Oregon Legislature Increases Claimant’s Attorney Fees

Anderson, Kevin_webThe Oregon Legislature adjourned at the end of June and it is clear some major changes are coming for businesses, small and large, in the state. One of those changes is House Bill 2764, which significantly expands the attorney fees awarded to claimant’s attorneys in workers’ compensation claims.

While there are many changes, here are some of the most significant:

Hourly Rate for Claimant’s Interviews & Depositions

  • Injured workers continue to have a duty to cooperate and assist with an investigation. However, now if the worker is represented, the claimant’s attorney is entitled to an hourly rate for actual time spent during a personal or telephonic interview, or a deposition. The Oregon Bar and Board will adopt rules to establish the hourly rate. ORS 656.262(14)(a).
  • It does not appear the hourly rate applies to time spent preparing for the interview/deposition, but we will likely see claimants’ attorneys pushing for this.

Reclassification

  • If a worker is represented and obtains an order reclassifying the claim, the attorney is entitled to an attorney fee. ORS 656.277(1)(b).
  • Previously no attorney fee was awarded.

Unreasonable Refusal to Pay an Attorney Fee

  • If an insurer unreasonably delays or refuses to pay attorney fees or costs, the Board will assess a reasonable attorney fee, not to exceed $4,000. The fee must take into consideration the proportionate benefit to the worker. ORS 656.262(11)(a).
  • Unreasonable delay or refusal to pay compensation will still result in an attorney fee. The limit on the fee was raised from $3,000 to $4,000.

Temporary Disability

  • Claimant’s attorneys will earn a new fee if the attorney is instrumental in obtaining temporary disability compensation, prior to a decision by an ALJ or if the claimant prevails in temporary disability dispute. ORS 656.—, not yet numbered.

Interest on Appeal

  • Attorney fees/costs will now accrue 9% interest on an insurer’s appeal of certain unfavorable orders. ORS 656.313(1)(b).
  • When an insurer initiates an appeal, temporary disability benefits and permanent total disability benefits after the unfavorable order, and some death benefits, are already stayed pending appeal and accrue 9% interest. The attorney fees and costs will now be included.

Fees for Defending Fees

  • If an insurer raises an attorney fee, cost, or penalty issue as a separate issue before the Division, Board, or appellate court, and the fee, cost, or penalty is upheld (not reduced, not eliminated), the claimant’s attorney will receive a new fee for defending the issue. ORS 656.382(3).
  • If an insurer initiates an appeal to the Board or appellate court, and the matter is briefed, but the insurer withdraws the appeal prior to a decision being issued, and the withdraw results in claimant prevailing over the matter, claimant’s attorney is entitled to a new reasonable fee for briefing the matter. ORS 656.382(4).
  • In disputes involving a claim for costs, if claimant prevails on a claim for increased costs, the WCD, WCB, or court will award a reasonable assessed fee. ORS 656.386(4).

The new law is effective January 1, 2016, meaning it applies to orders issued and attorney fees incurred on or after January 1, 2016, regardless of when the claim was filed. This likely applies to many current cases, especially those just starting the Board briefing process. The Board is already scheduling meetings to discuss adopting rules implementing these statutory changes.

Do not hesitate to contact us me at kanderson@sbhlegal.com or any of the other attorneys at SBH if you have any questions on these new changes.