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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bryce Warnke-Green v. Pro-West Contractors, LLC and Liberty Northwest Insurance Company (4/26/2019) sp-7356

Bryce Warnke-Green v. Pro-West Contractors, LLC and Liberty Northwest Insurance Company (4/26/2019) sp-7356

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                      

BRYCE  WARNKE-GREEN,                                             )  

                                                                 )    Supreme Court No. S-16821  


                                Petitioner,                      )  

                                                                 )    Alaska  Workers'  Compensation  

           v.                                                    )    Appeals  Commission  No.   16-014  



PRO-WEST CONTRACTORS, LLC                                                                 

                                                                 )    O P I N I O N  


and LIBERTY NORTHWEST                                            )  



INSURANCE COMPANY,                                               )    No. 7356 - April 26, 2019  


                                Respondents.                     )  




                     Petition for Review fromthe Alaska Workers' Compensation  


                     Appeals Commission.  


                     Appearances:              Eric  Croft,  The  Croft  Law  Office,  LLC,  


                     Anchorage,  for  Petitioner.                   Constance  E.  Livsey,  Barlow  


                     Anderson, LLC, Anchorage, for Respondents.  


                     Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  


                      and Carney, Justices.  


                     MAASSEN, Justice.  



                     The Alaska Workers' Compensation Board denied a worker's request that  


his employer pay for a van modified to accommodate his work-related disability.  On  


appeal,  the  Alaska  Workers'  Compensation  Appeals  Commission  decided  that  a  


modifiable van was a compensable medical benefit.  The worker moved for attorney's  

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


fees.  The Commission reduced the attorney's hourly rate, deducted a few time entries,  


and  awarded  him  less  than  half  of  what  was  requested.                                 The  worker  asked  the  


Commission to reconsider its award, but it declined to do so because of its view that the  


Alaska Workers' Compensation Act (the Act) allows it to reconsider only the final  


decision on the merits of an appeal.  


                    We granted the worker's petition for review. We hold that the Commission  


has the necessarily incidental authority to reconsider its non-final decisions.  We also  


reverse the Commission's award of attorney's fees and remand for an award that is fully  


compensable and reasonable.  




                    Bryce Warnke-Green was rendered tetraplegic by a work-related accident  


in 2014 in Nome, his hometown.   He was treated in Seattle at Harborview Medical  


Center and remained in that area while continuing to receive medical care.  


                    To get to his medical appointments, Warnke-Green used a cabulance -  


which he described as a taxicab for wheelchair users - or, when medically necessary,  


an ambulance.  He testified that the cabulance was not entirely reliable, which caused  


him  to  miss  some  appointments.                      In  late  2015  Warnke-Green's  father  asked  the  


employer, Pro-West Contractors, LLC, to provide Warnke-Green with a modified van.  


Pro-West had earlier disputed that Warnke-Green's choice of a long-term transportation  


option would "be compensable under [his] claim," but the parties discussed settling the  


van issue.  Pro-West sent a draft settlement agreement to Warnke-Green providing for  


Pro-West's "one time only purchase" of a modified van in exchange for his waiver of  


"all further entitlement to . . . transportation reimbursement" other than for medical  




                    Warnke-Green did not sign the agreement; instead, he obtained an attorney  


and filed a workers' compensation claim for a "new modified van." Pro-West answered  

                                                               -2-                                                        7356

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

the claim, "d[id] not admit any portion" of it, and raised as an affirmative defense that   


Warnke-Green had agreed to a settlement but refused to sign it.                                                                                                  

                                                                                                                                  Warnke-Green later  


sent a revised settlement agreement to Pro-West that preserved his future entitlement to  


transportation reimbursements, but Pro-West did not agree to it.  


                          The Board held a hearing on the "modified van" claim in April 2016.  The  


competing draft settlement agreements were included in the record without objection,  


though both parties acknowledged that their inclusion was "odd" and "rather unusual."  


                          Inhisprehearingmemorandum, Warnke-Greencitedcasesfromotherstates  


holding that modifying an existing vehicle or acquiring a van with modifications was  


compensable as a medical benefit.  At the hearing he asked for a modified van - his  


attorney said that "[i]t [did]n't have to be a new one" - with an offset of $500 to $1,000  


representing the value of an old Chevrolet Suburban he had in Nome.  

                          Pro-West, in its prehearing memorandum, identified the "majority view"  


based on out-of-state cases: "that the employer/insurer generally must pay for the special  


equipment required to outfit a vehicle" but not "the purchase price of the vehicle itself."  


According  to  Pro-West,  other  states  had  adopted  "the  'Crouch  rule'  or  'Crouch  


formula,'  "  under  which  the  employer  is  responsible  for  "the  cost  of  any  special  


equipment or adaptations to a vehicle or van, plus the cost difference between that  


vehicle and an ordinary non-adapted vehicle such as the type the employee would  


otherwise have owned."  (Emphasis omitted.)  Pro-West contended that the Board had  


already adopted the Crouch rule and had applied it "consistently since 1981." Pro-West  


also discussed cases from three jurisdictions that rejected similar claims entirely, based  


on their statutes. At the hearing Pro-West argued that if it was required to provide a van,  

             1            Under AS 23.30.012(b), a workers' compensation settlement agreement                                                        

between an unrepresented claimant and an employer must be reviewed and approved by                                                                                   

the Board to be enforceable.         

