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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Division of Workers' Compensation v. Titan Enterprises, LLC (11/28/2014) sp-6972

State, Division of Workers' Compensation v. Titan Enterprises, LLC (11/28/2014) sp-6972

         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, email  

                                                                                  

         corrections@akcourts.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



STATE OF ALASKA,                                    )  

DIVISION OF WORKERS'                                )  

COMPENSATION,                                       )        Supreme Court No. S-15166  

                                                    ) 

                   Petitioner,                      )        Alaska Workers' Compensation  

                                                    )        Appeals Commission No. 11-011  

         v.                                         )  

                                                    )        O P I N I O N  

TITAN ENTERPRISES, LLC;                             )  

TITAN TOPSOIL, INC.;                                )        No. 6972 - November 28, 2014  

CCO ENTERPRISES; and TODD                           )
  

CHRISTIANSON,                                       )
  

                                                    )
 

                    Respondents.                    )
  

                                                    )
  



                 Petition for Review from the Alaska Workers' Compensation  

                 Appeals Commission, Laurence Keyes, Chair.  



                 Appearances:  Aesha Pallesen, Assistant Attorney General,  

                                      

                 Anchorage,  and  Michael  C.  Geraghty,  Attorney  General,  

                                                         

                 Juneau, for Petitioner.  David A. Nesbett, Nesbett & Nesbett,  

                                                         

                 PC, Anchorage, for Respondents.  



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

                                                                     

                 Justices.  [Maassen, Justice, not participating.]  



                 FABE, Chief Justice.  



I.       INTRODUCTION  



                 The Alaska Workers' Compensation Board fined an uninsured employer  



a substantial amount because the employer had since 2005 operated for a significant  


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

period of time without carrying statutorily required workers' compensation insurance.   



This was not the employer's first failure to carry the required insurance.  On appeal, the     



Alaska  Workers'  Compensation  Appeals  Commission  affirmed  part  of  the  Board's  



                                                                                                     

decision, but it reversed the Board on the amount of the fine and remanded the case to  



the Board for further proceedings.  The employer then asked the Commission for an  



                                                                     

award of attorney's fees as a successful party on appeal.  The State, Division of Workers'  



                                                                                                                

Compensation, which had initiated the Board proceedings, opposed the award on the  



                

basis that it, too, had been successful on a significant issue.  The Commission awarded  



                            

the employer full fees of approximately $50,000.  The Division petitioned for review of  



                                                                                

the fee award, and we granted review.  Because the Commission failed to consider the  



Division's  partial  success  in  the  appeal,  we  reverse  the  Commission's  decision  and  



remand for further proceedings.  



II.       FACTS AND PROCEEDINGS  



                    Todd Christianson is the sole owner of several businesses, including the  



three involved in this proceeding:  Titan Enterprises, LLC; Titan Topsoil, Inc.; and CCO  



                            1  

                               At various times Titan has failed to carry workers' compensation  

Enterprises, LLC.                                                         



insurance, in violation of Alaska law.  According to the Board's decision in this case,  



                                                                             

Titan had at least one employee injury when it was uncovered, and Christianson paid out  



                                       

of pocket for that injury.  The Board found that Christianson and his businesses had "a  



long history" of work-related injuries, with 13 reported injuries; the most serious was a  



leg amputation, which happened when the business was insured.  



                    Alaska Statute 23.30.075(a) requires an employer to either buy workers'  



                                                                                            

compensation insurance or provide proof that it is capable of self-insurance for workers'  



          1         We  refer  to  the  respondents  as  "Titan"  unless  the  context  requires  



otherwise.  



                                                                -2- 


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

compensation claims.  Failure to maintain workers' compensation insurance may subject  



                                                           2                                                         3 

an employer to criminal penalties.   In addition, beginning in 2005,                                                   the legislature gave  



the Division of Workers' Compensation the authority to investigate employers without       



the  required  coverage  and  to  initiate  proceedings  before  the  Board   to  fine  these  



                    4  

                       Alaska Statute 23.30.080(f) permits the Board "to assess a civil penalty of  

employers.                                                                                                                     



up  to  $1,000  for  each  employee  for  each  day  an  employee  is  employed"  while  an  

                                                                                                                                         



employer is uninsured.  The money generated by any fines is deposited in the Workers'  



                                                                      5                             6 

Compensation Benefits Guaranty Fund,  created in 2005;  when money is available, the 

                                                                                                       



Fund pays the claims of injured workers whose employers do not have compensation  



                 7  

coverage. 



