October 6, 2021
by Anna McFaul

Oregon Court of Appeals Allows Assessed Fee When Order on Reconsideration Awards Additional Temporary Disability

Anna McFaulIn the recent Dancingbear case, the Court of Appeals awarded an assessed attorney fee when additional temporary disability benefits were obtained through the reconsideration process. Dancingbear v. SAIF, 314 Or App 538 (9/15/21). In this case, claimant and her attorney requested reconsideration of a Notice of Closure. The Order on Reconsideration modified the medically stationary date and awarded two additional weeks of temporary disability benefits beyond what was identified by the Notice of Closure. Claimant’s attorney appealed the Order and sought an ORS assessed attorney fee under ORS 656.383(1) for being “instrumental in obtaining temporary disability benefits” prior to an ALJ’s decision. The ALJ awarded the assessed fee, but on appeal, the Board reversed the ALJ and held that because an “out of compensation” ORS 656.268(6)(c) fee award was made, the assessed fee in ORS 656.383(1) did not apply. Claimant appealed and sought an assessed fee award under ORS 656.383(1).

The Court of Appeals determined a claimant’s attorney is allowed an assessed fee under ORS 656.383(1), when the attorney obtains additional temporary disability benefits through reconsideration. The Court indicated the term “obtain” in ORS 656.383(1) allows for an assessed fee for obtaining temporary disability benefits including when those benefits are obtained through the reconsideration process. The Court reasoned allowing a fee award under both ORS 656.383(1) (assessed fee) and ORS 656.268(6)(c) (out of compensation fee) is not inappropriately duplicative. Instead, the Court determined allowing both fees is consistent with the legislature’s intent to provide more claimant attorney fees to ensure workers have access to legal representation.

The impact of this case is potentially quite costly to employers. Prior to this case, a claimant’s attorney was only awarded an “out of compensation” fee on reconsideration. Therefore, if additional temporary disability was identified on reconsideration, the attorney would receive 10% of the amounts due to claimant and not in addition too.  Now, the worker’s attorney gets not only the 10% “out of compensation” fee but is also entitled to an assessed fee of an undetermined amount. Because there is not a fee schedule or cap in place for assessed fees, claimant’s attorneys could potentially obtain $3,500 or more for just one additional day of awarded temporary disability benefits. It is very concerning there is presently no fee schedule or fee cap in place for an assessed fee on additional temporary disability benefits obtained through reconsideration.

How the process is going to work under this new case law is presently unclear. The WCD is actively determining its role and procedures in assessing a fee when temporary disability compensation benefits are obtained through reconsideration. SBH Legal is actively providing the WCD with the employer perspective on this development to guide policy development.

Have a question regarding the Dancingbear case and impact on your claims? Please contact me at or directly (503)412-3101.

Posted by: Anna McFaul