There’s a fee for that! The Oregon Court of Appeals authorized the award of attorney fees incurred while litigating the reasonableness of an attorney fee award.
In the case of Peabody v. SAIF, 326 Or App 132 (2023), the Oregon Court of Appeals addressed appeals brought by Ms. Peabody regarding entitlement to attorney fees. The Court of Appeals ultimately reversed the Oregon Workers’ Compensation Board’s decision denying the award of an attorney fee to claimant’s attorney for fees incurred while solely challenging the amount of the Board’s attorney fee award.
The claimant in Peabody successfully overturned an occupational disease denial before the Oregon Workers’ Compensation Board and requested $31,000 in attorney fees for work at the hearing level and on Board review. The Board awarded $12,500 as a reasonable attorney fee and the claimant sought reconsideration, disputing the reasonableness of the amount awarded. The Board adhered to its decision.
On its initial judicial review, the Oregon Court of Appeals found the Board’s order did not adequately explain the attorney fee awarded and, therefore, was not supported by substantial reason. The Court reversed and remanded to the Board for reconsideration. Peabody v. Saif, 297 Or App 704 (2019). On remand, the Board increased claimant’s attorney fee award to $21,280.
Claimant requested reconsideration of the Board’s order, asserting entitlement to additional attorney fees incurred while litigating the attorney fees at the previous levels. The Board requested this request, finding ORS 656.386(1) does not allow for the award of attorney fees where the only issue is the reasonableness of the fee award following an initial award.
On review, the Court of Appeals determined claimant’s attorney was entitled to recover attorney fees for litigating the reasonableness of a fee award under ORS 656.386(1). In reaching its decision, the Court found no evidence of any legislative intent to disallow fees for litigation involving the amount of an attorney fee award and relied instead on the rationale provided by the Oregon Supreme Court in Shearer’s Foods v. Hoffnagle, 363 Or 147 (2018). The Shearer’s Foods decision authorized the recovery of attorney fees incurred while litigating a fee award under ORS 656.386(1). The Court remanded the case to the Board to determine a reasonable award for attorney fees incurred by claimant at all levels of appeal.
Take-Away for Employers and Claim Examiners:
The Court of Appeal’s decision in Peabody will likely result in increased requests for review of attorney fee awards and a continued rise in the amount awarded for attorney fees. The trending increase in attorney fee awards will likely need to be considered during settlement negotiations as well.
If you have any questions about attorney fee awards in Oregon, feel free to contact me at or 971-867-2728.