SAIF Corp. v. Wart

87 P.3d 1138, 192 Or. App. 505, 2004 Ore. App. LEXIS 312
CourtCourt of Appeals of Oregon
DecidedMarch 24, 2004
Docket01-00776; A116265
StatusPublished
Cited by12 cases

This text of 87 P.3d 1138 (SAIF Corp. v. Wart) 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
SAIF Corp. v. Wart, 87 P.3d 1138, 192 Or. App. 505, 2004 Ore. App. LEXIS 312 (Or. Ct. App. 2004).

Opinions

[507]*507DEITS, C. J.

SAIF Corporation (SAIF) and P & A Metal Fab, Inc., seek judicial review of a Workers’ Compensation Board (board) order that awarded claimant attorney fees under ORS 656.386(1) for prevailing over a noncooperation denial— that is, a denial pursuant to former ORS 656.262(15) (2001), renumbered as ORS 656.262(14) (2003).1 On review, SAIF asserts that claimant was not entitled to attorney fees under ORS 656.386(1) and that, even if claimant is entitled to fees, the board’s explanation for its $1,200 award is inadequate for judicial review. We review claimant’s entitlement to attorney fees for errors of law and the board’s award of fees for abuse of discretion, ORS 656.298(7); ORS 183.482(8), and affirm.

In November 2000, claimant apparently injured his back at work and filed a workers’ compensation claim. Thereafter, SAIF, claimant’s employer’s insurer, requested that the Director of the Department of Consumer and Business Services suspend claimant’s compensation because he had not scheduled an interview with SAIF. On January 2, 2001, the director issued a notice of suspension, and, on January 12, the director issued the order suspending claimant’s compensation pursuant to ORS 656.262(15). Thereafter, in January, claimant requested a hearing. On February 1, before the expiration of the 30-day time period provided for in ORS 656.262(15), SAIF denied claimant’s claim. Its letter to claimant stated, in part:

‘You failed to cooperate with our investigation of your claim. Pursuant to ORS 656.262(15), OAR 436-060-0135 [508]*508and the January 12, 2001 Order suspending compensation, we deny your claim. This is not a denial on the merits.”2

(Emphasis added.)

The administrative law judge (ALJ) upheld the order suspending claimant’s compensation but set aside the denial because it was premature under ORS 656.262(15). As noted above, that statute provides that, “[i]f the worker does not cooperate for an additional 30 days after the notice, the insurer or self-insured employer may deny the claim because of the worker’s failure to cooperate.” Here, the insurer issued its denial too soon. The ALJ also reasoned that claimant was entitled to attorney fees under ORS 656.386(1), but set the amount of the award at zero. On appeal to the board, the only issues concerned attorney fees. In its October 5, 2001, order, the board concluded that claimant was entitled to attorney fees under ORS 656.386(1) and set the amount of the award at $500.

Claimant requested reconsideration, arguing that the amount of the award should be increased to “at least $1,500.”3 In his letter to the board, claimant’s attorney asserted that (1) generally, the minimum fee for prevailing over a denial is $2,500; (2) “[t]he amount of work trying this denial was essentially the amount of work that goes into any [509]*509denial”; (3) this case was unique and fairly complex and “required a strong grasp of workers [’] compensation law”; (4) he and claimant’s trial counsel were experienced; (5) he and trial counsel had prehearing discussions concerning the case; and (6) “[i]t is now impossible to do the amount of work that we did on this case with the level of expertise provided, accept such a fee, and hope to keep the doors open.” The record does not contain a statement of services from claimant’s attorney that indicates the number of hours spent working on the case and the hourly rate of the attorneys involved.

In its response to the board, SAIF asserted that, even though it was not conceding that claimant was entitled to attorney fees, the $500 award was reasonable. SAIF argued that the $500 award was reasonable, because claimant’s attorney “present [ed] no evidence regarding the time spent only on the denial issue.” Citing to various portions of the administrative record, SAIF contends that it is unlikely that claimant’s attorney spent any time on the denial issue and that, because the ALJ applied the law on his own to determine that the denial was premature and claimant’s attorney did not raise the premature denial issue, the fee should be minimal. Finally, in its response, SAIF indicated that the issue on which claimant prevailed was not complex and that, based on the other factors that the board must consider, there should be no increase in the $500 award.

In its order on reconsideration, the board said, “[A]s modified herein, we adhere to and republish the Board’s October 5, 2001 [,] order.” In the order on reconsideration, the board also awarded claimant $1,200 in attorney fees. The board explained its reasons for the award:

“On reconsideration, based on the following reasoning, we find that $1,200 is a reasonable attorney fee under the facts of this case. The ‘non-cooperation’ denial issue was of average complexity. Although claimant did not prevail over the Department’s suspension order, he did prevail over the ‘non-cooperation’ denial; therefore, he is entitled to a reasonable fee for prevailing over the denial. Furthermore, although the ALJ set aside SAIF’s ‘non-cooperation’ denial based on a theory not raised by claimant, claimant advocated that the ‘non-cooperation’ denial was void. By appealing the denial and advocating that it was void, claimant’s [510]*510attorney’s efforts ultimately resulted in the denial being set aside.
“The nature of the proceeding, a hearing before an ALJ, is common under workers’ compensation law. The hearing record consisted of ten exhibits, two of which were submitted by claimant. The hearing transcript was 57 pages long, with three witnesses testifying — claimant and his mother testified on claimant’s behalf and SAIF’s claims adjuster testified on SAIF’s behalf. The value of the interest involved and the benefit secured is average.
“The attorneys on both sides are skilled. Based on SAIF’s challenge to the claim, there was a risk that the attorney’s efforts may go uncompensated. Finally, no frivolous issues or defenses were asserted.
“After considering these factors, we conclude that a reasonable fee for claimant’s attorney’s services at hearing regarding the ‘non-cooperation’ denial is $1,200, payable by SAIF.

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SAIF Corp. v. Wart
87 P.3d 1138 (Court of Appeals of Oregon, 2004)

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Bluebook (online)
87 P.3d 1138, 192 Or. App. 505, 2004 Ore. App. LEXIS 312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saif-corp-v-wart-orctapp-2004.