F\
3
2
3
4
5 IN THE SUPERIOR COURT OF GUAM 6
7 NOELLA D. CARTER, 8 CASE NO. CV 0021-12 Plaintiff,
9 v.
10 AMENDED DECISION AND ORDER
II GEORGE SANTOS, 1 in his official capacity as COMMISSIONER OF THE GUAM 12 WORKER'S COMPENSATION COMMISSION, CONTINENTAL 13 MICRONESIA, and AMERICAN HOME 14 ASSURANCE COMPANY,
15 Defendants. 16
17
18 This Decision and Order corrects a clerical error in the Decision and Order filed January 19 18, 2014, as reflected in the Rule 60(a) Order filed January _:__.:::.__: 2014. Plaintiff Noella D.
20 Carter (Plaintiff) appeals a Worker's Compensation Commission Compensation Order (Order)
21 that awarded her compensation relating to injuries sustained while she was working for 22
23 Defendant Continental Micronesia (Continental). Although the Commissioner found that
24 Plaintiff was entitled to a coro:_Jensation award, Plaintiff takes issue with the manner in which 25 the award was calculated. The Court affirms the Order in part and vacates the Order in part.
26
27 1 Notice of the substitution of George Santos for Leah Beth 0. Naholowaa pursuant to Guam R. Civ. P. 25( d)( l) was 28 given in the Commissioner's Answer filed on April 9, 20 I 2.
~carter v. Santos, et al, CV 0021 12
BACKGROUND
2 On December 10, 2006, Plaintiff was injured while in the employ of Defendant
3 Continental and while stowing passengers' luggage for departure. On December 6, 2011, the 4 Commissioner awarded Plaintiff worker's compensation benefits award of $6,000, based on a 5 weekly rate of $250 for a 24 week period from July 2007 to December 2007. The Commission 6 also awarded attorney's fees of$1,500 and medical expenses of$1,483.
7
8 On January 5, 2012, Plaintiff filed her Complaint in which she timely appealed the
9 Order and sought injunctive and declaratory relief. On June 6, 2013, the Court denied her 10 Application for a Preliminary Injunction. On September 5, 2013, Defendant Continental and II Defendant American Home Assurance Company (American) filed a Motion for Summary 12
13 Judgment, which was joined by Defendant Commissioner of the Guam Worker's Compensation
14 Commission (Commission). On October 2, 2013, Plaintiff filed an Opposition and Motion for
15 Summary Judgment. The Court heard argument on November 20, 2013. 16 JURISDICTION
17 Pursuant to Guam's worker's compensation statute, 22 G.C.A § 9122(b), the Court may 18
19 "suspend[] or set aside, in whole or in part," a worker's compensation order "brought by any
20 party in interest against the Commissioner, and instituted in the Superior Court.'' Guam's 21 Administrative Adjudication Law further provides that "O]udicial review may be had of any 22 agency decision by any party affected adversely by it" and, if the agency decision is not in 23 accordance with law or is not supported by substantial evidence, then the Court shall order the 24
25 agency to take action according to law or the evidence. 5 G.C.A. § 9240; Fagan v. Dell'lsola,
26 2006 Guam 11, ~, 8-10.
28
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'Carter v. Santos, et aL CV 0021- I 2
STANDARD OF REVIE\V
2 The Court is required to review de novo the Commissioner's conclusions of law and to
3 affinn the Commissioner's findings of fact, as well as any conclusions resulting therefrom, if 4 supported by substantial evidence. Fagan, 2006 Guam 11, ~ 11 (citing Nissan Motor Corp. in 5 Guam v. Sea Star Group Inc., 2002 Guam 5, ~ 10). However, the Court '"may not substitute its 6 views for those of the [Commissioner], but instead must accept the [Commissioner's] findings 7
8 unless they are contrary to law, irrational, or unsupported by substantial evidence.'" Fagan,
9 2006 Guam 11, ~ 11 (quoting Alcala v. Dir., Office of Workers Comp. Programs, 141 F.3d 942, 10 944 (9th Cir. 1998)). Substantial evidence is such relevant evidence as a reasonable mind might II accept as adequate to support a conclusion. Fagan, 2006 Guam 11, ~ 12 (citing Bondoc v.
