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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bryce Warnke-Green v. Pro-West Contractors, LLC and Liberty Northwest Insurance Company (4/26/2019) sp-7356
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
BRYCE WARNKE-GREEN, )
) Supreme Court No. S-16821
Petitioner, )
) Alaska Workers' Compensation
v. ) Appeals Commission No. 16-014
)
PRO-WEST CONTRACTORS, LLC
) O P I N I O N
and LIBERTY NORTHWEST )
INSURANCE COMPANY, ) No. 7356 - April 26, 2019
)
Respondents. )
)
Petition for Review fromthe Alaska Workers' Compensation
Appeals Commission.
Appearances: Eric Croft, The Croft Law Office, LLC,
Anchorage, for Petitioner. Constance E. Livsey, Barlow
Anderson, LLC, Anchorage, for Respondents.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
MAASSEN, Justice.
I. INTRODUCTION
The Alaska Workers' Compensation Board denied a worker's request that
his employer pay for a van modified to accommodate his work-related disability. On
appeal, the Alaska Workers' Compensation Appeals Commission decided that a
modifiable van was a compensable medical benefit. The worker moved for attorney's
----------------------- Page 2-----------------------
fees. The Commission reduced the attorney's hourly rate, deducted a few time entries,
and awarded him less than half of what was requested. The worker asked the
Commission to reconsider its award, but it declined to do so because of its view that the
Alaska Workers' Compensation Act (the Act) allows it to reconsider only the final
decision on the merits of an appeal.
We granted the worker's petition for review. We hold that the Commission
has the necessarily incidental authority to reconsider its non-final decisions. We also
reverse the Commission's award of attorney's fees and remand for an award that is fully
compensable and reasonable.
II. FACTS AND PROCEEDINGS
Bryce Warnke-Green was rendered tetraplegic by a work-related accident
in 2014 in Nome, his hometown. He was treated in Seattle at Harborview Medical
Center and remained in that area while continuing to receive medical care.
To get to his medical appointments, Warnke-Green used a cabulance -
which he described as a taxicab for wheelchair users - or, when medically necessary,
an ambulance. He testified that the cabulance was not entirely reliable, which caused
him to miss some appointments. In late 2015 Warnke-Green's father asked the
employer, Pro-West Contractors, LLC, to provide Warnke-Green with a modified van.
Pro-West had earlier disputed that Warnke-Green's choice of a long-term transportation
option would "be compensable under [his] claim," but the parties discussed settling the
van issue. Pro-West sent a draft settlement agreement to Warnke-Green providing for
Pro-West's "one time only purchase" of a modified van in exchange for his waiver of
"all further entitlement to . . . transportation reimbursement" other than for medical
emergencies.
Warnke-Green did not sign the agreement; instead, he obtained an attorney
and filed a workers' compensation claim for a "new modified van." Pro-West answered
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the claim, "d[id] not admit any portion" of it, and raised as an affirmative defense that
1
Warnke-Green had agreed to a settlement but refused to sign it.
Warnke-Green later
sent a revised settlement agreement to Pro-West that preserved his future entitlement to
transportation reimbursements, but Pro-West did not agree to it.
The Board held a hearing on the "modified van" claim in April 2016. The
competing draft settlement agreements were included in the record without objection,
though both parties acknowledged that their inclusion was "odd" and "rather unusual."
Inhisprehearingmemorandum, Warnke-Greencitedcasesfromotherstates
holding that modifying an existing vehicle or acquiring a van with modifications was
compensable as a medical benefit. At the hearing he asked for a modified van - his
attorney said that "[i]t [did]n't have to be a new one" - with an offset of $500 to $1,000
representing the value of an old Chevrolet Suburban he had in Nome.
Pro-West, in its prehearing memorandum, identified the "majority view"
based on out-of-state cases: "that the employer/insurer generally must pay for the special
equipment required to outfit a vehicle" but not "the purchase price of the vehicle itself."
According to Pro-West, other states had adopted "the 'Crouch rule' or 'Crouch
formula,' " under which the employer is responsible for "the cost of any special
equipment or adaptations to a vehicle or van, plus the cost difference between that
vehicle and an ordinary non-adapted vehicle such as the type the employee would
otherwise have owned." (Emphasis omitted.) Pro-West contended that the Board had
already adopted the Crouch rule and had applied it "consistently since 1981." Pro-West
also discussed cases from three jurisdictions that rejected similar claims entirely, based
on their statutes. At the hearing Pro-West argued that if it was required to provide a van,
1 Under AS 23.30.012(b), a workers' compensation settlement agreement
between an unrepresented claimant and an employer must be reviewed and approved by
the Board to be enforceable.
