Humphrey v. Lowe's Home Improvement Warehouse, Inc.

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

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, e-mail

corrections@appellate.courts.state.ak.us.

THE SUPREME COURT OF THE STATE OF ALASKA

AKEEM J. HUMPHREY, )

) Supreme Court No. S-15140

Appellant, )

) Alaska Workers’ Compensation

) Appeals Commission No. 11-021

v. )

) OPINION

LOWE’S HOME IMPROVEMENT )

WAREHOUSE, INC., Employer, ) No. 6960 - October 16, 2014

and NEW HAMPSHIRE )

INSURANCE COMPANY, )

)

Appellees. )

)

Appeal from the Alaska Workers’ Compensation Appeals

Commission, Laurence Keyes, Commission Chair.

Appearances: James M. Hackett, James M. Hackett, Inc.,

Fairbanks, for Appellant. Krista M. Schwarting, Griffin &

Smith, Anchorage, for Appellees.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and

Bolger, Justices.

MAASSEN, Justice.

I. INTRODUCTION

In this case we are asked to determine whether an employee was entitled

to temporary total disability benefits after he left employment under disputed

circumstances. The employee injured his back at work but returned after being cleared

for lighter duty. His employment soon ended for reasons the parties dispute, and he

moved with his family to Nevada, where he later had back surgery. The Alaska

Workers’ Compensation Board found his injury compensable and ordered the employer

to pay medical costs and disability benefits from the surgery onward; however, the Board

denied temporary total disability benefits from the end of his employment to the surgery,

finding the employee had voluntarily left his job for reasons that were not injury-related.

The employee appealed to the Alaska Workers’ Compensation Appeals

Commission, which affirmed the decision on disability but remanded to the Board for

clarification of its attorney’s fees award. The employee now appeals the Commission’s

decision of his claim for temporary total disability benefits and its denial of his request

for attorney’s fees for the appeal. We affirm the Commission’s decision that the

employee was not entitled to temporary total disability benefits, reverse its denial of

attorney’s fees for the appeal, and remand for further proceedings.

II. FACTS AND PROCEEDINGS

Akeem Humphrey was working at Lowe’s Home Improvement Warehouse

in Fairbanks as a “less than truckload” stocker on November 30, 2009, when a cantilever

shelf fell on him. He was treated for back pain and cleared for modified work in early

January 2010. Lowe’s moved him around to various positions in the store to

accommodate his restrictions, but he continued to have pain.

On January 21 Humphrey was disciplined at work for reasons unrelated to

his injury. On February 12 he received a generally favorable performance evaluation.

On February 16 he wrote a note to Lowe’s, saying he was giving two weeks’ notice “due

to personal reasons (no transportation [and] no house).” The note is somewhat

ambiguous, though; it also states, “If nothing is new within these two weeks I will know

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it is submitted[;] if does [indecipherable] I will let store manager and Lisa know all new

information.”1

Humphrey’s last day of work at Lowe’s was Monday, February 22.

Humphrey testified that the store manager, Brandon Montgomery, called him into the

office that day and told him he was being terminated because he had given his two

weeks’ notice. Lowe’s disputes that Humphrey was terminated, and Montgomery denied

having the conversation Humphrey described. Wage records from Lowe’s show that

Humphrey received a paycheck on February 22 for 40 hours in the week ending

February 26;2 Humphrey testified he was paid through March 1, which is two weeks

from the date of his two weeks’ notice.

Humphrey continued to receive medical care for his back, and in April 2010

his treating physician recommended that he consider surgery and consult with an

orthopedic surgeon. In May, Humphrey moved with his girlfriend and their child to the

Las Vegas area, where his girlfriend had family. Humphrey then filed an Alaska

workers’ compensation claim, seeking medical benefits, temporary total disability (TTD)

benefits from January 30, 2009, a rating of permanent partial impairment (PPI), a

penalty, interest, and attorney’s fees. In January 2011 a Nevada orthopedic surgeon

diagnosed Humphrey with “disc abnormalities” and back pain that “stem[med] from his

initial work related injury” and in May 2011 performed surgery on Humphrey’s back.

A number of medical and lay witnesses testified at the Board hearing on

Humphrey’s claim. The parties agreed that his last day of work at Lowe’s was

1

The Board read this sentence of the note as saying, “If nothing is new

within these two weeks I will know it is submitted if does not I will let store manager and

Lisa know all new information.”