                        The Division began proceedings against Titan in 2008 for failing to carry  

                                                 



workers' compensation insurance and failing to provide proof of workers' compensation  

                  



liability coverage.  Titan came to the Division's attention when "a routine records check"  

                                                                                                                                



showed  that  Christianson's  companies'  insurance  policies  had  been  cancelled  in  



March 2006, "for nonpayment of premium."  The records also showed Titan had not  



                                                                                               

obtained  a  new  policy  until  October  2007;  that  policy  was  cancelled  in  early  



                                                                                       

January 2008.   Christianson paid out of pocket for an uncovered injury to a worker  



            2           See   AS   23.30.075(b)   (permitting   imposition   of   fine   and   term   of  



imprisonment for up to one year "upon conviction").  



            3           Ch. 10,  30, FSSLA 2005.  



            4           AS 23.30.080(e)-(f).  



            5           AS 23.30.082(a).  



            6           Ch. 10,  31, FSSLA 2005.  



            7           AS 23.30.082(a), (c).  



                                                                          -3- 


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

in  2006.    The  Division  investigated  Titan  at  that  time  but  closed  its  file  without  



requesting a Board hearing.  



                         The Board held two hearings on the Division's petition.  Neither party was  



                                               

represented  by  counsel  before  the  Board:    Christianson  represented  himself  and  his  



                                                                                                                                 

companies, and Christine Christensen, an investigator, represented the Division.  The  



                                                                                                                                      

parties presented conflicting evidence about the length of Titan's lapses in coverage and  



the reasons for them.  They also disputed the extent to which Christianson observed  



corporate formalities and kept the corporations separate.  The Division contended that  

a number of aggravating factors in its regulation applied to the case.8  



                         The Board found that Titan was an uninsured employer for 563 calendar  



                                                                                                                        

days after 2005. The Board looked at Titan's history of workers' compensation coverage  



                            

problems and Christianson's appearance before the Board in 2002 for failing to insure  



when   he   was   doing   business   as   another   corporation.      The   Board   found   that  



Christianson's businesses had been involved in 13 injuries, including "a leg amputation,  



upper  and  lower  extremity  injuries,  and  back  injuries."    The  Board  also  noted  the  



                                                             

uninsured injury in 2006. Using data from the Employment Security Division, the Board  



found Christianson had "utilized 6,399 uninsured employee workdays after November 7,  



2005" and had "purchased a single workers' compensation insurance policy for several  



                                                                                                                           

different business entities." It summarized facts related to the use and purchase of CCO,  



                                                           

an employee leasing company, including the fact that CCO's only client was Titan.  The  



             8           A regulation effective in February 2010 sets out 15 aggravating factors the         



Board should consider when setting the amount of a fine.  8 Alaska Administrative Code     

(AAC) 45.176(d) (2011).   Possible fines vary depending on the number of aggravating   

factors,  with  higher  penalties  imposed  for  a  larger  number   of  aggravating  factors.  

8 AAC 45.176(a)(2)-(6).  



                                                                               -4- 


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

                                                     

Board pierced the corporate veil and found Christianson individually liable, jointly and  



severally, with his companies.  



                                                                                                               

                     Noting that Christianson had previously been before the Board for failing  



                                                               

to have insurance, the Board found that he had a "blatant disregard for the law" and had  



                                                             

"gamed  the  workers'  compensation  system  in  attempts  to  avoid  paying  fully  for  



                                     

coverage."  The Board acknowledged that its regulation about uninsured employers did  



                                                                                                                    

not apply because the regulation became effective only after the coverage lapses, but the  



                                                                                            

Board nonetheless used the factors as a guide in assessing a penalty.  The Board decided  



that had the regulation applied, Titan's conduct would have justified nine aggravating  



                                                   9 

                                                                     

factors and no mitigating factors,  resulting in a minimum penalty of $500 per uninsured 



employee workday and a maximum of $999 per uninsured employee workday.  The  



Board fined Titan $999 per employee workday for the period it was uninsured, resulting  



in a fine of more than $6 million.  



