Loading
The Oregon Administrative Rules contain OARs filed through March 15, 2014
 
QUESTIONS ABOUT THE CONTENT OR MEANING OF THIS AGENCY'S RULES?
CLICK HERE TO ACCESS RULES COORDINATOR CONTACT INFORMATION

 

DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,
WORKERS' COMPENSATION BOARD

 

DIVISION 15

ATTORNEY FEES

438-015-0003

Authority for Adoption

These rules are adopted pursuant to ORS 656.236, 656.388 and 656.593, under the general rulemaking authority of the Board pursuant to ORS 656.726(5).

Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.236(4), ORS 656.388(3), ORS 656.593(1)(a) & ORS 656.726(4)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; Suspended by WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90

438-015-0005

Definitions

In addition to the definitions set forth in OAR 438-005-0040:

(1) "Approved fee" means an attorney fee paid out of a claimant's compensation.

(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.

(3) "Attorney" means a member of the Oregon State Bar.

(4) "Attorney fee" means payment for legal services performed by an attorney on behalf and at the request of a claimant under ORS Chapter 656.

(5) "Compensation" means all benefits, including medical services, provided for a compensable injury to a subject worker or the beneficiaries of a subject worker pursuant to ORS Chapter 656.

(6) "Cost bill" means an itemized statement from the claimant of the amount of expenses and costs for records, expert opinions, and witness fees incurred as a result of the litigation involving a claim denial under ORS 656.386(1).

(7) "Denied claim" means a claim for compensation which an insurer or self-insured employer refuses to pay on the express ground that the injury or condition for which compensation is claimed is not compensable or otherwise does not give rise to an entitlement to any compensation or a claim under ORS 656.386(1)(b)(B), (C), or (D) to which the insurer or self-insured employer does not timely respond.

(8) "Expenses and costs" reimbursable under ORS 656.386(2) mean reasonable expenses and costs incurred by the claimant for things and services reasonably necessary to pursue a matter, but do not include attorney fees. Examples of expenses and costs referred to include, but are not limited to, costs of records, expert witness opinions, witness fees and mileage paid to execute a subpoena and costs associated with travel.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.388(3) & 656.726(5)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08; WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13

438-015-0010

General Principles

(1) Attorney fees for an attorney representing a claimant before the Board or its Hearings Division shall be authorized only if an executed attorney retainer agreement has been filed with the Administrative Law Judge or Board.

(2) Attorney fees for an attorney representing a claimant shall be paid out of the claimant's compensation award except as provided by ORS 656.307, 656.382 and 656.386.

(3) An approved fee awarded or allowed to an attorney representing a claimant shall be a lien upon the claimant's compensation.

(4) In any case where an Administrative Law Judge or the Board is required to determine a reasonable attorney fee, the following factors shall be considered:

(a) The time devoted to the case;

(b) The complexity of the issue(s) involved;

(c) The value of the interest involved;

(d) The skill of the attorneys;

(e) The nature of the proceedings;

(f) The benefit secured for the represented party;

(g) The risk in a particular case that an attorney's efforts may go uncompensated; and

(h) The assertion of frivolous issues or defenses.

(5) Percentage limitations on fees established by these rules apply to the amount of compensation paid the claimant exclusive of medical, hospital or other expenses of treatment.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.388(3)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 3-2001, f. 11-14-01, cert. ef. 1-1-02

438-015-0011

Attorney Retainer Agreement

(1) Except as provided in subsection (2), every executed attorney retainer agreement filed with the Administrative Law Judge or Board shall be in English.

(2) Any English language attorney retainer agreement filed with the Administrative Law Judge or Board may be accompanied by a translation into a foreign language that is certified by the translator to be an accurate and true translation of the English writing. Either the English or the foreign language writing must be signed.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.388(3)
Hist.: WCB 1-2004, f. 6-23-04 cert. ef. 9-1-04

438-015-0015

Charge for Legal Services Must Be Authorized

No charge for legal services for representation of claimants in connection with any matter concerning a claim before the Board or its Hearings Division under ORS Chapter 656 is valid unless the charge has been authorized in accordance with ORS 656.262(11)(a), 656.307, 656.308(2)(d), 656.382 to 656.390 or 656.593 or these rules.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.388(1)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 4-1988(Temp), f. & ef. 11-15-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 3-2001, f. 11-14-01, cert. ef. 1-1-02; WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13

438-015-0019

Cost Bill Procedures

(1) If a claimant finally prevails against a denial under ORS 656.386(1), the Administrative Law Judge or the Board may order payment of the claimant's reasonable expenses and costs for records, expert opinions, and witness fees incurred in the litigation of the denied claim(s).

