*1 Jаnuary 16; August 2003; Argued en and submitted resubmitted banc affirmed March In Matter of the Compensation Wart, Nicholas P. Claimant.
SAIF CORPORATION Fab, P & A Inc., and Metal Petitioners, v. WART,
Nicholas P.
Respondent. 01-00776; A116265
No Judge, Deits, Edmonds, Landau, Before Chief and Armstrong, Haselton, Linder, Wollheim, Brewer, Schuman, Ortega, Judges. *2 DEITS, C. J. dissenting.
Edmonds, J.,
DEITS, C. J. (SAIF) Corporation Fab,
SAIF and P & A Metal Inc., judicial Compensation seek review of a Workers’ Board (board) order that awarded claimant fees under 656.386(1) prevailing noncooperation ORS over a denial— 656.262(15) (2001), pursuant ais, denial ORS former 656.262(14) (2003).1 renumbered as ORS review, On SAIF asserts that claimant was not entitled to fees under ORS even fees, if claimant is entitled to explanation inadequate the board’s for its $1,200 award is judicial review. We review claimant’s entitlement to fees for errors of law and the board’s award of fees for abuse 656.298(7); 183.482(8), discretion, and affirm. apparently injured November his back at work and filed a workers’ claim. There- employer’s requested after, SAIF, claimant’s insurer, Department the Director of the of Consumer and Business suspend Services claimant’s because he January had not scheduled an interview with SAIF. On *3 suspension, 2001, the director issued a notice of and, on January suspending 12, the director issued the order 656.262(15). compensation pursuant claimant’s to ORS January, requested hearing. Thereafter, in On February provided expiration 30-day period 1, before the of the time 656.262(15),
for in ORS SAIF denied claimant’s part: claim. Its letter to claimant stated, in cooperate investigation your ‘Youfailed to with our 656.262(15), claim. Pursuant to ORS OAR436-060-0135 1 656.262(15) provides, part: Former ORS reasonably “If cooperate the director finds that a worker fails to with an * *
investigation involving *, compensable injury an initial claim to establish a suspend part payment the director shall all or after cooperate days notice to the worker. If the worker does not for an additional 30 notice, employer may deny after the the insurer or self-insured the claim cooperate.” because of the worker’s failure 656.262(15) (2001) that, though We note even was former 656.262(15) 2003, opinion not amended in all references in this to ORS are to the parties’ 2001 version in order to be with consistent the record and the brief- former ing. 508 January 12,
and the 2001 Order suspending compensation, deny we your claim. This is not a denial on the merits.”2 added.) (Emphasis (ALJ)
The administrative law judge upheld order suspending claimant’s compensation but set aside the 656.262(15). denial because it was premature under ORS As above, noted that, statute provides “[i]f worker does for an cooperate additional 30 after days notice, insurer or self-insured employеr may deny claim because of the worker’s failure to Here, cooperate.” the insurer issued its too The denial soon. 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 board, to the the only issues concerned fees. attorney In its October 5, 2001, order, the board concluded that claimant was entitled to attorney 656.386(1) fees under ORS 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
(1)
asserted that
the minimum
generally,
fee for prevailing
(2)
over a denial
$2,500;
amount of work
“[t]he
this
trying
denial was essentially the amount of work into
goes
April
hearing,
At the
claimant’s
identified the issues as the
January
February
“denial orders” of
claimant had not
“if it hasn’t
12 and
1. After SAIF’s
noted that
appealed
February denial,
that,
claimant’s
stated
appealed,
appealed
argued
been
it’s
now.” SAIF’s
(ALJ)
judge
timely appealed
administrative law
and
that claimant had not
the denial
requested
expedited
because
hearing,
hearings
claimant had not
an
jurisdiction
Dubose,
642,
App
division lacked
(2000),rev’d,
under SAIF v.
166 Or
In SAIF assertеd though conceding even it was not that claimant was entitled attorney fees, award was reasonable. SAIF $500 argued that the award reasonable, was because claim- $500 attorney “present [ed] regarding ant’s no evidence the time spent only Citing portions on the denial issue.” to various unlikely record, administrative SAIF contends that it is spent that claimant’s time on the denial issue applied because the ALJ the law on his own to premature determine that the denial was and claimant’s premature did not raise the issue, denial the fee Finally, response, should be minimal. in its SAIF indicated prevailed complex that the issue on which claimant was not and that, based on the other factors that the board con- must sider, there should be no increase in the $500 award. “[A]s
In its order on reconsideration, the board said, republish herein, modified we adhere to and the Board’s October 2001 [,]order.” reconsideration, order on $1,200 board also awarded claimant fees. The explained board its reasons for the award: followingreasoning, reconsideration, “On based on the $1,200 we find that is a reasonable fee under ‘non-cooperation’ facts ofthis case. denial issue ofwas averagecomplexity.Although prevail did over Department’ssuspension prevail оrder, he did overthe ‘non-cooperation’denial; therefore, he is entitled ato prevailing Furthermore, reasonablefee for over denial. although ‘non-cooperation’ the ALJ set aside SAIF’s denial theory on a claimant, based not raised claimant advo- ‘non-cooperation’ By appeal- cated denial was void. ing advocating denial and that it was void, claimant’s *5 attorney’s ultimately being efforts resulted in the denial set aside. ALJ, hearing before an proceeding,
“The nature of compensation hearing common under workers’ law. The exhibits, ten two of which were submit- record consisted of by hearing transcript pages long, ted claimant. The was 57 and his mother testifying with three witnesses —claimant adjuster on claimant’s behalf and SAIF’s claims testified involved on SAIF’sbehalf. The value ofthe interest testified average. secured is and the benefit attorneys both sides are skilled. Based on “The on claim, a risk that the challenge to the there was SAIF’s attorney’s Finally, may go uncompensated. no frivo- efforts or defenses were asserted. lous issues factors, conclude that a considering “After these we attorney’s hearing services at reasonable fee for claimant’s regarding $1,200, by ‘non-cooperation’ payable denial is conсlusion, con- particularly this we have reaching SAIF. issue, of the interest complexity ofthe the value sidered involved, might go and the risk that claimant’s counsel uncompensated.” omitted.)
