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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  

         corrections@appellate.courts.state.ak.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



AKEEM J. HUMPHREY,                                 )  

                                                   )       Supreme Court No. S-15140  

                         Appellant,                )  

                                                   )       Alaska Workers' Compensation  

                                                   )       Appeals Commission No. 11-021  

                 v.                                )  

                                                   )       O P I N I O N  

LOWE'S HOME IMPROVEMENT                            )  

WAREHOUSE, INC., Employer,                         )       No. 6960 - October 16, 2014  

and NEW HAMPSHIRE                                  )  

INSURANCE COMPANY,                                 )  

                                                   )  

                         Appellees.                )  

                                                   )  



                 Appeal  from  the  Alaska  Workers'  Compensation  Appeals  

                            

                 Commission, Laurence Keyes, Commission Chair.  



                 Appearances:  James  M.  Hackett,  James  M.  Hackett,  Inc.,  

                 Fairbanks, for Appellant.  Krista M. Schwarting, Griffin &  

                                

                 Smith, Anchorage, for Appellees.  



                 Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                              

                 Bolger, Justices.   



                 MAASSEN, Justice.  



I.       INTRODUCTION  



                 In this case we are asked to determine whether an employee was entitled  



to   temporary   total   disability   benefits   after   he   left   employment   under   disputed  



circumstances.  The employee injured his back at work but returned after being cleared  

                                        


----------------------- Page 2-----------------------

for lighter duty.  His employment soon ended for reasons the parties dispute, and he  



moved  with  his  family  to  Nevada,  where  he  later  had  back  surgery.    The  Alaska  

                                                                                              



Workers' Compensation Board found his injury compensable and ordered the employer  

                                                                                                 



to pay medical costs and disability benefits from the surgery onward; however, the Board  



denied temporary total disability benefits from the end of his employment to the surgery,  

                                                                                                           



finding the employee had voluntarily left his job for reasons that were not injury-related.  

                                                                                       



                   The employee appealed to the Alaska Workers' Compensation Appeals  



Commission, which affirmed the decision on disability but remanded to the Board for  

                     



clarification of its attorney's fees award.  The employee now appeals the Commission's  

                       



decision of his claim for temporary total disability benefits and its denial of his request  

                                                                                                               



for  attorney's  fees  for  the  appeal.    We  affirm  the  Commission's  decision  that  the  

                                                                        



employee was not entitled to temporary total disability benefits, reverse its denial of  



attorney's fees for the appeal, and remand for further proceedings.  



II.       FACTS AND PROCEEDINGS  



                   Akeem Humphrey was working at Lowe's Home Improvement Warehouse  



in Fairbanks as a "less than truckload" stocker on November 30, 2009, when a cantilever  

                                                                                                      



shelf fell on him.  He was treated for back pain and cleared for modified work in early  

                                                                                                                    



January  2010.    Lowe's  moved  him  around  to  various  positions  in  the  store  to  

             



accommodate his restrictions, but he continued to have pain.  



                   On January 21 Humphrey was disciplined at work for reasons unrelated to  

                                                                 



his injury.  On February 12 he received a generally favorable performance evaluation.  



On February 16 he wrote a note to Lowe's, saying he was giving two weeks' notice "due  



to  personal  reasons  (no  transportation  [and]  no  house)."                            The  note  is  somewhat  

                                                                                           



ambiguous, though; it also states, "If nothing is new within these two weeks I will know  



                                                             -2-                                                       6960
  


----------------------- Page 3-----------------------

                                                                                 

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



information."1  



                     Humphrey's  last  day  of  work  at  Lowe's  was  Monday,  February  22.  



Humphrey testified that the store manager, Brandon Montgomery, called him into the  



office that day and told him he was being terminated because he had given his two  

                                         



weeks' notice.  Lowe's disputes that Humphrey was terminated, and Montgomery denied  



having the conversation Humphrey described.  Wage records from Lowe's show that  



Humphrey  received  a  paycheck  on  February  22  for  40  hours  in  the  week  ending  

                                                                                               



                     2 

February 26;  Humphrey testified he was paid through March 1, which is two weeks 



from the date of his two weeks' notice.  



