2017 ORS 656.382¹
Penalties and attorney fees payable by insurer or employer in processing claim

(1) If an insurer or self-insured employer refuses to pay compensation, costs or attorney fees due under an order of an Administrative Law Judge, the board or the court, or otherwise unreasonably resists the payment of compensation, costs or attorney fees, except as provided in ORS 656.385 (Attorney fees in cases regarding certain medical service or vocational rehabilitation matters), the employer or insurer shall pay to the attorney of the claimant a reasonable attorney fee as provided in subsection (2) of this section. To the extent an employer has caused the insurer to be charged such fees, such employer may be charged with those fees.

(2) If a request for hearing, request for review, appeal or cross-appeal to the Court of Appeals or petition for review to the Supreme Court is initiated by an employer or insurer, and the Administrative Law Judge, board or court finds that all or part of the compensation awarded to a claimant should not be disallowed or reduced, or, through the assistance of an attorney, that an order rescinding a notice of closure should not be reversed or all or part of the compensation awarded by a reconsideration order issued under ORS 656.268 (Claim closure) should not be reduced or disallowed, the employer or insurer shall be required to pay to the attorney of the claimant a reasonable attorney fee in an amount set by the Administrative Law Judge, board or court for legal representation by an attorney for the claimant at and prior to the hearing, review on appeal or cross-appeal.

(3) If an employer or insurer raises attorney fees, penalties or costs as a separate issue in a request for hearing, request for review, appeal or cross-appeal to the Court of Appeals or petition for review to the Supreme Court initiated by the employer or insurer under this section, and the Administrative Law Judge, board or court finds that the attorney fees, penalties or costs awarded to the claimant should not be disallowed or reduced, the Administrative Law Judge, board or court shall award reasonable additional attorney fees to the attorney for the claimant for efforts in defending the fee, penalty or costs.

(4) If an employer or insurer initiates an appeal to the board or Court of Appeals and the matter is briefed, but the employer or insurer withdraws the appeal prior to a decision by the board or court, resulting in the claimant’s prevailing in the matter, the claimant’s attorney is entitled to a reasonable attorney fee for efforts in briefing the matter to the board or court.

(5) If upon reaching a decision on a request for hearing initiated by an employer it is found by the Administrative Law Judge that the employer initiated the hearing for the purpose of delay or other vexatious reason or without reasonable ground, the Administrative Law Judge may order the employer to pay to the claimant such penalty not exceeding $750 and not less than $100 as may be reasonable in the circumstances. [1965 c.285 §42; 1981 c.854 §24; 1983 c.568 §1; 1987 c.884 §34; 1990 c.2 §28; 1995 c.332 §42b; 2009 c.526 §3; 2015 c.521 §5]

Note: See notes under 656.202 (Compensation payable to subject worker in accordance with law in effect at time of injury).

Notes of Decisions

Provision for awarding attorney fees where request for hearing, review or ap­peal is initiated by employer or insurer does not prevent award where employee alleging unreasonable employer behavior requests hearing. Wingfield v. Nat. Biscuit Co., 8 Or App 408, 494 P2d 905 (1972)

Percentage of penalty for delay could not be designated as reasonable attorney fee because penalty and attorney fee must be separately calculated. Williams v. SAIF, 31 Or App 1301, 572 P2d 658 (1977)

Uninten­tional delay in pay­ment of interim compensa­tion is unreasonable resistance to pay­ment since require­ment is that pay­ment be made promptly. Williams v. SAIF, 31 Or App 1301, 572 P2d 658 (1977)

“Compensa­tion” as used in this sec­tion has special meaning that includes only interim compensa­tion paid for non-compensable injury. Jones v. Emanuel Hospital, 280 Or 147, 570 P2d 70 (1977); Williams v. Burns Interna­tional Security, 36 Or App 769, 585 P2d 734 (1978)

Reduc­tion in attorney fee award is not reduc­tion in compensa­tion awarded claimant. Mobley v. SAIF, 58 Or App 394, 648 P2d 1357 (1982)

Initia­tion of request encompasses raising issues that would otherwise not be dealt with by reviewing body, including award challenged by employer on cross ap­peal. Teel v. Weyerhaeuser Co., 294 Or 588, 660 P2d 155 (1983); Littleton v. Weyerhaeuser Co., 93 Or App 659, 763 P2d 742 (1988); Kordon v. Mercer Industries, 308 Or 290, 778 P2d 958 (1989)

Where compensa­tion has been ordered, claimant seeking award of attorney fees must es­tab­lish only that insurer unreasonably resisted ordered pay­ment, not that claimant is prevailing party on ap­peal. Gray v. SAIF, 70 Or App 313, 689 P2d 345 (1984)

Where plaintiff was awarded permanent partial disability compensa­tion and claim was reopened to offer evidence of permanent total disability, carrier should not have suspended pay­ment on partial disability award. Allen v. Fireman’s Fund Ins. Co., 71 Or App 40, 691 P2d 137 (1984)