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it should owe only the difference in price between "a standard American car or pickup
and a van that's modified," explicitly denying that the offset should be only the value of
Warnke-Green's old Suburban.
TheBoarddenied Warnke-Green's claiminits entirety. TheBoard decided
that under the Act a modified van was not a medical benefit - specifically that it was
2 The Board also decided in the
neither an "apparatus" nor a "prosthetic device."
alternative that if a van was a medical benefit, the facts of the case did not require the
employer to purchase one because Warnke-Green needed a car for personal, not medical,
reasons. The Board decided that Warnke-Green was not entitled to a modified van as a
transportation benefit either. It dismissed the precedential value of earlier decisions
requiring employers to purchase modified vans for employees with similar catastrophic
injuries, reasoning that those cases lacked "any legal authority or factual findings to
support their results." It declined to follow the Crouch rule - by which the employer
pays for modifications plus the difference in cost between the modifiable vehicle and an
ordinary, unadapted vehicle - because the cases that adopted the rule "were based on
the premise an automobile was a compensable apparatus or device under the applicable
state's workers' compensation statute."
Warnke-Green appealed to the Commission. The Commission, while
agreeing with the Board that a modified van was not a "prosthetic device," decided that
2 The Act requires employers to "furnish medical, surgical, and other
attendanceor treatment, nurseand hospital service, medicine, crutches, andapparatus for
the period which the nature of the injury or the process of recovery requires . . . ."
AS 23.30.095(a). "[M]edical and related benefits" include but are "not limited to
physicians' fees, nurses' charges, hospital services, hospital supplies, medicine and
prosthetic devices," and "prosthetic devices" include but are not limited to "eye glasses,
hearing aids, dentures, and such other devices and appliances . . . ." AS 23.30.395(26),
(33).
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it was an "apparatus" included within the Act's definition of "medical benefits." It
therefore held Pro-West responsible for "any increased cost associated with the purchase
of a modifiable motor vehicle and any necessary modifications which will enable
Mr. Warnke-Green to use the motor vehicle." The Commission anticipated an offset,
noting its belief that the parties had agreed that Warnke-Green would contribute the
value of his "inoperable Suburban van." The Commission remanded the case to the
Board for further proceedings consistent with its decision.
Warnke-Green then moved for over $30,000 in attorney's fees as the
3 including with his motion an itemized
successful party in the Commission appeal,
affidavit. The requested hourly rates for attorneys were $400 an hour for Eric Croft and
$300 an hour for Selena Hopkins-Kendall; the rate for paralegal time was $170 an hour.
Pro-West did not question the requested hourly rates or any individual time
entries. It did oppose the motion, however, on grounds that Warnke-Green was not "a
successful party" because "[h]e did not prevail on his November 27, 201[5] claim
seeking 'a new modified van.' " Pro-West argued that it was the successful party in the
Commission appeal; it quoted part of the Commission's decision to the effect that Pro-
West had only "asked him to contribute the value of his Suburban which Mr. Warnke-
Green estimates to be between $500 and $1,000." Pro-West further contended that the
Commission'sdecision validatedthepositionPro-Westhad held consistentlyboth before
and after Warnke-Green filed his claim. It maintained that Warnke-Green "gained
nothing from the entirety of this litigation."
The Commission, in considering the attorney's fees motion, first reduced
the total requested. It decided without explanation that $350 an hour was "a reasonable
3
Alaska Statute 23.30.008(d) provides that the Commission "shall award a
successful party reasonable costs" and attorney's fees.
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----------------------- Page 6-----------------------
hourly rate for an attorney practicing in the area of workers' compensation with [Croft's]
experience and expertise" and reduced his hourly rate accordingly. It deducted 2.4 hours
from Croft's total hours: a tenth of an hour for what the Commission thought was a
duplicate billing for an email and 2.3 hours for paralegal supervision, which according
to the Commission should have been included in overhead. 4
The Commission then considered whether Warnke-Green "actually
prevailed on a significant issue on appeal." The Commission agreed with Pro-West that
Warnke-Green, having been awarded a modified van minus the value of his Suburban,
"obtained only what had been offered prior to the filing of his claim," which the
Commission said was "considerably less than what Mr. Warnke-Green sought." The
Commission cut in half the "adjusted fees" and awarded attorney's fees of $13,956.00.
Warnke-Green asked the Commission to reconsider its decision, arguing
that (1) Pro-West's litigation position was not what the Commission seemed to think it
was;(2)theCommission'sdecision gaveWarnke-Green morethan Pro-West had offered
in settlement; and (3) the fee reductions were not justified. The Commission denied
reconsideration, however, reasoning that it was allowed to "only reconsider a final
decision on the merits of an appeal." (Emphasis in original.)
