RICHARDSON, P. J.
Claimant appeals from a “third party distribution order” of the Workers’ Compensation Board, requiring claimant to pay to SAIF part of the settlement proceeds that he received from the tortfeasor for an injury for which SAIF has paid him workers’ compensation benefits. The board and SAIF contend that this court lacks jurisdiction over the appeal.
We conclude that we have jurisdiction, and we affirm in part and reverse in part.
In July, 1978, claimant was injured in a highway collision while in the course of his employment as a truck driver. He filed a workers’ compensation claim with SAIF and also brought a tort action against the driver of the other vehicle.
See
ORS 656.576
et seq.
The claim was partially denied by SAIF, and claimant requested a hearing. In late 1979, claimant settled the action against the tortfeasor for $57,500, and on December 31, 1979, he tendered $16,582.89 to SAIF pursuant to ORS 656.593.
The
parties appear to agree that that amount was equal to SAIF’s recoverable costs under the statute as of the date of tender.
But see
n 5,
infra.
In January, 1980, SAIF approved the settlement and demanded that an additional amount from the settlement be forwarded to it “to be placed in the Advance Refund Account until the pending Hearing [on the claim] is concluded and all costs are known and paid.” In April, 1980, the referee found generally in claimant’s favor on his appeal from the partial denial of his claim. The incremental benefits to claimant from the referee’s disposition, together with medical expenses SAIF paid after the tort action was settled, equalled $4,849.55. The referee also awarded claimant an attorney fee of $1,000, to be paid by SAIF, for prevailing in the hearing on SAIF’s partial denial of the claim. The referee’s order was affirmed by the board and was not appealed farther.
The parties did not reach agreement on the allocation of the tort action settlement, and on March 18, 1981, SAIF requested that the board resolve the dispute. SAIF contended that it was entitled to a distribution to offset (1) the $4,849.55 it had expended or incurred for compensation or benefits since receiving claimant’s payment; (2) the $1,000 attorney fee awarded claimant by the referee; and (3) $5,000 “as an estimate of future anticipated costs.” The board ordered claimant to distribute $5,849.55 to SAIF but it concluded that SAIF had not proved its claim for $5,000 for anticipated future costs. Claimant contends on appeal that the board erred by ordering the distribution of $5,849.55 to SAIF.
The board argues that this court has no jurisdiction to consider the appeal because, under ORS 656.704,
orders of the board “other than those, concerning a claim” are subject to the review provisions in the Administrative Procedures Act (ORS 183.310 to 183.500) rather than those in the Workers’ Compensation Law. According to the board, third party distribution proceedings are not matters “concerning a claim” because they are not “matters in which a
worker’s right to receive compensation, or the amount thereof, are directly in issue.” ORS 656.704(3). The board contends further that third party distribution proceedings are not subject to the contested case provisions of the Administrative Procedures Act and, accordingly, that they are initially reviewable by the circuit court rather than this court.
See
ORS 183.480 to 183.484. Claimant argues that judicial review of
all
board orders under ORS chapter 656 is controlled by ORS 656.298(1), which provides in part:
“Any party affected by an order of the board may within the time limit specified in ORS 656.295, request judicial review of the order with the Court of Appeals.”
It is not certain, in our view, that ORS 656.704 has any relevance to judicial review of
board
orders; the principal subject of the statute appears to be the conduct and review of proceedings of the Director of the Workers’ Compensation Department.
The only relevance the statute seems to have to board proceedings is its allocation of authority to conduct hearings, investigations and other proceedings between the board and the director, with claim-related matters as the basic dividing line. However, we need not decide here whether ORS 656.704 has any application to judicial review of board orders, because we conclude that the board’s authority under ORS 656.593(1)(d) to resolve “[a]ny conflict as to the amount of the balance [of a
third-party recovery] which may be retained by the paying agency” pertains to a matter “concerning a claim” and is therefore reviewable under ORS 656.298.
See also
ORS 656.593(3) and n 5,
infra.
We do not agree with the board’s narrow reading of the phrases “concerning a claim” and “matters in which a worker’s right to receive compensation, or the amount thereof, are directly in issue” used in ORS 656.704. The paying agency’s right to distribution of third party recoveries under ORS 656.593 arises out of its responsibility for compensation, and the amount distributed is ascertained in part by the amount of compensation. Proceedings under ORS 656.593
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RICHARDSON, P. J.
Claimant appeals from a “third party distribution order” of the Workers’ Compensation Board, requiring claimant to pay to SAIF part of the settlement proceeds that he received from the tortfeasor for an injury for which SAIF has paid him workers’ compensation benefits. The board and SAIF contend that this court lacks jurisdiction over the appeal.