                                                                                  -3-                                                                           7356

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

it should owe only the difference in price between "a standard American car or pickup                                                                                                                 

and a van that's modified," explicitly denying that the offset should be only the value of                                                                                                                         

Warnke-Green's old Suburban.                                                    

                                 TheBoarddenied                              Warnke-Green's claiminits                                             entirety. TheBoard                               decided  

that under the Act a modified van was not a medical benefit - specifically that it was                                                                  

                                                                                                                                2      The  Board  also  decided  in  the  

neither   an   "apparatus"   nor   a   "prosthetic   device."                                                                                                                                                  

alternative that if a van was a medical benefit, the facts of the case did not require the  


employer to purchase one because Warnke-Green needed a car for personal, not medical,  


reasons.  The Board decided that Warnke-Green was not entitled to a modified van as a  


transportation benefit either.   It dismissed the precedential value of earlier decisions  


requiring employers to purchase modified vans for employees with similar catastrophic  


injuries, reasoning that those cases lacked "any legal authority or factual findings to  


support their results."  It declined to follow the Crouch rule - by which the employer  


pays for modifications plus the difference in cost between the modifiable vehicle and an  


ordinary, unadapted vehicle - because the cases that adopted the rule "were based on  


the premise an automobile was a compensable apparatus or device under the applicable  


state's workers' compensation statute."  


                                 Warnke-Green  appealed  to  the  Commission.                                                                             The  Commission,  while  


agreeing with the Board that a modified van was not a "prosthetic device," decided that  


                 2               The   Act   requires   employers   to   "furnish   medical,   surgical,   and   other  

attendanceor treatment,                                     nurseand                hospital service, medicine,                                       crutches, andapparatus                                    for  

the period which the nature of the injury or the process of recovery requires . . . ."                                                                                                                                    

AS   23.30.095(a).     "[M]edical   and   related   benefits"   include but                                                                                           are "not                limited   to  

physicians' fees, nurses' charges, hospital services, hospital supplies, medicine and                                                                                                                         

prosthetic devices," and "prosthetic devices" include but are not limited to "eye glasses,                                                                                                           

hearing aids, dentures, and such other devices and appliances . . . ."                                                                                                  AS 23.30.395(26),   


                                                                                                        -4-                                                                                                7356

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

it was an "apparatus" included within the Act's definition of "medical benefits."                                                                                                                 It  

therefore held Pro-West responsible for "any increased cost associated with the                                                                                                  purchase  

of   a   modifiable   motor   vehicle   and   any   necessary  modifications   which   will   enable  

Mr. Warnke-Green to use the motor vehicle."                                                                 The Commission anticipated an offset,                                       

noting its belief that the parties had agreed that Warnke-Green would contribute the                                                                                                           

value of his "inoperable Suburban van."                                                         The Commission remanded the case to the                                                        

Board for further proceedings consistent with its decision.                                                      

                               Warnke-Green   then   moved   for   over   $30,000   in   attorney's   fees   as   the  

                                                                                                       3   including with his motion an itemized  

successful party in the Commission appeal,                                                                                                                                        

affidavit. The requested hourly rates for attorneys were $400 an hour for Eric Croft and  


$300 an hour for Selena Hopkins-Kendall; the rate for paralegal time was $170 an hour.  


                               Pro-West did not question the requested hourly rates or any individual time  


entries.  It did oppose the motion, however, on grounds that Warnke-Green was not "a  


successful party" because "[h]e did not prevail on  his November  27, 201[5] claim  


seeking 'a new modified van.' "  Pro-West argued that it was the successful party in the  


Commission appeal; it quoted part of the Commission's decision to the effect that Pro- 


West had only "asked him to contribute the value of his Suburban which Mr. Warnke- 


Green estimates to be between $500 and $1,000."  Pro-West further contended that the  


Commission'sdecision validatedthepositionPro-Westhad held consistentlyboth before  


and after Warnke-Green filed his claim.   It maintained that Warnke-Green "gained  


nothing from the entirety of this litigation."  


                               The Commission, in considering the attorney's fees motion, first reduced  


the total requested.  It decided without explanation that $350 an hour was "a reasonable  




                               Alaska Statute 23.30.008(d) provides that the Commission "shall award a  


successful party reasonable costs" and attorney's fees.  

                                                                                                -5-                                                                                                7356  

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

hourly rate for an attorney practicing in the area of workers' compensation with [Croft's]                                                                              

experience and expertise" and reduced his hourly rate accordingly. It deducted 2.4 hours                                                                                      

from Croft's total hours:                              a tenth of an hour for what the Commission thought was a                                                                        

duplicate billing for an email and 2.3 hours for paralegal supervision, which according                                                                              

to the Commission should have been included in overhead.                                                                       4  

                             The  Commission  then  considered  whether  Warnke-Green  "actually  


prevailed on a significant issue on appeal." The Commission agreed with Pro-West that  


Warnke-Green, having been awarded a modified van minus the value of his Suburban,  


"obtained  only  what  had  been  offered  prior  to  the  filing  of  his  claim,"  which  the  


Commission said was "considerably less than what Mr. Warnke-Green sought."  The  


Commission cut in half the "adjusted fees" and awarded attorney's fees of $13,956.00.  


                             Warnke-Green asked the Commission to reconsider its decision, arguing  


that (1) Pro-West's litigation position was not what the Commission seemed to think it  


was;(2)theCommission'sdecision gaveWarnke-Green morethan Pro-West had offered  


in settlement; and (3) the fee reductions were not justified.  The Commission denied  


reconsideration, however, reasoning that it was allowed to "only  reconsider a final  


decision on the merits of an appeal."  (Emphasis in original.)  


                             Warnke-Green filed a petition for review, which we granted as to these  


three issues:  


                             (1) Does the Commission have authority to reconsider orders  


                             that are not final decisions?  If so, what is the source of the  


                             authority and what limits, if any, are there on this authority?  