2

Another document from Humphrey’s personnel file indicates that Lowe’s

paid Humphrey through March 1.

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February 22, 2010, but they offered conflicting accounts of his departure. Humphrey

testified that he notified Montgomery about his transportation and housing problems on

February 16 and Montgomery told him to submit his two weeks’ notice in case the

problems prevented him from returning to work. Humphrey testified that his personal

problems resolved within a few days, that he called Montgomery, and that Montgomery

told him to come back to work. Humphrey could not recall exactly what day he returned.

Humphrey testified that Montgomery called him on the intercom on

February 22 and told him to come to the office. Humphrey said he thought it was related

to one of two things: where he had parked his car that day (close to the store, in an area

reserved for customers) or whether he had neglected his work while talking to another

employee. But according to Humphrey, instead of discussing either of these issues,

Montgomery told him that “because [Humphrey] wrote the two weeks’ notice . . . what

they’re going to do is just . . . terminate [him], because after today [Humphrey] would

no longer be working for Lowe’s.” Humphrey testified that Montgomery asked him to

write out another two weeks’ notice, which he did,3 and said Lowe’s would pay him for

the coming two weeks if Humphrey cooperated in his termination.

Witnesses for Lowe’s disputed Humphrey’s account. Montgomery, the

store manager, testified that Humphrey gave the “HR manager, Lisa,” a two weeks’

notice that he was leaving Lowe’s for personal reasons. He testified that Humphrey said

it was because he was moving to “Vegas or something like that, with his family and he

wasn’t going to be able to stay in Alaska.” Montgomery said he did not recall saying

either that Humphrey “would be able to work out his personal situation and come back

to Lowe’s and continue working there” or that Humphrey “was either going to have to

resign or . . . be terminated,” as Humphrey claimed. Montgomery testified he could not

3

No written notice dated February 22 appears in Humphrey’s personnel file.

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terminate anyone “without consent from area HR” and that he would have to use

progressive discipline first. He denied ever having “a sit-down conversation face-to-face

with Mr. Humphrey,” as Humphrey described, and said he did not recall ever paging

Humphrey to his office.

Kimberly Cook, the operations manager, also testified. She said that

Humphrey worked directly for her and was “a great employee” whom she wanted to

keep. She testified that Lowe’s had accommodated Humphrey’s injury-related work

restrictions and that it would have continued to do so had he stayed. She said she had

not seen Humphrey’s written two weeks’ notice but that she knew, from Montgomery,

that Humphrey “had put his notice in and he withdrew his notice and said he didn’t want

to leave, and then he decided that he wanted to leave again, and then . . . he withdrew it

again.” What she remembered out of it, she said, was that Humphrey was going to quit.

She testified that he would have talked to Montgomery about quitting, not to her, but that

“[f]or the most part” she would have had to be present if an employee she supervised was

going to be terminated.

The Board decided a different issue first: that Humphrey’s injury was

compensable and that he was entitled to past medical benefits. It decided that Humphrey

was not yet medically stable from his surgery so he could not be rated, but it ordered

Lowe’s to pay PPI compensation once that occurred. The Board awarded him TTD

benefits from the date of his 2011 surgery until he “reache[d] medical stability or is

released to work by his treating physician, whichever occurs first.” However, deciding

that Humphrey had voluntarily left his job at Lowe’s for reasons unrelated to his injury,

the Board denied Humphrey’s request for TTD benefits from the date of his departure,

February 22, 2010, until his surgery in May 2011. Finally, it awarded Humphrey partial

attorney’s fees of $23,863.35, reducing his requested amount by 30%.

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Humphrey filed an appeal with the Commission of the Board’s denial of

TTD benefits and its attorney’s fee award. The Commission decided there was

substantial evidence in the record to support the Board’s decision that Humphrey

voluntarily left his job at Lowe’s, and it agreed with the Board that he was not entitled

to TTD benefits for the period before his surgery. However, it vacated the Board’s

attorney’s fee award on grounds that (1) the Board did not explain why it had awarded

fees under AS 23.30.145(b) (for cases in which the employer resists or otherwise delays

payment) rather than AS 23.30.145(a) (for cases in which the employer controverts

benefits, as Lowe’s did here);4 and (2) the Board’s “terse explanation for reducing the

award” prevented the Commission from reviewing its decision.

