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All Contested Case Subject
Attorney Fees
In General
Under ORS 656.385(1), an attorney may be awarded a fee where the attorney is instrumental in obtaining a settlement of a dispute even if the claimant does not prevail, as the two parts of the statute can be read separately. Tabbytite, Shawn,
16 CCHR 378 (2011).
ORS 656.385(1) does not authorize awarding an attorney fee in a vocational services dispute under ORS 656.340 where that dispute was not caused by an action of the insurer or vocational services provider. Olvera-Chavez, Jose L.,
16 CCHR 273 (2011).
Where the dispute concerned attorney fees in connection with services provided to a worker enrolled in an MCO, ORS 656.385 applied, not ORS 656.248, which applies to non-MCO medical disputes. Carpenter, Curt G.,
16 CCHR 217 (2011).
An attorney for a medical provider is not authorized attorney fees because no basis exists in rule or statute. Davis, Charles M.,
14 CCHR 180 (2009).
Time spent by a paralegal can be combined with an attorney's time, when awarding an assessed fee under ORS 656.385(1) and OAR 436-120-008(2), because "professional hours devoted" includes professional level employees, like a paralegal. Lopez, Homar S.,
14 CCHR 137 (2009).
Claimant's attorney is not entitled at this stage to a further assessed fee for prevailing against an attempt to reduce the award of a prior fee. Mitchell, Shiloh M*,
13 CCHR 54 (2008).
When an attorney provides a copy of attorney's retainer agreement to the director, it is reasonable for the attorney to assume that a copy is forwarded to the Hearings Division when the matter is forwarded. Sanchez, Juan A,
12 CCHR 343 (2007).
Because claimant's attorney did not submit a statement of services or request an additional fee on director review, and was already awarded a fee in excess of the $2,000 maximum, and did not allege extraordinary circumstances, the director declined to award an additional fee for services that were over and above that already awarded. Shaddy, Robert,
12 CCHR 306 (2007).
Attorney fees are awarded when the insurer or employer initiates a contested case hearing, and the director or court does not reduce or disallow the compensation award to a claimant. Wagner, Patrick,
12 CCHR 211 (2007).
A CDA does not dispose of attorney fees awarded in future medical treatment disputes under ORS 656.385, where the claimant finally prevails. Watkins, John L,
11 CCHR 313 (2006).
A CDA does not dispose of attorney fees awarded in medical treatment disputes under ORS 656.385, where the claimant finally prevails. Watkins, John L*,
11 CCHR 195 (2006).
ORS 656.385 applies to all claims for which an order relating to the issue on which attorney fees are sought has not become final on or before the effective date of the act. Penfold, Donald M.,
9 CCHR 135 (2004).
Factors Considered
Attorney fees in a medical fee dispute are awarded under ORS 656.385(1) and OAR 436-001-0400 through -0440 and are calculated with the matrix set in OAR 436-001-0410 based on the hours worked and the value of the benefit obtained. Reyes-Flores, Ciro,
16 CCHR 422 (2011).
Where a penalty-related attorney fee is awarded under ORS 656.622(11) the time spent and the benefit achieved must be considered. Williams, Gayle J.,
16 CCHR 406 (2011).
Where a penalty-related attorney fee is awarded under ORS 656.622 an award at the top of the bracket allowed under the matrix is proper even where the attorney spent only minimal time on the case when the benefit achieved was worth almost $50,000.00 and there was no indication the insurer would have paid the medical provider bills without claimant's attorney's actions. Williams, Gayle J.,
16 CCHR 406 (2011).
A penalty-based attorney fee awarded under ORS 656.262(11) must be proportionate to the benefit achieved for the worker and should also be based on the results achieved and time devoted to the case. Parker II, Clay D.,
16 CCHR 389 (2011).
The record supported the amount of fees awarded to the claimant's attorney where it was less than the maximum allowed under OAR 436-010-0410, considereing the value of the medical services in dispute. Rainwater, Bruce D.,
