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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. D&D Services, LLC d/b/a Novus Auto Glass and Ohio v. Kiel L. Cavitt (7/5/2019) sp-7383

D&D Services, LLC d/b/a Novus Auto Glass and Ohio v. Kiel L. Cavitt (7/5/2019) sp-7383

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

D&D  SERVICES  d/b/a  NOVUS                                      )  

AUTO  GLASS,  and  LIBERTY                                       )     Supreme  Court  No.  S-17143  

MUTUAL,                                                          )  


                                                                 )    Alaska Workers' Compensation  


                                Appellants,                      )    Appeals Commission No.  17-017  



                                                                 )    O P I N I O N  



KIEL CAVITT,                                                                                          

                                                                 )    No. 7383 - July 5, 2019  


                                Appellee.                        )  




                      Petition for Review fromthe Alaska Workers' Compensation  


                      Appeals Commission.  


                      Appearances:  Stacey C. Stone, Holmes Weddle & Barcott,  


                      P.C.,      Anchorage,             for     Appellants.               Keenan          Powell,  


                      Anchorage, for Appellee.  


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


                      and Carney, Justices.  


                      WINFREE, Justice.  



                      An employer disputes liability for attorney's fees the Alaska Workers'  


Compensation  Appeals  Commission  awarded  an  employee,  contending  that  the  


employee was not a successful party in the appeal and that the amount awarded was  


unreasonable.  Because the Commission's underlying decision on the merits included a  

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


remand on one issue, we asked the parties to provide supplemental briefing on the  


question whether the attorney's fees order was final for purposes of appeal. We hold that  


such orders are not final for purposes of appeal, but we treat the putative appeal as a  


petition for review, grant review, and affirm the Commission's attorney's fees award.  




                    Kiel Cavitt fractured his right elbow while working as an auto shop glazier  


for D&D Services in August 2015.  He later received compensation for a permanent  


partial  impairment.             Cavitt  was  unable  to  continue  working  as  a  glazier,  and  he  


subsequently went to work as a pizza delivery driver.  


                    Cavitt fell on his outstretched right hand in February 2017, and a medical  


scan the following month showed damage to the hardware inserted to repair the elbow  


injury.  Cavitt's doctor said Cavitt was totally disabled from working from March 10  


through April 15.  


                    In March Cavitt filed a written workers' compensation claim against D&D  


Services seeking temporary total disability (TTD), a compensation rate adjustment, and  


attorney's  fees.            D&D  Services  initially  denied  liability  and  filed  a  notice  of  


controversion. In early April Cavitt filed another written claim, including medical costs,  


transportation costs, penalty, unfair or frivolous controversion, and interest, in addition  


to TTD and attorney's fees. He also sought an order that D&D Services was responsible  


for paying future TTD.  In late April D&D Services' doctor said that Cavitt needed a  


second surgery and that the work injury with D&D Services was the substantial cause  


of his disability and need for medical care.  D&D Services then paid Cavitt TTD, but it  


did not pay penalty or interest.  


                    The Alaska Workers' Compensation Board largely denied Cavitt's claim  


following an August 2017 hearing.  The Board decided the controversion was in good  


faith, declined to impose a penalty, and denied the compensation rate adjustment.  The  

                                                               -2-                                                         7383

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Board agreed Cavitt was owed interest; additionally, it ordered D&D Services to pay                                                                                                                                                      

Cavitt TTD "until such time as he becomes medically stable." The Board awarded Cavitt                                                                                                                                              

only $500 in attorney's fees for his success on these two issues:                                                                                                                          the order requiring   

D&D Services to pay TTD and the interest award.                                                                                                  The balance of the attorney's fees                                                     

award was for work done before the employer effectively withdrew its controversion by                                                                                                                                                        

voluntarily paying TTD.                                                

                                      Cavitt appealed to the Commission, which for the most part affirmed the                                                                                                                              

Board's decision.                                  The Commission decided, however, that the Board had not awarded                                                                                                          

Cavitt sufficient attorney's fees.                                                               Discussing the difference between                                                                       Board-ordered  

compensation and voluntary employer payments, the Commission observed precedent                                                                                                              

                                                                                                                             1  requiring that when the Board orders an  

in   Underwater Construction, Inc. v. Shirley                                                                                                                                                                                                

employer to pay compensation, the employer cannot simply fileanoticeofcontroversion  


and stop paying benefits; the employer must seek modification of the award.   The  