(Citations did not file with objections SAIF awarded on reconsid- the amount of the fee concerning board eration. this on review to first of error assignment
In its concluding the board erred in asserts court, SAIF 656.386(1) fees under ORS is entitled to claimant a “denied claim” as denial is not a noncooperation because 656.386(1)(b)(A). SAIF argues: defined in ORS that term is purposes not a ‘denial’ for “A denial is non-cooperation 656.386(1). meaning of A ‘denied claim’ within the of ORS that an insurer compensation is a claim for ORS express pay ‘refuses to employer or self-insured ground for which or condition otherwise does is not or is claimed non-cooper- A any compensation.’ entitlement to rise to an or otherwise deny compensability ation denial does entitled to the claimant is not assert that claimant has Rather, it a denial that the claim. his or her the claim. employer’s investigation with cooperated is set 656.262(15), denial non-cooperation if a Under ORS aside, then the claim is remanded to the insurer or self- deny insured ‘to or accept Accordingly, claim.’ non-cooperation denial is not the kind of denial contem- 656.386(1).” by plated here, 656.386(1), statute pertinent pro-
vides, in relevant part:
“(a) In all cases involving denied claims where a claim- finally ant prevails against the denial in an appeal to the Court of Appeals petition Supreme review to the Court, the court shall allow a reasonable fee to the attorney. claimant’s In such cases denied involving claims where the prevails finally in a hearing before an Administrative Judge Law or in a review the Workers’ *6 Compensation Board, then the Administrative Judge Law or board shall allow a reasonable fee. In such cases involving denied claims where an is instrumental in obtaining a rescission prior of the denial to a decision the Administrative Law Judge, a reasonable fee shall be allowed.
“(b) For purposes section, of this a ‘denied claim’ is: “(A) A claim for compensation which an insurer or self- insured the refuses to pay express ground that or condition for which is claimed is not compensable or give otherwise does not rise to an entitle- ment any compensation [.]” added.)
(Emphasis case, this SAIF unquestionably denied claimant’s claim. As above, discussed SAIF issued its denial pursuant 656.262(15). ORS that, when a provides claimant fails to for an cooperate additional 30 after the days notice of the insurer has two suspension, alternatives: it may the claim or it deny may allow the suspension of compensa- tion to remain in effect. In case, this SAIF chose to deny above, claim. As noted it stated, expressly deny your “[W]e claim.”
The critical here question denial, is whether SAIF’s which was based on claimant’s failure to is a cooperate, “denied claim” as that term has been defined in ORS 656.386(1)(b)(A). The board concluded that it was and artic ulately explained:
“[AJlthough the ‘non-cooperation’ denial also stated that it was not a merits, denial on the that statement does not take it out of the realm of a ‘denied claim’ under ORS 656.386(1)(b)(A). 656.386(1)(b)(A) quoted above, As defines a ‘denied claim’ in terms of a carrier’s pay refusal to compensation on a claim either on grounds that it is not compensable on the merits or on the grounds that it ‘other wise does not rise to an entitlement compensa tion.’ SAIF’s ‘non-cooperation’ denial falls within the latter category. words, In other by issuing the ‘non-cooperation’ denial, SAIF refusing was to pay compensation on claim ant’s back grounds claim on the that he failed to cooperate with its investigation of his claim. addition, above, “In quoted SAIF stated that was
denying claimant’s claim pursuant 656.262(15), to ORS provides which that if a worker does not coopеrate for an additional 30 days after the notice, Director’s the carrier ‘may deny the claim because of the worker’s failure coop- erate.’ The statute also provides after issuance of a ‘non-cooperation’ denial, certain requirements must be met by the worker or the worker will not be granted hearing on the shall remain merits the claim and ‘the worker’s claim injury 656.262(15). Thus, denied.’ ORS the ‘non- if cooperation’ aside', denial is not set it becomesa denial final claimant’s claim injury. factors,
“Given all of these we find that SAIF’s ‘non cooperation’ denial represented a ‘denied claim’ under ORS 656.386(1)(b)(A).Furthermore, because the ALJ found that (a the ‘non-cooperation’ denial was void decision that has review) not been contested on finally prevailed *7 against the denial at hearing. Therefore, claimant is enti tled to a reasonable assessed fee under ORS 656.386(1).” (Footnote added.) omitted; emphasis
We with the board’s agree of the stat understanding ute. For the reasons that the board SAIF’s action explained, comes within the plain of the definition of a denied 656.386(1)(b)(A).4 claim in ORS Further, because claimant succeeded in this denial overturning in a before the hearing review, argues noncooperation On SAIF also because the denial was 656.386(1). void, give pre it cannot rise to a fee under ORS did not Because SAIF issue, serve that we do not it. consider requires, finally prevailed as the statute ALJ, on a Accordingly, denied claim. entitled to the statute, under claimant is fees. differently. The dissent understands the statute It noncooperation reasons that denial is not a denied claim 656.386(1)(b)(A). within the definition in ORS We do not find reasoning persuasive. principal the dissent’s reason that unpersuasive we find is that it is inconsistent the text with of the definition of a “denied claim,” which includes “a claim * * * pay which an insurer refuses to express ground injury or condition for which com * ** pensation is claimed otherwise does not rise to an 656.386(1)(b)(A). any compensation[.]” entitlement ORS According to the dissent, the definition of a “denied claim” compensability includes “denials that are based on a lack of and those denials that are based on a lack of entitlement to compensation.” (Edmonds, dissenting). 192 Or at 528 J., The dissent reasons that denials based on lack of entitlement injury arguably “include situations where the occurs within scope employment the course and but the claim is not com pensable (Edmonds, for other reasons.” Id. at 525 J., dissent ing). explains “[a]n example The dissent ofwhen a work- related or condition is not for another major contributing reason is when it is nоt the cause of a con sequential 656.005(7)(a)(A), condition, ORS or when it is not major contributing cause of a condition, combined 656.005(7)(a)(B).” (Edmonds, dissenting). Id. J., As another example, the dissent refers to denials based on a lack of responsibility under ORS 656.307 and ORS 656.308 for may which “a worker not be entitled to from a particular employer though even or condition compensable.” (Edmonds, determined to be Id. J., dissent ing). support position, points As for its the dissent 656.005(7)(a)(B)
1995 amendments to ORS and concludes “[t]he use of the word ‘otherwise’in the amendments to 656.005(7)(a)(B) is illustrative of how the chapter used the word ‘otherwise’in 332to createthe struc- responsible ture of when an and when an *8 514
employer is not responsible for a work-related or con- 656.005(7)(a)(B) dition. ORS is an example of that kind of employer structure. An is responsible for a combined work- related and preexisting only condition when the work- related major or condition is the contributing cause of the combined Otherwise, condition. has no liability under such circumstances initially for what was work-related injury or condition.” Id. at 531-32 (Edmonds, J., follows, It dissenting). according 656.386(1) dissent, that version “[t]he of ORS applica- ble to this case tracks the above added in 1995.” Id. at 533 (Edmonds, J., In conclusion, dissenting). dissent “ states that denial based on lack [a] of cooperation cannot log- fall iсally into either classification of a ‘denied claim’ for pur- of ORS poses because a claimant does not finally prevail on the issue of or on an compensability issue giving rise to an entitlement to compensation when he or she over- comes a denial based on lack of Id. at n cooperation.” (Edmonds, J., dissenting).