Warnke-Green filed a petition for review, which we granted as to these
three issues:
(1) Does the Commission have authority to reconsider orders
that are not final decisions? If so, what is the source of the
authority and what limits, if any, are there on this authority?
(2) Did the Commission err in considering the parties'
underlying litigation before the Board, including any
settlement offers, in determining the amount of attorney's
fees to be awarded for the appeal before the Commission?
4
The Commission made two additional deductions not at issue in this appeal.
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(3) Did the Commission abuse its discretion by awarding the
employee less than his full reasonable attorney's fees after he
prevailed in his appeal before the Commission?
III. STANDARDS OF REVIEW
Whether the Commission has the authority to reconsider orders other than
final decisions on the merits is a question of law to which we apply our independent
judgment. 5
We interpret a statute "according to reason, practicality, and common sense,
considering the meaning of the statute's language, its legislative history, and its
6
purpose."
Weuseour independent judgmentto interprettheattorney'sfeesprovisions
7
of the Workers' Compensation Act. While we may consider an agency's interpretation
5 See Monzulla v. Voorhees Concrete Cutting , 254 P.3d 341, 343-44 (Alaska
2011) (using independent judgment when considering whether Commission had
authority over interlocutory review of Board orders).
To the extent Pro-West is arguing that we should defer to the Commission
because it is interpreting its own regulation regarding reconsideration, we reject that
argument. The regulation has no substantive content and merely outlines the process for
requesting reconsideration of final decisions. 8 Alaska Administrative Code (AAC)
57.230(a) (2011).
6 Louie v. BP Expl. (Alaska), Inc., 327 P.3d 204, 206 (Alaska 2014) (citing
Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003)).
7 See, e.g., Burke v. Raven Elec., Inc., 420 P.3d 1196, 1202, 1208 (Alaska
2018) (holding that meaning of "injured worker" in AS 23.30.008(d), governing
attorney's fees awards on Commission appeals, was question of statutory interpretation
reviewed using independent judgment); State, Div. of Workers' Comp. v. Titan Enters.,
LLC, 338 P.3d 316, 320-21 (Alaska 2014) (using independent judgment to determine
whether nonclaimants can be awarded fees in Commission appeals against other
nonclaimants); Underwater Constr., Inc. v. Shirley, 884 P.2d 156, 158 (Alaska 1994)
(holding that question whether Board had authority to award fees under AS 23.30.145(a)
"require[d] statutory interpretation involving no administrative expertise").
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----------------------- Page 8-----------------------
of a statute "within [the agency's] area of jurisdiction[,] . . . particularly when the
8
agency's interpretation is longstanding,"
there is no indication that the Commission, in
its award of attorney's fees in this case, was applying a longstanding interpretation of the
9
statute.
We review the amount of fees awarded for abuse of discretion.10 To the
extent the Commission's decision is based on findings of fact, we consider whether the
findings are "supported by substantial evidence in light of the whole record."11
"Substantial evidence is 'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.' "12
8 Hendricks-Pearce v. State, Dep't of Corr. , 323 P.3d 30, 35 (Alaska 2014).
9 Pro-West cites Dockter v. Southeast Alaska Regional Health Consortium ,
AWCAC Dec. No. 246 (Mar. 29, 2018), and Rusch v. Southeast Alaska Regional Health
Consortium, AWCAC Dec. No. 245 (Mar. 29, 2018), in support of an argument that we
should defer to the Commission's interpretation of attorney's fees statutes. Both cases
are about Board awards of attorney's fees under AS 23.30.145, not fees for Commission
appeals under AS 23.30.008(d). Commission decisions do not show that the
Commission generally considers the positions taken before the Board when awarding
fees on appeal, as it did here. See Municipality of Anchorage v. Syren , AWCAC Dec.
No. 015 at 2-3 (Aug. 3, 2006) (considering parties' positions and success before the
Commission in awarding fees); Doyon Drilling Inc. v. Whitaker, AWCAC Dec. No. 008
at 2 (Apr. 14, 2006) (same).
10 See Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002) (citing Bouse v.
Fireman's Fund Ins. Co., 932 P.2d 222, 241 (Alaska 1997)) (applying abuse of
discretion standard to amount of fees under Board award); cf. Shehata v. Salvation Army,
225 P.3d 1106, 1119 (Alaska 2010) (applying abuse of discretion standard to question
of frivolousness).
11 Lewis-Walungav. MunicipalityofAnchorage,249P.3d1063,1066 (Alaska
2011) (quoting AS 23.30.129(b)).
