ORS 656.386
Recovery of attorney fees, expenses and costs in appeal on denied claim

  • attorney fees in other cases

(1)

Intentionally left blank —Ed.

(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)

Intentionally left blank —Ed.

(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]

Source: Section 656.386 — Recovery of attorney fees, expenses and costs in appeal on denied claim; attorney fees in other cases, https://www.­oregonlegislature.­gov/bills_laws/ors/ors656.­html.

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)

Claimant was entitled to attorney fees for time attorney spent considering whether to file response to employer’s petition for review in Supreme Court. Shearer’s Foods v. Hoffnagle, 363 Or 147, 420 P3d 625 (2018)

Legislature intended “extraordinary circumstances” to mean more than reasonable expenditures to prove denied claim. SAIF v. Siegrist, 297 Or App 284, 441 P3d 655 (2019)

656.001
Short title
656.003
Application of definitions to construction of chapter
656.005
Definitions
656.006
Effect on employers’ liability law
656.008
Extension of laws relating to workers’ compensation to federal lands and projects within state
656.010
Treatment by spiritual means
656.012
Findings and policy
656.017
Employer required to pay compensation and perform other duties
656.018
Effect of providing coverage
656.019
Civil negligence action for claim denied on basis of failure to meet major contributing cause standard
656.020
Damage actions by workers against noncomplying employers
656.021
Coverage exception for laborers under contracts with construction and landscape contractor licensees
656.023
Who are subject employers
656.025
Individuals engaged in commuter ridesharing not subject workers
656.027
Who are subject workers
656.029
Obligation of person awarding contract to provide coverage for workers under contract
656.031
Coverage for municipal volunteer personnel
656.033
Coverage for participants in work experience or school directed professional training programs
656.035
Status of workers in separate occupations of employer
656.037
Exemption from coverage for persons engaged in certain real estate activities
656.039
Election of coverage for workers not subject to law
656.041
City or county may elect to provide coverage for adults in custody
656.043
Governmental agency paying wages responsible for providing coverage
656.044
State Accident Insurance Fund Corporation may insure liability under Longshoremen’s and Harbor Workers’ Compensation Act
656.046
Coverage of persons in college work experience and professional education programs
656.052
Prohibition against employment without coverage
656.054
Claim of injured worker of noncomplying employer
656.056
Subject employers must post notice of manner of compliance
656.070
Definitions for ORS 656.027, 656.070 and 656.075
656.075
Exemption from coverage for newspaper carriers
656.126
Coverage while temporarily in or out of state
656.128
Sole proprietors, limited liability company members, partners, independent contractors may elect coverage by insurer
656.132
Coverage of minors
656.135
Coverage of deaf school work experience trainees
656.138
Coverage of apprentices, trainees participating in related instruction classes
656.140
Coverage of persons operating equipment for hire
656.154
Injury due to negligence or wrong of a person not in the same employ as injured worker
656.156
Intentional injuries
656.160
Effect of incarceration on receipt of compensation
656.170
Validity of provisions of certain collective bargaining agreements
656.172
Applicability of and criteria for establishing program under ORS 656.170
656.174
Rules
656.202
Compensation payable to subject worker in accordance with law in effect at time of injury
656.204
Death
656.206
Permanent total disability
656.208
Death during permanent total disability
656.209
Offsetting permanent total disability benefits against Social Security benefits
656.210
Temporary total disability
656.211
“Average weekly wage” defined
656.212
Temporary partial disability
656.214
Permanent partial disability
656.216
Permanent partial disability
656.218
Continuance of permanent partial disability payments to survivors
656.222
Compensation for additional accident
656.225
Compensability of certain preexisting conditions
656.226
Cohabitants and children entitled to compensation
656.228
Payments directly to beneficiary or custodian
656.230
Lump sum award payments
656.232
Payments to aliens residing outside of United States
656.234
Compensation not assignable nor to pass by operation of law
656.236
Compromise and release of claim matters except for medical benefits
656.240
Deduction of benefits from sick leave payments paid to employees
656.245
Medical services to be provided
656.247
Payment for medical services prior to claim acceptance or denial
656.248
Medical service fee schedules
656.250
Limitation on compensability of physical therapist services
656.252
Medical report regulation
656.254
Medical report forms
656.256
Considerations for rules regarding certain rural hospitals
656.258
Vocational assistance service payments
656.260
Certification procedure for managed health care provider
656.262
Processing of claims and payment of compensation
656.263
To whom notices sent under ORS 656.262, 656.265, 656.268 to 656.289, 656.295 to 656.325 and 656.382 to 656.388
656.264
Compensable injury, denied claim and other reports
656.265
Notice of accident from worker
656.266
Burden of proving compensability and nature and extent of disability
656.267
Claims for new and omitted medical conditions
656.268
Claim closure
656.273
Aggravation for worsened conditions
656.277
Request for reclassification of nondisabling claim
656.278
Board has continuing authority to alter earlier action on claim
656.283
Hearing rights and procedure
656.285
Protection of witnesses at hearings
656.287
Use of vocational reports in determining loss of earning capacity at hearing
656.289
Orders of Administrative Law Judge
656.291
Expedited Claim Service
656.295
Board review of Administrative Law Judge orders
656.298
Judicial review of board orders
656.304
When acceptance of compensation precludes hearing
656.307
Determination of issues regarding responsibility for compensation payment
656.308
Responsibility for payment of claims
656.310
Presumption concerning notice of injury and self-inflicted injuries
656.313
Stay of compensation pending request for hearing or review
656.319
Time within which hearing must be requested
656.325
Required medical examination
