SAIF Corp. v. Allen

861 P.2d 1018, 124 Or. App. 183, 1993 Ore. App. LEXIS 1748

• Court: Court of Appeals of Oregon
• Decided: October 20, 1993
• Docket: 91-09837; CA A76538
• Status: Published

Opinions

LEESON, J.

SAIF and Rose’s Restaurant seek review of an order of the Workers’ Compensation Board determining that claimant is entitled to attorney fees under ORS 656.386(1) for having prevailed on the question of entitlement to compensation for medical bills related to a compensable claim. We conclude that the Board erred in assessing attorney fees, and reverse in part.

Claimant sustained a compensable back injury in 1988 while working as a waitress for Nendel’s. In 1989, she sustained another back injury while working for Rose’s Restaurant, SAIF’s insured. The insurers agreed that the injury was compensable, and in August, 1990, SAIF was assigned responsibility for claimant’s upper back and cervical conditions. It paid some medical bills, but did not pay others until after claimant had requested a hearing regarding the nonpayment. At the hearing, the parties agreed that SAIF had paid the bills late and that claimant was entitled to a penalty under ORS 656.262(10), and a related attorney fee under ORS 656.382(1). The Board, in affirming the referee, also awarded attorney fees under ORS 656.386(1) on the basis of its conclusion that claimant’s attorney had been “instrumental in obtaining compensation” for claimant.

The only issue is whether claimant was entitled to attorney fees under ORS 656.386(1), which provides:

“In all cases involving accidental injuries where a claimant finally prevails in an appeal to the Court of Appeals or petition for review to the Supreme Court from an order or decision denying the 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. If an attorney is instrumental in obtaining compensation for a claimant and a hearing by the referee is not held, a reasonable attorney fee shall be allowed. Attorney fees provided for in this section shall be paid by the insurer or self-insured employer.” (Emphasis supplied.)

A claimant is entitled to attorney fees under ORS 656.386(1) only in an appeal ‘ ‘from an order or decision denying the claim for compensation.” Shoulders v. SAIF, 300 Or 606, 611, 716 (1986); O’Neal v. Tewell, 119 Or App 329, 850 P2d 1144 (1993). Here, the compensability of claimant’s injury was never disputed. She sought a hearing regarding nonpayment of some medical bills. The Supreme Court has held that “[w]here the only compensation issue on appeal is the amount of compensation or the extent of disability, rather than whether the claimant’s condition was caused by an industrial injury, ORS 656.386(1) is not the applicable attorney fee statute * * Short v. SAIF, 305 Or 541, 545, 754 P2d 575 (1988). Because the compensability of claimant’s injuries was not at issue in the hearing, her attorney was not entitled to an award of fees under ORS 656.386(1).

The unsettled question of statutory construction raised by this case is whether the emphasized language of the statute provides an independent basis for the assessment of attorney fees. The Board appears to believe that it does. We disagree. The legislature added the emphasized language to the statute in 1991, in response to our original decision in Jones v. OSCI, 107 Or App 78, 810 P2d 1318, mod 108 Or App 230, 814 P2d 558 (1991), in which we held that, in order to recover an assessed fee under ORS 656.386(1), the claimant must have prevailed by a decision of the referee. We said that, if a matter was resolved by a stipulation of the parties or by a withdrawal of the denial, rather than by a decision of the referee, then the statute was inapplicable. Following that decision, the legislature amended the statute to specifically provide for an award of attorney fees to a claimant who prevails even if a hearing is not held, so long as the claimant’s attorney is instrumental in having the claim determined to be compensable. The added language, read in the context of the statute, does not provide an independent basis for an award of attorney fees apart from the other requirements of the statute. It merely establishes that attorney fees may be assessed if a hearing is not held. The claimant must otherwise be entitled to them under the provisions of the statute and the cases interpreting it.

The Board erred in assessing attorney fees under ORS 656.386(1) in this case, because the subject of the hearing was not the compensability of claimant’s injuries. The hearing involved a dispute about payment of medical bills.

Reversed as to assessment of attorney fees under ORS 656.386(1); otherwise affirmed.