                     Humphrey continued to receive medical care for his back, and in April 2010  



his  treating  physician  recommended  that  he  consider  surgery  and  consult  with  an  

                                      



orthopedic surgeon.  In May, Humphrey moved with his girlfriend and their child to the  



Las  Vegas  area,  where  his  girlfriend  had  family.    Humphrey  then  filed  an  Alaska  

                                                                       



workers' compensation claim, seeking medical benefits, temporary total disability (TTD)  



benefits  from  January  30,  2009,  a  rating  of  permanent  partial  impairment  (PPI),  a  

                                                        



penalty, interest, and attorney's fees.  In January 2011 a Nevada orthopedic surgeon  



diagnosed Humphrey with "disc abnormalities" and back pain that "stem[med] from his  

                                                                                                    



initial work related injury" and in May 2011 performed surgery on Humphrey's back.  



                     A number of medical and lay witnesses testified at the Board hearing on  

                                                                                       



Humphrey's  claim.    The  parties  agreed  that  his  last  day  of  work  at  Lowe's  was  

                                                                     



           1         The Board read this sentence of the note as saying, "If nothing is new                                      



within these two weeks I will know it is submitted if does not I will let store manager and                             

Lisa know all new information."  



           2  

                                                                                                    

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

paid Humphrey through March 1.  

                                                                   -3-                                                                 6960  


----------------------- Page 4-----------------------

February 22, 2010, but they offered conflicting accounts of his departure.  Humphrey  

                                                                           



testified that he notified Montgomery about his transportation and housing problems on  

                                                                         



February 16 and Montgomery told him to submit his two weeks' notice in case the  



problems prevented him from returning to work.  Humphrey testified that his personal  

                                                                             



problems resolved within a few days, that he called Montgomery, and that Montgomery  

                                                                 



told him to come back to work.  Humphrey could not recall exactly what day he returned.  

                           



                    Humphrey  testified  that  Montgomery  called  him  on  the  intercom  on  

                                                                                                          



February 22 and told him to come to the office.  Humphrey said he thought it was related  

                                                                         



to one of two things:  where he had parked his car that day (close to the store, in an area  

                                                                                    



reserved for customers) or whether he had neglected his work while talking to another  



employee.  But according to Humphrey, instead of discussing either of these issues,  



Montgomery told him that "because [Humphrey] wrote the two weeks' notice . . . what  

                                                                                                                        



they're going to do is just . . . terminate [him], because after today [Humphrey] would  



no longer be working for Lowe's."  Humphrey testified that Montgomery asked him to  

                                                                                                                           



                                                                            3 

                                                                               

write out another two weeks' notice, which he did,  and said Lowe's would pay him for 



the coming two weeks if Humphrey cooperated in his termination.  



                                                                                                         

                    Witnesses for Lowe's disputed Humphrey's account.  Montgomery, the  



store manager, testified that Humphrey gave the "HR manager, Lisa," a two weeks'  



                                                                                           

notice that he was leaving Lowe's for personal reasons. He testified that Humphrey said  



                                                                                           

it was because he was moving to "Vegas or something like that, with his family and he  



                                                                                                     

wasn't going to be able to stay in Alaska."  Montgomery said he did not recall saying  



either that Humphrey "would be able to work out his personal situation and come back  



to Lowe's and continue working there" or that Humphrey "was either going to have to  

                                                                                                   



resign or . . . be terminated," as Humphrey claimed.  Montgomery testified he could not  

                                                                                                                       



          3         No written notice dated February 22 appears in Humphrey's personnel file.  

                                                                                        

                                                                -4-                                                             6960  


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


----------------------- Page 6-----------------------

                                                                                                                       

                    Humphrey filed an appeal with the Commission of the Board's denial of  



                                                                                                       

TTD  benefits  and  its  attorney's  fee  award.                          The  Commission  decided  there  was  



substantial  evidence  in  the  record  to  support  the  Board's  decision  that  Humphrey  



                                        

voluntarily left his job at Lowe's, and it agreed with the Board that he was not entitled  



to TTD benefits for the period before his surgery.  However, it vacated the Board's  



                                                                                           

attorney's fee award on grounds that (1) the Board did not explain why it had awarded  



                                                                                              

fees under AS 23.30.145(b) (for cases in which the employer resists or otherwise delays  



payment) rather than AS 23.30.145(a) (for cases in which the employer controverts  



benefits, as Lowe's did here);4 and (2) the Board's "terse explanation for reducing the  



award" prevented the Commission from reviewing its decision.  