12
13 Worker's Comp. Comm'n, 2000 Guam 6, ~ 65)?
14 When reviewing an agency's construction of a statute, the Court must reject 15 constructions that are contrary to legislative intent, but where a statute is silent or ambiguous, 16 the Court may defer to the agency's interpretation. Guam Fed'n of Teachers v. Gov't of Guam, 17 2013 Guam 14, ~~ 24-25 (quoting Bias v. Guam Customs & Quarantine Agency, 2000 Guam 18
19 12, ~ 12 (quotations omitted)). Statutory interpretation is a legal question and the inquiry always
20 begins with the language of the statute. Data Mgmt. Res., LLC v. Office of Pub. Accountability, 21 2013 Guam 27, ~ 17 (citing Guerrero v. Santo Thomas, 2010 Guam 11, ~ 8). Absent clear 22 legislative intent to the contrary, a statute's plain meaning prevails. Sumitomo Constr. Co. v.
23 Gov't of Guam, 2001 Guam 23, ~ 17; see also Amerault v. Intelcom Support Servs., Inc., 2004 24
25 Guam 23, ~ 14 (plain meaning is gleaned from "the entire statutory scheme"). To determine,
I
26
27 2 Although this matter comes before the Court on cross motions for summary judgment, at oral argument the partie 28 concurred that it is properly entertained as an administrative appeal according to the foregoing standard of review.
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Carter v. Santos, et al, CV 0021 12
legislative intent, a statute must be read in its entirety and construed in conjunction with other
2 sections. In addition, the Court is guided in the worker's compensation context by cases
3 interpreting the substantially similar federal Longshoremen and Harbor Workers' Compensation 4 Act (LHWCA), 33 U.S.C. § 901, et seq. Fagan, 2006 Guam 11, ~~Ill, 18 (citing Amerault, 5 2004 Guam 23, ~ 16).
6 ANALYSIS
7
8 Plaintiff alleges four legal and factual errors with the Commissioner's Order.
9 Specifically, Plaintiff argues that the Commissioner misconstrued applicable statutes with 10 respect to her weekly compensation rate and period of disability and further contends that the II Commissioner erred in not applying a ten percent penalty to the award because Defendant 12
13 Continental failed to timely controvert her claim. Plaintiff also argues that the attorney's fees
14 were unreasonably withheld and the amount awarded should be over $16,000. Defendants
15 maintain that the Order is in accordance with the law and supported by substantial evidence and, 16 therefore, Plaintiff's contentions are without merit. Each issue is addressed in tum.
17 1. Weekly Compensation 18
19 Section 9107(b) of Title 22 provides for "[m]aximum and [m]inimum [c]ompensation"
20 such that "[c]ompensation for disability shall not exceed Two Hundred Fifty Doilars ($250) per 21 week." Section 91 09(b ), on the other hand, provides that "[i]n case of disability total in 22 character but temporary in quality, sixty-six and two-third (66-2/3) per centum of the average 23 weekly wages shall be paid to the employee during the continuance thereof."
24
25 In the Order, the Commissioner noted that, when applied to Plaintiff's average weekly
26 wage of about $1,200, the two-thirds percentage set forth in § 91 09(b) would yield an amount 27 "much more" than $250 per week. Plaintiff urged the Commissioner to adopt this expansive 28
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Carter v. Santos, et a!, CV 0021-12
construction, but the Commissioner characterized Plaintiff's request for such compensation as a
2 "direct contradiction" of § 91 07(b) and concluded that "a plain reading of the law establishes
3 that [Plaintiff's] compensation award is not to exceed $250.00 per week, and her total award 4 should be calculated at that rate."
5 In the instant administrative appeal, PlaintitT maintains that her weekly rate of 6 compensation, as calculated by reference to § 91 09(b) and § 9115(m ), is not limited by the cap 7
8 set forth in§ 9107(b). Accordingly, she concludes that the weekly rate applicable to her claim
9 should be $750 per week, as opposed to $250 per week. Defendants counter that the 10 Commissioner complied with the plain meaning of the statutes.
