*1 16, 1979, November Argued and submitted April remanded reversed ADAMS, Respondent, v. GROUP, INSURANCE TRANSAMERICA Respondent, WHITT, Appellant. 14373) 109639, CA No.

609 P2d 834 *2 Richard T. Kropp, Albany, argued the cause for On the brief were J. appellant. Kryger David and Emmons, Kyle, Kropp Kryger, & Albany. Jensen, K.

Gary Eugene, argued the cause and filed the brief for Adams. respondent Justice, Portland, argued

Samuel C. the cause for respondent Transamerica Insurance On the Group. Kester, brief H. Gidley Cosgrave, were James Crowe, Gidley Lagesen, & Portland. Buttler, Presiding

Before and Gillette and Judge, Roberts, Tongue, Pro Judges, Judge Tempore. BUTTLER, P. J.

[770-a] *4 [770-b] BUTTLER, P. J. behalf, seeks his own on action, attorney,

In a under the parties of declaring rights judgment $27,500 of a a settlement approving referee’s order aof compensability over dispute fide "bona purported 656.289(4) of the Work under ORS a worker by claim” that the alleged complaint Act. The ers’ Compensa by made the Workers’ motion” order "own with settlement, together aside the setting Board tion referee, prohibited release as a by the its approval for a determi was prayer void. The 656.2361 was ORS was valid. the settlement nation Mr. defendant parties named as The complaint by plain- worker, represented who had been Whitt, the refer- before attorney proceedings tiff as his the insurance Group, ee, Insurance and Transamerica that paid employer former for the worker’s company of after $27,500 approval and his client referee. by the the settlement of allegations filed Whitt denied The answer It also dismissed. and asked that it be complaint the settlement affirmative defenses that alleged as which was 656.236 a release ORS prohibited attorney’s that the by the Board and set aside properly $6,875 charged by plaintiff fees in the sum of exceeded $27,500 settlement by him from received rules of $4,000 under the of permitted the maximum regard aside without should be "set the Board and of Trans- The answer of the claim.” the remainder the settlement validity of america admitted 656.236(1) provides: ORS rights beneficiary any under ORS of a worker or his "No release is valid.” 656.001 to 656.794 656.289(4) provides: ORS 656.236, "Notwithstanding there is a bona case where claim, may, parties compensability with dispute over

fide court, referee, by agreement make such approval the board or the disposition reasonable.” the claim as is considered *5 asked it that be approved. By counterclaim cross- $27,500 it complaint, asked for return of the paid if plaintiff Whitt the settlement held to be were invalid.

Plaintiff’s denied the reply affirmative defenses of defendant Whitt and also alleged that he had breached the settlement by demanding repayment of $6,750 fees, attorney’s the and prayed judgment for against defendant Whitt in that amount. court,

The after entered a hearing testimony, decree which "declared null and the Board’s void” referee, order aside the setting order of the and held a referee the settlement as properly approved a "settlement of bona fide on the dispute compensabili ty of William R. Whitt’s workers’ claim compensation 656.289(4)]” [under ORS and "was not a release under ORS 656.236.” The decree also determined order of the Board was void the Board "did not because 656.289(3),” act within the time framework of ORS and "did not notify parties right hearing of a tó a 656.278(3)” under ORS and "did under its proceed own rules in acting Board on its own motion.”2 addition, $4,000

In decree awarded attorney’s fees for relating proceedings services to the 656.289(3) provides: OES unless, days "The order is final the date on which a within 30 after copy parties, parties requests is mailed a to the one of the party requests review the board under ORS 656.295. When one board, parties the other have the remain- review or shall 30-day days period der of the and in in which to no case less than request 10-day requirement board review in the same manner. The may carry period requests of time for for board reviews allowed

beyond day. explaining The the 30th order shall contain a statement rights parties under this subsection and ORS 656.295.” 656.278(3) provides: right hearing, appeal no or on "The claimant has to a review motion, except order or award made the board on its own when or terminates medical order diminishes terminates former award or hearing hospital employer may request on an order or care. The grants hospital care which increases the award or additional medical or to the claimant.” (in conformity with of the settlement approval Board), held that it was "with regulations by but the matter of the additional out over $2,875 Defend attorney’s by” plaintiff.3 fees received ant Whitt appeals. outset, of this posture

