Oregon Assessed Attorney Fees – The Vicious Circle
The Oregon’s Workers Compensation Board (“WCB”) recently issued an Order on Remand, awarding $68,300 for services litigating reasonableness of an initial attorney fee award. Karista D. Peabody v. SAIF, 77 Van Natta 67, 72 (2025). This ruling aligned with the remand from the Court of Appeals. Peabody v. SAIF Corp., 326 Or App 132 (2023). The Court of Appeals ruled the Board erred in determining it was not authorized to award fees incurred in litigating the amount of the fee award after the Board’s initial award.
As a reminder, the ALJ initially upheld the compensability denial. On Board review, the Board reversed the denial, and claimant’s counsel requested a $31,000 attorney fee. The Board awarded $12,500. Claimant sought reconsideration; the Board adhered to the fee award.
Claimant’s counsel petitioned for judicial review, contending the Board’s award of $12,500 attorney fees instead of the $31,000 was unreasonable. The court remanded the case back to the Board, due to the Board failing to adequately explain the attorney fee order. On remand, the Board determined that the claimant’s counsel should have been entitled to a $21,280 attorney fee, not $12,500 as initially assessed. (See Christina’s blog posts from 2023 for additional information: here and here)
The claimant counsel again requested reconsideration of the $21,280 attorney fee, arguing that she was entitled to additional attorney fees for services on reconsideration and appeal litigating the initially erroneous $12,500 attorney fee. In denying the claimant’s counsel’s request for reconsideration, the Board found that ORS 656.386(1) attorney fee was not awardable where the sole issue presented was the amount of a reasonable attorney fee award.
The claimant again petitioned for judicial review. The court ultimately decided the claimant was entitled to an additional attorney fee. In ruling for the claimant, the court opined that the fees incurred by the claimant in litigating the final amount of the fee award, including fees incurred litigating before the Court of Appeals, were reasonably incurred. Consequently, the court ruled that the Board has the authority to award attorney fees for services on litigation even when the sole issue is the reasonableness of an initial assessed attorney fee award. In February 2025, the Board on remand by the court awarded $68,300 for services solely litigating reasonableness of an initial attorney fee award at multiple levels of review.
This ruling highlights the risk of exponential increases in multiplying attorney fees when there are numerous levels of review on the singular issue of an initial attorney fee award. The implication is that if the claimant prevails on the appeal, it guarantees payment of more attorney fees that may have been initially requested at the initial hearing. It may be more prudent and cost-effective in instances such as this to settle with the claimant’s counsel upon appeal, as this allows you to control the outcome.
If you have questions about assessed attorney fees, contact me at Dakinbosade@sbhlegal.com or (503) 776-5423.
Posted by Dee Akinbosade.
