538
Argued and submitted December 2, 2019, reversed and remanded
September 15, 2021
In the Matter of the Compensation of
Mekayla N. Dancingbear, Claimant.
Mekayla N. DANCINGBEAR,
Petitioner,
v.
SAIF CORPORATION
and Alternative Services Oregon,
Respondents.
Workers’ Compensation Board
1604039; A167743
500 P3d 22
Claimant’s attorney established in a reconsideration proceeding under ORS
656.268 that claimant was entitled to more temporary disability benefits than
SAIF Corporation, employer’s insurer, had provided for when it closed her claim.
An administrative law judge (ALJ) concluded that, because claimant’s attorney
had been “instrumental in obtaining temporary disability compensation benefits
pursuant to [ORS] 656.268 … prior to a decision by an [ALJ],” ORS 656.383(1),
that attorney was entitled to an assessed fee. The Workers’ Compensation Board
reversed the ALJ’s order, concluding that, in light of ORS 656.268(6)(c)’s provision for an “out of compensation” attorney fee award in reconsideration proceedings, the assessed-fee provision under ORS 656.383(1) did not apply. Claimant
seeks judicial review, contending that the board misinterpreted ORS 656.383(1)
when it held that that provision does not entitle a claimant’s attorney to assessed
fees when the attorney obtains additional temporary disability compensation
benefits for a claimant through reconsideration proceedings under ORS 656.268.
Held: ORS 656.383(1) entitles claimants’ attorneys to fees after they obtain temporary disability benefits for claimants in proceedings on reconsideration pursuant to ORS 656.268.
Reversed and remanded.
Christopher D. Moore argued the cause and filed the
briefs for petitioner.
Allison B. Lesh argued the cause for respondents. Julie
Masters filed the briefs for respondents.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
DeHOOG, J.
Reversed and remanded.
Cite as 314 Or App 538 (2021) 539
DeHOOG, J.
Under the Workers’ Compensation Law, a claimant’s
attorney is entitled to “a reasonable assessed attorney fee
if,” among other things, the claimant’s attorney “is instrumental in obtaining temporary disability compensation benefits pursuant to” various statutes “prior to a decision by an
Administrative Law Judge[.]” ORS 656.383(1). Among the
statutes that ORS 656.383(1) expressly references is ORS
656.268, which governs claim closure and, as relevant here,
requests for reconsideration of an employer’s or insurer’s
notice of closure. In this case, claimant’s attorney established in a reconsideration proceeding under ORS 656.268
that claimant was entitled to more temporary disability
benefits than SAIF Corporation, employer’s insurer, had
provided for when it closed her claim. An administrative
law judge (ALJ) concluded that, because claimant’s attorney
had been “instrumental in obtaining temporary disability
compensation benefits pursuant to [ORS] 656.268 … prior
to a decision by an [ALJ],” ORS 656.383(1), that attorney
was entitled to an assessed fee. The Workers’ Compensation
Board reversed the ALJ’s order, concluding that, in light
of ORS 656.268(6)(c)’s provision for an “out of compensation” attorney fee award in reconsideration proceedings,
the assessed-fee provision under ORS 656.383(1) did not
apply.
Claimant seeks judicial review, contending that the
board misinterpreted ORS 656.383(1) when it held that that
provision does not entitle a claimant’s attorney to assessed
fees when the attorney obtains additional temporary disability compensation benefits for a claimant through reconsideration proceedings under ORS 656.268. SAIF and claimant’s employer, Alternative Services Oregon (jointly, SAIF),
respond that claimant failed to preserve the error, because
she failed to request fees in the reconsideration proceeding; that the board correctly interpreted ORS 656.383(1);
and that, in any event, claimant’s attorney did not actually “obtain” temporary disability compensation benefits for
claimant, because the benefits were suspended under ORS
656.268 after claimant failed to attend a medical arbiter
examination. In a cross-assignment of error, SAIF argues
540 Dancingbear v. SAIF
that the ALJ and the board lacked jurisdiction over this
dispute.
