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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Municipality of Anchorage v. Anderson (12/21/2001) sp-5519

Municipality of Anchorage v. Anderson (12/21/2001) sp-5519

     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.


f/k/a Scott Wetzel Services,  ) 
Inc.,                         )
                              )    Supreme Court No. S-9293
             Appellants,      )
                              )    Superior Court No.
     v.                       )    3AN-99-3380 CI
ROBERT ANDERSON,              )    O P I N I O N
             Appellee.        )    [No. 5519 - December 21, 2001]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                     Sigurd E. Murphy, Judge.

          Appearances:  Trena L. Heikes, Law Offices of
          Trena L. Heikes, Anchorage, for Appellants. 
William J. Soule, Law Office of William J. Soule, Anchorage, for

          Before:   Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  

          CARPENETI, Justice.
          MATTHEWS, Justice, with whom FABE, Chief
Justice, joins, dissenting.
          The Municipality of Anchorage appeals the superior
court's award of attorney's fees to Robert Anderson following
intermediate appellate review in this workers' compensation case. 
Because the superior court was acting as an intermediate court of
appeal and remanded the matter for further proceedings, the award
of attorney's fees is a non-final order that is not a proper
subject for appeal under Alaska Appellate Rule 202.  We further
conclude that this matter should not be treated as a petition for
review.  The appeal is therefore dismissed.
          Anderson was injured while on the job as a lifeguard for
the municipality.  During the course of his workers' compensation
claim, he did not attend an employer-requested physical capacity
examination (PCE), to be conducted by a non-physician specialist,
because he interpreted the relevant statute [Fn. 1] as not
requiring him to attend an examination with a non-physician.  The
Alaska Workers' Compensation Board disagreed with Anderson. 
Anderson appealed the board's decision to the superior court. 
Initially, the superior court reversed the board, but the court
later amended its original decision and ruled against Anderson,
concluding that an employer may, under certain circumstances,
require an employee to undergo a PCE with a non-physician
specialist.  But the court also concluded that Anderson's failure
to undergo the PCE did not constitute a "refusal to submit" because
of the ambiguity of the statute.  Accordingly, it declined to allow
Anderson's benefits to be suspended or forfeited.  The superior
court awarded Anderson full attorney's fees of $2,200.00 and
$126.54 in costs, and the matter was remanded for further
          The municipality now appeals the denial of its motion for
reconsideration of the award of attorney's fees to Anderson. 
          The award of attorney's fees is part of a case that has
been remanded to the agency for further proceedings; therefore, it
is a non-final order that cannot be appealed. [Fn. 2]  As we stated
in City and Borough of Juneau v. Thibodeau, "an order of the
superior court issued in its appellate capacity which remands for
further proceedings is not a final judgment for the purposes of
[the rule governing appeals]." [Fn. 3]
          While we have not hesitated in appropriate circumstances
to treat an appeal improperly brought from a non-final order as a
petition for review "in order to prevent hardship and injustice,"
[Fn. 4] we decline to do so here.  We will treat an improperly
brought appeal as a petition for review [Fn. 5] when we believe
"that [the] disposition of this case will effectively dispose of
the issues remaining in the underlying civil action and would
prevent unnecessary delay, expense, and hardship to the parties."
[Fn. 6]  We conclude that the circumstances here do not warrant
treatment of this case as a petition for review. [Fn. 7]
          This appeal was improperly brought from a non-final order
of the superior court.  The appeal is therefore DISMISSED.

