420 P.3d 625
Or.2018Background
- Claimant's worker's comp claim for a lumbar disc was denied by insurer; ALJ upheld denial, Board reversed, and Court of Appeals affirmed the Board in claimant's favor.
- Employer filed a timely petition for review to the Oregon Supreme Court; this court denied review and the time for reconsideration has passed.
- Claimant did not file a response to the petition for review but sought attorney fees under ORS 656.386(1)(a) for counsel's time spent reviewing the petition, advising whether to respond, monitoring the matter, and for time litigating the fee petition.
- Employer argued the court lacked authority to award fees because a denial of review does not constitute "prevailing" or "finally prevailing," and also challenged the amount and rate requested.
- The court analyzed statutory text and context, prior case law on "prevailing" and finality, and concluded that denial of review constitutes the event that makes a claimant "finally prevail" for purposes of ORS 656.386(1)(a).
- The court awarded $2,200 for 3 hours responding to the petition for review and 2.5 hours for litigating the fee petition, accepting an hourly rate of $400.
Issues
| Issue | Claimant's Argument | Employer's Argument | Held |
|---|---|---|---|
| Whether ORS 656.386(1)(a) authorizes fees when this court denies a petition for review | Denial of review completes the appellate process and therefore the claimant "finally prevails"; statute authorizes fees for petitions for review | Denial of review is not a victory on the merits and thus does not constitute "prevailing" or "finally prevailing" for fee entitlement | Court held denial of review can make claimant "finally prevail" and ORS 656.386(1)(a) mandates a reasonable fee award |
| Whether claimant may recover fees for attorney time spent considering but not filing a response to the petition for review | Time spent evaluating and advising whether to respond is compensable; prudent decision not to file is reasonable representation | Fees should not be allowed for work that did not produce a filing | Court held such preparatory/time-to-decide work is compensable but may affect the amount awarded |
| Proper amount and rate for services related to the petition for review | Requested $400/hour (reduced from $425) and specified hours for review and fee litigation | Employer objected to hourly rate and number of hours | Court accepted $400/hour, awarded 3 hours for petition work and 2.5 hours for fee litigation, total $2,200 |
| Whether claimant may recover fees for time spent litigating the fee petition itself | Fees incurred in determining the amount of a fee award are recoverable | Employer disputed amount and entitlement to those hours | Court allowed 2.5 hours for litigating the fee petition, noting claimant's written submissions aided resolution |
Key Cases Cited
- Strawn v. Farmers Ins. Co., 353 Or. 210 (2013) (procedural practice re: fee petitions and when opinion is appropriate)
- SAIF v. Curry, 297 Or. 504 (1984) (court's statutory-limited authority to award appellate fees in workers' compensation)
- State ex rel. Dept. of Consumer & Bus. Servs. v. Muliro, 359 Or. 736 (2016) (statutory construction principles; ordinary meaning of terms)
- State v. Gaines, 346 Or. 160 (2009) (statutory interpretation methodology)
- U-Cart Concrete v. Farmers Ins., 290 Or. 151 (1980) (denial of review does not create an appellate judgment under certain cost statutes)
- DeYoung/Thomas v. Bd. of Parole, 332 Or. 266 (2001) (party can "prevail" via dismissal without merits decision)
- TriMet v. Aizawa, 362 Or. 1 (2017) (fees for litigating a fee award are recoverable)
- SAIF v. DeLeon, 352 Or. 130 (2012) (scope of ORS 656.386 for denied claims)
- Shoulders v. SAIF, 300 Or. 606 (1986) (construed earlier statutory wording requiring appeal initiation by claimant)
- Greenslitt v. City of Lake Oswego, 305 Or. 530 (1988) (earlier discussion of "prevails finally" at agency level)