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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

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

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                        

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                           

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



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  

                                                                 )  

           v.                                                                              

                                                                 )    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.  



I.         INTRODUCTION  



                                                                                                                             

                      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.  



                                  

II.       FACTS AND PROCEEDINGS  



                                                                                                                          

                    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
  


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

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).                                                                 



                   2  

                                                                                                                                                                                                                                     

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

                                                                                                                       

employer who "otherwise resists" paying compensation).  



                                                                                                                      -3-                                                                                                             7383
  


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

 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.                                                                                                                                                         



                                                                             5  

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.  

                                                                                                                                                                                                



III.            STANDARD OF REVIEW  

                                                           



                               "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  



                                                                                                                                                                        (continued...)  



                                                                                                -4-                                                                                        7383
  


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

                                                                                         8  

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                                                        



                                                       9  

precedent, policy, and reason.' "                          



IV.	       DISCUSSION  



                                                                                                                                          

           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)  



2011).  



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



2019).  



           9  

                                                                                                                                    

                      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)).  



           10  

                                                                                                                                            

                       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
  


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

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
  


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

 [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  

Inc.                                                                                                                                                                               

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  

review).  



              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  

                                                                                                                                                                                 

                                                                                                                                                           (continued...)  



                                                                                         -7-                                                                                 7383
  


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

                                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                                                                                                                                                                                                                                                                         



party."    



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

                                                                                                                                             19  

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  



                                                                                                                                           20  

                                                                                                                                               

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                                                                  



                                                                                                  22  

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-  

23.  



                                                                                                    -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  

 1068.  



               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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