                                                                                      

                    Humphrey then asked the Commission to award him fees as a successful  



                 

litigant  in  the  appeal.    The  Commission  denied  his  motion,  writing  that  "[b]y  any  



standard, Humphrey was not the successful party in this appeal."  Humphrey appeals.5  



          4         AS 23.30.145(a) governs an award of fees when an employer controverts           



benefits; AS 23.30.145(b) permits a fee award against an employer when the employer  

resists or otherwise delays payment.  



          5  

                                                                   

                    Lowe's does not challenge the appealability of the Commission's decision.  

                                               

Following City & Borough of Juneau v. Thibodeau, we have required that all issues be  

                                                                                                       

resolved in an administrative appeal to the superior court before a decision is final and  

appealable.  595 P.2d 626, 629 (Alaska 1979).  Here the Commission notified the parties  

that the decision was "a final decision on the merits" as to "the affirmation . . . in part and  

                                                                                                                    

vacat[ion] in part" but was "a non-final decision as to the . . . remand of the matter in part  

                                                                                                            

to the [B]oard."  Because neither party raised the applicability of Thibodeau, and because  

                                       

the attorney's fee dispute being remanded to the Board is severable from the issues of  

TTD and appellate fees, we do not consider whether the Commission's entry of what is  

                                                                                                                      

in effect a partial final judgment was proper.  See Alaska R. Civ. P. 54(b) (permitting  

                                                    

entry of final judgment on separate issues in trial court).  

                                                                -6-                                                             6960  


----------------------- Page 7-----------------------

III.	    STANDARDS OF REVIEW  



                  In a workers' compensation appeal from the Commission, we review the  



Commission's decision rather than the Board's and apply our independent judgment to  

                                                                                

questions  of  law  not  involving  agency  expertise.6  

                                                                             We  independently  review  the  



                                            

Commission's conclusion that substantial evidence in the record supports the Board's  



                                                                                                            7 

                                                              

factual findings by independently reviewing the record and the Board's findings.   When  



                                                         

the Commission makes factual findings, its "findings of fact may be reversed on appeal  



if not supported by substantial evidence in light of the whole record."8  

                                                                                                     Whether the  



Commission correctly applied the law in determining an award of attorney's fees is a  



question of law we review de novo.9  



IV.	     DISCUSSION  



                                                                             

         A.	      The Commission Correctly Concluded That Substantial Evidence In  

                  The  Record  Supported  The  Board's  Decision  Denying  Temporary  

                  Total Disability Benefits.  



                                                                    

                  The Board denied Humphrey TTD benefits for February 22, 2010 to May  



      

17,  2011  because  it  found  he  had  voluntarily  left  his  work  at  Lowe's  for  reasons  



                                                                                                                     10  

                       

unrelated to his injury and thus removed himself from the labor market for that period. 



         6        Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 2010) (citing  



Barrington v. Alaska Commc'ns Sys. Grp., Inc. , 198 P.3d 1122, 1125 (Alaska 2008)).  



         7	       Id.  



         8	       AS 23.30.129(b).  



         9        Lewis-Walunga v. Municipality of Anchorage , 249 P.3d 1063, 1066 (Alaska  



2011) (citing Krone v. State, Dep't of Health & Soc. Servs. , 222 P.3d 250, 252 (Alaska  

2009)).  



         10       Humphrey  did   not   raise  as  an  issue  on  this  appeal,  and  so  we  do  not  



consider, whether a voluntary departure disqualified him from receiving compensation  

                                                                                                    (continued...)  

                                                          -7-                                                      6960  


----------------------- Page 8-----------------------

Applying AS 23.30.122 and the substantial evidence test, the Commission held that "the  



board's finding that Humphrey voluntarily quit his job was amply supported by the  



evidence."  The Commission concluded that Humphrey was not totally disabled during  

                                                                 



the period at issue because "his medical providers released him to perform light-duty  



work and Lowe's provided it."  



