DocketNumber: Supreme Court No. S-17143
Citation Numbers: 444 P.3d 165
Judges: Bolger, Carney, Maassen, Stowers, Winfree
Filed Date: 7/5/2019
Status: Precedential
Modified Date: 7/19/2022
I. INTRODUCTION
An employer disputes liability for attorney's fees the Alaska Workers' Compensation Appeals Commission awarded an employee, contending that the employee was not a successful party in the appeal and that the amount awarded was unreasonable. Because the Commission's underlying decision on the merits included a remand on one issue, we asked the parties to provide supplemental briefing on the question whether the attorney's fees order was final for purposes of appeal. We hold that such orders are not final for purposes of appeal, but we treat the putative appeal as a petition for review, grant review, and affirm the Commission's attorney's fees award.
II. FACTS AND PROCEEDINGS
Kiel Cavitt fractured his right elbow while working as an auto shop glazier for D&D Services in August 2015. He later received compensation for a permanent partial impairment. Cavitt was unable to continue working as a glazier, and he subsequently went to work as a pizza delivery driver.
Cavitt fell on his outstretched right hand in February 2017, and a medical scan the following month showed damage to the hardware *167inserted to repair the elbow injury. Cavitt's doctor said Cavitt was totally disabled from working from March 10 through April 15.
In March Cavitt filed a written workers' compensation claim against D&D Services seeking temporary total disability (TTD), a compensation rate adjustment, and attorney's fees. D&D Services initially denied liability and filed a notice of controversion. In early April Cavitt filed another written claim, including medical costs, transportation costs, penalty, unfair or frivolous controversion, and interest, in addition to TTD and attorney's fees. He also sought an order that D&D Services was responsible for paying future TTD. In late April D&D Services' doctor said that Cavitt needed a second surgery and that the work injury with D&D Services was the substantial cause of his disability and need for medical care. D&D Services then paid Cavitt TTD, but it did not pay penalty or interest.
The Alaska Workers' Compensation Board largely denied Cavitt's claim following an August 2017 hearing. The Board decided the controversion was in good faith, declined to impose a penalty, and denied the compensation rate adjustment. The Board agreed Cavitt was owed interest; additionally, it ordered D&D Services to pay Cavitt TTD "until such time as he becomes medically stable." The Board awarded Cavitt only $500 in attorney's fees for his success on these two issues: the order requiring D&D Services to pay TTD and the interest award. The balance of the attorney's fees award was for work done before the employer effectively withdrew its controversion by voluntarily paying TTD.
Cavitt appealed to the Commission, which for the most part affirmed the Board's decision. The Commission decided, however, that the Board had not awarded Cavitt sufficient attorney's fees. Discussing the difference between Board-ordered compensation and voluntary employer payments, the Commission observed precedent in Underwater Construction, Inc. v. Shirley
Cavitt then requested attorney's fees in the Commission, seeking costs and nearly $12,000 in attorney's fees as a successful party in the appeal. D&D Services opposed the motion, contending that Cavitt "lost his appeal on every significant issue except for the remand back to the Board on the attorney's fee issue" but conceded the Commission should award Cavitt some fees.
The Commission awarded Cavitt $6,000 in attorney's fees, deciding he had won a significant issue on appeal and was entitled to reasonable attorney's fees. The Commission defined "reasonable ... as equitable for the work performed and the results obtained" and found that $6,000 was reasonable.
D&D Services appealed the attorney's fees order to us. Because the Commission remanded the case in part to the Board, and because we held in Huit v. Ashwater Burns, Inc.
III. STANDARD OF REVIEW
"Whether the Commission correctly applied the law in determining an award of attorney's fees is a question of law that we review de novo."
IV. DISCUSSION
A. A Commission Attorney's Fees Award In A Case Remanding An Issue To The Board Is Not Appealable As A Matter Of Right.
The parties take the position that the Commission's attorney's fees award was final and appealable as a matter of right because it meets the tests for finality under administrative law precedent. We do not disagree with the parties that this attorney's fees decision is consistent with administrative finality tests.
Alaska Statute 23.30.129(a) provides in part that "final decisions of the [C]ommission may be appealed to the supreme court, and other orders may be reviewed by the supreme court as provided by the Alaska Rules of Appellate Procedure." We decided in Huit that a "final decision of the [C]ommission" under this statute is not the same as a "final [C]ommission decision" in AS 23.30.128(e).
Alaska Appellate Rule 201.1(a) applies Part 2 of the Appellate Rules to Commission appeals under AS 23.30.129. Alaska Appellate Rule 202(a) provides that "[a]n appeal may be taken to the supreme court ... from a final decision entered by the Alaska Workers' Compensation Appeals Commission in the circumstances specified in AS 23.30.129." Alaska Appellate Rule 204(a)(5)(A) allows a separate appeal related to attorney's fees when no appeal is pending: "[A] post-judgment order awarding or denying costs [and] attorney's fees ... may be considered a final judgment subject to an appeal limited to issues of costs [and] attorney's fees." Because no appeal related to the Commission's merits decision was pending in this court when D&D Services filed its attorney's fees appeal, Appellate Rule 204(a)(5)(A) governs whether the Commission's attorney's fees award was a final judgment subject to appeal. This, in turn, depends on whether the *169attorney's fees award was "a post-judgment order." It is not such an order.