We reject SAIF’s preservation and jurisdictional
arguments without discussion. As explained below, we conclude that the board erred in concluding that ORS 656.383(1)
does not entitle claimant’s attorney to fees after he obtained
temporary disability benefits for claimant in reconsideration proceedings under ORS 656.268. We remand for the
board to consider SAIF’s contention that claimant’s attorney
failed to “obtain” benefits for claimant because, although his
efforts yielded an additional award of benefits in the reconsideration order, those benefits were suspended because
claimant failed to attend a medical evaluation. We reverse
and remand.
Before setting out the facts, we provide some necessary legal background. Claimants’ attorneys in the workers’
compensation system are prohibited from taking payment
directly from their clients; the only fees available to claimants’ attorneys are the fees provided by statutes and rules.
Arvidson v. Liberty Northwest Ins. Corp., 366 Or 693, 695,
467 P3d 741 (2020); see also OAR 438-015-0015 (prohibiting charges for legal services for representation of claimants unless the charge is authorized by statute or rule).
The workers’ compensation statutes provide for two types
of attorney-fee awards for claimants’ attorneys. The first
type, an out-of-compensation fee, is an attorney fee that is
paid from the total amount of compensation awarded to the
claimant; it is deducted from the claimant’s benefits.1 An
out-of-compensation fee is set as a percentage of the benefits
that the attorney obtains for the claimant, usually with a
cap on the amount of the fee. See, e.g., ORS 656.268(6)(c)
(“In any reconsideration proceeding under this section in
which the worker was represented by an attorney, the director shall order the insurer or self-insured employer to pay to
the attorney, out of the additional compensation awarded,
an amount equal to 10 percent of any additional compensation awarded to the worker.”).
1
In its rules, the board refers to an out-of-compensation fee as an approved
fee. OAR 438-015-0005(1) (“ ‘Approved fee’ means an attorney fee paid out of a
claimant’s compensation.”).
Cite as 314 Or App 538 (2021) 541
The second type of fee, an assessed fee, is a fee
assessed directly against the insurer or self-insured employer
in addition to the total amount of compensation awarded to
the claimant. OAR 438-015-0005(2) (“ ‘Assessed fee’ means
an attorney fee paid to a claimant’s attorney by an insurer
or self-insured employer in addition to compensation paid
to a claimant.”). The forum in which the fee is awarded sets
the assessed fee; statutes require that the amount be “reasonable,” and the forum must consider a variety of factors in
deciding on a reasonable fee. See, e.g., ORS 656.383(1) (providing for “a reasonable assessed attorney fee” under certain circumstances); OAR 438-015-0010(4) (listing factors
to be considered in determining a reasonable fee). The fee
provided in ORS 656.383(1) is an assessed fee.
With that context in mind, we turn to the facts, which
are procedural and undisputed. As the board explained:
“Claimant was compensably injured on October 17, 2015.
A Notice of Closure issued on March 9, 2016. Claimant
requested reconsideration and the appointment of a medical arbiter. She did not attend the arbiter examination.
“On August 23, 2016, an Order on Reconsideration modified claimant’s medically stationary date and awarded
two weeks of additional temporary disability benefits. The
reconsideration order also suspended claimant’s benefits
under ORS 656.268(8)(e)(B) and (D), because she did not
attend the arbiter examination.
“Claimant requested a hearing from the reconsideration order. She sought an assessed attorney fee under
ORS 656.383(1) for obtaining increased temporary disability benefits prior to an ALJ’s decision.”
(Citations omitted.)
The ALJ agreed with claimant that her attorney
had been “instrumental in obtaining temporary disability
compensation benefits pursuant to [ORS] 656.268 prior to
a decision by an [ALJ].” ORS 656.383(1). Thus, the ALJ
awarded an assessed fee for claimant’s attorney’s representation of claimant in the reconsideration proceeding.