                             (2)  Did  the  Commission  err  in  considering  the  parties'  


                             underlying   litigation   before   the   Board,   including   any  


                             settlement offers, in determining the amount of attorney's  


                             fees to be awarded for the appeal before the Commission?  




                             The Commission made two additional deductions not at issue in this appeal.  

                                                                                          -6-                                                                                         7356  

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

                                     (3)   Did the Commission abuse its discretion by awarding the                                                                                                

                                     employee less than his full reasonable attorney's fees after he                                                                                                

                                     prevailed in his appeal before the Commission?                                                

 III.              STANDARDS OF REVIEW                                    

                                     Whether the Commission has the authority to reconsider orders other than                                                                                                                     

 final decisions on the merits is a question of law to which we apply our independent                                                                                                           

judgment. 5  


                                 We interpret a statute "according to reason, practicality, and common sense,  


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




                                     Weuseour independent judgmentto interprettheattorney'sfeesprovisions  



 of the Workers' Compensation Act.                                                                    While we may consider an agency's interpretation  

                   5                 See Monzulla v. Voorhees Concrete Cutting                                                                             , 254 P.3d 341, 343-44 (Alaska                                

 2011)   (using   independent   judgment   when   considering   whether   Commission   had  

 authority over interlocutory review of Board orders).                                                                                               

                                     To the extent Pro-West is arguing that we should defer to the Commission                                                                                               

 because it is interpreting its own regulation regarding reconsideration, we reject that                                                                                                                                           

 argument. The regulation has no substantive content and merely outlines the process for                                                                                                                                               

 requesting reconsideration of final decisions.                                                                                  8 Alaska Administrative Code (AAC)                                                        

 57.230(a) (2011).                                 

                   6                 Louie v. BP Expl. (Alaska), Inc., 327 P.3d 204, 206 (Alaska 2014) (citing  


 Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003)).  


                   7                 See, e.g., Burke v. Raven Elec., Inc., 420 P.3d 1196, 1202, 1208 (Alaska  


 2018)  (holding  that  meaning  of  "injured  worker"  in  AS  23.30.008(d),  governing  


 attorney's fees awards on Commission appeals, was question of statutory interpretation  


 reviewed using independent judgment); State, Div. of Workers' Comp. v. Titan Enters.,  


LLC, 338 P.3d 316, 320-21 (Alaska 2014) (using independent judgment to determine  


 whether  nonclaimants  can  be  awarded  fees  in  Commission  appeals  against  other  


 nonclaimants);  Underwater Constr., Inc. v. Shirley, 884 P.2d 156, 158 (Alaska 1994)  


 (holding that question whether Board had authority to award fees under AS 23.30.145(a)  


 "require[d] statutory interpretation involving no administrative expertise").  


                                                                                                                    -7-                                                                                                         7356

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

of   a   statute "within [the agency's] area of jurisdiction[,] . . . particularly when the                                                                                                   


agency's interpretation is longstanding,"                                                                                                                                                         

                                                                                               there is no indication that the Commission, in  


its award of attorney's fees in this case, was applying a longstanding interpretation of the  



                               We review the amount of fees awarded for abuse of discretion.10                                                                                         To the  


extent the Commission's decision is based on findings of fact, we consider whether the  


findings  are  "supported  by  substantial  evidence  in  light  of  the  whole  record."11  


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


adequate to support a conclusion.' "12  


               8              Hendricks-Pearce v. State, Dep't of Corr.                                                      , 323 P.3d 30, 35 (Alaska 2014).                          

               9               Pro-West cites                    Dockter v. Southeast Alaska Regional Health Consortium                                                                             ,  

AWCAC Dec. No. 246 (Mar. 29, 2018), and Rusch v. Southeast Alaska Regional Health  


 Consortium, AWCAC Dec. No. 245 (Mar. 29, 2018), in support of an argument that we                                                                                                              

should defer to the Commission's interpretation of attorney's fees statutes.                                                                                                Both cases   

are about Board awards of attorney's fees under AS 23.30.145, not fees for Commission  


appeals   under   AS   23.30.008(d).     Commission   decisions   do   not   show   that   the  

Commission generally considers the positions taken before the Board when awarding                                                                                                

fees on appeal, as it did here.                                      See Municipality of Anchorage v. Syren                                                       , AWCAC Dec.  

No. 015 at 2-3 (Aug. 3, 2006) (considering parties' positions and success before the                                                                                                           

Commission in awarding fees); Doyon Drilling Inc. v. Whitaker, AWCAC Dec. No. 008  


at 2 (Apr. 14, 2006) (same).                    

                10             See Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002) (citing Bouse v.  


Fireman's  Fund  Ins.  Co.,  932  P.2d  222,  241  (Alaska  1997))  (applying  abuse  of  


discretion standard to amount of fees under Board award); cf. Shehata v. Salvation Army,  


225 P.3d 1106, 1119 (Alaska 2010) (applying abuse of discretion standard to question  


of frivolousness).  


                11            Lewis-Walungav. MunicipalityofAnchorage,249P.3d1063,1066 (Alaska  


2011) (quoting AS 23.30.129(b)).  


                12            Burke v. Houston NANA, L.L.C., 222 P.3d 851, 858 (Alaska 2010) (quoting  



                                                                                                -8-                                                                                       7356

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



          A.	        The  Commission's  Authority  To  Reconsider  Its  Decisions  Is  Not  


                     Limited To Its Final Decisions On The Merits.  