Commission  determined  the  Board  had  undervalued  both  the  overall  services  the  


attorney provided and the importance of the TTD order, observing that D&D Services  


"strongly resisted" that order.2                                                         The Commission decided that "additional attorney fees  


are owed to Mr. Cavitt's counsel" for prevailing on this issue, and it remanded to the  


Board "for a determination of the time involved by Mr. Cavitt's counsel on this issue  


among other benefits obtained for Mr. Cavitt."  


                                      Cavitt then requested attorney's fees in the Commission, seeking costs and  


nearly $12,000 in attorney's fees as a successful party in the appeal.  D&D Services  


opposed the motion, contending that Cavitt "lost his appeal on every significant issue  


                   1                  884 P.2d 156, 161 (Alaska 1994).                                                                 



                                      Cf.  AS  23.30.145(b)  (authorizing  Board-ordered  attorney's  fees  from  


employer who "otherwise resists" paying compensation).  

                                                                                                                      -3-                                                                                                             7383

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 except for the remand back to the Board on the attorney's fee issue" but conceded the                                                                                                          

Commission should award Cavitt some fees.                                                                

                               The Commission awarded Cavitt $6,000 in attorney's fees, deciding he had                                                                                        

won a significant issue on appeal and was entitled to reasonable attorney's fees.                                                                                                           The  

Commission defined "reasonable . . . as equitable for the work performed and the results                                                                                                

obtained" and found that $6,000 was reasonable.                                                                   

                               D&D   Services   appealed   the   attorney's   fees   order   to   us.     Because   the  

Commission remanded the case in part to the Board, and because we held in                                                                                                             Huit v.   

                                                 3  that the finality rule of City & Borough of Juneau v. Thibodeau4  

Ashwater Burns, Inc.                                                                                                                                                         


applies to Commission decisions,  the attorney's fees award in this case was not clearly  


appealable as a matter of right.  In Municipality of Anchorage v. Anderson, a workers'  


compensation decision pre-dating the Commission's creation, we decided that a superior  


court's attorney's fees award was not final for appeal purposes when the court's remand  


                                                                                                                                      6  We asked the parties in this  

to the Board meant the underlying court order was not final.                                                                                                                                   


case to brief questions related to the finality of Commission attorney's fees orders.  




                               "Whether the Commission correctly applied the law in determining an  


award of attorney's fees is a question of law that we review de novo."7                                                                                            "We review the  


                3              372  P.3d  904  (Alaska  2016).   

                4              595  P.2d  626  (Alaska  1979),  disavowed  on  other  grounds  by  State  v.  Alex ,  

 646  P.2d  203,  208  n.4  (Alaska   1982).  

                5              Huit,  372  P.3d  at  912-16.  

                6              37 P.3d 420, 421 (Alaska 2001).  


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


                                                                                                -4-                                                                                        7383

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


amount   of   fees   awarded   for   abuse   of   discretion."     "We   interpret   'our   civil   [and  

appellate] rules de novo, adopting the rule of law which is most persuasive in light of                                                        


precedent, policy, and reason.' "                          



           A.	        A Commission Attorney's Fees Award In A Case Remanding An Issue  


                       To The Board Is Not Appealable As A Matter Of Right.  


                       The parties take the position that the Commission's attorney's fees award  


was final and appealable as a matter of right because it meets the tests for finality under  


administrative law precedent.  We do not disagree with the parties that this attorney's  

                                                                                                     10   But under the appellate  


fees decision is consistent with administrative finality tests. 

rules, the order cannot be appealed as a matter of right.  


                      Alaska Statute 23.30.129(a) provides in part that "final decisions of the  


[C]ommission may be appealed to the supreme court, and other orders may be reviewed  


           7           (...continued)  


           8           Warnke-Green v. Pro-West Contractors, LLC                                   , 440 P.3d 283, 288 (Alaska           




                      Licht v. Irwin, 292 P.3d 915, 918 (Alaska 2013) (alteration in original)  


(quoting Kellis v. Crites, 20 P.3d 1112, 1113-14 (Alaska 2001)).  



