independently  review  the  decision  of   the
administrative agency.22  If the parties raise a question of  law
that does not involve any special agency expertise, we review the
legal  question  under  the substitution of judgment  standard.23
Under  the  substitution  of  judgment  standard,  we  apply  our
independent  judgment and adopt the rule  of  law  that  is  most
persuasive in light of precedent, reason and policy.24  If, on the
other  hand,  the question of law involves agency  expertise,  we
review  the  decision  of  the administrative  agency  under  the
reasonable   basis  test  and  defer  to  the   agency   if   its
interpretation  is  reasonable.25  We  review  an  administrative
agencys  determinations  of fact under the  substantial  evidence
standard.26  Substantial evidence is such relevant evidence as  a
reasonable mind might accept as adequate to support a conclusion.27
It  is the exclusive province of the board to make determinations
of witness credibility.28
          Unless  statutory interpretation is required, we review
the  boards award of attorneys fees for an abuse of discretion.29
We will uphold the award unless it is manifestly unreasonable.30
IV.  DISCUSSION
          Circle De challenges Humphreys PTD compensation rate of
$351 per week, his TTD compensation rate of $236.55 per week, the
interest awarded to Humphrey, and the grant of attorneys fees  in
excess of the statutory minimum.  We consider each contention  in
turn.
     A.   PTD Compensation Rate
          In the case of a permanent and total disability, during
the  continuance of the disability an employee is entitled  to  a
compensation  award of eighty percent of the employees  spendable
weekly  wages.31   Under  former AS 23.30.220(a),  the  employees
spendable  weekly  wage  is the employees gross  weekly  earnings
minus  payroll  tax  deductions.32  Gross  weekly  earnings  were
calculated pursuant to former AS 23.30.220(a)(1): by dividing  by
100  the gross earnings of the employee in the two calendar years
immediately preceding the injury.  However, in Gilmore v.  Alaska
Workers  Compensation Board,33 we held that the equal  protection
clause  of  the Alaska Constitution forbids the determination  of
gross  weekly earnings under AS 23.30.220(a)(1) when  the  amount
earned by the employee in the two years before the injury is  not
an accurate predictor of the losses due to the injury.34  In such
cases,  the board should calculate gross weekly earnings pursuant
to  former AS 23.30.220(a)(2): by considering the nature  of  the
employees  work  and  work  history, with  the  caveat  that  the
          compensation may not exceed the employees gross weekly earnings
at the time of injury.35
          In  Humphrey  II  the board found substantial  evidence
that   [Humphreys]   gross  weekly  wage  calculated   under   AS
23.30.220(a)(1)  is not an accurate predicator of  the  employees
losses due to his injury.36  First, Humphreys earnings in the two
years  prior to his injury had been the two lowest earning  years
in  his most recent ten years of employment.37  Second, the board
found  several indications that [Humphreys] earning  pattern  was
changing  at  the time of his injury, resulting in  an  increased
future   earning  potential.38   Following  Gilmore,  the   board
therefore calculated Humphreys PTD compensation rate under former
AS  23.30.220(a)(2) by considering the nature  of  the  employees
work and work history.39
          Circle  De agrees that it was proper for the  board  to
use  this  alternative  calculation, but argues  that  the  board
failed  to properly execute this calculation.  More specifically,
Circle  De argues that the board, in setting the PTD compensation
rate  at  $351  per  week, committed error  by:  (1)  relying  on
statistical  wage rates rather than on Humphreys actual  earnings
history;  (2)  making a factual finding  that  Humphreys  earning
patterns were improving  unsupported by substantial evidence; and
(3)  awarding Humphrey a PTD compensation rate in excess  of  his
gross weekly earnings at the time of injury.
          1.   The  board  did  not  fail to  consider  Humphreys
               individual history of earnings and employment when
               making its PTD award.
               