                     The  Commission's  refusal  to  reconsider  its  attorney's  fees  order  was  


evidently based on its belief that it lacks authority to do so under the Act.  After quoting  



AS 23.30.128(e), which describes decisions on appeal,                                 the Commission set out the text  


of  AS  23.30.128(f),  which  describes  the  process  of  reconsideration,  and  cited  its  



regulation  on  the  same  subject.                       The  Commission  emphasized  subsection  (f)'s  


references to subsection (e):  


                     A  party  or  the  director  may  request  reconsideration  of  a  


                     decision issued under (e) of this section within 30 days after  


                     the date of service shown in the certificate of service of the  


                     decision . . . . The power to order reconsideration expires 60  


                     days after the date of service, as shown on the certificate of  



                     service, of a decision issued under (e) of this section . . . . 

Noting that the statute and regulation addressed only "a final  decision on the merits of  


an appeal," the Commission concluded that there was "no provision in either the Alaska  


Statutes  or  the  Commission's  regulations  for  reconsideration  of  the  Commission's  


          12         (...continued)  


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

          13         Alaska Statute 23.30.128(e) sets out the deadline for the Commission to  


issue a decision in an appeal, a decision's necessary elements, instructions for its service,  


and direction that "[u]nless reconsideration is ordered under (f) of this section," the  


decision described in subsection (e) "is the final commission decision."  


          14         8  AAC  57.230(a)  ("A  party  may  request  reconsideration  of  a  final  


commission decision by filing a motion, supported by an affidavit or other evidence of  


the specific grounds for reconsideration, as provided in AS 23.30.128(f).").  


          15         AS 23.30.128(f) (emphasis supplied by Commission).  


                                                                -9-	                                                         7356

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

rulings on motions."                               It held that "Mr. Warnke-Green's motion for reconsideration                                                   

cannot be considered on this basis."                                                 

                              The Commission is correct that the language of AS 23.30.128(f), while                                                                                     

addressing reconsideration in detail,                                            is silent about reconsiderationofany decisions                                                          other  

than the final decisions on appeal described in subsection (e).                                                                             Nor is reconsideration of                            

interim orders meaningfully discussed in the Act's description of the Commission's                                                                                  

                                         16 or in its outline of the procedure to be used in Commission appeals.17  

powers and duties                                                                                                                                                               

                              According toPro-West,this statutory silenceis evidencethat thelegislature  


decided  against  allowing  the  Commission  a  general  authority  to  reconsider  its  


decisions.18                 We recognized in Greater Anchorage Area Borough v. City of Anchorage  


that administrative agencies have "no inherent powers, but only such as have been  


expressly granted to [them] by the legislature or have, by implication, been conferred  


upon [them] as necessarily incident to the exercise of those powers expressly granted."19  


More recently, in Monzulla v. Voorhees Concrete Cutting, we interpreted the Act as  


giving the Commission implied authority over interlocutory review, setting out factors  


other  courts  have  considered  when  evaluating  whether  an  administrative  agency  


               16             AS 23.30.008.   

               17             AS 23.30.128.   

               18             At times Pro-West appears to interpret the Commission's order differently  


from our reading of it, arguing that the Commission, by regulation, has simply chosen  


not  to  exercise  its  reconsideration  authority.                                                                The  more  natural  reading  of  the  


Commission's order is that it found no authority to reconsider decisions other than those  


described in AS 23.30.128(e).   We see no other explanation for the Commission's  


addition of emphasis when quoting AS 23.30.128(f) and 8 AAC 57.230(a).  


               19              504 P.2d 1027, 1033 n.19 (Alaska 1972), overruled on other grounds by  


City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).  


                                                                                              -10-                                                                                       7356

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


"properly exercised an implied power."                                      Monzulla  requires us to consider whether                     

Commission authority to reconsider decisions other than final decisions is "necessarily                                            

incident to the exercise of those powers expressly granted" to the Commission.                                                             21  


                       Alaska Statute 23.30.128 sets out "Commission proceedings." Subsection  


(d) grants the Commission the authority to "affirm, reverse, or modify a decision or order  


upon review and issue other orders as appropriate."  (Emphasis added.)  We conclude  


that an adjudicative body's authority to "issue other orders as appropriate" is broad  


enough to include a general authority to reconsider decisions other than final decisions.  


Other state courts haverecognized that administrativeagencies with adjudicative powers  


necessarily have authority to reconsider their decisions because reconsideration is a  

                                                    22  Indeed, the issue courts face more frequently is whether  


necessary part of adjudication. 

an agency has the authority to reconsider its final  decisions in the absence of explicit  


statutoryauthority.23  Alaska Statute23.30.128(f)givesusunmistakabledirection on that  


issue.  And we conclude that construing the Act as allowing reconsideration of final  


decisions but not others would be inconsistent with the overall purposes of the Act and  


the 2005 amendments that created the Commission.  


            20         254  P.3d  341,  346-47  (Alaska  2011).  

            21          Greater  Anchorage  Area  Borough,  504  P.2d  at   1033  n.19.  

            22         See,  e.g.,  Olmstead  v.  Dep't  of  Telecomms.  &  Cable,  999  N.E.2d  125,  127  

n.5   (Mass.   2013)   (inherent   authority);   Cty.   of   Douglas   v.   Neb.   Tax   Equalization   &  

Review   Comm'n,   894  N.W.2d   308,   323   (Neb.  2017)   (implied  authority);  Boydston  v.  

Liberty  Nw.  Ins.  Corp.,  999  P.2d  503,  505-06  (Or.  App.  2000)  (inherent  power).  

            23         See E. H. Schopler, Annotation, Power of administrative agency to reopen  


and  reconsider final  decision  as  affected  by  lack  of specific  statutory  authority,  73  


A.L.R.2d 939 (1960).  


