2017 ORS 656.385¹
Attorney fees in cases regarding certain medical service or vocational rehabilitation matters
  • rules
  • limitation
  • penalties

(1) In all cases involving a dispute over compensation benefits pursuant to ORS 656.245 (Medical services to be provided), 656.247 (Payment for medical services prior to claim acceptance or denial), 656.260 (Certification procedure for managed health care provider), 656.327 (Review of medical treatment of worker) or 656.340 (Vocational assistance procedure), where a claimant finally prevails after a proceeding has commenced, the Director of the Department of Consumer and Business Services, the Administrative Law Judge or the court shall require the insurer or self-insured employer to pay a reasonable attorney fee to the claimant’s attorney. In such cases, where an attorney is instrumental in obtaining a settlement of the dispute prior to a decision by the director, an Administrative Law Judge or the court, the director, Administrative Law Judge or court shall require the insurer or self-insured employer to pay a reasonable attorney fee to the claimant’s attorney. The attorney fee must be based on all work the claimant’s attorney has done relative to the proceeding at all levels before the department or court. The attorney fee assessed under this section must be proportionate to the benefit to the injured worker. The director shall adopt rules for establishing the amount of the attorney fee, giving primary consideration to the results achieved and to the time devoted to the case. An attorney fee awarded pursuant to this subsection may not exceed $4,000 absent a showing of extraordinary circumstances. The maximum attorney fee awarded under this subsection shall be adjusted annually on July 1 by the same percentage increase as made to the average weekly wage defined in ORS 656.211 (“Average weekly wage” defined), if any.

(2) If an insurer or self-insured employer refuses to pay compensation due under, or attorney fees related to, ORS 656.245 (Medical services to be provided), 656.247 (Payment for medical services prior to claim acceptance or denial), 656.260 (Certification procedure for managed health care provider), 656.327 (Review of medical treatment of worker) or 656.340 (Vocational assistance procedure) pursuant to an order of the director, an Administrative Law Judge or the court or otherwise unreasonably resists the payment of such compensation or attorney fees, the insurer or self-insured employer shall pay to the attorney of the claimant a reasonable attorney fee as provided in subsection (3) 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.

(3) If a request for a contested case hearing, review on appeal or cross-appeal to the Court of Appeals or petition for review to the Supreme Court is initiated by an insurer or self-insured employer, and the director, Administrative Law Judge or court finds that all or part of the compensation awarded under ORS 656.245 (Medical services to be provided), 656.247 (Payment for medical services prior to claim acceptance or denial), 656.260 (Certification procedure for managed health care provider), 656.327 (Review of medical treatment of worker) or 656.340 (Vocational assistance procedure) to a claimant, or attorney fees under this section, should not be disallowed or reduced, the insurer or self-insured employer shall be required to pay to the attorney of the claimant a reasonable attorney fee in an amount set by the director, Administrative Law Judge or court for legal representation by an attorney for the claimant at the contested case hearing, review on appeal or cross-appeal.

(4) If upon reaching a final contested case decision where such contested case was initiated by an insurer or self-insured employer it is found that the insurer or self-insured employer initiated the contested case hearing for the purpose of delay or other vexatious reason or without reasonable ground, the director, Administrative Law Judge or court may order the insurer or self-insured employer to pay to the claimant such penalty not exceeding $750 and not less than $100 as may be reasonable in the circumstances.

(5) Penalties and attorney fees awarded pursuant to this section by the director, an Administrative Law Judge or the courts shall be paid for by the employer or insurer in addition to compensation found to be due to the claimant. [1995 c.332 §42d; 2003 c.756 §2; 2005 c.26 §13; 2009 c.526 §4; 2015 c.521 §6]

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

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.