Bowman v. SAIF Corp.

374 P.3d 1008, 278 Or. App. 417, 2016 Ore. App. LEXIS 580
CourtCourt of Appeals of Oregon
DecidedMay 18, 2016
Docket1301130; A156919
StatusPublished
Cited by3 cases

This text of 374 P.3d 1008 (Bowman v. SAIF Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowman v. SAIF Corp., 374 P.3d 1008, 278 Or. App. 417, 2016 Ore. App. LEXIS 580 (Or. Ct. App. 2016).

Opinion

SHORR, J.

Claimant seeks judicial review of a Workers’ Compensation Board order awarding assessed attorney fees under ORS 656.386(l)(a), which requires an award of “a reasonable attorney fee” in “cases involving denied claims where an attorney is instrumental in obtaining a rescission of the denial.” Here, an attorney fee of $6,000 was awarded after SAIF Corporation rescinded its denial of the claim shortly before the scheduled hearing on claimant’s challenge to that denial. Claimant argues, among other things, that the board erred in limiting its consideration of the attorney fee award to work counsel performed before SAIF notified claimant that it would rescind its denial. We agree with claimant that the board so erred. As explained below, ORS 656.386(l)(a) does not impose any temporal limitation on rescission-based attorney fees, and the board’s limiting construction of the statute is erroneous. Accordingly, in considering the amount of time an attorney has dedicated to a claim where a denial has been rescinded by the insurer prior to a formal agency decision, the board must consider all of the time that counsel dedicated that related to the litigation of the denial and the rescission, including time spent relating to litigation work that occurred after the insurer notified counsel of its intention to withdraw its denial and accept the claim.1

The material facts are uncontroverted. Claimant, a long haul truck driver, suffered a spider bite while he was loading his truck on November 29, 2012. His symptoms worsened considerably the next day (pain and sickness, with swelling and redness in the right arm), and claimant went to the emergency room. He was diagnosed with right forearm cellulitis and filled out an 801 form asserting that his condition was work related. Claimant was hospitalized for seven days.

Claimant retained counsel to represent him in his workers’ compensation claim, which SAIF denied on January 24, 2013. Claimant contested the denial and [419]*419requested a hearing before an administrative law judge (ALJ). That hearing was scheduled for June 4, 2013. On May 31, four days before the hearing, SAIF notified claimant (through counsel) that it would rescind the denial. After he was notified of the rescission, claimant’s counsel devoted several hours to “wrapping up” the matter, which included communicating with claimant, negotiating a stipulation with SAIF, cancelling the June 4 hearing, dealing with issues relating to claimant’s medical bills, and ensuring that claimant received his unpaid time loss from SAIF. SAIF formally accepted the claim on June 27, 2013.

Because claimant and SAIF were unable to agree on an appropriate attorney fee, a hearing was eventually held on that issue. The parties agreed that counsel was entitled to an attorney fee under ORS 656.386(l)(a); claimant sought an attorney fee of $25,000, and SAIF argued that a fee of between $4,000 to $5,000 was appropriate. As relevant here, the parties disputed whether, in considering the “time devoted to the case,” the ALJ could consider counsel’s post-rescission work on the claim. SAIF argued that “time spent after rescission of the denial is not included in a fee award; rather, only services performed prior to the rescission are considered.” Based on that categorical premise, SAIF contended that the ALJ should not consider any of the hours counsel worked after the May 31 rescission. SAIF considered the date of the rescission to be “the date SAIF informed claimant’s attorney of the rescission,” although, as noted above, it formally accepted the claim about a month later. Claimant countered that all of counsel’s time working on issues relating to the litigation of the denial and rescission should be considered.

The ALJ, invoking the factors set out in OAR 438-015-00102—including the “time devoted to the case”—awarded [420]*420an attorney fee of $6,000. That award was based in part on the ALJ’s finding that, although “counsel indicated that he spent approximately 36.6 hours on this case * ⅜ * as noted by SAIF, the bulk of these hours were spent after the rescission of the denial.” Though the ALJ did not expressly set forth the legal implication of that finding, it is evident that he adopted SAIF’s argument that only counsel’s pre-rescission time could be considered.

Claimant subsequently appealed the ALJ’s opinion and order to the board, which affirmed the ALJ’s $6,000 attorney fee award on de novo review. Like the ALJ, the board’s decision was based, in part, on its determination that all of counsel’s time working on the claim post-rescission was not fee eligible under ORS 656.386(1):

“Here, claimant agrees with the ALJ’s finding that his counsel spent over 36 hours on the case. However, based on counsel’s ‘Statement of Services’ submitted to the ALJ, some 14 hours of that time was performed after SAIF’s rescission of the denial. Moreover, much of those 14 hours was devoted to research and preparation for the hearing concerning the attorney fee issue, as well as for counsel’s travel and attendance at the hearing.
“Yet, when a denial is rescinded voluntarily by a carrier before a hearing, a claimant’s counsel is entitled to a reasonable attorney fee for being ‘instrumental in obtaining a rescission of the denial prior to a decision.’ See ORS 656.386(1). Consistent with this statutory mandate, in determining the amount of an attorney fee for services regarding a ‘pre-hearing’ rescinded denial, our review is confined to a claimant’s counsel’s services rendered before the rescission. Thus, claimant’s counsel’s services pertaining to ‘post rescission’ preparation for, and attendance at, the hearing are not considered in determining a reasonable attorney fee award.”

(Emphases in original; citations omitted.)

[421]*421On review, claimant argues that the board’s construction of ORS 656.386(l)(a)—which requires “a reasonable attorney fee” in “cases involving denied claims where an attorney is instrumental in obtaining a rescission of the denial”—to confine its consideration to “counsel’s services rendered before the rescission” was erroneous. Claimant maintains that that statute does not contain any temporal limitation, and that a reasonable attorney fee under it must include consideration of pertinent work that occurs relating to the rescission, even if after the rescission. Claimant particularly emphasizes that many of the services an attorney provides to a claimant in a rescission scenario—such as notifying the claimant of the rescission and discussing its implications, negotiating a stipulation, ensuring the insurer accepts the claim in a satisfactory manner,3 dealing with issues relating to unpaid medical bills and communicating with medical providers, ensuring that the claimant receives unpaid temporary disability, and communicating with opposing counsel about those

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Cite This Page — Counsel Stack

Bluebook (online)
374 P.3d 1008, 278 Or. App. 417, 2016 Ore. App. LEXIS 580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowman-v-saif-corp-orctapp-2016.