There are two problems with the dissent’s reasoning. First, as we understand the dissent’s position, views ORS 656.005(7)(a)(B), the statute governing compensability a combined condition, as somehow limiting entitlement for an “otherwise compensable injury.” How 656.005(7)(a)(B) ever, governs of a compensability combined condition. It does not function as a limit on the abil ity to obtain for an “otherwise compensable Pursuant injury.” 656.005(7)(a)(B), to ORS if an “otherwise is not the compensable injury” major cause of contributing disability of the combined condition or the need for treat ment of the condition, combined the combined condition is words, In other the claim compensable. for a combined condition would be denied on the that the condition ground is and not on the that ground it otherwise does not rise to an entitlement any compen sation. That has been the longstanding understanding 656.005(7)(a)(B).5 The dissent’s of ORS reading 5 Contrary understanding, asserting to the dissent’s we are not the dis changing compensability sent thе standard for the of a combined condition. Rather, explained above, demonstrates, point our as the case law when a compensable injury major preexisting combines with a condition but is not the con tributing condition, cause of the combined the combined condition is not 656.005(7)(a)(B) 656.386(1)(b)(A) reading and ORS is a long-standing interpretation is inconsistent with the governing compensability statute of a combined condi 656.005(7)(a)(B). disagree tion, ORS reasons, For those we provisions *9 the 1995 amendments to other in ORS chapter require interpretation 656 the dissent’s of ORS 656.386(1). fundamentally, though
Second, and more even attempted identify types dissent has to of denials based on ground injury that the or condition “otherwise does not give ples may any compensation,” rise to an entitlement to those exam- necessarily only types
not be the of denials that are encompassed within the definition. As discussed above, the noncooperation clearly denial at issue in this case was not ground injury compensable issued on the that the was not ground injury but on the or condition “otherwise any compensation.” does not rise to an entitlement to argues
The dissent also
that claimant is not entitled
attorney
finally prevailed
fees because he has not
compensability. Although
issue of
SAIF does not cite
City
Oswego,
Greenslitt v.
Lake
a claimant compensation. must on the issue of analysis, In its prior the dissent treats i.e., Greenslitt context — judicial statutory construction of the same or similar language. though The dissent reasons even having was successful SAIF’sdenial of claimant’s claim for required process set aside, will SAIF now be necessarily the claim, which does not mean that claimant compensation. Accordingly, will be awarded the dissent holds finally prevailed that claimant has not issue of com- pensability and, thus, is not entitled to fees under 656.386(1). misplaced.
The dissent’s reliance on Greenslitt is presented First, the issue in Greenslitt was different from jurisdiction question issue here. That case involved a determine fees between the circuit court and the Second, board. because the definition of a denied claim that legislature, at issue in this case had been enacted interpret the court in Greenslitt did not 7The definition.6 legislature significantly amended the of ORS 656.386(1) (1987), 656.386 after Greenslitt was decided. ORS *10 provided: which in Greenslitt, was cited injuries involving “In all cases accidental where a claim- finally prеvails appeal Appeals ant in an to the of or Court petition Supreme for review to the from an or Court order denying compensation, the decision claimfor the courtshall attorney attorney. allowa reasonable fee to the claimant’s rejected prevailsfinally In such in caseswherethe claimant by hearing a or before the referee in a review the board itself, the board a then referee or shall allow reasonable attorney dispute board or In the as to fee. event a arises the amount by appellate court, allowed the referee or that 656.388(2). provided amount shall be settled for in ORS Attorney provided by paid fees for in this section shall be employer.” the insurer or self-insured substantially legislature 1995,
In the amended ORS legis Significantly, § 332, 656.386. 1995, Or Laws ch 43. the language lature deleted the of the statute that was inter preted particular, in Greenslitt.7 In deleted effect, Moreover, apparently if that had SAIF denied even definition been express ground compensable. the claim in on the that it Greenslitt was provides: ch Or Laws 43§ a that claimant must “from an finally prevail the language for or decision the claim Fur denying compensation.” order the deleted with new ther, legislature replaced a term “denied clаim” and including including language, above, of a claim.” definition “denied As discussed specific denied includes a denial on only that definition of a claim injury that a condition or is not but ground compensable denial or ground also a condition rise an to give “otherwise does not to entitlement com 656.386(1)(b)(A). SAIF’s pensation.” noncooperation “ORS amended to 656.386 is read: (1) involving injuries [In all cases accidental where a claimant “656.386.
