In re Comp. of Kelly, WCB Case No. 20-01787
| Decision Date | 24 June 2021 |
| Docket Number | WCB Case No. 20-01787 |
| Citation | 73 Van Natta 520 |
| Parties | In the Matter of the Compensation of ROBERT P. KELLY, Claimant |
| Court | Oregon Workers' Compensation Division |
ORDER ON REVIEW
Julene M Quinn LLC, Claimant Attorneys
Reviewing Panel: Members Ousey, Curey, and Wold.
Claimant requests review of Administrative Law Judge (ALJ) Pardington's order that: (1) did not direct the SAIF Corporation to pay claimant's counsel an attorney fee under ORS 656.262(14)(a) for counsel's participation in an interview; and (2) declined to award penalties and attorney fees for allegedly unreasonable claim processing. On review, the issues are claim processing, penalties, and attorney fees. We reverse.
We adopt the ALJ's "Findings of Fact" with the following summary and supplementation.
On February 5, 2020, claimant's counsel participated in claimant's interview concerning SAIF's claim investigation. (Ex. 16).
On February 14, 2020, claimant's counsel submitted a signed bill to SAIF, requesting a $128.24 attorney fee for his time participating in the 28-minute interview. (Ex. 17). Claimant's attorney signed the bill on February 11, 2020, and SAIF received it on February 14, 2020. (Id.) Claimant's counsel had previously submitted his retainer agreement to SAIF. (Ex. 15).
On February 20, 2020, SAIF mailed a $128.24 check to claimant's attorney. (Exs. 18, 25; Tr. 22-24, 39, 40). However, claimant's attorney's office did not receive the check. (Ex. 22).
On March 17, 2020, claimant's attorney's bookkeeper emailed the claim adjuster assigned to the claim, inquiring about the check's status. (Ex. 22; Tr. 11). The claim adjuster did not respond to the email. (Ex. 22-1; Tr. 13).
On March 24, 2020, claimant's counsel's legal assistant emailed the claim adjuster, again inquiring about the check's status. (Ex. 19). The claim adjuster did not respond to the legal assistant's email. (Tr. 13, 14). The claim adjuster testified that she forgot to hit "send" concerning her email response to the inquiry because she was working from home. (Id.)
The claim adjuster and an information technology analyst with SAIF confirmed that claimant's counsel's check had not been cashed. (Tr. 15, 16, 45).
On April 6, 2020, claimant's counsel requested a hearing, contending that SAIF failed to pay his interview bill under ORS 656.262(14)(a). (Ex. 20).
On April 24, 2020, SAIF provided claimant's counsel with a "replacement-check" form.1 (Ex. 24). Claimant's counsel did not complete the form.
The ALJ found that SAIF paid the interview attorney fee when it mailed the check to claimant's counsel. Accordingly, the ALJ denied claimant's request for "enforcement" of the fee and declined to award penalties/attorney fees under ORS 656.262(11)(a).
On review, claimant contends that the interview attorney fee has not been paid and seeks an order requiring SAIF to issue a replacement check. Based on the following reasoning, we agree with claimant's contention.
Under ORS 656.262(14)(a) and OAR 438-015-0033(2), the carrier must "pay the attorney a reasonable attorney fee" for the actual time spent during a worker's interview or deposition. "To obtain" the attorney fee described in OAR 438-015-0033(2), the claimant's attorney must submit a bill within 30 days of the interview.2 See OAR 438-015-0033(3). The bill, at a minimum, must be signed by the claimant's attorney, include the actual time spent during the interview, and include a retainer agreement (unless previously provided). Id.
Here, claimant's attorney (who had previously submitted the retainer agreement) signed the bill and submitted it to SAIF nine days after the interview. (Exs. 15, 17). The bill requested $128.24 for the time claimant's attorney spent participating in the 28-minute interview. (Id.) Thus, claimant's attorney met the requirements to "obtain" the attorney fee under OAR 438-015-0033(2). See OAR 438-015-0033(3).
Yet, it is undisputed that claimant's counsel has not "obtained" the attorney fee. (Ex. 22; Tr. 15, 16, 45). Although SAIF mailed a check within 30 days of receiving the bill, claimant's counsel did not receive the check. (Exs. 18, 22, 25; Tr. 15, 16, 22-24, 39, 40, 45). Furthermore, SAIF confirmed that the check has not been cashed. (Tr. 15, 16, 45).
Under such circumstances, the record persuasively establishes that claimant's counsel has not been paid the ORS 656.262(14)(a) attorney fee. (Ex. 22; Tr. 15, 16, 45). Accordingly, SAIF is directed to issue a replacement check to claimant's counsel in the amount of $128.24.3 See ORS 656.262(14)(a); OAR 438-015-0033(2), (3), (4).
