656.386
Recovery of attorney fees, expenses and costs in appeal on denied claim;
attorney fees in other cases.
(1)(a) In all cases involving denied claims where a claimant finally prevails
against the denial in an appeal to the Court of Appeals or petition for review
to the Supreme Court, the court shall allow a reasonable attorney fee to the
claimant’s attorney. In such cases involving denied claims where the claimant
prevails finally in a hearing before an Administrative Law Judge or in a review
by the Workers’ Compensation Board, then the Administrative Law Judge or board
shall allow a reasonable attorney fee. In such cases involving denied claims
where an attorney is instrumental in obtaining a rescission of the denial prior
to a decision by the Administrative Law Judge, a reasonable attorney fee shall
be allowed.
(b) For purposes
of this section, a “denied claim” is:
(A) A claim for
compensation which an insurer or self-insured employer refuses to pay on the
express ground that the injury or condition for which compensation is claimed
is not compensable or otherwise does not give rise to an entitlement to any
compensation;
(B) A claim for
compensation for a condition omitted from a notice of acceptance, made pursuant
to ORS 656.262 (6)(d), which the insurer or self-insured employer does not
respond to within 60 days;
(C) A claim for
an aggravation made pursuant to ORS 656.273 (2) or for a new medical condition
made pursuant to ORS 656.267, which the insurer or self-insured employer does
not respond to within 60 days; or
(D) A claim for
an initial injury or occupational disease to which the insurer or self-insured
employer does not respond within 60 days.
(c) A denied
claim shall not be presumed or implied from an insurer’s or self-insured
employer’s failure to pay compensation for a previously accepted injury or
condition in timely fashion. Attorney fees provided for in this subsection
shall be paid by the insurer or self-insured employer.
(2)(a) If a
claimant finally prevails against a denial as provided in subsection (1) of
this section, the court, board or Administrative Law Judge may order payment of
the claimant’s reasonable expenses and costs for records, expert opinions and
witness fees.
(b) The court,
board or Administrative Law Judge shall determine the reasonableness of witness
fees, expenses and costs for the purpose of paragraph (a) of this subsection.
(c) Payments for
witness fees, expenses and costs ordered under this subsection shall be made by
the insurer or self-insured employer and are in addition to compensation
payable to the claimant.
(d)(A) Payments
for witness fees, expenses and costs ordered under this subsection may not
exceed $3,500 unless the claimant demonstrates extraordinary circumstances
justifying payment of a greater amount.
(B) The amount
that may not be exceeded under this paragraph without demonstrating
extraordinary circumstances shall be adjusted annually on July 1 by the
percentage increase, if any, in the average weekly wage as most recently
computed by the Employment Department under ORS 656.211 and rounded to the
nearest multiple of $100.
(3) If a claimant
requests claim reclassification as provided in ORS 656.277 and the insurer or
self-insured employer does not respond within 14 days of the request, or if the
claimant, insurer or self-insured employer requests a hearing, review, appeal or
cross-appeal to the Court of Appeals or petition for review to the Supreme
Court and the Director of the Department of Consumer and Business Services,
Administrative Law Judge, board or court finally determines that the claim
should be classified as disabling, the director, Administrative Law Judge,
board or court may assess a reasonable attorney fee.
(4) In disputes
involving a claim for costs, if the claimant prevails on the claim for any
increase of costs, the Administrative Law Judge, board, Court of Appeals or
Supreme Court shall award a reasonable assessed attorney fee to the claimant’s
attorney.
(5) In all other
cases, attorney fees shall be paid from the increase in the claimant’s
compensation, if any, except as otherwise expressly provided in this chapter. [Formerly
656.588; 1977 c.804 §14; 1981 c.854 §25; 1983 c.568 §2; 1990 c.2 §29; 1991
c.312 §1; 1995 c.332 §43; 1997 c.605 §3; 2001 c.865 §9; 2007 c.908 §1; 2009
c.526 §5; 2015 c.521 §7; 2025 c.152 §1]
Notes of Decisions
Saif Corp. v. Allen (1994)
or · cites it 175×
“570(4), which requires the "concurrence of two judges * * * to pronounce judgment"? (2) Does ORS 656.386(1), set out below, allow an award of attorney fees when an employer or insurer denies a claim for medical services, but does not deny expressly the compensability of, or its…”
SAIF Corp. v. Wart (2004)
orctapp · cites it 120×
“[6] The legislature significantly amended the language of ORS 656.386 after *1144 Greenslitt was decided.”