finally prevails appeal Appeals petition in an to the Court or review to the for Supreme denying compensation, Court an order or decision the claim from allow reasonable for attorney attorney. the court shall a to the claimant’s fee rejected prevails finally hearing such cases where claimant in a before by itself, or in a review the board then the board a or shall allow referee reasonable tion ney referee attorney attorney obtaining compensa- an is instrumental in fee. If held, hearing by a a claimant and a is not reasonable attor- for referee Attorney provided shall paid be allowed. section in this shall be fee for fees by employer.) insurer or self-insured “[(2) attorney paid In all other cases shall to continue be fees from compensation exсept provided claimant’s award as otherwise in ORS involving finally 656.382.] In all cases denied claims where prevails against appeal Appeals peti- the denial in an the Court or Court, Supreme tion review to the the court shall allow a reason- attorney. involving able fee claimant’s In such cases prevails finally hearing denied claims where the claimant ain before Judge by Compen- an Administrative Law or ain review the Workers’ Board, Judge sation then the Administrative Law or board shall allow involving a reasonable fee. In such cases denied claims obtaining where an is instrumental a rescission prior Judge, denial to a decision the Administrative Law a reason- purposes section, shall able fee be For of this allowed. ‘denied claim’ claim is a which an insurer or self- pay express ground insured refuses or condition for which or claimed is not any compensation. otherwise does not rise to an entitlement A presumed implied denied claim shall not be or from insurer’s employer’s pay compensation previously self-insured failure for a *11 accepted timely Attorney provided or condition in fashion. fees by paid this shall subsection be the insurer or self-insured employer. “(2) cases, attorney paid In all other fees shall be from the increase any, compensation, except expressly in the claimant’s if as otherwise chapter.” provided in this legislature replaced language deleted the italicized brackets and it with the language in boldface. 518 claim under
denial in this case was denied the new defini Contrary assertion, to the dissent’s is no tion. Greenslitt authority statutory longer persuasive the because Supreme interpreted in that that Court case did not of include the new definition of a denied claim.8The addition significant plain because, lan the definition is under guage ney statute, the current a claimant is entitled to attor of finally prevails hearing an
fees if he or she at a before against a denied claim as that ALJ or review to board specifically term is defined in the statute. noncooperation explained, because the
As the board by denial was set aside the ALJ and that decision was not finally prevailed challenged appeal board, on hearing. against noncooperation denial at The board concluded: above, ‘non-cooperation’ denial is a explained
“As 656.386(1); i.e., it is a ‘claim for ‘denied claim’ under pay ground that SAIF refused to compensation’ any com- rise to an entitlement it ‘otherwise does entitled to an fee under pensation.’ In order to be 656.386(1), pre- the claimant requires the statute claim,’ as that term is defined in against vail a ‘denied Here, that.” claimant has done statute. the board did reasons, conclude that
For all of the above
we
awarding claimant
fees.
not err in
assignment
that,
error,
SAIF asserts
In its second
under ORS
fees
even if claimant
is entitled
656.386(1),
vacated
fee award must be
the board’s
explanation
“[t]he
$1,200
for its fee award of
Board’s
because
is
the
by
judicial
inadequate
under the standard set
review
Specifically,
Courtf.]”9
Supreme
SAIF asserts:
states, “My
legislative history of the 1995 amend
research of the
The dissent
suggest
legislature that would
not reveal
discussion
ments does
holding
at 533 n
legislatively
in Greenslitt.” 192 Or
overrule the
intent
history
However,
(Edmonds, J.,
legislative
on the issue of
dissenting).
lack of
be
Supreme
decision cannot
legislature
to overrule a
Court
intended
whether the
law,
change
in the
did not intend to effect
viewed as evidence
wording
the statute
legislature significantly
particularly
amended
where
interpreted.
that the court had
explain
See
Supreme
the standard.
Court cases that
refers to two
SAIF
(1997)
Stevens,
(holding
where
Leupold
In
the board’s
whether
judicial
adequate
helpful
compare
review,
for
it is
Schoch
(1997),
Leupold
Stevens,
v.
&
325 Or
On remand, claimant reduced the
of the
amount
requested
explanation,
fee. The board
а more
offered
detailed
including
questioning
that
statement
it was not
claimant’s
attorney’s representations
about
the amount of time
expended
Leupold
case. Schoch v.
Stevens,
&
162 Or
(1999).
Ultimately,
242, 247-48,
“The opinion example, Board’s on remand performed the nature the work counsel before claimant’s and the counsel complexity Board issues however, opinion go say, addressed. The does not *13 counsel worked were reason- whether the hours claimant’s light complexity or in the nature able unreasonable of and missing step the work he did. The intermediate that is of opinion reasoning the the that led it from from Board’s is to of fee it the factors it considered the amount the awarded.” inadequacy the of words, Schoch, at 249. in the
Id. In other great explanation discrepancy arose from the board’s between specific the of her claimant’s documentation attor- ney’s and the board’s actual award. To be sufficient services explain discrepancy. judicial review, the had to the board
In
ALJ
claimant
fees of
Bacon, the
awarded
Although
had not
state-
$2,000.
the claimant
submitted
ALJ
the record and the nature
services,
of
the
relied on
ment
amount of a reasonable fee.
the issues to determine the
of
party requested reconsideration. The claimant did
Neither
the
did not
to show that
ALJ’s award
not submit “evidence
in fact
or the valuе
the
his
had
worked
reflect
hours
attorney’s
160 Or
at 598. SAIF
Bacon,
services.”
of his
any
on reconsid-
not
affidavits or other evidence
“did
submit
ALJ had
was too
to
that the fee the
awarded
eration
show
challenged
appealed
high.”
the
and
Id.
then
to
board
SAIF
argued that
claimant’s attor-
SAIF
the
the AU’s fee award.
concerning
ney
the amount of
had submitted no evidence
justify
spent
award, the fee was exces-
would
the
time
that
explanation of
the ALJ deter-
was no
how
because there
sive
mined the amount
should
award,
and
claimant
be
Ultimately,
required
a statement of services.
submit
ALJ’s
award.
