ALASKA WORKERS' COMPENSATION BOARD



ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 115512

Juneau, Alaska 99811-5512

| |) | |

| |) | |

|MICHELE M. SZEPANSKI, |) | |

|Employee, |) |FINAL DECISION AND ORDER |

|Applicant, |) | |

| |) |AWCB Case No. 200423775 |

|v. |) | |

| |) |AWCB Decision No. 07-0004 |

|UNIVERSITY OF ALASKA FAIRBANKS, |) | |

|(Self-insured) Employer, |) |Filed with AWCB Fairbanks, Alaska |

|Defendant. |) |on January 5th, 2007 |

| |) | |

| |) | |

We heard the employee’s claim for medical benefits, permanent partial impairment (“PPI”) benefits, penalties, interest, attorney fees, and legal costs, in Fairbanks, Alaska on December 21, 2006. Attorney Michael Jensen represented the employee. Attorney Dennis Cook represented the employer. We kept the record open to receive a supplemental affidavit of attorney fees, and any objections to fees, and closed the record when we next met, January 4, 2007.

ISSUES

(1) Is the employee’s claim barred under AS 23.30.100?

(2) Is the employee entitled to medical benefits, under AS 23.30.095(a)?

(3) Is the employee entitled to an award of PPI benefits, under AS 23.30.190?

(4) Is the employee entitled to penalties, under AS 23.30.155(e)?

(5) Is the employee entitled to interest, under AS 23.30.155(p)?

(6) Is the employee entitled to attorney fees and legal costs, under AS 23.30.145?

CASE HISTORY AND SUMMARY OF THE RELEVANT EVIDENCE

The employee crushed the tip of her right ring finger, near the right side base of the fingernail, in a bathroom stall door on August 12, 2004, while working for the employer as a research assistant in conjunction with her PhD program in wildlife management.[1] At the hearing on December 21, 2006, the employee testified that the injury was painful, but the skin was not breached and the bone did not appear broken, so she believed no medical attention would be needed and she continued her work.[2] She testified she expected a blood blister would develop beneath the nail, and the nail would in all likelihood fall off.[3] She testified the right side of the nail turned purple near the cuticle within a couple of weeks, and the discoloration gradually progressed toward the tip of the nail.[4] The skin on the right edge of the nail began to callous and “scale.” The employee was engaged in intermittent fieldwork with moose calves, alternating with data analysis, administrative and logistic work at the university.[5] She testified she trimmed the scaling skin and kept the nail clean and bandaged during her late summer and autumn 2004 fieldwork, but the tissue to the right of the nail gradually swelled, and eventually discolored.[6] She testified that she had been extremely busy with her fieldwork and research, but by December 2004 she was concerned that the finger would not heal. She attempted to schedule an appointment at the employer’s student health clinic, where she was entitled to services, but the clinic was closed for the holidays, and the first appointment available was on January 12, 2005.[7]

On January 12, 2005, Gayle Grubich, ANP, at the university student health clinic, diagnosed a pyogenic granuloma infection and prescribed the antibiotic Dicloxacillin.[8] The employee returned to the employer’s clinic on January 20, 2005, where B. J. Aldrich, M.D., also diagnosed pyogenic granuloma, and again directed her to take the Dicloxacillin.[9] The finger did not respond to the antibiotics and on February 14, 2005, Dr. Aldrich referred the employee to dermatologist Roger Thurmond, M.D.[10] On February 21, 2004, Dr. Thurmond confirmed the diagnosis of granuloma.[11] Dr. Thurmond administered a steroid injection to accelerate the healing, and offered referral for surgical excision, if necessary.[12] The inflamed tissue did not respond to the steroid treatment.

At the hearing, the employee testified she decided to have the tissue surgically excised in order to allow it to heal cleanly, so that she could continue her fieldwork in March 2005. She testified that either Dr. Aldrich or another University staff person suggested that the condition should be handled as a work-related injury, and she completed a Report of Occupational Injury or Illness on February 22, 2005.[13] On March 2, 2005, Dr. Aldrich wrote a letter to the employer’s claims adjuster, indicating her opinion that the employee’s granuloma arose from the work injury to her finger.[14] The employer accepted liability for the injury and provided medical benefits.

Dr. Thurmond referred the employee to plastic surgeon Richard Hutchinson, M.D., who also diagnosed pyogenic granuloma, and removed the lesion on March 15, 2005.[15] However, the biopsy of the excised tissue revealed malignant subungual[16] melanoma.[17] On March 18, 2005, Dr. Hutchinson recommended amputation.[18] On March 21, 2005, oncologist W. William Andrew Cox, M.D., examined the employee, consulted with another oncologist at the Mayo Clinic, and recommended immediate amputation.[19] The employee went to the Mayo Clinic in Minnesota, and on March 30, 2005, Steven Moran, M.D., amputated the distal end of finger at the interphalangeal joint.[20] Biopsies of lymph nodes at the employee’s right elbow and armpit were negative.[21] Svetomir Markovic, M.D., Coordinator of the Melanoma Research Program of the Mayo Clinic began providing oncological care.[22]

In an April 25, 2005 letter to the employer’s claims adjuster, Dr. Aldrich indicated that many published medical reports show a link between trauma and melanoma.[23] Dr. Aldrich suggested this information should be considered in processing the employee’s claim.[24]

In a May 23, 2005 letter, Dr. Thurmond indicated that the employee’s malignant lesion is of a type which is relatively uncommon, but have been known to follow trauma.[25] Dr Thurmond indicated that, based on the history of the employee’s crush injury to her finger, and based on multiple sources in medical literature, that her lesion probably did result from her work injury.[26]

On June 17, 2005, the employer issued a Controversion Notice, denying benefits for the treatment of the employee’s melanoma, asserting no medical records linked the employee’s melanoma to her work.[27] The employee filed a Workers’ Compensation Claim on July 7, 2005, requesting reinstatement of medical benefits and related transportation costs, penalties, a finding of an unfair and frivolous controversion, and a second independent medical evaluation (“SIME”).[28]

