In the Matter of the Compensation of Danny E. Arvidson, Claimant. Danny E. ARVIDSON, Petitioner on Review, υ. LIBERTY NORTHWEST INSURANCE CORPORATION and Beall Transport Equipment, Respondents on Review.
WCB 1605828; CA A166091; SC S066746
Supreme Court of Oregon
July 16, 2020
366 Or 693; 467 P3d 741
GARRETT, J.
Argued and submitted January 15, 2020
Argued and submitted January 15; decision of Court of Appeals reversed, order of Workers’ Compensation Board reversed, and case remanded to Workers’ Compensation Board for further proceedings July 16, 2020
Claimant was awarded permanent total disability. Insurer requested a hearing before an administrative law judge (ALJ) to review the compensation award. Claimant moved to dismiss the hearing request as untimely and requested an assessed attorney fee pursuant to
The decision of the Court of Appeals is reversed. The order of the Workers’ Compensation Board is reversed, and the case is remanded to the Workers’ Compensation Board for further proceedings.
En Banc
On review from the Court of Appeals.*
Julene M. Quinn, Portland, argued the cause and filed the briefs for petitioner on review.
Christo de Villiers, Portland, argued the cause and filed the brief for respondents on review.
Theodore P. Heus, Preston Bunnell, LLP, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.
* Judicial review from a final order of the Workers’ Compensation Board. 297 Or App 192, 440 P3d 685 (2019).
GARRETT, J.
The decision of the Court of Appeals is reversed. The order of the Workers’ Compensation Board is reversed, and the case is remanded to the Workers’ Compensation Board for further proceedings.
This workers’ compensation case concerns the availability of attorney fees under
“In workers’ compensation cases, an award of attorney fees can be made only pursuant to statutory authorization.” SAIF v. Allen, 320 Or 192, 200, 881 P2d 773 (1994). One statute that authorizes attorney fees is
“If a request for hearing, request for review, appeal or cross-appeal to the Court of Appeals or petition for review to the Supreme Court is initiated by an employer or insurer, and the Administrative Law Judge, board or court finds that *** all or part of the compensation awarded by a reconsideration order issued under
ORS 656.268 should not be reduced or disallowed, the employer or insurer shall be required to pay to the attorney of the claimant a reasonable attorney fee *** for legal representation by an attorney for the claimant at and prior to the hearing ***”
This case concerns the meaning of the third statutory predicate, which this court has construed twice before. First, in James v. SAIF, 290 Or 849, 851, 626 P2d 881 (1981), the insurer sought review of a Court of Appeals decision affirming the claimant‘s compensation award. This court allowed review and remanded to the Court of Appeals with instructions to make a finding regarding the causation of the claimant‘s condition. Id. The claimant then petitioned this court for attorney fees, arguing that she was entitled to fees under
Subsequently, in SAIF v. Curry, 297 Or 504, 507, 686 P2d 363 (1984), the insurer unsuccessfully sought this court‘s review of a Court of Appeals decision affirming the board‘s determination that the claimant was permanently and totally disabled. After we denied review, the claimant petitioned for attorney fees under
Shortly after Curry, the Court of Appeals considered whether its dismissal of an insurer‘s petition for judicial review triggered the attorney fee provision. Agripac, Inc. v. Kitchel, 73 Or App 132, 134, 698 P2d 69 (1985). The Court of Appeals held that, “when an employer or insurer‘s petition for judicial review is dismissed without a finding that the compensation awarded to a claimant should not be disallowed or reduced, the claimant is not entitled to an award of attorney fees.” Id. at 135 (internal quotation marks omitted). In reaching that decision, the court
With that background in mind, we turn to the facts of this case.
II. FACTS
Claimant sustained a compensable injury to both of his shoulders. In June 2016, insurer issued a Notice of Closure, awarding claimant 91 percent unscheduled permanent partial disability. Claimant sought reconsideration of that Notice of Closure, and, in a subsequent order dated November 21, 2016, the Appellate Review Unit (ARU) of the Department of Consumer and Business Services awarded him permanent total disability.