The board disagreed. It noted that ORS 656.268(6)(c)
provides for an out-of-compensation fee for a claimant’s
542 Dancingbear v. SAIF
attorney in reconsideration proceedings under ORS 656.268.2
Based on the availability of that fee, the board reasoned
that the legislature could not have intended to also provide
for an assessed fee under ORS 656.383(1), even if the attorney is “instrumental in obtaining temporary disability compensation benefits pursuant to [ORS] 656.268 … prior to a
decision by an [ALJ].”
The board also reasoned that, by using the word
“obtain” in ORS 656.383(1), the legislature indicated an
intention to provide an assessed fee only for temporary
disability benefits obtained by settlement—not benefits
obtained by an order on reconsideration. The board further
understood the provision to limit the time period during
which the benefits were obtained to the time period between
an order on reconsideration and a decision by the ALJ.
In light of that reasoning, the board reversed the
ALJ’s order, concluding that claimant’s attorney was not
entitled to an assessed fee for services provided to obtain
an increase in temporary disability benefit in the reconsideration proceeding. The board did not reach the question
of whether claimant’s failure to attend the arbiter examination and consequent suspension of benefits affected her
attorney’s right to an assessed fee under ORS 656.383(1).
Claimant seeks judicial review. She contends that
the board incorrectly interpreted ORS 656.383(1), because
the statutory text unambiguously provides for an assessed
fee for services provided by a claimant’s attorney in obtaining increased temporary disability compensation on reconsideration under ORS 656.268. SAIF responds that the
board correctly interpreted the statute and, alternatively,
that the fact that claimant’s benefits were suspended means
that her attorney did not “obtain” any benefits for her on
reconsideration.
We review the board’s interpretation of a statute for
errors of law. See Caren v. Providence Health System, 365 Or
2
ORS 656.268(6)(c), which we discuss further below, provides as follows:
“In any reconsideration proceeding under this section in which the
worker was represented by an attorney, the director shall order the insurer
or self-insured employer to pay to the attorney, out of the additional compensation awarded, an amount equal to 10 percent of any additional compensation awarded to the worker.”
Cite as 314 Or App 538 (2021) 543
466, 472,
446 P3d 67 (2019). In interpreting the statute at
issue here, we apply the Supreme Court’s familiar methodology for statutory construction, considering the statutory
text in its context, consulting available legislative history
to the extent we find it helpful, and, if necessary to resolve
any remaining ambiguities, resorting to maxims of statutory interpretation. State v. Gaines,
346 Or 160, 171,
206
P3d 1042 (2009). Here, as explained below, we conclude that
the statutory text, in context, supports claimant’s position.
Furthermore, the legislative history of ORS 656.383 confirms that understanding. Accordingly, we need not, and do
not, apply maxims of statutory interpretation to resolve any
ambiguity.
The legislature enacted ORS 656.383 in 2015 as
part of a bill that increased the availability of attorney fees
for claimants’ attorneys with the intention of, among other
things, “creating meaningful change to address workers’
access to legal representation” and “motivating parties to
process claims correctly the first time.” Exhibit 18, Senate
Committee on Workforce, HB 2764, May 12, 2015 (letter from
Guy Boileau and John Mohlis, co-chairs of ManagementLabor Advisory Committee). ORS 656.383 incentivizes legal
representation on issues related to temporary disability
benefits by providing an assessed fee when a claimant’s
attorney succeeds in obtaining those benefits:
“The claimant’s attorney shall be allowed a reasonable
assessed attorney fee if:
“(1) The claimant’s attorney is instrumental in obtaining temporary disability compensation benefits pursuant
to ORS 656.210, 656.212, 656.262, 656.268 or 656.325 prior
to a decision by an Administrative Law Judge; or
“(2) The claimant finally prevails in a dispute over
temporary disability compensation benefits pursuant to
ORS 656.210, 656.212, 656.262, 656.268 or 656.325 after a
request for hearing has been filed.”
ORS 656.383.
