Why are Claimant’s Attorneys receiving a Fee when the ALJ affirms a Denial?
By: Kevin Anderson
A claimant’s attorney received a fee for unsuccessfully challenging a new/omitted claim for “arthralgia.” Even though the de facto denial was ultimately upheld, the Court of Appeals agreed $1,500 was a reasonable attorney fee given the procedural delay in responding to claimant’s request. SAIF v. Emma R. Traner, 270 Or App 67 (2015).
Another claimant’s attorney received $750 for unsuccessfully challenging an untimely partial denial of a L4-5 disc herniation. Michael Inskeep, 67 Van Natta 522 (2015).
How can this be?
An insurer is required to accept or deny a claimant’s expansion request within 60 days regardless of whether the claimed condition is compensable or if it is even a medical condition (as opposed to a symptom or a medical procedure). Unreasonably delaying the acceptance or the denial can result in attorney fees and penalties. ORS 656.262. In the cases discussed above, the insurer never accepted or denied the claim (Traner), or it denied the claim five months after the request was made (Inskeep).
While attorney fees and penalties must be proportionate to the benefit to the claimant, this benefit is not limited to compensation. Having the denial affirmed means there is likely no “amounts then due” to award a penalty. However, the Court and Board consider obtaining a definitive response to the expansion request and correcting a procedural mistake as both benefits to the claimant.
The Court stopped short of saying this was a punitive measure to encourage timely processing of expansion request. These opinions make it clear, attorney fees will be awarded for de facto denials, even ones that are affirmed.
Feel free to contact us here at SBH if you have any questions regarding how to respond to a worker’s expansion request. I can be reached at