Humphrey then asked the Commission to award him fees as a successful

litigant in the appeal. The Commission denied his motion, writing that “[b]y any

standard, Humphrey was not the successful party in this appeal.” Humphrey appeals.5

4

AS 23.30.145(a) governs an award of fees when an employer controverts

benefits; AS 23.30.145(b) permits a fee award against an employer when the employer

resists or otherwise delays payment.

5

Lowe’s does not challenge the appealability of the Commission’s decision.

Following City & Borough of Juneau v. Thibodeau, we have required that all issues be

resolved in an administrative appeal to the superior court before a decision is final and

appealable. 595 P.2d 626, 629 (Alaska 1979). Here the Commission notified the parties

that the decision was “a final decision on the merits” as to “the affirmation . . . in part and

vacat[ion] in part” but was “a non-final decision as to the . . . remand of the matter in part

to the [B]oard.” Because neither party raised the applicability of Thibodeau, and because

the attorney’s fee dispute being remanded to the Board is severable from the issues of

TTD and appellate fees, we do not consider whether the Commission’s entry of what is

in effect a partial final judgment was proper. See Alaska R. Civ. P. 54(b) (permitting

entry of final judgment on separate issues in trial court).

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III. STANDARDS OF REVIEW

In a workers’ compensation appeal from the Commission, we review the

Commission’s decision rather than the Board’s and apply our independent judgment to

questions of law not involving agency expertise.6 We independently review the

Commission’s conclusion that substantial evidence in the record supports the Board’s

factual findings by independently reviewing the record and the Board’s findings.7 When

the Commission makes factual findings, its “findings of fact may be reversed on appeal

if not supported by substantial evidence in light of the whole record.”8 Whether the

Commission correctly applied the law in determining an award of attorney’s fees is a

question of law we review de novo.9

IV. DISCUSSION

A. The Commission Correctly Concluded That Substantial Evidence In

The Record Supported The Board’s Decision Denying Temporary

Total Disability Benefits.

The Board denied Humphrey TTD benefits for February 22, 2010 to May

17, 2011 because it found he had voluntarily left his work at Lowe’s for reasons

unrelated to his injury and thus removed himself from the labor market for that period.10

6

Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 2010) (citing

Barrington v. Alaska Commc’ns Sys. Grp., Inc., 198 P.3d 1122, 1125 (Alaska 2008)).

7

Id.

8

AS 23.30.129(b).

9

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

2011) (citing Krone v. State, Dep’t of Health & Soc. Servs., 222 P.3d 250, 252 (Alaska

2009)).

10

Humphrey did not raise as an issue on this appeal, and so we do not

consider, whether a voluntary departure disqualified him from receiving compensation

(continued...)

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Applying AS 23.30.122 and the substantial evidence test, the Commission held that “the

board’s finding that Humphrey voluntarily quit his job was amply supported by the

evidence.” The Commission concluded that Humphrey was not totally disabled during

the period at issue because “his medical providers released him to perform light-duty

work and Lowe’s provided it.”

Both the Board and the Commission relied on Vetter v. Alaska Workmen’s

Compensation Board, where we held, “If a claimant, through voluntary conduct

unconnected with his injury, takes himself out of the labor market, there is no

compensable disability.”11 We also stated that “[a]n award of compensation must be

supported by a finding that the claimant suffered . . . a decrease in earning capacity due

to a work-connected injury or illness,” and we set out several factors relevant to this

inquiry, including the claimant’s age and education, the employment available in the area

for people with the claimant’s capabilities, the extent of the injury, and the claimant’s

“intentions as to employment in the future.”12

Under Vetter, Humphrey’s claim that he was entitled to TTD benefits

depended on a finding that he had not voluntarily removed himself from the labor

market. He focuses his argument on the Board’s analysis of the statutory presumption

of compensability and the substantiality of the evidence the Board used to support its

conclusion.13 The presumption attaches if the employee establishes a link between his

10

(...continued)

benefits for some part less than the whole of that period.

11

524 P.2d 264, 266 (Alaska 1974).

12

Id.

13

See AS 23.30.120(a) (“In a proceeding for the enforcement of a claim for

(continued...)

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employment and the injury; at this step of the analysis “only evidence tending to

establish the link is considered — competing evidence is disregarded.”14 Humphrey

asserts that the presumption applies to his claim that he “did not voluntarily remove

himself from the workforce, unrelated to [his] work injury,” citing Sokolowski v. Best

Western Golden Lion Hotel.15 The Board did apply a presumption analysis, finding that,

through Humphrey’s testimony and that of his girlfriend, he had attached the

presumption that “he was unable to work because of his work injury from February 2010

forward.” Lowe’s appears to agree both that the presumption applied to the voluntary-

departure question and that there was enough evidence of work-relatedness for the

presumption to attach.