(2) In ordering payment under section (1), an Administrative Law Judge or the Board may award reasonable expenses and costs that the claimant incurred as a result of the litigation of the denied claim(s) under ORS 656.386(1). If the parties stipulate to the specific amount of the reasonable expenses and costs, the Administrative Law Judge's or the Board's award of expenses and costs shall be included in the order finding that the claimant finally prevails against a denied claim(s) under 656.386(1). In the absence of the parties' stipulation, the Administrative Law Judge or the Board may award reasonable expenses and costs as described in section (1), which the claimant may claim by submitting a cost bill under section (3) to the insurer or the self-insured employer, not to exceed $1,500, unless the claimant demonstrates extraordinary circumstances justifying payment of a greater amount.

(3) If an order under section (2) does not specify the amount of a reasonable award for expenses and costs, the claimant shall submit, within 30 days after the order under section (2) becomes final, a cost bill to the insurer or self-insured employer. The cost bill, which may be submitted on a form prescribed by the Board, shall contain, but is not limited to, the following information:

(a) An itemization of the incurred expenses and costs for records, expert opinions, and witness fees that are due to the denied claim(s); and

(b) The claimant's signature confirming that the claimed expenses and costs were incurred in the litigation of the denied claim(s).

(4) If the parties disagree whether a claimed fee, expense, or cost is reasonable, a party may request a hearing seeking resolution of that dispute. The resolution of disputes under this section shall be made by a final, appealable order.

(5) Unless a hearing is requested by the insurer or self-insured employer under section (4), payments for witness fees, expenses, and costs shall be made by the insurer or self-insured employer within 30 days of its receipt of the cost bill submitted in accordance with section (3) or within 30 days after the order under section (2) becomes final, whichever is later, and are in addition to compensation payable to the claimant and in addition to attorney fees.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.386(2), 656.726(5)
Hist.: WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08; WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13

438-015-0022

Attorney Fee Lien Procedures

(1) If a former attorney of a claimant alleges that the former attorney has been instrumental in obtaining additional compensation or in settling a claim, the former attorney may provide a notice of potential attorney fee lien to the insurer or the self-insured employer. Copies of such a notice shall also be simultaneously provided to the claimant and to the appropriate litigation forum, if there is a pending case before the Hearings Division or the Board.

(2) The notice of potential attorney fee lien shall include, but is not limited to, the following information:

(a) A description of the former attorney's services that support the allegation that the attorney was instrumental in obtaining additional compensation or in settling the claimant's claim;

(b) The amount of the potential claim;

(c) The amount of the potential attorney fee lien; and

(d) A copy of an executed retainer agreement between the claimant and the former attorney.

(3) If the insurer or self-insured employer has received a notice of a potential attorney fee lien, any proposed disputed claim settlement, settlement stipulation, or claim disposition agreement shall include a provision resolving the potential attorney fee lien. Any approval of a settlement agreement that does not comply with this provision shall be void.

(4) If the notice of potential attorney fee lien is disputed, the former attorney, the claimant, the insurer, or the self-insured employer may file a petition for resolution of the lien dispute with the forum where litigation involving the claim is pending or, if there is no pending litigation, with the Hearings Division. The petition shall include copies of the notice of potential attorney fee lien and the accompanying materials that were submitted to the claimant and the insurer or the self-insured employer, as well as any other relevant documents.

(5) If a petition for resolution of a potential attorney fee lien dispute is filed, the respondent(s) shall be provided not less than seven days to respond to the petition. The former attorney shall also be provided not less than seven days to reply to the responses.