We conclude that we have jurisdiction, and we affirm in part and reverse in part.
In July, 1978, claimant was injured in a highway collision while in the course of his employment as a truck driver. He filed a workers’ compensation claim with SAIF and also brought a tort action against the driver of the other vehicle.
See
ORS 656.576
et seq.
The claim was partially denied by SAIF, and claimant requested a hearing. In late 1979, claimant settled the action against the tortfeasor for $57,500, and on December 31, 1979, he tendered $16,582.89 to SAIF pursuant to ORS 656.593.
The
parties appear to agree that that amount was equal to SAIF’s recoverable costs under the statute as of the date of tender.
But see
n 5,
infra.
In January, 1980, SAIF approved the settlement and demanded that an additional amount from the settlement be forwarded to it “to be placed in the Advance Refund Account until the pending Hearing [on the claim] is concluded and all costs are known and paid.” In April, 1980, the referee found generally in claimant’s favor on his appeal from the partial denial of his claim. The incremental benefits to claimant from the referee’s disposition, together with medical expenses SAIF paid after the tort action was settled, equalled $4,849.55. The referee also awarded claimant an attorney fee of $1,000, to be paid by SAIF, for prevailing in the hearing on SAIF’s partial denial of the claim. The referee’s order was affirmed by the board and was not appealed farther.
The parties did not reach agreement on the allocation of the tort action settlement, and on March 18, 1981, SAIF requested that the board resolve the dispute. SAIF contended that it was entitled to a distribution to offset (1) the $4,849.55 it had expended or incurred for compensation or benefits since receiving claimant’s payment; (2) the $1,000 attorney fee awarded claimant by the referee; and (3) $5,000 “as an estimate of future anticipated costs.” The board ordered claimant to distribute $5,849.55 to SAIF but it concluded that SAIF had not proved its claim for $5,000 for anticipated future costs. Claimant contends on appeal that the board erred by ordering the distribution of $5,849.55 to SAIF.
The board argues that this court has no jurisdiction to consider the appeal because, under ORS 656.704,
orders of the board “other than those, concerning a claim” are subject to the review provisions in the Administrative Procedures Act (ORS 183.310 to 183.500) rather than those in the Workers’ Compensation Law. According to the board, third party distribution proceedings are not matters “concerning a claim” because they are not “matters in which a
worker’s right to receive compensation, or the amount thereof, are directly in issue.” ORS 656.704(3). The board contends further that third party distribution proceedings are not subject to the contested case provisions of the Administrative Procedures Act and, accordingly, that they are initially reviewable by the circuit court rather than this court.
See
ORS 183.480 to 183.484. Claimant argues that judicial review of
all
board orders under ORS chapter 656 is controlled by ORS 656.298(1), which provides in part:
“Any party affected by an order of the board may within the time limit specified in ORS 656.295, request judicial review of the order with the Court of Appeals.”
It is not certain, in our view, that ORS 656.704 has any relevance to judicial review of
board
orders; the principal subject of the statute appears to be the conduct and review of proceedings of the Director of the Workers’ Compensation Department.
The only relevance the statute seems to have to board proceedings is its allocation of authority to conduct hearings, investigations and other proceedings between the board and the director, with claim-related matters as the basic dividing line. However, we need not decide here whether ORS 656.704 has any application to judicial review of board orders, because we conclude that the board’s authority under ORS 656.593(1)(d) to resolve “[a]ny conflict as to the amount of the balance [of a
third-party recovery] which may be retained by the paying agency” pertains to a matter “concerning a claim” and is therefore reviewable under ORS 656.298.
See also
ORS 656.593(3) and n 5,
infra.
We do not agree with the board’s narrow reading of the phrases “concerning a claim” and “matters in which a worker’s right to receive compensation, or the amount thereof, are directly in issue” used in ORS 656.704. The paying agency’s right to distribution of third party recoveries under ORS 656.593 arises out of its responsibility for compensation, and the amount distributed is ascertained in part by the amount of compensation. Proceedings under ORS 656.593 are somewhat analogous to proceedings under ORS 656.307, where the sole issue
can
be which of two employers or insurers is responsible for coverage of a claim acknowledged to be compensable. The parties to an ORS 656.307 proceeding, including the claimant, have appeal rights under ORS 656.298.
See SAIF v. Broadway Cab Co.,
52 Or App 689, 693, n 2, 629 P2d 829,
rev den
291 Or 662 (1981). For present purposes, the principal difference between ORS 656.307 and 656.593 is that under the former there is an adjudication of the claim itself, while distribution under the latter is — or can be — decided independently of the claim. It nevertheless seems clear that third-party distribution orders directly affect the amount of compensation payable to a claimant by the entity responsible for payment under the Workers’ Compensation Law. We do not think the legislature intended to create as fine a distinction as the board finds in ORS 656.704, or to create the kind of jurisdictional confusion which would result from the board’s interpretation. We hold that we have jurisdiction, and we turn to the merits.