          Circle  De  argues  that the board committed  error  by
using  the statistical wage rates for a tree faller, rather  than
Humphreys   actual   earnings  history,  when   calculating   his
compensation  rate  under former AS 23.30.220(a)(2).   The  board
predicted Humphreys losses due to injury by using the 1998 hourly
wage  rate of an experienced tree faller ($21.50) and multiplying
that by the number of hours Humphrey generally worked (fifty  per
week).40   The board factored in that Humphreys work was seasonal
in  nature and discounted his weekly wage according to  the  fact
that Humphrey would probably work only about six months per year.41
Circle  De  contends that using Department of Labor average  wage
data  to  set a PTD compensation rate is contrary to our decision
in Wrangell Forest Products v. Alderson.42
          In Wrangell Forest Products we held that when using the
alternative method of calculating gross weekly earnings the board
should focus[] . . . on the particular employee rather than on  a
hypothetical employee similarly circumstanced.43  Circle De argues
that,   by  ignoring  Humphreys  individual  labor  and  earnings
situation   and  relying  on  average  wage  rates,   the   board
erroneously  focused  on a hypothetical employee.   However,  the
boards  decision clearly indicates the consideration of  numerous
facts  specific to Humphreys situation and their possible  effect
on  his  earnings level.  While determining his PTD  compensation
rate,  the  board  took  into account  the  nature  of  Humphreys
employment,  the  hours  and months  out  of  the  year  that  he
typically  worked,  his  work  history,  and  the  job  offer  in
          management he received prior to his injury.44  The use of a
statistical   average   wage  rate,  in  conjunction   with   the
consideration  of  Humphreys past work  history  and  his  future
earnings potential, does not mean that the board failed to engage
in  the  kind  of  personalized assessment that  we  required  in
Wrangell Forest Products.
          Circle  De also objects to the use of the average  wage
rate for an experienced tree faller ($21.50),  rather than for an
equipment  operator ($14.00), the job it says Humphrey held  with
Circle  De at the time of his injury.  The board awarded Humphrey
PTD  compensation  using  the  1998  average  wage  rate  for  an
experienced  tree faller because it concluded that  such  a  rate
more accurately predicted Humphreys losses due to his injury  and
resulting disability.45  The board pointed to Humphreys testimony
that although he was working as an equipment operator at the time
of  his  injury, he had experience as a tree faller and preferred
work  as  a  tree faller.46  Because a PTD award is  designed  to
compensate a worker for his or her economic losses resulting from
permanent  exclusion from the work force, consideration  of  ones
long-term  employment prospects in light of prior employment  can
be  a  reliable method for predicting the likely losses following
an employees injury.
          We  conclude that the boards decision to use  the  tree
faller  wage  rate  in  this  case is  supported  by  substantial
evidence.  Humphrey testified that he had previously worked as  a
tree  faller, and his rehabilitation reports suggest  that  at  a
minimum  he was employed primarily as a tree faller for  each  of
the  five years from 1987 to 1991.  He also testified that he  in
fact  preferred such employment.  And, as discussed in  the  next
section,  the  boards factual findings support  the  notion  that
Humphreys   earning  patterns  were  stabilizing  and  improving.
Additionally,  the  board used the average  wage  rate  for  1998
because that was near the time at which the employee was declared
permanently   and   totally  disabled.47   These   findings,   in
conjunction  with  Humphreys past employment as  a  tree  faller,
adequately support the boards calculation of PTD benefits.
          2.   The  boards  findings regarding Humphreys  earning
               patterns are supported by substantial evidence.
               
          Circle De vigorously challenges the boards finding that
Humphreys  earnings pattern was changing in a favorable direction
at the time of his injury.  First, Circle De questions the boards
reliance  on Humphreys testimony that he hoped his job at  Circle
De  would  be  permanent  because Circle De  logged  through  the
winter,   and  argues  that  such  subjective  hopes  should   be
disregarded.48  We reject this absolutist position.  In Justice v.
RHM  Aero  Logging,  Inc., we stated that  [a]n  injured  workers
intentions at the time of injury regarding future employment  are
relevant  to  determining the reliability of the  employees  past
work  history  as a predictor of future lost income.49   Thus  we
conclude  that  Humphreys testimony regarding his intentions  and
preferences,  to  which  the  board  gave  credence,  cannot   be
considered  irrelevant in determining his losses  resulting  from
the injury.
          Circle  De also challenges the value of other  findings
used  by  the board to support its earnings pattern finding   for
example, that Humphrey was offered a job in management elsewhere,
but  turned it down; that prior to his 1993 hire he had performed
subcontractor work for Circle De in 1992; that the amount of  his
earnings in 1993 demonstrated a more consistent work pattern than
in  the  previous two years; and that he had purchased a  sawmill
and  considered  using it to earn income.50  The  board  did  not
explain  the relative weight it gave to each of these independent
factors in reaching its conclusion.  But while it may be that  no
one  of these factors independently proves that his earnings were
improving,  we are satisfied that these factors, when  considered
in the aggregate, point toward an improving earnings potential at
the  time  of injury and that these factors outweigh any evidence
presented pointing in the opposite direction.
          3.   Humphreys PTD compensation rate did not exceed the
               statutory maximum.
               