At the request of the employer,[29] Hilliard Seigler, M.D., of Duke University Medical Center, reviewed the employee’s medical records.[30] In his July 29, 2005 report, and August 11, 2005 letter, Dr. Seigler indicated he did not believe the employee’s work injury caused the subungual melanoma, but that it was a pre-existing unrelated condition.[31] He felt the work trauma probably delayed an accurate diagnosis of the cancer.[32] The employer filed a second Controversion Notice[33] and an Answer, dated August 5, 2005, denying medical benefits for the treatment of the employee’s subungual melanoma and denying the request for an SIME, based on the report of Dr. Seigler.[34]

On December 21, 2005, the biopsy of a nodule on the employee’s arm revealed metastatic malignant melanoma.[35] On December 27, 2005, Dr. Markovic noted metastasis to the employee’s lungs, and diagnosed stage IV melanoma.[36] The employee subsequently underwent extensive courses of chemotherapy, radiation therapy, and surgery.[37]

In a letter dated February 24, 2006, Dr. Hutchinson indicated that, in his opinion, the development and progression of the employee’s melanoma was related to the traumatic injury to her finger.[38] He indicated the trauma complicated the evaluation of her condition, and delayed the accurate diagnosis of the developing cancer.[39] He indicated the trauma hastened and accentuated the development of the malignancy.[40] He also gave the opinion that the medical literature supports blunt trauma as a factor in the etiology of malignant melanoma.[41]

In a letter on April 17, 2006, Dr. Moran indicated that, in his opinion, the employee’s condition is directly related to her finger injury, which may have aggravated and worsened the manifestation of the subungual melanoma.[42] He felt the direct correlation of her finger injury to the development of the melanoma is highly suggestive of acute exacerbation of the condition.[43] He noted her case is not atypical for melanoma.[44] He also noted that the medical literature shows that trauma may play a role in the pathenogenesis of melanoma.[45]

The employee retained counsel, and on April 18, 2006, she amended her claim to include requests for PPI benefits, attorney fees, and costs.[46] The employer denied the benefits claimed for the melanoma in Controversion Notices dated May 4, 2006, May 19, 2006, and June 21, 2006.[47] The employer also denied benefits related to the melanoma, and denied the SIME request, in Answers dated May 3, 2006, and May 18, 2006.[48] In a prehearing conference on August 14, 2006, the employee’s claims were set for hearing on December 21, 2006.[49]

On May 16, 2006, orthopedic surgeon J. Michael James, M.D., evaluated the employee, noted she had completed a course of radiation therapy, and based on her documented metastatic malignant melanoma, he indicated she should be regarded as permanently totally disabled.[50] Although he felt this case presented an unusual causal relationship, his opinion was that the medical literature and history of this case indicated that the subungual tumor either began, or was aggravated by, her work injury.[51] In an addendum on November 3, 2006, Dr. James rated the employee’s right upper extremity and lung conditions with a 58 percent whole-person permanent partial impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”), 5th Edition.[52]

The parties deposed Dr. Markovic on November 29, 2006. In his deposition, Dr. Markovic testified the employee is under his care, undergoing treatment with a combination of two cytotoxic agents.[53] He testified the employee’s melanoma has widely disseminated, and her prognosis is very poor.[54] He testified that patients have a median survival rate of nine months from the point of diagnosis of stage IV melanoma,[55] and but for chemotherapy, the employee would not have survived to date.[56] He testified she is now participating in a clinical trial of an experimental chemotherapy, sponsored by the National Cancer Institute, which has so far been successful, shrinking her tumors.[57] However, the employee is beginning to show side effects from the cytotoxin medications, which may preclude her from continuing to participate in the study.[58]

In his deposition, Dr. Markovic testified concerning the medical studies and research on this issue. He noted that the medical literature supports a relationship between trauma and the development of subungual melanoma,[59] but that the relationship has never been mechanistically proven.[60] He believed the direct correlation of the employee’s finger trauma with the full blown development of the melanoma, highly suggests the trauma acutely worsened the melanoma.[61] He indicated he believes she had latent cancer cells, and that the trauma may have made them active.[62] He agreed with the opinions of Drs. Moran, Hutchinson, and Thurmond concerning the causation of the employee’s subungual melanoma.[63] Dr. Markovic testified he believes the delay in diagnosis and treatment of the subungual melanoma, as a result of the trauma, was a substantial factor in causing the tumor to grow to 3.5 mm on the Breslow measurement, the point of possibly metastasizing.[64]

The parties deposed Dr. Seigler on October 9, 2006. In his deposition, Dr. Seigler testified that, in his opinion, the employee’s injury did not cause the melanoma,[65] and her condition would be at its present stage whether or not she had suffered her work injury.[66] He testified the employee’s melanoma started as a lesion before the injury of August 2004.[67] He testified concerning the medical studies in the area, noting that in his research, about one third of all subungual melanomas are reported in conjunction with trauma,[68] but that some studies have reported antecedent trauma in more than 40 percent of subungual melanoma cases.[69] However, he believes those associations may be attributable to patients’ psychological tendency to find an explanation for their condition.[70] He testified that, to the degree of reasonable medical certainty, he could say that a causal link between trauma and melanoma has not been proved.[71] He also testified the employee’s work injury was a factor in delaying the diagnosis and treatment of her melanoma, and that this delay created an increased probability of the melanoma metastasizing.[72] He indicated that some studies have found that tissue is more receptive to tumor cells when affected by the inflammatory processes following trauma, but that has not been proven.[73]

In the hearing on December 21, 2006, Dr. Thurmond testified concerning his treatment of the employee’s lesion. He testified the subungual melanoma mimicked a granuloma, and this situation is very common. He testified that the peer-reviewed medical literature supports a causal link between trauma and melanomas. Although these articles and studies do not definitively prove causation, they do provide much evidence of the link. He testified that to a reasonable degree of medical certainty, the employee’s crush injury resulted in the development of her subungual melanoma.

In the hearing, Dr. Aldrich testified concerning the course of treatment of the employee. She testified that her opinion about the links between trauma and the employee’s malignant condition is based on her review of medical literature, not on specialized training or specialized experience. However, she testified there is copious evidence in the medical literature of links between trauma and melanomas.