At the we note the unusual case as it. The purpose plaintiff’s complaint we view authority is to declare that the Board acted without because the referee’s order became final after having of 30 from its expiration days entry, appeal *6 filed, 656.289(3), been and the Board was not ORS authorized to act on its own motion because the five year the claimant could file an period during which aggravation claim under had not ex- ORS 656.273 656.278(2).) pired. ORS 0See

We need not decide whether the Board had authori ty by to act4 because the fact is that the Board did so (ORS 656.278(1)) entering an order on its own motion court, and there appeal was from that order to which is the exclusive from Board appellate tribunal orders. ORS 656.298. The Board sent notices to written (that all is, claimant, of the its parties employer, insurer) them, and also to including counsel for all of them of plaintiff, advising its concern that the settle ment was a release and of its to prohibited intention settlement; it review briefs on the issues requested presented. None was submitted. The Board’s order set 3 appears petition by plaintiff It from the record that the submitted to requesting approval $27,500 state, the referee of the settlement did percentage, attorney payable plaintiff. either amount or fees It to appears plaintiff’s agreed also that contention that defendant Whitt had to attorney $6,875, percent, upon cashing an fee of 25 or was based his of the $20,625 plaintiff check in the sum of as delivered to him after approval of the settlement the referee. 656.278(1) note, however, give purports We that ORS to the Board powers continuing jurisdiction broad under its and over orders awards. (2) authority language Whether the of subsection is intended to limit that hearing right provision or is intended to avoid the no to a of subsection we need not here. decide

aside the settlement5 to the of the contrary desire insurer. The insurer could requested hearing, have have, did not do As an aggrieved but so. could party, final, did not and that order appeal, but became ORS 656.295(8), as to it and other parties. 656.005(22), was not a plaintiff party,

Because appealed he could not have the Board order. Theoreti- then, is the cally, plaintiff only one of parties might be proceeding challenge who able in as this. independent proceeding Board order such However, plaintiff attorney was defendant of the negotiating obtaining approval Whitt agreement question settlement with respect After agree- workers’ claim. compensation Whitt’s executed, thoughts ment was Whitt had second settlement was void as agreement contended 656.236(1) and, own, on his by ORS prohibited release the Board to set it aside. After the Board deter- asked as agreement mined that settlement void release, suit, the commenced this plaintiff prohibited Whitt, client, thrust of which is to his former require abide the settlement alleged his entitlement to attor- may retain dispute "compensability,” over The record is clear that was not *7 established, previously dispute over had been but was a the extent which of present disability the in medical Mr. Whitt’s as result of a difference being Whitt, opinions opinion found —one doctor’s that Mr. who had been (PTD) 1974, totally "capable permanently of and disabled in now to be physically performing opinion nature,” sedentary while another doctor’s work of a Compensation v. was that Mr. Whitt was still PTD. See Schulz 211, 215, (1968); Department, 448 P2d Seeber v. Marlette 252 Or 551 cf. SAIF, Inc., 233, (1977); Homes, 41 Or App Greenwade v. 30 Or 566 (1979). fact, 697, 1265, In "Joint App den 288 Or the 598 P2d rev 173 Hearing Upon Fide of Bona and Order of Dismissal of Settlement Petition very agreement question, Dispute,” in recites those which constitutes the being dispute. that state the Nowhere does document facts as basis of although dispute compensability, that it is it recites that there is a "being as to 656.289(4)authorizing disposition pursuant reasonable filed agreement Although use "re- disputed does not the word claims.” of hearing, lease,” upon approval all provides its and "dismissal of the that * * * may respondent against in has or have claims which claimant * * * 12-11-74, injury resulting for of from the with claim connection thereby Oregon’s are and Law under Workers’ benefits thereafter * * precluded To amount of the settlement. upon ney fees based would be to maintain this suit permit plaintiff direct in conflict attorney to take action permit an and con- perhaps of his former client with the wishes to the sole best interests of that client trary to the attorney. advantage has inter attorney an general

As a proposition, of that of in independent est a settlement fees attorney is entitled to attorney his client.6 If those may against he an action his client for maintain However, standing he to maintain fees. does not have claim of collusion suit, in the absence insurer, fraud. such between claimant and the or No here, and, fact, are made insurer contentions In v. desires that the settlement be Jackson upheld. 798, Stearns, 84 P 5 Lns the court 48 Or held that an could not maintain attorney separate client suit to settlement between his and enjoin in a client. defendant law suit commenced However, if, to be appeared the court indicated that as case, contended in the there was complaint design collusion between the client the defendant fees, ed attorney’s right attorney to defeat had a to continue the right, upon parties, notice to his litigation necessary to the extent to collect pending fees.