                       The test for administrative finality " 'is essentially a practical one' that  


considers 'whether the agency has completed its decisionmaking process[] and whether  


the result of that process is one that will directly affect the parties' "; it "should also  


consider whether the litigants still have an opportunity 'to submit evidence or alter the  


decision through administrative means.' "  Huit, 372 P.3d at 914 (alteration in original)  


(first quoting Crawford & Co. v. Baker-Withrow, 81 P.3d 982, 985 (Alaska 2003); then  


quoting Allen v. State, Dep't of Revenue, Child Support Enf't Div. , 15 P.3d 743, 747  


(Alaska 2000)).   The Commission has completed its decisionmaking process on the  


attorney's fees for this appeal, and the parties will not have an opportunity to alter the  


Commission's fees award through administrative means.  

                                                                       -5-	                                                              7383

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by the supreme court as provided by the Alaska Rules of Appellate Procedure."                                                                 We  

decided in         Huit  that a "final decision of the [C]ommission" under this statute is not the                                              

                                                                                                                11   We  also  held  that  

same   as   a   "final   [C]ommission   decision"   in   AS   23.30.128(e).                                                                   

Commission  decisions  remanding  issues  to  the  Board  are  subject  to  the  rule  in  


Thibodeau; decisions remanded to the Board are not final for purposes of appeal under  


AS 23.30.129(a).12  Applying Huit, the Commission's decision on the merits of Cavitt's  


appeal  was  not  a  final  decision  under  AS  23.30.129(a)  because  the  Commission  


remanded the case in part for the Board to address attorney's fees anew.  


                       Alaska Appellate Rule 201.1(a) applies Part 2 of the Appellate Rules to  


Commission appeals under AS 23.30.129.  Alaska Appellate Rule 202(a) provides that  


"[a]n appeal may be taken to the supreme court . . . from a final decision entered by the  


Alaska Workers' Compensation Appeals Commission in the circumstances specified in  


AS 23.30.129." Alaska Appellate Rule 204(a)(5)(A) allows a separate appeal related to  


attorney's fees when no appeal is pending:                                       "[A] post-judgment order awarding or  


denying costs [and] attorney's fees . . . may be considered a final judgment subject to an  


appeal limited to issues of costs [and] attorney's fees." Because no appeal related to the  


Commission's merits decision was pending in this court when D&D Services filed its  


attorney's fees appeal, Appellate Rule 204(a)(5)(A) governs whether the Commission's  


attorney's fees award was a final judgment subject to appeal.  This, in turn, depends on  


whether the attorney's fees award was "a post-judgment order."  It is not such an order.  


                       Appellate  Rule  201.1(c)  provides  that  "judgment"  includes  "the  final  


decision   of   the   Alaska   Workers'   Compensation   Appeals   Commission,   if   that  


            11         Alaska   Statute   23.30.128(e)   sets   out   the   requirements   for   a   "final  

[C]ommission decision."   

            12         372 P.3d at 912-16.  


                                                                        -6-                                                                 7383

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 [C]ommission entered the decision being appealed under AS 23.30.129."                                                                                               Because  

"judgment" is defined in relation to AS 23.30.129, and because the merits decision in this                                                                                      

case was not final under                           Huit 's interpretation of AS 23.30.129, the attorney's fees order                                                        

is not, under the Appellate Rules, "a post-judgment order" awarding attorney's fees.                                                                                     

                            Both parties cite                    Humphrey v. Lowe's Home Improvement Warehouse,                                               

        13  in their finality discussion, but Humphrey, predating Huit, expressly declined to  


consider the Thibodeau issue.14  Humphrey thus offers no guidance about the finality of  


the attorney's fees order.  


                            We acknowledge that Commission attorney's fees decisions like this one  


may never be reviewed or that review may come only after a lengthy process.15                                                                                                    To  


address this concern, we will refer the issue to the Appellate Rules Committee.16  


                            Under Alaska Appellate Rule 402(b)(1) we may grant review of a nonfinal  


order if doing otherwise may result in "unnecessary delay, expense, . . . or other related  


factors." The Commission attorney's fees award is a discrete issue, and the parties have  


fully briefed it; we therefore convert this putative appeal to a petition for review and  


consider the petition's merits.17  


              13             337  P.3d   1174  (Alaska  2014).  