          When  the  board  applies  the alternative  calculation
under  former  AS  23.30.220(a)(2), the rate of  compensation  is
subject  to  a  ceiling amount  it may not exceed  the  employees
gross  weekly earnings at the time of injury.  The parties  agree
that  Humphrey  earned  a  total of  $7,752.50  during  his  1993
employment with Circle De, but because they cannot agree  on  the
number  of weeks that Humphrey worked at Circle De prior  to  his
injury, the parties dispute the amount of his weekly earnings  at
the  time of disability.  Circle De contends that Humphreys  term
of  employment  was thirteen weeks, resulting in a  gross  weekly
wage  at the time of injury ($310.10) less than the awarded  rate
of  compensation ($351).51  In contrast, Humphrey argues that  he
actually  worked at Circle De for only nine weeks and  four  days
before his injury, which would lead to a gross weekly wage at the
time  of  injury  ($421.18) well above his  awarded  compensation
rate.   The board agreed with Humphreys characterization  of  the
facts,52   and  this  finding is also  supported  by  substantial
evidence.
          Though  Humphrey  was formally hired  on  February  22,
1993,  he  argued  that  he did not actually  begin  working  for
approximately  one  month.53  After reviewing the  evidence,  the
board  concluded  that, though Humphrey had agreed  to  work  for
Circle De on February 22, he did not begin working, or earning  a
wage  until nine weeks, four days prior to his injury.54  It also
noted  that  the employer was not obligated to pay  the  employee
wages  until  the  season could begin and that to  calculate  his
earnings  on  time periods that he did not work  [is]  inherently
unfair.55   In light of our deference to the boards  findings  of
fact  and determinations of witness credibility,56 we uphold  the
boards   determination  of  the  length  of  actual   employment.
Accordingly,  Humphreys PTD compensation rate  is  not  excessive
under former AS 23.30.220(a)(2).  In sum, we affirm Humphreys PTD
benefits award.
     B.   TTD Compensation Rate
          Circle  De  next  challenges  the  boards  setting   of
Humphreys TTD weekly compensation rate at $236.55.  Under  former
          AS 23.30.220, the calculation of an employees spendable weekly
wage  for  PTD  benefits  and for TTD  benefits  is  the  same.57
Following  the  logic  of  Humphrey II, as  explained  above,  in
Humphrey  III  the board held that former AS 23.30.220(a)(1)  was
not  an  accurate predictor of Humphreys losses,  so  it  instead
considered  the nature of the employees work and work history  in
computing Humphreys benefit rate under former AS 23.30.220(a)(2).58
But  the  board  also departed from the Humphrey  II  calculation
because it found it inappropriate to apply the 1998 wage rates to
a  period  of  temporary disability that spanned from  1993  [to]
1998.59   Instead, the board calculated Humphreys weekly earnings
by  multiplying  his hourly wage at the time of  injury  ($14.00)
with  his estimated yearly work period (fifty hours per week  and
six  months per year), resulting in gross weekly earnings of $364
and a weekly TTD compensation rate of $236.55.60  In Humphrey IV,
the  board  also  applied  this  rate  in  calculating  Humphreys
retroactive PPI benefits owed by Circle De.61
          Though  the TTD rate is lower than the PTD rate, Circle
De   challenges  the  boards  TTD  calculation  and  the   boards
underlying  findings that Humphrey would have worked fifty  hours
per week and six months per year between 1993 and 1998.62  Circle
De  posits that Humphreys 1993 earnings with Circle De support  a
forty-hour  work  week,  not a fifty-hour  work  week.   However,
Circle Des calculations in this regard are deficient because they
are based on its claimed employment period of thirteen weeks, and
not the actual employment period, as determined by the board,  of
nine  weeks  and four days.63  Having already upheld  the  fifty-
hour/six-month figures under the boards PTD calculation  and  the
nine-plus week employment period, as above, we now conclude  that
the  use of these employment estimations for the TTD calculation,
based on Humphreys work history and future earning potential,  is
supported by substantial evidence.
     C.   The Award of Interest on Humphreys TTD/PPI Benefits
          Circle  De  challenges  three  awards  of  interest  to
Humphrey  by the board.  First, after retrospectively  increasing
Humphreys  TTD  benefits compensation rate, in Humphrey  III  the
board  awarded interest on all late-paid TTD benefits.64  Second,
the  board  did the same in Humphrey IV with respect to late-paid
PPI  benefits.65  Third, in Humphrey IV the board concluded  that
Circle  De  was in default for its interest payments on  the  TTD
benefits under Humphrey III, and accordingly awarded interest  on
the defaulted interest payments.66
          Circle  De argues that the board erred in retroactively
accruing  interest  from  the date that Humphrey  was  originally
entitled  to  TTD  or PPI benefits, on May 29, 1993.   Circle  De
contends  that  the due date for payment for the board-calculated
benefits was not when Humphrey was initially entitled to  receive
the  benefits,  but  rather  after the  boards  TTD  decision  in
