New Assessed Attorney Fee Rules For Reconsideration Proceedings in Oregon
In September 2021 the Oregon Court of Appeals issued its decision in Dancingbear v. SAIF and determined a worker’s attorney can be awarded an assessed fee under ORS 656.383(1) when that attorney obtains additional temporary disability compensation during a reconsideration proceeding. The Workers’ Compensation Division (WCD) began drafting rules to implement the holding. The initial draft of the rule was published for public comment in March 2022. Following public comment, the WCD adopted rule changes to OAR 436-001-0438 and these became effective September 1, 2022. As provided in OAR 436-001-0438, the insurer must pay to the worker’s attorney a fee under ORS 656;383 if:
the worker was represented in this reconsideration proceeding;
temporary disability dates were raised as an issue in the request for reconsideration;
temporary disability dates are modified by this order; and
as a result of the temporary disability dates being modified, the insurer determines that additional temporary disability compensation benefits are due and payable to the worker.
If all four criteria are met, the insurer must calculate the fee according to the matrix in OAR 436-001-0438(5).
Example: If the attorney spent 4-1/2 hours on the issue of temporary disability compensation and the amount of additional temporary disability compensation benefits due and payable to the worker is $2,174, the attorney fee is the base amount of $1,500 plus $435 ($2,174 x 0.20 = $434.80, round up to $435), for a total fee of $1,935
If you have any questions regarding the application of this new attorney fee provision, please contact me at 503-595 -2136 or .