In the hearing, the employee testified that injuries like bumps, bruises, and cuts have been “par for the course” in the type of field work she does with large mammals. She would not normally report something like that unless it was significant. She testified she does not think she told her supervisors about smashing her finger until she had to take time off work to see the physicians. She testified that her student health insurance policy provided very little coverage for her condition, approximately $1,500.00. She testified she cashed out her Supplemental Benefit System retirement fund from her prior employment as a state biologist, and has been able to pay for as much of her medical care as possible.[74] However, she has largely exhausted her resources. She is living in Minnesota with her parents, who fortunately are reasonably near the Mayo clinic. She is able to participate in the clinical trial because it is experimental and free. She is on chemotherapy drugs for three weeks, and off one week. The regimen has been successful in shrinking her tumors. She testified the suppression of her production of white blood cells has been successfully countered by a course of supplementary injections, but she has begun to experience neuropathy in her feet, a side effect that could require her removal from the study. She testified that, although she has not been able to return to the fieldwork, she has been able to continue to analyze data from the research, and so has been able to continue her work for the employer. She testified she intends to complete her research.

In the hearing, Bruce Davies testified he is an employee of the National Park Service, and met the employee when she was performing moose calf research at Lake Clark in the spring of 2005. He testified that at that time, the employee had recently been diagnosed with melanoma, and she sought him out to ask questions about the condition when she found out he had lost his wife to subungual melanoma. He testified his wife developed the melanoma after crushing her finger in a drawer. In the hearing, Mr. Davis testified concerning the course and development of his wife’s condition, and its parallels with the employee’s situation.

In the hearing, Caroline Brown testified she is an employee of the Alaska Department of Fish and Game, working in subsistence, and that she became friends with the employee when the employee was an assistant area biologist in the McGrath area. She testified concerning the appearance of the employee’s finger during the fall of 2004, and concerning the employee’s explanation of the history of the injury. Her testimony was consistent with that of the employee.

In the hearing, Yvonne Boyce testified she is the Senior Claims Adjuster for the employer. She testified the employer provides orientation for its employees, stressing the importance of reporting injuries. She testified that, if she had known at an earlier date that the employee’s finger was not healing, she would have sent her to a physician sooner. She testified the late notice of the employee’s injury deprived the employer of an opportunity for early diagnosis and treatment.

At the hearing, and in her brief, the employee argued that all the physicians who have treated her agree that her work injury played a role in either the development of the melanoma, its acceleration, or in the delay of diagnosis and treatment. She asserted she has no significant family history of cancer, she is young (37 years at injury), without known risk factors. She argued the opinions of her treating physicians raise the presumption of compensability. She argued Dr. Seigler could not rule out the possibility of the trauma causing or aggravating the condition. She argued that even Dr. Seigler felt the delay in her treatment from the misdiagnosis of her injury affects her potential survival rate. She argued that, even if the misdiagnosis only delayed her treatment, the metastasis resulting from that delay would be compensable under the rational articulated by the Alaska Supreme Court in its decision in Ribar v. Earthmovers.[75]

She asserted she reported the injury to the employer the day after the dermatological specialist, Dr. Thurnond, diagnosed her condition. At that time she realized she would need minor surgery to continue her fieldwork. She argued this should be interpreted as reasonable and timely notice. She noted the employer accepted her notice and paid benefits until she was diagnosed with cancer. She argued she is entitled to medical care related to her melanoma, and related transportation. She requested that we reimburse her the retirement funds she had to spend and the funds she had to borrow. She argued Dr. James rated her appropriately under the AMA Guides, and that she is entitled to PPI benefits. If Dr. Seiglers’ opinion does not rebut the presumption of compensability of her medical treatment, she argued penalties are due on the denied benefits. She requested interest on benefits due, as well as attorney fees and legal costs.

At the hearing, and in its brief, the employer argued the employee failed to give timely notice of her injury, as required by AS 23.30.100, and unreasonably delayed treatment of her finger injury. Citing the Alaska Supreme Court opinion in Tinker v. VECO, Inc.,[76] it argued it has been severely prejudiced by this delay, and her claim should be barred by AS 23.30.100(a). It argues that in no event should the employer be liable for harm resulting from her failure to either report the injury or seek treatment. It notes that, even if we forgive the employee’s late reporting, under AS 23.30.100(d), the employee loses the presumption of compensability. It argued that even the employee’s melanoma expert could only say the trauma was “possibly” a cause of the melanoma. It argued that based on the opinion of the melanoma expert Dr. Seigler, the preponderance of the evidence indicates the employee’s finger injury played no role in the development of her melanoma. It argued the employee’s claims must be dismissed.

The employee filed three Affidavits of Attorney Fees and Costs,[77] itemizing 103.7 hours of attorney time and 124.2 hours of paralegal assistant time. Her Affidavits claimed a total of $30,591.50 in attorney fees; $15,525.00 in paralegal costs; and $6,385.19 in other itemized legal costs.[78] In the Final Affidavit of Attorney Fees and Costs, dated December 27, 2006, the employee requested that the actual fees be awarded as an advance on the statutory minimum attorney fees due under AS 23.30.145(a) on all indemnity and medical benefits awarded.[79]

The employer requested to keep the record open until January 4, 2007, to allow it to review and respond to the fee affidavits, if necessary. We granted that request orally at the hearing. Although the evidentiary record related to the merits of the employee’s claim was complete at the conclusion of the hearing, and we have been able to review that evidence, we held the record open until the requested date for any objection, correction, or response to the fees and costs itemized. The employer filed no response to the affidavits of fees and costs by the close of work on January 4, 2006. Because the record reflected that the employee’s medical condition was precarious, and that her present course of treatment was uncertain to continue, we exercised our discretion[80] to meet immediately to decide the case following the closing of the record on January 4, 2007.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. DOES AS 23.30.100 BAR THE EMPLOYEE'S CLAIM?

AS 23.30.100 provides, in part:

(a) Notice of an injury or death in respect to which compensation is payable under this chapter shall be given within 30 days after the date of such injury or death to the board and to the employer. . . .

(b) The notice must be in writing, contain the name and address of the employee and a statement of the time, place, nature, and cause of the injury or death, and be signed by the employee or by a person on behalf of the employee. . . .

The statutory exceptions for the 30-day notice requirement are set forth in AS 23.30.100(d), which provides:

(d) Failure to give notice does not bar a claim under this chapter

(1) if the employer, an agent of the employer in charge of the business in the place where the injury occurred, or the carrier had knowledge of the injury or death and the board determines that the employer or carrier has not been prejudiced by failure to give notice;

(2) if the board excuses the failure on the ground that for some satisfactory reason notice could not be given;

(3) unless objection to the failure is raised before the board at the first hearing of a claim for compensation in respect to the injury or death.