$2,000
affirmed the
board
Bacon,
board,
we
affirming
explained:
review,
turning
“Before
to the issue SAIF raises on
we
is not at
argue
note what
issue
this case. SAIF
does
-
claim
awarding
on review that the
had no
Board
basis
ant
fees because claimant had not submitted a
of
ALJ
statement
services
either the
or the Board.
Rather,
argument
SAIF’s
that
or the
assumes
ALJ
legitimately may
Board
infer the amount of
time
attorney reasonably
on the case and
reason-
expended
able value of his or
the pro-
her services from
extent of
ceedings
litigated
nature
the issues
before the
agency.
argued
SAIF also has not
on review
the fees
that
the ALJ and the Board awarded in this case are unreаson-
Finally,
able.
any
SAIF
did
submit
documentation to
either
the ALJ
the Board to show that those
were
fees
too
high. Accordingly, the
issue
review not whether the
Board’s
specific
order was sufficient to
objection
resolve
agency’s
Schoch,
fee
Compare
award.
brief, is whether the explanation Board’s is sufficient specific objection absence to the fee award. «í{í ‡ ‡ ijc
“The reasoning in Schoch holding makes clear its large part by driven in meaningful appellate need for When, however, review. neither nor the the objects award, the reasonableness the fee *14 need to ensure meaningful appellate review is See absent. McCarthy Oregon Dry, Inc.], [185, 189, 957 [v. Freeze 327 Or (1998)]. P2d 1200 principles fee Although general law administrative
still require explain the Board to the basis for its award, the need specificity diminishes in absence any of over, when, objection substantive to the fee award neither the More itself. case,
as in this nor submits evidence that of either the hours reasonably were expended attorney’s or the value of an services, say we cannot erred agency going in not greater into detail it than did here. We that if emphasize SAIF or specific claimant had submitted challeng evidence ing award, еither the ALJ’s or the Board’s fee as the claim Schoch, ant did in the Board’s explanation would have to comply with standard in Schoch.” (footnote omitted). Bacon, 160 at App 600-04; Or explanation case, In this the board’s for its award is explanation similar to the board’s in Schoch after remand Supreme distinguishable Court; however, this case is spe- and Bacon, from Schoch similar to because there was no objection cific to the fee award. The record does not indicate that claimant submitted a statement of services.10 argue argue SAIF did not board and does not on review awarding attorney in this court that there is no basis for without a statement of services. On reconsideration to the fees party board, neither submitted documentation to demon- strate that the tionally, award was or was not reasonable. Addi- $500 presented
SAIF no documentation that an award greater par- than Instead, would be unreasonable. $500 argument concerning ties submitted whether award $500 arguments should be increased. Both claimant’s and SAIF’s legitimately assumed that the board could able value of claimant’s infer the reason- attorney’s services from the record of proceedings objections litigation. and the nature of the SAIF did not file $1,200
to the board’s award in its order on recon- specific objection sideration. concerning Thus, Bacon, as there was no fee award. gravamen argument that, on review is SAIF’s because the board cited time devoted to the case “as a factor finding regard award,” its in ing board should have made “a many thought attorney expended how hours it claimant’s non-cooperation denial issue” and without that finding, impossible hourly “it is to know what kind of rate the Board considered reasonable or how the other factors it although However, recited affected its fee award.” SAIF Bacon, As we indicated in “[b]y seeking requiring party fees to submit a statement of services them, prerequisite receiving effectively the Board has shifted the bur- party opposing request specific objectionsif den to file the fee believes court, At that the amount of the fee awarded is excessive. least before this how- ever, why challenged practice. explained SAIF has not SAIF has not statute, practice governing Board’s is inconsistent with either its rule or its see statutory (deleting requirement party ch that a § Or Laws submit a claim), support statement of services in of its fee and we do not have written explanation practice accordingly the benefit of the Board’s its before us. We day squarely prеsented when it has been leave that issue for another briefed.” 160 Or at 603 n 5.
523 cited time asserts that board devoted to the case “as a fac- board, award,” reconsideration, in its in its tor order on rely Additionally, purport not on that are did factor. we argument persuaded SAIFs that the board should have findings concerning thought made amount of time that it attorneys only worked on case. Here, claimant’s no documentation submitted was
concerning the number ofhours attorneys expended that claimant’s or the value of those attorneys’ concerning attorney services, but the board’s rule expressly require fees, 438-015-0010, OAR does not that the finding board make a about time an to a devoted we in Bacon, case.11As said under circumstances, those “we say agency going greater cannot erred in not into detail than it did here.” Or at 604. For all of those particular reasons, under the case, circumstances this explanation judicial adequate board’s was review, and the attorney fee award affirmed. finally prevailed sum, we hold that claimant on a 656.386(1)
denied claim under ORS and was entitled to attor- ney Additionally, consistently fees. Bacon, with the board adequately explained $1,200 its fee award.
Affirmed. dissenting.
EDMONDS, J., The issue in this case is whether claimant is entitled to an fee under ORS when was hе 438-015-0010(4) provides: OAR Judge “In required case where an Administrative Law or the Board is attorney fee, following determine reasonable shall be factors considered: “(a) case; The time devoted to the
“(b) issue(s) complexity involved; “(c) involved; The value of the interest
“(d) attorneys; The skill of the
“(e) proceedings; The nature of the
“(0 represented party; The benefit secured for the “(g) particular attorney’s may go The risk in a case that efforts uncompensated; and
“(h) The assertion frivolous issues or defenses.” overturning alleged successful in cooperation SAIF’s denial for his non- investigation with the of this claim while the *16 pending finally claim was but before the claim has been compensable. statutory determined to be The issue is one of interpretation leg- in which we seek to discern whether the attorney islature intended that fees be awarded under those circumstances. We first examine the text and the context of the statute. 656.386(1) provides, part: in relevant
“(a) involving all cases denied claims where a claim- finally prevails against ant the denial in an appeal Court of Appeals petition or for review to the Supreme Court, the court shall allow a attorney reasonable fee to the attorney. In involving claimant’s such cases denied claims finally where the claimant prevails hearing in a before an Judge by Administrative Law or in a review the Workers’ Board, Compensation then the Judge Administrative Law or board shall allow a reasonable fee. In such cases involving denied claims where an is instrumental in obtaining prior by rescission of the denial to a decision Judge, Administrative Law a reasonable fee shall be allowed.