(6) The resolution of a potential attorney fee lien dispute shall be made by a final, appealable order.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.388(3), 656.726(5)
Hist.: WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08

438-015-0025

Maximum Attorney Fees Out of Compensation

Except in situations where a claimant's attorney fee is an assessed fee, in settlement of disputed claims or claim disposition agreements and in cases under the third-party law, unless there is a finding in a particular case by an Administrative Law Judge or the Board that extraordinary circumstances justify a higher fee, the established fees for attorneys representing claimants are as set forth in OAR 438-015-0040, 438-015-0045, 438-015-0055(1), (2), (3), and 438-015-0080.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.236(4), 656.289(4), 656.386(2), 656.388(3) & 656.593(1)(a)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13

438-015-0029

Request at Board Review Level for Assessed Fees

(1) On Board review of an Administrative Law Judge's order, to assist the Board in determining the amount of a reasonable assessed fee for services at the hearing level and/or for services on Board review, a claimant's attorney may file a request for a specific fee, which the attorney believes to be reasonable.

(2) The request shall be considered by the Board if:

(a) The request is filed no later than 14 days from the date of filing of the last appellate brief under OAR 438-011-0020;

(b) The request describes in detail the manner in which the factors set forth in OAR 438-015-0010(4) specifically apply to the case, as well as any other information deemed relevant; and

(c) A copy of the request is simultaneously served upon the attorneys who appeared at hearing and on Board review in the manner provided in OAR 438-005-0046(2)(a) and proof of such service is provided in accordance with 438-005-0046(2)(b).

(3) A written response raising objection to the request shall be considered by the Board if:

(a) The response is filed no later than 14 days from the date of filing of claimant's attorney's request for a specific fee under subsection (2)(a) of this rule; and

(b) A copy of the response is simultaneously served upon the attorneys who appeared at hearing and on Board review in the manner provided in OAR 438-005-0046(2)(a) and proof of such service is provided in accordance with 438-005-0046(2)(b).

(4) A request or response that does not comply with this rule shall not be considered by the Board in determining the amount of a reasonable assessed fee.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(5)
Stats. Implemented: ORS 656.382(2), 656.386(1) & 656.388(3)
Hist.: WCB 1-1992, f. 3-5-92, cert. ef. 4-6-92; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13

438-015-0030

Attorney Fees When There is No Hearing

If an attorney is instrumental in obtaining compensation for a claimant without a hearing before an Administrative Law Judge, a reasonable attorney fee may be approved or assessed. The amount of the fee shall be determined by an Administrative Law Judge or by agreement of the parties.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(4)
Stats. Implemented: ORS 656.386(1)(2)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95

438-015-0035

Attorney Fees When a Claimant Requests a Hearing on a Denied Claim

If the Administrative Law Judge orders the acceptance of a previously denied claim, the Administrative Law Judge shall award a reasonable assessed fee. This rule applies to denials under OAR 438-015-0005(7).

Stat. Auth.: ORS 656.307, 656.388, 656.593 & 656.726(5)
Stats. Implemented: ORS 656.386(1) & 656.388(3)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13

438-015-0038

Attorney Fees When a Claimant Requests a Hearing on a Responsibility Denial

If the claimant’s attorney appears in any proceeding regarding a responsibility denial issued under ORS 656.308(2), and actively and meaningfully participates, and finally prevails against that responsibility denial, the Administrative Law Judge shall award a reasonable assessed fee to be paid by the insurer or self-insured employer who issued the responsibility denial. Absent a showing of extraordinary circumstances, the assessed attorney fee shall not exceed $2,500. The maximum attorney fee awarded under this rule is subject to an annual adjustment on July 1 as calculated by the Workers’ Compensation Division (on behalf of the Director) by the same percentage increase as made to the average weekly wage defined in ORS 656.211, if any. Before July 1 of each year, the Board, by bulletin, will publish the maximum fee, after adjusting the fee by the same percentage increase, if any, to the average weekly wage. Dollar amounts will be rounded to the nearest whole number.

Stat. Auth.: ORS 656.307, 656.388, 656.593 & 656.726(5)
Stats. Implemented: ORS 656.308(2), 656.386(1) & 656.388(3)
Hist.: WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 1-2009, f. 10-7-09, cert. ef. 1-1-10; WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13

438-015-0040

Attorney Fees When a Claimant Requests a Hearing on Extent of Permanent Disability

(1) If the Administrative Law Judge awards additional compensation for permanent partial disability, the Administrative Law Judge shall approve a fee of 25 percent of the increased compensation, but not more than $4,600, to be paid out of the increased compensation.

(2) If the Administrative Law Judge awards compensation for permanent total disability, the Administrative Law Judge shall approve a fee of 25 percent of the increased compensation, but not more than $12,500, to be paid out of the award for permanent total disability.

Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.386(2) & ORS 656.388(3)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 1-1998, f. 11-20-98, cert. ef. 2-1-99

438-015-0045

Attorney Fees When a Claimant Requests a Hearing on Extent of Temporary Disability

If the Administrative Law Judge awards additional compensation for temporary disability, the Administrative Law Judge shall approve a fee of 25 percent of the increased compensation, but not more than $1,500, to be paid out of the increased compensation.

Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)
Stats. Implemented: ORS 656.386(2) & ORS 656.388(3)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 1-1998, f. 11-20-98, cert. ef. 2-1-99

438-015-0050

Attorney Fees in Connection With Disputed Claim Settlements

(1) When a denied and disputed claim is settled under the provisions of ORS 656.289(4) and OAR 438-009-0010, an attorney fee may be approved by the Administrative Law Judge or the Board in an amount up to 25 percent of the first $17,500 of the settlement proceeds plus ten percent of any amount of the settlement proceeds in excess of $17,500. Under extraordinary circumstances, a fee may be authorized in excess of this calculation.

(2) When the settlement proceeds are to be paid in more than one payment payable within a period of more than one year from the date of approval, for purposes of approving an attorney fee under section (1) of this rule, settlement proceeds shall be calculated based on the "present value" of the total settlement proceeds. "Present value" may be represented by the actual present value of the total settlement proceeds or the purchase price of any annuity designed to fund payment of the total settlement proceeds. The parties shall provide the Board with a written statement of the "present value" of the total settlement proceeds.

Stat. Auth.: ORS 656.388(4) & 656.726(5)
Stats. Implemented: ORS 656.289(4) & 656.388(3)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 6-1991(Temp), f. 8-29-91, cert. ef. 9-2-91; WCB 8-1991, f. 11-6-91, cert. ef. 11-7-91; WCB 1-1998, f. 11-20-98, cert. ef. 2-1-99; WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13

438-015-0052

Attorney Fees in Connection With Claim Disposition Agreements

(1) When a claim disposition agreement is approved under the provisions of ORS 656.236 and OAR 438-009-0020, an attorney fee may be approved by the Board in an amount up to 25 percent of the first $17,500 of the agreement proceeds plus ten percent of any amount of the proceeds in excess of $17,500. Under extraordinary circumstances, a fee may be authorized in excess of this calculation.

(2) When the agreement proceeds are to be paid in more than one payment payable within a period of more than one year from the date of approval, for purposes of approving an attorney fee under section (1) of this rule, agreement proceeds shall be calculated based on the "present value" of the total proceeds. "Present value" may be represented by the actual present value of the total agreement proceeds or the purchase price of any annuity designed to fund payment of the total agreement proceeds. The parties shall provide the Board with a written statement of the "present value" of the total agreement proceeds.

Stat. Auth.: ORS 656.388(4) & ORS 656.726(4)
Stats. Implemented: ORS 656.236(4) & ORS 656.388(3)
Hist.: WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 6-1991(Temp), f. 8-29-91, cert. ef. 9-2-91; WCB 8-1991, f. 11-6-91, cert. ef. 11-7-91; WCB 1-1998, f. 11-20-98, cert. ef. 2-1-99

438-015-0055

Attorney Fees When a Claimant Requests Review by the Board

(1) If a claimant requests review of an Administrative Law Judge's order on the issue of compensation for temporary disability and the Board awards additional compensation, the Board shall approve a fee of 25 percent of the increased compensation, provided that the total of fees approved by the Administrative Law Judge and the Board shall not exceed $5,000.

(2) If a claimant requests review of an Administrative Law Judge's order on the issue of compensation for permanent disability and the Board awards additional compensation, the Board shall approve a fee of 25 percent of the increased compensation, provided that the total of fees approved by the Administrative Law Judge and the Board shall not exceed $6,000.

(3) If a claimant requests review of an Administrative Law Judge's order on the issue of compensation for permanent total disability and the Board awards additional compensation, the Board shall approve a fee of 25 percent of the increased compensation, provided that the total of fees approved by the Administrative Law Judge and the Board shall not exceed $16,300.

(4) If a claimant requests review of an Administrative Law Judge's order that upheld a denial of compensability for a claim and the Board orders the claim accepted, the Board shall assess a reasonable attorney fee to be paid by the insurer or self-insured employer to the claimant's attorney.

