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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Humphrey v. Lowe's Home Improvement Warehouse, Inc. (10/16/2014) sp-6960
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
AKEEM J. HUMPHREY, )
) Supreme Court No. S-15140
Appellant, )
) Alaska Workers' Compensation
) Appeals Commission No. 11-021
v. )
) O P I N I O N
LOWE'S HOME IMPROVEMENT )
WAREHOUSE, INC., Employer, ) No. 6960 - October 16, 2014
and NEW HAMPSHIRE )
INSURANCE COMPANY, )
)
Appellees. )
)
Appeal from the Alaska Workers' Compensation Appeals
Commission, Laurence Keyes, Commission Chair.
Appearances: James M. Hackett, James M. Hackett, Inc.,
Fairbanks, for Appellant. Krista M. Schwarting, Griffin &
Smith, Anchorage, for Appellees.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
I. INTRODUCTION
In this case we are asked to determine whether an employee was entitled
to temporary total disability benefits after he left employment under disputed
circumstances. The employee injured his back at work but returned after being cleared
----------------------- Page 2-----------------------
for lighter duty. His employment soon ended for reasons the parties dispute, and he
moved with his family to Nevada, where he later had back surgery. The Alaska
Workers' Compensation Board found his injury compensable and ordered the employer
to pay medical costs and disability benefits from the surgery onward; however, the Board
denied temporary total disability benefits from the end of his employment to the surgery,
finding the employee had voluntarily left his job for reasons that were not injury-related.
The employee appealed to the Alaska Workers' Compensation Appeals
Commission, which affirmed the decision on disability but remanded to the Board for
clarification of its attorney's fees award. The employee now appeals the Commission's
decision of his claim for temporary total disability benefits and its denial of his request
for attorney's fees for the appeal. We affirm the Commission's decision that the
employee was not entitled to temporary total disability benefits, reverse its denial of
attorney's fees for the appeal, and remand for further proceedings.
II. FACTS AND PROCEEDINGS
Akeem Humphrey was working at Lowe's Home Improvement Warehouse
in Fairbanks as a "less than truckload" stocker on November 30, 2009, when a cantilever
shelf fell on him. He was treated for back pain and cleared for modified work in early
January 2010. Lowe's moved him around to various positions in the store to
accommodate his restrictions, but he continued to have pain.
On January 21 Humphrey was disciplined at work for reasons unrelated to
his injury. On February 12 he received a generally favorable performance evaluation.
On February 16 he wrote a note to Lowe's, saying he was giving two weeks' notice "due
to personal reasons (no transportation [and] no house)." The note is somewhat
ambiguous, though; it also states, "If nothing is new within these two weeks I will know
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it is submitted[;] if does [indecipherable] I will let store manager and Lisa know all new
information."1
Humphrey's last day of work at Lowe's was Monday, February 22.
Humphrey testified that the store manager, Brandon Montgomery, called him into the
office that day and told him he was being terminated because he had given his two
weeks' notice. Lowe's disputes that Humphrey was terminated, and Montgomery denied
having the conversation Humphrey described. Wage records from Lowe's show that
Humphrey received a paycheck on February 22 for 40 hours in the week ending
2
February 26; Humphrey testified he was paid through March 1, which is two weeks
from the date of his two weeks' notice.
Humphrey continued to receive medical care for his back, and in April 2010
his treating physician recommended that he consider surgery and consult with an
orthopedic surgeon. In May, Humphrey moved with his girlfriend and their child to the
Las Vegas area, where his girlfriend had family. Humphrey then filed an Alaska
workers' compensation claim, seeking medical benefits, temporary total disability (TTD)
benefits from January 30, 2009, a rating of permanent partial impairment (PPI), a
penalty, interest, and attorney's fees. In January 2011 a Nevada orthopedic surgeon
diagnosed Humphrey with "disc abnormalities" and back pain that "stem[med] from his
initial work related injury" and in May 2011 performed surgery on Humphrey's back.
A number of medical and lay witnesses testified at the Board hearing on
Humphrey's claim. The parties agreed that his last day of work at Lowe's was
1 The Board read this sentence of the note as saying, "If nothing is new
within these two weeks I will know it is submitted if does not I will let store manager and
Lisa know all new information."
2
Another document from Humphrey's personnel file indicates that Lowe's
paid Humphrey through March 1.