12 Burke v. Houston NANA, L.L.C., 222 P.3d 851, 858 (Alaska 2010) (quoting
(continued...)
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IV. DISCUSSION
A. The Commission's Authority To Reconsider Its Decisions Is Not
Limited To Its Final Decisions On The Merits.
The Commission's refusal to reconsider its attorney's fees order was
evidently based on its belief that it lacks authority to do so under the Act. After quoting
13
AS 23.30.128(e), which describes decisions on appeal, the Commission set out the text
of AS 23.30.128(f), which describes the process of reconsideration, and cited its
14
regulation on the same subject. The Commission emphasized subsection (f)'s
references to subsection (e):
A party or the director may request reconsideration of a
decision issued under (e) of this section within 30 days after
the date of service shown in the certificate of service of the
decision . . . . The power to order reconsideration expires 60
days after the date of service, as shown on the certificate of
[15]
service, of a decision issued under (e) of this section . . . .
Noting that the statute and regulation addressed only "a final decision on the merits of
an appeal," the Commission concluded that there was "no provision in either the Alaska
Statutes or the Commission's regulations for reconsideration of the Commission's
12 (...continued)
DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000)).
13 Alaska Statute 23.30.128(e) sets out the deadline for the Commission to
issue a decision in an appeal, a decision's necessary elements, instructions for its service,
and direction that "[u]nless reconsideration is ordered under (f) of this section," the
decision described in subsection (e) "is the final commission decision."
14 8 AAC 57.230(a) ("A party may request reconsideration of a final
commission decision by filing a motion, supported by an affidavit or other evidence of
the specific grounds for reconsideration, as provided in AS 23.30.128(f).").
15 AS 23.30.128(f) (emphasis supplied by Commission).
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rulings on motions." It held that "Mr. Warnke-Green's motion for reconsideration
cannot be considered on this basis."
The Commission is correct that the language of AS 23.30.128(f), while
addressing reconsideration in detail, is silent about reconsiderationofany decisions other
than the final decisions on appeal described in subsection (e). Nor is reconsideration of
interim orders meaningfully discussed in the Act's description of the Commission's
16 or in its outline of the procedure to be used in Commission appeals.17
powers and duties
According toPro-West,this statutory silenceis evidencethat thelegislature
decided against allowing the Commission a general authority to reconsider its
decisions.18 We recognized in Greater Anchorage Area Borough v. City of Anchorage
that administrative agencies have "no inherent powers, but only such as have been
expressly granted to [them] by the legislature or have, by implication, been conferred
upon [them] as necessarily incident to the exercise of those powers expressly granted."19
More recently, in Monzulla v. Voorhees Concrete Cutting, we interpreted the Act as
giving the Commission implied authority over interlocutory review, setting out factors
other courts have considered when evaluating whether an administrative agency
16 AS 23.30.008.
17 AS 23.30.128.
18 At times Pro-West appears to interpret the Commission's order differently
from our reading of it, arguing that the Commission, by regulation, has simply chosen
not to exercise its reconsideration authority. The more natural reading of the
Commission's order is that it found no authority to reconsider decisions other than those
described in AS 23.30.128(e). We see no other explanation for the Commission's
addition of emphasis when quoting AS 23.30.128(f) and 8 AAC 57.230(a).
19 504 P.2d 1027, 1033 n.19 (Alaska 1972), overruled on other grounds by
City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).
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20
"properly exercised an implied power." Monzulla requires us to consider whether
Commission authority to reconsider decisions other than final decisions is "necessarily
incident to the exercise of those powers expressly granted" to the Commission. 21
Alaska Statute 23.30.128 sets out "Commission proceedings." Subsection
(d) grants the Commission the authority to "affirm, reverse, or modify a decision or order
upon review and issue other orders as appropriate." (Emphasis added.) We conclude
that an adjudicative body's authority to "issue other orders as appropriate" is broad
enough to include a general authority to reconsider decisions other than final decisions.
Other state courts haverecognized that administrativeagencies with adjudicative powers
necessarily have authority to reconsider their decisions because reconsideration is a
22 Indeed, the issue courts face more frequently is whether
necessary part of adjudication.
an agency has the authority to reconsider its final decisions in the absence of explicit
statutoryauthority.23 Alaska Statute23.30.128(f)givesusunmistakabledirection on that
issue. And we conclude that construing the Act as allowing reconsideration of final
decisions but not others would be inconsistent with the overall purposes of the Act and
the 2005 amendments that created the Commission.
20 254 P.3d 341, 346-47 (Alaska 2011).
