Saif Corp. v. Calles

907 P.2d 1136, 138 Or. App. 269, 1995 Ore. App. LEXIS 1692

• Court: Court of Appeals of Oregon
• Decided: December 13, 1995
• Docket: 93-07622; CA A86199
• Status: Published

Opinion

LEESON, J.

Employer and SAIF seek review of an order of the Workers’ Compensation Board awarding claimant attorney fees pursuant to ORS 656.382(1) for employer’s unreasonable resistance to the payment of compensation through the issuance of a premature notice of ineligibility for vocational assistance. Because of the legislature’s amendment of the pertinent statutes, we conclude that the case must be remanded to the Board for further proceedings.

ORS 656.382(1) was amended by Oregon Laws 1995, chapter 332, section 42b. As amended, the statute expressly excludes from the Board’s authority the power to award attorney fees under that section in a case involving a dispute over vocational assistance benefits heard by the director. In a separate provision, section 42(d)(5), the legislature provided:

“Notwithstanding any other provision in ORS 656.382 or 656.386, an Administrative Law Judge or the Workers’ Compensation Board may not award penalties or attorney fees for matters arising under the review jurisdiction of the director.”

Under section 50 of the bill, ORS 656.704(3) was amended to provide that disputes arising under ORS 656.340, regarding vocational benefits, are within the exclusive jurisdiction of the director. As we held in Volk v. American West Airlines, 135 Or App 565, 899 P2d 746 (1995), the amendments are applicable to all cases pending in litigation or on appeal. Accordingly, we reverse and remand this case to the Board for reconsideration in the light of the amendments.

Reversed and remanded.