In Cogger v. Anchor House,[81] the Alaska Supreme Court held:

An employee must provide formal written notice to his or her employer within thirty days of an injury in order to be eligible for workers' compensation. AS 23.30.100. For reasons of fairness and based on the general excuse in AS 23.30.100(d)(2), this court has read a "reasonableness" standard, analogous to the "discovery rule" for statutes of limitations, into the statute. Alaska State House. Auth. v. Sullivan, 518 P.2d 759, 761 (Alaska 1974). Under this standard, the thirty-day period begins when "by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained." Id. at 761 (quoting 3 Arthur Larson, Workmen's Compensation, Sec. 78.41, at 60 (1971)). . . . Under Sullivan, the thirty-day period begins to run when the worker could reasonably discover an injury's compensability. 518 P.2d at 761. The exact date when an employee could reasonably discover compensability is often difficult to determine, and missing the short thirty-day limitation period bars a claim absolutely. For reasons of clarity and fairness, we hold that the thirty-day period can begin no earlier than when a compensable event first occurs. However, it is not necessary that a claimant fully diagnose his or her injury for the thirty-day period to begin. (Footnote omitted). [82]

The employee was clear in her testimony that she did not initially consider the injury serious, but continued with her work, assuming the problem would resolve without the need for medical attention. We find the employee completely credible, and an accurate historian.[83] The employee testified she completed her Report of Injury when the dermatologist indicated to her that minor surgery might be necessary, when the employee believed it would be necessary to enable her to continue her work in the field, and when one of the employer’s clinic staff suggested the employee should consider the condition work-related. We note the employee appeared to fully disclose the mechanism of injury to the employer’s agents, its clinic’s staff, from the time of her initial contact. We find the employee gave actual notice of her injury to the employer’s staff at the time of her first investigation into possible treatment of the condition.

We find the employee’s first contact with any medical personnel other than the employer’s staff was the February 21, 2005 visit to Dr. Thurmond. We find Dr. Thurmond’s surgical recommendation, and the employee’s interpretation of that in terms of her ability to engage in her work, was when she first realized that the condition might potentially trigger significant compensation under the Alaska Workers’ Compensation Act. We find the employee’s actions were reasonable.[84] Based on the Court’s rationale in Cogger, we find the 30 day time limit of AS 23.30.100(a) began to run on that date, February 21, 2005. We find the Report of Occupational Injury or Illness was completed and submitted well within the time limit. We conclude her claim is not barred under AS 23.30.100(a).

As noted above, we find the employee gave timely notice under AS 23.30.100(a). Nevertheless, even if the employee had earlier completed a Report of Occupational Injury or Illness in August of 2004, indicating no apparent significant injury to the employee’s ring finger, we do not find it credible that this report form would have triggered the aggressive and continuing type of medical investigation and monitoring by the employer that would have been necessary to diagnose and treat the malignancy before the employee’s own concerns resulted in treatment. Additionally, based on the facts of this case, we cannot find that a report of that sort in August 2004 would have produced a significant difference in the employer’s investigation for litigation purposes. Consequently, we cannot find credible the employer’s assertion that it suffered significant prejudice.[85]

We additionally note, that even if the employee had not given timely notice of the injury under AS 23.30.100(a), considering the totality of the circumstances (especially the apparent insignificance and initial apparent non-compensability of the injury) we would excuse the employee for a delayed notice under AS 23.30.100(d).

II. MEDICAL BENEFITS

The Alaska Workers' Compensation Act at AS 23.30.095(a) provides, in part: “The employer shall furnish medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus for the period which the nature of the injury or the process of recovery requires....” At AS 23.30.120 the Act provides a presumption of compensability for an employee's injuries. AS 23.30.120(a) reads, in part: "In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that (1) the claim comes within the provisions of this chapter. . . ." The presumption attaches if the employee makes a minimal showing of a preliminary link between the claimed treatment or disability benefit and employment.[86] This presumption continues during the course of recovery from the injury and disability.[87] Also, a substantial aggravation of an otherwise unrelated condition imposes full liability on the employer at the time of the most recent injury that bears a causal relation to the disability.[88] The Alaska Supreme Court held "the text of AS 23.30.120(a)(1) indicates that the presumption of compensability is applicable to any claim for compensation under the workers' compensation statute."[89] The Court also held the presumption of compensability under AS 23.30.120(a) specifically applies to claims for medical benefits.[90] If complications from the injury or treatment occur, the subsequent treatment would still be compensable, and the employer would still be liable for continuing medical benefits under AS 23.30.095(a).[91] Treatment must be reasonable and necessary to be payable under AS 23.30.095(a).[92]

In claims based on highly technical medical considerations, medical evidence is often necessary in order to make that connection.[93] In less complex cases, lay evidence may be sufficiently probative to establish causation.[94] In the instant case, the employee developed a rare cancer in conjunction with a trauma to her finger. The record in this case is voluminous, filling a banker’s box. We find the record reflects that the etiology of subungual melanoma is not fully determined in medical science. We find the record demonstrates a high correlation of trauma and metastatic subungual melanoma, but that scientific investigation has not yet been able to definitively prove, or rule out, a clear causal relationship.[95] We find this to be a highly technical area of medicine, and we conclude medical evidence is necessary to raise the presumption of compensability.

We find that the medical records and opinions of Drs. Aldrich, Thurmond, Hutchinson, Moran, James, and Markovic all provide some evidence linking the employee’s finger trauma, either as a substantial cause of the subungual melanoma, or as a substantially aggravating or accelerating factor in the melanoma’s development. We find this is sufficient medical evidence to raise the presumption of compensability for treatment of the employee’s melanoma.[96]

There are two methods of overcoming the presumption of compensability: (1) presenting affirmative evidence showing that the treatment is not related to a work-related injury; or (2) eliminating all reasonable possibilities that the treatment is reasonable and necessary for a work-related condition.[97] The same standards used to determine whether medical evidence is necessary to establish the preliminary link apply to determine whether medical evidence is necessary to overcome the presumption.[98] "Since the presumption shifts only the burden of production and not the burden of persuasion, the evidence tending to rebut the presumption should be examined by itself."[99] Based on his review of the employee’s medical records, his knowledge of the relevant medical literature, and his experience, Dr. Seigler believed the employee’s melanoma pre-existed her work injury, and was not affected by that injury. We find Dr. Seigler’s opinion, when viewed in isolation, eliminates work as a possible cause of the employee’s symptoms.[100]