16 CCHR 303 (2011).
Where the claimant prevailed in a mileage reimbursement dispute under ORS 656.245 and the claimant was awarded an additional $50.50, the claimant's attorney was entitled to a fee of $800 based on devoting three hours to the matter, the simplicity of the issue, the low value of the benefit at issue, the high skill of the attorney, and the quality of the representation. Knight, Gary S.,
16 CCHR 300 (2011).
When an attorney fee is awarded under ORS 656.385 in a medical services dispute under ORS 656.245, OAR 436-001-0400 requires considering the following factors in setting the fee: the time devoted to the case, the complexity of the issues involved, the value of the interest involved, the skill of the attorney and the quality of representation, the nature of the proceedings, the benefit secured for the worker, the risk in a particular case that an attorney's efforts may be uncompensated, and the assertion of frivolous issues or defenses. Duffour, Warren D.,
16 CCHR 263 (2011).
Under ORS 656.385 and OAR 436-001-0400, the time a claimant's attorney spent on an issue was not controlling as to the fee award, where other factors warranted awarding more than two hours in fees. Duffour, Warren D.,
16 CCHR 263 (2011).
Considering the factors listed in OAR 436-001-0265, $1,200 is a reasonable fee for claimant's attorney, payable by the insurer. Ellis, Sandra D.,
14 CCHR 126 (2009).
$1,500 is a reasonable attorney fee considering the $1,500 value of claimant's proposed pain management program, the fact that claimant might not have received the program but for his attorney, the fact that the hearing was brief, and finally, the fact that claimant's attorney was not required to submit additional evidence at the hearing. Walters, Matthew A.*,
14 CCHR 121 (2009).
Based on the value of the proposed surgery (greater than $6,000) and the apparent time devoted to this issue (between 2.1 and 4 hours), the employer and its processing agent are assessed a $1,000 attorney fee. Booth, Paul E.,
14 CCHR 100 (2009).
Extraordinary circumstances allow the director to award a $500 attorney fee which is outside the 436-120-0008(2) matrix because it is not possible to estimate the benefit claimant received from insurer's agreement to reevaluate claimant's eligibility for vocational services. Hayes, Justin,
14 CCHR 80 (2009).
An attorney fee of $750 is appropriate with reference to the matrix of OAR 436-001-0265 considering the three hours involved, the value of the benefit received, and the average complexity of the legal issues. Bressler, Edger J.,
14 CCHR 10 (2009).
No error is found in RRU's $800 attorney fee award because the award is within the range set by the matrix referred to in ORS 656.385(1) calculating the value of the benefit achieved for the claimant, the 6.85 hours claimant's attorney devoted to the proceeding, and the fact that no extraordinary circumstances were involved in the proceeding. Arroyo, Joe L.,
13 CCHR 515 (2008).
With reference to the matrix of OAR 436-001-0265, a fee of $750 is appropriate for the entire proceeding in light of the number of attorney hours presumed involved, the value of the benefit received, and the average level of complexity of the legal issues. Kruesi, Loren F,
13 CCHR 512 (2008).
Claimant's attorney's request for a fee in the sum of $2,000 is reasonable because the attorney spent in excess of seven hours on this matter, the attorney's usual billing rate is $275 per hour, the attorney represents that he has been an attorney for 32 years in Oregon and has been practicing workers' compensation law for 25 of those years, and the attorney faced the risk of going uncompensated in this matter. Fontana, Robert J,
13 CCHR 498 (2008).
To determine an award of attorney's fees, the ALJ considered a fee that was proportionate to the injured worker's benefit, the results achieved, and the time devoted to the case. The ALJ did not use the "matrix" because there was no evidence of the hours devoted to the case. Fleming, Robert W,
12 CCHR 130 (2007).
When calculating the time spent on the proceeding, time devoted to the issue of attorney fees are not included. Miller, James A,
12 CCHR 105 (2007).
The attorney fee was not increased because the fee awarded was reasonable in relation to the value of the benefit to the claimant. Lewis, Chad E.,
10 CCHR 449 (2005).
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