Morris v. Denny's Restaurant

WARDEN, J. This proceeding involves two separate petitions in the same case, which we have consolidated. In the first claimant moves for an award of an attorney fee of $1600 payable out of the compensation due claimant. She asserts that the same is authorized under ORS.656.386(2).1 In the second petition, respondents seek clarification as to the effective date of claimant’s permanent total disability award. This was an accepted claim. By a stipulated order approved by the Board, claimant had previously been awarded 50 percent unscheduled permanent partial disability for injury to her low back. Following a Determination Order on July 20, 1978, which failed to increase prior awards for claimant’s disability, claimant requested a hearing, and the referee increased claimant’s permanent disability to 75 percent, unscheduled. Out of that award, the referee awarded claimant’s attorney 25 percent of the benefits, which brought about an award of an attorney fee of $1400, which has been paid. On appeal to the Board, claimant contending she was permanently and totally disabled, the opinion and order of the referee was affirmed, and claimant’s attorney received no fee. On appeal to this Court, we awarded claimant permanent total disability benefits. Morris v. Denny’s, 50 Or App 533, 623 P2d 1118 (1981). The allowance of an attorney fee on this award is covered by ORS 656.388(4)2 and an administrative rule adopted by the Workers’ Compensation Board. The rule is OAR 438-47-045, which provides: [866] "(1) If claimant appeals the extent of temporary or permanent disability to the Court of Appeals, an additional fee of 25 percent of any increase awarded by the appellate court shall be approved. "(2) If a denied claim, also denied by the referee, and the board is appealed to the Court of Appeals and on appeal is reversed and accepted, the court shall allow claimant’s attorney a reasonable fee.” ORS 656.388(4) directs the Workers’ Compensation Board to "establish a suggested schedule of fees for attorneys representing a worker under ORS 656.001 to 656.795.” (Emphasis added.) OAR 438-47-005 states: "Rules [438-]47-000 through [438-147-095 apply to the establishment of a suggested schedule of fees for attorneys representing workers under ORS Chapter 656.” (Emphasis added.) Hence, the schedule is not mandatory, but merely suggestive, and it does not determine who applies it. As to OAR 438-47-045 specifically, while the rule could be interpreted as authorizing or directing this court to award attorney fees in a specific amount, we construe it as meaning that, in such a case, the Board shall approve an additional fee of 25 percent of any increase awarded by the appellate court. In essence, as we construe rule 438-47-045, it would read: "If claimant appeals the extent of temporary or permanent disability to the Court of Appeals, an additional fee of 25 percent of any increase awarded by the appellate court shall be approved by the Board.” Accordingly, we remand this petition to the Board for resolution of the question of attorney fees. We next consider respondents’ petition for clarification of the effective date of claimant’s permanent total disability award. In Wilke v. SAIF, 49 Or App 427, 619 P2d 950 (1980), we held that the date upon which a claimant is permanently and totally disabled is a matter for proof and that there the injured worker showed such condition as of the date of the psychologist’s report which, along with the treating doctor’s earlier report on claimant’s back, established permanent total disability.3 [867] The determination that an injured worker is permanently and totally disabled is a legal conclusion of which medical testimony is only one part. Other factors including psychological disability, age, training, aptitude, adaptability to nonphysical labor, mental capacity, conditions of the labor market and motivation must also be examined. In Wilke both medical and psychological elements were involved. A claimant is entitled to offer evidence and testimony as to disability up to and including the time of the hearing to prove the case. It is not until the hearing that all the elements of the case have been considered and claimant’s disability is finally determined and adjudged. After reviewing the issue, we now conclude that the rule announced in Wilke is the proper rule, namely, that when an award has been modified, the effective date of that modification is the earliest date that claimant’s permanent total disability is proved to have existed. Applying the Wilke rule in this matter, we find claimant to have established that she was permanently and totally disabled as of October 3, 1979. That is the date of her followup examination at Woodland Park Hospital in the Northwest Pain Center Program. From that examination, the doctor found that there was "definite deterioration in her level of physical functioning.” (She had been admitted to the Pain Center Program on April 23, 1979, and discharged on May 11, 1979.) In his report of the followup examination, he expressed "our feeling * * * that further medical or surgical efforts to deal with her problem will not be successful * * * .” A clinical psychologist at the Center concluded after the followup examination that further therapy would not benefit claimant and that she was not a candidate for vocational rehabilitation. The record is devoid of any evidence relevant to determining claimant’s disability after October 3, 1979. She was permanently and totally disabled at that date. Remanded with instructions. Footnotes [1] ORS 656.386(2) provides: "In all other cases attorney fees shall continue to be paid from the claimant’s award of compensation except as otherwise provided in ORS 656.382.” See Gainer v. SAIF, 50 Or App 457, 623 P2d 1093 (1981). [2] ORS 656.388(4) provides: "The board shall, after consultation with the Board of Governors of the Oregon State Bar, establish a suggested schedule of fees for attorneys representing a worker under ORS 656.001 to 656.794.” [3] See also Leedy v. Knox, 34 Or App 911, 581 P2d 530 (1978).