Workers’ Compensa­tion claimant is not entitled to award of attorney fees for preparing and filing response to peti­tion for Supreme Court review that is not allowed. SAIF v. Curry, 297 Or 504, 686 P2d 363 (1984)

Claimant was entitled to penalty of attorney fees because of delay in pay­ment of interim compensa­tion on aggrava­tion claim notwithstanding later determina­tion that original claim closure was premature. O’Dell v. SAIF, 79 Or App 294, 719 P2d 52 (1986)

Attorney fees are not “compensa­tion.” Dotson v. Bohemia, Inc., 80 Or App 233, 720 P2d 1345 (1986), Sup Ct review denied

Claimant successful in defending award of attorney fees and penalties but unsuccessful in defending award of temporary total and permanent partial disability is not entitled to attorney fees as prevailing party on ap­peal. Saxton v. SAIF, 80 Or App 631, 723 P2d 355 (1986), Sup Ct review denied

Reimburse­ment of claimant’s attorney fees is available where determina­tion of compensability was at issue rather than award of compensa­tion or benefits. Shoulders v. SAIF, 300 Or 606, 716 P2d 751 (1986)

Where award involves multiple condi­tions, each condi­tion must be viewed separately and attorney fees awarded only for cost of defending those condi­tions for which award was not disallowed or reduced. Shoulders v. SAIF, 300 Or 606, 716 P2d 751 (1986); Roseburg Forest Products v. Boqua, 147 Or App 197, 935 P2d 478 (1997)

Insurer’s refusal to accede to issuance of paying agent order resulting in claimant’s not receiving compensa­tion for already accepted claim constituted unreasonable resistance to pay­ment of compensa­tion. D Maintenance Co. v. Mischke, 84 Or App 218, 733 P2d 903 (1987), Sup Ct review denied

Claimant was not entitled to insurer-paid attorney fees in review pro­ceed­ing to determine which employer was responsible for claim because right to compensa­tion on underlying claim was never at risk. Anfora v. Liberty Communica­tions, 88 Or App 30, 744 P2d 265 (1987); Howard v. Willamette Poultry, 101 Or App 584, 792 P2d 447 (1990)

Where employer promptly accepted claimant’s claim as nondisabling and paid medical bills but failed to close claimant’s nondisabling claim, since there was no delay in pay­ment of compensa­tion, Workers’ Compensa­tion Board was without statutory authority to authorize penalty under this sec­tion and ORS 656.382 (Penalties and attorney fees payable by insurer or employer in processing claim). SAIF Corpora­tion v. Wilson, 95 Or App 748, 770 P2d 972 (1989)

Court of Appeals standard of review for board award of attorney fees is review for abuse of discre­tion. Weyerhaeuser Co. v. Fillmore, 98 Or App 567, 779 P2d 1102 (1989), Sup Ct review denied

“Cross-request for review” is encompassed by words “request for review” in this sec­tion. Kordon v. Mercer Industries, 308 Or 290, 778 P2d 958 (1989)

Attorney fees pro­vi­sions under this chapter are incorporated within Inmate Injury Act, ORS 655.505 (Definitions for ORS 655.505 to 655.555) to 655.550 (Assessment of Oregon Department of Administrative Services for costs of Workers’ Compensation Board). Dept. of Justice v. Spear, 308 Or 594, 783 P2d 998 (1989)

Claimant is not entitled to attorney fees when employer or insurer peti­tion for review is dismissed without finding on merits. Liberty Northwest Ins. Corp. v. McKellips, 100 Or App 549, 786 P2d 1321 (1990); Terlouw v. Jesuit Seminary, 101 Or App 493, 790 P2d 1215 (1990), Sup Ct review denied; Wise v. Gary-Adams-Trucking, 106 Or App 654, 809 P2d 715 (1991)

When awarding attorney fees, board’s explana­tion must be detailed enough to show factors considered and that there is reasonable basis for award. Diamond Fruit Growers v. Davies, 103 Or App 280, 796 P2d 1248 (1990)

Where compensa­tion had been paid in full prior to hearing, other ac­tions by insurer could not result in award of attorney fees for unreasonably resisting pay­ment. Aetna Casualty v. Jackson, 108 Or App 253, 815 P2d 713 (1991); SAIF v. Condon, 119 Or App 194, 850 P2d 382 (1993), Sup Ct review denied

Award of Attorney Fees Under This Sec­tion Requires That

1) employer initiate request for hearing to obtain disallowance or reduc­tion in claimant’s award of compensa­tion; 2) claimant’s attorney perform legal services in defending award; and 3) referee find on merits that claimant’s award should not be disallowed or reduced. Strazi v. SAIF, 109 Or App 105, 817 P2d 1348 (1991)

Request for offset of overpay­ment does not permit award of attorney fees because it is not at­tempt to disallow or reduce compensa­tion. Strazi v. SAIF, 109 Or App 105, 817 P2d 1348 (1991)

If claim is compensable, failure to comply with discovery require­ments may be unreasonable resistance to pay­ment of compensa­tion and justify attorney fees, even without evidence that noncompliance delayed acceptance of claim. Boehr v. Mid-Willamette Valley Food, 109 Or App 292, 818 P2d 1297 (1991)