Humphrey  III  and PPI decision in Humphrey IV.  In other  words,
Circle De argues that any interest on late-paid benefits does not
begin  to accrue until after the post-order due date has  passed.
We therefore consider when these benefit payments were due, which
will  determine the date on which interest for Humphrey began  to
accrue.
          An  employee  is  entitled to interest on  compensation
that  is not paid when due.67  Our cases and the purposes  behind
interest  awards support the boards decision to make the payments
due  retroactively to the date Humphrey was entitled to  TTD  and
PPI  benefits, May 29, 1993.  We have recognized that  awards  of
prejudgment interest in workers compensation cases are a  way  to
recognize  the  time value of money, and they  give  a  necessary
incentive  to  employers  to  .  .  .  release  money   due.   68
Accordingly, we have held that a workers compensation award shall
accrue  lawful interest . . . from the date it should  have  been
paid.69   We  later reiterated the general principle  in  Houston
Contracting, Inc. v. Phillips70 that interest should  be  awarded
from the date that an employee was originally entitled to receive
such  benefits.   There we rejected the assertion  that  interest
should  only  accrue after the employer received  notice  of  the
employees  claim  for increased benefits.71  Similarly,  we  have
rejected  an  employers argument that prejudgment interest  could
not  be awarded on medical payments because medical benefits have
no due date until the board has made a specific order of payment.72
          Circle  De  attempts to distinguish the above  line  of
authority  by  stressing the fact that the TTD and  PPI  benefits
were retroactively increased under the alternative calculation of
former  AS 23.30.220(a)(2).  Because this alternative calculation
grants the board discretion in setting the employees gross weekly
earnings,   Circle  De  complains  that  it  was   incapable   of
independently determining the compensation rate at  the  time  of
Humphreys  entitlement  the adjusted compensation rate could  not
be  determined  by  the employer, only the  Board  can  calculate
compensation under AS 23.30.220(a)(2).  We do not agree that  the
boards decision to use the alternative calculation  which is only
done  upon  a  showing  that  the  normal  calculation  fails  to
accurately predict the employees losses  should reduce or  divest
the employees right to obtain interest on his late-paid benefits.
Although  awards of interest are intended to encourage  employers
to  make  timely payments of compensation benefits, they are  not
imposed to punish employers; rather, their primary function is to
fairly  compensate an injured worker for the time value of  money
lost  over the period of time in which he did not have access  to
money  that  was owed to him.  Moreover, even Circle De  concedes
that  it remains able to estimate an employees compensation  rate
under  former  AS  23.30.220(a)(2), and  to  distribute  benefits
accordingly.  The risk of erroneous estimation on the part of the
employer  does not demand a departure from the ordinary  interest
rule.
          We  conclude  that the board did not  err  in  awarding
interest  on late-paid TTD and PPI benefits, where the  due  date
for  these  payments was set on May 29, 1993, the date  on  which
Humphrey was originally entitled to these benefits.73
     D.   The  Award of Attorneys Fees in Excess of the Statutory
          Minimum
          Lastly,  Circle  De  argues that  the  board  erred  in
granting  Humphrey  attorneys fees in  excess  of  the  statutory
minimum  without the prior filing of a fee affidavit by Humphreys
attorney.  Attorneys fees for a workers compensation claimant are
          governed by AS 23.30.145.  Subsection (a) of this statute74
establishes a statutory minimum for attorneys fees: fees may  not
be   less  than  twenty-five  percent  on  the  first  $1,000  of
compensation or part of the first $1,000 of compensation, and ten
percent  of  all  sums  in  excess  of  $1,000  of  compensation.
Subsection (b)75 provides that the board shall make an award  for
costs, including reasonable attorneys fees, if the employer fails
to   file  timely  notice  of  the  controversy,  fails  to   pay
compensation or benefits in a timely manner, or otherwise resists
payment of compensation or benefits.76
          Detailed  regulations address the application of  these
statutory  provisions.   Under 8 AAC 45.180(b),77  the  statutory
minimum set out in AS 23.30.145(a) may be departed from only upon
the  filing of an affidavit itemizing the hours expended, as well
as  the  extent  and  character of the work  performed.   If  the
request  and affidavit are not properly provided, the board  will
deny  the  request  for a fee in excess of the statutory  minimum
fee, and will award the minimum statutory fee.78  Likewise, under
8 AAC 45.180(d)(1)79 the reasonable attorneys fees discussed in AS
23.30.145(b)  will be awarded only if verified by  an  affidavit.
Failure  to file the proper affidavit is considered a  waiver  of
the  attorneys right to recover a reasonable fee in excess of the
statutory  minimum  fee under AS 23.30.145(a)  unless  the  board