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February 22, 2010, but they offered conflicting accounts of his departure. Humphrey
testified that he notified Montgomery about his transportation and housing problems on
February 16 and Montgomery told him to submit his two weeks' notice in case the
problems prevented him from returning to work. Humphrey testified that his personal
problems resolved within a few days, that he called Montgomery, and that Montgomery
told him to come back to work. Humphrey could not recall exactly what day he returned.
Humphrey testified that Montgomery called him on the intercom on
February 22 and told him to come to the office. Humphrey said he thought it was related
to one of two things: where he had parked his car that day (close to the store, in an area
reserved for customers) or whether he had neglected his work while talking to another
employee. But according to Humphrey, instead of discussing either of these issues,
Montgomery told him that "because [Humphrey] wrote the two weeks' notice . . . what
they're going to do is just . . . terminate [him], because after today [Humphrey] would
no longer be working for Lowe's." Humphrey testified that Montgomery asked him to
3
write out another two weeks' notice, which he did, and said Lowe's would pay him for
the coming two weeks if Humphrey cooperated in his termination.
Witnesses for Lowe's disputed Humphrey's account. Montgomery, the
store manager, testified that Humphrey gave the "HR manager, Lisa," a two weeks'
notice that he was leaving Lowe's for personal reasons. He testified that Humphrey said
it was because he was moving to "Vegas or something like that, with his family and he
wasn't going to be able to stay in Alaska." Montgomery said he did not recall saying
either that Humphrey "would be able to work out his personal situation and come back
to Lowe's and continue working there" or that Humphrey "was either going to have to
resign or . . . be terminated," as Humphrey claimed. Montgomery testified he could not
3 No written notice dated February 22 appears in Humphrey's personnel file.
-4- 6960
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terminate anyone "without consent from area HR" and that he would have to use
progressive discipline first. He denied ever having "a sit-down conversation face-to-face
with Mr. Humphrey," as Humphrey described, and said he did not recall ever paging
Humphrey to his office.
Kimberly Cook, the operations manager, also testified. She said that
Humphrey worked directly for her and was "a great employee" whom she wanted to
keep. She testified that Lowe's had accommodated Humphrey's injury-related work
restrictions and that it would have continued to do so had he stayed. She said she had
not seen Humphrey's written two weeks' notice but that she knew, from Montgomery,
that Humphrey "had put his notice in and he withdrew his notice and said he didn't want
to leave, and then he decided that he wanted to leave again, and then . . . he withdrew it
again." What she remembered out of it, she said, was that Humphrey was going to quit.
She testified that he would have talked to Montgomery about quitting, not to her, but that
"[f]or the most part" she would have had to be present if an employee she supervised was
going to be terminated.
The Board decided a different issue first: that Humphrey's injury was
compensable and that he was entitled to past medical benefits. It decided that Humphrey
was not yet medically stable from his surgery so he could not be rated, but it ordered
Lowe's to pay PPI compensation once that occurred. The Board awarded him TTD
benefits from the date of his 2011 surgery until he "reache[d] medical stability or is
released to work by his treating physician, whichever occurs first." However, deciding
that Humphrey had voluntarily left his job at Lowe's for reasons unrelated to his injury,
the Board denied Humphrey's request for TTD benefits from the date of his departure,
February 22, 2010, until his surgery in May 2011. Finally, it awarded Humphrey partial
attorney's fees of $23,863.35, reducing his requested amount by 30%.
-5- 6960
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Humphrey filed an appeal with the Commission of the Board's denial of
TTD benefits and its attorney's fee award. The Commission decided there was
substantial evidence in the record to support the Board's decision that Humphrey
voluntarily left his job at Lowe's, and it agreed with the Board that he was not entitled
to TTD benefits for the period before his surgery. However, it vacated the Board's
attorney's fee award on grounds that (1) the Board did not explain why it had awarded
fees under AS 23.30.145(b) (for cases in which the employer resists or otherwise delays
payment) rather than AS 23.30.145(a) (for cases in which the employer controverts
benefits, as Lowe's did here);4 and (2) the Board's "terse explanation for reducing the
award" prevented the Commission from reviewing its decision.
Humphrey then asked the Commission to award him fees as a successful
litigant in the appeal. The Commission denied his motion, writing that "[b]y any
standard, Humphrey was not the successful party in this appeal." Humphrey appeals.5
4 AS 23.30.145(a) governs an award of fees when an employer controverts
benefits; AS 23.30.145(b) permits a fee award against an employer when the employer
resists or otherwise delays payment.