21 Greater Anchorage Area Borough, 504 P.2d at 1033 n.19.
22 See, e.g., Olmstead v. Dep't of Telecomms. & Cable, 999 N.E.2d 125, 127
n.5 (Mass. 2013) (inherent authority); Cty. of Douglas v. Neb. Tax Equalization &
Review Comm'n, 894 N.W.2d 308, 323 (Neb. 2017) (implied authority); Boydston v.
Liberty Nw. Ins. Corp., 999 P.2d 503, 505-06 (Or. App. 2000) (inherent power).
23 See E. H. Schopler, Annotation, Power of administrative agency to reopen
and reconsider final decision as affected by lack of specific statutory authority, 73
A.L.R.2d 939 (1960).
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Werecognized in Monzulla that "[t]he goal of thestatutory amendment that
established the Commission was 'to increase the efficiency and flexibility of the current
24 And we agreed "that the legislature wanted
system . . . and reduce some of its costs.' "
those seeking review of Board decisions to have the same procedural rights of review
that they had in the superior court."25 As a general matter, the legislature has directed
that the Act be construed "to ensure the quick, efficient, fair, and predictable delivery of
indemnity and medical benefits to injured workers at a reasonable cost to . . .
employers."26
Consistent with these purposes, we interpret the Act as allowing the
Commission to reconsider its non-final orders. In the context of the doctrine requiring
exhaustion of administrative remedies, we have consistently emphasized the benefit to
"both administrative autonomy and judicial economy" when an administrative body is
allowed the opportunity "to correct its errors and a complainant [is allowed the
27 Pro-West suggests that an
opportunity] to obtain relief without judicial intervention."
appeal is a sufficient substitute for reconsideration, but we disagree. An appeal can be
time-consumingandcostlyandsometimes involvesignificant delay,especially when any
24 254 P.3d at 346 (quoting 2005 Senate Journal 465).
25 Id. at 347.
26 AS 23.30.001(1).
27 Smart v. State, Dep't of Health & Soc. Servs., 237 P.3d 1010, 1015 (Alaska
2010); see also Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation, 145
P.3d 561, 566 (Alaska 2006) ("[A]s we have noted, the purpose of an administrative
review process is to allow an agency 'to correct its own errors so as to moot judicial
controversies.' " (quoting Voigt v. Snowden, 923 P.2d 778, 781 (Alaska 1996))).
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28
chance for appellate review of a non-final order must await the case's final disposition.
An error corrected on reconsideration reflects the administrative agency's best-informed
judgment and is one less reason for a judicial appeal, with the time and cost that
invariably entails.
We further note that because Commission regulations governing motions
29 reconsideration may be the only opportunity a
do not permit replies to oppositions,
party has short of an appeal to point out errors in the opposition. In this case Warnke-
Green attempted in his reconsiderationmotiontocountersomeassertionsPro-West made
in its opposition; he also provided evidence to the Commission related to issues the
Commission raised on its own - for example, showing that the Commission was
mistaken in its finding that his attorney had billed twice for a single email.
At oral argument before us, Pro-West agreed that the Commission could
reconsider non-final orders when it had made an obvious mistake - for example by
deciding a motion without considering a timely filed opposition - but did not articulate
a clear standard for identifying an obvious mistake. Like Pro-West, we are aware of no
principled way to identify those mistakes that are sufficiently obvious to permit
reconsideration. We do not suggest that the Commission must entertain any and all
motions for reconsideration; we agree with Warnke-Green that "the proper course is to
clarify that the right exists and allow the [Commission] to adopt regulations clarifying
28 See Municipality of Anchorage v. Anderson , 37 P.3d 420, 422-23 (Alaska
2001) (Matthews, J., dissenting) (setting out paths for review of attorney's fees decision
when superior court remanded case to Board).
29 See 8 AAC 57.100 (permitting opposition to stay request, but making no
provisionfor reply); 57.140 (permitting opposition to somemotions forextension oftime
but not providing for replies); 57.210 (allowing opposition to motions, but making no
provision for reply); 57.260 (allowing opposition to motion for attorney's fees, but
making no provision for reply).
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----------------------- Page 14-----------------------
the scope and limits of the right." We therefore hold that AS 23.30.128(f) does not
prohibit the Commission from reconsidering orders other than the final decisions
described in AS 23.30.128(e) because the authority to reconsider is necessarily incident
30
to the Commission's express authority to "issue other orders as appropriate."
B. The Commission Erred By Considering The Parties' Underlying
LitigationBeforeTheBoard, Including TheirSettlementOffers,When
Determining Attorney's Fees For The Commission Appeal.