“(b) section, For purposes this a ‘denied claim’ is: “(A) A claim compensation for which an insurer or self- employer pay express insured refuses to on the ground that injury or compensation condition for which is claimed is not or otherwise does not give rise to an enti- any compensation.” tlement to language, majority
Based on the above holds meaning that a “denied claim” within the of the statute by noncooperation denials because includes claimants. The majority adopts Compensation the Workers’ Board’s reason ing noncooperation that a denial is a claim” “denied because give a denial does such “otherwise rise to an entitlement any compensation” meaning within of ORS 656.386(1)(b)(A). major 192 Or at 513. The effect of the ity’s holding is that claimant fee is entitled to though yet proc under the statute even his claim has to be though compensability its essed to determine and even may eventually compen be determinеd that his claim is not employer responsible or that the is not for it. sable “denied The words claim” in ORS are not when read in ambiguous context with the other words of the Workers’ Act. Compensation in the statute key phrases cases “[i]n are such denied claims involving where the claim- ant in a finally prevails claim for hearing,” compensation “[a] an insurer or which self-insured to pay refuses express ground or condition for which is claimed is not claim compensation compensable,” “[a] which an insured or self-insured employer refuses to pay con- express ground * ** dition which is claimed otherwise does rise to an entitlement compensation.” Some 656.005, words those are phrases defined ORS some have ordinary and some have a meanings, meaning 656.386(1). defined “
The word ‘[c]laim’ means a written for com- request *17 pensation subject from a worker or someone on worker’s behalf, any compensable or of injury which a subject 656.005(6). has notice or knowledge.” ORS A “com- is pensable injury” an out injury of and in the “arising course * * * of employment subject to the limitations. following * * *” 656.005(7)(a). ORS The limitations on compensability include situations where the injury arguably occurs within the course and of scope employment but the claim is not com- for pensable other reasons. An of when example a work- related or injury condition is not сompensable for another reason is when it is not the a major contributing cause of con- sequential condition, 656.005(7)(a)(A), ORS or is when it a major contributing condition, cause of combined ORS 656.005(7)(a)(B). 656.005(7)(b) See also ORS cir- (describing an cumstances which otherwise compensable claim non- In addition to the above kinds of compensable). limitations on statutory there are also limitations compensation, on com- pensability for a responsibility compensable even or injury, when the initial condition is injury compen- instance, sable. For under 656.273, ORS worker is injured entitled to additional for a compensation worsened condition from the initial resulting injury if the only cause of major contributing the worsened condition is the condition that occurred within the course and scope of employment. Additionally, a worker may be entitled to particular employer though from a even compensable. is determined to be or condition Those responsibility based a lack of
kinds of denials are on for a e.g., compensable injury. See, 656.307; ORS ORS 656.308. provide All of the above statutes context for discern- legislature’s regard ing the intent with to the of 656.386(1), general, the statute at issue in this case. In ORS the statute authorizes recovery after fees a finally prevailed has a claim. workеr over denial of The involving “[i]n first us such cases denied statute tells finally prevails hearing where the claimant in a before claims Judge by an Compensation Law or in a the Workers Administrative review Board,” claimant shall be allowed a phrase grant reasonable fee. That constitutes the authority for fees the award under statute. phrase in the refers to claims as defined The word “claims” 656.005(6). request “claim” is a for A therefore “written subject “finally pre- compensation from a worker.” The words hearing” a “claims” tell us vails in when used with word finally compen- prevail request that a claimant must on temporarily processing Prevailing in the of a claim sation. yet regarding there to be a decision on the merits where satisfy requirement ofthe statute. does not prevailing temporarily fact, under such circumstances is “finally” compen- prevailing request the antithesis of sation. legislature specifically define Also, chose to 656.386(1). phrase in the
words “denied claim” above with fact that the chose to define those words authority grant attorney regard under the stat- fees they ordinarily them are understood ute rather than to use special significance. is of in the context of ORS *18 statutorily “claim” is defined and word Because word meaning, ordinary it, modifies has an “denied,” which legislature to define those words that undertook fact especially 656.386(1) strongly leg- suggests that for ORS those to be understood their did not intend words islature generic a sense nor intend that the denial of claim legislature rubric the statute. If the reason fall within the of ordinary their “denied claim” to have had intended the words necessary promulgate meaning, to not have been would purposes special of the statute. definitions for giving the words “denied in ORS claim” 656.386(1) specialized meaning purposes a of the statute, legislature divided universe of “denied claims” into First, two worlds.1 a “denied is defined as a claim” claim on prevails finally employer the claimant which after the or employer pay express ground self-insured refuses to on the injury compensable. that or condition is not 656.005(7)(a)(A) “compensable injury” defines in terms of injury relatedness; is, that an work must arise out and in of employment compensable. the course of Here, to be noncooperation does not contend that SAIF’s denial was based on contention that his did not of arise out and employment in the ofhis course that the denial onwas compensable. basis that the claim was not otherwise The alternative definition of a “denied claim” for 656.386(1) purposes provides of ORS that a “denied claim” is cоmpensation a “claim for which an insurer or self-insured pay express ground refuses * * * or condition for which is claimed other- give any compensa- wise does not rise an entitlement key phrase tion.” The words in the are “otherwise,” “does not give to,” rise and “entitlement.” The word “otherwise” means way “in a different or manner.” Webster’s Third New Int’l 1993). Dictionary (unabridged operates ed The word phrase the sentence to differentiate follows, “does give compensation,” rise entitlement to from the previous phrase regarding denials that are based the lack compensability. category of “denied claims” on the creation a defined