On December 27, 2016, the board received the insurer‘s request for a hearing before an ALJ to review the ARU‘s compensation award. Claimant moved to dismiss that hearing request as untimely under
Following a hearing limited to the issue of timeliness, the ALJ issued an Order and Opinion granting claimant‘s motion to dismiss and awarding him attorney fees. First, the ALJ found that “insurer failed to request a hearing within 30 days of the date of mailing of the Order on Reconsideration,” as required by
“does not distinguish between a hearing on the merits and a dismissal based on an untimely request for hearing. The only requirements are that the insurer initiate a request [for] a hearing and that claimant‘s compensation is neither reduced nor disallowed. Since the insurer initiated a request for hearing and claimant‘s compensation has not been reduced or disallowed, I conclude that claimant is entitled to an assessed attorney fee in this case.”
Insurer then appealed to the board. The board affirmed the ALJ‘s dismissal of the hearing request, but it reversed the attorney fee award. Danny E. Arvidson, 69 Van Natta 1434 (2017). In doing so, the board relied on its reasoning in Timothy L. Williams, 46 Van Natta 2274 (1994), which, in turn, had relied on the Court of Appeals decision in Agripac, Inc., 73 Or App 132. See Williams, 46 Van Natta at 2276 (Agripac, Inc. “supports the proposition that, when a request for [b]oard review is dismissed without a decision on the merits, we are without authority to award attorney fees under
The board then explained that, because the insurer‘s hearing request was dismissed as untimely, “no finding was made on the merits [of] claimant‘s compensation award[],” and claimant therefore was “not entitled to an attorney fee under
Claimant petitioned for judicial review, and the Court of Appeals affirmed without opinion. Arvidson v. Liberty Northwest Ins. Corp., 297 Or App 192, 440 P3d 685 (2019).
Claimant sought review, which we allowed.
III. DISCUSSION
As noted earlier, the dispute below concerned two issues: first, whether insurer‘s request for hearing was untimely, and second,
The parties’ arguments on review turn on the meaning of the word “finds” and on the import of Curry. Claimant and amicus curiae Oregon Trial Lawyers Association argue that the attorney fee provision applies to a dismissal on timeliness grounds. They contend that the term “finds” means “to issue a decision.” And, because nothing in
Insurer argues that the board correctly interpreted
determination of a procedural issue, not a finding about the compensation award.
A. Standard of Review
The ultimate issue is how to construe
Exact terms “impart relatively precise meaning[s],” and “[t]heir applicability in any particular case depends upon agency factfinding.” Springfield Education Assn. v. School District, 290 Or 217, 223-24, 621 P2d 547 (1980). Inexact terms “are less precise” and are “open to various interpretations,” but they “embody a complete expression of legislative meaning.” Coast Security Mortgage Corp. v. Real Estate Agency, 331 Or 348, 354, 15 P3d 29 (2000). Finally, delegative terms “express incomplete legislative meaning that the agency is authorized to complete.” Id. “The legislature may use general delegative terms because it cannot foresee all the situations to which the legislation is to be applied and deems it operationally preferable to give to an agency the authority, responsibility and discretion for refining and executing generally expressed legislative policy.” Springfield Education Assn., 290 Or at 228. Thus, we will review an agency‘s construction of a delegative term deferentially “as long as the agency‘s determination remains within the range of discretion allowed by the general policy of the statute.” See OR-OSHA v. CBI Services, Inc., 356 Or 577, 591, 341 P3d 701 (2014) (illustrating rule) (internal quotation marks omitted).
“Whether legislation is exact, inexact, or delegative is itself a question of statutory construction, requiring us to examine the text of the statute in its context.” Muliro, 359 Or at 742. Both parties on review proceed on the implicit assumption that the phrase “finds that *** all or part of the compensation awarded *** should not be reduced or disallowed” is an inexact term. For the reasons that follow, we agree that the phrase is an inexact term.
The phrase at issue appears within the Workers’ Compensation Law, a broad statutory scheme that governs Oregon‘s
Nonetheless, the phrase is not so precise that no interpretation is needed. Although the statute reflects a complete policy judgment that a claimant shall receive attorney fees if a reviewing body “finds” that the compensation award should not be reduced or disallowed, the meaning of “finds” in this context is not self-evident, as discussed further below. Accordingly, we conclude that the phrase is an inexact term, and we review the board‘s interpretation for consistency with legislative intent. See Springfield Education Assn., 290 Or at 227. We do that by applying the ordinary method of statutory construction. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (explaining that we discern the meaning of a statute by looking at the text, context, and any helpful legislative history).