II The Court discerns no basis for finding that the Commissioner's conclusion was not in 12
13 accordance with the law. Section 91 07(b) plainly establishes the outer bounds of weekly
14 compensation amounts, while § 9109(b) provides the method by which a claimant's 15 compensation is calculated. The Commissioner recognized the applicability of these two 16 provisions and construed them in conjunction, i.e., with the latter calculation rendering a weekly 17 compensation amount subject to the former statutory minimum or maximum amount. To adopt 18
19 Plaintiff's construction would be to give such broad effect to the compensation formula as to
20 render its statutory counterpart a nullity. Statutory construction "must not be guided by a single 21 sentence or member of a sentence, but [by reference] to the provisions of the whole law, and to 22 its object and policy." Sumitomo, 2001 Guam 23, c;[ 17 (quoting Kelly v. Robinson, 479 U.S. 36, 23 43 (1986)) (internal quotations omitted). Similarly, in the context of elections, the Guam 24
25 Supreme Cmrt has endorsed the maxim that '"no single statutory provision would be· construed
26 in such a way as to render meaningless or absurd [any] other statutory provision."' Benavente v. 27 Taitano, 2006 Guam 15, ~ 36 (quoting 3A Sutherland Statutory Constr. § 73:8 (6th ed. 2006)
28
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Carter v. Santos, et al, CV 0021 12
2 ed. 2007) ("Statutes on the same subject construed together"). The Court therefore holds that the
3 Commissioner properly concluded, as a matter of law, that Plaintiffs weekly compensation 4 amount may not exceed $250.
5 2. Period of Award 6 Section 91 07(a) of Title 22, is entitled, in pertinent part, "Time for Commencement of 7
8 Compensation," and provides that when one's "injury results in disability of more than fourteen
9 (14) days, the compensation shall be allowed from the date of disability." A claimant must 10 provide written notice of an injury to her employer and to the Commissioner within thirty days II of the injury. § 9113( a), (b). Such notice must "contain the name and address of the employee 12
13 and a statement of the time, place, nature, and cause of the injury or death." § 9113(b). Failure
14 to give such notice, however, "shall not bar any claim if the employer or the carrier had
15 knowledge of the injury or death, and the Commissioner determines that the employer or carrier 16 has not been prejudiced by failure to give such notice." § 9113(d). If an employer fails to 17 controvert a claimant's alleged right to compensation and fails to pay compensation within 18
19 fourteen days of its due date, then "there shall be added to such unpaid installment an amount
20 equal to ten (10) per centum thereof1.]" § 9115(d), (e). 21 The Commissioner made, in pertinent part, the following findings of fact: Plaintiff was 22 injured on December 10, 2006, Plaintiff filed a notice of injury with Defendant Continental on 23 February 28, 2007, and "[o]n July 16, 2007, [Plaintiff] filed a second notice of injury and was 24
25 placed on disability which was then controverted on July 24, 2007, by [Defendant American)."
26 The Commissioner awarded Plaintiff $6,000 based on a rate of $250 per week for 24 weeks. 27 The 24 weeks reflected the period from July to December 2007 during which Plaintiff was on 28
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Carter v. Santos, et al, CV 0021-12
medical leave. Although the record reveals that PlaintitT reported her injury via phone to
2 Defendant Continental on the day it happened, the Commissioner mentioned neither Plaintiff's
3 phone report nor Plaintiffs failure to provide written notice to her employer within thirty days 4 of injury pursuant to § 9113. Defendants do not allege prejudice from the failure to provide 5 written notice.
6 Plaintiff contends that the period of her disability commenced on the date of injury as 7
8 opposed to the date of her second notice of injury. Plaintiff argues that she presented substantial
9 evidence to support her claim for one full year of disability compensation. Defendants 10 emphasize that Plaintiff worked after her injury, was placed on administrative leave from 11 January to May, 2007, and that it was not until July 17, 2007 3 that Plain tifT filed an occupational 12
13 injury report evidencing her disability.
14 Plaintiff's primary contention is that the Commissioner erred in declining to award 15 benefits from the date of injury, December 10, 2006. Plaintiff invites the Court to equate date of 16 injury with date of disability. The Commissioner elected not to do so in the instant matter, and 17 PlaintifT suggests that this constituted legal and factual error. At issue is an apparent conflict 18
19 between the applicable statutes: § 9107(a) provides that, "in case the injury results in disability
20 of more than fourteen (14) days, the compensation shall be allowed from the date of dis·ability," 21 while § 9115(b) provides that "[t]he first installment of compensation shall become due on the 22 fourteenth (14th) day after the employer has knowledge of the injury or death." Plaintiff's total 23 compensation would vary dramatically depending on which date controls. The Commissioner 24
25 ap11ttrently relied solely on § 91 07(a) when it identified a date of disability several months later
26
27 3 This medical report is dated July 17, 2007, Plaintiff's second notice of injury is dated July 16, 2007, and the 28 Commissioner's Order sets the date of disability as July 16, 2007.
