70 Van Natta 418 (2018)
In the Matter of the Compensation of JORGE A. RODRIGUEZ, Claimant
WCB No. 16-04770
Oregon Worker Compensation
March 28, 2018
Preston Bunnell LLP, Claimant Attorneys
Sather
Byerly & Holloway, Defense Attorneys
Reviewing Panel: Members Curey, Lanning, Ousey, and Johnson.
ORDER ON RECONSIDERATION
We
abated our previous order that awarded interest pursuant to
ORS 656.313(1)(b) on stayed attorney fee and cost awards
incurred in a prior Board order, but declined to award an
attorney fee under ORS 656.382(1) for the self-insured
employer’s claim processing. We took that action to
consider claimant’s motion for reconsideration
concerning the ORS 656.382(1) attorney fee and to implement a
supplemental briefing schedule. Having received the
parties’ supplemental briefs, we proceed with our
reconsideration.
A prior
ALJ’s December 2015 order set aside the
employer’s denial of claimant’s injury claim and
awarded an employer-paid attorney fee and costs. The prior
ALJ’s order remanded the claim to the employer for
processing according to law. The employer requested review of
the order, and stayed payment of those awards under ORS
656.313(1)(a). We affirmed the ALJ’s order, including
the attorney fee and cost awards, in our August 12, 2016
final order.
The
employer timely paid claimant’s stayed compensation,
attorney fee, and cost awards, but did not pay interest on
the attorney fee and cost awards. Claimant requested a
hearing, seeking interest on those awards under
amended ORS 656.313(1)(b) (providing for interest on
stayed attorney fee and cost awards “incurred” on
or after January 1, 2016), as well as a penalty and attorney
fee.
The ALJ
concluded that claimant was not entitled to interest on the
attorney fee and cost awards under amended ORS
656.313(1)(b) because those awards were
“incurred” in the prior ALJ’s December 2015
order (i.e., before January 1, 2016).
We
reversed, concluding that the attorney fee and cost awards
were “incurred” in our August 2016 final order
that affirmed those awards (i.e., after January 1,
2016). Accordingly, we concluded that claimant was entitled
to interest under amended ORS 656.313(1)(b) on the
attorney fee and costs awards. In doing [70 Van Natta 419]
so, however, we declined to award an attorney fee under ORS
656.382(1) because the employer’s position concerning
claimant’s entitlement to interest under the amended
statute was not unreasonable.
On
reconsideration, claimant again seeks an ORS 656.382(1)
attorney fee. Specifically, he contends that: (1) an attorney
fee award under the first clause of ORS 656.382(1)
(i.e., an attorney fee awarded when a carrier
refuses to pay compensation, costs, or attorney fees due
under an order) does not require a finding of
unreasonableness; and (2) the interest accrued on the
attorney fee and costs awards pursuant to ORS 656.313(1)(b)
constitutes “costs, or attorney fees due under”
our final order for purposes of ORS 656.382(1).
The
employer responds that an attorney fee award under the first
clause of ORS 656.382(1) requires a finding of
unreasonableness. Thus, it contends that because it was not
unreasonable in not paying the interest accrued on the
attorney fee and costs “incurred” in our August
2016 final order, claimant is not entitled to an ORS
656.382(1) attorney fee. Moreover, the employer asserts that
the interest accrued on attorney fee and cost awards pursuant
to ORS 656.313(1)(b) does not constitute “costs, or
attorney fees due under” an order.
We
begin by addressing whether the first clause of ORS
656.382(1) requires a finding of unreasonableness. After
examining the text of ORS 656.382(1) in context, we conclude
that the first clause of the statute does not require such a
finding. We reason as follows.
ORS
656.382(1) provides for a reasonable assessed attorney fee:
“If an insurer or self-insured employer refuses to pay
compensation, costs, or attorney fees due under an order of
an [ALJ], the [B]oard, or the court, or otherwise
unreasonably resists the payment of compensation, costs, or
attorney fees.”
The
first clause of ORS 656.382(1) provides for an attorney fee
award if a carrier “refuses to pay compensation, costs,
or attorney fees due under an order.” To
“refuse” means “to show or express a
positive unwillingness to comply with (as something asked,
demanded, or expected).” Webster’s Third New
Int’l Dictionary 1910 (unabridged ed 2002).
Accordingly, the plain text of the first clause of ORS
656.382(1) requires that a carrier show an unwillingness to
comply with an order. It does not require a finding that the
carrier do so unreasonably.
That
interpretation is supported by...
