Wise v. Gary-Adams-Trucking

RICHARDSON, P. J. Claimant seeks review of a final order of the Director of the Department of Insurance and Finance, issued pursuant to ORS 656.740(3), dismissing employer’s request for review of the Director’s proposed order that employer is a noncomplying employer. Claimant contends that the Director erred by denying him attorney fees. We affirm. Claimant was injured while working for employer. The Director issued a proposed order holding that employer had not complied with the workers’ compensation laws. ORS 656.740(1). Employer requested review, ORS 656.740(3), and a hearing was set, but neither employer nor his counsel appeared. Claimant appeared with his attorney and was examined by counsel for the Director. Employer’s counsel sent a letter the next day to the referee apologizing for not appearing and stating that employer’s request for hearing had been withdrawn. The referee issued an order dismissing the request for review, which became a final order of the Director. ORS 656.740(3). Claimant requested attorney fees pursuant to ORS 656.382(2). The referee denied the request. We express no opinion about whether ORS 656.382(2) authorizes attorney fees for a claimant for participation in a hearing regarding a noncomplying employer pursuant to ORS 656.740(3). The Director did not make a decision on the merits, so there is no predicate for an award of attorney fees under ORS 656.382(2), even if that statute otherwise authorizes them. Terlouw v. Jesuit Seminary, 101 Or App 493, 790 P2d 1215, rev den 310 Or 282 (1990); Liberty Northwest Ins. Corp. v. McKellips, 100 Or App 549, 786 P2d 1321 (1990); Agripac, Inc. v. Kitchel, 73 Or App 132, 698 P2d 69 (1985). Affirmed.