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Carter v. Santos, et al, CV 0021- I 2
than the undisputed date of injury and opted not to award the ten percent penalty because it
2 deemed the pertinent notice of injury controverted. On the other hand, considering that Plaintiff
3 reported the injury on the same day it occurred and Defendants failed to controvert, § 9115(b) 4 would seem to allow recovery of a compensation award, plus ten percent thereof~ from the date 5 of injury without regard for whether Plaintiff was actually disabled.
6 "Case law interpreting provisions of the LHWCA that are similar to provisions of 7
8 Guam's worker's compensation law [are] persuasive." Amerault, 2004 Guam 23, ~ 16 (citing
9 Gibbs v. Holmes, 2001 Guam 11, ~ 15). In the context of determination of pay under the 10 LHWCA, 33 U.S.C. § 910, the Ninth Circuit has recognized that "in most cases of traumatic II injury the date of injury and date of disability coincide." Port of Portland v. Dir., Office of 12
13 Workers Comp. Programs, 192 F.3d 933, 937 (9th Cir. 1999) (citing Johnson v. Dir., Office of
14 Workers Comp. Programs, 911 F.2d 247, 249-50 (9th Cir. 1990)). Such was the scenario in Port
15 of Portland, where the Court found that the claimant "was disabled from the moment he 16 suffered [his] knee injury and was never released to continue his employment as a 17 longshoreman." 192 F.3d at 937-38. In Johnson, by contrast, the Court considered an 18
19 "exceptional case[]" in which onset of the disability occurred years after the initial trauma and
20 accordingly concluded that time of the disability rather than the time of the accident must be 21 used to measure the amount of compensation. 911 F.2d at 249-50. The Court later rejected the 22 concept of "a bright-line rule that would make the 'time of injury' the date when the claimant 23 actually stopped working" and held that "the relevant date is when the claimant is or should be 24
25 aware of the disability." Deweert v. Stevedoring Servs. of Am., 272 F.3d 1241, 1245-46 (9th
26 Cir. 2001 ); see Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820, 834 (9th Cir. 2012) 27
28
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v. Santos, et al, CV 0021-12
(when fixing date for calculation of prejudgment interest, "the date that a worker becomes
2 statutorily entitled to compensation is when he first becomes disabled").
3 In the instant matter, Commissioner clearly determined that the date of injury did not 4 coincide with the date of disability. The Court is mindful that § 9115(b) bases a claimant's 5 entitlement to compensation on the employer's knowledge of the injury, but this provision must 6 be reconciled with § 91 07. Importantly, the Court need not follow the plain language of a statute 7
8 "where the result would lead to absurd or impractical consequences, untenable distinctions, or
9 unreasonable results" and may interpret "broad language in a limited fashion in an effort to lO effectuate legislative intent." Sumitomo Canst., Co., 2001 Guam 23, 1 17. The Court is 11 unconvinced that the Legislature intended to allow a claimant to recover from the date of injury 12
13 without respect to the claimant's ability to work and based on an employer's failure to
14 controvert a statutorily noncompliant notice. To award compensation from the date of injury 15 would yield recovery for Plaintiff without substantiation of her injuries and in addition to her 16 earnings. Instead, the purpose of worker's compensation law to compensate disability as a 17 result of injury is plainly evidenced in the Guam Code: "[c]ompensation shall be payable under 18
19 this Title in case of disability or death of an employee, but only if the disability or death results
20 from an injury sustained while engaged in industrial employment or public employment or both 21 as defined." § 9104(a). Plaintiff was injured, continued to work, then ceased work when her 22 employer made a personnel decision that was unrelated to her injury. Particularly in view of 23 these unique circumstances, the Court concludes that, as a matter of law, the date of injury need 24
25 not coincide with date of disability and the Commissioner did not commit legal error by
26 differentiating the dates. The Court likewise declines to broadly construe § 9115(b) to permit 27 windfall recovery or recovery without disability.