determines  good cause exists to excuse the failure to  comply.80
The  procedural requirements of both subsections can be set aside
only  if manifest injustice to a party would result from a strict
application  of the regulation; they may not be set aside  merely
to  excuse  a party from failing to comply . . . or to  permit  a
party to disregard the requirements of the law.81
          In  Humphrey  IV the board departed from the  statutory
minimum  and  awarded  Humphrey  attorneys  fees  of  thirty-five
percent  of the award.82  Since the board relied on the attorneys
fees  provision of AS 23.30.145(a) in augmenting  the  fees,  the
affidavit  requirements  of 8 AAC 45.180(b)  would  apply  unless
modified or waived under 8 AAC 45.195.83
          The  superior  court  remanded the issue  of  augmented
attorneys  fees  back to the board for findings  to  support  the
boards  decision.   On remand in Humphrey VI,84  the  board  made
findings  to  set aside the procedural requirements because  they
worked a manifest injustice.  The board stated:
          The  nature,  length, and complexity  of  the
          services  provided by Attorney Reinhold  were
          such  to justify the award of attorneys  fees
          in  excess  of  the statutory minimums.   The
          employee   suffered  a  head   injury   which
          resulted  in on-going short-term memory  loss
          making      attorney-client     communication
          unusually  difficult.   This  was  a   highly
          contentious dispute with complex issues.  The
          employees     attorney    Rhonda     Reinhold
          successfully prosecuted the employees claims.
          Attorney Rhonda Reinhold was instrumental  in
          obtaining   the   benefits  sought   by   the
          employee.    She  was  also  a   strong   and
          effective advocate for her client.  The Board
          in  Humphrey IV awarded substantial  benefits
          including an increased PPI rate from $110 per
          week  to  $236.55 per week, interest  on  the
          retroactive PPI benefits, an award of penalty
          and  interest on the interest employer failed
          to  pay  as directed in Humphrey III,  and  a
          supplementary order of default  for  benefits
          ordered   by  the  board  in  Humphrey   III.
          Statutory minimum fees would be inadequate in
          proportion  to  the services  performed.   We
          find  the  fees awarded in Humphrey  IV  were
          reasonable  and necessary for the  successful
          presentation     of     employees      claim.
          Accordingly, pursuant to 8 AAC 45.195 we find
          that  failure  to  award  attorneys  fees  in
          excess  of the statutory minimum would result
          in manifest injustice.[85]
The  board reached this conclusion without the prior filing of  a
fee  affidavit by Humphreys counsel, and in Humphrey VI  Humphrey
was represented by new counsel, not the attorney who obtained the
enhanced  award.86   The superior court later upheld  the  boards
findings.
          The  boards conclusion regarding the inadequacy of  the
statutory  minimum  would unquestionably be  sustainable  if  the
enhanced fees were awarded on the basis of either a fee affidavit87
or a finding by the board of good cause excusing the filing of an
affidavit.88  In the absence of an affidavit or a finding of good
cause  by  the board, the only basis for upholding the  award  of
greater  than  the minimum statutory fees is 8  AAC  45.195,  the
boards regulation permitting procedural requirements to be waived
or  modified in cases of manifest injustice.  It appears that the
board  relied  on  this  regulation, because  it  found  manifest
injustice  would  result  were fees greater  than  the  statutory
minimum not awarded.
          In  assessing  the boards invocation of  its  power  to
waive  or  modify  board  regulations,  we  believe  that  it  is
appropriate  to apply a standard that is at least as  deferential
as  that which we apply when reviewing a trial courts decision to
relax  the Civil Rules pursuant to Civil Rule 94.  In such cases,
the  trial courts invocation of Rule 94 will only be reversed for
abuse  of  discretion.89  Here, in view of  the  boards  detailed
findings  as  to  the  extent and quality of  attorney  Reinholds
services, and in the absence of any timely claim by the appellant
that the lack of an affidavit impeded its challenge of the boards
award,90  we  are  unable to conclude that the board  abused  its
discretion  in deciding to waive the affidavit requirement  of  8
AAC  45.180(b).   Accordingly,  we  affirm  the  superior  courts
decision  to  uphold  the  boards  award  of  attorneys  fees  to
Humphrey.
V.   CONCLUSION
          Because the PTD and TTD compensation rates set  by  the
board  were properly calculated under the law and were  supported
by  substantial  evidence, we AFFIRM these  rates.   Because  the
          award of interest on Humphreys late-paid TTD and PPI benefits
began to accrue as of the date of TTD and PPI classification,  we
also AFFIRM the interest awards.  Finally, because the board  did
not  abuse  its discretion in awarding attorneys fees, we  AFFIRM
that award.


