Oregon Occupational Safety & Health Division v. Don Whitaker Logging, Inc.

DEITS, P. J. Employer seeks review of an order of the Workers’ Compensation Board that denied a request for attorney fees and costs on the ground that the Board lacked authority to make such an award.1 We affirm. The parties do not dispute the facts. Following a fatality investigation of employer’s premises by the Occupational Safety and Health Division (OSHD), employer was issued three citations for violations of the Oregon Safe Employment Act. Employer requested a hearing to challenge the validity of the citations. ORS 654.078. At the hearing, employer conceded the validity of one of the citations and moved to dismiss the other two. The Board dismissed the two citations but denied employer’s request for attorney fees and costs on the basis that it lacked authority to make such an award.2 The Board subsequently denied reconsideration. Neither party seeks review of the Board’s decision on the merits. Employer assigns as error the Board’s conclusion that it lacked authority to award attorney fees and costs to employer. We review to determine whether the Board erroneously interpreted a provision of law. ORS 183.482(8)(a). As a general rule, costs and attorney fees are not recoverable absent a statute or contractual provision authorizing them. Stelljes/Dumler v. State Board of Parole, 307 Or 365, 769 P2d 177 (1989). The Oregon Safe Employment Act grants jurisdiction to the Board over contested citation hearings, ORS 654.078(1), but does not authorize the Board to award attorney fees to a prevailing party. Absent this express statutory authority, the Board did not have the authority to grant employer’s request. Employer argues that the Board’s rule authorizing it to “[t]ake any * * * action necessary for a full and fair disposition of the case” expressly authorizes it to award attorney fees. OAR 438-85-805(12). However, even assuming this rule could be read to authorize an award of attorney fees, it would not provide the necessary authority. The Board’s [501] powers are limited to those delegated to it by statute. U. of O. Co-Oper. v. Dept. of Rev., 273 Or 539, 550, 542 P2d 900 (1975). Where, as here, the statute does not authorize an award, the agency cannot create that authority by administrative rule. Employer next argues that the Board had discretion to award attorney fees under the “equitable exception’ ’ to the general rule. The basis of that exception is the inherent power of courts of equity to award attorney fees in some circumstances, even in the absence of specific statutory authority. Deras v. Myers, 272 Or 47, 66, 535 P2d 541 (1975). Administrative agencies, however, are creatures of statute and do not have the powers of a court of equity. Rather, they are limited to the authority conferred on them by statute. See Ochoco Const, v. DLCD, 295 Or 422, 426, 667 P2d 499 (1983). The Board did not err in denying employer’s request for attorney fees and costs. Affirmed. Footnotes [1] Employer seeks review of the original order issued by the Board on March 2, 1992, as well as the Board’s order issued on reconsideration on October 9, 1992. [2] The Board invalidated both citations for inadequate documentation of OSHD’s investigation.