28
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Carter v. Santos, et a!, CV 0021-12
As to the evidence, the record reveals that the first determination of disability was
2 rendered on July 17, 2007 in conjunction with Plaintiff's second notice of injury, dated July 16,
3 2007; the Commissioner adopted the latter date as the date of disability. Although it is 4 undisputed that Plaintiff was injured in December, 2006, the July disability determination was 5 not retroactive and elsewhere in the record there is cont1icting evidence regarding the nature and 6 extent of her injury. For example, assessments by different physicians performed in December, 7
8 2006 and October, 2007 concurred in concluding that Plaintiff's injury was a muscle strain
9 without nerve injury. The October assessment also found that "there is absolutely no evidence 10 of pinched nerve from 'cervical spondylosis or hemiated disc'" and that "her symptoms are out 11 of proportion to any objective finding." The July disability determination, however, diagnosed 12
cervical spondylosis with symptoms of nerve injury. The fact that Plaintiff ceased work due to 13
14 administrative leave further hinders assessment of Plaintiffs condition. In view of the definitive
15 disability determination in July, the divergent medical opinions, and the Court's deference to 16 the Commissioner on factual issues, it cannot be said that the Commissioner acted against the 17 weight of the substantial evidence when it adopted July 16, 2007 as the date of disability.
18
19 3. Penalty for Failure to Controvert Claim
20 Next, Plaintiff takes issue with the Commissioner's failure to give effect to her first 21 written notice of injury, which was tiled on February 28, 2007 and received by the 22 Commissioner on March 2, 2007. If an employer fails to controvert a claimant's alleged right to 23 compensation and fails to pay compensation within fourteen days of its due date, then "there 24
25 shall be added to such unpaid installment an amount equal to ten (1 0) per centum thereo1l ]" §
26 9115(d), (e). Plaintiff argues that she is entitled to the ten percent penalty contemplated by § 27 9115(e) because Defendant Continental failed to controvert her right to compensation with 28
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Carter v. Santos, et a!, CV 0021-12
respect to her first notice of injury. Defendants argue that the February notice was deficient and
2 Commissioner therefore correctly did not rely upon it.
3 The Commissioner acknowledged the February notice m its factual findings, yet 4 concluded that Plaintiffs entitlement to compensation commenced in July 2007 and Defendant 5 American timely controverted her claim. As to Plaintiffs request for the ten percent penalty, the 6 Commissioner did not refer to the February notice and merely stated that:
7
8 [Plaintiff] also seeks a late payment penalty in the amount equal to ten (10) percent of [her] total disability award, because [Defendant 9 American] did not controvert [her] claim within fourteen (14) days of notice of injury. However, [Plaintiff] was placed on disability 10 and medical leave on July 16, 2007, and [Defendant American]
II controverted the claim July 24, 2007, thus the ten (1 0) percent penalty fee shall not be awarded.
12
13 The Commissioner clearly attached no significance to Plaintiffs February notice of
14 injury and failed to explain its reasoning on the issue. Defendants account for this incongruity
15 by insisting that July 2007 was operative as to the notice of injury and date of disability because 16 "Plaintiff did not produce any medical report, witness statement, or any statements other than 17 her notice of her injury" and "[t]here were no documents memorializing that the Plaintiff 18
19 suffered a disability preventing her from working." Defendants, however, offer no authority to
20 support their contention that Plaintiff's notice was deficient, and no authority can be gleaned 21 from the plain language of§ 9113(b ).
22 The notice proffered by Plaintiff on February 28, 2007 and received by the 23 Commissioner on March 2, 2007 plainly met the statutory requirements for notice. The 24 I
25 'February notice was transmitted to the employer and Commissioner in writing and contained
26 "the name and address of the employee and a statement of the time, place, nature, and cause of 27 the injury[.]" See § 9113. The statute is neither silent nor ambiguous as to notice, and the Court 28
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Carter v. Santos, et a!, CV 0021-12
will not read into the statute any burden on a claimant to further document a workplace injury.
3 allegation of work-related injury appeared meritless by virtue of her failure to substantiate it 4 with medical records, the statutory duty to controvert or to pay benefits remained in effect. See 5 § 9115(d), (e); Prolerized New England Co. v. Benefits Review Bd., 637 F.2d 30, 39-40 (1st 6 Cir. 1980), cert. denied, 452 U.S. 938 (1981) (upholding imposition often percent penalty and 7
8 declining to relieve employer of duty to controvert or to pay benefits even where employer
9 "thinks LHWCA coverage is far-fetched"). Moreover, because Plaintiff transmitted notice in 10 compliance with the statute, Defendant Continental had '"reason to believe a controversy II
4
[would] arise"' and therefore the requirement to controvert was triggered. See Matulic v. Dir..
12
13 Office of Workers Comp. Programs, 154 F.3d 1052, 1059 (9th Cir. 1998) (quoting National
14 Steel & Shipbuilding Co. v. United States Dept of Labor, 606 F.2d 875, 879 (9th Cir. 1979) 15 (notice of controversion requirement triggered by "an employee's protests or claims with 16 respect to compensation")).