_______________________________
     1     There  are discrepancies in the record concerning  the
date  on  which  Humphreys injury occurred.  The boards  decision
states  that  the  injury  took  place  on  May  28,  1993.   The
occupational   injury  report,  which  a  Circle  De   supervisor
completed  on May 28, 1993 and submitted to the Alaska Department
of  Labor,  indicates that the injury occurred on May  27,  1993.
Workers  compensation filings and Humphreys hearing  brief  agree
that  the injury occurred on May 27.  However, the superior court
decision,  which we now review, and Circle De indicate  that  the
injury occurred on May 23, 1993.

     2    AWCB Decision No. 00-0140 (July 11, 2000).

     3     Humphrey v. Circle De Lumber Co. (Humphrey  II),  AWCB
Decision No. 00-0235 (Nov. 20, 2000).

     4    Id. at 1, 5-6.

     5    882 P.2d 922 (Alaska 1994).

     6    See infra note 32.

     7    See Humphrey II at 8.

     8    Id. at 8-9.

     9    Id. at 9-10.

     10     Humphrey v. Circle De Lumber Co. (Humphrey III), AWCB
Decision No. 01-0018, 8 (Jan. 19, 2001).

     11    Id. at 7-8.

     12    Id. at 8-9.

     13     Humphrey v. Circle De Lumber Co. (Humphrey IV),  AWCB
Decision No. 01-0140 (July 23, 2001).

     14    Id. at 4-6.

     15     The  version of AS 23.30.220(a)(2) that was in effect
provided  that  PTD and TTD weekly benefits may  not  exceed  the
employees gross weekly earnings at the time of injury.  See infra
note 32.  The board awarded weekly benefits of $350.11.  Humphrey
II  at  8.  The parties agreed that Humphrey had earned $7,752.50
in his employment with Circle De, but they disputed the length of
his employment.  Circle De argued that Humphrey had been employed
for  thirteen weeks, resulting in a gross weekly wage at the time
of  injury  of  $310.10,  less than that awarded  by  the  board;
Humphrey argued that he had worked less than ten weeks, resulting
in  a gross weekly wage rate more than that awarded by the board.
Because the board had not made a factual finding as to the length
of  Humphreys employment with Circle De, Judge Wolverton remanded
for additional findings.  See infra Part IV.A.3.

     16     Humphrey v. Circle De Lumber Co. (Humphrey  V),  AWCB
Decision No. 03-0104 (May 13, 2003).

     17     Id.  at  5.  The board noted that, although  Humphrey
signed  an employment contract on February 22, 1993, he  did  not
begin  work until approximately one month later, which led  to  a
period  of  employment  of  nine weeks,  not  thirteen  weeks  as
contended by Circle De.  Id. at 4-5.

     18    Id.

     19     Humphrey v. Circle De Lumber Co. (Humphrey VI),  AWCB
Decision No. 03-0134, 1 (June 12, 2003).

     20    Id. at 5.

     21      Appellate  Rule 202(a) provides:  An appeal  may  be
taken  to the supreme court from a final judgment entered by  the
superior  court  .  .  .  See also City & Borough  of  Juneau  v.
Thibodeau,  595 P.2d 626, 629 (Alaska 1979) ([A]  decision  of  a
superior court, acting as an intermediate appellate court,  which
reverses  the judgment of the court below or the decision  of  an
administrative agency and remands for further proceedings,  is  a
non-final order of the superior court.).

     22     Bradbury  v.  Chugach Elec. Assn, 71  P.3d  901,  905
(Alaska 2003).

     23    Robinson v. Municipality of Anchorage, 69 P.3d 489, 493
(Alaska 2003).

     24     Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d  1227,
1231 (Alaska 2003).

     25     DeNuptiis v. Unocal Corp., 63 P.3d 272,  277  (Alaska
2003).

     26    Robinson, 69 P.3d at 493.

     27    Robertson v. Am. Mech., Inc., 54 P.3d 777, 779 (Alaska
2002) (internal quotation omitted).

     28    Bradbury, 71 P.3d at 905.

     29    Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002).

     30    Id.

     31    AS 23.30.180(a).

     32    Alaska Statute 23.30.220 was revised in 1995.  See ch.
75,   9-10,  SLA 1995.  (The pre-1995 version of AS  23.30.220(a)
can  be  found  in  ch. 79,  37, SLA 1988.)  Because  the  injury
occurred  in  1993,  the board properly applied  the  statute  in
effect  during 1993; accordingly, we review the boards  decisions
under  this statute.  Thompson v. United Parcel Serv.,  975  P.2d
684,  688 (Alaska 1999) (applying version of workers compensation
statute in effect at time of injury).