We stand- recognize question plaintiff’s ordinary ing has not been raised under circum- However, be waived. view the issue stances would we involving overriding public as one an and be- policy, cause it on the face of the record we cannot appears standing hold that have ignore it. We does not Therefore, to maintain this action. the circuit court may attorney an makes a There be circumstances where settlement so, reasonably believing authority on behalf of his client that he has to do counsel; claiming opposing his and so attorney if the backs out warrants client attorney might reasonably was not so authorized the claim compelling personally if he interest settlement could be held liable is not the breach. That the case here.

[775] should have it. dismissed we and Accordingly, reverse remand to

GILLETTE, J., specially concurring. I in the concur result majority reached much opinion. However, of its I hold a different view as to some the questions discussed, and I specifically disagree part with of the position by the dissent. taken I take Accordingly, to state opportunity my sepa- rate views:

POSTURE OF THE CASE is, reality, This case from an appeal order the Workers’ are Compensation Board. Such appeals 656.298(1). governed by ORS may only They be taken by a 'party' they as "Party”, come to this court. 656.005(22), defined in ORS include plaintiff cannot here.1

With much the majority agree, but appears it then on to goes discuss the case there were as if some way here plaintiff might collaterally still attack respect, Board’s order. With I The disagree. Board’s final; analysis is be Any cannot disturbed.2 determining arrived at whether order was the Board’s correct is therefore I on beside the would not point. go plaintiff might discuss what lawsuits bring against parties.3 other 1 argument the short This is answer to the dissent’s has sought appeal any Board order to this court "nor offered why explanation he has not so.” done 2 that, suggesting It is for this reason that the dissent is incorrect because the now insurer wished to have the settlement declared valid, the court had hear this case. The insurer was a proceeding,

to the Board and is bound it. however, note, bringing plaintiff may 3 I do now foreclosed from be proceeding theory. City under other See v. Gittlesohn Cannon 247, 605 Inc., Beach, (1980); Veneers, App 44 Or Dean v.Exotic (1975). Or 531 P2d *9 A PARTY THE BOARD AS NECESSARY discuss, to to me to important It also seems be that the suggestion the briefly, however dissent’s It It was not. necessary a in this case. party Board was from its had a matter and time for appeal decided the in the had It had more interest passed. decision no have in it had decided than trial court would matter action in of a tort separately appearing the appeal had decided. Interna- reliance Pike v. Allen

The dissent’s upon seems Ltd., also tional Or the Oregon to be That held that misplaced. me to case ato Liquor necessary party Control Commission was a in the central declaratory judgment proceeding which meaning of a the issue was statute commission of an Recognition to and enforce. obliged interpret administrator to obligated interest as an en- agency’s a statute and to to promulgate pursuant force rules is a far the same cry suggesting that statute from that has some further interest after it had made agency routine quasi-judicial decision. reservations, foregoing I concur

With by result reached the majority.

TONGUE, J. for a that an declaratory judgment This is action by made Board was Compensation Workers’ not made The Workers’ Board was void. defendant. party majority may plain- The be correct in holding tiff no to The standing question had this action. bring however, does standing, go jurisdiction to the No Objections standing may to be waived. court. standing of the objection by any was made to party case, court or bring this either the trial plaintiff Also, majority, as this court. recognized have the standing insurer had also desired to validity of the settlement decided Thus, court. neither party has had an to be opportunity heard on the question which has been decided majority, sua sponte, as the in this basis its opinion case.

Also, and with all due to the I am respect majority, of the opinion has jurisdiction court decide whether standing bring had action because trial court had no validity determine that order the Workers’ Compensation Board in its as a to this absence case.

