Appeal from Circuit Court, Marion County. George A. Jones, Judge. No. 77424.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Raymond J. Conboy, Portland, argued the cause for respondent. With him on the brief were Pozzi, Wilson & Atchison, and Dan O'Leary, Portland.
Fort, Judge. Schwab, Chief Judge, and Foley, Judge.
This is an appeal by the State Accident Insurance Fund contesting the awarding of attorney fees
to a claimant who received an award under the Inmate Injury Law (ORS 655.505 to 655.550). Procedurally, the claim was initially rejected by the Fund. On appeal the hearing officer again rejected the claim. The Board on review granted the claim and awarded attorney fees; SAIF then appealed to the circuit court, which affirmed the Board's order and also awarded attorney fees. SAIF appeals to this court and claims the awarding of fees was erroneous in both instances.
The Inmate Injury Law was adopted in 1963 and is substantially unchanged since its original enactment. ORS 655.505-655.550.*fn1 In its brief, appellant contends it does not provide for attorney fees. On oral argument, however, appellant concedes this contention is erroneous and that attorney fees on appeal from the circuit court, pursuant to ORS 655.525,*fn2 are allowable to the extent provided in ORS 656.301 (2).*fn3
Relying on ORS 655.525, however, it contends that attorney fees are not here authorized at the Board or the circuit court level. It concedes that a claimant in the position of plaintiff here would be entitled to attorney fees if he were a claimant under the Workmen's Compensation Act rather than the Inmate Injury
Law. ORS 656.386 and 656.388. But it says since those sections were not expressly adopted into the Inmate Injury Law, they have no application to a claim made under the latter law.
Reluctantly, we agree. We are not here dealing with the denial of a right to a prisoner to review of a Workmen's Compensation Board award made to him for an injury sustained while employed prior to his incarceration as in Delorme v. Pierce Freightlines Co., 353 F Supp 258 (D Or 1973).
No equal protection question thus is presented by this appeal. No discrimination is here involved between this claimant and one who is injured in private employment and seeks compensation under the Workmen's Compensation Act. Here the question only is how much of the Workmen's Compensation Act did the legislature adopt as a part ...