Once the employer produces substantial rebuttal evidence, the presumption of continuing compensability drops out, and the employee must prove all elements of the case by a preponderance of the evidence.[101] "Where one has the burden of proving asserted facts by a preponderance of the evidence, [s]he must induce a belief in the minds of the [triers of fact] that the asserted facts are probably true."[102]

Accordingly, we have reviewed the entire medical and hearing record. We find the great preponderance of the evidence in the available medical record, especially the medical records and opinions of Drs. Thurmond, Hutchinson, Moran, and Markovic indicate the employee’s trauma injury to her finger was a substantial cause of the subungual melanoma, or substantially aggravated or accelerated melanoma development. Accordingly, we conclude the employee is entitled to reasonable and necessary medical benefits for that condition.[103] We will order the employer to pay all outstanding medical bills related to that condition, and to reimburse the employee and her private medical insurer for all out-of-pocket medical expenses. We direct the employer to provide continuing reasonable and necessary medical care for the treatment of her malignant melanoma condition, under AS 23.30.095(a). Because we find that time is of the essence in the employee’s treatment, we retain jurisdiction over this issue, should treatment disputes arise.[104]

III. ENTITLEMENT TO PPI BENEFITS

At the time of the employee’s injury, AS 23.30.190 provided, in part:

(a) in case of impairment partial in character but permanent in quality. . . the compensation is $177,000 multiplied by the employee's percentage of permanent impairment of the whole person. The compensation is payable in a single lump sum, except as otherwise provided in AS 23.30.041 . . . ."

(b) All determinations of the existence and degree of permanent impairment shall be made strictly and solely under the whole person determination as set out in the American Medical Association Guides to the Evaluation of Permanent Impairment . . .[105]

AS 23.30.190(b) is specific and mandatory that PPI ratings must be calculated under the AMA Guides. We have consistently followed this statute in our decisions and orders.[106] As noted above, the Alaska Workers' Compensation Act at AS 23.30.120 provides a presumption of compensability for an employee's injuries, applicable to any claim for benefits under the workers' compensation statute.[107]

To make a prima facie case, the employee must present some evidence that (1) she has an impairment and (2) an employment event or exposure could have caused it.[108] A substantial aggravation of an otherwise unrelated condition, imposes full liability on the employer at the time of the most recent injury that bears a causal relation to the disability.[109] In this case, we find Dr. James’ November 3, 2006, 58 percent PPI rating of the employee’s work-related condition under the AMA Guides, is sufficient evidence to raise the presumption of compensability under AS 23.30.120(a) for the employee’s claim for PPI benefits.[110]

As noted above, there are two methods of overcoming the presumption of compensability: (1) presenting affirmative evidence showing that the employee does not suffer the claimed work-related impairment; or (2) eliminating all reasonable possibilities that the impairment is work-related.[111] Merely showing another cause of the disability does not, in itself, rebut the compensability of the claim against an employer.[112] We have reviewed the available record. We find no other evidence concerning impairment ratings in the record to rebut the presumption of the employee’s entitlement to the claimed PPI benefits.[113] We conclude the employee is entitled to PPI benefits based on an impairment of 58 percent, totaling $102,660.00, under AS 23.30.190.

IV. PENALTIES

AS 23.30.155(e) provides in part:

(b) The first installment of compensation becomes due on the 14th day after the employer has knowledge of the injury or death. On this date all compensation then due shall be paid. Subsequent compensation shall be paid in installments, every 14 days . . . .

(d) If the employer controverts the right to compensation the employer shall file with the board and send to the employee a notice of controversion on or before the 21st day after the employer has knowledge of the alleged injury or death.

(e) If any installment of compensation payable without an award is not paid within seven days after it becomes due, as provided in (b) of this section, there shall be added to the unpaid installment an amount equal to 25 percent of it. This additional amount shall be paid at the same time as, and in addition to, the installment, unless notice is filed under (d) of this section or unless the nonpayment is excused by the board after a showing by the employer that owing to conditions over which the employer had no control the installment could not be paid within the period prescribed for the payment.

The employee claims penalties for the unpaid benefits, as provided in AS 23.30.155(e). Nevertheless, the record reflects that the employer filed a number of Notices of Controversion, beginning June 17, 2005, under AS 23.30.155(d), denying medical benefits for the employee’s melanoma. The Alaska Supreme Court held in Harp v. Arco Alaska, Inc.[114], that an employer or insurer must have specific evidence for a good faith controversion:

A controversion notice must be filed in good faith to protect an employer from imposition of a penalty.... For a controversion notice to be filed in good faith, the employer must possess sufficient evidence in support of the controversion that, if the claimant does not introduce evidence in opposition to the controversion, the Board would find that the claimant is not entitled to benefits.[115]

Because the employer in Harp did not have substantial evidence to support its controversion, the Court found the controversion was not in good faith, and that a penalty was due under AS 23.30.155(e).[116] In the instant case, the employer ultimately controverted the employee’s medical benefits based on Dr. Seigler's opinion that the employee’s work injury was not a substantial factor in the development of her melanoma. In Bailey v. Texas Instruments Inc.,[117] the Alaska Supreme Court held that the opinion of a medical witness can provide substantial evidence sufficient to allow an employer to prevail at hearing, if uncontradicted, and that such an opinion is substantial evidence[118] to support a controversion in good faith.[119] We find Dr. Seigler’s July 29, 2005 report provides substantial evidence supporting the employer’s denial of medical treatment for that condition.[120] We find Dr. Seigler’s opinion provides sufficient evidence to support a good faith controversion. We find the employer denied benefits for the melanoma based on Dr. Seigler’s report in an August 5, 2005 Controversion Notice. Accordingly, we conclude no penalties are due under AS 23.30.155(e) following August 5, 2005.

