656.388
Approval of attorney fees required; lien for fees; fee schedule; adjustment;
report of legal service costs.
(1) No claim or payment for legal services by an attorney representing the
worker or for any other services rendered before an Administrative Law Judge or
the Workers’ Compensation Board, as the case may be, in respect to any claim or
award for compensation to or on account of any person, shall be valid unless
approved by the Administrative Law Judge or board, or if proceedings on appeal
from the order of the board with respect to such claim or award are had before
any court, unless approved by such court. In cases in which a claimant finally
prevails after remand from the Supreme Court, Court of Appeals or board, then
the Administrative Law Judge, board or appellate court shall approve or allow a
reasonable attorney fee for services before every prior forum as authorized
under ORS 656.307 (5), 656.308 (2), 656.382 or 656.386. No attorney fees shall
be approved or allowed for representation of the claimant before the managed
care organization.
(2) Any claim for
payment to a claimant’s attorney by the claimant so approved shall, in the
manner and to the extent fixed by the Administrative Law Judge, board or such
court, be a lien upon compensation.
(3) If an injured
worker signs an attorney fee agreement with an attorney for representation on a
claim made pursuant to this chapter and additional compensation is awarded to
the worker or a settlement agreement is consummated on the claim after the fee
agreement is signed and it is shown that the attorney with whom the fee
agreement was signed was instrumental in obtaining the additional compensation
or settling the claim, the Administrative Law Judge or the board shall grant
the attorney a lien for attorney fees out of the additional compensation
awarded or proceeds of the settlement in accordance with rules adopted by the
board governing the payment of attorney fees.
(4) The board
shall, after consultation with the Board of Governors of the Oregon State Bar,
establish a schedule of fees for attorneys representing a worker and
representing an insurer or self-insured employer, under this chapter. The
Workers’ Compensation Board shall review all attorney fee schedules biennially
for adjustment.
(5) The board
shall, in establishing the schedule of attorney fees awarded under this
chapter, consider the contingent nature of the practice of workers’
compensation law and the necessity of allowing the broadest access to attorneys
by injured workers and shall give consideration to fees earned by attorneys for
insurers and self-insured employers.
(6) The board
shall approve no claim for legal services by an attorney representing a
claimant to be paid by the claimant if fees have been awarded to the claimant
or the attorney of the claimant in connection with the same proceeding under
ORS 656.268.
(7) Insurers and
self-insured employers shall make an annual report to the Director of the
Department of Consumer and Business Services reporting attorney salaries and
other costs of legal services incurred pursuant to this chapter. The report
shall be in such form and shall contain such information as the director
prescribes. [Formerly 656.590; 1983 c.568 §3; 1987 c.884 §35; 1990 c.2 §30;
1995 c.332 §44; 2007 c.908 §3; 2015 c.521 §8]
Notes of Decisions
Greenslitt v. City of Lake Oswego (1988)
or · cites it 12×
“386 (recovery of attorney fees in appeal on denied claim) and ORS 656.388 (circuit court review of attorney fees).”
Short v. State Accident Insurance Fund Corp. (1988)
or · cites it 8×
“” Although an exercise in fact matching may reveal similarity between this case and Wattenbarger, that case does not stand for approval of summary circuit court proceedings under any given facts.”
Jones v. Oregon State Correctional Institution (1991)
orctapp · cites it 6×
“The court's statement, quoted above, follows the plain meaning of the statute: The claimant must prevail finally before the forum in which the claimant is the initiating party.”
Arvidson v. Liberty Northwest Ins. Corp. (2020)
or · cites it 2×
“726 and ORS 656.388 have been amended since claimant was injured; however, because those amendments do not affect our analysis, we refer to the current version of those statutes in this opinion.”
Wattenbarger v. Boise Cascade Corp. (1986)
or · cites it 5×
“” 1 Procedures for fixing attorney fees in workers’ compensation cases are set out in ORS 656.388 as follows: “(1) No claim for legal services or for any other services rendered before a referee or the board of the Court of Appeals or Supreme Court shall be valid unless approved…”
Saif Corp. v. Allen (1994)
or · cites it 2×
“386(1) is not the applicable attorney fee statute and the ORS 656.388(2) route to the circuit court is not available.”