SAIF contends that it timely issued payment because it mailed the check within 30 days of receiving the bill. (Exs. 18, 25; Tr. 22-24, 39, 40); see OAR 438-015-0033(5). However, the instant matter concerns whether claimant's counsel has obtained the payment (not whether payment was timely). See ORS 656.262(14)(a); OAR 438-015-0033(2), (3). For the foregoing reasons, the record persuasively establishes that he has not. (Ex. 22; Tr. 15, 16, 45).
Claimant also seeks penalties and attorney fees, contending that SAIF unreasonably delayed/refused to pay the interview attorney fee. We agree with claimant's contention for the following reasons.
Under ORS 656.262(11)(a), if a carrier unreasonably delays or unreasonably refuses to pay an attorney fee, the carrier is liable for an additional amount up to 25 percent of the amount "then due."4 The standard for determining an unreasonable resistance to the payment is whether, from a legal standpoint, the carrier had a legitimate doubt about its liability. See Int'l Paper Co. v. Huntley, 106 Or App 107, 110 (1991). "Unreasonableness" and "legitimate doubt" are to be considered in light of all the evidence available to the carrier. See Brown v. Argonaut Ins., 93 Or App 588, 591 (1988).
Here, after claimant's counsel did not receive/obtain payment, his office contacted SAIF on two separate occasions inquiring about the status of the check. (Exs. 19, 22; Tr. 11, 13, 14). SAIF did not respond to either inquiry. (Id.) Lacking a response from SAIF, claimant's counsel requested a hearing. (Ex. 20). It was only after the filing of the hearing request that SAIF finally responded (18 days after claimant's counsel filed the hearing request and 38 days after his office initially notified SAIF that he had not received the check). (Exs. 22-2, 24).
Considering SAIF's obligation under ORS 656.262(14)(a) and OAR 438-015-0033(2) and (3), to pay claimant's counsel's interview attorney fee (including that he "obtain" the fee, as discussed above), we find that SAIF lacked a legitimate doubt regarding its liability to pay claimant's counsel's attorney fee. See ORS 656.262(14)(a); OAR 438-015-0033(2), (3). Consequently, we conclude that SAIF's failure to respond to claimant's counsel's multiple inquiries regarding the lack of payment (for which it provides no persuasive explanation) was unreasonable.5 See ORS 656.262(11)(a); Nancy E. Eggert, 69 Van Natta 791, 797 (2017) ().
Accordingly, claimant is awarded a penalty equal to 25 percent of any "amounts then due" (i.e., the $128.24 attorney fee) for SAIF's unreasonable delay/failure to pay the ORS 656.262(14)(a) attorney fee. See ORS 656.262(11)(a).
Finally, claimant's counsel is also entitled to a penalty-related attorney fee for services at the hearing level and on review regarding SAIF's unreasonable delay/refusal to pay the interview attorney fee. See ORS 656.262(11)(a); SAIF v. Traner, 273 Or App 310, 320-21 (2015); Stanley T. Castle, 67 Van Natta 2055, 2057 (2015). That attorney fee shall be in a reasonable amount that is proportionate to the benefit to claimant and takes into consideration the factors set forth in OAR 438-015-0010(4), giving primary consideration to the results achieved and the time devoted to the case. See OAR 438-015-0110(1), (2). Based on our review of the record and considering these factors (including consideration of those portions of the hearing record and claimant's appellate briefs that concerned this unreasonable claim processing issue) we award $1,000 as a reasonable penalty-related attorney fee, payable by SAIF.
The ALJ's order dated July 17, 2020, is reversed. SAIF is directed to pay claimant's counsel $128.24 for his "interview" services pursuant to ORS 656.262(14)(a). Claimant is awarded a penalty equal to 25 percent of any "amounts then due" (i.e., the $128.24 attorney fee) as a result of this order. For services at the hearing level and on review regarding SAIF's unreasonable delay/refusal to pay the ORS 656.262(14)(a) attorney fee, claimant's attorney is awarded $1,000, payable by SAIF.
1. We have not considered Exhibit 23, which was withdrawn as an exhibit and not admitted into the hearing record. (Tr. 7).
2. OAR 438-015-0033 does not define "obtain." Therefore, we apply its "plain, natural, and ordinary meaning." See PGE v. BOLI, 317 Or 606, 611 (1993). "Obtain" means "[t]o get hold of by effort; to get possession of; to procure; to acquire in any way." See Mekayla N. Dancingbear, 70 Van Natta 550, 553 (2018) ().
3. SAIF contends that claimant's counsel must first complete a "replacement-check" form before it will issue a replacement check. (Ex. 24). In support of its position, SAIF cites ORS 293.475, which provides that before a "board, department, commission, and officers of the state" can issue a replacement check, they must secure a written statement from the payee that they are the lawful owner and that the check has been lost, destroyed, or stolen.
However, ORS chapter 293 does...
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