                   Both the Board and the Commission relied on Vetter v. Alaska Workmen's  

                                                                                                   



Compensation  Board,  where  we  held,  "If  a  claimant,  through  voluntary  conduct  

                                                            



unconnected  with  his  injury,  takes  himself  out  of  the  labor  market,  there  is  no  

                                                                                                            



compensable disability."11  

                                        We also stated that "[a]n award of compensation must be  



                                                           

supported by a finding that the claimant suffered . . . a decrease in earning capacity due  



to a work-connected injury or illness," and we set out several factors relevant to this  



inquiry, including the claimant's age and education, the employment available in the area  

                                                                           



for people with the claimant's capabilities, the extent of the injury, and the claimant's  



"intentions as to employment in the future."12  



                              

                   Under  Vetter,  Humphrey's  claim  that  he  was  entitled  to  TTD  benefits  



depended  on  a  finding  that  he  had  not  voluntarily  removed  himself  from  the  labor  



market.  He focuses his argument on the Board's analysis of the statutory presumption  

                               



of compensability and the substantiality of the evidence the Board used to support its  



                 13  

conclusion.                                                                                            

                     The presumption attaches if the employee establishes a link between his  



          10(...continued)  



benefits for some part less than the whole of that period.  



          11       524 P.2d 264, 266 (Alaska 1974).  



          12       Id.  



          13       See AS 23.30.120(a) ("In a proceeding for the enforcement of a claim for     



                                                                                                         (continued...)  

                                                            -8-                                                          6960  


----------------------- Page 9-----------------------

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



                                                                                                              14  

                            

establish the link is considered - competing evidence is disregarded."                                            Humphrey  



asserts that the presumption applies to his claim that he "did not voluntarily remove  



himself from the workforce, unrelated to [his] work injury," citing Sokolowski v. Best  



                                          15  

Western Golden Lion Hotel.                            

                                              The Board did apply a presumption analysis, finding that,  



                                                                                                               

through  Humphrey's  testimony  and  that  of  his  girlfriend,  he  had   attached  the  



                                                                                    

presumption that "he was unable to work because of his work injury from February 2010  



                                                       

forward."  Lowe's appears to agree both that the presumption applied to the voluntary- 



departure  question  and  that  there  was  enough  evidence  of  work-relatedness  for  the  



presumption to attach.   



                    In the second step of the presumption analysis, the Board found that Lowe's  



rebutted the presumption with evidence that Humphrey "voluntarily quit his position at  

                                                                    



Lowe's and thus removed himself from the workforce."16                                               

                                                                                         In this step the Board looks  



          13(...continued)  



compensation under this chapter it is presumed, in the absence of substantial evidence  

to the contrary, that (1) the claim comes within the provisions of this chapter. . . .").  



          14        McGahuey v. Whitestone Logging, Inc.                       , 262 P.3d 613, 620 (Alaska 2011).     



          15        813 P.2d 286, 292 (Alaska 1991).  



          16        The Board also included as evidence rebutting the presumption the reports  

                                                                                                

of the employer's physicians that Humphrey was medically stable.  Humphrey argues  

that the Board could not rely on these opinions at the second stage because by the time  

of the hearing it knew that Humphrey was in fact not medically stable.  We have held  

                                                                                   

that  "a  prediction  of  medical  stability  that  turns  out  to  be  incorrect  cannot  provide  

substantial evidence to rebut the presumption."  Burke v. Houston NANA, L.L.C. , 222  

                                                   

P.3d 851, 862 (Alaska 2010) (citing Thoeni v. Consumer Elec. Servs., 151 P.3d 1249,  

1256 (Alaska 2007)).  But because the Board used other evidence at the rebuttal stage  

and did not use the medical evidence at the third stage of the presumption analysis, and  

                                                         

because the Commission did not use the employer's medical evidence  to affirm the  

                                                                                                              (continued...)  

                                                               -9-                                                             6960  


----------------------- Page 10-----------------------

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



substantial.17  

                      "Substantial evidence is such relevant evidence as a reasonable mind might             



accept as adequate to support a conclusion."18                                                                

                                                                         Whether the  quantum  of evidence is  



                                                 19  

                  

substantial is a question of law.                    We "must take into account whatever in the record  



                                                                                                                

detracts"  from  the  weight  of  evidence  when  we  consider  whether   evidence  is  



                 20  

substantial,                

                      but  we  do  not  choose  between  competing  inferences  or  reweigh  the  



evidence.21  



                    The  Board  relied  on  the  testimony  of  Humphrey's  supervisor  and  the  



store's  operations  manager  to  decide  that  Lowe's  rebutted  the  presumption.  Cook  



                                                                                       

testified that Humphrey quit his job, that he was "a great employee" whom she wanted  



                                                                                           

to retain, and that she would generally have to be present if the store manager fired one  



                                                                                                                       

of her employees.  Montgomery, too, recalled that Humphrey had voluntarily quit.  He  



                                                                                      

testified  he  did  not  recall  ever  giving  Humphrey  the  choice  of  resigning  or  being  



terminated, as Humphrey testified, and denied ever having "a sit-down conversation"  



with him at all.  