Claimant argues that SAIF is not entitled to distribution of the compensation or medical expenses incurred after the settlement of the third-party action. He contends that SAIF was required to make a claim
at the time of the settlement
“for the present value of its reasonably to be expected future expenditures for compensation,” ORS 656.593(11(c),
and, having failed to do so, could not recover
the compensation and benefits that actually accrued or were paid between the time of the settlement and the time of distribution. Claimant also states:
“* * * ORS 656.593 sets forth the statutory procedure by which distribution of proceeds of third party actions occurs. The statute contemplates calculation of SAIF’s interest at the time recovery comes about, be it by settlement or judgment. Otherwise, particularly in that [sic] case of settlements, the entire policy of orderly and fair distribution is defeated. Counsel representing an injured worker must, as any lawyer representing a client in a civil action, exercise judgment, and balance the value of the case, and the chances for success upon trial, against the certainties of a settlement. If SAIF is permitted to come back — after a settlement is effected — and claim more money than previously claimed, the ‘certainty’ factor involved in settlement of claims becomes mythical. Counsel is unable to intelligently inform his or her client of the
actual,
rather than potential in-pocket gain from the settlement. The policy of this state has long been to favor settlement, and it must be presumed the legislature intended, by the passage of ORS 656.593, to enhance that policy, not hinder it. Thus, SAIF’s statutory entitlement in this case must be looked upon as arising at the time the settlement was approved by SAIF.” (Emphasis claimant’s.)
Claimant misperceives the purpose of ORS 656.593. It has nothing to do with the policy of encouraging settlements. Indeed the Workers’ Compensation Law’s provisions governing distribution of third-party recoveries prohibit compromise or settlement of actions by the claimant unless the paying agency consents. ORS 656.587, 656.593(3). The statutes are also not aimed at maximizing recovery by claimants in third party actions. Their objective is to allocate
whatever
the claimant recovers between him and the paying agency and to provide reimbursement to those responsible for statutory compensation of injured workers when damages or settlements are obtained against the persons whose acts caused the injuries. We therefore find the policy reasons claimant offers in support of his argument unpersuasive.
We are also unconvinced by his interpretation of the statutory language. We do not believe the paying agency must make a claim “for the present value of its reasonably to be expected future expenditures for compensation” at the time of the third party recovery. We construe that language of ORS 656.593(1)(c) to refer to compensation and expenditures anticipated at the time the third-party recovery is distributed by agreement of the parties or ordered distributed by the board. Given the objectives of the statute, we discern no reason why compensation or other benefits
actually
paid or incurred between the time of judgment or settlement and the time of distribution should be treated as “expected
future
expenditures.” (Emphasis supplied.)
The board did not err in ordering distribution to SAIF of the compensation awarded claimant and the medical expenses paid on his behalf by SAIF after the settlement of the third party action. However, we agree with claimant that SAIF is not entitled to a distribution to offset the fee it was required to pay claimant’s attorney. In reaching the opposite conclusion, the board stated:
“The first part of [ORS 656.593(1)(c)], down to the term ‘hospital service,’ says that SAIF is entitled to reimbursement for ‘its expenditures for compensation.’ Were this all there was to the statute, the question would be whether carrier-paid attorney fees are a form of compensation. See ORS 656.005(9). However, the balance of the statute refers to a present reserve for ‘future expenditures for compensation
and other costs
of the worker’s claim under ORS 656.001 to 656.794.’ (Emphasis added.) Carrier-paid attorney fees are obviously an ‘other cost’ of the worker’s claim under ORS Chapter 656. We cannot imagine the legislature intending that a carrier in this situation could maintain a reserve for
future
carrier-paid attorney fees but not qualify for reimbursement for previously-paid attorney fees. We, therefore, conclude that SAIF is entitled to reimbursement for the $1,000 in attorney fees it paid to claimant’s attorney.” (Emphasis in original.)
Although the question is close, we conclude that attorney fees a claimant recovers against an insurer after prevailing in a hearing on the insurer’s denial of a claim are not recoverable by the insurer as an “other cost” of the claim under ORS 656.593(1)(c). We do not believe the legislature intended that the coincidence of a third-party
recovery should relieve the insurer from paying attorney fees awarded to the claimant for prevailing in a hearing on a denied claim.
The portion of the order directing distribution to SAIF of the $1,000 attorney fee awarded claimant in the claim proceeding is reversed; the order is affirmed in all other respects.