At issue here is what it means for a claimant’s
attorney to be “instrumental in obtaining temporary disability benefits pursuant to ORS … 656.268.” We first
consider the significance of that phrase’s reference to ORS
544 Dancingbear v. SAIF
656.268. ORS 656.268 is a complex provision with numerous
subsections. Subsections (1) to (5) generally establish when
a claimant’s claim may be closed; when a worker’s entitlement to temporary disability benefits terminates; and what
the notice of closure must contain. ORS 656.268(5)(e) makes
requesting reconsideration a mandatory first step for objecting to a notice of closure: “If a worker, a worker’s beneficiary,
an insurer or a self-insured employer objects to the notice
of closure, the objecting party first must request reconsideration by the director [of the Department of Consumer
and Business Services (DCBS)] under this section.”
ORS 656.268(6) to (8) establish procedural and substantive
requirements for the reconsideration proceeding. As relevant here, ORS 656.268(6)(c) provides as follows:
“In any reconsideration proceeding under this section
in which the worker was represented by an attorney, the
director shall order the insurer or self-insured employer
to pay to the attorney, out of the additional compensation
awarded, an amount equal to 10 percent of any additional
compensation awarded to the worker.”
The text of a statute is the best evidence of the legislature’s intent. PGE v. Bureau of Labor and Industries, 317
Or 606, 610,
859 P2d 1143 (1993). As set out above, the text of
ORS 656.383(1) expressly references ORS 656.268, providing for assessed fees when a claimant’s attorney is “instrumental in obtaining temporary disability compensation
benefits pursuant to ORS … 656.268.” And as explained
above, among the other things it does, ORS 656.268 mandates and governs the reconsideration process. Thus, under
a plain-text reading of ORS 656.383, an award of temporary
disability benefits on reconsideration is one made “pursuant
to” ORS 656.268.
If, as SAIF contends, the legislature had intended
to exclude the reconsideration process from the assessed-fee
provisions of ORS 656.383(1), it could have omitted that reference to ORS 656.268, or it could have specified that the
fee provision applied only to temporary disability compensation benefits obtained pursuant to specific subsections of
ORS 656.268, not including its reconsideration provisions.
However, the legislature did neither of those things; rather,
the enacted text includes the above-quoted reference to ORS
Cite as 314 Or App 538 (2021) 545
656.268 without limitation, which encompasses the subsections relating to the reconsideration process.
Simply put, then, the benefits at issue here necessarily satisfy several requirements of ORS 656.383(1), in
that (1) they are temporary disability benefits; (2) they were
awarded “pursuant to” ORS 656.268 (because they were
awarded on reconsideration, which is mandated and governed by ORS 656.268); and (3) they were awarded before
a decision by the ALJ. That leaves only two aspects of the
board’s reasoning and SAIF’s arguments on review for our
consideration. First, what does it mean for an attorney to be
“instrumental in obtaining” benefits? Second, what effect,
if any, does the attorney-fee provision in ORS 656.268(6)(c)
have on our analysis?
We begin our consideration of those questions by
first quickly rejecting the board’s view—which SAIF does
not defend on review—that to “obtain” means to gain only
through settlement, rather than through an order. The board
observed that “obtain” means “ ‘[t]o get hold of by effort; to
get possession of; to procure; to acquire in any way.’ Black’s
Law Dictionary 972 (5th ed 1979).” The board reasoned that,
by choosing the word “obtain” rather than the word “award,”
the legislature signaled an intention to limit attorney fees
under ORS 656.383(1) to situations involving voluntary payments by insurers and self-insured employers, rather than
those involving benefits awarded by order.
That reasoning fails to take into account the
essence of the definition of “obtain” that the board relied on:
To obtain something is to acquire it in any way. Black’s Law
Dictionary 972 (5th ed 1979); see also Black’s Law Dictionary
(11th ed 2019) (defining “obtain” as “[t]o succeed either in
accomplishing (something) or in having it be accomplished;
to attain by effort” (emphasis added)); Webster’s Third New
Int’l Dictionary 1559 (unabridged ed 2002) (defining “obtain”
as “to gain or attain possession or disposal of usually by
some planned action or method”). Given that a claimant’s
attorney’s efforts may yield temporary disability benefits for
the claimant before a decision by the ALJ both by voluntary
action of the insurer and by order on reconsideration, the
legislature’s choice to use the broader term “obtain” rather
546 Dancingbear v. SAIF
than the narrower term “award” does not indicate to us an
intention to limit application of ORS 656.683(1) to benefits
provided only as a result of voluntary action. Rather, the
choice of the broad term “obtain” reflects an intention to
allow a fee for benefits that the attorney’s efforts yield for
the claimant regardless of how they are attained.