          16(...continued)  



Board's decision, any error was harmless.   



          17        McGahuey , 262 P.3d at 620.  



          18        DeYonge v. NANA/Marriott , 1 P.3d 90, 94 (Alaska 2000) (citation and  



internal quotation marks omitted).  



          19        Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 630  



(Alaska 2011) (citation omitted).  



          20        Id.  (quoting  Lopez  v.  Adm'r,  Pub.  Emps.'  Ret.  Sys. ,  20  P.3d  568,  570  



(Alaska 2001)) (internal quotation marks omitted).  



          21        Cowen v. Wal-Mart, 93 P.3d 420, 424 (Alaska 2004) (quoting Steffey v.  



Municipality of Anchorage , 1 P.3d 685, 689 (Alaska 2000)).  

                                                              -10-                                                             6960  


----------------------- Page 11-----------------------

                    Documentary             evidence        from      Lowe's        also     supported         its    position:  



                                     

Humphrey's personnel file contains his February 16 note that he was quitting due to  



                                                                                                                       

transportation and housing difficulties as well as evidence that his termination date was  



                                                                                  

two weeks later on March 1, consistent with a finding that he quit on two weeks' notice.  



The records also show he was eligible for rehire, and they give no indication that he  



underwent  progressive  discipline,  as  Montgomery  testified  was  required  to  precede  

                                                                                                                   



termination.  



                    It  is  true,  as  Humphrey  contends,  that  Lowe's  submitted  evidence  that  



might  have  supported  Humphrey's  argument  as  well;  but  it  is  not  so  "dramatically  



disproportionate"  to  the  evidence  against  it  as  to  preclude  affirming  the  Board's  



decision.22  

                  As an example, Humphrey cites the notes of the workers' compensation  

insurance adjuster  stating he "was terminated";23 but the adjuster's notes later say he  



"put in 2 weeks notice, he was not term[inat]ed by Lowe's."  



                    Though the evidence thus conflicts, a reasonable mind could accept it as  



                                                           

sufficient to support a conclusion that Humphrey voluntarily quit his job at Lowe's for  



                            

reasons unrelated to his injury.  The evidence therefore rebuts the presumption that his  



departure was injury-related.24  



          22        Shea, 267 P.3d at 634 n.40.  



          23        Lowe's argues that "terminate" is ambiguous in context and could mean   



simply "conclude," but the grammatical construction of the sentence is more consistent                      

with Humphrey's interpretation.  See BRYAN  A.   GARNER ,   GARNER 'S  DICTIONARY OF  

LEGAL USAGE 659 (3d ed. 2011) (explaining that in the passive voice, the subject of the                                    

sentence "is acted upon").  



          24        Humphrey argues that the Board erred in not specifically finding that his  



departure from the workforce was unrelated to his injury.  But in the context of the  

                                                                           

governing  law, which  the Board  applied, its finding  that Humphrey  voluntarily quit  

                                                                                                           

                                                                                                               (continued...)  

                                                              -11-                                                             6960  


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

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



                                                                             25  

prove  his  claim  by  a  preponderance  of  the  evidence.       Humphrey  therefore  had  to  



convince the Board, by a preponderance of the evidence, that he left involuntarily (and  

                                                                                           



for reasons other than misconduct, which would disqualify him from benefits).26  

                                                                                                                   The  



Board acknowledged that "the testimony and evidence about [Humphrey's] departure  



from Lowe's [was] conflicting," but it thought "the most likely explanation" was that  



Humphrey voluntarily quit, a conclusion the Commission affirmed.  Humphrey contends  



that the Commission erred in deciding that substantial evidence supported the Board's  

                                                                              



finding  and  that  the  Commission  further  erred  because  the  Board's  findings  were  

                                                  



inadequate.  He argues that the testimony of the witnesses the Board found credible was  

                                                                                  



inconsistent,  that  the  Board  needed  to  explain  the  inconsistencies,  and  that  the  



Commission erred by accepting the Board's decision.  



