Employer objects that ORS 656.386(1)(a), which applies only "where a claimant finally prevails against the denial" of a claim, does not authorize this court to award fees because no party "prevails" when this court denies a petition for review. We conclude, however, that claimant "finally prevail[ed]," for purposes of a fee award under ORS 656.386, when this court denied employer's petition for review. We thus conclude that ORS 656.386(1)(a) requires an award of reasonable fees in this case.
Although this court often resolves attorney fee petitions by order rather than written opinion, employer's objection to this court's authority to award fees presents a legal issue that is appropriately resolved by opinion. See Strawn v. Farmers Ins. Co. ,
Attorneys representing workers' compensation claimants may not recover a fee for legal services performed on appeal
"In all cases involving denied claims where a claimant finally prevails against the denial in an appeal to the Court of Appeals or petition for review to the Supreme Court, the court shall allow a reasonable attorney fee to the claimant's attorney."
We have explained that ORS 656.386(1)(a)"applies in all instances in which a worker's claim for benefits has been denied." SAIF. v. DeLeon ,
There is no dispute, here, that claimant's underlying workers' compensation case involved a denied claim. Rather,
The meaning of the phrase "finally prevailed" presents a question of statutory construction, which we resolve in this case by considering the pertinent text and context.
Whether "finally prevails" signifies the last stage in the process or the stage at which "prevailing" becomes permanent, we conclude that the legislature intended "finally prevails" to include what happens when this court denies review. There is, appropriately, no dispute that claimant prevailed against the denial of his claim before the Board and prevailed again when the Court of Appeals affirmed that decision. Yet employer's timely petition for review in this court meant that claimant would not "finally" prevail-in either sense of the word-until this court resolved the petition for review. The timely filing of a petition for review not only ensures that there will be some later "act or occurrence" by this court in the appellate life of the case, but also means that the decision of the Court of Appeals may still be changed. See ORS 2.520 (specifying that "[a]ny party aggrieved by a decision of the Court of Appeals may petition the Supreme Court for review within 35 days after the date of the decision"). The filing of a timely petition for review delays the issuance of the appellate judgment until this court resolves the petition. ORAP 14.05(3)(а) (providing that, if a party files a timely petition for review, then "the appellate judgment will not issue until the petition is resolved"). That delay in issuance of the appellate judgment, in turn, delays when the decision of the Court of Appeals will be "effective." ORAP 14.05(2)(b) (in cases on review of an administrative agency proceeding, an appellate court decision is not "effective" until the appellate judgment is sent to the agency). Thus, employer's timely petition for review meant that claimant did not "finally prevail" against the denial of
Although employer insists that the legislature has not authorized an award of fees for work that a claimant's attorney performs in response to an unsuccessful petition for review, employer does not dispute that, аfter a series of amendments, ORS 656.386 now specifies that a claimant who prevails against a denial is entitled to an award of attorney fees for work performed at every other stage of the case, including in the Supreme Court if this court addresses the merits of the case. Employer offers no reason why the legislature would have intentionally created that one carve-out to what is otherwise a сomprehensive authorization of fees when a claimant relies on counsel to finally prevail against the denial of a claim. Indeed, such a carve-out would be incompatible with what we have described as "a broad statement of a legislative policy" reflected in ORS 656.386, "that prevailing claimants' attorneys shall receive reasonable compensation for their representatiоn." Schoch v. Leupold & Stevens ,
Nevertheless, employer contends that this court has held, in the context of other statutes, that no party "prevails" when this court denies review, citing U-Cart Concrete v. Farmers Ins. ,
The obstacle to recovery at issue in U-Cart is not an obstacle to recovery under ORS 656.386(1)(a). By contrast to the "on an appeal" restriction in the U-Cart statute, the legislature amended ORS 656.386,
Employer, however, urges us to read U-Cart as effectively deciding that a respondent on review does not "prevail" when this court denies review. Employer emphasizes this court's holding in U-Cart that, when this court denies review, it does "not even implicitly decide that the respondent's position is correct or that the Court of Appeals properly decided the case."