Because the Commission thought the amount of fees Warnke-Green
requested was excessive, it reduced Croft's hourly rate and disallowed some time entries
to arrive at a base fee amount. It then considered the "more difficult" question of
whether Warnke-Green "actually prevailed on a significant issue on appeal." The
Commission observed that Warnke-Green's claim before the Board "asked specifically
for a 'new modified van' " and that Pro-West "denied the 'new modified van' and as an
affirmative defense stated the employer was not required to pay the full cost of the
modified van as [the] employee had owned a vehicle at the time of injury." The
Commission noted that it "affirmed the Board's decision that a modifiable van was not
a prosthetic device" but otherwise disagreed with the Board, concluding that the van was
"an apparatus . . . and thus a compensable medical benefit." The Commission then
decided, however, that Warnke-Green "obtained only what had been offered prior to the
filing of his claim," and the only real benefit achieved by the appeal was clarification
"that an injured worker needs to contribute the value of the vehicle owned at the time of
injury towards the purchase of the modified van." The Commission wrote "that this
clarification might be considered to be a significant issue, although it is considerably less
than what Mr. Warnke-Green sought." It concluded that it was "appropriate to award
30
AS 23.30.128(d).
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----------------------- Page 15-----------------------
as a full compensatory and reasonable fee the amount of $13,956.00, or one-half of the
adjusted fees."
We held in Lewis-Walunga v. Municipality of Anchorage that a successful
party in a Commission appeal under AS 23.30.008(d) is the same as a "successful
claimant" under former Alaska Appellate Rule 508(g)(2), which served as a model for
31 A successful party is one who prevailed "on a significant issue on
AS 23.30.008(d).
32 Interpreting AS 23.30.008(d), we observed that its language "signal[s] that
appeal."
the Commission's fee award is independent of success in the underlying claim" and
"does not tie a fee award to success on a claim - it instructs the Commission to award
fees in the appeal."33 We later reiterated that success on appeal is not tied to success on
the claim itself and that a claimant need not prevail on all issues to be a successful party
34
on appeal.
Because success on appeal is not tied to success on the claim itself, neither
the relief Warnke-Green requested in his initial worker's compensation claim nor Pro-
31 249 P.3d 1063, 1067-68 (Alaska 2011).
32
Id. at 1068 & n.16 (emphasis added) (summarizing attorney's fees awards
under former Appellate Rule 508(g)(2)).
33 Id. at 1068.
34 Humphrey v. Lowe's Home Improvement Warehouse, Inc., 337 P.3d 1174,
1182 (Alaska 2014). We note that earlier Commission decisions interpreted
AS 23.30.008 similarly, deciding that success in an appeal was unrelated to success on
the underlying claim. See Municipality of Anchorage v. Syren, AWCAC Dec. No. 015
at 1-3 (Aug. 3, 2006) (considering parties' positions and success before the Commission
in awarding fees); Doyon Drilling Inc. v. Whitaker, AWCAC Dec. No. 008 at 2 (Apr. 14,
2006) (same). In this case, the Commission did not mention or cite these decisions,
which under AS 23.30.008(a) and our interpretation of it are precedential for the
Commission. See Alaska Pub. Interest Research Grp. v. State, 167 P.3d 27, 44-45
(Alaska 2007).
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----------------------- Page 16-----------------------
West's settlement offer is legally relevant to whether he was a successful party on
appeal. To determine success on appeal, the Commission needs to consider what the
Board ordered, what the parties sought in the appeal, and what the appeal decided.
The Board decided that a modified van was not a transportation benefit or
a medical benefit (being neither an "apparatus" nor a "prosthetic device") and denied
35 Onappeal, Warnke-Green askedtheCommission
Warnke-Green's claimin itsentirety.
"to conclude legally that a modified van is an allowable medical or related transportation
benefit under the Act" and to "order the insurance company to either pay the full price
of the modified van or deduct only the value of the actual vehicle [he] owned." The
Commission did just as Warnke-Green requested: It decided that "any increased costs
associated with the purchase of a modifiable motor vehicle and any necessary
modifications which will enable Mr. Warnke-Green to use the motor vehicle are
encompassed in the language 'apparatus' and, thus, are compensable medical benefits
under the Act." The Commission found that the parties had agreed to the amount of any
36 On this record, we see no
offset based on the value of Warnke-Green's old Suburban.
basis for questioning Warnke-Green's success in the appeal; the Commission awarded
what he asked for. The Commission's conclusion that Warnke-Green obtained
"considerably less than what [he] sought" is erroneous.
35 Pro-West advocated denial of the claimas an alternative position before the
Board, but this was not its principal position.
