D&D SERVICES d/b/a NOVUS AUTO GLASS, and LIBERTY MUTUAL, Appellants,
KIEL CAVITT, Appellee.
Petition for Review from the Alaska Workers' Compensation
Appeals Commission No. 17-017
C. Stone, Holmes Weddle & Barcott, P.C., Anchorage, for
Appellants. Keenan Powell, Anchorage, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and
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 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.
FACTS AND PROCEEDINGS
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.
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.
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.
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 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.
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 in Underwater
Construction, Inc. v. Shirley requiring that when the
Board orders an employer to pay compensation, the employer
cannot simply file a notice of controversion 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. 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."
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 except for the remand back to the Board on
the attorney's fee issue" but conceded the
Commission should award Cavitt some fees.
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.
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. Ashwater Burns,
Inc. that the finality rule of City &
Borough of Juneau v. Thibodeau 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 to the Board
meant the underlying court order was not final. We asked the
parties in this case to brief questions related to the
finality of Commission attorney's fees orders.
STANDARD OF REVIEW
the Commission correctly applied the law in determining an
award of attorney's fees is a question of law that we
review de novo." "We review the 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
A Commission Attorney's Fees Award In A Case Remanding An
Issue To The Board Is Not Appealable As A Matter Of
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 fees decision is consistent
with administrative ...