Cayton v. Safelite Glass Corp. (In re Comp. of Cayton)

• Decision Date: 19 June 2013
• Docket Number: A148774.,0605262
• Citation: 257 Or.App. 188,306 P.3d 726
• Parties: In the Matter of the Compensation of Anthony D. CAYTON, Claimant. Anthony D. Cayton, Petitioner, v. SAFELITE GLASS CORPORATION, Respondent.
• Court: Oregon Court of Appeals

257 Or.App. 188

306 P.3d 726

In the Matter of the Compensation of Anthony D. CAYTON, Claimant.Anthony D. Cayton, Petitioner,

v.SAFELITE GLASS CORPORATION, Respondent.

0605262; A148774.

Court of Appeals of Oregon.

Argued and Submitted July 9, 2012.

Decided June 19, 2013.

Ronald A. Fontana, Portland, argued the cause and filed the brief for petitioner.

Sommer E. Tolleson waived appearance for respondent.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

WOLLHEIM, J.

Claimant filed this petition for judicial review from a Workers' Compensation Board (the board) order on remand that awarded claimant a penalty for employer's untimely payment of a lump sum award of permanent partial disability, but reduced claimant's requested insurer-paid attorney fees under ORS 656.262(11)(a)¹ from $8,325 to $1,500, and rejected claimant's request for additional attorney fees under ORS 656.382(1).² We conclude that, as previously ordered by this court in an unpublished order, claimant is entitled to an award of appellate attorney fees in the amount of $8,236.25 for having previously prevailed on judicial review. We further conclude that we are unable to review the reasonableness of the board's award of penalty-related attorney fees of $1,500 under ORS 656.262(11), because the board did not explain why it awarded less than $8,325, the amount that claimant requested. Finally, we affirm the board's ruling that claimant is not entitled to attorney fees under ORS 656.382(1) for services at the hearing and board levels.

Claimant suffered a compensable occupational disease. Employer issued a notice of closure awarding claimant 54 percent scheduled permanent partial disability (PPD) for each hand. Claimant requested reconsideration, and an order on reconsideration increased the award of PPD to 82 percent for each hand. On July 25, 2006, before the order had become final, claimant waived his right to appeal the order and sought a lump sum payment of the award pursuant to ORS 656.230(1) (2005).³ Claimant requested the lump sum payment by transmitting a form to employer as provided in OAR 436–060–0060 (2006).⁴ Employer had 14 days to respond to claimant's request for lump sum payment. Employer did not respond by either paying the benefits or presenting the matter to the director within 14 days, as provided in ORS 656.230(1) and OAR 436–060–0060 (2006). Claimant filed a request for hearing on August 22, 2006, and employer paid the lump sum award in full eight days later.

Claimant continued to pursue the hearing and sought a determination that employer had unreasonably delayed payment of compensation and that, as a result, claimant was entitled to a penalty and attorney fees, pursuant to ORS 656.262(11)(a) and ORS 656.382(1). The ALJ and the board rejected claimant's contention, concluding that, because the order on reconsideration had not yet become final at the time of claimant's request for a lump sum payment, and because employer had not waived its right to appeal the award, ORS 656.230(1) and OAR 436–060–0060 (2006) did not require employer to respond within 14 days.

In Cayton v. Safelite Glass Corp., 231 Or.App. 644, 220 P.3d 1190 (2009), we reversed the board. We rejected the board's and the employer's interpretation of ORS 656.230(1) and OAR 436–060–0060 (2006), and held that an employer's obligation to process a request for lump sum payment under ORS 656.230(1) is triggered either when the appeal period expires or when the claimant waives the right to appeal the order on reconsideration, and that an employer's obligation to process the lump sum payment request does not also depend on the employer's waiver of the right to appeal the order. We reasoned that the statute's reference to a waiver of the right to appeal the “adequacy” of the award logically applies to a claimant, because only a claimant would complain that an award is inadequate. Id. at 650–51, 220 P.3d 1190. In view of our conclusion that ORS 656.230(1) and OAR 436–060–0060 (2006) were applicable and that, under those provisions, employer was required to respond to claimant's request within 14 days, we remanded the case to the board for reconsideration of claimant's request for the assessment of penalties and attorney fees.