Next we consider the significance to our analysis, if
any, of ORS 656.268(6)(c). As set out above, that paragraph
provides for an out-of-compensation attorney fee of 10 percent of any additional compensation awarded to the claimant in a reconsideration proceeding under ORS 656.268.
The board reasoned that that provision directly conflicts
with ORS 656.683(1). In light of that perceived conflict, the
board held that ORS 656.268(6)(c) is the more specific provision and, therefore, displaces the fee provision in ORS
656.683(1). On review, SAIF defends the board’s reasoning,
contending that the two provisions conflict and that the
board was therefore correct to disregard ORS 656.683(1)’s
assessed-fee provision, and apply only the out-of-compensation attorney fee provision of ORS 656.268(6)(c).
However, we perceive no conflict. Workers’ compensation is an entirely statutory area of law. Cato v. Alcoa-Reynolds Metals Co., 210 Or App 721, 731,
152 P3d 981,
rev den,
343 Or 115 (2007) (citing Haret v. SAIF,
72 Or App
668, 673-74,
697 P2d 201, rev den,
299 Or 313 (1985)). As
explained above, under the Workers’ Compensation Law,
the legislature has provided for two different types of attorney fees for claimants’ attorneys—assessed fees and out-ofcompensation fees. In all reconsideration proceedings—
which may involve issues relating to permanent disability as
well as temporary disability benefits—it has provided for an
out-of-compensation fee. ORS 656.268(6)(c). In all situations
involving temporary disability benefits—including reconsideration proceedings and other situations in which temporary disability benefits are obtained prior to a decision by an
ALJ—it has provided for an assessed fee. ORS 656.383(1).
Neither statute is ambiguous in that regard. Thus, when a
claimant’s attorney is instrumental in obtaining, prior to an
ALJ decision, temporary disability benefits on reconsideration under ORS 656.268, the statutes collectively authorize
both an assessed and an out-of-compensation fee.
Cite as
314 Or App 538 (2021) 547
Our interpretation is entirely consistent with the
legislature’s intention to provide more attorney fees for
claimants’ attorneys in order to ensure that claimants
would have access to representation. We decline to read a
conflict into the statutory text to avoid an outcome that is
consistent with its purpose.3 Accord Cayton v. Safelite Glass
Corp., 232 Or App 454, 463,
222 P3d 1134 (2009) (rejecting
the claimant’s argument that he was entitled to two penalties for the same conduct by the insurer because “we do not
understand how duplicative penalties for the same conduct
would further the legislature’s goal of promoting timely closure of claims”).
SAIF also relies on two other statutory subsections
that, in its view, demonstrate that ORS 656.383(1) does not
apply to reconsideration proceedings. First, SAIF relies on
ORS 656.388(1), which, it contends, prohibits fee awards by
the director on reconsideration unless they are allowed by a
“specific exception” to that subsection.4
3
We note that, even assuming that both fee provisions apply, that arrangement would never result in a total attorney fee that is greater than either
10 percent of the increase in compensation (ORS 656.268(6)(c)) or a reasonable
fee (ORS 656.383(1)). That is so because, even if a decisionmaker were to award
fees under both provisions, the reasonable assessed fee under ORS 656.383(1)
would necessarily take into account the out-of-compensation fee under ORS
656.268(6)(c).
