Shearer’s Foods v. Hoffnagle (In re Hoffnagle)

Decision Date21 June 2018
Docket NumberSC S065049
Citation363 Or. 147,420 P.3d 625
Parties In the Matter of the Compensation of William W. Hoffnagle, Claimant. SHEARER'S FOODS, Petitioner on Review, v. William W. HOFFNAGLE, Claimant/Respondent on Review.
CourtOregon Supreme Court

Jerald P. Keene, Oregon Workers' Compensation Institute LLC, Oceanside, submitted an objection to the petition for attorney fees and the supplemental brief for the petitioner on review.

Julene M. Quinn, Portland, submitted the petition for attorney fees and the supplemental brief for respondent on review.


We previously denied employer's petition for review in this workers' compensation case, Shearer's Foods v. Hoffnagle , 284 Or.App. 859, 395 P.3d 622, rev. den. , 361 Or. 866, ––– P.3d –––– (2017), and now address claimant's petition for an award of attorney fees for time that his counsel spent in response to employer's unsuccessful petition for review. Claimant did not file a response to the petition for review but now seeks an award of fees under ORS 656.386(1)(a) for time spent considering whether or not to file a response to employer's petition for review. Claimant also seeks attorney fees for additional time spent litigating employer's objection to claimant's fee petition. Employer objects that this court lacks authority to award fees and also objects to the amount of requested fee.

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.1

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. , 353 Or. 210, 212, 297 P.3d 439 (2013). The few procedural facts that are pertinent to the legal issue we address begin with employer's denial of claimant's claim for workers' compensation benefits for a lumbar disc condition. Shearer's Foods , 284 Or.App. at 861–62, 395 P.3d 622. An administrative law judge (ALJ) upheld the denial, but the Workers' Compensation Board reversed the ALJ's order, and the Court of Appeals affirmed that Board decision. Id. at 862–63, 867, 395 P.3d 622. Employer then filed a timely petition for review in this court, claimant did not file a response, and this court ultimately denied review. The time for reconsideration of that denial has passed, and the only remaining issue in this court is claimant's petition for attorney fees.

Attorneys representing workers' compensation claimants may not recover a fee for legal services performed on appeal unless the court approves the fee, ORS 656.388, and the court's authority to award a fee to claimant's counsel "is limited to the authority granted by statute." SAIF v. Curry , 297 Or. 504, 511, 686 P.2d 363 (1984). As pertinent to the dispute in this case, ORS 656.386(1)(a) provides:

"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 , 352 Or. 130, 139, 282 P.3d 800 (2012).2 The statute, thus, sets up two pertinent inquiries when a claimant seeks a fee award from this court: (1) whether the case involves a denied claim, and (2) whether the claimant has "finally prevail[ed] against the denial in [a] *** petition for review to the Supreme Court."

There is no dispute, here, that claimant's underlying workers' compensation case involved a denied claim. Rather, the parties' dispute turns on whether claimant "finally prevail[ed] against the denial in [a] *** petition for review to the Supreme Court" when this court denied employer's petition for review. Employer contends that claimant did not "finally prevail" when this court denied review because claimant did not "prevail" when this court denied review. According to employer, "[i]n order to 'prevail' against the denial in a petition for review to the Supreme Court, the court must allow review and then enter a decision favorable to claimant on the merits." (Emphasis in original.)

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.3 See State v. Gaines , 346 Or. 160, 171, 206 P.3d 1042 (2009) (explaining that our first step in construing a statute is to examine the statutory text and context, because "there is no more persuasive evidence of the intent of the legislature than the words by which the legislature undertook to give expression to its wishes"). Because nothing in the text or context of ORS 656.386 suggests that the legislature intended the phrase "finally prevails" to have a specialized definition, we look to the ordinary meaning of the terms for guidance regarding what "the legislature would naturally have intended." DCBS v. Muliro , 359 Or. 736, 746, 380 P.3d 270 (2016). In ordinary usage, to "prevail" against something means "to gain victory by virtue of strength or superiority: win mastery: TRIUMPH[.]" Webster's Third New Int'l Dictionary 1797 (unabridged ed. 2002). In the context of parties to a court proceeding, the meaning of "prevail" is similar: "To obtain the relief sought in an action; win a lawsuit the plaintiff prevailed in the Supreme Court>." Black's Law Dictionary , 1380 (10th ed. 2014). Ordinary definitions of the term "finally" convey either a meaning of temporal relationship: "as the last act or occurrence in a series : in the end : at last : EVENTUALLY," or a meaning of permanency: "for all time : beyond change : IRREVOCABLY, CONCLUSIVELY, DECISIVELY." Webster's at 851. The latter sense of the term "finally" more closely aligns with the concept of "finality" in the legal context. See Black's at 747 (defining "finality" as "[t]he quality of being complete and unchangeable").

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)(a) (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 the claim until this court resolved the petition, in this case by denying review.

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, after 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 comprehensive 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 representation." Schoch v. Leupold & Stevens , 325 Or. 112, 117, 934 P.2d 410 (1997).

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. , 290 Or. 151, 153–54, 619 P.2d 882 (1980), and Curry, 297 Or. at 509, 686 P.2d 363, which quotes U–Cart . Employer reads too much into those cases. The issue in U–Cart was whether, when this court denied a petition for review, the respondent was entitled to an award of costs under a statute that permitted an award of costs to " 'the prevailing party in the judgment or decree' " or under another statute that permitted costs to the prevailing party " 'on an appeal.' "

290 Or. at 153–54, 619 P.2d 882 (quo...

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