SAIF Corp. v. Santos

ORTEGA, J. Employer seeks review of an order of the Workers’ Compensation Board (the board) on remand after our decision in Santos v. Caryall Transport, 163 Or App 414, 987 P2d 1271 (1999) (Santos I). Specifically, employer assigns error to the board’s award of attorney fees to claimant under ORS 656.382(2). We reverse the challenged award of attorney fees. The relevant facts are set forth in Santos v. Caryall Transport, 171 Or App 467, 469, 17 P3d 509 (2000), rev den, 332 Or 558 (2001) (Santos II):1 “Claimant worked as a transport driver for employer. He injured his lower back in 1991 when he slipped and fell on ice in a hospital parking lot. The fall occurred in the course of his employment. Before claimant received a final award on his claim for injuries from the fall, the legislature amended ORS 656.214(6) to increase the amount of money to be awarded for each degree of disability for injuries that occurred before January 1, 1992. The amendment applied retroactively to all claims that were not final as of its effective date. When employer failed to pay claimant at the new disability rate, claimant sought a hearing before an administrative law judge (ALJ) on that failure. The ALJ ordered employer to recalculate claimant’s permanent partial disability award according to the new rate. “Employer requested review before the Workers’ Compensation Board. The Board held that the amendment applied retroactively, but that claimant had failed to preserve his claim to be paid at the new rate because he had not raised the issue on reconsideration. On claimant’s petition, we reversed in a per curiam decision citing to Crowder v. Alumaflex, 163 Or App 143, 986 P2d 1269 (1999), in which we held that the amendment was retroactive but that the claimant was not required to raise the rate issue on reconsideration, because the amendment had been adopted after reconsideration. [Santos 2]. We remanded for recalculation of the amount of permanent partial disability.” [292] After prevailing on that issue and before remand, claimant sought an award of attorney fees under ORS 656.382(2) for his attorney’s services before this court in Santos I. We first awarded fees to claimant, then withdrew that award on reconsideration. Santos II, 171 Or App at 469-70. We held in Santos II that, under ORS 656.382(2), a tribunal may award attorney fees to a prevailing claimant only if the employer or insurer initiated review to that particular tribunal. Id. Because claimant, not employer, had initiated review to this court in Santos I, no attorney fees were allowed. Id. On remand, the board recalculated claimant’s benefit using the new rate, as this court instructed in Santos I. In addition to affirming the ALJ’s original “out-of-compensation” attorney fee award for his counsel’s services before every prior forum, the board awarded fees of $2,000 to claimant under ORS 656.382(2) for his attorney’s services before the board. Employer requested reconsideration of the latter attorney fee award, arguing that claimant was not entitled to fees under ORS 656.382(2) because claimant had prevailed before this court in Santos / but not before the board. Rather, according to employer, the board’s order on remand in claimant’s favor was merely a ministerial act carrying out this court’s decision in Santos I. The board affirmed its prior order on reconsideration, holding that its actions on remand were not merely ministerial and that claimant had effectively prevailed before the board on remand. Employer now seeks review of the board’s attorney fee award under ORS 636.382(2), renewing the arguments it made to the board on reconsideration. Claimant makes no appearance. Reviewing for errors of law, Chaffee v. Shaffer Trucking, Inc., 151 Or App 323, 325, 948 P2d 760 (1997), we agree with employer that claimant is not entitled to attorney fees before the board on remand, and we reverse the board’s ORS 656.382(2) attorney fee award. ORS 656.382(2) provides: “If a request for hearing, request for review, appeal or cross-appeal to the Court of Appeals or petition for review to the Supreme Court is initiated by an employer or insurer, and the Administrative Law Judge, board or court finds [293] that the compensation awarded to a claimant should not be disallowed or reduced, the employer or insurer shall be required to pay to the claimant or the attorney of the claimant a reasonable attorney fee in an amount set by the Administrative Law Judge, board or the court for legal representation by an attorney for the claimant at and prior to the hearing, review on appeal or cross-appeal.” (Emphasis added.) Our cases interpreting ORS 656.382(2) identify three prerequisites for recovery of attorney fees under that statute: (1) the employer must initiate a request for a hearing to obtain a disallowance or reduction in a claimant’s award of compensation; (2) the claimant’s attorney must have performed legal services in defending the compensation award; and (3) the ALJ, board, or court reviewing the case must find on the merits that the claimant’s award of compensation should not be disallowed or reduced. Santos II, 171 Or App at 473 (citing cases). In Santos II, we further interpreted the statute to require claimants to satisfy the first and third prerequisites at the level of review at which attorney fees are requested.2 Id. at 470. That is, a claimant can receive attorney fees under ORS 656.382(2) only if (1) the employer initiated review at the level at which fees are sought and (2) the finding that claimant’s compensation was not disallowed or reduced occurred at that level. In Santos II, we declined to address whether claimant would be entitled to attorney fees on remand to the board. 