SAIF Corp. v. Traner (In re Traner), 1104729
| Decision Date | 26 August 2015 |
| Docket Number | 1104729,A152085. |
| Citation | 365 P.3d 1078,273 Or.App. 310 |
| Parties | In the Matter of the Compensation of Emma R. Traner, Claimant. SAIF CORPORATION and State Operated Community Programs, Petitioners, v. Emma R. TRANER, Respondent. |
| Court | Oregon Court of Appeals |
On Respondent's Petition for Attorney Fees and Cost Bill April 15, 2015. Petitioners' Objection to Respondent's Petition and Request for Findings Under ORAP 13.107 April 29, 2015. Respondent's Reply to Objection to Petition for Attorney Fees May 13, 2015. Decided Aug. 26, 2015.
Julene M. Quinn, Albany and Julene M. Quinn LLC for petition.
David L. Runner, Salem, for response.
Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.
After prevailing on judicial review, this workers' compensation claimant petitions for an award of attorney fees of $16,800 under ORS 656.262(11) and ORS 656.382(2). SAIF contends that the appeal concerned only an award of attorney fees, not compensation, and, therefore, claimant cannot recover attorney fees. Alternatively, SAIF contends that any award should be limited by statute to a lesser amount. We conclude that this prevailing claimant may recover attorney fees on appeal independently under ORS 656.262(11), although she recovered or defended no award of compensation on judicial review as ORS 656.382(2) would have required. Because we also conclude that there are no "extraordinary circumstances," claimant's award of attorney fees will be limited to the applicable statutory limit of $3,334.
In the principal case, SAIF v. Traner, 270 Or.App. 67, 346 P.3d 1248 (2015), we held that SAIF unreasonably delayed issuing a denial of claimant's arthralgia claim as a new or omitted condition and that the Workers' Compensation Board ("board") could award claimant an attorney fee even where claimant did not recover compensation or a penalty. The board had agreed with SAIF that claimant's arthralgia was only a symptom of the accepted shoulder injury and was not a new or omitted condition. The board, however, had ruled that SAIF's failure to have formally denied the claim within 60 days was a late and improper denial that justified an award to claimant for attorney fees. See ORS 656.262(7), (11). On judicial review, SAIF contended that it was not required to have given a formal denial when a claim only involved a symptom; that its failure to timely respond was not "unreasonable"; and that no attorney fees were recoverable when claimant had not been awarded a penalty. On each point, we disagreed. Although claimant did not recover compensation, SAIF's appeal was not just about the board's award of attorney fees. It was an appeal resulting in conclusions that a response to a claim was necessary and that the insurer's delay was unreasonable. Claimant vindicated her procedural right to a timely response to her claim.
For her efforts on judicial review, claimant petitioned for $16,800 in attorney fees, relying principally on ORS 656.262(11), the penalty statute, and citing, incidentally, ORS 656.382(2), a more common basis for an award of attorney fees. Treating the latter statute as if it were the only applicable authorization for fees, SAIF objected that ORS 656.382 permits an attorney fee award only when a claimant wins or defends compensation, something that did not happen in this case. If past conventions held true, then SAIF's argument might seem sound, but, for the reasons that follow, claimant has the better argument.
By its own terms, ORS 656.262(11) is an independent authorization for an award of attorney fees. With emphasis on the terms that demonstrate this conclusion, the statute provides:
ORS 656.262(11)(a) (emphases added). Subsection (11) plainly serves as authority for fees when it declares that an offending insurer or employer "shall be liable for * * * attorney fees," and, just as plainly, the subsection refers to itself as authority for fees. The provision repeatedly describes fees "assessed" or "awarded" under this "section," "subsection," or "paragraph." Because this statute makes no reference to any other statute, an award of attorney fees is not dependent upon satisfying any precondition of any other statute. The only condition in ORS 656.262(11) is that the court, board, or administrative law judge must find that the insurer or employer unreasonably delayed payment, acceptance, or denial of a claim.
Attorney fees under this statute have not always been independently authorized. In earlier years, this provision cross-referenced another statute that required recovery or defense of compensation as a prerequisite to recovery of attorney fees. Prior to 1990, the statute provided:
"If the insurer or self-insured employer unreasonably delays or unreasonably refuses to pay compensation, or unreasonably delays acceptance or denial of a claim, the insurer or self-insured employer shall be liable for an additional amount up to 25 percent of the amounts then due plus any attorney fees which may be assessed under ORS 656.382. "
ORS 656.262(10) (1989) (). In this early version of the statute, attorney fees for a penalty were "assessed under ORS 656.382." That former reference to ORS 656.382 spelled trouble for a claimant whose petition for review before this court concerned only an award by the board of a penalty or attorney fees.
As it did in earlier years, ORS 656.382 requires "compensation" as a prerequisite to an award of attorney fees in those situations that the provision governs. In material part, it provides that:
(Emphases added.) In a similar fashion, other statutes provide recovery of attorney fees in other situations when the claimant recovers compensation. ORS 656.385 ; ORS 656.386.
In Saxton v. SAIF, 80 Or.App. 631, 723 P.2d 355, rev. den., 302 Or. 159, 727 P.2d 129 (1986), the claimant argued that his success in defending a referee's award of penalties and attorney fees on appeal to the board should entitle him to an award of attorney fees for defending the penalty and fees as a form of "compensation." We held, as we had before, "that the term ‘compensation’ in ORS 656.382(2) does not include attorney fees." Id. at 633, 723 P.2d 355 (citing Dotson v. Bohemia, Inc., 80 Or.App. 233, 720 P.2d 1345 (1986) ). The claimant was not entitled to attorney fees under ORS 656.382 for defending only an award of penalties or attorney fees.
More recently, in Cayton v. Safelite Glass Corp., 257 Or.App. 188, 195, 306 P.3d 726 (2013), we held that a "claimant's success in obtaining a penalty and attorney fees under ORS 656.262(11) for [an] employer's delay in payment of compensation does not mandate an award of attorney fees under ORS 656.382(1). " (Emphasis added.) Cayton cited Saxton. Id. Insofar as fees were considered "under ORS 656.382(1)," where winning or defending compensation was a prerequisite, the conclusion was unremarkable. Although a tangle of other issues were presented in the case, the issue not presented was whether ORS 656.262(11) independently authorized an award of attorney fees on appeal.
That is the issue that claimant presents now. The answer returns our attention to statutory history. In 1990, the legislature deleted the reference in ORS 656.262 to ORS 656.382 as the basis for assessing attorney fees. For a time, the legislature eliminated the chance to add attorney fees in connection with a penalty. The legislature deleted the clause, "plus any attorney fees which may be assessed under ORS 656.382" and instead gave half the penalty to the claimant's attorney. Or. Laws 1990, ch. 2, § 15. In relevant part, the 1990 change substituted a split fee, providing that:
"If the worker is represented by an...
To continue reading
Request your trial
-
Saif Corp. v. Siegrist (In re Comp. of Siegrist)
... ... In SAIF v. Traner , 273 Or. App. 310, 365 P.3d 1078 (2015), we awarded attorney fees under ORS 656.262(11) (2013), ... ...