Shearer's Foods v. Hoffnagle (In re Hoffnagle) (2018)
or · cites it 2×
“Attorneys representing workers' compensation claimants may not recover a fee for legal services performed on appeal *627 unless the court approves the fee, ORS 656.388, and the court's authority to award a fee to claimant's counsel "is limited to the authority granted by statute.”
Wattenbarger v. Boise Cascade Corp. (1986)
or · cites it 5×
“" [1] Procedures for fixing attorney fees in workers' compensation cases are set out in ORS 656.388 as follows: "(1) No claim for legal services or for any other services rendered before a referee or the board of the Court of Appeals or Supreme Court shall be valid unless…”
Cayton v. Safelite Glass Corp. (2013)
orctapp · cites it 4×
“We stated, further, that, if claimant finally prevailed on remand through a determination that employer acted unreasonably in resisting payment of compensation, “ORS 656.388 allows him to request attorney fees for services before every prior forum, as authorized by ORS 656.”
Mieras v. Dyncorp (1996)
nmctapp · cites it 2×
“1995); Or.Rev.Stat. § 656.388 (1995); S.D.Codified Laws Ann.”
Amfac, Inc. v. Garcia-Maciel (1989)
orctapp · cites it 5×
“See ORS 656.388(1). The Board based the denial on petitioners’ failure to file their requests within 15 days after the last brief was filed in each of the proceedings.”
SAIF Corp. v. Wart (2004)
orctapp · cites it 2×
“In the event a dispute arises as to the amount allowed by the referee or board or appellate court, that amount shall be settled as provided for in ORS 656.388(2). Attorney fees provided for in this section shall be paid by the insurer or self-insured employer.”
— Or. Rev. Stat. § 656.388(1) — 20 cases
Cayton v. Safelite Glass Corp. (2013)
orctapp
“We stated, further, that, if claimant finally prevailed on remand through a determination that employer acted unreasonably in resisting payment of compensation, “ORS 656.388 allows him to request attorney fees for services before every prior forum, as authorized by ORS 656.”
Arvidson v. Liberty Northwest Ins. Corp. (2020)
or
“726 and ORS 656.388 have been amended since claimant was injured; however, because those amendments do not affect our analysis, we refer to the current version of those statutes in this opinion.”
— Or. Rev. Stat. § 656.388(2) — 40 cases
Jones v. Oregon State Correctional Institution (1991)
orctapp
“The court's statement, quoted above, follows the plain meaning of the statute: The claimant must prevail finally before the forum in which the claimant is the initiating party.”
Short v. State Accident Insurance Fund Corp. (1988)
or
“” Although an exercise in fact matching may reveal similarity between this case and Wattenbarger, that case does not stand for approval of summary circuit court proceedings under any given facts.”
Saif Corp. v. Allen (1994)
or
“386(1) is not the applicable attorney fee statute and the ORS 656.388(2) route to the circuit court is not available.”
SAIF Corp. v. Wart (2004)
orctapp
“In the event a dispute arises as to the amount allowed by the referee or board or appellate court, that amount shall be settled as provided for in ORS 656.388(2). Attorney fees provided for in this section shall be paid by the insurer or self-insured employer.”
— Or. Rev. Stat. § 656.388(3) — 1 case
— Or. Rev. Stat. § 656.388(4) — 5 cases
Wattenbarger v. Boise Cascade Corp. (1986)
or
“” 1 Procedures for fixing attorney fees in workers’ compensation cases are set out in ORS 656.388 as follows: “(1) No claim for legal services or for any other services rendered before a referee or the board of the Court of Appeals or Supreme Court shall be valid unless approved…”
Wattenbarger v. Boise Cascade Corp. (1986)
or
“" [1] Procedures for fixing attorney fees in workers' compensation cases are set out in ORS 656.388 as follows: "(1) No claim for legal services or for any other services rendered before a referee or the board of the Court of Appeals or Supreme Court shall be valid unless…”
— Or. Rev. Stat. § 656.388(5) — 2 cases
— Or. Rev. Stat. § 656.388(6) — 1 case
— Or. Rev. Stat. § 656.388(7) — 1 case
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