SAIF Corp. v. Rapaich

881 P.2d 830, 130 Or. App. 216, 1994 Ore. App. LEXIS 1384

• Court: Court of Appeals of Oregon
• Decided: September 14, 1994
• Docket: 92-14281; CA A81722
• Status: Published

Opinions

WARREN, P. J.

SAIF seeks review of an order of the Workers’ Compensation Board that awarded 54 percent permanent partial disability and awarded an out-of-compensation attorney fee. We affirm.

Claimant injured his finger at work. The claim was closed and a determination order awarded scheduled permanent partial disability (PPD). SAIF paid the full award to claimant. On reconsideration, the Department of Insurance and Finance reduced the award to 47 percent. Claimant requested a hearing on the reconsideration order. The Board ordered an increase in claimant’s award to 54 percent. The order also provided for an attorney fee of 25 percent of the increased compensation, pursuant to ORS 656.386(2).

SAIF seeks review of the Board’s order. Its assignment is that “[t]he Board erred in ordering SAIF to pay an out-of-compensation attorney fee in addition to the PPD award already paid in full to claimant.” The order provided, in part:

“1. Claimant’s award of scheduled permanent partial disability is * * * 54 percent loss of the left index.

“2. Claimant’s agreement with his attorney is approved for payment of a fee of 25 percent of the increased compensation payable under this order.”

On its face, the order approves only an out-of-compensation attorney fee.¹ It does not provide for an attorney fee in addition to compensation to be paid by SAIF. Given those circumstances, SAIF’s assignment of error presents nothing for us to review.²

Affirmed.

1 Paragraph 5 of the Board’s order provides:

“SAIF Corporation shall pay to claimant’s attorney * * * an out-of-compensation fee equal to 25 percent of the increased time loss benefits pursuant to this order.”

That part of the order requires SAIF to pay an out-of-compensation fee to be paid from time loss benefits. It is not the subject of the assignment of error.

2 If SAIF means to argue that OAR 438-15-085 may prevent it from recouping any amount that it is required to pay in addition to compensation, that issue is premature and we need not address it. SAIF has not been ordered to pay attorney fees in addition to compensation, therefore, any potential recoupment of an overpayment is not before us at this time. Further, it is not at all clear whether SAIF will be ordered to pay the attorney fee in addition to the compensation that it has paid. In SAIF v. O’Neal, 45 Van Natta 2081 (1993), which is pending review in this court (CA A81987), the employer was ordered to pay the attorney fee in addition to the compensation already paid. However, in Jane A Volk, 46 Van Natta 681 (1994), also pending review in this court (CA A84509), the Board established a procedure by which a claimant’s attorney could seek recovery of the fee directly from the claimant when the employer had already paid the entire award before being ordered to pay an out-of-compensation attorney fee. The Board distinguished the situation, such as in SAIF v. O’Neal, supra, where the employer had bypassed the claimant’s attorney and paid disputed compensation directly to the claimant, thereby depriving the attorney of the opportunity to collect the fee directly from the employer. In light of the Board’s distinction based on the facts of the particular case, and because the order before us does not address the question of how the fee will be paid in this case, we will not address arguments about that issue on this review.