separate category from the of denials based lack of is further evidence anof intent way to define “denied claims” in a that does not embrace denials of claims for all kinds of reasons. In leg- words, other the structure of the statute tells us that the has islature undertaken to divide “denied claims” into two categories: those kinds ofdenied claims that fall into either of trigger the alternative definitions statute an award of attorney fees, while those kinds of denials fall into nei- prescribed categories ther of the do not rise to an award fees. sense, conceptual In that tracks the framework found else Compensation compensability responsibility where in the Workers’ Act where injuries separately. for otherwise are treated
The the second, focus of alternative definition of a rulings “give “denied claim”in the statute is rise to on that compensation” compensability. than entitlement to rather on 656.386(1)(b)(A). ordinary meaning The of the words “bring “give rise to” is to PRODUCE, about: OCCASION.” Similarly, ordinary meaning at Webster’s 960. of word being “the of RIGHT; “entitlement” is specif: condition entitled: employment- right to under the state benefits old-age laws or federal and survivors insur Id. at ance.” 758. the above are read with the
When words remainder the they language statute, of the in the communicate follow- thoughts. prevail finally ing a must on a First, claimant claim. have a Second, denied words “denied claim” lim- 656.386(1), meaning purposes of ORS as distin- ited for generic meaning. guished Third, from a those limitations compensa- those that on a of include denials are based lack bility and that are based on a lack of entitle- those denials compensation. Fourth, be entitled to fees ment to to of “denied claim” in second, under the alternative definition a finally prevail manner statute, a claimant must in a that the brings compen- produces about, to or occasions an entitlement Compensation Act, of a In cоntext the Workers’ sation. clear gives example finally prevailing a over denial of compensation is a to an to when denial of rise entitlement compensable injury responsibility under a made by the claimant. In con- 656.308 and is thereafter overcome overturning coopera- on of a denial based a lack of trast, compensation. bring to does not about an entitlement tion being puts position able lit- Rather, it the claimant in the of analysis igate compensability responsibility. and/or A correct go need no on the text and context of ORS based yet prevail Claimant, has in this case. who further finally prevailed a denied his has not over merits of claim compen- way gives an entitlement to in a rise to claim sation. position majority otherwise, but its holds couple ofreasons. in the statute for
faithful to the prevail majority’s permits a claimant First, the decision noncooperation fees aas denial, be awarded over a compensability. effect, of and then lose on issue result, majority allegedly must reason that when a claim an sequence sets condition in motion procedural interim events that could lead to a determination compensation, compensability or an entitlement “finally regarding prevаils” when one those finally prevailed events, has interim then the claimant meaning interpretation within the of the statute. But that import effect to the does that the claimant must pensation. words the statute
finally prevail request on a for com- only temporarily prevailed a claimant in Such has proceeding during pendency adjudica- an interim the request compensation. majority, tion the Second, the in interpretation order for correct, its to be must construe the phrase “give meaning any compensation” rise to an entitlement to a is
that claimant entitled to he fees when finally prevails hearing precedes or she in a that the deter- compensability. again, an But, mination of that the entitlement interpretation ordinary meaning is at odds with the phrase, requires ruling brings pro- which a that about or right compensation. the duces final to an “entitlement” to meaning There should be no doubt about the of ORS 686.386(1) statutorily language when the defined in the stat- ordinary meaning. ute is read with its words that have ifBut Supreme previously exists, such doubt preted the Court has inter- contrary majority’s the statute construction. Supreme interprets interpre- When the Court statute, a that part tation becomes a of the statute as if it were written into the law at the time ofits enactmеnt. v. Sunderland, Holcomb (1995). 99, 105, 457 Or 894 P2d It follows unless interpreted subsequently change statute so amended to meaning Supreme interpreta- statute, the tion remains viable and of Court’s
controlling.
City
Oswego,
In Greenslitt v.
305 Or
of Lake
(1988),
Supreme
533-34,
Supreme
award,
fee
to reduce
authority
the board lacked
656.386(1):
of ORS
the requirements
reviewed
“(1)
by
hearing process
initiate the
the claimant must
denying
or decision
review from an order
requesting
(2)
finally on the issue of
claim;
prevail
must
the claimant
* *
(3)
referee,
*;
the decision of the
and
finally must
prevails
in which the claimant
or court
board
be
denying, rather than
decision or order
from an earlier
compensation.”
the claim for
allowing,
SAIF,
v.
300 Or
Shoulders
Greenslitt,
(citing
The majority argues, amended the because authority legislature controlling longer 656.386(1) the when majority, to the According in 1995.2 in “denied claim” the words to define undertook legislature the Greenslitt resulted in that definition 1995, in the statute that assertion But no longer applicable. holding being court’s 2 1995, chapter creates doubt Oregon Laws 332 survey of of the overall trend A regarding existing the scope law expand the of the legislature to the intended merely prevailed in an beсause a claimant to fees of claimants entitlement oppo aiming appeared in the anything, legislature to be proceeding. the If interim site direction. by changes supported import the is not the structure or the of to the statute that were made in 1995.3 part to
The 1995 amendments ORS were major Compensation of Act. revision of the Workers’ Before 656.386(1), referring specific regarding revisions of is informative to consider the structure the amendments instance, as a whole. For the 1995 also amendments 656.005(7)(a)(B). provided amended ORS That amendment as follows:
“(B) injury [a] compensable If combines at an otherwise preexisting with conditionto cause [diseaseor] any time prolongdisability treatment, or a need or for the [resultant] only compensable combined condition is if, long so as compensableinjury the extent that the otherwise major contributing is [and cause the disa- remains] bility combined condition or major contrib- need for treatment uting cause of the the combined condition.” (deletions § ch 332, Or Laws italics, in new boldface).
