Forney v. Western States Plywood

• Decision Date: 28 August 1984
• Citation: 297 Or. 628,686 P.2d 1027
• Parties: In the Matter of the Compensation of Wilma Forney, Claimant. Wilma FORNEY, Petitioner on review, v. WESTERN STATES PLYWOOD, Respondent on review. WCB 80-07538; CA A25760; SC S30476.
• Court: Oregon Supreme Court

Page 1027

686 P.2d 1027

297 Or. 628

In the Matter of the Compensation of Wilma Forney, Claimant Wilma FORNEY, Petitioner on review, v. WESTERN STATES PLYWOOD, Respondent on review.

WCB 80-07538; CA A25760; SC S30476.

Supreme Court of Oregon In banc.

Argued and Submitted June 6, 1984.

Decided Aug. 28, 1984.

Evohl F. Malagon, of Malagon & Associates, Eugene, argued the cause and filed the petition for petitioner on review. On the brief was David C. Force, Eugene.

J.P. Graff, of Schwabe, Williamson, Wyatt, Moore & Roberts, Portland, argued the cause for respondent on review and filed the brief.

JONES, Justice.

The issue in this case is whether claimant is entitled to attorney fees when she prevails in her contention that her employer erroneously unilaterally deducted overpayment of earlier compensation from her subsequent workers' compensation award.

Claimant injured her back in 1974. A determination order awarded her 20 percent for unscheduled permanent partial disability. Employer paid this award. That order was later set aside and a new order was entered in 1978 which again granted an award for 20 percent permanent partial disability. Employer paid that award. Thus, employer twice paid the same award, creating an overpayment.

In 1979, claimant filed an aggravation claim which employer denied. Claimant requested a hearing on the denial. In 1980, the referee ordered employer to accept the claim and pay benefits. Employer did not request review of the referee's order. While processing payment in accordance with the 1980 order, employer discovered the earlier double payment and reduced each payment due under the 1980 aggravation claim until the entire overpayment was recovered.

Claimant requested a hearing pursuant to ORS 656.283(1). At the hearing claimant challenged employer's right to recover the overpayment. The referee found that there had been an overpayment and employer was entitled to recover it. The Workers' Compensation Board affirmed the referee. The Court of Appeals reversed on the ground that the Workers' Compensation Department exceeded its authority in adopting a regulation which permitted recovery of overpayments without prior authorization from the Department, a referee or the Board. 66 Or.App. 155, 672 P.2d 1376. Employer was ordered to repay the recovered overpayment.

Claimant then petitioned for attorney fees pursuant to ORS 656.386(1). Employer filed objections to claimant's petition and the Court of Appeals denied claimant's petition. Claimant petitioned this court for review of the Court of Appeals denial of her petition for attorney fees.

Claimant contends that attorney fees should have been awarded pursuant to ORS 656.382(1) and (2) and ORS 656.386(1). ORS 656.382 provides:

"(1) If an insurer or self-insured employer refuses to pay compensation due under an order of a referee, board or court, or otherwise unreasonably resists the payment of compensation, the employer or insurer shall pay to the claimant or the attorney of the claimant a reasonable attorney's fee as provided in subsection (2) of this section. To the extent an employer has caused the insurer to be charged such fees, such employer may be charged with those fees.

"(2) If a request for hearing, request for review or court appeal is initiated by an employer or insurer, and the referee, board or court finds that the compensation awarded to a claimant should not be disallowed or reduced, the employer or insurer shall be required to pay to the claimant or the attorney of the claimant a reasonable attorney's fee in an amount set by the referee, board or the court for legal representation by an attorney for the claimant at the hearing, review or appeal."

Claimant argues that she was entitled to benefits and employer withheld the benefits which were due and payable under the 1980 aggravation claim and, therefore, she is entitled to attorney fees under ORS 656.382(1).

Employer makes two arguments regarding ORS 656.382. First, in recovering the overpayment which claimant conceded she had received, employer acted in accordance with regulations of the Workers' Compensation Department and therefore employer's conduct was reasonable. Second, it was claimant, not employer or insurer, who requested the hearing, board review and court appeal and ORS 656.382(2) provides for attorney fees only where employer or insurer initiates the request.

Claimant also contends that attorney fees should be awarded pursuant to ORS 656.386(1), which provides:

"In all cases involving accidental injuries where a claimant prevails in an appeal to the Court of Appeals from a board order denying the claim for compensation, the court shall allow a reasonable attorney fee to the claimant's attorney. In such rejected cases where the claimant prevails finally in a hearing before the referee or in a review by the board itself, then the referee or board shall allow a reasonable attorney fee; however, in the event a dispute arises as to the amount allowed by the referee or board, that amount may be settled as provided for in ORS 656.388(2). Attorney fees provided for in this section shall be paid by the insurer or self-insured employer."

Claimant contends that this is a claim involving her right to compensation previously awarded and, therefore, she is entitled to attorney fees under ORS 656.386(1).

We note that the appeal in this case was not from a board order denying a claim for compensation, but from an order sustaining employer's recovery of the overpayment under the Department's regulation. Claimant's only claim was for the amount of compensation due on her aggravation claim. Where responsibility is not an issue and the only question is the amount of compensation due, ordinarily attorney fees are not authorized under ORS 656.386(1) and can only be recoverable from the award under ORS 656.382(2).

It is fundamental that the legislature provides rights and remedies for workers and employers. This court cannot exceed the legislative limitations even though an inequity to the employe or to the employer might result. Unless a specific statute authorizes an award of attorney fees to a claimant, this court cannot award them. Brown v. EBI Companies, 289 Or. 905, 618 P.2d 959 (1980). In examining the first statute claimant relies upon for an award of...