MATTHEWS, Justice, with whom FABE, Chief Justice, joins,
          The Alaska Workers' Compensation Board ordered Robert
Anderson to submit to a physical capacities examination to be
conducted by a non-physician health care specialist on a referral
by a physician.  The board did not suspend the payment of
Anderson's benefits or order them forfeited.  Instead, the board
stated that if Anderson refused to comply with the board's order,
"we will hear the employer's petition to suspend and/or forfeit the
employee's compensation under AS 23.30.095(e), at the next
available hearing date."
          Anderson petitioned for review from this order,
contending that he had no duty to submit to an examination by a
non-physician.  The superior court granted the petition, but, after
initially accepting Anderson's argument, reconsidered and ordered
Anderson to submit to an examination.  The court added that the
applicable statute was ambiguous and stated that Anderson's earlier
conduct "may not be considered as a refusal to submit to that
examination, allowing suspension of compensation."
          Despite the fact that Anderson did not obtain any relief
from the board's order, the court awarded him attorney's fees of
$2,200. [Fn. 1]  The municipality seeks to appeal this order.  I
agree that the superior court's order awarding attorney's fees to
Anderson is not a final order and thus may not be appealed at this
point in the case.  But I would treat the municipality's appeal as
a petition for review, grant the petition, and reverse the award.
          It is easy to resolve this case on the merits.  Appellate
Rule 508(g)(2) calls for an award of attorney's fees on appeal "to
a successful claimant."  Anderson was not a successful claimant
because he lost on appeal.  He sought an order relieving him of the
obligation to submit to the examination ordered by the board and
was denied this relief.  On the subject of suspension of benefits,
the board did not order Anderson's benefits suspended or forfeited. 
Thus the superior court's statement that Anderson's benefits should
not be suspended did not change the board's order.  Anderson gained
no advantages by the appeal that were not already available to him
simply by complying with the board's order.   Since, therefore,
Anderson was not a "successful claimant," the award of fees is
          But how can the municipality obtain relief from this
erroneous award?  There are two paths.  One   the appeal path   is
long and tedious and available as a matter of right.  The other  
the petition for review path   is short and easy   but depends on
the discretion of this court.  Under today's decision, the
municipality must follow the long path. [Fn. 2] 
          Interlocutory awards of attorney's fees, like any other
interlocutory order that has not become moot, may be appealed once
a final judgment is entered. [Fn. 3]  And decisions of the superior
court on appeal from an administrative agency "may be appealed to
the supreme court as a matter of right," [Fn. 4] but only after
entry of a final judgment.  We held in City & Borough of Juneau v.
Thibodeau [Fn. 5] that when the superior court remands an
administrative appeal to an agency for further proceedings the
order of remand is not a final judgment.
          In the present case it is difficult to predict when there
will be a final appealable judgment in the workers' compensation
proceedings.  Presumably Anderson has now complied with the board's
order requiring him to attend the evaluation.  At some point the
board will hold a hearing on his claim and issue a final decision. 
Or the municipality may simply pay Anderson the benefits he seeks. 
Or the parties may settle the claim with the board's approval.  If
there is an adjudication, the municipality may appeal the board's
final order, even if the municipality is satisfied with the results
of the adjudication and wishes only to challenge the court's
interlocutory award of attorney's fees.  If the municipality simply
pays Anderson the benefits he is requesting, it will have to
petition the board for an order closing the case or otherwise
recognizing that all issues, save the interlocutory award of fees,
have been finally resolved.  From this order the municipality may
appeal, raising the issue of the propriety of the interlocutory
award.  If the parties settle the underlying claim, and the
municipality makes clear that the interlocutory award is not part
of the compromise, the municipality may appeal following entry of
the order approving the compromise. 
          Ironically, in each of these scenarios the appeal will go
back to the superior court, even though the only issue on which
review is sought is the superior court's interlocutory award.  One
would expect the superior court to deny the appeal (and award
additional fees).  Only when this step is taken, can the
municipality appeal to this court as a matter of right.  
          Obviously there is much needless effort and delay
inherent in this process.  In many cases our holding in Thibodeau
that a superior court order of remand is not immediately appealable
works well and saves time and money, but sometimes it does not. 
When it does not, this court should be receptive to accepting
petitions for review in order to avoid subjecting parties to
needless delay and expense. [Fn. 6]  This is such a case.  Further,
no additional light will be cast on the question of whether the
interlocutory award was erroneous by subsequent proceedings.  The
interlocutory award is unrelated to actions that may occur
following the superior court's remand to the board.  Thus the
question is appropriate for review now. 
          Based on these considerations, I would consider the
municipality's appeal to be a petition for review and grant review. 
On the merits, for the reasons stated, I would reverse the superior
court's interlocutory award of attorney's fees. 


Footnote 1:

     AS 23.30.095(e).    

Footnote 2:

     See Tlingit-Haida Regional Elec. Authority v. State, 15 P.3d
754, 761 (Alaska 2001) (citing City and Borough of Juneau v.
Thibodeau, 595 P.2d 626, 631 (Alaska 1979)).

Footnote 3:

     595 P.2d at 629.

Footnote 4:

     Id. at 631.