In the second step of the presumption analysis, the Board found that Lowe’s

rebutted the presumption with evidence that Humphrey “voluntarily quit his position at

Lowe’s and thus removed himself from the workforce.”16 In this step the Board looks

13

(...continued)

compensation under this chapter it is presumed, in the absence of substantial evidence

to the contrary, that (1) the claim comes within the provisions of this chapter. . . .”).

14

McGahuey v. Whitestone Logging, Inc., 262 P.3d 613, 620 (Alaska 2011).

15

813 P.2d 286, 292 (Alaska 1991).

16

The Board also included as evidence rebutting the presumption the reports

of the employer’s physicians that Humphrey was medically stable. Humphrey argues

that the Board could not rely on these opinions at the second stage because by the time

of the hearing it knew that Humphrey was in fact not medically stable. We have held

that “a prediction of medical stability that turns out to be incorrect cannot provide

substantial evidence to rebut the presumption.” Burke v. Houston NANA, L.L.C., 222

P.3d 851, 862 (Alaska 2010) (citing Thoeni v. Consumer Elec. Servs., 151 P.3d 1249,

1256 (Alaska 2007)). But because the Board used other evidence at the rebuttal stage

and did not use the medical evidence at the third stage of the presumption analysis, and

because the Commission did not use the employer’s medical evidence to affirm the

(continued...)

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at the proffered evidence in isolation without weighing it and decides whether it is

substantial.17 “Substantial evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.”18 Whether the quantum of evidence is

substantial is a question of law.19 We “must take into account whatever in the record

detracts” from the weight of evidence when we consider whether evidence is

substantial,20 but we do not choose between competing inferences or reweigh the

evidence.21

The Board relied on the testimony of Humphrey’s supervisor and the

store’s operations manager to decide that Lowe’s rebutted the presumption. Cook

testified that Humphrey quit his job, that he was “a great employee” whom she wanted

to retain, and that she would generally have to be present if the store manager fired one

of her employees. Montgomery, too, recalled that Humphrey had voluntarily quit. He

testified he did not recall ever giving Humphrey the choice of resigning or being

terminated, as Humphrey testified, and denied ever having “a sit-down conversation”

with him at all.

16

(...continued)

Board’s decision, any error was harmless.

17

McGahuey, 262 P.3d at 620.

18

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

internal quotation marks omitted).

19

Shea v. State, Dep’t of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 630

(Alaska 2011) (citation omitted).

20

Id. (quoting Lopez v. Adm’r, Pub. Emps.’ Ret. Sys., 20 P.3d 568, 570

(Alaska 2001)) (internal quotation marks omitted).

21

Cowen v. Wal-Mart, 93 P.3d 420, 424 (Alaska 2004) (quoting Steffey v.

Municipality of Anchorage, 1 P.3d 685, 689 (Alaska 2000)).

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Documentary evidence from Lowe’s also supported its position:

Humphrey’s personnel file contains his February 16 note that he was quitting due to

transportation and housing difficulties as well as evidence that his termination date was

two weeks later on March 1, consistent with a finding that he quit on two weeks’ notice.

The records also show he was eligible for rehire, and they give no indication that he

underwent progressive discipline, as Montgomery testified was required to precede

termination.

It is true, as Humphrey contends, that Lowe’s submitted evidence that

might have supported Humphrey’s argument as well; but it is not so “dramatically

disproportionate” to the evidence against it as to preclude affirming the Board’s

decision.22 As an example, Humphrey cites the notes of the workers’ compensation

insurance adjuster stating he “was terminated”;23 but the adjuster’s notes later say he

“put in 2 weeks notice, he was not term[inat]ed by Lowe’s.”

Though the evidence thus conflicts, a reasonable mind could accept it as

sufficient to support a conclusion that Humphrey voluntarily quit his job at Lowe’s for

reasons unrelated to his injury. The evidence therefore rebuts the presumption that his

departure was injury-related.24

22

Shea, 267 P.3d at 634 n.40.

23

Lowe’s argues that “terminate” is ambiguous in context and could mean

simply “conclude,” but the grammatical construction of the sentence is more consistent

with Humphrey’s interpretation. See BRYAN A. G ARNER , G ARNER ’S D ICTIONARY OF

LEGAL U SAGE 659 (3d ed. 2011) (explaining that in the passive voice, the subject of the

sentence “is acted upon”).

