2006-015. Municipality of Anchorage and Ward North America Movants vs. David N. Syren Respondent.

• Case Date: August 03, 2006
• Court: Alaska

Alaska Workers Compensation Decisions 2006. Workers' Compensation Appeals Commission 2006-015. Municipality of Anchorage and Ward North America Movants vs. David N. Syren Respondent Alaska Workers' Compensation Appeals Commission Municipality of Anchorage and Ward North America, Movants, vs. David N. Syren, Respondent. Decision No. 015August 3, 2006 AWCAC Appeal No. 06-003 AWCB Case No. 200319873MFinal Decision and Order On Motion for Attorney Fees Final Decision and Order on Motion for Attorney Fees following decision on Motion for Extraordinary Review from the Alaska Workers' Compensation Board Decision No. 06-0004; Rebecca Pauli, Chairman; David Kester, Member for Management; John Abshire, Member for Labor. Appearances: Trena Heikes for Movants Municipality of Anchorage and Ward North America; Chancy Croft for Respondent David N. Syren.Before:Jim Robison and Philip Ulmer, Commissioners, Kristin Knudsen, Chair. By: Kristin Knudsen, Chair. Following our March 7, 2006 decision,(fn1) the respondent, David Syren, sought an attorney fee award as the successful party. We suspended consideration of the motion until the Alaska Supreme Court responded to the petition for review filed by the Municipality. For the following reasons, we award a fully compensatory and reasonable attorney fee to Syren. Arguments presented to the commission. Syren argues that he has shown himself to be the successful party because he obtained the relief he requested and "successfully resisted" the motion for extraordinary review. Therefore, he is entitled to fees under AS 23.30.008(d).(fn2) The Municipality argues that the commission does not have the authority to award an attorney fee on a motion for extraordinary review, because our statute grants the commission authority to award an attorney fee "in an appeal."(fn3) The Municipality argues that because AS 23.30.145 and Alaska Rule of Appellate Procedure 508(g) limit the board and the court to awarding attorney fees on a successful claim, the claimant must succeed on the claim itself and not on a collateral issue.(fn4) The Municipality argues that until Syren is ultimately successful on his claim, no attorney fee may be awarded. The comimiission's authority to award attorney fees. We acknowledge that AS 23.30.008(d) is modeled on Alaska Rule of Appellate Procedure 508(g)(2), of which the Supreme Court said:

Alaska Appellate Rule 508(g)(2) calls for an award of "full reasonable attorney's fees ... to a successful claimant" in an administrative appeal. In order to recover fees under AS 23.30.145(b), which like Rule 508(g) directs a fee award to a "successful" claimant, the employee must succeed on the claim itself, and not a collateral issue. Adamson v. University of Aaaskaa, 819 P.2d 886, 895 (Alaska 1991). Childs lost on his main claim: his effort to win those disability and medical benefits that CVEA still controverted. Therefore, the superior court did not err in denying attorney's fees for the whole claim.(fn5)

The Supreme Court did not require that the claimant succeed on the whole claim to obtain a partial award in an appeal. We read Childs as requiring that the commission's fee award reflect the degree of success of the party. In addition to the fee being "reasonable," the commission's fee award must be "fully compensatory," thus implementing the policy STATED in Wise Mechanical Contractors v. Bignell(fn6) that in workers' compensation cases the objective 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. Unlike AS 23.30.145(b), our statute directs the commission to make an award of "fully compensatory and reasonable attorney fees" to a "successful party," not for prosecution of a "successful claim." As we have said previously, there is a distinction to be drawn between a "successful party" and a "successful claimant:"

Unlike AS 23.30.145(b) awards by the board, which are based on the "successful prosecution of the claim," awards by the commission are based on status as a "successful party." The distinction

...