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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

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  


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.  


                 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.  


                   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  

                                                             -2-                                                       6960

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it is submitted[;] if does [indecipherable] I will let store manager and Lisa know all new  


                     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  



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."  



                     Another document from Humphrey's personnel file indicates that Lowe's  

paid Humphrey through March 1.  

                                                                   -3-                                                                 6960  

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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  




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  

----------------------- Page 5-----------------------

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.  



                    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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                  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  



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  



         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  



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  


         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  


                                                          -7-                                                      6960  

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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  



                     The presumption attaches if the employee establishes a link between his  


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     


                                                            -8-                                                          6960  

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employment  and  the  injury;  at  this  step  of  the  analysis  "only  evidence  tending  to  



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  


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  


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  


                                                               -9-                                                             6960  

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at  the  proffered  evidence  in  isolation  without  weighing  it  and  decides  whether  it  is  


                      "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  



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  



                      but  we  do  not  choose  between  competing  inferences  or  reweigh  the  


                    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.  


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  



                    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  


                  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  



                                                              -11-                                                             6960  

----------------------- Page 12-----------------------

                   Once the presumption is rebutted, the burden shifts to the employee to  


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  


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  


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-----------------------


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  


         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,  


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  



           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."  

                                                                   -14-	                                                                 6960  

----------------------- 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  



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).  

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Humphrey an opportunity for an increased fee award from the Board that he would not  


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  



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.  



                    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).  

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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.     

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