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In re Compensation of Taylor

Court of Appeals of Oregon

December 5, 2018

In the Matter of the Compensation of Christopher Taylor, Claimant.
v.
SAIF CORPORATION and Automotive Products, Respondents. Christopher TAYLOR, Petitioner,

          Argued and submitted December 14, 2017

          Workers' Compensation Board 1403708

          Julene M. Quinn argued the cause and fled the briefs for petitioner.

          Beth Cupani argued the cause and fled the brief for respondents.

          Theodore Heus and Preston Bunnell, LLP, fled the brief amicus curiae for Oregon Trial Lawyers Association.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary:

         Claimant seeks judicial review of a final order of the Workers' Compensation Board in which the board concluded that $8, 000 was a reasonable award of attorney fees for services rendered by claimant's attorney in proceedings seeking rescission of the denial of petitioner's claim. Claimant challenges the award, arguing the amount is unreasonably low because the board failed to adequately consider the contingent nature of the representation in calculating a reasonable attorney fee. Held: Although the board's order identified the applicable OAR 438-015-0010(4) factors and stated that the had board considered them, the order failed to articulate a connection between those factors sufficiently to allow appellate review. Therefore, the board's order lacked substantial reason.

          [295 Or.App. 200] GARRETT, J.

         Claimant seeks judicial review of a final order of the Workers' Compensation Board (board) in which the board concluded that $8, 000 was a reasonable award of attorney fees for services rendered by claimant's attorney in proceedings seeking rescission of the denial of his claim. Because the board's order lacks substantial reason, we lack a sufficient basis to meaningfully review the board's exercise of discretion. Accordingly, we reverse and remand for reconsideration.

         Our review is confined to the relevant facts in the administrative record, ORS 183.482(7), which are undisputed here. Claimant, an injured worker, filed a claim for fume exposure, a compensable injury, with his employer. Claimant's then-counsel filed a request for a hearing, asserting a de facto denial for failure to timely process the claim. At SAIF's request, a physician examined claimant. SAIF then formally denied claimant's claim. Claimant requested a hearing before an administrative law judge (ALJ). After claimant's first attorney withdrew, claimant obtained new counsel, who agreed to represent claimant on a contingent basis. In preparation for the hearing, claimant's counsel deposed the physician, who opined that claimant's symptoms were consistent with fume exposure and required medical services. Claimant's counsel had another physician review the medical records submitted in this case and sign a letter confirming the deposed physician's professional medical opinion. Minutes before the hearing, SAIF agreed to rescind the denial.

         Claimant's counsel submitted a request for $12, 000 in attorney fees; according to his supporting materials filed with the board, that amount reflected 30.3 hours of work at an hourly rate of $400. Claimant's counsel further explained that his normal hourly rate is $300, but that he charges the higher rate of $400 for workers' compensation claims taken on a contingency basis. In response, SAIF asserted that the requested fee was excessive and disproportionate to the benefit secured, and proposed that $4, 000 would be a more reasonable award.

         [295 Or.App. 201] The ALJ awarded $5, 000 in fees in an order citing the factors set forth in OAR 438-015-0010(4).

         Claimant appealed the ALJ's order to the board, which increased the fee award to $8, ...


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