5
Lowe's does not challenge the appealability of the Commission's decision.
Following City & Borough of Juneau v. Thibodeau, we have required that all issues be
resolved in an administrative appeal to the superior court before a decision is final and
appealable. 595 P.2d 626, 629 (Alaska 1979). Here the Commission notified the parties
that the decision was "a final decision on the merits" as to "the affirmation . . . in part and
vacat[ion] in part" but was "a non-final decision as to the . . . remand of the matter in part
to the [B]oard." Because neither party raised the applicability of Thibodeau, and because
the attorney's fee dispute being remanded to the Board is severable from the issues of
TTD and appellate fees, we do not consider whether the Commission's entry of what is
in effect a partial final judgment was proper. See Alaska R. Civ. P. 54(b) (permitting
entry of final judgment on separate issues in trial court).
-6- 6960
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III. STANDARDS OF REVIEW
In a workers' compensation appeal from the Commission, we review the
Commission's decision rather than the Board's and apply our independent judgment to
questions of law not involving agency expertise.6
We independently review the
Commission's conclusion that substantial evidence in the record supports the Board's
7
factual findings by independently reviewing the record and the Board's findings. When
the Commission makes factual findings, its "findings of fact may be reversed on appeal
if not supported by substantial evidence in light of the whole record."8
Whether the
Commission correctly applied the law in determining an award of attorney's fees is a
question of law we review de novo.9
IV. DISCUSSION
A. The Commission Correctly Concluded That Substantial Evidence In
The Record Supported The Board's Decision Denying Temporary
Total Disability Benefits.
The Board denied Humphrey TTD benefits for February 22, 2010 to May
17, 2011 because it found he had voluntarily left his work at Lowe's for reasons
10
unrelated to his injury and thus removed himself from the labor market for that period.
6 Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 2010) (citing
Barrington v. Alaska Commc'ns Sys. Grp., Inc. , 198 P.3d 1122, 1125 (Alaska 2008)).
7 Id.
8 AS 23.30.129(b).
9 Lewis-Walunga v. Municipality of Anchorage , 249 P.3d 1063, 1066 (Alaska
2011) (citing Krone v. State, Dep't of Health & Soc. Servs. , 222 P.3d 250, 252 (Alaska
2009)).
10 Humphrey did not raise as an issue on this appeal, and so we do not
consider, whether a voluntary departure disqualified him from receiving compensation
(continued...)
-7- 6960
----------------------- Page 8-----------------------
Applying AS 23.30.122 and the substantial evidence test, the Commission held that "the
board's finding that Humphrey voluntarily quit his job was amply supported by the
evidence." The Commission concluded that Humphrey was not totally disabled during
the period at issue because "his medical providers released him to perform light-duty
work and Lowe's provided it."
Both the Board and the Commission relied on Vetter v. Alaska Workmen's
Compensation Board, where we held, "If a claimant, through voluntary conduct
unconnected with his injury, takes himself out of the labor market, there is no
compensable disability."11
We also stated that "[a]n award of compensation must be
supported by a finding that the claimant suffered . . . a decrease in earning capacity due
to a work-connected injury or illness," and we set out several factors relevant to this
inquiry, including the claimant's age and education, the employment available in the area
for people with the claimant's capabilities, the extent of the injury, and the claimant's
"intentions as to employment in the future."12
Under Vetter, Humphrey's claim that he was entitled to TTD benefits
depended on a finding that he had not voluntarily removed himself from the labor
market. He focuses his argument on the Board's analysis of the statutory presumption
of compensability and the substantiality of the evidence the Board used to support its
13
conclusion.
The presumption attaches if the employee establishes a link between his
10(...continued)
benefits for some part less than the whole of that period.
11 524 P.2d 264, 266 (Alaska 1974).
12 Id.
13 See AS 23.30.120(a) ("In a proceeding for the enforcement of a claim for
(continued...)
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----------------------- Page 9-----------------------
employment and the injury; at this step of the analysis "only evidence tending to
14
establish the link is considered - competing evidence is disregarded." Humphrey
asserts that the presumption applies to his claim that he "did not voluntarily remove
himself from the workforce, unrelated to [his] work injury," citing Sokolowski v. Best
15
Western Golden Lion Hotel.
The Board did apply a presumption analysis, finding that,
through Humphrey's testimony and that of his girlfriend, he had attached the
presumption that "he was unable to work because of his work injury from February 2010
forward." Lowe's appears to agree both that the presumption applied to the voluntary-
departure question and that there was enough evidence of work-relatedness for the
presumption to attach.