                                                                                                                             

                     Titan appealed to the Commission, appealing both the size of the fine and  



                                                                                    

the  Board's decision  to  pierce the  corporate  veil.   Titan  also  argued  that  the  Board  



violated Titan's due process rights by "refusing to allow [it] additional time to hire  



representative legal counsel prior to the Board hearing."  The Division responded that  



                                                                                   

the fine was not excessive given the facts of the case and that piercing the corporate veil  



was appropriate in the case.  



                                                                                                 

                     The Commission affirmed the Board's decision to pierce the corporate veil  



                                                                                                      

and hold Christianson liable individually.  But the Commission decided that the Board  



                                                                                            

had abused its discretion when setting the penalty, calling the fine "a shocking amount."  



           9         8  AAC   45.176  does  not  set  out  mitigating  factors,  but  a  Commission  



decision predating the regulation mentions them.                               See Alaska R & C Commc'ns, LLC v.   

State, Div. of Workers' Comp., AWCAC Dec. No. 088 at 23, 25-26 (Sept. 16, 2008),   

available at http://labor.state.ak.us/WCcomm/memos-finals/D_088.pdf.  



                                                                  -5- 


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

The Commission reversed part of the basis for the Board's fine, including its finding on                      



the time periods when Christianson's businesses were uncovered, and remanded to the                                



Board   for   additional  findings  about  the  liability  of  Christianson's  various  corporate  



entities.    According  to  the  Commission,  the  Division  "conceded  that  two  of  the  



                                                    

aggravating factors" were not supported by the evidence, and Christianson conceded "at  



least initially" that five of the aggravating factors were supported by the evidence.  The  



                                                             

Commission also remanded for the Board to "hear evidence on any disputed aggravating  



factors."  



                                                                                                                                   

                       Titan  then  requested  attorney's  fees  as  the  successful  party  on  appeal,  

contending that under Lewis-Walunga v. Municipality of Anchorage 10 it was entitled to  



an award of full fees ($50,925) because it had won a significant issue on appeal.  Titan  



justified the amount of fees in part because "[a]ppellants consisted of three business  



                                                                                    

entities and one person, which necessitated legal analysis and counsel individual to each  



entity" and because "the law involving piercing the corporate veil . . . required intensive  



and expansive legal research."  



                                                                                                                         

                       The Division responded that both parties were partially successful in the  



appeal, since it had won the veil-piercing issue, and asserted that no fee award was  



                     

warranted.  The Division argued in the alternative that Commission precedent required  



                                                                                                                                

the Commission to reduce the amount of fees from the full amount because Titan had not  



                                                                                                                                   

won all issues on appeal.  Finally, it maintained that full fees should not be awarded to  



Titan because "the public policy concern of securing competent counsel for injured  



workers" was "not implicated in this case."  



                                                                            

                       The Commission decided that Titan qualified for an award of fees.  Before  



                                                                                                                  

 setting out its legal analysis, the Commission "point[ed] out . . . that Christianson's  



            10         249 P.3d 1063 (Alaska 2011).  



                                                                        -6- 


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

conduct entailed deliberate wrongdoing."  It first stated that neither the statute nor the  



Commission's  regulations  "discriminate  between  claimants  and  other  parties  to  an  



                                                                                                   

appeal, as far as eligibility for attorney fee awards is concerned."  It then decided that  



                                                     

Christianson should be considered a "successful party" under Lewis-Walunga because  



                                                                                          

he had "prevailed on at least two issues that were significant."  The Commission wrote  



                                                                                                   

that  it  took  "a  dim  view  of  Christianson's  conduct,"  but  it  felt  "constrained  by  



[AS 23.30.008(d)] to award Titan 'fully compensatory and reasonable' attorney fees, and  



                                                                                     

costs."  It awarded all of the requested fees, as well as costs.  The Commission discussed  



none of the Division's arguments.  



                   The Division petitioned for review, which we granted on two questions:  



                                                                                                             

(1) whether a successful party who is not a workers' compensation claimant should be  



awarded attorney's fees under AS 23.30.008(d) and (2) how attorney's fees should be  



awarded under AS 23.30.008(d) consistent with our holding in Lewis-Walunga if more  



than one party prevails on a significant issue in the appeal.  