17 The Commissioner, Plaintiff, and Defendants all recognize the uncontroverted February 18
19 notice of injury. The Commissioner explicitly acknowledged this notice in the Order. The Court
20 is constrained to conclude that the Commissioner's conclusion was contrary to law, irrational, 21 and unsupported by substantial evidence. The ten percent penalty shall be "added to all amounts 22 unpaid between the date the notice [of controversion] should have been filed and the date notice 23
24
25 4 In contrast, Plaintiffs phone report on the date of injuty was only a verbal communication of the injury t 26 Defendant Continental. Plaintiff does not contend the phone report constituted valid notice to trigger the duty to pa 27 or to controvert, and there is no indication that on that date the employer had reason to believe a controversy woul 28 arise. See Matulic, 154 F.3d at 1059; National Steel & Shipbuilding Co., 606 F.2d at 879.
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Carter v. Santos, et al, CV 0021-12
was actually filed." Matulic, 154 F.3d at 1059; § 9115(d), (e). Notice of controversion must be
2 filed within fourteen days of an employer's knowledge of injury. § 9115(d), (e). Fourteen days
3 from February 28 was March 14, 2007; the actual date of controversion was July 24, 2007. 4 However, as discussed above, Plaintiff was entitled to compensation as of July 16, 2007.
5 Therefore, the ten percent penalty applies only to compensation due to Plaintiff from July 16 to 6 July 24, 2007.
7
8 4. Attorney's Fees
9 A claimant's attorney may collect fees for services pursuant to 22 G.C.A § 9129(a), 10 which provides that "[n]o claim for attorney's fees or for any other services rendered in respect II of a claim or award for compensation, to or on account of any person, shall be valid unless 12
13 approved by the Commissioner, whose approval shall not be unreasonably withheld[.]"
14 In the Order, the Commissioner noted that "[t]he practice of the Commission is to award
15 a maximum of 25% of the compensation awarded for work related injury" as attorney's fees. In 16 following this practice in Plaintiff's case, the Commissioner emphasized that "[t]he purpose of 17 the [worker's compensation] law is an effort to protect the claimant's award of benefits from 18
19 being too heavily encumbered by a legal fee." The Commissioner also commented that "[t]he
20 law vests in the Commissioner a broad discretion with regard to the approval of counsel fees[.]" 21 Plaintiff asserts that the attorney's fee award of 25% of the recovery is arbitrary, 22 unreasonable, capricious, and an abuse of discretion on the part of the Commissioner because it 23 is unrelated to the requested fee and is not a result of a factual determination. Plaintiff claims 24
25 that she incurred over $16,000 in fees and that the Commissioner unreasonably withheld
26 attorney's fees by awarding only $1,500. Defendants contend that the Commissioner was not 27 arbitrary, capricious, or unreasonable in following its practice.
28
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Carter v. Santos, et aL CV 0021-12
Plaintiff has provided a detailed accounting of legal fees incurred during the instant
2 administrative appeal. The fees dwarf the amount of Plaintiffs compensation award. Plaintit1~
3 however, does not elaborate on how the Commissioner unreasonably withheld attorney's fees. 4 Plaintiff emphasizes the long duration of the case and concomitant costs, yet fails to 5 demonstrate how these facts render the Commissioner's decision invalid. Plaintiff apparently 6 requests the full amount of attorney's fees incurred, without respect to the magnitude of those 7
8 fees in relation to the final compensation award. The Commissioner duly noted the amount of
9 fees and weighed that consideration against the interest of preserving Plaintiffs recovery. The 10 Commissioner was not obligated to authorize attorney's fees, but rather was forbidden from II unreasonably withholding such fees. The Court cannot conclude that the Commissioner acted 12
13 unreasonably and therefore will not disturb the award of attorney's fees.
14 CONCLUSION
15 For the reasons set forth above, the Court upholds the Commissioner's Order as to the 16 maximum weekly compensation, period of award, and attorney's fees. With respect to the 17 penalty for failure to controvert Plaintiffs claim, the Court concludes that the Commissioner's 18
19 Order is not in accordance with law and is not supported by substantial evidence. Accordingly,
20 pursuant to 22 G.C.A § 9122(b) and 5 G.C.A. § 9240, the Court orders the Commissioner to 21 modify its Order in conformance with this Decision and Order.
22
23
24
25
26
27 Judge pro tempore, Superior Court of Guam 28
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