2017 ORS 656.386¹
Recovery of attorney fees, expenses and costs in appeal on denied claim
  • attorney fees in other cases

(1)(a) In all cases involving denied claims where a claimant finally prevails against the denial in an appeal to the Court of Appeals or petition for review to the Supreme Court, the court shall allow a reasonable attorney fee to the claimant’s attorney. In such cases involving denied claims where the claimant prevails finally in a hearing before an Administrative Law Judge or in a review by the Workers’ Compensation Board, then the Administrative Law Judge or board shall allow a reasonable attorney fee. In such cases involving denied claims where an attorney is instrumental in obtaining a rescission of the denial prior to a decision by the Administrative Law Judge, a reasonable attorney fee shall be allowed.

(b) For purposes of this section, a “denied claim” is:

(A) A claim for compensation which an insurer or self-insured employer refuses to pay on the express ground that the injury or condition for which compensation is claimed is not compensable or otherwise does not give rise to an entitlement to any compensation;

(B) A claim for compensation for a condition omitted from a notice of acceptance, made pursuant to ORS 656.262 (Processing of claims and payment of compensation) (6)(d), which the insurer or self-insured employer does not respond to within 60 days;

(C) A claim for an aggravation made pursuant to ORS 656.273 (Aggravation for worsened conditions) (2) or for a new medical condition made pursuant to ORS 656.267 (Claims for new and omitted medical conditions), which the insurer or self-insured employer does not respond to within 60 days; or

(D) A claim for an initial injury or occupational disease to which the insurer or self-insured employer does not respond within 60 days.

(c) A denied claim shall not be presumed or implied from an insurer’s or self-insured employer’s failure to pay compensation for a previously accepted injury or condition in timely fashion. Attorney fees provided for in this subsection shall be paid by the insurer or self-insured employer.

(2)(a) If a claimant finally prevails against a denial as provided in subsection (1) of this section, the court, board or Administrative Law Judge may order payment of the claimant’s reasonable expenses and costs for records, expert opinions and witness fees.

(b) The court, board or Administrative Law Judge shall determine the reasonableness of witness fees, expenses and costs for the purpose of paragraph (a) of this subsection.

(c) Payments for witness fees, expenses and costs ordered under this subsection shall be made by the insurer or self-insured employer and are in addition to compensation payable to the claimant.

(d) Payments for witness fees, expenses and costs ordered under this subsection may not exceed $1,500 unless the claimant demonstrates extraordinary circumstances justifying payment of a greater amount.

(3) If a claimant requests claim reclassification as provided in ORS 656.277 (Request for reclassification of nondisabling claim) and the insurer or self-insured employer does not respond within 14 days of the request, or if the claimant, insurer or self-insured employer requests a hearing, review, appeal or cross-appeal to the Court of Appeals or petition for review to the Supreme Court and the Director of the Department of Consumer and Business Services, Administrative Law Judge, board or court finally determines that the claim should be classified as disabling, the director, Administrative Law Judge, board or court may assess a reasonable attorney fee.

(4) In disputes involving a claim for costs, if the claimant prevails on the claim for any increase of costs, the Administrative Law Judge, board, Court of Appeals or Supreme Court shall award a reasonable assessed attorney fee to the claimant’s attorney.

(5) In all other cases, attorney fees shall be paid from the increase in the claimant’s compensation, if any, except as otherwise expressly provided in this chapter. [Formerly 656.588; 1977 c.804 §14; 1981 c.854 §25; 1983 c.568 §2; 1990 c.2 §29; 1991 c.312 §1; 1995 c.332 §43; 1997 c.605 §3; 2001 c.865 §9; 2007 c.908 §1; 2009 c.526 §5; 2015 c.521 §7]

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

Notes of Decisions

Attorney fees are available for prevailing on aggrava­tion claim to same extent as available for original injury claim. Standley v. SAIF, 8 Or App 429, 495 P2d 283 (1972)

Rejected claim is not re­quired to be original claim filed in regard to injury to qualify for attorney fee award. Cavins v. SAIF, 272 Or 162, 536 P2d 426 (1975)

Party that creates need for claimant to es­tab­lish compensability of claim at hearing level or board level must pay claimant’s attorney fees if claimant prevails. Hanna v. McGrew Bros Sawmill, 45 Or App 757, 609 P2d 422 (1980); Dennis Uniform Manufacturing v. Teresi, 115 Or App 248, 837 P2d 984 (1992), modified 119 Or App 447, 851 P2d 620 (1993); Safeway Stores, Inc. v. Hayes, 119 Or App 319, 850 P2d 405 (1993)

Where employer issued partial denial disputing causa­tion, denied condi­tion constituted separate claim from accepted condi­tion for purposes of awarding attorney fee. Ohlig v. FMC Marine & Rail Equip­ment Div., 291 Or 586, 633 P2d 1279 (1981)

Board lacks own mo­tion authority to reduce award of attorney fees. Brooks v. D & R Timber, 55 Or App 688, 639 P2d 700 (1982)

Reasonable attorney fee includes pay­ment for efforts in pro­ceed­ings at earlier level of review. Hubble v. SAIF, 57 Or App 513, 647 P2d 474 (1982), Sup Ct review denied; Larson v. Brooks-Scanlon, 57 Or App 561, 647 P2d 934 (1982), Sup Ct review denied

Claimant is entitled to attorney fees where claimant prevailed as full-time employee over insurer partial denial based on status as part-time employee. Mission Insurance Co. v. Miller, 73 Or App 159, 697 P2d 1382 (1985)