To determine whether board can impute knowledge of supervisors to employer for purposes of determining whether denial of claim was reasonable, board must first determine scope of supervisor’s authority. Tri-Met, Inc. v. Odighizuwa, 112 Or App 159, 828 P2d 468 (1992)

Where claimant receives penalty award under ORS 656.262 (Processing of claims and payment of compensation), claimant is not entitled to addi­tional award for attorney fees. Martinez v. Dallas Nursing Home, 114 Or App 453, 836 P2d 147 (1992), Sup Ct review denied; Oliver v. Norstar, Inc., 116 Or App 333, 840 P2d 1382 (1992); Corona v. Pacific Resource Recycling, 125 Or App 47, 865 P2d 407 (1993)

Award of penalty under compensa­tion increase and disability level criteria of ORS 656.268 (Claim closure) does not es­tab­lish that employer unreasonably resisted pay­ment of compensa­tion. Nero v. City of Tualatin, 142 Or App 383, 920 P2d 570 (1996)

Attorney fees are authorized only when employer or insurer initiates review at level at which award of fees is requested. Santos v. Caryall Transport, 171 Or App 467, 17 P3d 509 (2000), Sup Ct review denied

Where pre­vi­ous employer has not accepted claim, sub­se­quent employer’s at­tempt to shift responsibility for injury is challenge to compensability, for which attorney fees may be awarded. Wal-Mart Stores, Inc. v. Climer, 173 Or App 282, 21 P3d 660 (2001)

Reclassifica­tion of injury from nondisabling to disabling is not award of compensa­tion entitling claimant to attorney fees. Express Services, Inc. v. Conradson, 180 Or App 534, 43 P3d 1164 (2002), Sup Ct review denied

Where compensa­tion has been paid but not “awarded,” insurer is not re­quired to pay attorney fees to claimant prevailing at hearing. Reynolds v. Hydro Tech, Inc., 182 Or App 488, 49 P3d 827 (2002)

Employer resistance to processing of claim for which only medical bills are outstanding may support award of attorney fees. Tri-Met, Inc. v. Wolfe, 192 Or App 556, 86 P3d 111 (2004)

Tribunal to which claim is remanded may not award attorney fees if merely performing ministerial act of administering decision by remanding tribunal. SAIF v. Santos, 194 Or App 289, 94 P3d 906 (2004)

Order that does not award compensa­tion or create automatic entitle­ment to benefits is not grounds for awarding attorney fees. SAIF v. Terrien, 221 Or App 671, 191 P3d 735 (2008)

If claimant obtains award of compensa­tion and insurer requests review under this sec­tion, and if final tribunal to consider issue on review concludes awarded compensa­tion should not be reduced or disallowed, claimant is entitled to attorney fees incurred in representa­tion at and prior to final hearing. SAIF v. DeLeon, 352 Or 130, 282 P3d 800 (2012)

“[C]ompensa­tion determined to be then due” means compensa­tion to which claimant is entitled on date that employer closes claim or refuses to close claim. Walker v. Providence Health System Oregon, 254 Or App 676, 298 P3d 38 (2013), Sup Ct review denied

Claimant’s success in obtaining penalty and attorney fees under ORS 656.262 (Processing of claims and payment of compensation) for employer’s delay in pay­ment of compensa­tion does not mandate award of attorney fees under this pro­vi­sion. Cayton v. Safelite Glass Corpora­tion, 257 Or App 188, 306 P3d 726 (2013)

Atty. Gen. Opinions

Board’s authority to order pay­ment of claimant’s attorney fees, (1978) Vol 38, p 2069

Law Review Cita­tions

27 WLR 110 (1991)

Law Review Cita­tions

55 OLR 432-445 (1976); 16 WLR 519 (1979); 22 WLR 559 (1986)

Chapter 656

Notes of Decisions

Party having af­firm­a­tive of any issue must prove it by preponderance of evidence unless legislature fixes some different quantum of proof. Hutcheson v. Weyerhaeuser Co., 288 Or 51, 602 P2d 268 (1979)

Amend­ments to existing statutes and enact­ment of addi­tional statutes by 1995 legisla­tion generally apply to pending cases and to orders still ap­pealable on June 7, 1995, effective date. Volk v. America West Air­lines, 135 Or App 565, 899 P2d 746 (1995), Sup Ct review denied

Amend­ments to existing statutes and enact­ment of addi­tional statutes by 1995 legisla­tion do not extend or shorten procedural time limita­tions with regard to ac­tions taken prior to June 7, 1995, effective date. Motel 6 v. McMasters, 135 Or App 583, 899 P2d 1212 (1995)

Atty. Gen. Opinions

Benefit unavailability for inmates engaged in prison work programs, (1996) Vol 48, p 134

Law Review Cita­tions

24 WLR 321, 341 (1988); 32 WLR 217 (1996)

1 Legislative Counsel Committee, CHAPTER 656—Workers’ Compensation, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors656.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 656, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano656.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.