in The use of word “otherwise” amend- 656.005(7)(a)(B) leg- ments to ORS is illustrative howof chapter islature used word “otherwise” in 332 to create employer responsible the structure an of when is and when employer responsible an condition. ORS not for a work-related or 656.005(7)(a)(B) example is an of that kind of by changes appear made the 1995 amendment to ORS 656.386 as follows. Although majority correctly notes that amended the statute change wholesale deletion and addition in the statute did not as much majority suggests. present Words plain in both statutes are noted in text. Words present in the earlier version not but the current version the statute are noted in italics. Additions to the statute made in 1995 are noted boldface. involving injuries] [accidental “In all cases denied claims where a claim- finally prevails against appeal Appeals ant the denial in an to the Court of or
petition Supreme denying for review to the Court an order or decision [from compensation], claim the court allow shall a reasonable fee * * * attorney. purposes claimant’s For of this section a ‘denied claim’ is a claim for which an insurer or self-insured pay express ground refuses or condition which is claimed not or does otherwise any compensation. rise to an entitled A denied claim shall presumed implied be or from insurer’s self-insured *22 employer’s pay compensation previously accepted failure for a injury timely or condition in fashion.” 332, § Or Laws ch 43.
532 An a structure. for combined work- employer responsible and the only related condition when work-related preexisting cause of major or condition is the the com- contributing Otherwise, an has no liability bined condition. employer initially under such circumstances for what was a work- or related condition. what
By to define consti- undertaking specifically 656.386(1) “denied tutes a claim” for of ORS in the purposes amendments, a followed appears legislature similar to the one it used lia- regarding employer structure injuries. for work-related divided work- bility legislature into compensable related claims classes of and noncompens- it also purposes employer liability; able claims for of divided for into of “denied claims” of ORS classes purposes for may may denied claims which fees not be for a claim Employer liability “compensable” awarded. the on the of depends finally on claimant issue prevailing in a series of adminis- and/or compensability responsibility liabil- judicial steps. Similarly, employer trative and review the at the claimant, fees ity comple- depends the available over steps, finally prevailing tion of procedural (as defined). words, the claim In other common pred- denied claims and for an employer liability icate for attorney fees the same against award of the the claimant must finally pre- amendments: throughout whole, it of the of the act as a makes vail. In structure light would have intended for a legislature sense that fees until the claimant had pre- to recover inter- liability employer. vailed on the issue of the To 332, sec- Oregon chapter the amendment Laws pret rule of have tion 43 to have Greenslitt changed fees to circumstances entitlement enlarged finally the claimant has not issue prevailed where is to the structure of the amend- ignore Act as whole. Compensation ments to Workers’ another, is, however, why There less subtle reason as an reliance on the 1995 amendments majority’s court is wrong. Greenslitt repeal holding implicit the statute changed No 1995 amendments language rather, left intact interpretation; court’s in the statute Greenslitt prompted *23 “finally prevail” to that a claimant court conclude must attorney merits of the claim before fees could be awarded. deleting phrase, than those words, Rather the bill deleted the involving injuries,” “[i]n all cases accidental and substituted place, “[i]n phrase, involving the its all cases denied prior § statute, claims.” Or Laws ch the 43.4Under recovery attorney of the involving fees was authorized in “all cases injuries finally pre- accidental where * * * denying vails an or from order decision the claim for phrase deny- compensation.” The “from an order or decision ing compensation” prior operated the claim for in the statute identify legal to the nature the action over which the claim- of prevail attorney required ant was before fees could be By adding recovered. to the statute the words “denied claims” deleting denying the words an or “from order decision the compensation” legislature claim for statute, from the the con- express legal tinued its intention about the nature of the trigger action that of could an award fees. Had the legislature nothing point, argument done more at that the legislature change that the preted by intended to as the statute inter- tenable,
the be Greenslitt court would more because applied the statute, amended, as could have to all It denials. could follow then that a decision the the merits of claim prerequisite was legislature anot of an award fees. But the additionally
chose to define the words “denied compensability claims” in terms of and entitlement to com- pensation. By narrowing the definition of a “denied claim” to rulings (compensability that determined the merits of a claim compensation), necessаrily legislature or entitlement to interpretation previously reiterated, words, in its own by given majority to the statute Greenslitt court. fails adequately explain why legislature would have left the “prevails finally” actually words statute if had change meaning interpreted intended to statute by the Greenslitt court. 656.386(1) applicable
The version of ORS to this case tracks the above added in 1995. Under the current “finally [ ]” prevail statute, version a claimant must 4 My history legislative research amendments does not reveal suggest legislatively discussion that would an intent to over holding rule the in Greenslitt.
over the denial of the claimant’s request for To compensation. liability fees, trigger overturned denial must been on the basis that the claim was not have on the basis that claimant was not otherwise entitled to com- Whether the statute is pensation. on its face or interpreted whether the Greenslitt court’s followed, interpretation result is the same. A denial based on lack of with cooperation is not the investigation kind of denial that about a brings decision on the merits of the claim. Claimant is not entitled to fees unless he finally on the merits.5 prevails
For those reasons, I dissent.
Linder and Schuman, JJ., in this dissent. join *24 majority says preexist when a combines with a major condition, ing contributing condition but is not the cause of the combined compensable. agrеe. combined condition is not observation, at 514 n 5.1 But that Or is, begs question it correct as before us. The issue is whether the legislature finally prevailing intended a claimant to recover fees before on compensability gives the issue of or on an issue that rise to an entitlement to com majority say pensation. consequen If the means to that the denial of a combined or qualifies category tial condition is the kind of denial for the first of “denied claims,” claims, category rather than for the second of denied as defined 656.386(1), then, argument, agree. for the sake of I It be that could intended the first classification of denials in the statute to include denials based on compensability the lack of work-relatedness as well as on limitations on and the only responsibility. second class of denials to be based the lack of I have found no history issue, legislative that resolves that but makes no difference to the correct legislature’s regarding interpretation intent the issue this case. A denial cooperation logically on lack of cannot fall into either based classification of purposes finally “denied claim” for of ORS because a claimant does not prevail compensability giving on the issue of or on an issue rise to an entitlement cooperation. lack when he she overcomes a denial based on