Brad Garber’s Case Law Update – July 27th, 2007

On this date: Country singer, Bobbie Gentry, was born in 1944. Skater Peggy Fleming was born in 1948. A U.S. mint was opened in Charlotte, NC, in 1837. In 1844, a fire destroyed the Charlotte, NC mint. In 1954, an “armistice” agreement divided Vietnam into North and South. Vice President Richard Nixon was nominated as a presidential candidate, at the Republican Convention, in Chicago, in 1960. In 1974, the U.S. Judiciary Committee voted 27-11 to impeach Nixon. In 1990, Zsa Zsa Gabor went to jail, for 3 days, after slapping a cop.

One Case…

Nancy Ochs, 59 Van Natta 1785 (2007)

(ALJ Fulsher)

The insurer requested review of an Opinion & Order that set aside its de facto denial of Claimant’s occupational disease claim for a left carpal tunnel syndrome condition. Claimant cross-appealed that portion of the O&O that did not award an attorney fee under ORS 656.262(11) for an alleged unreasonable claim processing.

The compensability issue was affirmed in one sentence. The attorney fee issue took another ten (10) pages to resolve.

When the ALJ set aside the insurer’s denial of Claimant’s occupational disease claim for CTS, she awarded an attorney fee under ORS 656.386. Finding no evidence of amounts of compensation “then due,” or unreasonable resistance to the payment of compensation, the ALJ declined to assess a penalty under ORS 656.262(11)(a) or an attorney fee under ORS 656.382(1).

ORS 656.262(11)(a) provides, in part, as follows:

“If the insurer or self-insured employer unreasonably delays or unreasonably refuses to pay compensation, 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.”

In this case, the insurer did not accept or deny the CTS claim within 90 days, as required by ORS 656.262(6)(a)(2001). In fact, the insurer did not respond to the claim before the hearing. The Board decided that this constituted unreasonable claim processing. The Board observed, however, as follows:

“As noted, the statute provides for a penalty under these circumstances ‘plus any attorney fee assessed under this section.’ In this case, the penalty amount is zero; i.e., because all compensation was timely paid, no amounts were ‘then due’ on which to base a penalty. Therefore, we must decide whether claimant’s counsel is entitled to an attorney fee under ORS 656.262(11)(a) even though no penalty was assessed.”

The Board ultimately decided that, even though there were no amounts due upon which to base a penalty, Claimant’s counsel was, nevertheless, entitled to an attorney fee under ORS 656.262(11)(a). The Board went on to state, “The amount of an attorney fee under ORS 656.262(11)(a) ‘shall be proportionate to the benefit to the injured worker’ and shall be determined through application of the Board’s attorney fee rules, ‘giving primary consideration to the results achieved and to the time devoted to the case.”

In this case, the Board decided that Claimant’s attorney ought get $500 for his efforts in proving that the de factodenial was unreasonable, utilizing the factors set out in OAR 438-015-0110 and OAR 438-015-0010(4).

Affirmed in part, Reversed in part. Member Lowell, concurring; Member Langer, dissenting

Moral: Any time you are late on your acceptance/denial, you’ll be assessed a separate fee under ORS 656.262(11)(a), even though all amounts have been paid and there is no amount due upon which to assess a penalty.

Brad G Garber
Wallace, Klor & Mann, P.C.
Oregon Bar 1987
US District Court 1988
Washington Bar 1993
US Ninth Circuit Court of Appeals 2000