36 We have been unable to find support for this finding in the record
preceding theattorney'sfees litigation, but Pro-West concededthepoint in its opposition
to the attorney's fees motion in the Commission: "As the Commission noted in its
Decision, Employer 'Pro-West . . . has asked [Warnke-Green] to contribute the value of
his Suburban [vehicle] which Mr. Warnke-Green estimates to be between $500 and
$1,000.' "
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Even if the parties' positions before the Board were relevant to success on
appeal, the Commission's findings here are not supported by the record. We have found
no evidence to support the Commission's conclusion in its substantive decision that "Pro
West has stated it is willing to provide Mr. Warnke-Green with a modified van, but has
only asked that he contribute something to the purchase," that being "the value of his
Suburban,"whichWarnke-Greenrefused to do. Infact Pro-West specifically denied that
this was its position when asked by the Board chair. Rather, Pro-West's main argument
was that the Board should apply the Crouch rule - "which awards an employee the cost
of any special equipment or adaptations to a vehicle or van, plus the cost difference
between that vehicle and an ordinary non-adapted vehicle such as the type the employee
would otherwise have owned" 37 (emphasis omitted) - and it advanced the alternative
argument that Warnke-Green's claim be denied in its entirety. We also agree with
Warnke-Green that what he obtained through litigation was more than Pro-West's
proposed settlement, which required him to forgo any future non-emergency medical
transportation costs; these could be considerable given his age and medical status. The
Commission's decisions thus both misstated Pro-West's litigation position and
mischaracterized Pro-West's settlement offer.
In light of the statutory mandate that the successful party in an appeal is
entitled to "fully compensable and reasonable"38 attorney's fees, the Commission's
decision to award Warnke-Green only half his fees was legal error.
37 Pro-West wrote in its hearing brief: "Importantly for the dispute now
before the Board, this [the Crouch rule] is precisely Pro-West's position here."
38 AS 23.30.008(d).
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C. The Commission Clearly Erred By Reducing The Attorney's Hourly
Rate, Abused Its Discretion By Disallowing One Time Entry, But Did
Not Abuse Its Discretion By Disallowing Others.
Warnke-Green appeals both the Commission's reduction of Croft's hourly
rate from $400 to $350 and its disallowance of 2.4 hours of Croft's time. We conclude
that the Commission clearly erred by reducing the rate without an evidentiary basis for
doing so and that its disallowance of one time entry was an abuse of discretion.
Asuccessful partyrepresentedbycounselbeforetheCommissionis entitled
to attorney's fees "that the [C]ommission determines to be fully compensatory and
39
reasonable."
Neither AS23.30.008(d) nor8AAC57.250,theCommission'sregulation
on attorney's fees, expands on the meaning of the phrase "fully compensatory and
40
and
reasonable." The Commission has published few of its attorney's fees decisions,
the parties have not cited any that are directly relevant to this question. Pro-West did not
dispute that the fees Warnke-Green requested were reasonable as to the hourly rate and
the number of hours expended; Pro-West confined its opposition to an argument that it,
not Warnke-Green, was the successful party in the appeal.
39 Id.
40 We have identified the following decisions on the Commission's website
as related to attorney's fees: Titan Enters., LLC v. State, Div. of Workers' Comp. ,
AWCAC Dec. No. 210 at 8-9 (Feb. 18, 2015) (on remand from this court, awarding
$38,000 to employer who was partially successful in appeal against Division related to
fine for failure to insure); Municipality of Anchorage v. Adamson , AWCAC Dec. No.
203 at 5 (Nov. 12, 2014) (deciding that employee's request for attorney's fees following
successful appeal to this court was too late); Rockstad v. Chugach Eareckson , AWCAC
Dec. No. 108 at 9 (May 11, 2009) (refusing to award fees to employer); Shehata v.
Salvation Army, AWCAC Dec. No. 075 at 7 (Mar. 19, 2008) (awarding fees to
employer), rev'd 225 P.3d 1106, 1119 (Alaska 2010); Municipality of Anchorage v.
Syren, AWCAC Dec. No. 015 at 8 (Aug. 3, 2006) (awarding fees to claimant for
interlocutory review); Doyon Drilling, Inc. v. Whitaker , AWCAC Dec. No. 008 at 5
(Apr. 14, 2006) (awarding fees to claimant).
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We review the amount of attorney's fees awarded for an abuse of
41
discretion.