24

Humphrey argues that the Board erred in not specifically finding that his

departure from the workforce was unrelated to his injury. But in the context of the

governing law, which the Board applied, its finding that Humphrey voluntarily quit

(continued...)

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Once the presumption is rebutted, the burden shifts to the employee to

prove his claim by a preponderance of the evidence.25 Humphrey therefore had to

convince the Board, by a preponderance of the evidence, that he left involuntarily (and

for reasons other than misconduct, which would disqualify him from benefits).26 The

Board acknowledged that “the testimony and evidence about [Humphrey’s] departure

from Lowe’s [was] conflicting,” but it thought “the most likely explanation” was that

Humphrey voluntarily quit, a conclusion the Commission affirmed. Humphrey contends

that the Commission erred in deciding that substantial evidence supported the Board’s

finding and that the Commission further erred because the Board’s findings were

inadequate. He argues that the testimony of the witnesses the Board found credible was

inconsistent, that the Board needed to explain the inconsistencies, and that the

Commission erred by accepting the Board’s decision.

But we have never required the Board to explain every inconsistency in lay

testimony. And even if the witnesses for Lowe’s testified inconsistently in some details,

their testimony as a whole supported the company’s position that Humphrey voluntarily

quit. The Commission had to accept the Board’s determination that Montgomery and

Cook were credible and Humphrey was not, as the Board’s credibility findings are

24

(...continued)

necessarily implies that he left work for other reasons.

25

Cowen, 93 P.3d at 426 (citation omitted).

26

See Vetter v. Alaska Workmen’s Comp. Bd., 524 P.2d 264, 266 (Alaska

1974) (noting that disqualification is proper when employee is terminated for misconduct

not related to injury); see also Robles v. Providence Hosp., 988 P.2d 592, 594-96 (Alaska

1999) (discussing disability eligibility when employer could no longer accommodate

worker’s disability).

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binding on the Commission by statute.27 Although Humphrey can again point to

conflicting evidence, we have held many times that conflicting evidence is insufficient

to overturn a decision of the Board when there is substantial evidence that supports it.28

Setting aside for the moment the issue of whether Humphrey left Lowe’s

voluntarily, we observe that TTD benefits can be paid when the employee is totally

disabled from work, even if he stopped working for other reasons.29 But Humphrey

points to no evidence from the period of disqualification — such as a doctor’s note —

that would support a conclusion that he was totally disabled during that time. When his

employment at Lowe’s ended, he had been released by his doctor to work with

restrictions, which Lowe’s appeared to be accommodating. Humphrey testified at the

hearing that he minimized his pain in discussions with a healthcare provider so that he

could return to work more quickly, and he emphasizes on appeal that he was still in

considerable pain when he returned to work. But Lowe’s was justified in relying on the

doctor’s note when making Humphrey’s work assignments.

Humphrey also argues that the Board failed to make findings about his

“intentions of reentering the workforce following his departure from the workforce” in

February 2010. While there is evidence that Humphrey was generally motivated to

work, as he contends, he points to no evidence showing that he made efforts to find

suitable work after his departure from Lowe’s, either in Fairbanks or in Nevada.

27

Sosa de Rosario v. Chenega Lodging, 297 P.3d 139, 146 (Alaska 2013)

(quoting AS 23.30.128(b)).

28

See, e.g., Robinson v. Municipality of Anchorage, 69 P.3d 489, 493 (Alaska

2003).

29

Cortay v. Silver Bay Logging, 787 P.2d 103, 107-08 (Alaska 1990).

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Because he does not show that this issue was both material and contested at the hearing,

we cannot fault the Board for failing to make a finding about it.30

In sum, substantial evidence in the record supports the Board’s finding that

Humphrey voluntarily left his job at Lowe’s and thus removed himself from the

workforce for reasons unrelated to his injury, and we affirm the Commission on this

issue.

B. The Commission Erred In Denying Attorney’s Fees To Humphrey For

The Appeal.