III.      STANDARD OF REVIEW  



                          

                   We apply our independent judgment to questions of law that do not involve  

                        11   Interpretation of a statute is a question of law to which we apply our  

agency expertise.                                                                           



independent judgment; we interpret the statute according to reason, practicality, and  

                                   



common sense, considering the meaning of the statute's language, its legislative history,  

and its purpose.12  



          11       Id. at 1066 (citation omitted).  



         12        Monzulla v. Voorhees Concrete Cutting , 254 P.3d 341, 345 (Alaska 2011)  



(citations omitted).  



                                                           -7- 


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

IV.	     DISCUSSION  



         A.	       A Successful Party Should Be Awarded Attorney's Fees Even When  

                   The Party Is Not A Workers' Compensation Claimant.  



                   Alaska   Statute   23.30.008(d)   provides   in   part,   "[i]n   an   appeal,   the  



                                                                                                    

commission  shall  award  a  successful  party  reasonable  costs  and,  if  the  party  is  



                                                                        

represented by an attorney, attorney fees that the commission determines to be fully  



                                                                    

compensatory and reasonable."  Subsection (d) shields injured workers from having to  



                                                                                                                13  

                                                                                                                    We  

pay fees unless their appeal is frivolous, unreasonable, or brought in bad faith. 



                                                                         

have construed AS 23.30.008(d) three times, once considering whether an appeal was  

frivolous14 and twice considering whether a claimant was a "successful party" entitled  



                                           15  

                                               In Lewis-Walunga v. Municipality of Anchorage , we  

to an award of attorney's fees. 



held "that a  claimant is a successful party in an appeal to the Commission when the  



                                                                        16  

                                                                            Here we must decide whether a  

claimant prevails on a significant issue on appeal." 



                              

litigant who is not a claimant can be awarded attorney's fees and costs for an appeal to  



the Commission.  We hold that litigants other than claimants are entitled to attorney's  



fees and costs in a Commission appeal.  



                                                                                                        

                   We apply a sliding-scale approach to statutory interpretation:  We consider  



the plain meaning of the statutory language, but we also look at the legislative history  



         13	       AS 23.30.008(d).  



         14        Shehata v. Salvation Army, 225 P.3d 1106, 1119-20 (Alaska 2010).  



         15        Humphrey v. Lowe's Home Improvement Warehouse, Inc. , ___ P.3d ___,   



Op. No. 6960, 2014 WL 5305861 (Alaska Oct. 16, 2014);                            Lewis-Walunga , 249 P.3d at  

1068-69.  



         16        249 P.3d at 1068 (emphasis added).  



                                                           -8- 


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

because "legislative history can sometimes alter a statute's literal terms."17  "The plainer  



                      

the  statutory  language  is,  the  more  convincing  the  evidence  of  contrary  legislative  



                                          18                                                                     19 

purpose or intent must be."                   We construe all sections of an act together.  



                     As we observed in Lewis-Walunga , there is very little legislative history  



about AS 23.30.008(d), and what little there is suggests an intent for the Commission to  



award  attorney's  fees  in  a  manner  similar  to  appellate  attorney's  fee  awards  in  the  



          20  

courts.        But there is a critical difference in the statutory language and our practice in  



awarding appellate attorney's fee awards:  While the legislature continued to shield  



                                                                                                

injured  workers  from  fee  awards  -  as  do  the  appellate  rules  -  it  directed  the  



                                                              

Commission  to  award  attorney's  fees  to  a  successful party ,  not  just  to  a  successful  

claimant.21  The legislature also did not limit fee awards by the Commission to those fees  



                                                 22                                                                         23 

                                                         

"rendered in respect to a claim"                    or "in the successful prosecution of [a] claim."                            The  



          17         Bartley v. State, Dep't of Admin., Teacher's Ret. Bd.                           , 110 P.3d 1254, 1258  



(Alaska 2005).  



          18        Muller v. BP Exploration (Alaska) Inc. , 923 P.2d 783, 788 (Alaska 1996)  

                                                                                                          

(citation omitted).  



          19        Monzulla v. Voorhees Concrete Cutting , 254 P.3d 341, 345 (Alaska 2011).  

                                                                                                          



          20        Lewis-Walunga , 249 P.3d at 1067 (quoting STATE OF ALASKA ,  DEP 'T OF  



                                                                       

LAW , SECTION BY SECTION ANALYSIS OF  SB 130 at 7 (Mar. 3, 2005)).  