                                                                        -11-                                                                   7356

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

                       Werecognized in               Monzulla  that "[t]he goal of thestatutory amendment                                     that  

established the Commission was 'to increase the efficiency and flexibility of the current                                                

                                                                       24   And we agreed "that the legislature wanted  

system . . . and reduce some of its costs.' "                                                                                            

those seeking review of Board decisions to have the same procedural rights of review  


that they had in the superior court."25  As a general matter, the legislature has directed  


that the Act be construed "to ensure the quick, efficient, fair, and predictable delivery of  


indemnity  and  medical  benefits  to  injured  workers  at  a  reasonable  cost  to  .  .  .  



                       Consistent  with  these  purposes,  we  interpret  the  Act  as  allowing  the  


Commission to reconsider its non-final orders.  In the context of the doctrine requiring  


exhaustion of administrative remedies, we have consistently emphasized the benefit to  


"both administrative autonomy and judicial economy" when an administrative body is  


allowed  the  opportunity  "to  correct  its  errors  and  a  complainant  [is  allowed  the  


                                                                                                    27   Pro-West suggests that an  

opportunity] to obtain relief without judicial intervention."                                                                                    


appeal is a sufficient substitute for reconsideration, but we disagree.  An appeal can be  


time-consumingandcostlyandsometimes involvesignificant delay,especially when any  


           24          254  P.3d  at  346  (quoting  2005  Senate  Journal  465).  

           25          Id.  at  347.  

           26          AS  23.30.001(1).  

           27          Smart  v.  State,  Dep't  of  Health  & Soc.  Servs.,  237  P.3d  1010,  1015  (Alaska  

2010);  see  also Alyeska  Pipeline  Serv.  Co.  v.  State,  Dep't of  Envtl.  Conservation,   145  

P.3d   561, 566 (Alaska  2006)  ("[A]s  we  have  noted,  the  purpose  of  an  administrative  

review  process  is to allow  an  agency   'to  correct  its  own  errors   so  as  to  moot  judicial  

controversies.'  "  (quoting   Voigt  v.  Snowden,  923  P.2d  778,  781  (Alaska   1996))).  

                                                                       -12-                                                                 7356

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


 chance for appellate review of a non-final order must await the case's final disposition.                                                                                    


An error corrected on reconsideration reflects the administrative agency's best-informed  


judgment  and  is  one  less  reason  for  a  judicial  appeal,  with  the  time  and  cost  that  


 invariably entails.  


                           We further note that because Commission regulations governing motions  

                                                                          29  reconsideration may be the only opportunity a  


 do not permit replies to oppositions, 

party has short of an appeal to point out errors in the opposition.  In this case Warnke- 


 Green attempted in his reconsiderationmotiontocountersomeassertionsPro-West made  


 in its opposition; he also provided evidence to the Commission related to issues the  


 Commission  raised on its own  - for  example,  showing  that the Commission  was  


mistaken in its finding that his attorney had billed twice for a single email.  


                           At oral argument before us, Pro-West agreed that the Commission could  


reconsider non-final orders when it had made an obvious mistake - for example by  


 deciding a motion without considering a timely filed opposition - but did not articulate  


 a clear standard for identifying an obvious mistake.  Like Pro-West, we are aware of no  


principled  way  to  identify  those  mistakes  that  are  sufficiently  obvious  to  permit  


reconsideration.   We do not suggest that the Commission must entertain any and all  


motions for reconsideration; we agree with Warnke-Green that "the proper course is to  


 clarify that the right exists and allow the [Commission] to adopt regulations clarifying  


              28           See Municipality of Anchorage v. Anderson                                             , 37 P.3d 420, 422-23 (Alaska               

2001) (Matthews, J., dissenting) (setting out paths for review of attorney's fees decision                                                                  

when superior court remanded case to Board).                                  

              29           See 8 AAC 57.100 (permitting opposition to stay request, but making no  


provisionfor reply); 57.140 (permitting opposition to somemotions forextension oftime  


but not providing for replies); 57.210 (allowing opposition to motions, but making no  


provision for reply); 57.260 (allowing opposition to motion for attorney's fees, but  


making no provision for reply).  


                                                                                  -13-                                                                            7356

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

the scope and limits of the right."                                   We therefore hold that AS 23.30.128(f) does not                                              

prohibit   the   Commission   from   reconsidering   orders   other   than   the   final   decisions  

described in AS 23.30.128(e) because the authority to reconsider is necessarily incident                                                                  


to the Commission's express authority to "issue other orders as appropriate."                                                                               

             B.	          The  Commission  Erred  By  Considering  The  Parties'  Underlying  


                          LitigationBeforeTheBoard, Including TheirSettlementOffers,When  


                          Determining Attorney's Fees For The Commission Appeal.  


                          Because  the  Commission  thought  the  amount  of  fees  Warnke-Green  


requested was excessive, it reduced Croft's hourly rate and disallowed some time entries  


to arrive at a base fee amount.   It then considered the "more difficult" question of  


whether  Warnke-Green "actually  prevailed  on  a  significant issue on  appeal."                                                                                 The  


Commission observed that Warnke-Green's claim before the Board "asked specifically  


for a 'new modified van' " and that Pro-West "denied the 'new modified van' and as an  


affirmative defense stated the employer was not required to pay the full cost of the  


modified  van  as  [the]  employee  had  owned  a  vehicle  at  the  time  of  injury."                                                                           The  


Commission noted that it "affirmed the Board's decision that a modifiable van was not  


a prosthetic device" but otherwise disagreed with the Board, concluding that the van was  


"an apparatus . . . and thus a compensable medical benefit."   The Commission then  


decided, however, that Warnke-Green "obtained only what had been offered prior to the  


filing of his claim," and the only real benefit achieved by the appeal was clarification  


"that an injured worker needs to contribute the value of the vehicle owned at the time of  


injury towards the purchase of the modified van."  The Commission wrote "that this  


clarification might be considered to be a significant issue, although it is considerably less  


than what Mr. Warnke-Green sought."  It concluded that it was "appropriate to award  




                          AS 23.30.128(d).  