However, the employer originally denied care for the employee’s melanoma condition in a Controversion Notice on June 17, 2005. We find the only specific medical evidence or opinion in the record concerning the relation of the work injury and the melanoma before Dr. Seigler’s report was the May 23, 2005 letter from Dr. Thurmond and the April 23, 2005 letter from Dr. Aldrich. Both of these letters contained physician opinions linking the employee’s work injury with the development of her melanoma. We find no substantial evidence in the record before Dr. Seigler’s report rebutting those opinions. We must find the denial of benefits between the June 17, 2005 Controversion Notice and the August 5, 2005 Controversion Notice was not supported by substantial evidence in the record; and we must conclude the controversion was not in good faith during that period. In accord with the Court’s rationale in Harp, we conclude that penalties under AS 23.30.155(e) are due on all benefits denied before August 5, 2005.[121]

V. INTEREST

AS 23.30.155(p) provides, in part:

An employer shall pay interest on compensation that is not paid when due. Interest required under this subsection accrues at the rate specified in AS 09.30.070(a) that is in effect on the date the compensation is due.

8 AAC 45.142 provides, in part:

(a) 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, and at the rate established in AS 09.30.070(a) for an injury that occurred on or after July 1, 2000. If more than one installment of compensation is past due, interest must be paid from the date each installment of compensation was due, until paid. If compensation for a past period is paid under an order issued by the board, interest on the compensation awarded must be paid from the due date of each unpaid installment of compensation.

b) The employer shall pay interest. . . .

(3) on late-paid medical benefits to

(A) The employee … if the employee has paid the provider … or

B) To the provider if the medical benefits have not been paid.

AS 23.30.155(p) and our regulation at 8 AAC 45.142 require the payment of interest at a statutory rate, as provided at AS 09.30.070(a), from the date at which each installment of compensation, including medical compensation, is due.[122] The Courts have consistently instructed us to award interest to claimants for the time-value of money, as a matter of course.[123] Accordingly, we will award interest to the employee, in accord with AS 23.30.155(p) and 8 AAC 45.5142, on all unpaid benefits awarded by this decision, from the dates on which those benefits were due.

VI. ATTORNEY FEES AND LEGAL COSTS

AS 23.30.145 provides, in part:

(a) 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 per cent on the first $1,000 of compensation or part of the first $1,000 of compensation, and 10 percent of all sums in excess of $1,000.00 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. . . .

(b) 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 his claim, the board shall make an award to reimburse the claimant for his costs in the proceedings, including a reasonable attorney fee. The award is in addition to the compensation or medical and related benefits ordered.

Under AS 23.30.260 the employee’s attorney may receive fees in respect to the claim only with our approval. In this case, we find the payment of the benefits claimed by the employee, was resisted by the controversions filed by the employer.[124] The employee seeks a fee and cost award under AS 23.30.145. We have awarded the employee the claimed medical and transportation benefits, PPI benefits, some penalties and interest. Consequently, we can award fees and costs.[125]

Subsection .145(a) provides the minimum attorney fees for our award of benefits, including awards of medical benefits.[126] Subsection .145(b) requires the award of attorney fees and costs to be reasonable. The Alaska Supreme Court in Wise Mechanical Contractors v. Bignell[127] held that our attorney fee awards should be reasonable and fully compensatory, considering the contingency nature of representing injured workers, to insure adequate representation. We consider the nature, length, and complexity of the services performed, the resistance of the employer, as well as the benefits resulting from the services obtained, when determining reasonable attorney fees for the successful prosecution of a claim.[128]

In light of these factors, we have examined the record of this case. The employee filed three Affidavits of Attorney Fees and Costs, itemizing the expended hours of attorney time, paralegal assistant time, and costs. The employee claims a total of $30,591.50 in reasonable attorney fees, $15,525.00 in paralegal costs, and $6,385.19 in other legal costs, under AS 23.30.145(b). The employer did not object to the time expended or the billing, but argued that the employee’s claim for treatment is not compensable, and that attorney fees and costs should be denied.

We find this was a tenaciously litigated case, with an extensive and somewhat confusing record. We find the employee’s counsel provided valuable services in the successful prosecution of the employee’s claim. We note that the claimed reasonable fees are close to the amount required as statutory minimum attorney fees.[129] Having considered the nature, length, and complexity of the services performed, the tenacious resistance of the employer, as well as the employee’s critical need for the benefits resulting from the services obtained, we find the total amount of the above-mentioned attorney fees and legal costs reasonable for the successful prosecution of the employee’s claim for benefits. We will award $30,591.50 in reasonable attorney fees, $15,525.00 in paralegal costs, and $6,385.19 in other legal costs, under AS 23.30.145(b).

In her Final Affidavit of Attorney Fees and Costs, the employee requests that we award the itemized attorney fees as an advance on any possible statutory minimum attorney fees due under AS 23.30.145(a) on all indemnity and medical benefits awarded. As noted above, we find the employer controverted the employee's claim. AS 23.30.145(a) provides the minimum fees we are to award in the successful prosecution of an employee's controverted claim. Accordingly, the employer shall pay the employee statutory minimum attorney fees under AS 23.30.145(a) when, and if, the statutory minimum amount based on the payment of past and future medical, indemnity, and all other benefits related to her melanoma, exceeds the attorney fee awarded under AS 23.30.145(b).[130]

VII. CONCERNING POTENTIAL APPEAL

AS 23.30.127 provides, in part:

(a) A party in interest may appeal a compensation order issued by the board to the commission within 30 days after the compensation order is filed with the office of the board under AS 23.30.110. The director may intervene in the appeal. . . .

The parties have a statutory right to appeal any point of our decision and order. Nevertheless, as noted above, the employee is in stage IV metastasized melanoma. Based on her treating oncologist’s testimony, we find the employee would already have perished, but for her aggressive treatment. Even in her experimental clinical trial, her prognosis is very poor, according to Dr. Markovic. Although the employee has the relative good fortune to participate in a seemingly effective clinical trial at no cost, we find the record indicates she may have to leave that regimen because of side effects. We find the employee’s medical condition is at a life-threatening stage. We find that a disruption of the employee’s ongoing medical care potentially could have irreparable, lethal results. In the event that the Alaska Workers’ Compensation Appeals Commission is petitioned to stay this award in conjunction with a party’s appeal, we strongly request the Director of the Workers’ Compensation Division to consider intervening into the appeal for the limited purpose of opposing a stay of ongoing medical care related to the employee’s melanoma, pending the decision on the merits of the appeal.

ORDER

1. The employee’s claim is not barred under AS 23.30.100.

2. The employer shall provide the employee reasonable and necessary medical benefits, and related transportation, for the treatment of her metastasized melanoma, under AS 23.30.095(a). We retain jurisdiction over this issue, under AS 23.30.130, should any disputes arise over her treatment.