171 Or App at 473-74. But see id. at 474-75 (Armstrong, J., concurring) (interpreting ORS 656.382(2) to authorize attorney fees for representation before the board, but agreeing that the issue was not then before the court). We now face that very question. Claimant is entitled to attorney fees under ORS 656.382(2) only if those fees are awarded.by a tribunal (1) before which employer initiated review and (2) which found that claimant’s compensation should not be disallowed or reduced. Employer initiated review by the board. The issue before us is whether the board found that claimant’s compensation should not be disallowed or [294] reduced. Therefore, we must decide whether the board’s order on remand was a decision of the board on the merits of the appeal initiated by employer or merely a ministerial act carrying out a decision of this court. We conclude that the board’s order on remand was merely ministerial and that attorney fees therefore are not allowed under ORS 656.382(2). The plain language of ORS 656.382(2) provides that, if an employer initiates review by a tribunal and that tribunal “finds that the compensation awarded to a claimant should not be disallowed or reduced,” the employer must pay attorney fees in an amount set by that tribunal for the claimant’s legal representation before that tribunal and in all prior proceedings. The board is not authorized to award attorney fees, then, unless it is the tribunal that found that the compensation awarded to a claimant should not be disallowed or reduced. The board may not award fees if it merely administers the finding of another tribunal, as it did here. We held that a similar board order was merely ministerial in Aguiar v. J. R. Simplot Co., 94 Or App 658, 767 P2d 86 (1989) (Aguiar II), a workers’ compensation case interpreting a different attorney fee provision. There, an ALJ had approved the claimant’s request for certain medical services, and the employer prevailed in an appeal to the board. Aguiar v. J. R. Simplot Co., 87 Or App 475, 477, 742 P2d 709 (1987) (Aguiar I). After the claimant sought review from this court and prevailed, the case was remanded to the board to reinstate the ALJ’s order. Id. at 478-79. The claimant made an untimely request for attorney fees to this court under ORS 656.386(1), which we denied. Aguiar II, 94 Or App at 660. The claimant then sought attorney fees from the board on remand pursuant to ORS 656.386(1). Id. We held that the claimant had “finally prevailed” before this court, not the board: “There were no substantive matters concerning the compensability of the claim left undecided. Claimant finally prevailed on those issues when the case was here before. * * * We remanded to the Board for the ministerial implementation of our decision.” Id. [295] As in Aguiar II, the board here was not asked to consider substantive matters concerning the compensability of the claim. The board was not asked to and did not “find that the compensation awarded to claimant should not be disallowed or reduced.” Rather, we remanded simply for “recalculation of [the] amount of permanent partial disability payment” at a different rate. Santos I, 163 Or App at 414. In Santos II, we explained that, “but for our decision [in Santos i], there would be nothing pending before the Board,” and we said that “[t]he Board’s decision on remand will be to affirm the ALJ” with regard to the rate. Santos II, 171 Or App at 475 n 1 (emphasis added). In its order granting attorney fees, the board attempted to distinguish Aguiar II, noting that, “[i]n Aguiar, the court remanded with specific instructions to reinstate the Referee’s order setting aside the surgery denial and to rescind the Determination Order.” Here, by contrast, “the court remanded for recalculation of the permanent partial disability benefits.” We do not find that distinction to be dis-positive. The board’s recalculation here did not require it to make a substantive determination on the issue presented by employer in its original appeal to the board. The dissent asserts that, until the board’s recalculation, it was not possible to determine whether claimant’s compensation had been disallowed or reduced: “It was only when the board made findings on remand that claimant’s compensation was determined not to be disallowed or reduced.” 194 Or App at 299-300 (Edmonds, P. J., dissenting). With respect, it was this court’s substantive determination in Santos I that claimant was entitled to be compensated at the higher rate that gave rise to the positive outcome for claimant. On remand, the board had nothing to decide on the merits; its order on remand was merely a ministerial recalculation. Therefore this court, not the board, made the final decision favorable to claimant. Because the board did not make the finding that claimant’s compensation should not be disallowed or reduced, claimant is not entitled to attorney fees at that level under ORS 656.382(2).3 [296] Award of attorney fees for services on board review reversed; otherwise affirmed. Footnotes [1] After we reversed our opinion in Santos I, we issued an order awarding claimant attorney fees for that review proceeding. In Santos II, at employer’s request, we reconsidered our order awarding attorney fees. [2] If those two prerequisites are met, then attorney fees are available not only for legal representation at the pertinent level of review, but also for all legal representation prior to the pertinent level of review. ORS 656.382(2); Santos II, 171 Or App at 470. [3] In Santos II, we recognized a gap in attorney fee provisions of the workers’ compensation statutes, noting that no statute provides attorney fees for claimants [296] who initiate review proceedings where the amount of liability or the extent of disability (rather than basic compensability) is at issue. Santos II, 171 Or App at 474. We note now that that gap also creates anomalous results. Under ORS 656.382(2), a claimant whose benefit is challenged and who wins at the board level fares better with regard to attorney fees than a claimant whose benefit is challenged, loses at the board level, and ultimately prevails before this court. As we stated in Santos II, “[i]f this situation is one that should be remedied, it is a task for the legislature, not this court.” Id.