     33    882 P.2d 922 (Alaska 1994).

     34    Id. at 928-29; see also Thompson, 975 P.2d at 689.

     35     Gilmore,  882  P.2d  at 924 n.1  (quoting  former  AS
23.20.220(a)(2)).

     36     Humphrey II, AWCB Decision No. 00-0235, 7  (Nov.  20,
2000).

     37    Id.  Humphreys earnings from 1983-1993 were as follows:

               Year                     Earnings
               1983                     $12,907.41
               1984                     $  6,294.20
               1985                     $13,099.63
               1986                     $21,676.69
               1987                     $14,349.41
               1988                     $15,584.33
               1989                     $19,195.28
               1990                     $20,680.98
               1991                     $  3,815.14
               1992                     $  5,773.80
               1993 (injury)  $  7,752.00
                              
Id.   at   2-4.   Humphreys  compensation  rate  was   originally
calculated  under  AS  23.30.220(a)(1)  by  dividing  his   gross
earnings  in  the  years 1991 and 1992  his two  lowest  earnings
years  by one hundred.  Id. at 2.

     38    Id. at 8.  The board considered the following evidence
in  concluding that Humphreys history of temporary  and  seasonal
jobs  may be changing into a more consistent work pattern: Circle
De  logged year round; Humphrey testified that he hoped  his  job
would  be  more than temporary; Humphreys work for Kenai  Pacific
Lumber  Company  in  1992  was actually subcontracting  work  for
Circle De; Humphrey earned almost as much during part of the year
at  Circle  De as he had earned during the entirety  of  the  two
previous years; and Humphrey had purchased a sawmill prior to his
injury and received a job offer in management elsewhere.  Id.

     39    Id.

     40    Id.

     41    Id.

     42    786 P.2d 916 (Alaska 1990).

     43    Id. at 918.

     44    Humphrey II at 7-9.

     45      Id.   at  8.   Indeed,  in  rejecting  the  ordinary
calculation  for  the compensation rate under AS  23.30.220(a)(1)
and  following  the alternative method under AS  23.30.220(a)(2),
the  board concluded that Humphreys actual past earnings were not
an accurate predictor of his losses.

     46    Id. at 4.

     47    Id. at 8.

     48    Id. at 4.

     49    42 P.3d 549, 558 (Alaska 2002).

     50    Humphrey II at 5, 8.

     51     Circle Des calculation follows the boards approach in
calculating  gross weekly wages: assuming a six-month  period  of
employment  over the course of a year and dividing his  projected
yearly income at Circle De by fifty weeks.  Humphrey II at 8.

     52     Humphrey V, AWCB Decision No. 03-0104, 4-5  (May  13,
2003).

     53    Id. at 4.

     54    Id. at 5.

     55    Id.

     56     See  Robertson v. Am. Mech., Inc., 54 P.3d  777,  779
(Alaska 2002).

     57    Alaska Statute 23.30.185 provides that compensation for
a  workers  TTD benefits shall be eighty percent of the employees
spendable weekly wage.

     58     Humphrey III, AWCB Decision No. 01-0018, 7 (Jan.  19,
2001).

     59    Id.

     60    Id. at 8.

     61     Humphrey IV, AWCB Decision No. 01-0140, 4  (July  23,
2001).

     62     Circle  De also proposes that the board  should  have
calculated  Humphreys spendable weekly wage simply by taking  his
average  wage over the past ten years.  But Circle  De  makes  no
showing  that its backward-looking approach was superior  to  the
boards  decision to use Humphreys actual hourly wage at the  time
of injury.

     63    See supra Part IV.A.3.

     64    Humphrey III at 8.

     65    Humphrey IV at 4.

     66    Id. at 5.

     67    Dougan v. Aurora Elec., Inc., 50 P.3d 789, 794 (Alaska
2002);  8  AAC  45.142 (If compensation is  not  paid  when  due,
interest must be paid at the rate established in AS 45.45.010 for
an injury that occurred before July 1, 2000 . . .).

     68    Childs v. Cooper Valley Elec. Assn, 860 P.2d 1184, 1191
(Alaska 1993) (quoting Moretz v. ONeill Investigations, 783  P.2d
764, 766 (Alaska 1989)).

     69    Land & Marine Rental Co. v. Rawls, 686 P.2d 1187, 1192
(Alaska 1984) (emphasis added).

     70    812 P.2d 598 (Alaska 1991).