3. The employer shall pay the employee PPI benefits in the amount of $102,660.00, under AS 23.30.190.

4. The employee is entitled to penalties, under AS 23.30.155(e), for all benefits denied by the employer through August 4, 2005.

5. The employer shall pay interest in accord with AS 23.30.155(p) and 8 AAC 45.142, on all late-paid benefits awarded in this decision, from the date each installment of benefits was due.

6. The employer shall pay the employee $30,591.50 in reasonable attorney fees, under AS 23.30.145(b).

7. The employer shall pay the employee statutory minimum attorney fees under AS 23.30.145(a) on all benefits awarded, if and when the statutory minimum amount exceeds the attorney fee awarded under AS 23.30.145(b).

8. The employer shall pay the employee $15,525.00 in paralegal costs, and $6,385.19 in other legal costs, under AS 23.30.145(b).

9. In the event that the Alaska Workers’ Compensation Appeals Commission is petitioned to stay this award in conjunction with a party’s appeal, we request the Director of the Workers’ Compensation Division to consider intervening into the appeal, under AS 23.30.127(a), for the limited purpose of opposing a stay of ongoing medical care related to the employee’s melanoma, pending the decision on the merits of the appeal.

Dated at Fairbanks, Alaska this 5th day of January, 2007.

ALASKA WORKERS' COMPENSATION BOARD

____________________________

William Walters, Designated Chairman

____________________________

Debra G. Norum, Member

____________________________

Jeffrey P. Pruss, Member

If compensation is payable under terms of this decision, it is due on the date of issue. A penalty of 25 percent will accrue if not paid within 14 days of the due date, unless an interlocutory order staying payment is obtained in the Alaska Workers’ Compensation Appeals Commission. If compensation is awarded, but not paid within 30 days of this decision, the person to whom the compensation is payable may, within one year after the default of payment, request from the board a supplementary order declaring the amount of the default.

APPEAL PROCEDURES

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Effective November 7, 2005 proceedings to appeal must be instituted in the Alaska Workers’ Compensation Appeals Commission within 30 days of the filing of this decision and be brought by a party in interest against the Board and all other parties to the proceedings before the Board. If a request for reconsideration of this final decision is timely filed with the Board, any proceedings to appeal must be instituted within 30 days after the reconsideration decision is mailed to the parties or within 30 days after the date the reconsideration request is considered denied due to the absence of any action on the reconsideration request, whichever is earlier. AS 23.30.127. An appeal may be initiated by filing with the office of the Appeals Commission: (1) a signed notice of appeal specifying the board order appealed from and 2) a statement of the grounds upon which the appeal is taken. A cross-appeal may be initiated by filing with the office of the Appeals Commission a signed notice of cross-appeal within 30 days after the board decision is filed or within 15 days after service of a notice of appeal, whichever is later. The notice of cross-appeal shall specify the board order appealed from and the grounds upon which the cross-appeal is taken. AS 23.30.128

RECONSIDERATION

A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

MODIFICATION

Within one year after the rejection of a claim, or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200, or 23.30.215, a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.160 and 8 AAC 45.050.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Final Decision and Order in the matter of MICHELE M. SZEPANSKI employee / applicant v. UNIVERSITY OF ALASKA FAIRBANKS, self-employer / defendant; Case No. 200423775; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, on January 5th, 2007.

Kelley J. DeGabain, Admin. Clerk III

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[1] Report of Occupational Injury or Illness, February 22, 2005.

[2] See, also, Szepanski letter to Svetomir Markovic, dated May 11, 2005.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] ANP Grubich medical chart note, January 12, 2004.

[9] Dr. Aldrich medical notes, January 20, 2005.

[10] Dr. Aldrich medical notes, February 14, 2005.

[11] Dr. Thurmond medical report, February 21, 2005.

[12] Id.

[13] See Report of Occupational Injury or Illness, February 22, 2005; and Adjuster file E-Mail, “New Claim coming in…” from Claims Technician Amaya Spenser to Yvonne Boyce, February 22, 2005.

[14] Dr. Aldrich letter to Yvonne Boyce, dated March 2, 2005.

[15] Dr. Hutchinson medical report, March 15, 2005.

[16] I.e. beneath the fingernail.

[17] Dr. Hutchinson medical report, March 18, 2005.

[18] Id..

[19] Dr. Cox medical report, March 21, 2005.

[20] Dr. Moran surgical report, March 30, 2005.

[21] Id.

[22] Svetomir Markovic, M.D., medical report, April 1, 2005.

[23] Dr. Aldrich letter to Yvonne Boyce, dated April 25, 2005.

[24] Dr. Aldrich letter to Yvonne Boyce, dated April 25, 2005.

[25] Dr. Thurmond letter To Whom It May Concern, dated May 23, 2005.

[26] Id.

[27] Controversion Notice, dated June 17, 2005.

[28] Workers’ Compensation Claim, dated July 7, 2005.

[29] See, Ravenwoods Consulting Group, LLC, Task Assignment report, August 19, 2005

[30] An employer’s medical evaluation, “EME,” pursuant to AS 23.30.095(e).

[31] Dr. Seigler EME report, July 29, 2005, and letter to Yvonne Boyce, August 5, 2005.

[32] Id.

[33] Controversion Notice, August 5, 2005.

[34] Answer, filed August 5, 2005.

[35] Dr. Markovic, medical report, December 27, 2005.

[36] Id.

[37] Dr. Cox medical report, May 25, 2006; T. C. Shives, M.D., surgical note, February 6, 2006.

[38] Dr. Hutchinson, letter To Whom It May Concern, February 24, 2006.

[39] Id.

[40] Id.

[41] Id.

[42] Dr. Moran letter To Whom It May Concern, April 17, 2006.

[43] Id.

[44] Id.

[45] Id.

[46] Workers’ Compensation Claim, dated April 18, 2006, filed April 24, 2006.

[47] Controversions, May 4, 2006, May 19, 2006, and June 21, 2006

[48] Answers, filed May 8, 2006 and May 19, 2006.

[49] Prehearing Conference Summary, August 14, 2006.

[50] Dr. James Permanent Impairment Rating, May 16, 2006.

[51] Id.

[52] Id.

[53] Dr. Markovic dep. at 7-8.