This standard of review is consistent with both the statutory language and
42 But here
the standard we apply when reviewing attorney's fees awarded by the Board.
the Commission also made factual findings. With respect to the hourly rate, the
Commission wrote that it "f[ound] an hourly rate of $350.00 per hour to be a reasonable
hourly rate for an attorney practicing in the area of workers' compensation with the
experience and expertise exemplified by attorney Eric Croft." No evidence in the record
supports the Commission's finding,43 and the Commission did not explain it. The only
evidence of reasonable hourly rates in the record was the affidavit in support of Croft's
request for attorney's fees. This evidence was unchallenged44 and is not obviously
unreasonable; we note that we and the Board have both awarded Croft fees at this rate
45 In short, because the Commission's decision to
in other workers' compensation cases.
41 Cf. Shehata , 225 P.3d at 1119 (applying abuse of discretion standard to
question of frivolousness under AS 23.30.008(d)).
42 Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002).
43 We review the Commission's factual findings to determine whether they
are "supported by substantial evidence in light of the whole record." Lewis-Walunga v.
Municipality of Anchorage, 249 P.3d 1063, 1066 (Alaska 2011) (quoting
AS 23.30.129(b)).
44 Syren, AWCAC Dec. No. 015 at 8 n.18 (treating reasonable hourly rate as
fact issue, Commission writes that employer "submitted no evidence that the hourly fee
charged by [claimant's]attorneywas'manifestly unreasonable' "and concludes that "the
hourly fee was not challenged" (quoting State, Dep't of Revenue v. Cowgill, 115 P.3d
522, 524 (Alaska 2005))).
45 Adamson v. Municipality of Anchorage , Nos. S-15006/15025 (Alaska
Supreme Court Order, Oct. 8, 2014 and underlying motion); Rusch v. S.E.A.R.H.C.,
AWCB Dec. No. 16-0131 at 10, 16 (Dec. 21, 2016).
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reduce Croft's hourly rate is unsupported by the record, it is arbitrary and an abuse of
discretion.
Turning to the 2.4 hours of disallowed time, we begin by observing that
Pro-West did not challenge the number of hours or the reasonableness of the identified
tasks. The Commission nonetheless speculated that two entries for emails on the same
day must be duplicative and therefore disallowed one of them. Again, there is no
evidence to support the Commission's speculation, and Warnke-Green submitted copies
of two emails when he asked the Commission to reconsider its attorney's fees award.
The Commission was clearly mistaken in assuming a duplicative charge.
The Commission further reduced Croft's hours for "supervisory activities"
related to paralegals, writing that such activities "are encompassed within the billing rate
which covers office overhead." The relevant time entries are vague and do not clearly
indicate that the attorney was adding value to the work as opposed to training his staff
- which is equally necessary to the practice of law but not ordinarily chargeable to the
46 Warnke-Green does not explain the
client (or, in cases like this, to the employer).
entries further in his brief on appeal other than to emphasize the importance of attorneys'
ethical duty to carefully supervise their paralegals' work. Given the broad discretion we
ordinarily give to courts' determinations of such issues,47 we cannot conclude that it was
46 Under the heading "Supervise Paralegal Activities," the entries include, for
example, "James on brief draft schedule"; "review brief draft with James"; "JC on
research and writing tasks"; "PJ on post brief issues"; "PJ on oral argument."
47 See Hodari v. State, Dep't of Corr., 407 P.3d 468, 473 (Alaska 2017)
(observing that it is within superior court's broad discretion to "refuse to award fees
based on 'billings that are too vague to allow a fair determination that they were
reasonably incurred or incurred in connection with the . . . lawsuit' " (quoting Bobich v.
Hughes, 965 P.2d 1196, 1200 (Alaska 1998))).
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an abuse of discretion for the Commission to exclude these entries for paralegal
supervision.
With the exception of these entries, however, we conclude that the
Commission's decision here is contrary to the policy underlying former Appellate Rule
48 The purpose of awarding full reasonable
508(g) and by extension AS 23.30.008(d).
attorney's fees in workers' compensation cases is to ensure that competent counsel are
available to represent injured workers.49 The Commission abused its discretion when it
lowered Croft's hourly rate and disallowed one of his time entries without an evidentiary
basis for doing so.
V. CONCLUSION
We REVERSE the Commission's determination that it lacks the authority
to reconsider decisions other than its final decisions in an appeal. We REVERSE the
Commission's attorney's fees award and remand totheCommission for an award of fully
compensable and reasonable fees consistent with this opinion.
48 See Lewis-Walunga, 249 P.3d at 1067 (finding legislative intent for
attorney's fees in Commission appeals "to follow the same rules as appellate attorney's
fees awards in the courts").
49 Cowgill, 115 P.3d at 524; see also Syren, AWCAC Dec. No. 015 at 2-3
(interpreting AS 23.30.008(d) and recognizing objective of making competent counsel
available to injured workers).
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