ORS 28.110 provides: declaratory

"When is sought, persons relief all *10 parties shall be made any who have or interest claim declaration, which would be by the and no affected prejudice declaration shall rights persons the parties proceeding. any to the which proceeding In validity charter, involves the municipal of a ordi- franchise, municipality nance or the affected shall be heard, made a party, and shall be and if entitled to be constitution, statute, charter, fran- ordinance or alleged unconstitutional, Attorney chise is to be General copy of the state shall be a also served with (Em- proceeding of the and be entitled to be heard.” added) phasis addition, In provides: 28.060 may

"The court declar- refuse to render or enter a atory judgment or judgment decree such or where decree, entered, if rendered or would not terminate uncertainty controversy or to the giving rise proceeding.” Mueller; Stanley, 198,

In Adm. v. 211 315 P2d Or (1957), statutory provi- 125 the court these considered (at 202): length sions at some and held mandatory "In stat- opinion our 'shall’ in this ute given ordinary should be its effect courts. We under provision think that this the courts have no authority persons to make declaration unless all 'who have claim be or interest which would proceed- parties are to by the declaration’ affected controversy’ Otherwise, 'justiciable there is no ing. meaning of the statute.” within (1960). 2d Annot. 71 ALR 723 See also reaffirmed recently Court Oregon Supreme The Ltd., Or in Pike v. Allen International this rule it is applica and held that 59-60, sought is declaratory judgment in which a ble in a case administrative invalid order a state to declare the proc to had not been made agency which eeding.1 agency is a state

The Workers’ Board affect- would be has an "interest which clearly which brought declaratory judgment ed” an action for declaring seeking decision purpose it issued authority had "no to act” when Board on addition, In has acted the Board question. in this case. controversy matter specific follows, "justici- my opinion, It that because complaint controversy” presented able Declaratory Judg- meaning of the Uniform within Act, no jurisdiction the circuit court had ments follows, in my decree in this case. It also enter its jurisdiction this court also has no opinion, had stand- determine undertake whether bring action. ing only to a case this court has

In such the pro- decide, discretion, to dismiss in its whether with *11 circuit court or to remand the case to the ceeding 1 Ltd., 287 International and authorities cited in Pike v.Allen See cases (1979), 55, 60, 3, as follows: n. 597 Or "* * * Declaratory construing in other the Uniform courts states states, 'person’ state

Judgments include Act have held the word See, e.g., Ins. Co. agencies Fire & Mar. subdivisions. St. Paul and state 814, 26, State, Res., 2d 817-18 Dept. 265 NE Nat. 25 Ohio Misc v. 156, 221, 19 Bank, (1970); City NW 2d Lincoln v. First Nat. 146 Neb 520, Co., (1945); 272 Ins. 132 Neb State v. General American 158 Life (1937). Declaratory Anderson, 555, for Actions 557-58 See also NW Cottage 349, ed., Grove § et v. Judgments, and Cabell al 2d 179 (1943).” 256, 261, al, 130 P2d 1013 et 170 Or

[779] leave to allow the party absent to be made Ltd., proceeding. Pike v. supra; Allen International Anderson, 168, § Actions for Declaratory Judgments, (1951); 2d, 325-28 pp Declaratory Judg- Am Jur (1965). ment, 80,§ pp Stanley, 943-44 See also Adm. v. Mueller, at 210. supra,

Finally, the Workers’ provides Compensation Law procedures obtaining review of orders the Work- by ers’ Board. may re- Aggrieved persons (See quest hearing 656.283), ORS or in appropriate (See appeal cases Board orders to the Court of Appeals. 656.298). ORS Plaintiff sought remedy has neither nor offered explanation why he has done so. Until appeals 1977 all from orders the Workers’ Compensation Board were courts. taken to the circuit 1977, ORS 656.298 was amended legislature substituting the Court of Appeals appellate as the Laws, § tribunal. 1977 Or ch 11. Under terms 656.298, this court jurisdic- now has exclusive over all tion from Workers’ appeals orders Compensation Board. It follows that the circuit courts have jurisdiction now no orders appeals over from Board to determine of such orders. validity reason, is a This further both the my opinion, why circuit court and this court in this jurisdiction had case.

For these reasons I opinion must dissent from an which assumes in this case.