4
ORS 656.388(1) provides as follows:
“No claim or payment for legal services by an attorney representing the
worker or for any other services rendered before an Administrative Law
Judge or the Workers’ Compensation Board, as the case may be, in respect
to any claim or award for compensation to or on account of any person, shall
be valid unless approved by the Administrative Law Judge or board, or if
proceedings on appeal from the order of the board with respect to such claim
or award are had before any court, unless approved by such court. In cases
in which a claimant finally prevails after remand from the Supreme Court,
Court of Appeals or board, then the Administrative Law Judge, board or
appellate court shall approve or allow a reasonable attorney fee for services
before every prior forum as authorized under ORS 656.307(5), 656.308(2),
656.382 or 656.386. No attorney fees shall be approved or allowed for representation of the claimant before the managed care organization.”
Until 2015, the last sentence of ORS 656.388(1) provided, “No attorney fees
shall be approved or allowed for representation of the claimant before the managed care organization or Director of the Department of Consumer and Business
Services except for representation at the contested case hearing.” ORS 656.388(1)
(2013). HB 2764 (2015)—the same bill in which ORS 656.383 was enacted—ended
that sentence after “managed care organization,” eliminating the prohibition on
fee awards for work done representing the claimant before the director other
than at the hearing. Or Laws 2015, ch 521, § 8. In the legislative history, that
548 Dancingbear v. SAIF
ORS 656.388(1) has existed since before 1983, when
the attorney-fee award provisions were substantially different. See, e.g., ORS 656.388(2) (1983) (providing for resolution of disagreement about the amount of a fee award
between a claimant’s attorney and a referee or the board
through a summary proceeding in circuit court). It applies
to fees awarded for services before an ALJ or the board.
Since reconsideration became a mandatory step in workers’
compensation litigation, the director has been empowered
to award fees on reconsideration under ORS 656.268(6)(c)
and its predecessors. See Or Laws 1990, ch 2, § 16 (among
other changes, making reconsideration mandatory and
authorizing the award of a 10 percent out-of-compensation
fee on reconsideration). As SAIF acknowledges, the director’s authority to award fees under ORS 656.268(6)(c) is not
affected by ORS 656.388(1). Thus, ORS 656.388(1) does not
deprive the director of the power to award fees when the
award of fees is authorized by another statute—here, ORS
656.383(1).
Second, SAIF relies on ORS 656.388(6), which
provides:
“The board shall approve no claim for legal services
by an attorney representing a claimant to be paid by the
claimant if fees have been awarded to the claimant or the
attorney of the claimant in connection with the same proceeding under ORS 656.268.”
SAIF argues that, under that subsection, no additional fee
may be awarded when the claimant is entitled to a fee under
ORS 656.268(6)(c).
ORS 656.388(6) sets out circumstances under
which the board is prohibited from approving a claim for
fees by a claimant’s attorney “to be paid by the claimant.”
As explained above, the workers’ compensation statutes provide for two types of fees: out-of-compensation fees, which
are paid by the claimant out of the claimant’s benefits, and
change was identified as correcting an inconsistency. Audio Recording, Senate
Committee on Workforce, HB 2764, May 13, 2015, at 1:02:00 (comments of Julie
Masters), https://olis.leg.state.or.us (accessed Sept 8, 2021). That textual change
also supports our conclusion, explained in the text, that ORS 656.388(1) does not
limit ORS 656.383(1).
Cite as 314 Or App 538 (2021) 549
assessed fees, which are paid by the insurer or the self-insured employer in addition to the claimant’s benefits.
Thus, ORS 656.388(6) prevents the board from approving a
claim for out-of-compensation fees—fees “to be paid by the
claimant”—if fees have already been awarded “in connection with the same proceeding under ORS 656.268.” The fee
at issue here is an assessed fee, not an out-of-compensation
fee; thus, it is not subject to ORS 656.388(6).5
Accordingly, we conclude that ORS 656.383(1) entitles claimants’ attorneys to fees after they obtain temporary
disability benefits for claimants in proceedings on reconsideration pursuant to ORS 656.268. As noted above, the board
did not reach the question of whether claimant’s failure to
attend the arbiter examination and consequent suspension
of benefits affected her attorney’s right to an assessed fee
under ORS 656.383(1). We remand for the board to consider
that issue.
Reversed and remanded.
5
We express no further opinion on the application of ORS 656.388(6).