                   But we have never required the Board to explain every inconsistency in lay  



testimony.  And even if the witnesses for Lowe's testified inconsistently in some details,  

                                                                                                     



their testimony as a whole supported the company's position that Humphrey voluntarily  

                                                                                     



quit.  The Commission had to accept the Board's determination that Montgomery and  



Cook  were  credible  and  Humphrey  was  not,  as  the  Board's  credibility  findings  are  



         24(...continued)  



necessarily implies that he left work for other reasons.  



         25        Cowen, 93 P.3d at 426 (citation omitted).  



         26        See Vetter v. Alaska Workmen's Comp. Bd.                      , 524 P.2d 264, 266 (Alaska  



1974) (noting that disqualification is proper when employee is terminated for misconduct  

not related to injury); see also Robles v. Providence Hosp., 988 P.2d 592, 594-96 (Alaska  

1999) (discussing disability eligibility when employer could no longer accommodate  

worker's disability).  

                                                          -12-                                                       6960  


----------------------- Page 13-----------------------

                                                          27  

binding  on  the  Commission  by  statute.                      Although  Humphrey   can  again  point  to  



conflicting evidence, we have held many times that conflicting evidence is insufficient  



to overturn a decision of the Board when there is substantial evidence that supports it.28  

                                                                                                   



                                                                               

                   Setting aside for the moment the issue of whether Humphrey left Lowe's  



voluntarily, we observe that TTD benefits can be paid when the employee is totally  



disabled from work, even if he stopped working for other reasons.29  

                                                                                                    But Humphrey  



                                                       

points to no evidence from the period of disqualification - such as a doctor's note -  



                                                                                               

that would support a conclusion that he was totally disabled during that time.  When his  



employment  at  Lowe's  ended,  he  had  been  released  by  his  doctor  to  work  with  



restrictions, which Lowe's appeared to be accommodating.  Humphrey testified at the  



hearing that he minimized his pain in discussions with a healthcare provider so that he  

                                                                        



could return to work more quickly, and he emphasizes on appeal that he was still in  

          



considerable pain when he returned to work.  But Lowe's was justified in relying on the  

                                                                                        



doctor's note when making Humphrey's work assignments.  



                   Humphrey also argues that the Board failed to make findings about his  

                                                                                                 



"intentions of reentering the workforce following his departure from the workforce" in  



February 2010.  While there is evidence that Humphrey was generally motivated to  

                                                                   



work, as he contends, he points to no evidence showing that he made efforts to find  

                                                                                                                 



suitable  work  after  his  departure  from  Lowe's,  either  in  Fairbanks  or  in  Nevada.  



         27        Sosa de Rosario v. Chenega Lodging, 297 P.3d 139, 146 (Alaska 2013)  



(quoting AS 23.30.128(b)).  



         28        See, e.g., Robinson v. Municipality of Anchorage , 69 P.3d 489, 493 (Alaska  



2003).  



         29        Cortay v. Silver Bay Logging, 787 P.2d 103, 107-08 (Alaska 1990).  



                                                          -13-                                                        6960  


----------------------- Page 14-----------------------

                                   

Because he does not show that this issue was both material and contested at the hearing,  



                                                                                                        30  

we cannot fault the Board for failing to make a finding about it.                                           



                                    

                      In sum, substantial evidence in the record supports the Board's finding that  



Humphrey  voluntarily  left  his  job  at  Lowe's  and  thus  removed  himself  from  the  



                                                                                                      

workforce for reasons unrelated to his injury, and we affirm the Commission on this  



issue.      



                                                                                                       

           B.	        The Commission Erred In Denying Attorney's Fees To Humphrey For  

                      The Appeal.  



                      We  agree  with  Humphrey,  however,  that  the  Commission  should  have  



awarded him attorney's fees for his appeal.  Although he was unable to persuade the  



Commission that the Board erred in its decision to deny TTD benefits, he raised enough  

                                                                



questions  about  the  sufficiency  of  the  Board's  award  of  attorney's  fees  that  the  

                                                                                                     



Commission vacated the award and remanded the issue to the Board; the Commission  

                                    



concluded that the existing findings were inadequate for appellate review and that the  



Board  needed  to  discuss  the  applicability  of  AS  23.30.145(a),  the  fee  statute  that  

                               



apparently governed Humphrey's request for fees before the Board.  Despite this remand,  



however, the Commission denied Humphrey's request for attorney's fees for the appeal  



under  AS  23.30.008(d),31  

                                             deciding  that  "[b]y  any  standard,  Humphrey  was  not  the  



successful party in this appeal."  