We agree with Humphrey, however, that the Commission should have

awarded him attorney’s fees for his appeal. Although he was unable to persuade the

Commission that the Board erred in its decision to deny TTD benefits, he raised enough

questions about the sufficiency of the Board’s award of attorney’s fees that the

Commission vacated the award and remanded the issue to the Board; the Commission

concluded that the existing findings were inadequate for appellate review and that the

Board needed to discuss the applicability of AS 23.30.145(a), the fee statute that

apparently governed Humphrey’s request for fees before the Board. Despite this remand,

however, the Commission denied Humphrey’s request for attorney’s fees for the appeal

under AS 23.30.008(d),31 deciding that “[b]y any standard, Humphrey was not the

successful party in this appeal.”

30

Bolieu v. Our Lady of Compassion Care Ctr., 983 P.2d 1270, 1275 (Alaska

1999) (citations omitted).

31

AS 23.30.008(d) provides that the Commission “shall award a successful

party” who is represented by counsel “attorney fees that the commission determines to

be fully compensatory and reasonable.”

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Humphrey argues that his case is controlled by Lewis-Walunga v.

Municipality of Anchorage32 and that the Commission erred in deciding he was not a

successful party on appeal. Lowe’s attempts to distinguish Lewis-Walunga by arguing

that the “primary issue” on appeal in this case was the TTD claim and, with respect to

the attorney’s fees issue, that Humphrey did not get what he asked for.

In Lewis-Walunga, we reversed the Commission’s denial of attorney’s fees

to a claimant and held that “a claimant is a successful party in an appeal to the

Commission when the claimant prevails on a significant issue in the appeal.”33 We

reviewed the Commission’s findings on what the claimant had sought and obtained by

appealing, and we decided the finding that she had not won “the essential element” of

the relief she sought was not supported by substantial evidence.34

Following Lewis-Walunga, a claimant who prevails on “a significant issue”

on appeal is a successful party;35 there is no requirement that the claimant prevail on all

issues or even the main issue. Humphrey’s appeal to the Commission presented two

significant issues: TTD and attorney’s fees. With regard to the fee award, Humphrey

argued that the Board had incorrectly applied AS 23.30.145(a); had failed, in its fee

award, to consider parts of the claim on which he prevailed; and had failed to consider

that he in fact won the main issue before the Board, the compensability of his continued

disability. Humphrey asked for a remand with instructions to enter an increased fee

award. Although the Commission did not give that instruction in its remand, it did give

32

249 P.3d 1063 (Alaska 2011).

33

Id. at 1068.

34

Id. at 1069-70.

35

Id. at 1068 (emphasis added).

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Humphrey an opportunity for an increased fee award from the Board that he would not

have had absent the Commission’s decision.36

In refusing to award fees for the appeal, the Commission said, “[W]hether

the board awards [Humphrey] more attorney’s fees on remand remains to be seen.” But

in Lewis-Walunga we rejected the notion that success on appeal is tied to success on the

underlying claim: there we interpreted the legislature’s use of the phrase “[i]n an appeal”

in AS 23.30.008(d) as a “signal that the Commission’s fee award is independent of

success in the underlying claim.”37 It was therefore error for the Commission in this case

to consider, in its fee decision, the possibility that Humphrey might not win on remand

to the Board. Humphrey is entitled to “fully compensable and reasonable” attorney’s

fees for his appeal to the Commission under AS 23.30.008(d).38

V. CONCLUSION

Because the Commission correctly concluded that substantial evidence in

the record supported the Board’s TTD decision, we AFFIRM that part of the

36

Cf. Municipality of Anchorage v. Anderson, 37 P.3d 420, 422 (Alaska

2001) (Matthews, J., dissenting) (stating that claimant was not a “successful claimant”

on appeal because he “gained no advantages by the appeal that were not already

available to him simply by complying with the board’s order”).

37

Lewis-Walunga, 249 P.3d at 1069.

38

Humphrey included an argument about the Board’s fee award in his brief,

but Lowe’s contends the argument is waived because it was not included in the points

on appeal. We do not decide the merits of the issue because the Commission has

remanded it to the Board. We do note, however, that Humphrey succeeded on his

controverted claim for compensation for his continued disability and medical treatment.

Alaska Statute 23.30.145(a) establishes a minimum fee award under such circumstances.

The purpose of the law is “to make attorney fee awards both fully compensatory and

reasonable so that competent counsel will be available to furnish legal services to injured

workers.” Cortay v. Silver Bay Logging, 787 P.2d 103, 108 (Alaska 1990) (emphasis in

original) (citations and internal quotation marks omitted).

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Commission’s decision. We REVERSE its denial of attorney’s fees for Humphrey’s

appeal to the Commission and REMAND for proceedings consistent with this opinion.

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