Workers’ Compensation

ORS 656.382
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]

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. 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 to 655.550. 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, 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 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 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)

Where administrative law judge dismissed insurer’s request for review of compensation award as untimely, claimant is entitled to attorney fees under this section because dismissal is administrative law judge’s decision that compensation award will not be reduced or disallowed. Arvidson v. Liberty Northwest Ins. Corp., 366 Or 693, 467 P3d 741 (2020)

Attorney General Opinions

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

Law Review Citations

27 WLR 110 (1991)

Source

Last accessed
May 30, 2023

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