(5) If a claimant requests review of an Administrative Law Judge's order that upheld a responsibility denial issued under ORS 656.308(2) and the claimant’s attorney actively and meaningfully participates in finally prevailing against the responsibility denial, the Board shall award a reasonable assessed fee to be paid by the insurer or self-insured employer who issued the responsibility denial. Absent a showing of extraordinary circumstances, the assessed attorney fee for prevailing over the responsibility denial shall not exceed $2,500. The maximum attorney fee awarded under this section is subject to an annual adjustment on July 1 as calculated by the Workers’ Compensation Division (on behalf of the Director) by the same percentage increase as made to the average weekly wage defined in ORS 656.211, if any. Before July 1 of each year, the Board, by bulletin, will publish the maximum fee, after adjusting the fee by the same percentage increase, if any, to the average weekly wage. Dollar amounts will be rounded to the nearest whole number.

Stat. Auth.: ORS 656.386(1), 656.386(2), 656.388(3) & 656.726(5)
Stats. Implemented: ORS 656.308(2), 656.386(1), 656.386(2) & 656.388(3)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-1998, f. 11-20-98, cert. ef. 2-1-99; WCB 1-2009, f. 10-7-09, cert. ef. 1-1-10; WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13

438-015-0065

Attorney Fees When Insurer or Self-Insured Employer Requests a Hearing

(1) If an insurer or self-insured employer requests a hearing or otherwise seeks a reduction in compensation and the Administrative Law Judge finds that the compensation awarded to the claimant should not be disallowed or reduced, the Administrative Law Judge shall award a reasonable assessed fee to the claimant’s attorney.

(2) If an insurer or self-insured employer requests a hearing regarding a reconsideration order rescinding a notice of closure, and the Administrative Law Judge finds that the reconsideration order should not be reversed, the Administrative Law Judge shall award a reasonable assessed fee to the claimant’s attorney.

(3) If an insurer or self-insured employer requests a hearing regarding a reconsideration order, and the ALJ finds that the compensation awarded by the reconsideration order issued under ORS 656.268 should not be reduced or disallowed, the Administrative Law Judge shall award a reasonable assessed fee to the claimant’s attorney.

(4) If an insurer or self-insured employer requests a hearing regarding a claim reclassification order from the Workers’ Compensation Division, and the Administrative Law Judge finally determines that the claim should be classified as disabling, the Administrative Law Judge may award a reasonable assessed fee.

Stat. Auth.: ORS 656.307, 656.388, 656.593 & 656.726(5)
Stats. Implemented: ORS 656.382(2), 656.386(3) & 656.388(3)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-2009, f. 10-7-09, cert. ef. 1-1-10

438-015-0070

Attorney Fees When Insurer or Self-Insured Employer Requests or Cross-Requests Review by the Board

(1) If an insurer or self-insured employer requests or cross-requests review of the Administrative Law Judge's order and the Board finds that the compensation awarded to the claimant should not be disallowed or reduced, the Board shall award a reasonable assessed fee to the claimant’s attorney.

(2) If an insurer or self-insured employer requests or cross-requests review of the Administrative Law Judge’s order regarding a reconsideration order rescinding a notice of closure, and the Board finds that the reconsideration order should not be reversed, the Board shall award a reasonable assessed fee to the claimant’s attorney.

(3) If an insurer or self-insured employer requests or cross-requests review of the Administrative Judge’s order regarding a reconsideration order, and the Board finds that the compensation awarded by the reconsideration order issued under ORS 656.268 should not be reduced or disallowed, the Board shall award a reasonable assessed fee to the claimant’s attorney.

(4) If an insurer or self-insured employer requests or cross-requests review of the Administrative Law Judge’s order regarding a claim reclassification order from the Workers’ Compensation Division, and the Board finally determines that the claim should be classified as disabling, the Board may award a reasonable assessed fee.

Stat. Auth.: ORS 656.307, 656.388, 656.593 & 656.726(5)
Stats. Implemented: ORS 656.382(2), 656.386(3) & 656.388(3)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-2009, f. 10-7-09, cert. ef. 1-1-10

438-015-0080

Attorney Fees in Own Motion Cases

(1) If an attorney is instrumental in obtaining increased temporary disability compensation, the Board shall approve a fee of 25 percent of the increased compensation, but not more than $1,500, to be paid out of the increased compensation.