656.327
Review of medical treatment of worker
656.328
List of authorized providers and standards of professional conduct for providers of independent medical examinations
656.331
Contact, medical examination of worker represented by attorney prohibited without written notice
656.340
Vocational assistance procedure
656.360
Confidentiality of worker medical and vocational claim records
656.362
Liability for disclosure of worker medical and vocational claim records
656.382
Penalties and attorney fees payable by insurer or employer in processing claim
656.383
Attorney fees in cases prior to decision or after request for hearing
656.385
Attorney fees in cases regarding certain medical service or vocational rehabilitation matters
656.386
Recovery of attorney fees, expenses and costs in appeal on denied claim
656.388
Approval of attorney fees required
656.390
Frivolous appeals, hearing requests or motions
656.403
Obligations of self-insured employer
656.407
Qualifications of insured employers
656.419
Workers’ compensation insurance contracts
656.423
Cancellation of coverage by employer
656.427
Termination of workers’ compensation insurance contract or surety bond liability by insurer
656.430
Certification of self-insured employer
656.434
Certification effective until canceled or revoked
656.440
Notice of certificate revocation
656.441
Advancement of funds from Workers’ Benefit Fund for compensation due workers insured by certain decertified self-insured employer groups
656.443
Procedure upon default by employer or self-insured employer group
656.445
Advancement of funds from Workers’ Benefit Fund for compensation due workers insured by insurer in default
656.447
Sanctions against insurer for failure to comply with contracts, orders or rules
656.455
Self-insured employers to process claims and make records available at authorized locations
656.502
“Fiscal year” defined
656.504
Rates, charges, fees and reports by employers insured by State Accident Insurance Fund Corporation
656.505
Estimate of payroll when employer fails to file payroll report
656.506
Assessments for programs
656.508
Authority to fix premium rates for employers
656.526
Distribution of dividends from surplus in Industrial Accident Fund
656.536
Premium charges for coverage of reforestation cooperative workers based on prevailing wage
656.552
Deposit of cash, bond or letter of credit to secure payment of employer’s premiums
656.554
Injunction against employer failing to comply with deposit requirements
656.556
Liability of person letting a contract for amounts due from contractor
656.560
Default in payment of premiums, fees, assessments or deposit
656.562
Moneys due Industrial Accident Fund as preferred claims
656.564
Lien for amounts due from employer on real property, improvements and equipment on or with which labor is performed by workers of employer
656.566
Lien on property of employer for amounts due
656.576
“Paying agency” defined
656.578
Workers’ election whether to sue third person or noncomplying employer for damages
656.580
Payment of compensation notwithstanding cause of action for damages
656.583
Paying agency may compel election and prompt action
656.587
Paying agency must join in any compromise
656.591
Election not to bring action operates as assignment of cause of action
656.593
Procedure when worker or beneficiary elects to bring action
656.595
Precedence of cause of action
656.596
Damage recovery as offset against compensation
656.602
Disbursement procedures
656.605
Workers’ Benefit Fund
656.612
Assessments for department activities
656.614
Self-Insured Employer Adjustment Reserve
656.622
Reemployment Assistance Program
656.625
Reopened Claims Program
656.628
Workers with Disabilities Program
656.630
Oregon Institute of Occupational Health Sciences funding
656.632
Industrial Accident Fund
656.634
Trust fund status of Industrial Accident Fund
656.635
Reserve accounts in Industrial Accident Fund
656.636
Reserves in Industrial Accident Fund for awards for permanent disability or death
656.640
Creation of reserves
656.642
Emergency Fund
656.644
Petty cash funds
656.702
Disclosure of records of corporation, department and insurers
656.704
Actions and orders regarding matters concerning claim and matters other than matters concerning claim
656.708
Hearings Division
656.709
Ombudsman for injured workers
656.712
Workers’ Compensation Board
656.714
Removal of board member
656.716
Board members not to engage in political or business activity that interferes with duties as board member
656.718
Chairperson
656.720
Prosecution and defense of actions by Attorney General and district attorneys
656.722
Authority to employ subordinates
656.724
Administrative Law Judges
656.725
Duties and status of Administrative Law Judges
656.726
Duties and powers to carry out workers’ compensation and occupational safety laws
656.727
Rules for administration of benefit offset
656.730
Assigned risk plan
656.732
Power to compel obedience to subpoenas and punish for misconduct
656.735
Civil penalty for noncomplying employers
656.740
Review of proposed order declaring noncomplying employer or nonsubjectivity determination
656.745
Civil penalty for inducing failure to report claims
656.751
State Accident Insurance Fund Corporation created
656.752
State Accident Insurance Fund Corporation
656.753
State Accident Insurance Fund Corporation exempt from certain financial administration laws
656.754
Manager
656.758
Inspection of books, records and payrolls
656.772
Annual audit of State Accident Insurance Fund Corporation by Secretary of State
656.774
Annual report by State Accident Insurance Fund Corporation to Secretary of State
656.776
Notice to Secretary of State regarding action on audit report
656.780
Certification and training of claims examiners
656.790
Workers’ Compensation Management-Labor Advisory Committee
656.794
Advisory committee on medical care
656.795
Informational materials for nurse practitioners
656.797
Certification by nurse practitioner of review of required materials
656.798
Duty of insurer, self-insured employer and self-insured employer group to provide information to director
656.799
Informational materials for other health care professionals
656.802
Occupational disease
656.804
Occupational disease as an injury under Workers’ Compensation Law
656.807
Time for filing of claims for occupational disease
656.850
License
656.855
Licensing system for worker leasing companies
656.990
Penalties
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