Shoulders v. SAIF Corp. (1986)
or · cites it 32×
“588 [renumbered ORS 656.386] (1) In all cases involving accidental injuries occurring on or after July 1, 1957, where a claimant prevails in an appeal to the circuit court from a commission order rejecting his original claim for compensation, the court shall allow a reasonable…”
Shearer's Foods v. Hoffnagle (In re Hoffnagle) (2018)
or · cites it 21×
“386(1)(a), which applies only "where a claimant finally prevails against the denial" of a claim, does not authorize this court to award fees because no party "prevails" when this court denies a petition for review.”
SAIF Corp. v. Allen (1993)
orctapp · cites it 38×
“SAIF and Rose's Restaurant seek review of an order of the Workers' Compensation Board determining that claimant is entitled to attorney fees under ORS 656.386(1) for having prevailed on the question of entitlement to compensation for medical bills related to a compensable claim.”
Taylor v. SAIF (2023)
orctapp · cites it 35×
“We apply our well-established methodology of statutory interpretation, 1 At no point has SAIF asserted that claimant was not entitled to fees at all under ORS 656.386. The litigation has only involved the amount of fees and whether fees should be awarded for various stages of…”
Peabody v. SAIF (2023)
orctapp · cites it 23×
“ORS 656.386 provides, in relevant part: “In all cases involving denied claims where a claim- ant finally prevails against the denial in an appeal to the Court of Appeals or petition for review to the Supreme Court, the court shall allow a reasonable attorney fee to the…”
Ohlig v. FMC Marine & Rail Equipment Division (1981)
or · cites it 31×
“The issue in this worker's compensation case is whether the Court of Appeals should have allowed a reasonable attorney fee to the claimant's attorney to be paid by the direct responsibility employer under ORS 656.386(1) or if the claimant's attorney fees must be paid from his…”
Crawford v. SAIF Corp. (2011)
orctapp · cites it 19×
“On reconsideration, the board identified two requirements for attorney fees under ORS 656.386 and concluded that claimant met neither of them.”
Jones v. Oregon State Correctional Institution (1991)
orctapp · cites it 18×
“In view of the legislature's apparent policy, as expressed in ORS 656.386, that the employer, not the claimant, bear the cost of a claimant's legal representation when a claim is erroneously rejected and it proceeds to the hearing level, the Board's interpretation of the statute…”
SAIF Corp. v. Bales (2015)
orctapp · cites it 35×
“The board awarded fees under ORS 656.386, because this medical services dispute is a “matter concerning a claim,” for which jurisdiction is assigned to the board.”
— Or. Rev. Stat. § 656.386(1) — 149 cases
Saif Corp. v. Allen (1994)
or
“570(4), which requires the "concurrence of two judges * * * to pronounce judgment"? (2) Does ORS 656.386(1), set out below, allow an award of attorney fees when an employer or insurer denies a claim for medical services, but does not deny expressly the compensability of, or its…”
SAIF Corp. v. Wart (2004)
orctapp
“[6] The legislature significantly amended the language of ORS 656.386 after *1144 Greenslitt was decided.”
Shoulders v. SAIF Corp. (1986)
or
“588 [renumbered ORS 656.386] (1) In all cases involving accidental injuries occurring on or after July 1, 1957, where a claimant prevails in an appeal to the circuit court from a commission order rejecting his original claim for compensation, the court shall allow a reasonable…”
SAIF Corp. v. Allen (1993)
orctapp
“SAIF and Rose's Restaurant seek review of an order of the Workers' Compensation Board determining that claimant is entitled to attorney fees under ORS 656.386(1) for having prevailed on the question of entitlement to compensation for medical bills related to a compensable claim.”