B. The Development of ORS 656.382(2) and the Modern Workers’ Compensation System
In 1953, the Oregon Revised Statutes replaced the Oregon Compiled Laws Annotated. Walter v. Scherzinger, 339 Or 408, 417 n 8, 121 P3d 644 (2005) (so stating). As part of that conversion, the portion of
“(1) Appeals may be taken from the judgment of the circuit court as in other cases.
“(2) In case of an appeal by [SIAC] from an adverse decision of the circuit court, if the judgment of the circuit court is affirmed, the claimant shall be allowed attorneys’ fees, to be fixed by the court, in addition to the compensation.”
In 1965, as part of the “wholesale revision” of the workers’ compensation system,
“SIAC was abolished, and employers or the State Compensation Department (SCD) became responsible for the payments of benefits to injured workers. The adjudication of disputes between claimants and those responsible for payment of benefits was given in the first instance to the newly created Workers’ Compensation Board ([b]oard). *** Any party
could request review by the [b]oard itself. Thereafter, any party could appeal to [the] circuit court, and any party disappointed there could appeal to this court.”
As for
“(1) Appeals may be taken from the judgment of the circuit court, the scope of review to be the same as that of the circuit court.
“(2) In case of an appeal by the department or employer from an adverse decision of the circuit court, if the judgment of the circuit court is affirmed, the claimant shall be allowed attorneys’ fees to be fixed by the court and to be paid by the party initiating the appeal, in addition to the compensation.”
Although the 1965 revisions retained the assessed fee for appeals from the circuit court in
“If a request for hearing, request for review or court appeal is initiated by an employer or the department, and the hearing officer, board or court finds that the compensation awarded to a claimant should not be disallowed or reduced, the employer or department shall be required to pay to the claimant or his attorney a reasonable attorney‘s
fee in an amount set by the hearing officer, board or the court for legal representation by an attorney for the claimant at the hearing, review or appeal.”
Thus, as this court stated in Bracke, the situation “immediately after the 1965 revision was that a claimant who successfully defended his award upon attack by the employer or SCD was entitled to attorney fees in addition to compensation at every level of scrutiny by virtue of either
In 1969, however, the legislature created the Court of Appeals. Bracke, 294 Or at 488. That changed the judicial review process for workers’ compensation cases by giving the Court of Appeals, rather than this court, direct appellate jurisdiction of circuit court judgments. Id. “After creation of the Court of Appeals ***, cases reached [the Supreme Court] from that court only on petition for discretionary review under
Further revisions in 1977 included the repeal of
Against that backdrop, this court in Bracke considered whether a claimant could recover attorney fees for opposing a petition for review in the Supreme Court. Id. at 485. Specifically, we addressed whether the phrase “court appeal” in
The legislature responded to our decision in Bracke by amending
“If a request for hearing, request for review, appeal or cross-appeal to the Court of Appeals or petition for review to the Supreme Court is initiated by an employer or insurer, and the referee, board or court finds that the compensation
awarded to claimant should not be disallowed or reduced, the employer or insurer shall be required to pay to the claimant or the attorney of the claimant a reasonable attorney fee in an amount set by the referee, board, or the court for legal representation by an attorney for the claimant at and prior to the hearing, review on appeal or cross-appeal.”
(Emphasis added.)
C. Decision in Curry
After the 1983 amendments to
Our inquiry began by reiterating the purpose underlying
Id. at 508 (quoting 1000 Friends of Oregon, 284 Or at 44). We also relied on our reasoning in U-Cart Concrete, id. at 509, which held that a respondent to a petition for review that was denied was not a “prevailing party” for purposes of a different statute because, “[w]hen a petition for review is denied, the respondent has not prevailed on an appeal in this court. Rather, the court has chosen not to entertain an appeal.” U-Cart Concrete, 290 Or at 154 (internal quotation marks omitted).
