Recovery of attorney fees, expenses and costs in appeal on denied claim
- attorney fees in other cases
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)
Following recission of denial of workers’ compensation benefits, Workers’ Compensation Board and administrative law judge have authority to award attorney fees incurred in litigating both claim and fee award, and prevailing party is entitled to attorney fees absent clear legislative intent to contrary. Taylor v. SAIF, 329 Or App 135, 539 P3d 326 (2023), Sup Ct review denied
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