          21         Compare AS 23.30.008(d), with Alaska R. App. P. 508(g).  



          22         See AS 23.30.145(a) (authorizing attorney's fee awards by the Board when     



claim has been controverted).  



          23         See AS 23.30.145(b) (authorizing attorney's fee awards by the Board when  



employer "otherwise resists" payment of compensation).  



                                                                 -9- 


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

definition of "party" in Black's Law Dictionary includes both plaintiffs and defendants.24  



                                                               

Absent any related statutory provisions or contrary legislative history that might alter the  



statute's meaning, we construe AS 23.30.008(d) according to its plain language and hold  

that non-claimants are entitled to fees that are fully compensatory and reasonable25 when  



                                  

they are a successful party in an appeal to the Commission, with the exception that non- 



                                                                                                            

claimants  are  not  entitled  to  an  award  of  fees  against  an  injured  worker  unless  the  



                                                                           

worker's position on appeal "was frivolous or unreasonable or the appeal was taken in  

bad faith."26  



                     The Division asks us to construe the statute to prohibit awards of full fees  



in  cases  like  this  one,  where  the  Board  has  fined  an  employer  for  failing  to  insure,  



because such fee awards contravene the statute's purpose of protecting injured workers  



                                                                                                   

and do not accomplish the goal of ensuring that competent  counsel are available to  



                                                                                

injured workers.  The Division also contends that the legislature likely did not consider  



a  situation  like  this  one  when  it  wrote  subsection  .008(d).    Titan  responds  by  



emphasizing the statutory language.  



                     We do not rewrite statutes even when the legislative history suggests that  



                                                                                 27  

                                                                                                                

the legislature may have made a mistake in drafting,                                but here, there is no indication the  



           24        BLACK 'S LAW DICTIONARY 1297 (10th ed. 2014).  In contrast, a claimant  



is "[o]ne who asserts a right or demand."  Id. at 302.  



           25        We consider the phrase "fully compensatory and reasonable" to mean full   



reasonable fees. The Commission may consider the reasonableness of the fees requested                         

when making an award under AS 23.30.008(d); it need not feel constrained to award the  

full  amount  of  fees  requested  in  every  case.    We  have  determined  at  times  that  the  

                                                                 

requested fee was not reasonable and awarded a smaller amount.  



           26        AS 23.30.008(d).  



           27  

                                                                                 

                     See State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Alyeska  

                                                                                                                    (continued...)  



                                                                 -10- 


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

                                                                                    

legislature made such a mistake.  Even if the Division is correct that the legislature did  



                                         

not envision the possibility of an attorney's fee award to an employer who is subject to  



                                                                                                                    

a fine for failing to insure, "[t]he Division's remedy lies with the legislature, not this  



          28  

court."       We thus agree with the Commission that attorney's fees in appeals to the  



Commission are not restricted to claimants.  



          B.	      When   Two   Non-Claimant   Parties   Are   Both   Successful   On   A  

                                                                                                 

                    Significant  Issue  On  Appeal,  The  Commission  Must  Consider  The  

                                                                                                         

                    Success Of Both Parties In Making A Fee Award.  



                   Although we have previously interpreted AS 23.30.008(d), we have not had  



occasion to consider how fees should be awarded under this statute when two non- 



claimants  both  enjoy  partial  success  before  the  Commission.    In Lewis-Walunga ,  a  



                                                                                  

claimant succeeded on the sole issue presented on appeal to the Commission, the Board's  



                                      29  

award  of  attorney's  fees.                 The  Commission  vacated  the  Board's  fee  award  and  



                                                   30  

remanded for further proceedings.                      In spite of the claimant's success in obtaining a  



remand to the Board, the Commission refused to award attorney's fees to the claimant  

                                                                                                       31  We reversed,  

                                                                                                           

because, in its view, she had not gotten the specific relief she requested. 



holding that a claimant who succeeds on a significant issue on appeal is entitled to an  

award of fees and that the appellant there was a successful party.32  



          27	       (...continued)  



Pipeline Serv. Co. , 262 P.3d 593, 597-98 (Alaska 2011) (citation omitted).  



          28       Id. at 598 (citation omitted).  



          29        249 P.3d 1063, 1066 (Alaska 2011).  



