656.385
Attorney fees in cases regarding certain medical service or vocational
rehabilitation matters; rules; limitation; penalties. (1) In all cases involving a
dispute over compensation benefits pursuant to ORS 656.245, 656.247, 656.260,
656.327 or 656.340, where a claimant finally prevails after a proceeding has
commenced, the Director of the Department of Consumer and Business Services,
the Administrative Law Judge or the court shall require the insurer or
self-insured employer to pay a reasonable attorney fee to the claimant’s
attorney. In such cases, where an attorney is instrumental in obtaining a
settlement of the dispute prior to a decision by the director, an
Administrative Law Judge or the court, the director, Administrative Law Judge
or court shall require the insurer or self-insured employer to pay a reasonable
attorney fee to the claimant’s attorney. The attorney fee must be based on all
work the claimant’s attorney has done relative to the proceeding at all levels
before the department or court. The attorney fee assessed under this section
must be proportionate to the benefit to the injured worker. The director shall
adopt rules for establishing the amount of the attorney fee, giving primary
consideration to the results achieved and to the time devoted to the case. An
attorney fee awarded pursuant to this subsection may not exceed $4,000 absent a
showing of extraordinary circumstances. The maximum attorney fee awarded under
this subsection shall be adjusted annually on July 1 by the same percentage
increase as made to the average weekly wage defined in ORS 656.211, if any.
(2) If an insurer
or self-insured employer refuses to pay compensation due under, or attorney
fees related to, ORS 656.245, 656.247, 656.260, 656.327 or 656.340 pursuant to
an order of the director, an Administrative Law Judge or the court or otherwise
unreasonably resists the payment of such compensation or attorney fees, the
insurer or self-insured employer shall pay to the attorney of the claimant a
reasonable attorney fee as provided in subsection (3) 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.
(3) If a request
for a contested case hearing, review on appeal or cross-appeal to the Court of
Appeals or petition for review to the Supreme Court is initiated by an insurer
or self-insured employer, and the director, Administrative Law Judge or court finds
that all or part of the compensation awarded under ORS 656.245, 656.247,
656.260, 656.327 or 656.340 to a claimant, or attorney fees under this section,
should not be disallowed or reduced, the insurer or self-insured employer shall
be required to pay to the attorney of the claimant a reasonable attorney fee in
an amount set by the director, Administrative Law Judge or court for legal
representation by an attorney for the claimant at the contested case hearing,
review on appeal or cross-appeal.
(4) If upon
reaching a final contested case decision where such contested case was
initiated by an insurer or self-insured employer it is found that the insurer
or self-insured employer initiated the contested case hearing for the purpose
of delay or other vexatious reason or without reasonable ground, the director,
Administrative Law Judge or court may order the insurer or self-insured
employer to pay to the claimant such penalty not exceeding $750 and not less
than $100 as may be reasonable in the circumstances.
(5) Penalties and
attorney fees awarded pursuant to this section by the director, an
Administrative Law Judge or the courts shall be paid for by the employer or
insurer in addition to compensation found to be due to the claimant. [1995
c.332 §42d; 2003 c.756 §2; 2005 c.26 §13; 2009 c.526 §4; 2015 c.521 §6]
Notes of Decisions
Liberty Nw. Ins. Corp. v. Watkins, 227 P.3d 1134 (Or. 2010).
· cites it 6× “The medical review unit (MRU) found that a van was reasonable and appropriate for claimant’s condition and subsequently issued an order that required insurer to purchase the wheelchair-accessible van and to pay a fee to claimant’s attorney pursuant to the mandatory attorney fee…”
Liberty Nw. Ins. v. Watkins, 198 P.3d 960 (Or. Ct. App. 2008).
· cites it 14× “Claimant responded that an award of attorney fees was proper under ORS 656.385. *602 ORS 656.385(1) provides, in part: “In all cases involving a dispute over compensation benefits pursuant to ORS 656.”
SAIF Corp. v. Traner, 365 P.3d 1078 (Or. Ct. App. 2015).
· cites it 3× “In material part, it provides that: “(1) If an insurer or self-insured employer refuses to pay compensation due under an order of an Administrative Law Judge, board or court, or otherwise unreasonably resists the payment of compensation, except as provided in ORS 656.385, the…”
SAIF Corp. v. Bales, 360 P.3d 1281 (Or. Ct. App. 2015).
· cites it 3× “704(3)(b)(B), the requirements for an award of attorney fees to a prevailing claimant are set forth in ORS 656.385. The parties disagree about whether ORS 656.”
Schoch v. Leupold & Stevens, 934 P.2d 410 (Or. 1997).
“382(1) provides, in part: “If an insurer or self-insured employer refuses to pay compensation due under an order of an Administrative Law Judge, board or court, or otherwise unreasonably resists the payment of compensation, except as provided in ORS 656.385, the employer or…”
Walker v. Providence Health Sys. Oregon, 298 P.3d 38 (Or. Ct. App. 2013).
“382(1) provides: “If an insurer or self-insured employer refuses to pay compensation due under an order of an Administrative Law Judge, board or court, or otherwise unreasonably resists the payment of compensation, except as provided in ORS 656.385, the employer or insurer shall…”
Tri-Met, Inc. v. Wolfe, 86 P.3d 111 (Or. Ct. App. 2004).
· cites it 2× “382(1) provides, in part: "If an insurer or self-insured employer refuses to pay compensation due under an order of an Administrative Law Judge, board or court, or otherwise unreasonably resists the payment of compensation, except as provided in ORS 656.385, the employer or…”
Duffour v. Portland Cmty. Coll., 389 P.3d 1162 (Or. Ct. App. 2017).
“382(1) states: “If an insurer or self-insured employer refuses to pay compensation, costs or attorney fees due under an order of an Administrative Law Judge, the board or the court, or otherwise unreasonably resists the payment of compensation, costs or attorney fees, except as…”
Cayton v. Safelite Glass Corp., 306 P.3d 726 (Or. Ct. App. 2013).
“382(1) provides: “If an insurer or self-insured employer refuses to pay compensation due under an order of an Administrative Law Judge, board or court, or otherwise unreasonably resists the payment of compensation, except as provided in ORS 656.385, the employer or insurer shall…”
In Re Comp. of Cayton, 220 P.3d 1190 (Or. Ct. App. 2009).
“382(1) provides: "If an insurer or self-insured employer refuses to pay compensation due under an order of an Administrative Law Judge, board or court, or otherwise unreasonably resists the payment of compensation, except as provided in ORS 656.385, the employer or insurer shall…”
— Or. Rev. Stat. § 656.385(1) — 5 cases
Liberty Nw. Ins. Corp. v. Watkins, 227 P.3d 1134 (Or. 2010).
“The medical review unit (MRU) found that a van was reasonable and appropriate for claimant’s condition and subsequently issued an order that required insurer to purchase the wheelchair-accessible van and to pay a fee to claimant’s attorney pursuant to the mandatory attorney fee…”
Liberty Nw. Ins. v. Watkins, 198 P.3d 960 (Or. Ct. App. 2008).
“Claimant responded that an award of attorney fees was proper under ORS 656.385. *602 ORS 656.385(1) provides, in part: “In all cases involving a dispute over compensation benefits pursuant to ORS 656.”
— Or. Rev. Stat. § 656.385(5) — 1 case
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