Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Compensation of Walker

Court of Appeals of Oregon

November 15, 2017

In the Matter of the Compensation of Joy M. Walker, Claimant,
v.
PROVIDENCE HEALTH SYSTEM OREGON, Respondent. Joy M. WALKER, Petitioner,

          Submitted January 30, 2017

         Workers' Compensation Board 0904145, 0902065

          Ronald A. Fontana and Ronald A. Fontana, P.C., fled the brief for petitioner.

          Vera Langer and Lyons Lederer, LLP, fled the brief for respondent.

          Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge.

         Case Summary: Claimant petitions for judicial review of the Workers' Compensation Board's order on remand that declined to award her attorney fees for legal services on prior review before the board, on judicial review before the Court of Appeals, and on remand to the board. The board declined to award attorney fees because it viewed its authority as limited by the Court of Appeals' remand to the board. Held: The board did not lack authority by reason of the scope of remand. Nothing in the remand, which contemplated determination of a penalty sum under ORS 656.262(11)(a), implied a limitation on the board's authority to conduct any related proceedings. The board had authority to consider or reject the fee request consistent with its rules and practices.

         [288 Or.App. 773] DeVORE, P. J.

         Claimant petitions for judicial review of the Workers' Compensation Board's second order on remand that declined to award her attorney fees for legal services on prior review before the board, on review before this court, and on a remand to the board. The board declined to award attorney fees because it viewed its authority as limited by our remand to the board. We conclude that the board did not lack authority by reason of our remand. We reverse and remand for the board to consider the request for attorney fees.

         We recite only the parts of past proceedings that are necessary to this decision. In March 2011, the board determined, among other things, that claimant's employer unreasonably delayed accepting and processing her condition- major depression and panic disorder. Despite that conclusion, the board ruled that claimant was not entitled to a penalty under ORS 656.262(ll)(a) because there were no "amounts then due."

         In relevant part, ORS 656.262(ll)(a) provides:

"If the insurer or self-insured employer unreasonably delays or unreasonably refuses to pay compensation, attorney fees or costs, or unreasonably delays acceptance or denial of a claim, the insurer or self-insured employer shall be liable for an additional amount up to 25 percent of the amounts then due plus any attorney fees assessed under this section. The fees assessed by the director, an Administrative Law Judge, the board or the court under this section shall be reasonable attorney fees. In assessing fees, the director, an Administrative Law Judge, the board or the court shall consider the proportionate benefit to the injured worker. The board 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."

(Emphasis added.)[1] Even so, the board awarded claimant attorney fees of $2, 000 for earlier legal services before [288 Or.App. 774] the administrative law judge. At the same time, the board declined to award any attorney fees for services before the board itself. It noted that "claimant is not entitled to an attorney fee for services on review [before the board] related to the attorney fee issue."

         Claimant petitioned this court for judicial review and assigned error to the board's failure to award a penalty under ORS 656.262 (ll)(a) based on the amount to be awarded on claim closure. She did not assign error to that part of the board's decision that denied attorney fees for services before the board. Claimant argued only that her employer unreasonably delayed accepting the condition and that she should have been entitled to a penalty based on the amount ultimately awarded on claim closure. We agreed and remanded to the board to calculate the award of a penalty. Walker v. Providence Health Systems Oregon, 267 Or.App. 87, 105-08, 340 P.3d 91 (2014), adh'd to as modified on recons, 269 Or.App. 404, 344 P.3d 1115 (2015). In our review of the board's order, we discussed only the penalty issue, which had been assigned as error, and not the issue of attorney fees, which had not been assigned as error. Id.

         On remand, the board considered a penalty as directed. The parties filed no memoranda with the board, and the board held no hearing. In what would be its first order on remand, the board awarded claimant a penalty of 25 percent of her compensation for a 35 percent unscheduled permanent disability. After that order, claimant filed a motion to reconsider the order so as to permit the board to entertain a request for attorney fees for services before the board and the court. Claimant filed a statement seeking $9, 600. Among other things, the employer objected that the court had not remanded the case for consideration of attorney fees and that claimant had not asserted entitlement to attorney fees on the matter remanded. The employer argued ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.