Ohlig v. FMC Marine & Rail Equipment Division (1981)
or
“The issue in this worker's compensation case is whether the Court of Appeals should have allowed a reasonable attorney fee to the claimant's attorney to be paid by the direct responsibility employer under ORS 656.386(1) or if the claimant's attorney fees must be paid from his…”
— Or. Rev. Stat. § 656.386(1)(a) — 12 cases
Shearer's Foods v. Hoffnagle (In re Hoffnagle) (2018)
or
“386(1)(a), which applies only "where a claimant finally prevails against the denial" of a claim, does not authorize this court to award fees because no party "prevails" when this court denies a petition for review.”
Taylor v. SAIF (2023)
orctapp
“We apply our well-established methodology of statutory interpretation, 1 At no point has SAIF asserted that claimant was not entitled to fees at all under ORS 656.386. The litigation has only involved the amount of fees and whether fees should be awarded for various stages of…”
Peabody v. SAIF (2023)
orctapp
“ORS 656.386 provides, in relevant part: “In all cases involving denied claims where a claim- ant finally prevails against the denial in an appeal to the Court of Appeals or petition for review to the Supreme Court, the court shall allow a reasonable attorney fee to the…”
— Or. Rev. Stat. § 656.386(1)(b) — 1 case
— Or. Rev. Stat. § 656.386(1)(b)(A) — 6 cases
SAIF Corp. v. Wart (2004)
orctapp
“[6] The legislature significantly amended the language of ORS 656.386 after *1144 Greenslitt was decided.”
Taylor v. SAIF (2023)
orctapp
“We apply our well-established methodology of statutory interpretation, 1 At no point has SAIF asserted that claimant was not entitled to fees at all under ORS 656.386. The litigation has only involved the amount of fees and whether fees should be awarded for various stages of…”
— Or. Rev. Stat. § 656.386(2) — 30 cases
Saif Corp. v. Allen (1994)
or
“570(4), which requires the "concurrence of two judges * * * to pronounce judgment"? (2) Does ORS 656.386(1), set out below, allow an award of attorney fees when an employer or insurer denies a claim for medical services, but does not deny expressly the compensability of, or its…”
Ohlig v. FMC Marine & Rail Equipment Division (1981)
or
“The issue in this worker's compensation case is whether the Court of Appeals should have allowed a reasonable attorney fee to the claimant's attorney to be paid by the direct responsibility employer under ORS 656.386(1) or if the claimant's attorney fees must be paid from his…”
— Or. Rev. Stat. § 656.386(2)(a) — 1 case
— Or. Rev. Stat. § 656.386(2)(b) — 1 case
— Or. Rev. Stat. § 656.386(2)(d) — 1 case
— Or. Rev. Stat. § 656.386(5) — 2 cases
Taylor v. SAIF (2023)
orctapp
“We apply our well-established methodology of statutory interpretation, 1 At no point has SAIF asserted that claimant was not entitled to fees at all under ORS 656.386. The litigation has only involved the amount of fees and whether fees should be awarded for various stages of…”
— Or. Rev. Stat. § 656.386(f) — 1 case
— Or. Rev. Stat. § 656.386(l)(a) — 8 cases
SAIF Corp. v. Bales (2015)
orctapp
“The board awarded fees under ORS 656.386, because this medical services dispute is a “matter concerning a claim,” for which jurisdiction is assigned to the board.”
— Or. Rev. Stat. § 656.386(l)(b) — 1 case
— Or. Rev. Stat. § 656.386(l)(b)(A) — 4 cases
SAIF Corp. v. Bales (2015)
orctapp
“The board awarded fees under ORS 656.386, because this medical services dispute is a “matter concerning a claim,” for which jurisdiction is assigned to the board.”
Crawford v. SAIF Corp. (2011)
orctapp
“On reconsideration, the board identified two requirements for attorney fees under ORS 656.386 and concluded that claimant met neither of them.”
— Or. Rev. Stat. § 656.386(l)(b)(B) — 3 cases
Crawford v. SAIF Corp. (2011)
orctapp
“On reconsideration, the board identified two requirements for attorney fees under ORS 656.386 and concluded that claimant met neither of them.”
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