In the second step of the presumption analysis, the Board found that Lowe's
rebutted the presumption with evidence that Humphrey "voluntarily quit his position at
Lowe's and thus removed himself from the workforce."16
In this step the Board looks
13(...continued)
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. . . .").
14 McGahuey v. Whitestone Logging, Inc. , 262 P.3d 613, 620 (Alaska 2011).
15 813 P.2d 286, 292 (Alaska 1991).
16 The Board also included as evidence rebutting the presumption the reports
of the employer's physicians that Humphrey was medically stable. Humphrey argues
that the Board could not rely on these opinions at the second stage because by the time
of the hearing it knew that Humphrey was in fact not medically stable. We have held
that "a prediction of medical stability that turns out to be incorrect cannot provide
substantial evidence to rebut the presumption." Burke v. Houston NANA, L.L.C. , 222
P.3d 851, 862 (Alaska 2010) (citing Thoeni v. Consumer Elec. Servs., 151 P.3d 1249,
1256 (Alaska 2007)). But because the Board used other evidence at the rebuttal stage
and did not use the medical evidence at the third stage of the presumption analysis, and
because the Commission did not use the employer's medical evidence to affirm the
(continued...)
-9- 6960
----------------------- Page 10-----------------------
at the proffered evidence in isolation without weighing it and decides whether it is
substantial.17
"Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."18
Whether the quantum of evidence is
19
substantial is a question of law. We "must take into account whatever in the record
detracts" from the weight of evidence when we consider whether evidence is
20
substantial,
but we do not choose between competing inferences or reweigh the
evidence.21
The Board relied on the testimony of Humphrey's supervisor and the
store's operations manager to decide that Lowe's rebutted the presumption. Cook
testified that Humphrey quit his job, that he was "a great employee" whom she wanted
to retain, and that she would generally have to be present if the store manager fired one
of her employees. Montgomery, too, recalled that Humphrey had voluntarily quit. He
testified he did not recall ever giving Humphrey the choice of resigning or being
terminated, as Humphrey testified, and denied ever having "a sit-down conversation"
with him at all.
16(...continued)
Board's decision, any error was harmless.
17 McGahuey , 262 P.3d at 620.
18 DeYonge v. NANA/Marriott , 1 P.3d 90, 94 (Alaska 2000) (citation and
internal quotation marks omitted).
19 Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 630
(Alaska 2011) (citation omitted).
20 Id. (quoting Lopez v. Adm'r, Pub. Emps.' Ret. Sys. , 20 P.3d 568, 570
(Alaska 2001)) (internal quotation marks omitted).
21 Cowen v. Wal-Mart, 93 P.3d 420, 424 (Alaska 2004) (quoting Steffey v.
Municipality of Anchorage , 1 P.3d 685, 689 (Alaska 2000)).
-10- 6960
----------------------- Page 11-----------------------
Documentary evidence from Lowe's also supported its position:
Humphrey's personnel file contains his February 16 note that he was quitting due to
transportation and housing difficulties as well as evidence that his termination date was
two weeks later on March 1, consistent with a finding that he quit on two weeks' notice.
The records also show he was eligible for rehire, and they give no indication that he
underwent progressive discipline, as Montgomery testified was required to precede
termination.
It is true, as Humphrey contends, that Lowe's submitted evidence that
might have supported Humphrey's argument as well; but it is not so "dramatically
disproportionate" to the evidence against it as to preclude affirming the Board's
decision.22
As an example, Humphrey cites the notes of the workers' compensation
insurance adjuster stating he "was terminated";23 but the adjuster's notes later say he
"put in 2 weeks notice, he was not term[inat]ed by Lowe's."
Though the evidence thus conflicts, a reasonable mind could accept it as
sufficient to support a conclusion that Humphrey voluntarily quit his job at Lowe's for
reasons unrelated to his injury. The evidence therefore rebuts the presumption that his
departure was injury-related.24
22 Shea, 267 P.3d at 634 n.40.
23 Lowe's argues that "terminate" is ambiguous in context and could mean
simply "conclude," but the grammatical construction of the sentence is more consistent
with Humphrey's interpretation. See BRYAN A. GARNER , GARNER 'S DICTIONARY OF
LEGAL USAGE 659 (3d ed. 2011) (explaining that in the passive voice, the subject of the
sentence "is acted upon").