Before this court, claimant sought attorney fees for having prevailed on judicial review. We held, by unpublished order, that claimant had prevailed on appeal. We made a conditional award of $8,236.25 in appellate attorney fees for services on review. We stated, further, that, if claimant finally prevailed on remand through a determination that employer acted unreasonably in resisting payment of compensation, “ORS 656.388 allows him to request attorney fees for services before every prior forum, as authorized by ORS 656.382.” We conditioned the actual award of attorney fees for services on review on the ultimate outcome of the case on remand. ORAP 13.10(3).⁵ We ordered:

“IT IS HEREBY ORDERED that claimant is awarded costs and disbursements in the amount of $448.33 and, contingent on the outcome of the remand, is entitled to an award of appellate attorney fees in the amount of $8,236.25.”

On remand, the board reconsidered whether employer's conduct gave rise to a penalty under ORS 656.262(11)(a). A claimant is entitled to a penalty under ORS 656.262(11)(a) “[i]f the insurer or self-insured employer unreasonably delays or unreasonably refuses to pay compensation.” In addressing that question, the board cited the correct legal standard as set forth in our case law—that is, whether, when it failed to make the payment, employer had a legitimate doubt as to its liability. See, e.g., Brown v. Argonaut Insurance Company, 93 Or.App. 588, 591, 763 P.2d 408 (1988) (applying that standard to attorney fee awards under what is now ORS 656.262(11) and under ORS 656.382(1)).

The board rejected claimant's contention that employer had unreasonably refused to pay claimant's award in a lump sum. The board reasoned that, before this court's prior opinion in this case, Cayton, 231 Or.App. at 650, 220 P.3d 1190 (holding that the provision in ORS 656.230(1) for a waiver of the right to appeal the adequacy of the award does not apply to employers), employer had a legitimate doubt as to its obligation to make the lump sum payment before the 30–day appeal period had expired under ORS 656.268(6)(g). Thus, the board concluded, employer's refusal to make the lump sum award within 14 days of claimant's request was not unreasonable.

The board concluded, however, that employer's failure, within 14 days of claimant's request, to either submit claimant's lump sum application to the director or to pay the lump sum was an unreasonable delay in the payment of compensation, ORS 656.262(11), reasoning that employer could have had no legitimate doubt that, if it disagreed with claimant's request, employer was required to refer claimant's request for lump sum payment to the director by August 8, 2006, within 14 days of claimant's request, as required by ORS 656.230(1). Employer never referred the matter to the director. Instead, employer waited until August 30, eight days after claimant filed the request for hearing, to pay the full amount of claimant's award. For employer's unreasonable conduct in failing to act, the board assessed a penalty under ORS 656.262(11) equal to 10 percent of the “amounts then due” at the time of the unreasonable conduct, claimant's unpaid award as of August 8, 2006.

ORS 656.262(11) provides that when an employer unreasonably refuses to pay or delays payment of compensation, the worker is entitled to a penalty “plus any attorney fees assessed under this section.” In addition to the penalty, the board, on remand, concluded that claimant's attorney was entitled to a penalty-related attorney fee of $1,500, to be paid by employer. The board relied on OAR 438–015–0110(1) and (2), which required the board to consider the benefit to claimant, the result achieved, and the time devoted by claimant's attorney.

Claimant's attorney sought reconsideration of the board's order on remand, requesting additional attorney fees as had been ordered by this court, and additional attorney fees under ORS 656.382(1) and ORS 656.388(1), for services provided at the hearing level and before the board on review and on remand. As support, claimant submitted to the board this court's order awarding attorney fees on appeal contingent on the outcome of the case on remand, and specifically cited this court's statement that, if claimant finally prevailed on remand, ORS 656.388(1) “allows him the request attorney fees for services provided before every prior forum as authorized by ORS 656.382.”

The board rejected claimant's contention that he was entitled to an award of attorney fees above $1,500. Emphasizing the phrase “as authorized by ORS 656.382,” the board reasoned that this court's order only allowed claimant to request fees as authorized by that statute, but did not require an award of fees if the board determined that attorney fees were not authorized by the statute. The board further concluded that claimant is not entitled to attorney fees under ORS 656.382(1) for services in obtaining a penalty or attorney fees, and that the board lacked authority to award additional fees to claimant's attorney.

On judicial review, in his third and fourth assignments of error, claimant challenges the board's determination that employer did not unreasonably refuse to pay compensation, and asserts for that reason that there are really two bases for an award of attorney fees—a refusal and a delay—thereby justifying an additional attorney fees award. We reject that contention. It is undisputed that employer did not timely make a lump sum payment of claimant's benefits, but there is no evidence on this record of a refusal to pay compensation. In fact, before making the lump sum payment as requested, employer had made a monthly installment payment of benefits. Claiman...