Claimant was not entitled to attorney fees where insurer rather than claimant initiated review by board from order accepting rather than denying claim. Shoulders v. SAIF, 300 Or 606, 716 P2d 751 (1986)

Proceeding to determine responsibility among employers is not hearing on denied claim, so claimant may not be awarded attorney fees for initiating pro­ceed­ing. Cascade Corpora­tion v. Rose, 92 Or App 663, 759 P2d 1127 (1988); Multnomah County School Dist. v. Tigner, 113 Or App 405, 833 P2d 1294 (1992)

It was error to award attorney fees because employer never denied original claim or acted unreasonably in following depart­ment’s order to suspend pay­ment of benefits. Beebe v. Phibbs Logging & Cutting, 94 Or App 542, 755 P2d 1258 (1988)

Where employer sought review by Workers’ Compensa­tion Board but withdrew its request before board considered case, claimant is not entitled to attorney fees because there is no statutory authority for such award. Liberty Northwest Ins. Corp. v. McKellips, 100 Or App 549, 786 P2d 1321 (1990)

Claimant is not entitled to attorney fees on board review unless right to compensa­tion is at risk. Dept of Justice Inmate Ins Fund v. Hendershott, 108 Or App 584, 816 P2d 1178 (1991)

Claimant is not eligible for insurer-paid attorney fees for service involving availability of particular type of benefit. Simpson v. Sky­line Corp., 108 Or App 721, 816 P2d 1209 (1991)

Provision making attorney fees available only if attorney is instru­mental in obtaining compensa­tion does not apply where attorney fee is paid out of claimant’s compensa­tion award. O’Neal v. Tewell, 119 Or App 329, 850 P2d 1144 (1993)

Where under board’s interpreta­tion of attorney fees, pro seclaimants who are not attorneys may not be awarded attorney fees, claimant who is attorney and represented self is not entitled to attorney fees. Bischoff v. Bischoff & Strooband, P.C., 121 Or App 529, 855 P2d 1133 (1993)

This sec­tion is inapplicable when issue in case does not concern compensability of claim. Gamble v. Nelson Interna­tional, 124 Or App 90, 861 P2d 1021 (1993)

Where injury was not compensable but hospitaliza­tion was compensable, attorney fees could be awarded for prevailing on hospitaliza­tion cost claim. Pacific Motor Trucking v. Huntley, 130 Or App 46, 880 P2d 934 (1994)

Where carrier unilaterally acted to pay full amount of addi­tional compensa­tion to claimant, require­ment that pay­ment to attorney be made out of compensa­tion award amount did not preclude requiring addi­tional pay­ment of fee directly to attorney. SAIF v. O’Neal, 134 Or App 338, 895 P2d 350 (1995)

Where pay­ment of fee directly to attorney was not properly authorized, carrier pay­ment of full amount of addi­tional compensa­tion to claimant did not require that addi­tional pay­ment be made to attorney. Lathrop v. Fairview Training Center, 134 Or App 346, 894 P2d 1257 (1995), Sup Ct review denied

Penalty assessed to employer is not compensa­tion and cannot provide source for pay­ment of attorney fees in cases not involving denial of claim. Nero v. City of Tualatin, 142 Or App 383, 920 P2d 570 (1996)

Claimant is not entitled to attorney fees where written request for compensa­tion of denied condi­tion has not been filed. Stephenson v. Meyer, 150 Or App 300, 945 P2d 1114 (1997)

Rescission of denial need not be accompanied by acceptance of denied claim in order for attorney fees to be awarded. SAIF v. Batey, 153 Or App 634, 957 P2d 195 (1998), on reconsidera­tion 155 Or App 21, 963 P2d 732 (1998), Sup Ct review denied

Attorney fees are not available for obtaining increased disability benefits in noncontested case matter reviewed exclusively by Director of Depart­ment of Consumer and Business Services. Shook v. Pacific Communities Hospital, 159 Or App 604, 980 P2d 161 (1999)

Request for, or objec­tion to, attorney fees may be raised on reconsidera­tion without having been preserved at hearing. Hays v. Tillamook County General Hospital, 160 Or App 55, 979 P2d 775 (1999)

“Denied claim” includes claim denied due to claimant noncoopera­tion. SAIF v. Wart, 192 Or App 505, 87 P3d 1138 (2004), Sup Ct review denied

Where resolu­tion of single dispute requires decisions by both Director of Depart­ment of Consumer and Business Services and Workers’ Compensa­tion Board, board may not award attorney fees unless claimant has prevailed in both decisions. AIG Claim Services, Inc. v. Cole, 205 Or App 170, 133 P3d 357 (2006), Sup Ct review denied

Claim may be “denied claim,” notwithstanding that denial is eventually determined to be void. Cervantes v. Liberty Northwest Insurance Corp. 205 Or App 316, 134 P3d 1033 (2006)

Failure of insurer to respond to omitted condi­tion claim by accepting or denying it within 60 days is procedural deficiency that constitutes denial of claim. Crawford v. SAIF, 241 Or App 470, 250 P3d 965 (2011); SAIF v. Traner, 270 Or App 67, 346 P3d 1248 (2015)

In determining reasonable attorney fees, under this sec­tion, Workers’ Compensa­tion Board must take into account total time attorney has dedicated that is related to litigating denial of claim and rescission of that denial, including reasonable time spent after insurer com­mu­ni­cated inten­tion to rescind insurer’s denial and accept claim. Bowman v. SAIF Corpora­tion, 278 Or App 417, 374 P3d 1008 (2016)

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.