In re Compensation of Williams, 011520 ORWC, 13-05123

Case DateJanuary 15, 2020
CourtOregon
72 Van Natta 43 (2020)
In the Matter of the Compensation of JAMES L. WILLIAMS, Claimant
WCB No. 13-05123
Oregon Worker Compensation
January 15, 2020
          Ronald A Fontana, Claimant Attorneys.           SAIF Legal Salem, Defense Attorneys.           Reviewing Panel: En Banc; Members Curey, Ousey, Woodford, Lanning, and Wold.1          SECOND ORDER ON REMAND          We withdrew our previous Order on Remand that had awarded a penalty pursuant to ORS 656.268(5)(d)2 based on the total amount of compensation due claimant at the time of the unreasonable Notice of Closure. We took this action to consider claimant’s request for attorney fees for services before the Court of Appeals and on remand, and to address his contention that our prior awards were inadequately explained and should be increased. Having considered the parties’ respective positions, we proceed with our reconsideration.          We first address claimant’s request for attorney fees under ORS 656.382 and ORS 656.388(1) for services before the court and on remand in securing the ORS 656.268(5)(d) penalty due on the whole amount of compensation awarded at closure, which he asserts that we awarded in our Order on Remand. Because we find ORS 656.388(1) determinative, we begin with that analysis.          ORS 656.388(1) provides:
“No claim or payment for legal services by an attorney representing the worker or for any other services rendered before an [ALJ] or [Board], as the case may be, in respect to any claim or award for compensation to or on account of any person, shall be valid unless approved by the [ALJ] or board, or if proceedings on appeal from the order of the board with respect to such claim or award are had before any court, unless approved by such court. In cases in which a claimant finally prevails after remand [72 Van Natta 44] from the Supreme Court, Court of Appeals or board, then the [ALJ], board or appellate court shall approve or allow a reasonable attorney fee for services before every prior forum as authorized under * * * 656.382 or 656.386. * * *.” (Emphasis added).
         In William J. Lefave, 59 Van Natta (second order on remand), we concluded that, because an attorney fee was not “compensation,” the claimant did not finally prevail after remand “in respect to any claim or award for compensation” as required by ORS 656.388(1), and, therefore, an attorney fee award for the claimant’s counsel’s efforts before every prior forum on that issue was not available. Because a penalty is also not “compensation,” we apply the same reasoning here. Therefore, ORS 656.388(1) does not authorize an attorney fee award for services under these particular circumstances. See Liberty Northwest Ins. Corp. v. Olvera-Chavez, 267 Or.App. 55 (2014) (based on Cayton v. Safelite Glass Corp., 258 Or.App. 522, 524 (2013), the claimant’s counsel was not entitled to an ORS 656.382(1) attorney fee for services on Board review for securing an ORS 656.268(5)(d) penalty because that penalty was not “compensation”); Devynne C Krossman, [70 Van Natta 372], 372 n 1 (2018) (same); Warren D. Duffour, [70 Van Natta 176], 181 n 9 (2018) (on remand) (an ORS 656.268(5)(d) penalty does not constitute “compensation” for purposes of ORS 656.382(1)).          We next address whether claimant’s counsel is entitled to an attorney fee for services before the court under ORS 656.382(3), which provides:3
[72 Van Natta 45] If an employer or insurer raises attorney fees, penalties or costs as a separate issue in a request for hearing, request for review, appeal or cross-appeal to the Court of Appeals or petition for review to the Supreme Court initiated by the employer or insurer under this section, and the Administrative Law Judge, board or court finds that the attorney fees, penalties or costs awarded to the claimant should not be disallowed or reduced, the Administrative Law Judge, board or court shall award reasonable additional attorney fees to the attorney for the claimant for efforts in defending the fee, penalty or costs.
         The first question we address is whether claimant’s appeal to the court on the penalty issue prohibits applicability of ORS 656.382(3). Claimant contends that, pursuant to SAIF v. DeLeon, 352 Or. 130 (2012), the fact that he (as opposed to SAIF) appealed the issue is not determinative. He asserts that, under DeLeon, entitlement to attorney fees is not dependent upon the Board making a specific finding that a penalty not be reduced or eliminated, but rather on claimant ultimately prevailing and securing the penalty he sought. Claimant asserts that our previous reliance on Terlouw v. Jesuit Seminary, 101 Or.App. 493, rev den, 310...

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