     71    Id. at 602.

     72    Childs, 860 P.2d at 1191.

     73     Because we uphold the boards interest awards, we also
uphold  the  boards imposition of a penalty under AS 23.30.155(f)
against  Circle  De  for  the  defaulted  interest  payments   on
Humphreys TTD benefits.  Humphrey IV, AWCB Decision No.  01-0140,
5  (July 23, 2001).  Circle Des contention regarding this penalty
recognizes that the propriety of the penalty is contingent on the
propriety  of the award of interest.  Humphrey II, AWCB  Decision
No. 00-0235, 5-6 (Nov. 20, 2000).

     74    AS 23.30.145(a) provides:

          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   of   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.
          
     75    AS 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.
          
     76    Although we have previously noted that subsections (a)
and  (b) are construed separately (see Haile v. Pan American, 505
P.2d  838,  840 (Alaska 1973)), they are not mutually  exclusive.
Rather,  in  a controverted case, the claimant is entitled  to  a
percentage fee under subsection (a) but may seek reasonable  fees
under  subsection (b).  In prior cases we have looked  to  hourly
measures  of  reasonable  compensation,  even  though  the  cases
qualified for treatment under subsection (a).  See, e.g.,  Bailey
v.  Litwin  Corp.,  780 P.2d 1007, 1011 (Alaska 1989)  (affirming
boards  conclusion  that claimant was not  limited  to  statutory
minimum  fee calculated under subsection (a), but rather claimant
was entitled to additional reasonable compensation).

     77    This subsection provides:

          A  fee  under  AS 23.30.145(a) will  only  be
          awarded  to an attorney licensed to  practice
          law  in  this or another state.  An  attorney
          seeking  a fee from an employer for  services
          performed  on  behalf of  an  applicant  must
          apply  to the board for approval of the  fee;
          the  attorney  may submit an application  for
          adjustment  of  claim  or  a  petition.    An
          attorney  requesting a fee in excess  of  the
          statutory minimum in AS 23.30.145(a) must (1)
          file   an   affidavit  itemizing  the   hours
          expended, as well as the extent and character
          of  the  work performed, and (2) if a hearing
          is  scheduled,  file the affidavit  at  least
          three working days before the hearing on  the
          claim  for  which the services were rendered;
          at  the  hearing, the attorney may supplement
          the  affidavit by testifying about the  hours
          expended and the extent and character of  the
          work performed after the affidavit was filed.
          If  the  request  and affidavit  are  not  in
          accordance  with this subsection,  the  board
          will deny the request for a fee in excess  of
          the statutory minimum fee, and will award the
          minimum statutory fee.
          
     78    8 AAC 45.180(b).

     79    8 AAC 45.180(d) provides:

          The   board  will  award  a  fee   under   AS
          23.30.145(b) only to an attorney licensed  to
          practice  law  under  the  laws  of  this  or
          another state.
               (1)  A  request  for  a  fee  under   AS
          23.30.145(b) must be verified by an affidavit
          itemizing the hours expended as well  as  the
          extent  and  character of the work performed,
          and, if a hearing is scheduled, must be filed
          at   least  three  working  days  before  the
          hearing  on the claim for which the  services
          were  rendered; at hearing the  attorney  may
          supplement the affidavit by testifying  about
          the   hours  expended  and  the  extent   and
          character  of  the work performed  after  the
          filing  of  the  affidavit.  Failure  by  the
          attorney to file the request and affidavit in
          accordance  with this paragraph is considered
          a  waiver of the attorneys right to recover a
          reasonable  fee  in excess of  the  statutory
          minimum  fee  under  AS 23.30.145(a),  if  AS
          23.30.145(a)  is  applicable  to  the  claim,
          unless  the board determines that good  cause
          exists  to excuse the failure to comply  with
          this section.
          
     80    8 AAC 45.180(d)(1).

     81    8 AAC 45.195.

     82     Humphrey v. Circle De Lumber Co. (Humphrey IV),  AWCB
Decision No. 01-0140, 6 (July 23, 2001).

     83    8 AAC 45.195 provides:

          A  procedural requirement in this chapter may
          be  waived or modified by order of the  board
          if manifest injustice to a party would result
          from  a strict application of the regulation.
          However, a waiver may not be employed  merely
          to excuse a party from failing to comply with
          the  requirements of law or to permit a party
          to disregard the requirements of law.
          
     84    Humphrey VI, AWCB Decision No. 03-0134 (June 12, 2003).

     85    Id. at 5-6.

     86    Id. at 3.

     87    8 AAC 45.180(b).

     88    8 AAC 45.180(d)(1).

     89     City & Borough of Juneau v. Comml Union Ins. Co., 598
P.2d 957, 960 (Alaska 1979).

     90     Circle De did not raise the argument that the lack of
an  attorneys  fees affidavit prevented it from even  challenging
the award until its reply brief in this court.

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