          30	      Id.  



          31       Id.
   



          32
      Id. at 1068-70.  



                                                            -11- 


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

                    Similarly, in Humphrey v. Lowe's Home Improvement Warehouse, Inc. we  



                                                                                      

reversed  the  Commission's  denial  of  attorney's  fees  to  a  claimant  who  had  partial  



                           33  

                               There the Commission vacated the Board's attorney's fee award to  

success on appeal. 



the claimant but affirmed the Board's decision that the claimant was not entitled to  



                                                                                             34  

temporary total disability benefits for a specific period of time.                                When the claimant  



                                                                                                       

asked the Commission to award him attorney's fees for the appeal, the Commission  



denied his motion, deciding he was not a successful party and thus not entitled to any  

fees for the  appeal.35 We reversed the Commission's decision about attorney's fees,  



                                                                 

holding that "a claimant who prevails on 'a significant issue' on appeal is a successful  



          36  

party."       Disregarding the partial success of the employer in Humphrey is consistent  



with the statute's language, which shields an injured worker from having to pay fees  



                                   

unless his "position on appeal was frivolous or unreasonable or the appeal was taken in  



               37  

bad faith."         



                   But AS 23.20.008(d) has no corresponding shield for non-claimants who  

                                                    



lose  a  significant  issue  in  a  Commission  appeal.    As  a  result,  even  though  one  



                                                                                                       

non-claimant  can  get  an  attorney's  fee  award  in  an  appeal  when  it  litigates  against  



another  non-claimant,  there  is  no  reason  to  disregard  the  success  of  the  other  non- 



                                                                                           

claimant in the event that both non-claimants are successful on a significant issue.  In this  



          33       ___  P.3d  ____,  Op.  No.  6960  at  17,  2014  WL  5305861  at  *7  (Alaska  



Oct. 16, 2014).  



          34       Id. at 6.
  



          35       Id.
  



          36
      Id. at 15 (emphasis in original) (citing Lewis-Walunga , 249 P.3d at 1068).  



          37       AS 23.30.008(d).  



                                                            -12- 


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

                                                                                                                        38  

                                                                                    

case, there is no dispute that the Division was successful on the veil-piercing issue.                                      As  



the  Division  points  out,  by  creating  precedent  permitting  the  Board  to  pierce  the  



                             

corporate veil, the Commission enhanced the Division's ability to pursue enforcement  



actions when someone abuses the corporate form.  At oral argument before us, Titan  



                                    

agreed that piercing the corporate veil was a significant issue, admitting that Christianson  



                                                                                                     

is not able to discharge the debt in a personal bankruptcy even if the corporations might  



                         39  

                                                                  

be able to do so.            We therefore hold that the Commission erred in disregarding the  



Division's success on the veil-piercing issue, a significant issue in the appeal, when it  



awarded full attorney's fees to Titan.  



                                                                              

                    If two non-claimants both succeed on significant issues in an appeal, the  



Commission must weigh  the success of both parties when it considers a motion for  



                                                                                                 

attorney's fees. The Commission may take one of two approaches in evaluating this type  



of fee request.  The Commission may decide that neither party can truly be deemed a  



                                                                                   

successful party, just as a trial court in applying Alaska Civil Rule 82 does not abuse its  



discretion  when  it  decides  that  neither  party  can  be  characterized  as  the  prevailing  



         40  

                                                                                                   

party.       In such a case, the Commission can opt not to award fees:  "We have found 'no  



abuse of discretion in the superior court declaring the case a "wash" and ordering each  



          38        In  addition  to  the   Division's  success  on  the  veil-piercing  issue,  Titan  



conceded a number of aggravating factors in the appeal, just as the Division conceded  

that some aggravating factors were not supported.  



          39        When questioned at oral argument before us, neither party was certain  



whether the companies could discharge this type of debt in bankruptcy.  



          40  

                                                  

                    See Schultz v. Wells Fargo Bank, N.A., 301 P.3d 1237, 1242 (Alaska 2013)  

(quoting Chambers v. Scofield, 247 P.3d 982, 989 (Alaska 2011)).  



                                                             -13- 


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

                                                             41  

                            

party to bear [its] own costs and fees.' "                       Alternatively, the Commission can consider  



                              

the amount of fees incurred by both parties, as well as the parties' relative success in the  



                                                                              

appeal, and offset the competing fee awards to the parties to arrive at the final award of  



attorney's fees in the case.  