              14            Id.  at   1178  n.5.  

              15            See  Municipality   of  Anchorage   v.  Anderson ,   37   P.3d 420, 423   (Alaska  

2001)   (Matthews,   J.,   dissenting)   (noting   difficulties   obtaining   interlocutory   order  


              16             Cf.  Cole v. State Farm Ins.  Co.,  128 P.3d  171,  173 n.2  (Alaska 2006)  


(referring question to Appellate Rules Committee).  


              17            See City & Borough of Juneau v. Thibodeau, 595 P.2d 626, 631 (Alaska  


 1979) (holding that we may treat improperly brought appeal as petition for review); see  



                                                                                         -7-                                                                                 7383

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                                B.	                            The Commission Did Not Err By Awarding Cavitt Attorney's Fees As                                                                                                                                                                                                                                                                           

                                                               The Successful Party In The Appeal.                                                                                                             

                                                               D&D   Services   argues   that   the   Commission  erred   by   awarding   Cavitt  

 attorney's fees because he "did not prevail on any issue before the Commission," and he                                                                                                                                                                                                                                                                                                                   

 "lost on every issue that he appealed to the Commission." D&D Services concedes that                                                                                                                                                                                                                                                                                                                

 in Cavitt's Commission appeal he "merely could be considered to have prevailed in part                                                                                                                                                                                                                                                                                                             

 on one issue out of five," but it argues that he in fact did not because he requested only                                                                                                                                                                                                                                                                                                      

that the Commission enter an order awarding him full fees and the remand order did not                                                                                                                                                                                                                                                                                                                 

 give him the exact relief he sought.                                                                                                                                   

                                                               Cavitt responds that his case fits squarely within the holding of                                                                                                                                                                                                                                 Humphrey,  

 a case in which we reversed a denial of attorney's fees to a claimant who persuaded the                                                                                                                                                                                                                                                                                                                

 Commission to remand an attorney's fees issue to the Board. D&D Services argues that                                                                                                                                                                                                                                                                                                                

Humphrey  is distinguishable because Cavitt only "requested                                                                                                                                                                                                                                full  attorney's fees, which                                                                  

he did not obtain," (emphasis in original) and he therefore "was simply not a successful                                                                                                                                                                                                                                                                         


                                                               We agree with Cavitt that                                                                                             Humphrey  controls the outcome of this question.                                                                                                                                                                                    

 In  Humphrey  the claimant succeeded in persuading the Commission that the Board had                                                                                                                                                                                                                                                                                                                

not awarded himsufficient attorney's fees, and the Commission remanded the case to the                                                                                                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                                                                      18   The Commission refused  

Board because there were insufficient findings on the issue.                                                                                                                                                                                                                                                                                                                       

to award the claimant attorney's fees for the appeal because, in its view, he was not a  


 successful party; we reversed the Commission's order denying attorney's fees and held  


                                17                             (...continued)  


 also Alaska R. App. P. 402(b).  

                                18                             337 P.3d at 1177-78.  


                                                                                                                                                                                                     -8-	                                                                                                                                                                                       7383

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


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


We  did  not  require  an  exact  match  between  the  requested  relief and  the  relief  the  


Commission ordered.  As we recently held in Warnke-Green v. Pro-West Contractors,  


LLC :  "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 awarded Cavitt minimal fees despite his attorney's work while  


his  claim was  controverted  and  his  success  on  two  issues.                                        Cavitt  appealed  to  the  


Commission to reverse the Board's decision on the merits; he also sought "full fees" for  


work before the Board under AS 23.30.145(b).  The Commission instructed the Board  


to  determine  the  amount  of  time  Cavitt's  counsel  spent  on  the  future  TTD  award,  


determined that the Board had undervalued that award, and observed that D&D Services  


"strongly resisted theBoard making this order,"indicatingthat theCommission expected  


the Board to award increased attorney's fees based on D&D Services' resistance.  


