Workers' Compensation Appeals Commission No. 16-014
for Review from the Alaska Workers' Compensation Appeals
Croft, The Croft Law Office, LLC, Anchorage, for Petitioner.
Constance E. Livsey, Barlow Anderson, LLC, Anchorage, for
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and
Alaska Workers' Compensation Board denied a worker's
request that his employer pay for a van modified to
accommodate his work-related disability. On appeal, the
Alaska Workers' Compensation Appeals Commission decided
that a modifiable van was a compensable medical benefit. The
worker moved for attorney's fees. The Commission reduced
the attorney's hourly rate, deducted a few time entries,
and awarded him less than half of what was requested. The
worker asked the Commission to reconsider its award, but it
declined to do so because of its view that the Alaska
Workers' Compensation Act (the Act) allows it to
reconsider only the final decision on the merits of an
granted the worker's petition for review. We hold that
the Commission has the necessarily incidental authority to
reconsider its non-final decisions. We also reverse the
Commission's award of attorney's fees and remand for
an award that is fully compensable and reasonable.
FACTS AND PROCEEDINGS
Warnke-Green was rendered tetraplegic by a work-related
accident in 2014 in Nome, his hometown. He was treated in
Seattle at Harborview Medical Center and remained in that
area while continuing to receive medical care.
to his medical appointments, Warnke-Green used a cabulance -
which he described as a taxicab for wheelchair users - or,
when medically necessary, an ambulance. He testified that the
cabulance was not entirely reliable, which caused him to miss
some appointments. In late 2015 Warnke-Green's father
asked the employer, Pro-West Contractors, LLC, to provide
Warnke-Green with a modified van. Pro-West had earlier
disputed that Warnke-Green's choice of a long-term
transportation option would "be compensable under [his]
claim," but the parties discussed settling the van
issue. Pro-West sent a draft settlement agreement to
Warnke-Green providing for Pro-West's "one time only
purchase" of a modified van in exchange for his waiver
of "all further entitlement to . . . transportation
reimbursement" other than for medical emergencies.
did not sign the agreement; instead, he obtained an attorney
and filed a workers' compensation claim for a "new
modified van." Pro-West answered the claim, "d[id]
not admit any portion" of it, and raised as an
affirmative defense that Warnke-Green had agreed to a
settlement but refused to sign it. Warnke-Green later sent a
revised settlement agreement to Pro-West that preserved his
future entitlement to transportation reimbursements, but
Pro-West did not agree to it.
Board held a hearing on the "modified van" claim in
April 2016. The competing draft settlement agreements were
included in the record without objection, though both parties
acknowledged that their inclusion was "odd" and
prehearing memorandum, Warnke-Green cited cases from other
states holding that modifying an existing vehicle or
acquiring a van with modifications was compensable as a
medical benefit. At the hearing he asked for a modified van -
his attorney said that "[i]t [did]n't have to be a
new one"-with an offset of $500 to $ 1, 000 representing
the value of an old Chevrolet Suburban he had in Nome.
in its prehearing memorandum, identified the "majority
view" based on out-of-state cases: "that the
employer/insurer generally must pay for the special equipment
required to outfit a vehicle" but not "the purchase
price of the vehicle itself." According to Pro-West,
other states had adopted "the 'Crouch rule' or
'Crouch formula, '" under which the employer is
responsible for "the cost of any special equipment or
adaptations to a vehicle or van, plus the cost difference
between that vehicle and an ordinary non-adapted vehicle such
as the type the employee would otherwise have owned."
(Emphasis omitted.) Pro-West contended that the Board had
already adopted the Crouch rule and had applied it
"consistently since 1981." Pro-West also discussed
cases from three jurisdictions that rejected similar claims
entirely, based on their statutes. At the hearing Pro-West
argued that if it was required to provide a van, it should
owe only the difference in price between "a standard
American car or pickup and a van that's modified,"
explicitly denying that the offset should be only the value
of Warnke-Green's old Suburban.
Board denied Warnke-Green's claim in its entirety. The
Board decided that under the Act a modified van was not a
medical benefit - specifically that it was neither an
"apparatus" nor a "prosthetic
device." The Board also decided in the alternative
that if a van was a medical benefit, the facts of the case
did not require the employer to purchase one because
Warnke-Green needed a car for personal, not medical, reasons.