[54] Id. at 9, 11.

[55] Id. at 11.

[56] Id. at 43.

[57] Id. at 7-8, 12.

[58] Id. at 12-13.

[59] Id. at 20.

[60] Id. at 34-35.

[61] Id. at 36-37.

[62] Id. at 25-26.

[63] Id. at 32.

[64] Id. at 20-23, 28.

[65] Dr. Seigler dep. at 25, 26, 33.

[66] Id. at 33.

[67] Id. at 33.

[68] Id. at 49-50.

[69] Id. at 60.

[70] Id. at 34-35.

[71] Id. at 34.

[72] Id. at 80-81.

[73] Id. at 68-70.

[74] The parties stipulated she has paid approximately $26,000.00 on her own, and that approximately $150,000.00 in medical bills remain unpaid.

[75] 618 P2d 582, 584 (Alaska 1980).

[76] 913 P2d 488 (Alaska 1996).

[77] Affidavits dated December 13, 2006, December 20, 2006, and December 27, 2006.

[78] Id.

[79] Affidavit filed December 29, 2006

[80] Under AS 23.30.110(c) and AS 23.30.155(h), as this was not a regularly scheduled meeting date for the board.

[81] 936 P.2d 157, 160 (Alaska 1997).

[82] Id.

[83] AS 23.30.122.

[84] See, e.g., Holland v. ACS, AWCB Decision No. 04-0010 (January 12, 2004). We specifically note that a string of physicians misdiagnosed the employee’s condition as a relatively benign granuloma. We decline to hold her to a higher standard of medical awareness or prescience than her medical providers.

[85] Tinker v. VECO, Inc., 913 P2d at 492, 493.

[86] Olson v. AIC/Martin J.V., 818 P.2d 669, 675 (Alaska 1991).

[87] Id. at 675.

[88] Peek v. SKW/Clinton, 855 P.2d 415, 416 (Alaska 1993); 5 A. Larson & L. Larson, Larson’s Workers' Compensation Law, § 90.01 (2005).

[89] Meek v. Unocal Corp., 914 P.2d 1276, 1279 (Alaska 1996).

[90] Municipality of Anchorage v. Carter, 818 P.2. 661, 665 (Alaska 1991).

[91] Kodiak Oilfield Haulers v. Adams, 777 P.2d 1145, 1149 (Alaska 1989); Toporowski v. Subway of Fairbanks, Inc., AWCB Decision No. 00-0043 (March 9, 2000).

[92] See Weidner & Associates v. Hibdon, 989 P.2d 727, 731 (Alaska 1999).

[93] Burgess Const. Co. v. Smallwood, 623 P.2d 312 (Alaska 1981).

[94] Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985).

[95] One of the medical articles appended to Dr. Markovic’s deposition refers to the first study describing subungual melanoma and its misdiagnosis, in 1886, by J. Hutchinson in the British Medical Journal (29: 119-129), ironically titled Melanosis Not Always Black: Melanotic Whitlow [fingertip injury infection]. See, J. W. Ware, Sub-ungual Malignant Melanoma Presenting As Sub-acute Paronychia Following Trauma; The Hand, Vol. 9, No. 1, 1997.

[96] Olson v. AIC/Martin J.V., 818 P.2d at 675.

[97] DeYonge v. NANA/Marriott, 1 P.3d 90, 96 (Alaska 2000); Grainger v. Alaska Workers' Compensation Board, 805 P.2d 976, 977 (Alaska 1991).

[98] Wolfer, 693 P.2d at 871.

[99] Id. at 869.

[100] DeYonge, 1 P.3d at 96.

[101] Wolfer, 693 P.2d at 870.

[102] Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).

[103] We note that, even if we had not found the employee’s report timely under AS 23.30.100(a), but had excused the delay in reporting under AS 23.30.100(d)(2), the employer would be liable for the claimed benefits based on our finding concerning the preponderance of the evidence in the record.

[104] AS 23.30.130.

[105] “AMA Guides,” 5th Ed.

[106] See, e.g., Jarrard v. Nana Regional Corp., AWCB Decision No. 90-0299 (December 14, 1990).

[107] Meek, 914 P.2d at 1279.

[108] Smallwood, 623 P.2d at 312.

[109] Peek, 855 P.2d at 416.

[110] See, e.g., Miscovich v. Tri-Con Mining of Alaska, AWCB Decision No. 04-0091 (April 23, 2004).

[111] DeYonge, 1 P.3d at 96.

[112] Tolbert, 973 P.2d at3, 611, 612 (Alaska 1999).

[113] DeYonge, 1 P.3d at 96.

[114] 831 P.2d 352 (Alaska 1992).

[115] 831 P.2d at 358.

[116] Id.

[117] 111 P3d 321,325 (FN 10) (Alaska 2005).

[118] But, see, Black v. Universal Services, Inc., 627 P.2d 1073, 1076 (Alaska 1981).

[119] Bailey, 111 P.3d, at 325 (FN 10).

[120]See, e.g., Smallwood, 623 P.2d at 316; DeYonge, 1 P.3d at 96; Grainger, 805 P.2d at 977.

[121] See, Williams v. Abood, 53 P.3d 134, 146 (Alaska 2002).

[122] AS 23.30.155(p) provides a different rate of interest for injuries before July 1, 2000.

[123] See Land & Marine Rental Co. v. Rawls, 686 P.2d 1187, 1191, 1192 (Alaska 1984); Childs v. Copper Valley Electrical Association 860 P.2d 1184, 1191 (Alaska 1993); and Harp, 831 P.2d 352.

[124] Wien Air Alaska v. Arant, 592 P.2d 352 (Alaska 1979).

[125] Alaska Interstate v. Houston, 586 P.2d 618, 620 (Alaska 1978); Childs 860 P.2d at 1190.

[126] Childs 860 P.2d at 1192

[127] 718 P.2d 971, 974-975 (Alaska 1986),

[128] See, e.g., Thompson v. Alyeska Pipeline Service Co., AWCB Decision No. 98-0315 (December 14, 1998).

[129] Accordingly, we will not make findings concerning the specific hourly rate.

[130] See, e.g., Fleming v. Municipality of Anchorage, AWCB Decision No. 98-0226 (September 2, 1998); Gertler v. H&H contracting, AWCB Decision No. 97-0105 (May 12, 1996).

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