In re Compensation of Taylor, 052021 ORWC, 14-03708

Docket NºWCB 14-03708
Case DateMay 20, 2021
73 Van Natta 439 (2021)
In the Matter of the Compensation of CHRISTOPHER TAYLOR, Claimant
WCB No. 14-03708
Oregon Worker Compensation
May 20, 2021
          Matthew U’ren LLC, Claimant Attorneys           SAIF Legal Salem, Defense Attorneys           Reviewing Panel: Members Ousey and Woodford. [1]          ORDER ON REMAND          This matter is before the Board on remand from the Court of Appeals. Taylor v. SAIF, 295 Or.App. 199 (2018). The court has reversed the Board’s order in Christopher Taylor, 68 Van Natta, that modified an Administrative Law Judge’s (ALJ’s) order and awarded an $8,000 carrier-paid attorney fee under ORS 656.386(1) for claimant’s counsel’s services related to a rescinded denial, whereas the ALJ awarded $5,000. Reasoning that the Board’s order did not articulate a sufficient connection between the factors prescribed in OAR 438-015-0010(4) and the attorney fee award to allow the court to understand the order’s reasoning, the court has remanded for reconsideration. After further consideration of the record, as well as the parties’ supplemental briefing, the previous attorney fee award is modified.          FINDINGS OF FACT          We continue to adopt the Administrative Law Judge’s (ALJ’s) “Findings of Fact” with the following summary and supplementation.          On May 18, 2014, claimant, a delivery driver, filed a claim for a respiratory condition and other symptoms he attributed to engine exhaust from his employer’s vehicle. (Exs. 1, 2, 3). Claimant’s former counsel requested a hearing, asserting a de facto denial of the claim. (Hearing File).          Dr. Burton examined claimant at the SAIF Corporation’s request. (Ex. 8). He opined that there was no evidence linking claimant’s symptoms to a toxic exposure from a vehicle. (Ex. 8-8).          Claimant’s counsel began representing him on March 11, 2015, and subpoenaed vehicle maintenance records from the employer. (Hearing File); (Ex. A). On May 27, 2015, claimant’s counsel deposed Dr. Burton, asking him [73 Van Natta 440] detailed questions about the state of the employer’s vehicle at the time of the claim and claimant’s possible toxic exposure. (Ex. 10). The deposition lasted approximately 45 minutes. (Id.) Additionally, counsel secured an opinion from Dr. Dreisin in support of the claim. Specifically, he had two telephone conferences with Dr. Dreisin and sent him questions and relevant records, including Dr. Burton’s deposition transcript. Based on the conferences and Dr. Dreisin’s review of the records, counsel ultimately drafted a three-page concurrence report, which Dr. Dreisin signed. (Ex. 11).          On July 25, 2015, moments before the hearing was set to convene, SAIF agreed to rescind the denial. Thereafter, the parties submitted written arguments concerning the determination of a reasonable attorney fee award regarding the “pre-hearing” rescission of SAIF’s denial. See ORS 656.386(1)(a).          Claimant’s counsel requested a $12,000 attorney fee award based on approximately 30 hours spent on the case and a $400 contingent hourly rate. SAIF objected to the request, disputing that the reported 30 hours were warranted...

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