(2) If an attorney is instrumental in obtaining a voluntary reopening of an Own Motion claim that results in increased temporary disability compensation, the Board shall approve a fee of 25 percent of the increased compensation, but not more than $1,500, to be paid out of the increased temporary disability compensation resulting from the voluntary reopening.

(3) If the Board awards additional compensation for permanent disability, the Board shall approve a reasonable attorney fee in the amounts prescribed in OAR 438-015-0040, payable out of the increased compensation.

(4) The Board may allow a fee in excess of the amounts prescribed in sections (1) through (3) of this rule upon a finding that extraordinary services have been rendered.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.267(3), 656.278(1), 656.386(1)(2) & 656.388(3)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 2-1990, f. 1-24-90, cert. ef. 2-28-90; WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 1-1998, f. 11-20-98, cert. ef. 2-1-99; WCB 2-2001, f. 11-14-01, cert. ef. 1-1-02; WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03; WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08

438-015-0082

Timely Payment of Attorney Fees

(1) An approved attorney fee shall be paid within the time required for payment of the compensation out of which the approved fee is to be paid.

(2) An assessed attorney fee shall be paid within 30 days of the date the order authorizing the fee becomes final.

Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)
Stats. Implemented: ORS 656.382(1), ORS 656.386(1)(2) & ORS 656.388(3)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90

438-015-0085

Payment of Attorney Fees Out of Compensation; Fee Not Subject to Offset

(1) If the claimant consents in the attorney retainer agreement, the Administrative Law Judge or the Board may order the payment of approved attorney fees directly to the claimant's attorney in a lump sum when the fee is to be paid out an award of compensation for permanent disability. The lump sum shall not be due until the award of compensation becomes final.

(2) An attorney fee which has been authorized under these rules to be paid out of increased compensation awarded by a Administrative Law Judge, the Board or a court shall not be subject to any offset based upon prior overpayment of compensation to the claimant.

Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)
Stats. Implemented: ORS 656.386(2) & ORS 656.388(3)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88

438-015-0090

Attorney Fees in Proceeding Under ORS 656.307

If the claimant appears in any proceeding under ORS 656.307 and actively and meaningfully participates through an attorney, the Administrative Law Judge may require the payment of a reasonable assessed fee to be paid by the insurer or self-insured employer determined by the Administrative Law Judge to be the party responsible for paying compensation.

Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)
Stats. Implemented: ORS 656.307(5) & ORS 656.388(3)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96

438-015-0095

Attorney Fees in Third-Party Cases

Unless otherwise ordered by the Board after a finding of extraordinary circumstances, an attorney fee not to exceed 33-1/3 percent of the gross recovery obtained by the plaintiff in an action maintained under the provisions of ORS 656.576 through 656.596 is authorized.

Stat. Auth.: ORS 656.307, 656.388, 656.593 & 656.726(5)
Stats. Implemented: ORS 656.593(1)(a) & 656.388(3)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13

438-015-0110

Attorney Fees in Cases Involving ORS 656.262(11)(a)

If the Director, an Administrative Law Judge, the Board, or the Court find that the insurer or self-insured employer unreasonably delayed or unreasonably refused to pay compensation, or unreasonably delayed acceptance or denial of a claim, an assessed attorney fee shall be awarded in a reasonable amount that:

(1) Is proportionate to the benefit to the claimant;

(2) Takes into consideration the factors set forth in OAR 438-015-0010(4), giving primary consideration to the results achieved and to the time devoted to the case; and

(3) Does not exceed $3,000, absent a showing of extraordinary circumstances. The maximum attorney fee awarded under this section is subject to an annual adjustment on July 1 as calculated by the Workers’ Compensation Division (on behalf of the Director) by the same percentage increase as made to the average weekly wage defined in ORS 656.211, if any. Before July 1 of each year, the Board, by bulletin, will publish the maximum fee, after adjusting the fee by the same percentage increase, if any, to the average weekly wage. Dollar amounts will be rounded to the nearest whole number.

Stat. Auth.: ORS 656.283, 656.388 & 656.726(5)
Stats. Implemented: ORS 656.262(11)(a)
Hist.: WCB 3-2003, f. 12-12-03 cert. ef. 1-1-04; WCB 1-2009, f. 10-7-09, cert. ef. 1-1-10; WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13

The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

© 2013 State of Oregon All Rights Reserved​