Appellate Rule 201.1(c) provides that "judgment" includes "the final decision of the Alaska Workers' Compensation Appeals Commission, if that [C]ommission entered the decision being appealed under AS 23.30.129." Because "judgment" is defined in relation to AS 23.30.129, and because the merits decision in this case was not final under Huit 's interpretation of AS 23.30.129, the attorney's fees order is not, under the Appellate Rules, "a post-judgment order" awarding attorney's fees.
Both parties cite Humphrey v. Lowe's Home Improvement Warehouse, Inc.
We acknowledge that Commission attorney's fees decisions like this one may never be reviewed or that review may come only after a lengthy process.
Under Alaska Appellate Rule 402(b)(1) we may grant review of a nonfinal order if doing otherwise may result in "unnecessary delay, expense, ... or other related factors." The Commission attorney's fees award is a discrete issue, and the parties have fully briefed it; we therefore convert this putative appeal to a petition for review and consider the petition's merits.
B. The Commission Did Not Err By Awarding Cavitt Attorney's Fees As The Successful Party In The Appeal.
D&D Services argues that the Commission erred by awarding Cavitt attorney's fees because he "did not prevail on any issue before the Commission," and he "lost on every issue that he appealed to the Commission." D&D Services concedes that in Cavitt's Commission appeal he "merely could be considered to have prevailed in part on one issue out of five," but it argues that he in fact did not because he requested only that the Commission enter an order awarding him full fees and the remand order did not give him the exact relief he sought.
Cavitt responds that his case fits squarely within the holding of Humphrey , a case in which we reversed a denial of attorney's fees to a claimant who persuaded the Commission to remand an attorney's fees issue to the Board. D&D Services argues that Humphrey is distinguishable because Cavitt only "requested full attorney's fees, which he did not obtain," (emphasis in original) and he therefore "was simply not a successful party."
We agree with Cavitt that Humphrey controls the outcome of this question. In Humphrey the claimant succeeded in persuading the Commission that the Board had not awarded him sufficient attorney's fees, and the Commission remanded the case to the Board because there were insufficient findings on the issue.
The Board awarded Cavitt minimal fees despite his attorney's work while his claim was controverted and his success on two issues. Cavitt appealed to the Commission to reverse the Board's decision on the merits; he also sought "full fees" for work before the Board under AS 23.30.145(b). The Commission instructed the Board to determine the amount of time Cavitt's counsel spent on the future TTD award, determined that the Board had undervalued that award, and observed that D&D Services "strongly resisted the Board making this order," indicating that the Commission expected the Board to award increased attorney's fees based on D&D Services' resistance.
Requiring a successful party to have requested exactly what the Commission orders undermines the purpose of attorney's fees awards to claimants, which is "to ensure that competent counsel are available to represent injured workers."
The Commission decided a significant issue in Cavitt's favor, and it appropriately decided he was a successful party in the appeal.
C. The $6,000 Attorney's Fees Award Was Not Manifestly Unreasonable.
D&D Services argues that the amount of fees the Commission awarded Cavitt is "manifestly unreasonable." D&D Services provides two legal arguments, one based on a misreading of our precedent
Cavitt responds that the Commission's award was appropriate because the fees awarded were reasonable given the circumstances; he does not contend that the award is too low. He points out that D&D Services' proposed method of calculating fees based on counting pages or words could be abused: A party could be prolix in arguments with a good chance of success, even with an obvious outcome, or unduly terse in arguing less meritorious claims, manipulating an increased fees award. Cavitt summarizes his case's procedural history to illustrate the Commission's point about his attorney's services being more valuable than the Board considered them.
The Commission found that " 'fully compensatory' does not necessarily mean the full amount of fees sought as long as the amount awarded is sufficient to encourage attorneys to continue to represent injured workers." It then defined "reasonable" to mean "equitable for the work performed and the results obtained." It concluded that $6,000 in attorney's fees "satisfie[d] both the requirement to be fully compensatory and the requirement to be reasonable."
We are not persuaded that the Commission's fees award was manifestly unreasonable. We have recognized that the Commission has discretion to determine an appropriate fee as long as the record supports its factual findings.
V. CONCLUSION
We AFFIRM the Commission's attorney's fees award.
Cf. AS 23.30.145(b) (authorizing Board-ordered attorney's fees from employer who "otherwise resists" paying compensation).
Huit ,
Lewis-Walunga v. Municipality of Anchorage ,
Warnke-Green v. Pro-West Contractors, LLC ,
Licht v. Irwin ,
The test for administrative finality " 'is essentially a practical one' that considers 'whether the agency has completed its decisionmaking process[ ] and whether the result of that process is one that will directly affect the parties' "; it "should also consider whether the litigants still have an opportunity 'to submit evidence or alter the decision through administrative means.' " Huit ,
Alaska Statute 23.30.128(e) sets out the requirements for a "final [C]ommission decision."
See Municipality of Anchorage v. Anderson ,
Cf. Cole v. State Farm Ins. Co. ,
See City & Borough of Juneau v. Thibodeau ,
D&D Services contends that under State, Division of Workers' Compensation v. Titan Enterprises, LLC ,
See Warnke-Green ,
Lewis-Walunga ,
Wise Mech. Contractors v. Bignell ,
AS 23.30.008(d).