In re Comp. of Dancingbear
| Decision Date | 27 April 2018 |
| Docket Number | WCB Case No. 16-04039 |
| Parties | In the Matter of the Compensation of MEKAYLA N. DANCINGBEAR, Claimant |
| Court | Oregon Workers' Compensation Division |
ORDER ON REVIEW
Moore & Jensen, Claimant Attorneys
Reviewing Panel: En Banc. Members Curey, Lanning, Johnson, Ousey, and Wold. Members Lanning and Ousey concur in part and dissent in part.
The SAIF Corporation requests review of Administrative Law Judge (ALJ) Ogawa's order that awarded an insurer-paid attorney fee under ORS 656.383(1) for claimant's counsel's services during the reconsideration proceeding that resulted in an Order on Reconsideration's increased temporary disability award. On review, the issues are jurisdiction and attorney fees.1 We reverse.
We adopt the ALJ's "Findings of Fact" with the following summary.
Claimant was compensably injured on October 17, 2015. (Ex. 31). A Notice of Closure issued on March 9, 2016. (Ex. 49). Claimant requested reconsideration and the appointment of a medical arbiter. She did not attend the arbiter examination.
On August 23, 2016, an Order on Reconsideration modified claimant's medically stationary date and awarded two weeks of additional temporary disability benefits. (Ex. 51-3). The reconsideration order also suspended claimant's benefits under ORS 656.268(8)(e)(B) and (D), because she did not attend the arbiter examination. (Ex. 51-1).
Claimant requested a hearing from the reconsideration order. She sought an assessed attorney fee under ORS 656.383(1) for obtaining increased temporary disability benefits prior to an ALJ's decision.
The ALJ awarded an assessed attorney fee pursuant to ORS 656.383(1). Reasoning that the Order on Reconsideration had awarded additional temporary disability benefits, although those benefits were suspended, the ALJ found that claimant's attorney was instrumental in obtaining that award.
On review, SAIF first contends that the Hearings Division lacked jurisdiction to award an attorney fee under ORS 656.383(1), because the attorney fee issue alone is not a "matter concerning a claim" for purposes of ORS 656.704(3)(a). Based on the following reasoning, we disagree.
Under ORS 656.704(3)(a), the Hearings Division has jurisdiction over "matters concerning a claim," which are defined as "matters in which a worker's right to receive compensation, or the amount thereof, are directly at issue." In addition, under ORS 656.268(9), the Hearings Division may address and resolve "issues arising out of [a] reconsideration order." Jeffrey A. Shultz, 65 Van Natta 829, 831 (2013).
Here, in requesting a hearing from the Order on Reconsideration, claimant sought a carrier-paid attorney fee award under ORS 656.383(1) based on the additional temporary disability benefits granted by the reconsideration order. In other words, claimant asserted that the ORS 656.383(1) attorney fee issue "arose out of" the reconsideration order. Under such circumstances, the Hearings Division was authorized to address claimant's request for an attorney fee award. See ORS 656.268(9); Shultz, 65 Van Natta at 831.
SAIF next contends that ORS 656.383(1) does not apply to the reconsideration process under ORS 656.268. Based on the following analysis, we agree with that contention.
ORS 656.383(1) provides that a claimant's attorney shall be allowed a reasonable assessed fee if: "The claimant's attorney is instrumental in obtaining temporary disability compensation benefits pursuant to ORS 656.210, 656.212, 656.268 or 656.325 prior to a decision by an Administrative Law Judge."
Whether ORS 656.383(1) applies to the reconsideration process is an issue of statutory construction. Accordingly, we examine the text of ORS 656.383(1) in context and in light of any useful legislative history to determine legislative intent. State v. Gaines, 346 Or 160, 171-72 (2009). In interpreting the text of a statute, "words of common usage should be given their plain, natural and ordinary meaning." PGE v. BOLI, 317 Or 606, 611 (1993); Denise Amos, 65 Van Natta 2100, 2102 (2013). We are particularly mindful of the statutory enjoinder "not to insert what has been omitted." ORS 174.101. We assume that the legislature's choice of words was purposeful and, therefore, do not disregard that choice lightly. Martin v. City of Albany, 320 Or 175, 181 (1994); Amos, 65 Van Natta at 2012.