"Although appellate courts may decline to award costs to the prevailing party in cases of dismissal, for reasons of fairness or otherwisе, a party nevertheless may be said to have prevailed on appeal, for purposesof costs and disbursements, by obtaining dismissal of the appeal or petition."
Like a dismissal on mootness grounds or for lack of jurisdiction, a denial of review expresses no comment on whether the challenged decision was correct, but it nevertheless determines that the responding party has finally prevailed. In the same way that the agency in DeYoung/ Thomas could "be said to have prevailed" when the Court of Appeals dismissed the petitioners' challenges without reaching the merits, a respondent on review in this court can be "said to have prevailed" when this court denies a petition for review.
Thus, we disagree with employer's premise that our case law points to a different meaning of "finally prevails" than the meaning at which we have arrived through
As noted above, claimant's lawyer requests a fee for time spent reviewing employer's petition for review, reviewing the file, making a decision as to whether or not to file a response, advising claimant as to the matter and monitoring of the case, as well as an additional fee for time spent preparing and litigating thе fee petition. Counsel requests that the fee be based on an hourly rate of $400.
Because employer's objections to the amount of claimant's fee request are primarily fact-bound and case-specific, we resolve those objections "with limited discussion, consistent with our practice of ordinarily resolving" such disputes by order. See Strawn ,
The petition for attorney fees is allowed. Claimant is awarded $2,200 as attorney fees on review.
Notes
Claimant also cites ORS 656.382(2) and ORS 656.388 as potentially authorizing the award of fees, and employer disagrees. Given our conclusion that ORS 656.386(1)(a) authorizes the award, we do not address the parties' arguments regarding the other statutes.
We recognize that older decisions from this court, construing an earlier version of the statute, held that ORS 656.386 applied only when the сlaimant "initiate[ed]" the appeal to the court from which the claimant sought fees. Shoulders v. SAIF ,
" 'In all cases involving accidental injuries where a claimant finally prevails in an appeal to the Court of Appeals or petition for review to the Supreme Court from an order or decision denying the claim for cоmpensation[.]' "
Shoulders ,
We note that this court previously construed another portion of ORS 656.386(1)(a), which provides for an award of fees at the agency level when a claimant "prevails finally" before the agency. Greenslitt ,
Since U-Cart , the legislature has enacted a new costs statute, which specifies that, "when the Supreme Court denies a petition for review, the respondent on review is entitled to costs and disbursements reasonably incurred in connection with the petition for review." ORS 20.310(1).
The legislature similarly amended ORS 656.382. Or. Laws 1983, ch. 568, § 1.
The legislature's authorization of fees to a claimant who "prevails" on appeal dates to 1951, when the legislature enacted the statutory predecessor to ORS 656.386(1)(a). Or. Laws 1951, ch. 330, § 2. Because that date was long before this court decided either DeYoung/Thomas or U-Cart , neither case offers insight into what the legislature understood the term "prevails" to mean in the context of ORS 656.386(1)(a).
Claimant's fee petition initially requested an hourly rate of $425, a rate at which the Court of Appeals has previously compensated claimant's lawyer. In response to employer's objections, including an objection to the hourly rate, however, claimant's reply specified an "hourly rate requested of $400, [which] is less than the contingent attorney fee rate counsel has been awarded in other cases." We understand the change in hourly rate to reflect an intentional reduction to accommodate employer's objection in this case, and we accept an hourly rate of $400 as reasonable given the experience of claimant's attorney and her customary rate.
Claimant appropriately filed a separate petition for attorney fees in the Court of Appeals for time spent litigating the case in that court, even though employer's petition for review to this court meant that claimant had not yet "finally prevail[еd]." See ORAP 13.10(2) (requiring a petition for attorney fees on appeal to be "served and filed within 21 days after the date of decision" and specifying that the deadline is not suspended by the filing of a petition for review). Now that claimant has "finally prevail[ed]," he is entitled to an award of reasonable fees for work performed before the Court of Appeals-in an amount determined by that court-as well as to the award from this court for time spent in response to the petition for review.