                                                                                 -14-	                                                                                7356  

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

as a full compensatory and reasonable fee the amount of $13,956.00, or one-half of the                                                                                    

adjusted fees."                 

                           We held in             Lewis-Walunga v. Municipality of Anchorage                                                  that a successful     

party in a Commission appeal under AS 23.30.008(d) is the same as a "successful                                                                         

claimant" under former Alaska Appellate Rule 508(g)(2), which served as a model for                                                                                       

                                    31  A successful party is one who prevailed "on a significant issue on  

AS 23.30.008(d).                                                                                                                                                           

                 32  Interpreting AS 23.30.008(d), we observed that its language "signal[s] that  


the Commission's fee award is independent of success in the underlying claim" and  


"does not tie a fee award to success on a claim - it instructs the Commission to award  


fees in the appeal."33                      We later reiterated that success on appeal is not tied to success on  


the claim itself and that a claimant need not prevail on all issues to be a successful party  



on appeal.                 


                           Because success on appeal is not tied to success on the claim itself, neither  


the relief Warnke-Green requested in his initial worker's compensation claim nor Pro- 


              31           249 P.3d 1063, 1067-68 (Alaska 2011).                               



                           Id. at 1068 & n.16 (emphasis added) (summarizing attorney's fees awards  


under former Appellate Rule 508(g)(2)).  

              33           Id. at 1068.  


              34           Humphrey v. Lowe's Home Improvement Warehouse, Inc., 337 P.3d 1174,  


 1182  (Alaska  2014).                               We   note  that  earlier  Commission  decisions  interpreted  


AS 23.30.008 similarly, deciding that success in an appeal was unrelated to success on  


the underlying claim.  See Municipality of Anchorage v. Syren, AWCAC Dec. No. 015  


at 1-3 (Aug. 3, 2006) (considering parties' positions and success before the Commission  


in awarding fees); Doyon Drilling Inc. v. Whitaker, AWCAC Dec. No. 008 at 2 (Apr. 14,  


2006) (same).  In this case, the Commission did not mention or cite these decisions,  


which  under  AS  23.30.008(a)  and  our  interpretation  of  it  are  precedential  for  the  


Commission.   See Alaska Pub. Interest Research Grp. v. State, 167 P.3d 27, 44-45  


(Alaska 2007).  


                                                                                    -15-                                                                             7356

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

 West's settlement offer is legally relevant to whether he was a successful party on                                                                                                                       

 appeal.   To determine success on appeal, the Commission needs to consider what the                                                                                                                      

 Board ordered, what the parties sought in the appeal, and what the appeal decided.                                                                                                                       

                                 The Board decided that a modified van was not a transportation benefit or                                                                                                   

 a medical benefit (being neither an "apparatus" nor a "prosthetic device") and denied                                                                                                            

                                                                                        35  Onappeal, Warnke-Green askedtheCommission  

 Warnke-Green's claimin itsentirety.                                                                                                                                                

 "to conclude legally that a modified van is an allowable medical or related transportation  


 benefit under the Act" and to "order the insurance company to either pay the full price  


 of the modified van or deduct only the value of the actual vehicle [he] owned."  The  


 Commission did just as Warnke-Green requested:  It decided that "any increased costs  


 associated  with  the  purchase  of  a  modifiable  motor  vehicle  and  any  necessary  


 modifications  which  will  enable  Mr.  Warnke-Green  to  use  the  motor  vehicle  are  


 encompassed in the language 'apparatus' and, thus, are compensable medical benefits  


 under the Act." The Commission found that the parties had agreed to the amount of any  


                                                                                                                                               36   On this record, we see no  

 offset based on the value of Warnke-Green's old Suburban.                                                                                                                                                  


 basis for questioning Warnke-Green's success in the appeal; the Commission awarded  


 what  he  asked  for.                                   The  Commission's  conclusion  that  Warnke-Green  obtained  


 "considerably less than what [he] sought" is erroneous.  


                 35              Pro-West advocated denial of the claimas an alternative position before the                                                                                               

 Board, but this was not its principal position.                                                               

                 36              We  have  been  unable  to  find  support  for  this  finding  in  the  record  


preceding theattorney'sfees litigation, but Pro-West concededthepoint in its opposition  


 to the attorney's fees motion in the Commission:   "As the Commission noted in its  


 Decision, Employer 'Pro-West . . . has asked [Warnke-Green] to contribute the value of  


 his Suburban [vehicle] which Mr. Warnke-Green estimates to be between $500 and  


 $1,000.' "  


                                                                                                    -16-                                                                                              7356

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

                                                Even if the parties' positions before the Board were relevant to success on                                                                                                                                                                                  

appeal, the Commission's findings here are not supported by the record. We have found                                                                                                                                                                                                            

no evidence to support the Commission's conclusion in its substantive decision that "Pro                                                                                                                                                                                                              

West has stated it is willing to provide Mr. Warnke-Green with a modified van, but has                                                                                                                                                                                                                   

only asked that he contribute something to the purchase," that being "the value of his                                                                                                                                                                                                                     