The text of ORS 656.383(1) refers to ORS 656.268 () and does not specifically limit the assessed attorney fee award from being applied to a reconsideration proceeding. Nonetheless, after reviewing the text, context and legislative history of the statute, we conclude that ORS 656.383(1) was not intended to apply to the reconsideration process.
To begin, the statutory context includes other provisions of the same statute and related statutes. Hale v. Klemp, 220 Or App 27, 32 (2008). A related statute, ORS 656.268(6)(c), provides: "In any reconsideration proceeding under this section in which the worker was represented by an attorney, the director shall order the insurer * * * to pay to the attorney, out of the additional compensation awarded, an amount equal to 10 percent of any additional compensation awarded to the worker." (Emphasis added).
That statute mandates an "out-of-compensation" attorney fee in a reconsideration order where the claimant is awarded additional compensation, which would necessarily include temporary disability benefits. Accordingly, if ORS 656.383(1) is interpreted to also provide for an assessed attorney fee for temporary disability benefits awarded by a reconsideration order, that provision would directly conflict with ORS 656.268(6)(c). To interpret ORS 656.383(1) to also provide for a carrier-paid fee for the same services that would warrant an "out-of-compensation" attorney fee under ORS 656.268(6)(c) would be duplicative and would run counter to the proposition that two statutes should not be applied to award penalties/attorney fees for the same conduct. See Cayton v. Safelite Glass Corp., 232 Or App 454, 463 (2009) ().
However, the two statutes can be reconciled by interpreting ORS 656.383(1) as not applying to a claimant's attorney's services during the reconsideration process that result in an Order on Reconsideration awarding temporary disability benefits. Nelson v. SAIF, 212 Or App 627, 634 (2007) (); Alfredo R. Hernandez, 51 Van Natta 71, 74 (1999) (). Under such an interpretation, ORS 656.268(6)(c) provides for an "out-of-compensation" attorney fee for additional temporary disability benefits awarded in a reconsideration order for a claimant's counsel's services during the reconsideration proceeding, while ORS 656.383(1) provides for an assessed attorney fee award if the claimant's counsel is instrumental in obtaining temporary disability benefits after the reconsideration order, but prior to an ALJ's order. See ORS 656.268(6)(g) ().
The legislature's use of the term "obtaining" in ORS 656.383(1) further supports our conclusion. ORS 656.383(1) requires a claimant's attorney to be "instrumental in obtaining" temporary disability benefits for a carrier-paid attorney fee to be awarded. The statute does not define "obtaining." Accordingly, we consider the "plain, natural, and ordinary meaning" of the words. PGE, 317 Or at 611. To "obtain" means "[t]o get hold of by effort; to get possession of; to procure; to acquire in any way." Black's Law Dictionary 972 (5th ed 1979). In contrast, an "award" is "[t]he decision or determination rendered by arbitrators or commissioners, or other private or extrajudicial deciders, upon a controversy submitted to them * * *."2 Id. at 125.
The legislature chose to use the term "obtaining" over "award." Gaines, 346 Or at 171 (); Martin, 320 Or at 181 (). Simply put, the legislature could have, but did not, provide for an attorney fee under ORS 656.383(1) based on an award of temporary disability benefits. Thus, when considered in this light, the use of the term "obtaining" in ORS 656.383(1) indicates that for an assessed fee to be warranted, the claimant's counsel must have been instrumental in procuring the additional temporary disability benefits independent from a "pre-ALJ" administrative decision.3
Accordingly, based on the aforementioned reasoning, interpreting ORS 656.383(1) as not applying to reconsideration proceedings is the most supportable interpretation of the statute. Alternatively, even assuming that ORS 656.383(1) and ORS 656.268(6)(c) cannot be reconciled in a way that gives effect to both statutes, we conclude that ORS 656.268(6)(c), and not ORS 656.383(1), expressly governs attorney fee awards for temporary disability benefits awarded in a reconsideration proceeding. In doing so, we emphasize that ORS 656.268(6)(c) is the more specific of the two statutes because it applies directly to thereconsideration process. See, e.g., Lewis v. CIGNA Ins. Co., 339 Or 342, 345 (2005) (); Chester E. Guthrie, Dcd, 65 Van Natta 1332, 1338 (2013).
Moreover, the legislative history of ORS 656.383 supports our interpretation. The history demonstrates that the statute was intended to replace "out-of-compensation" attorney fee awards for temporary disability benefits obtained...
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