Municipality of Anchorage v. Anderson

37 P.3d 420, 2001 Alas. LEXIS 177, 2001 WL 1636951

• Court: Alaska Supreme Court
• Decided: December 21, 2001
• Docket: S-9293
• Status: Published

Opinions

OPINION

CARPENETL, Justice.

The Municipality of Anchorage appeals the superior court's award of attorney's fees to Robert Anderson following intermediate appellate review in this workers' compensation case. Because the superior court was acting as an intermediate court of appeal and remanded the matter for further proceedings, the award of attorney's fees is a non-final order that is not a proper subject for appeal under Alaska Appellate Rule 202. We further conclude that this matter should not be treated as a petition for review. The appeal is therefore dismissed.

Anderson was injured while on the job as a lifeguard for the municipality. During the course of his workers' compensation claim, he did not attend an employer-requested physical capacity examination (PCE), to be conducted by a non-physician specialist, because he interpreted the relevant statute¹ as not requiring him to attend an examination with a non-physician. The Alaska Workers' Compensation Board disagreed with Anderson. Anderson appealed the board's decision to the superior court. Initially, the superior court reversed the board, but the court later amended its original decision and ruled against Anderson, concluding that an employer may, under certain circumstances, require an employee to undergo a PCE with a non-physician specialist,. But the court also concluded that Anderson's failure to undergo the PCE did not constitute a "refusal to submit" because of the ambiguity of the statute. Accordingly, it declined to allow Anderson's benefits to be suspended or forfeited. The superior court awarded Anderson full attorney's fees of $2,200.00 and $126.54 in costs, and the matter was remanded for further proceedings.

The municipality now appeals the denial of its motion for reconsideration of the award of attorney's fees to Anderson.

The award of attorney's fees is part of a case that has been remanded to the agency for further proceedings; therefore, it is a non-final order that cannot be appealed.² As we stated in City and Borough of Juneau v. Thibodeau, "an order of the superior court issued in its appellate capacity which remands for further proceedings is not a final judgment for the purposes of [the rule governing appeals]." ³

While we have not hesitated in appropriate cireumstances to treat an appeal improperly brought from a non-final order as a petition for review "in order to prevent hardship and injustice," ⁴ we decline to do so here. We will treat an improperly brought appeal as a petition for review⁵ when we believe "that [the] disposition of this case will effectively dispose of the issues remaining in the underlying civil action and would prevent unnecessary delay, expense, and hardship to the parties." ⁶ We conclude that the cireum-stances here do not warrant treatment of this case as a petition for review.⁷

This appeal was improperly brought from a non-final order of the superior court. The appeal is therefore DISMISSED.

1 . AS 23.30.095(e).

2 . See Tlingit-Haida Regional Elec. Authority v. State, 15 P.3d 754, 761 (Alaska 2001) (citing City and Borough of Juneau v. Thibodeau, 595 P.2d 626, 631 (Alaska 1979)).

3 . 595 P.2d at 629.

4 . Id. at 631.

5 . A petition for review will be granted under Alaska Appellate Rule 402(b) as follows:

Review is not a matter of right, but will be granted only where the sound policy behind the rule requiring appeals to be taken only from final judgments is outweighed because:

(1) Postponement of review until appeal may be taken from a final judgment will result in injustice because of impairment of a legal right, or because of unnecessary delay, expense, hardship or other related factors; or

(2) The order or decision involves an important question of law on which there is substantial ground for difference of opinion, and an immediate review of the order or decision may materially advance the ultimate termination of the litigation, or may advance an important public interest which might be compromised if the petition is not granted; or

(3) The trial court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative tribunal, as to call for the appellate court's power of supervision and review; or

(4) The issue is one which might otherwise evade review, and an immediate decision by the appellate court is needed for the guidance of the lower courts or is otherwise in the public interest.

6 . City of North Pole v. Zabek, 934 P.2d 1292, 1296 (Alaska 1997) (internal quotation marks omitted).

7 . The dissent states that "[it is easy to resolve the case on the merits," and claims that Anderson could not be deemed a "successful claimant" under Appellate Rule 508(g)(2) because "he obtained no relief from the order of the board from which he petitioned." But that conclusion is highly debatable.

The municipality had argued before the board that Anderson's benefits should be suspended during the time he refused to attend the PCE. And the board's order explicitly provided that {should the employee refuse to submit [to] an employer's PCE, we will hear the employer's petition to suspend and/or forfeit the employee's compensation under AS 23.30.095(e) at the next available hearing date." While it is true that Anderson was not ultimately successful as to his responsibility to attend the PCE, he did prevail on the question whether his benefits could be suspended during the period when his obligation to attend the PCE was being litigated. The superior court ruled that "Anderson's declination to be examined by a non-physician or surgeon specialist may not be considered as a refusal to submit to that examination, allowing suspension of compensation." Moreover, the worker's compensation board explicitly endorsed the superior court's viewpoint when the case later returned to the board: "[W]e find the employee's counsel's efforts on appeal to the Superior Court secured a determination that the employee's previous failures to attend the PCE would not result in a forfeiture of his benefits. We find this was a benefit to the employee." Anderson v. Municipality of Anchorage, AWCB Dec. No. 01-0014, Final Decision and Order (January 17, 2001) (emphasis added).

Under these circumstances, it appears plausible, as both the board and the superior court found, that Anderson's counsel had prevailed on an important issue and had provided a benefit to him. An award of fees to counsel for the injured worker in this situation hardly appears "easy" to characterize as an abuse of discretion.