           30         Bolieu v. Our Lady of Compassion Care Ctr.                             , 983 P.2d 1270, 1275 (Alaska   



1999) (citations omitted).  



           31         AS 23.30.008(d) provides that the Commission "shall award a successful  

                                                                                                               

party" who is represented by counsel "attorney fees that the commission determines to  

                                                 

be fully compensatory and reasonable."  

                                                                   -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  

                                                                                                                     We  



                                                                                    

reviewed the Commission's findings on what the claimant had sought and obtained by  



                                        

appealing, and we decided the finding that she had not won "the essential element" of  



the relief she sought was not supported by substantial evidence.34  



                   Following Lewis-Walunga , a claimant who prevails on "a significant issue"  



on appeal is a successful party;35 there is no requirement that the claimant prevail on all  



issues or even the main issue.  Humphrey's appeal to the Commission presented two  



significant issues:  TTD and attorney's fees.  With regard to the fee award, Humphrey  



argued that the Board had incorrectly applied AS 23.30.145(a); had failed, in its fee  



award, to consider parts of the claim on which he prevailed; and had failed to consider  

                                                                                       



that he in fact won the main issue before the Board, the compensability of his continued  

                            



disability.  Humphrey asked for a remand with instructions to enter an increased fee  

                                                                                           



award.  Although the Commission did not give that instruction in its remand, it did give  

             



          32       249 P.3d 1063 (Alaska 2011).  



          33       Id. at 1068.  



          34       Id. at 1069-70.  



          35       Id. at 1068 (emphasis added).  



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----------------------- Page 16-----------------------

                                                                        

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



                                                                   36  

have had absent the Commission's decision.                             



                    In refusing to award fees for the appeal, the Commission said, "[W]hether  



                                                                        

the board awards [Humphrey] more attorney's fees on remand remains to be seen."  But  



                                                                                                                           

in Lewis-Walunga we rejected the notion that success on appeal is tied to success on the  



                                                                                                             

underlying claim:  there we interpreted the legislature's use of the phrase "[i]n an appeal"  



                                                           

in AS 23.30.008(d) as a "signal that the Commission's fee award is independent of  



                                                 37  

                                                                                                                        

success in the underlying claim."                    It was therefore error for the Commission in this case  



                                                     

to consider, in its fee decision, the possibility that Humphrey might not win on remand  



to the Board.  Humphrey is entitled to "fully compensable and reasonable" attorney's  



fees for his appeal to the Commission under AS 23.30.008(d).38  



V.        CONCLUSION  



                                        

                    Because the Commission correctly concluded that substantial evidence in  



the  record  supported  the  Board's  TTD  decision,  we  AFFIRM  that  part  of  the  



          36        Cf.  Municipality  of  Anchorage  v.  Anderson,  37  P.3d  420,  422  (Alaska  



2001) (Matthews, J., dissenting) (stating that claimant was not a "successful claimant"  

                                                                                                   

on  appeal  because  he  "gained  no  advantages  by  the  appeal  that  were  not  already  

                                                                               

available to him simply by complying with the board's order").  



          37        Lewis-Walunga , 249 P.3d at 1069.  



          38  

                                                         

                    Humphrey included an argument about the Board's fee award in his brief,  

but Lowe's contends the argument is waived because it was not included in the points  

on  appeal.    We  do  not  decide  the  merits  of  the  issue  because  the  Commission  has  

                                                                                                   

remanded  it  to  the  Board.              We  do  note,  however,  that  Humphrey  succeeded  on  his  

                                                        

controverted claim for compensation for his continued disability and medical treatment.  

                                                                                                        

Alaska Statute 23.30.145(a) establishes a minimum fee award under such circumstances.  

                                                                                             

The purpose of the law is "to make attorney fee awards both fully  compensatory and  

                                                                            

reasonable so that competent counsel will be available to furnish legal services to injured  

                                                                

workers."  Cortay v. Silver Bay Logging, 787 P.2d 103, 108 (Alaska 1990) (emphasis in  

original) (citations and internal quotation marks omitted).  

                                                              -16-                                                             6960  


----------------------- Page 17-----------------------

Commission's decision.  We REVERSE its denial of attorney's fees for Humphrey's  



appeal to the Commission  and REMAND for proceedings consistent with this opinion.     



                                                                                                                                                                                                                                      -17-                                                                                                                                                                                           6960
  

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