We thus concluded that, as a matter of a “literal reading of
Shortly after Curry, the Court of Appeals considered the impact of that decision on dismissals at the Court of Appeals level. In light of Curry, the court held that, “when an employer or insurer‘s petition for judicial review is dismissed without a finding ‘that the compensation awarded to a claimant should not be disallowed or reduced,’ the claimant is not entitled to an award of attorney fees.” Agripac, Inc., 73 Or App at 135. And, in turn, the board has relied on Agripac, Inc. as support for its interpretation of
Since Curry, subsection (2) of
modified in 2015, has been extended to apply when, as in this case, an insurer initiates review of “the compensation awarded by a reconsideration order issued under
D. Statutory Construction
Insurer argues, relying on Curry, that the board correctly concluded that the word “find” in
Beginning with the statutory text, we note that
However, “find” also can have a narrower meaning in the legal context. When the legislature uses technical terminology “drawn from a specialized trade or field,” courts “look to the meaning and usage of those terms in the discipline from which the legislature borrowed them.” Comcast Corp. v. Dept. of Rev., 356 Or 282, 296, 337 P3d 768 (2014). When “a term is a legal one, we look to its established legal meaning as revealed by, for starters at least, legal dictionaries.” Id. (internal quotation marks omitted). “We do not, however, interpret statutes solely on the basis of dictionary definitions. Instead, we examine word usage in context to determine which among competing definitions is the one
that the legislature more likely intended.” Muliro, 359 Or at 746 (citation omitted).
In legal proceedings, the phrase “to find” is often, perhaps predominantly, used to refer to a specific type of determination by a tribunal: a resolution of factual disputes. See Black‘s Law Dictionary (10th ed) (defining “find” as “[t]o determine a fact in dispute by verdict or decision“); Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed 1995) (explaining the distinction between a finding and a holding, and noting that “[a] court properly makes findings of fact and holdings or conclusions of law” (emphases in original)); see also State v. Cunningham, 337 Or 528, 538, 99 P3d 271 (2004), cert den, 544 US 931 (2005) (explaining that “the trial court finds the facts that underlie the application of
In short, if one construes “finds” in
But we consider the word “finds” in context, not in isolation. And other language in the statute suggests that the legislature did not intend that “finds” have a specialized meaning limited to the resolution of factual issues.
That conclusion, however, does not fully answer the question, because, as a purely textual matter, it could still be true that the statute refers to the act of making a decision “on the merits,” i.e., applying the substantive law to the facts of the case, as opposed to resolving the case on another (procedural) ground. Textually, the word “finds” neither requires nor forecloses such a reading.
The surrounding context, however—and, specifically, our earlier decision in Bracke—is informative. See Liberty Northwest Ins. Corp., Inc. v. Watkins, 347 Or 687, 692, 227 P3d 1134 (2010) (explaining that, “[a]s part of that first level of analysis, this court considers its prior interpretations of the statute“). As early as Bracke, this court recognized that the legislature that enacted the 1965 revisions to the workers’ compensation system was concerned about insurers pursuing harassing and frivolous appeals in order to wear down a claimant and that the “answer” was
Although we did not construe the word “find” in Bracke, in addressing the meaning of “court appeal,” we concluded that “the situation [that was] obtain[ed] immediately after the 1965 revision was that a claimant who successfully defended his award upon attack by the employer or SCD was entitled to attorney fees in addition to compensation at every level of scrutiny by virtue of either
Furthermore, in light of the long-recognized purpose underlying
The text, context, history, and purpose of
the conclusion of the hearing, or prior thereto with concurrence of the parties, the Administrative Law Judge shall promptly and not later than 30 days after the hearing determine the matter and make an order in accordance with the Administrative Law Judge‘s determination.“); see also Erck v. Brown Oldsmobile, 311 Or 519, 523, 815 P2d 1251 (1991) (“The referee who presides over the hearing is required to issue an order deciding the matter within 30 days of the hearing.“). As such, an insurer‘s request for a hearing is
Nor is there any doubt that a claimant who obtains the dismissal of a hearing request on timeliness grounds has “successfully defended” the compensation award. See Bracke, 294 Or at 488. An ALJ‘s order dismissing a hearing request as untimely expresses the ALJ‘s “determination” of a “matter[] in which a worker‘s right to receive compensation, or the amount thereof, [is] directly in issue.”
In urging a different result, insurer does not make arguments specifically based on the text, context, or legislative history of
on review—and the view that the board has adopted—is that our opinion in Curry stands for the rule that a decision must be “on the merits” in order to fall within the statute. But that argument overstates Curry‘s holding.
In Curry, this court reiterated the purpose underlying
In sum, Curry does not require a different conclusion in this case than the one at which we arrive after considering the text, context, and legislative history of
IV. CONCLUSION
The decision of the Court of Appeals is reversed. The order of the Workers’ Compensation Board is reversed, and the case is remanded to the Workers’ Compensation Board for further proceedings.