Footnote 5:

     A petition for review will be granted under Alaska Appellate
Rule 402(b) as follows:
          Review is not a matter of right, but will be
granted only where the sound policy behind the rule requiring
appeals to be taken only from final judgments is outweighed
               (1) Postponement of review until appeal
          may be taken from a final judgment will result
in injustice because of impairment of a legal right, or because of
unnecessary delay, expense, hardship or other related factors;  or
               (2) The order or decision involves an
important question of law on which there is substantial ground for
difference of opinion, and an immediate review of the order or
decision may materially advance the ultimate termination of the
litigation, or may advance an important public interest which might
be compromised if the petition is not granted;  or
               (3) The trial court has so far departed
from the accepted and usual course of judicial proceedings, or so
far sanctioned such a departure by an inferior court or
administrative tribunal, as to call for the appellate court's power
of supervision and review;  or
               (4) The issue is one which might
otherwise evade review, and an immediate decision by the appellate
court is needed for the guidance of the lower courts or is
otherwise in the public interest.

Footnote 6:

     City of North Pole v. Zabek, 934 P.2d 1292, 1296 (Alaska 1997)
(internal quotation marks omitted).

Footnote 7:

     The dissent states that "[i]t is easy to resolve the case on
the merits," and claims that Anderson could not be deemed a
"successful claimant" under Appellate Rule 508(g)(2) because "he
obtained no relief from the order of the board from which he
petitioned."  But that conclusion is highly debatable.  
          The municipality had argued before the board that
Anderson's benefits should be suspended during the time he refused
to attend the PCE.  And the board's order explicitly provided that
"[s]hould the employee refuse to submit [to] an employer's PCE, we
will hear the employer's petition to suspend and/or forfeit the
employee's compensation under AS 23.30.095(e) at the next available
hearing date."  While it is true that Anderson was not ultimately
successful as to his responsibility to attend the PCE, he did
prevail on the question whether his benefits could be suspended
during the period when his obligation to attend the PCE was being
litigated.  The superior court ruled that "Anderson's declination
to be examined by a non-physician or surgeon specialist may not be
considered as a refusal to submit to that examination, allowing
suspension of compensation."  Moreover, the worker's compensation
board explicitly endorsed the superior court's viewpoint when the
case later returned to the board:  "[W]e find the employee's
counsel's efforts on appeal to the Superior Court secured a
determination that the employee's previous failures to attend the
PCE would not result in a forfeiture of his benefits.  We find this
was a benefit to the employee."  Anderson v. Municipality of
Anchorage, AWCB Dec. No. 01-0014, Final Decision and Order (January
17, 2001) (emphasis added).
          Under these circumstances, it appears plausible, as both
the board and the superior court found, that Anderson's counsel had
prevailed on an important issue and had provided a benefit to him. 
An award of fees to counsel for the injured worker in this
situation hardly appears "easy" to characterize as an abuse of

                       FOOTNOTES (Dissent)

Footnote 1:

      The court gave no explanation for this award.

Footnote 2:

     Except, perhaps, for footnote 7 in the majority opinion. 
Footnote 7 may be a ruling on the merits of the issue raised in the
petition.  Although I would disagree with the substance of such a
ruling for the reasons explained above, such a ruling would be
better made now rather than at the end of the long procedural
journey required to bring the issue before us as a matter of right.

Footnote 3:

     See Weir v. Propst, 915 F.2d 283, 286 (7th Cir. 1990).  See
also Johnson v. Johnson, 836 P.2d 930, 934 n.2 (Alaska 1992)
(propriety of interlocutory maintenance award properly raised in
appeal of final divorce decree); Balla v. Idaho State Bd. of
Corrections, 869 F.2d 461, 468 (9th Cir. 1989) (interlocutory
orders not appealed earlier merge into final judgment and may be
challenged in appeal from that judgment); 19 James W. Moore, Moore's
Federal Practice sec.sec. 202.08, 203.10[7][a] (3d ed. 1997).  In the
federal courts interlocutory awards of fees may be appealable as a
matter of right under the "practical finality" exception to the
final judgment rule.  See id. sec. 202.08.  We have not adopted
exception, but today's opinion illustrates its utility.

Footnote 4:

     AS 22.05.010(c).

Footnote 5:

     595 P.2d 626 (Alaska 1979).

Footnote 6:

     See Alaska R. App. P. 402(b)(1) which authorizes granting a
petition for review when "[p]ostponement of review until appeal may
be taken from a final judgment will result in injustice because of
impairment of a legal right, or because of unnecessary delay,
expense, hardship or other related factors[.]"