                      Requiring   a  successful   party   to   have  requested   exactly   what   the  


Commission orders undermines the purpose of attorney's fees awards to claimants,  


which is "to ensure that competent counsel are available to represent injured workers."21  


Such a rule could prohibit a fees award when the Commission affirms on an alternative  


basis that was not argued and could lead to litigation about how closely the Commission  


decision matched the requested relief.  Neither possibility is desirable.  


                      The  Commission  decided  a  significant  issue  in  Cavitt's  favor,  and  it  


appropriately decided he was a successful party in the appeal.  


           19         Id.    at    1181-82    (emphasis    in    original)    (quoting   Lewis-Walunga   v.  

Municipality of Anchorage                    , 249 P.3d 1063, 1068 (Alaska 2011)).                

           20         440 P.3d 283, 291 (Alaska 2019).  


           21         Id. at 294.  


                                                                      -9-                                                              7383

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

                C.               The $6,000 Attorney's Fees AwardWas                                                                  Not ManifestlyUnreasonable.   

                                 D&D Services argues that the amount of fees the Commission awarded                                                          

Cavitt is "manifestly unreasonable."                                                      D&D Services provides two legal arguments, one                                                                  


based on a misreading of our precedent                                                                 and the other based on a prior Commission                                    


decision. D&D Services maintains that in the past the Commission has awarded fees "in  


proportion to the discussion and authority devoted to the issue"; it compares the number  

of pages in Cavitt's brief about each issue and contends that the amount of fees awarded                                                                                                      

was unduly large.                            


                                 Cavitt responds that the Commission's award was appropriate because the  


fees awarded were reasonable given the circumstances; he does not contend that the  


award is too low. He points out that D&D Services' proposed method of calculating fees  


based  on  counting  pages  or  words  could  be  abused:                                                                                    A  party  could  be  prolix  in  


arguments with a good chance of success, even with an obvious outcome, or unduly terse  


in  arguing  less  meritorious  claims,  manipulating  an  increased  fees  award.                                                                                                                  Cavitt  


summarizes his case's procedural history to illustrate the Commission's point about his  


attorney's services being more valuable than the Board considered them.  


                                 The Commission found that " 'fully compensatory' does not necessarily  


mean the full amount of fees sought as long as the amount awarded is sufficient to  


encourage  attorneys  to  continue  to  represent  injured  workers."                                                                                                      It  then  defined  


"reasonable" to mean "equitable for the work performed and the results obtained."  It  


concluded that $6,000 in attorney's fees "satisfie[d] both the requirement to be fully  

                22               D&D               Services                 contends                  that          under    State,    Division   of    Workers'  

Compensation v. Titan Enterprises, LLC                                                            , 338 P.3d 316 (Alaska 2014), the Commission                                      

is required to "consider the success of all parties on appeal."                                                                                            Our   Titan Enterprises   

holding was limited to appeals in which both parties were nonclaimants.                                                                                                         See id.          at 322-  


                                                                                                    -10-                                                                                              7383

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

compensatory and the requirement to be reasonable."                                                                          

                               We are not persuaded that the Commission's fees award was manifestly                                                                            

unreasonable.   We have recognized that the Commission has discretion to determine an                                                                                                             

                                                                                                                                                     23    The Commission's  

appropriate fee as long as the record supports its factual findings.                                                                                                  

factual findings are not an issue in this appeal.  We have interpreted AS 23.30.008(d) as  


being  consistent  with  and  having  the  same  purpose  as  former  Alaska  Appellate  


Rule 508(g).24  The Commission's award is consistent with the purpose of "ensur[ing]  


that competent counsel are available to represent injured workers."25  The award likewise  


fulfilled the statutory requirement that the attorney's fees be both "fully compensatory  


and reasonable."26  


 V.             CONCLUSION  

                               We AFFIRM the Commission's attorney's fees award.  


               23              See Warnke-Green                           , 440 P.3d at 288.             

               24             Lewis-Walunga,                             249          P.3d          at       1067-68.                     Under             former   Appellate  


Rule 508(g)(2), a successful claimant was to be awarded full reasonable attorney's fees,  

and a successful claimant was one who prevailed on a significant issue on appeal.                                                                                                          Id.  at  


               25              Wise Mech. Contractors v. Bignell, 718 P.2d 971, 975 (Alaska 1986).  


               26              AS 23.30.008(d).  


                                                                                               -11-                                                                                        7383

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