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In re Compensation of Hoffnagle

Supreme Court of Oregon, En Banc

June 21, 2018

In the Matter of the Compensation of William W. Hoffnagle, Claimant.
v.
William W. HOFFNAGLE, Claimant/Respondent on Review. SHEARER'S FOODS, Petitioner on Review,

          On Claimant/Respondent on Review's petition for attorney fees fled October 5, 2017, considered and under advisement January 24, 2018. (WCB 1301384) (CA A157714)

          Jerald P. Keene, Oregon Workers Compensation Institute LLC, Oceanside, submitted an objection to the petition for attorney fees and the supplemental brief for the petitioner on review.

          Julene M. Quinn, Portland, submitted the petition for attorney fees and the supplemental brief for respondent on r ev ie w.

         The petition for attorney fees is allowed. Claimant is awarded $2, 200 as attorney fees on review.

         Case Summary: After the Oregon Supreme Court denied employer's petition for review of a decision of the Court of Appeals, in which claimant prevailed against employer's denial of his workers' compensation claim, claimant fled a petition for attorney fees in the Supreme Court. Claimant sought fees under ORS 656.386(1)(a), for time spent considering whether to file a response to employer's petition for review and for litigating employer's objection to claimant's fee petition. Employer objected to claimant's fee petition. Held: Claimant "finally prevailed" against the denial of his claim in a petition for review to the Supreme Court, so as to be entitled to an award of reasonable fees under ORS 656.386(1) (a), when the court denied employer's petition for review and the time for reconsideration of that denial had passed.

         The petition for attorney fees is allowed. Claimant is awarded $2, 200 as attorney fees on review.

          [363 Or. 148]FLYNN, J.

         We previously denied employer's petition for review in this workers' compensation case, Shearer's Foods v. Hoffnagle, 284 Or.App. 859, 395 P.3d 622, rev den, 361 Or. 866 (2017), and now address claimant's petition for an award of attorney fees for time that his counsel spent in response to employer's unsuccessful petition for review. Claimant did not file a response to the petition for review but now seeks an award of fees under ORS 656.386(1)(a) for time spent considering whether or not to file a response to employer's petition for review. Claimant also seeks attorney fees for additional time spent litigating employer's objection to claimant's fee petition. Employer objects that this court lacks authority to award fees and also objects to the amount of requested fee.

         Employer objects that ORS 656.386(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. We conclude, however, that claimant "finally prevail[ed], " for purposes of a fee award under ORS 656.386, when this court denied employer's petition for review. We thus conclude that ORS 656.386(1)(a) requires an award of reasonable fees in this case.[1]

         Although this court often resolves attorney fee petitions by order rather than written opinion, employer's objection to this court's authority to award fees presents a legal issue that is appropriately resolved by opinion. See Strawn v. Farmers Ins. Co., 353 Or. 210, 212, 297 P.3d 439 (2013). The few procedural facts that are pertinent to the legal issue we address begin with employer's denial of claimant's claim for workers' compensation benefits for a lumbar disc condition. Shearer's Foods, 284 Or at 861-62. An administrative law judge (AL J) upheld the denial, but the Workers' Compensation Board reversed the ALJ's order, and the Court of Appeals affirmed that Board decision. Id. at 862-63, 867. Employer then filed a timely petition for review in [363 Or. 149] this court, claimant did not file a response, and this court ultimately denied review. The time for reconsideration of that denial has passed, and the only remaining issue in this court is claimant's petition for attorney fees.

         Attorneys representing workers' compensation claimants may not recover a fee for legal services performed on appeal 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." SAIF v. Curry, 297 Or. 504, 511, 686 P.2d 363 (1984). As pertinent to the dispute in this case, ORS 656.386(1)(a) provides:

"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."

         We have explained that ORS 656.386(1)(a) "applies in all instances in which a worker's claim for benefits has been denied." SAIF. v. DeLeon, 352 Or. 130, 139, 282 P.3d 800 (2012).[2] The statute, thus, sets up two pertinent inquiries when a claimant seeks a fee award from this court: (1) whether the case involves a denied claim, and (2) whether the claimant has "finally prevail[ed] against the denial in [a] * * * petition for review to the Supreme Court."

         There is no dispute, here, that claimant's underlying workers' compensation case involved a denied claim. Rather, [363 Or. 150] the parties' dispute turns on whether claimant "finally prevail[ed] against the denial in [a] *** petition for review to the Supreme Court" when this court denied employer's petition for review. Employer contends that claimant did not "finally prevail" when this court denied review because claimant did not "prevail" when this court denied review. According to employer, "[i]n order to 'prevail' against the denial in a petition for review to the Supreme ...


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