54 Van Natta 106 (2002). REBECCA L. WOLFE, Claimant.

Case DateJanuary 31, 2002
CourtOregon
Oregon Worker Compensation 2002. 54 Van Natta 106 (2002). REBECCA L. WOLFE, Claimant 106In the Matter of the Compensation of REBECCA L. WOLFE, ClaimantWCB Case No. 01-01278ORDER ON REVIEWErnest M Jenks, Claimant AttorneysThaddeus J Hettle and Assoc, Defense AttorneysReviewing Panel: Members Phillips Polich, Bock, and Haynes. MemberHaynes dissents. The self-insured employer requests review of that portion of Administrative Law Judge (ALJ) Davis' order that awarded claimant a $750 assessed attorney fee under ORS 656.382(1). On review, the issue is attorney fees. We adopt and affirm the ALJ's order with the following supplementation. Claimant filed a claim for right elbow and forearm conditions on November 9, 2000. (Ex. 2). On February 14, 2001, claimant requested a hearing, designating as issues de facto denial, penalties and attorney fees. On February 16, 2001, the employer's processing agent accepted claimant's claim for disabling right elbow tendinitis. (Ex. 6). At hearing, the parties stipulated that the claim was not accepted or denied within the 90 days provided in ORS 656.262(6)(a). (Tr. 7). As of February 16, 2001, the employer's processing agent had received a total of $1,304.23 (audited) in outstanding medical bills. Due to an error by the processing agent's billing service, these bills were not paid until May 2, 2001. (Tr. 15). The ALJ assessed a penalty on the untimely paid medical bills under ORS 656.262(11). The employer does not contest that portion of the ALJ's order. The ALJ also awarded claimant an attorney fee under ORS 656.382(1) for the employer's admittedly late acceptance. On review, the employer first contends that assessment of an attorney fee under ORS 656.382(1) was inappropriate because, at the time of its February 16, 2001 acceptance, no medical bills were "due" for at least 14 days. See OAR 436- 009-0030(4) (Medical bills must be paid within 14 days of "any action causing the service to be payable" or 45 days of the carrier's receipt of the bill, whichever is later). We disagree. 54 Van Natta 106 (2002)107ORS 656.382(1) provides that an attorney fee may be awarded when the carrier "unreasonably resists the payment of compensation." A claimant is not entitled to an attorney fee under ORS 656.382(1) (i.e., there is no "unreasonable resistance to compensation") when there are no amounts...

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