24 Humphrey argues that the Board erred in not specifically finding that his
departure from the workforce was unrelated to his injury. But in the context of the
governing law, which the Board applied, its finding that Humphrey voluntarily quit
(continued...)
-11- 6960
----------------------- Page 12-----------------------
Once the presumption is rebutted, the burden shifts to the employee to
25
prove his claim by a preponderance of the evidence. Humphrey therefore had to
convince the Board, by a preponderance of the evidence, that he left involuntarily (and
for reasons other than misconduct, which would disqualify him from benefits).26
The
Board acknowledged that "the testimony and evidence about [Humphrey's] departure
from Lowe's [was] conflicting," but it thought "the most likely explanation" was that
Humphrey voluntarily quit, a conclusion the Commission affirmed. Humphrey contends
that the Commission erred in deciding that substantial evidence supported the Board's
finding and that the Commission further erred because the Board's findings were
inadequate. He argues that the testimony of the witnesses the Board found credible was
inconsistent, that the Board needed to explain the inconsistencies, and that the
Commission erred by accepting the Board's decision.
But we have never required the Board to explain every inconsistency in lay
testimony. And even if the witnesses for Lowe's testified inconsistently in some details,
their testimony as a whole supported the company's position that Humphrey voluntarily
quit. The Commission had to accept the Board's determination that Montgomery and
Cook were credible and Humphrey was not, as the Board's credibility findings are
24(...continued)
necessarily implies that he left work for other reasons.
25 Cowen, 93 P.3d at 426 (citation omitted).
26 See Vetter v. Alaska Workmen's Comp. Bd. , 524 P.2d 264, 266 (Alaska
1974) (noting that disqualification is proper when employee is terminated for misconduct
not related to injury); see also Robles v. Providence Hosp., 988 P.2d 592, 594-96 (Alaska
1999) (discussing disability eligibility when employer could no longer accommodate
worker's disability).
-12- 6960
----------------------- Page 13-----------------------
27
binding on the Commission by statute. Although Humphrey can again point to
conflicting evidence, we have held many times that conflicting evidence is insufficient
to overturn a decision of the Board when there is substantial evidence that supports it.28
Setting aside for the moment the issue of whether Humphrey left Lowe's
voluntarily, we observe that TTD benefits can be paid when the employee is totally
disabled from work, even if he stopped working for other reasons.29
But Humphrey
points to no evidence from the period of disqualification - such as a doctor's note -
that would support a conclusion that he was totally disabled during that time. When his
employment at Lowe's ended, he had been released by his doctor to work with
restrictions, which Lowe's appeared to be accommodating. Humphrey testified at the
hearing that he minimized his pain in discussions with a healthcare provider so that he
could return to work more quickly, and he emphasizes on appeal that he was still in
considerable pain when he returned to work. But Lowe's was justified in relying on the
doctor's note when making Humphrey's work assignments.
Humphrey also argues that the Board failed to make findings about his
"intentions of reentering the workforce following his departure from the workforce" in
February 2010. While there is evidence that Humphrey was generally motivated to
work, as he contends, he points to no evidence showing that he made efforts to find
suitable work after his departure from Lowe's, either in Fairbanks or in Nevada.
27 Sosa de Rosario v. Chenega Lodging, 297 P.3d 139, 146 (Alaska 2013)
(quoting AS 23.30.128(b)).
28 See, e.g., Robinson v. Municipality of Anchorage , 69 P.3d 489, 493 (Alaska
2003).
29 Cortay v. Silver Bay Logging, 787 P.2d 103, 107-08 (Alaska 1990).
-13- 6960
----------------------- Page 14-----------------------
Because he does not show that this issue was both material and contested at the hearing,
30
we cannot fault the Board for failing to make a finding about it.
In sum, substantial evidence in the record supports the Board's finding that
Humphrey voluntarily left his job at Lowe's and thus removed himself from the
workforce for reasons unrelated to his injury, and we affirm the Commission on this
issue.
B. The Commission Erred In Denying Attorney's Fees To Humphrey For
The Appeal.
We agree with Humphrey, however, that the Commission should have
awarded him attorney's fees for his appeal. Although he was unable to persuade the
Commission that the Board erred in its decision to deny TTD benefits, he raised enough
questions about the sufficiency of the Board's award of attorney's fees that the
Commission vacated the award and remanded the issue to the Board; the Commission
concluded that the existing findings were inadequate for appellate review and that the
Board needed to discuss the applicability of AS 23.30.145(a), the fee statute that
apparently governed Humphrey's request for fees before the Board. Despite this remand,
however, the Commission denied Humphrey's request for attorney's fees for the appeal
under AS 23.30.008(d),31
deciding that "[b]y any standard, Humphrey was not the
successful party in this appeal."