The Board decided that Warnke-Green was not entitled to a
modified van as a transportation benefit either. It dismissed
the precedential value of earlier decisions requiring
employers to purchase modified vans for employees with
similar catastrophic injuries, reasoning that those cases
lacked "any legal authority or factual findings to
support their results." It declined to follow the Crouch
rule - by which the employer pays for modifications plus the
difference in cost between the modifiable vehicle and an
ordinary, unadapted vehicle - because the cases that adopted
the rule "were based on the premise an automobile was a
compensable apparatus or device under the applicable
state's workers' compensation statute."
appealed to the Commission. The Commission, while agreeing
with the Board that a modified van was not a "prosthetic
device," decided that it was an "apparatus"
included within the Act's definition of "medical
benefits." It therefore held Pro-West responsible for
"any increased cost associated with the purchase of a
modifiable motor vehicle and any necessary modifications
which will enable Mr. Warnke-Green to use the motor
vehicle." The Commission anticipated an offset, noting
its belief that the parties had agreed that Warnke-Green
would contribute the value of his "inoperable Suburban
van." The Commission remanded the case to the Board for
further proceedings consistent with its decision.
then moved for over $30, 000 in attorney's fees as the
successful party in the Commission appeal,  including with
his motion an itemized affidavit. The requested hourly rates
for attorneys were $400 an hour for Eric Croft and $300 an
hour for Selena Hopkins-Kendall; the rate for paralegal time
was $ 170 an hour.
did not question the requested hourly rates or any individual
time entries. It did oppose the motion, however, on grounds
that Warnke-Green was not "a successful party"
because "[h]e did not prevail on his November 27, 201
 claim seeking 'a new modified van.'"
Pro-West argued that it was the successful party in
the Commission appeal; it quoted part of the Commission's
decision to the effect that Pro-West had only "asked him
to contribute the value of his Suburban which Mr.
Warnke-Green estimates to be between $500 and $1, 000."
Pro-West further contended that the Commission's decision
validated the position Pro-West had held consistently both
before and after Warnke-Green filed his claim. It maintained
that Warnke-Green "gained nothing from the entirety of
Commission, in considering the attorney's fees motion,
first reduced the total requested. It decided without
explanation that $350 an hour was "a reasonable hourly
rate for an attorney practicing in the area of workers'
compensation with [Croft's] experience and
expertise" and reduced his hourly rate accordingly. It
deducted 2.4 hours from Croft's total hours: a tenth of
an hour for what the Commission thought was a duplicate
billing for an email and 2.3 hours for paralegal supervision,
which according to the Commission should have been included
Commission then considered whether Warnke-Green
"actually prevailed on a significant issue on
appeal." The Commission agreed with Pro-West that
Warnke-Green, having been awarded a modified van minus the
value of his Suburban, "obtained only what had been
offered prior to the filing of his claim," which the
Commission said was "considerably less than what Mr.
Warnke-Green sought." The Commission cut in half the
"adjusted fees" and awarded attorney's fees of
asked the Commission to reconsider its decision, arguing that
(1) Pro-West's litigation position was not what the
Commission seemed to think it was; (2) the Commission's
decision gave Warnke-Green more than Pro-West had offered in
settlement; and (3) the fee reductions were not justified.
The Commission denied reconsideration, however, reasoning
that it was allowed to "only reconsider a,
final decision on the merits of an appeal."
(Emphasis in original.)
filed a petition for review, which we granted as to these
(1) Does the Commission have authority to reconsider orders
that are not final decisions? If so, what is the source of
the authority and what limits, if any, are there on this
(2) Did the Commission err in considering the parties'
underlying litigation before the Board, including any
settlement offers, in determining the amount of
attorney's fees to be awarded for the appeal before the
(3) Did the Commission abuse its discretion by awarding the
employee less than his full reasonable attorney's fees
after he prevailed in his appeal before the Commission?
STANDARDS OF REVIEW
the Commission has the authority to reconsider orders other
than final decisions on the merits is a question of law to
which we apply our independent judgment. We interpret a
statute "according to reason, practicality, and common
sense, considering the meaning of the statute's language,
its legislative history, and its purpose."
our independent judgment to interpret the attorney's fees
provisions of the Workers' Compensation
While we may consider an agency's interpretation of a
statute "within [the agency's] area of
jurisdiction . . . particularly when the agency's
interpretation is longstanding, " there is no
indication that the Commission, in its award of
attorney's fees in this case, was applying a longstanding
interpretation of the statute.
review the amount of fees awarded for abuse of
discretion. To the extent the Commission's
decision is based on findings of fact, we consider whether
the findings are "supported by substantial evidence in
light of the whole record.""Substantial evidence
is 'such relevant evidence as a reasonable mind might
accept as adequate to suDDort a conclusion.'
The Commission's Authority To Reconsider Its Decisions Is
Not Limited To ...