Gainer v. State Accident Insurance Fund Corp.

627 P.2d 41, 51 Or. App. 869, 1981 Ore. App. LEXIS 2460

Opinion

PER CURIAM

Claimant moves for an award of an attorney fee of $1,500 against SAIF. He asserts that the award is authorized under ORS 656.382(2)¹ or in the alternative under ORS 656.386. ²

This was an accepted claim. Claimant won an increased award at hearing. SAIF then appealed to the Board and succeeded in getting the award reduced. Claimant then appealed to this court which reinstated the referee’s award. In due course benefits were paid in full to claimant.

Under ORS 656.386(2) attorney fees in a case of this type are to be paid from claimant’s award of compensation. There is no authority for ordering SAIF to assume this payment. Bailey v. Morrison-Knudsen, 5 Or App 592, 485 P2d 1254 (1971), is on all fours, holding that where an employer appealed a referee’s award to the Board, and the Board reduced the award, but this court thereafter reinstated the earlier award, no attorney fees can be charged against the employer or the fund under ORS 656.382(2). Further, ORS 656.386(1) has no application here since at no time was this claim ever denied.

Petition denied.

Footnotes

1

ORS 656.382(2) provides:

"If a request for hearing, request for review or court appeal is initiated by an employer or the corporation, and the referee, board or court finds that the compensation awarded to a claimant should not be disallowed or reduced, the employer or corporation shall be required to pay to the claimant or his attorney a reasonable attorney’s fee in an amount set by the referee, board or the court for legal representation by an attorney for the claimant at the hearing, review or appeal.”

2

ORS 656.386 provides:

"(1) In all cases involving accidental injuries where a claimant prevails in an appeal to the Court of Appeals from a board order denying his claim for compensation, the court shall allow a reasonable attorney fee to the claimant’s attorney. In such rejected cases where the claimant prevails finally in a hearing before the referee or in a review by the board itself, then the referee or board shall allow a reasonable attorney fee; however, in the event a dispute arises as to the amount allowed by the referee or board, that amount may be settled as provided for in subsection (2) of ORS 656.388. Attorney fees provided for in this section shall be paid from the Industrial Accident Fund as an administrative expense when the claimant was employed by a contributing employer, and be paid by the direct responsibility employer when the claimant was employed by such an employer.”

"(2) In all other cases attorney fees shall continue to be paid from the claimant’s award of compensation except as otherwise provided in ORS 656.382.”