MATTER OF GETTMAN, 60 Van Natta 2862 (Or. Work. Comp. 11/4/2008), WCB Case No. 07-06257.

• Decision Date: 04 November 2008
• Docket Number: WCB Case No. 07-06257.
• Parties: In the Matter of the Compensation of GARY E. GETTMAN, Claimant.
• Court: Oregon Workers' Compensation Division

Page 2862

60 Van Natta 2862

In the Matter of the Compensation of GARY E. GETTMAN, Claimant.

WCB Case No. 07-06257.

Oregon Workers' Compensation Division.

November 4, 2008.

Welch Bruun & Green, Claimant Attorneys.

Radler Bohy & Replogle LLP, Defense Attorneys.

Reviewing Panel: Members Langer, Biehl, and Herman. Member Langer specially concurs.

ORDER ON REVIEW

The self-insured employer requests review of Administrative Law Judge (ALJ) Riechers' order that set aside its denial of claimant's new or omitted medical condition claim for L3-4 and L4-5 stenosis. On review, the issue is compensability.

We adopt and affirm the ALJ's order.

Claimant's attorney is entitled to an assessed fee for services on review. ORS 656.382(2). After considering the factors set forth in OAR 438-015-0010(4) and applying them to this case, we find that a reasonable fee for claimant's attorney's services on review is $3,000, payable by the employer. In reaching this conclusion, we have particularly considered the time devoted to the issue (as represented by claimant's respondent's brief), the complexity of the issue (as compared to compensability disputes generally presented to this forum on appeal), the value of the interest involved¹ (as compared to similar cases litigated before this forum on review), and the risk that claimant's counsel may go uncompensated.

Because our order issues after the effective date of amended ORS 656.386(2) and OAR 438-015-0019, and affirms the ALJ's compensability decision, it is appropriate to award reasonable expenses and costs to claimant for records, expert opinions, and witness fees. See Barbara Lee, 60 Van Natta 1, on recons, 60 Van Natta 139 (2008); Nina Schmidt, 60 Van Natta 169 (2008).

Consequently, in accordance with the aforementioned statute and rule, claimant is awarded reasonable expenses and costs for records, expert opinions, and witness fees, if any, incurred in finally prevailing over the denial, to be paid by the employer. The procedure for recovering this award, if any, is prescribed in OAR 438-015-0019(3).²

ORDER

The ALJ's order dated March 24, 2008 is affirmed. For services on review, claimant's attorney is awarded $3,000, payable by the employer. Claimant is also awarded reasonable expenses and costs for records, expert opinions, and witness fees, if any, incurred in finally prevailing over the denial, to be paid by the employer.

Member Langer, specially concurring.

I agree with the majority's compensability decision, but I disagree with my fellow members' opinion that clarification of the ALJ's cost award is necessary. Consequently, I respectfully submit this concurring opinion.

Claimant prevailed before the ALJ over a denied claim. Therefore, the ALJ awarded claimant reasonable expenses and costs to claimant for record, expert opinions, and witness fees, if any. Nina Schmidt, 60 Van Natta 169 (2008); Barbara Lee, 60 Van Natta 1, on recons, 60 Van Natta 139 (2008). On review, we adopt and affirm the ALJ's order, including the cost award. The majority then again awards costs to claimant for record, expert opinions, and witness fees, if any. In taking this action, the majority explains that it is clarifying the parameters of the ALJ's "generic" cost award

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