 Suburban,"whichWarnke-Greenrefused                                                                                                                to do. Infact                                 Pro-West specifically denied that  

this was its position when asked by the Board chair.                                                                                                                                    Rather, Pro-West's main argument                                                            

was that the Board should apply the Crouch rule - "which awards an employee the cost                                                                                                                                                                                                                   

of any special equipment or adaptations to a vehicle or van, plus the cost difference                                                                                                                                                                                           

between that vehicle and an ordinary non-adapted vehicle such as the type the employee                                                                                                                                                                                             

would otherwise have owned"                                                                                  37 (emphasis omitted) - and it advanced the alternative  

argument that Warnke-Green's claim be denied in its entirety.   We also agree with  


Warnke-Green  that  what  he  obtained  through  litigation  was  more  than  Pro-West's  


proposed settlement, which required him to forgo any future non-emergency medical  


transportation costs; these could be considerable given his age and medical status.  The  


Commission's  decisions  thus  both  misstated  Pro-West's  litigation  position  and  


mischaracterized Pro-West's settlement offer.  


                                                In light of the statutory mandate that the successful party in an appeal is  


entitled to "fully compensable and reasonable"38   attorney's fees, the Commission's  


decision to award Warnke-Green only half his fees was legal error.  


                        37                      Pro-West wrote in its hearing brief:                                                                                                    "Importantly for the dispute now                                                                             

before the Board, this [the Crouch rule] is precisely Pro-West's position here."                                                                                                                                                                                                             

                        38                      AS 23.30.008(d).  


                                                                                                                                                    -17-                                                                                                                                            7356

----------------------- Page 18-----------------------

                             C.	                          The Commission Clearly Erred By Reducing The Attorney's Hourly                                                                                                                                                                                                                             

                                                          Rate, Abused Its Discretion By Disallowing One Time Entry, But Did                                                                                                                                                                                                                                         

                                                          Not Abuse Its Discretion By Disallowing Others.                                                                                                                                                                                  

                                                          Warnke-Green appeals both the Commission's reduction of Croft's hourly                                                                                                                                                                                                                          

rate from $400 to $350 and its disallowance of 2.4 hours of Croft's time.                                                                                                                                                                                                                                                  We conclude   

that the Commission clearly erred by reducing the rate without an evidentiary basis for                                                                                                                                                                                                                                                                                  

doing so and that its disallowance of one time entry was an abuse of discretion.                                                                                                                                                                                                                         

                                                          Asuccessful partyrepresentedbycounselbeforetheCommissionis entitled                                                                                                                                                                                                                         

to attorney's fees "that the [C]ommission determines to be fully compensatory and                                                                                                                                                                                                                                                                                    



                                                               Neither AS23.30.008(d) nor8AAC57.250,theCommission'sregulation  


on attorney's fees, expands on the meaning of the phrase "fully compensatory and  



reasonable."  The Commission has published few of its attorney's fees decisions, 


the parties have not cited any that are directly relevant to this question. Pro-West did not  


dispute that the fees Warnke-Green requested were reasonable as to the hourly rate and  


the number of hours expended; Pro-West confined its opposition to an argument that it,  


not Warnke-Green, was the successful party in the appeal.  

                             39	                         Id.  

                             40                           We have identified the following decisions on the Commission's website                                                                                                                                                                                                                     

as related to attorney's fees:                                                                                                     Titan Enters., LLC v. State, Div. of Workers' Comp.                                                                                                                                                                                              ,  

AWCAC Dec. No. 210 at 8-9 (Feb. 18, 2015) (on remand from this court, awarding                                                                                                                                                                                                                                                               

 $38,000 to employer who was partially successful in appeal against Division related to                                                                                                                                                                                                                                                                                      

fine for failure to insure);                                                                                     Municipality of Anchorage v. Adamson                                                                                                                                          , AWCAC Dec. No.                                                       

203 at 5 (Nov. 12, 2014) (deciding that employee's request for attorney's fees following                                                                                                                                                                                                                                                    

successful appeal to this court was too late);                                                                                                                                               Rockstad v. Chugach Eareckson                                                                                                               , AWCAC   

Dec. No. 108 at 9 (May 11, 2009) (refusing to award fees to employer);                                                                                                                                                                                                                                                                Shehata v.   

Salvation   Army,   AWCAC   Dec.   No.   075   at   7   (Mar.  19,  2008)   (awarding   fees   to  

employer),   rev'd   225 P.3d 1106, 1119 (Alaska 2010);                                                                                                                                                                                           Municipality of Anchorage v.                                                                                               

Syren,   AWCAC Dec.                                                                                No.   015   at   8   (Aug.   3,   2006)   (awarding   fees   to   claimant  for  

interlocutory review);                                                                           Doyon Drilling, Inc. v. Whitaker                                                                                                                    , AWCAC Dec. No. 008 at 5                                                                                                 

(Apr. 14, 2006) (awarding fees to claimant).                                                                                                        

                                                                                                                                                                                   -18-	                                                                                                                                                                         7356

----------------------- Page 19-----------------------

                       We   review   the   amount   of   attorney's   fees   awarded  for  an   abuse   of  



                       This standard of review is consistent with both the statutory language and  

                                                                                                                                  42   But here  



the standard we apply when reviewing attorney's fees awarded by the Board. 

the  Commission  also  made  factual  findings.                                    With  respect  to  the  hourly  rate,  the  


Commission wrote that it "f[ound] an hourly rate of $350.00 per hour to be a reasonable  


hourly rate for an attorney practicing in the area of workers' compensation with the  


experience and expertise exemplified by attorney Eric Croft." No evidence in the record  


supports the Commission's finding,43  and the Commission did not explain it.  The only  


evidence of reasonable hourly rates in the record was the affidavit in support of Croft's  


request for attorney's fees.   This evidence was unchallenged44   and is not obviously  


unreasonable; we note that we and the Board have both awarded Croft fees at this rate  


                                                                 45   In short, because the Commission's decision to  

in other workers' compensation cases.                                                                                                             


            41         Cf. Shehata         , 225 P.3d at 1119 (applying abuse of discretion standard to                                           

question of frivolousness under AS 23.30.008(d)).              