                    Treating  non-claimants  differently  from  claimants  follows  from  the  



                                                             

language  of  AS  23.30.008(d)  as  well  as  other  sections  of  the  statute:    The  Alaska  



                                                                                         

Workers' Compensation Act restricts the manner in which fees can be paid to claimants'  



                                                                             

attorneys.  Attorneys are prohibited from receiving fees for representing claimants unless  



                                                                                             42  

the Board awards them fees when claimants are successful.                                        In addition claimants'  



attorneys were until 2005 subject to criminal sanctions if they accepted any fee that was  



                             43  

not Board ordered.               In 2005 the legislature amended the statute to permit an attorney  



licensed  in  Alaska  to  accept  "a  one-time-only  charge"  of  $300  from  a  claimant  for  



providing legal services so long as the attorney does not enter an appearance for the  



              44 

                                                                                                         

claimant.         The policy that counsel for injured workers are entitled to fully compensable  



                                  

and reasonable fees is grounded in the restrictions the legislature places on fees attorneys  



          41        Id.  (alteration in original) (quoting Pavone v. Pavone                        , 860 P.2d 1228, 1233  



(Alaska 1993)).  



          42        AS 23.30.145(a)-(b), .260(a).  See also Hulsey v. Johnson & Holen , 814  

                                                                                  

P.2d 327, 328 (Alaska 1991) (reversing small claims judgment for attorneys who had  

                                                                                                   

tried to reopen workers' compensation claim because the fee was "in respect to a claim"  

                                                                                                                     

and had not been approved by Board); McShea v. State, Dep't of Labor , 685 P.2d 1242,  

                                                                                                              

1246 (Alaska 1984) (quoting Board for proposition that AS 23.30.260 shows intent for  

                                

Board to approve fees); Rose v. Alaskan Village, Inc. , 412 P.2d 503, 508-09 (Alaska  

                                                                                      

1966) (noting that statute makes it a crime to receive a fee that has not been approved by  

                                                                                                          

Board).  



          43        Former AS 23.30.260 (2004).  



          44        AS 23.30.260(b).  



                                                               -14- 


----------------------- Page 15-----------------------

                                                                      45  

may charge for representing injured workers.                              As we observed in  Wise Mechanical  



Contractors v. Bignell, "If an attorney who represents claimants makes nothing on his  



                                                                                                                  

unsuccessful cases and no more than a normal hourly fee in his successful cases, he is  



in  a  poor  business.    He  would  be  better  off  moving  to  the  defense  side  of  the  



                                                                                                                                46  

                                                                                                                         

compensation hearing room where attorneys receive an hourly fee, win or lose . . . ." 



                                                                                                            

We reaffirmed this principle in State, Department of Revenue v. Cowgill, again observing  



that  "employers'  attorneys  are  paid  whether  they  win  or  lose,  while  employees'  



                                                                                           47  

attorney's  fees  are,  by  statute,  contingent  upon  success."                                Given  the  continuing  



restrictions on fee arrangements available to claimants' attorneys, the statutory restriction  



                                                                                   

on fee awards against injured workers in appeals to the Commission, and the continuing  



                                                              

need for competent counsel to represent injured workers, AS 23.30.008(d) necessitates  



                                                                                 

awards of "fully compensatory and reasonable" fees to claimants when they prevail on  



a significant issue, even when the employer also has partial success on appeal.  Because  



                                                        

there are no similar restrictions on  the  fee  arrangements of attorneys who represent  



                                                                  

employers, and because the legislature did not shield non-claimants from fee awards in  



                       

any situation, the Commission must consider the relative success of all non-claimant  



parties in deciding a motion for attorney's fees in appeals involving only non-claimants.  



          45         Wise Mech. Contractors v. Bignell                   , 718 P.2d 971, 972-73 (Alaska 1986)  



(citing  Wien Air Alaska v. Arant, 592 P.2d 352, 365-66 (Alaska 1979),                                         overruled on  

other grounds by Fairbanks N. Star Borough Sch. Dist. v. Crider, 736 P.2d 770, 775  

(Alaska 1987)).  



          46        Id. at 975.  



          47         115 P.3d 522, 525 (Alaska 2005) (citation omitted).  



                                                              -15- 


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

V.     CONCLUSION  



              We REVERSE the Commission's decision that Titan was the successful  



party on appeal and REMAND to the Commission for further proceedings consistent  



with this opinion.  



                                           -16- 

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