30 Bolieu v. Our Lady of Compassion Care Ctr. , 983 P.2d 1270, 1275 (Alaska
1999) (citations omitted).
31 AS 23.30.008(d) provides that the Commission "shall award a successful
party" who is represented by counsel "attorney fees that the commission determines to
be fully compensatory and reasonable."
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----------------------- Page 15-----------------------
Humphrey argues that his case is controlled by Lewis-Walunga v.
Municipality of Anchorage32 and that the Commission erred in deciding he was not a
successful party on appeal. Lowe's attempts to distinguish Lewis-Walunga by arguing
that the "primary issue" on appeal in this case was the TTD claim and, with respect to
the attorney's fees issue, that Humphrey did not get what he asked for.
In Lewis-Walunga , we reversed the Commission's denial of attorney's fees
to a claimant and held that "a claimant is a successful party in an appeal to the
Commission when the claimant prevails on a significant issue in the appeal."33
We
reviewed the Commission's findings on what the claimant had sought and obtained by
appealing, and we decided the finding that she had not won "the essential element" of
the relief she sought was not supported by substantial evidence.34
Following Lewis-Walunga , a claimant who prevails on "a significant issue"
on appeal is a successful party;35 there is no requirement that the claimant prevail on all
issues or even the main issue. Humphrey's appeal to the Commission presented two
significant issues: TTD and attorney's fees. With regard to the fee award, Humphrey
argued that the Board had incorrectly applied AS 23.30.145(a); had failed, in its fee
award, to consider parts of the claim on which he prevailed; and had failed to consider
that he in fact won the main issue before the Board, the compensability of his continued
disability. Humphrey asked for a remand with instructions to enter an increased fee
award. Although the Commission did not give that instruction in its remand, it did give
32 249 P.3d 1063 (Alaska 2011).
33 Id. at 1068.
34 Id. at 1069-70.
35 Id. at 1068 (emphasis added).
-15- 6960
----------------------- Page 16-----------------------
Humphrey an opportunity for an increased fee award from the Board that he would not
36
have had absent the Commission's decision.
In refusing to award fees for the appeal, the Commission said, "[W]hether
the board awards [Humphrey] more attorney's fees on remand remains to be seen." But
in Lewis-Walunga we rejected the notion that success on appeal is tied to success on the
underlying claim: there we interpreted the legislature's use of the phrase "[i]n an appeal"
in AS 23.30.008(d) as a "signal that the Commission's fee award is independent of
37
success in the underlying claim." It was therefore error for the Commission in this case
to consider, in its fee decision, the possibility that Humphrey might not win on remand
to the Board. Humphrey is entitled to "fully compensable and reasonable" attorney's
fees for his appeal to the Commission under AS 23.30.008(d).38
V. CONCLUSION
Because the Commission correctly concluded that substantial evidence in
the record supported the Board's TTD decision, we AFFIRM that part of the
36 Cf. Municipality of Anchorage v. Anderson, 37 P.3d 420, 422 (Alaska
2001) (Matthews, J., dissenting) (stating that claimant was not a "successful claimant"
on appeal because he "gained no advantages by the appeal that were not already
available to him simply by complying with the board's order").
37 Lewis-Walunga , 249 P.3d at 1069.
38
Humphrey included an argument about the Board's fee award in his brief,
but Lowe's contends the argument is waived because it was not included in the points
on appeal. We do not decide the merits of the issue because the Commission has
remanded it to the Board. We do note, however, that Humphrey succeeded on his
controverted claim for compensation for his continued disability and medical treatment.
Alaska Statute 23.30.145(a) establishes a minimum fee award under such circumstances.
The purpose of the law is "to make attorney fee awards both fully compensatory and
reasonable so that competent counsel will be available to furnish legal services to injured
workers." Cortay v. Silver Bay Logging, 787 P.2d 103, 108 (Alaska 1990) (emphasis in
original) (citations and internal quotation marks omitted).
-16- 6960
----------------------- Page 17-----------------------
Commission's decision. We REVERSE its denial of attorney's fees for Humphrey's
appeal to the Commission and REMAND for proceedings consistent with this opinion.
-17- 6960
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