            42          Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002).  


            43         We review the Commission's factual findings to determine whether they  


are "supported by substantial evidence in light of the whole record." Lewis-Walunga v.  


Municipality             of     Anchorage,              249       P.3d        1063,        1066        (Alaska          2011)         (quoting  


AS 23.30.129(b)).  


            44         Syren, AWCAC Dec. No. 015 at 8 n.18 (treating reasonable hourly rate as  


fact issue, Commission writes that employer "submitted no evidence that the hourly fee  


charged by [claimant's]attorneywas'manifestly unreasonable' "and concludes that "the  


hourly fee was not challenged" (quoting State, Dep't of Revenue v. Cowgill, 115 P.3d  


522, 524 (Alaska 2005))).  


            45         Adamson  v.  Municipality  of  Anchorage ,  Nos.  S-15006/15025  (Alaska  


Supreme Court Order, Oct. 8, 2014 and underlying motion); Rusch v. S.E.A.R.H.C.,  


AWCB Dec. No. 16-0131 at 10, 16 (Dec. 21, 2016).  


                                                                       -19-                                                                 7356

----------------------- Page 20-----------------------

reduce Croft's hourly rate is unsupported by the record, it is arbitrary and an abuse of                                                                                                                                                                                                                                                                              


                                                         Turning to the 2.4 hours of disallowed time, we begin by observing that                                                                                                                                                                                                                              

Pro-West did not challenge the number of hours or the reasonableness of the identified                                                                                                                                                                                                                                                

tasks.   The Commission nonetheless speculated that two entries for emails on the same                                                                                                                                                                                                                                                                   

 day must be duplicative and therefore disallowed one of them.                                                                                                                                                                                                                            Again, there is no                                                       

 evidence to support the Commission's speculation, and Warnke-Green submitted copies                                                                                                                                                                                                                                                                

 of two emails when he asked the Commission to reconsider its attorney's fees award.                                                                                                                                                                                                                                                                                                

 The Commission was clearly mistaken in assuming a duplicative charge.                                                                                                                                                                                                                

                                                         The Commission further reduced Croft's hours for "supervisory activities"                                                                                                                                                                                                   

related to paralegals, writing that such activities "are encompassed within the billing rate                                                                                                                                                                                                                                                                    

which covers office overhead."                                                                                                         The relevant time entries are vague and do not clearly                                                                                                                                                     

 indicate that the attorney was adding value to the work as opposed to training his staff                                                                                                                                                   

-  which is equally necessary to the practice of law but not ordinarily chargeable to the                                                                                                                                                                                                                                                                         

                                                                                                                                                                                                       46            Warnke-Green does not explain the  

 client (or, in cases like this, to the employer).                                                                                                                                                                                                                                                                                                               

 entries further in his brief on appeal other than to emphasize the importance of attorneys'  


 ethical duty to carefully supervise their paralegals' work. Given the broad discretion we  


 ordinarily give to courts' determinations of such issues,47 we cannot conclude that it was  


                             46                          Under the heading "Supervise Paralegal Activities," the entries include, for                                                                                                                                                                                                                               

 example, "James on brief draft schedule"; "review brief draft with James"; "JC on                                                                                                                                                                                                                                                                                 

research and writing tasks"; "PJ on post brief issues"; "PJ on oral argument."                                                                                                                                                                                                                                                             

                             47                          See Hodari v. State, Dep't of Corr., 407 P.3d 468, 473 (Alaska 2017)  


 (observing that it is within superior court's broad discretion to "refuse to award fees  


based  on  'billings  that  are  too  vague  to  allow  a  fair  determination  that  they  were  


reasonably incurred or incurred in connection with the . . . lawsuit' " (quoting Bobich v.  


Hughes, 965 P.2d 1196, 1200 (Alaska 1998))).  


                                                                                                                                                                                -20-                                                                                                                                                                       7356

----------------------- Page 21-----------------------

an   abuse   of   discretion   for   the   Commission   to   exclude   these   entries   for   paralegal  


                          With   the   exception   of   these   entries,   however,   we   conclude   that   the  

Commission's decision here is contrary to the policy underlying former Appellate Rule                                                                          

                                                                                   48   The purpose of awarding full reasonable  

508(g) and by extension AS 23.30.008(d).                                                                                                           

attorney's fees in workers' compensation cases is to ensure that competent counsel are  


available to represent injured workers.49                                      The Commission abused its discretion when it  


lowered Croft's hourly rate and disallowed one of his time entries without an evidentiary  


basis for doing so.  


V.           CONCLUSION  

                          We REVERSE the Commission's determination that it lacks the authority  


to reconsider decisions other than its final decisions in an appeal.  We REVERSE the  


Commission's attorney's fees award and remand totheCommission for an award of fully  


compensable and reasonable fees consistent with this opinion.  


             48           See   Lewis-Walunga,   249   P.3d   at   1067   (finding   legislative   intent   for  

attorney's fees in Commission appeals "to follow the same rules as appellate attorney's                                                             

fees awards in the courts").         

             49           Cowgill, 115 P.3d at 524; see also Syren, AWCAC Dec. No. 015 at 2-3  


(interpreting AS 23.30.008(d) and recognizing objective of making competent counsel  


available to injured workers).  


                                                                                -21-                                                                          7356

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