73rd OREGON LEGISLATIVE ASSEMBLY--2005 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 240
 
                         House Bill 2406
 
Sponsored by COMMITTEE ON BUSINESS, LABOR AND CONSUMER AFFAIRS
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Authorizes payment of certain reasonable fees, expenses and
costs associated with litigation of workers' compensation claim
if claimant prevails against claim denial.
 
                        A BILL FOR AN ACT
Relating to workers' compensation claims; creating new
  provisions; and amending ORS 656.386.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 656.386 is amended to read:
  656.386. (1)(a) In all cases involving denied claims where a
claimant finally prevails against the denial in an appeal to the
Court of Appeals or petition for review to the Supreme Court, the
court shall allow a reasonable attorney fee to the claimant's
attorney. In such cases involving denied claims where the
claimant prevails finally in a hearing before an Administrative
Law Judge or in a review by the Workers' Compensation Board, then
the Administrative Law Judge or board shall allow a reasonable
attorney fee. In such cases involving denied claims where an
attorney is instrumental in obtaining a rescission of the denial
prior to a decision by the Administrative Law Judge, a reasonable
attorney fee shall be allowed.
  (b) For purposes of this section, a 'denied claim' is:
  (A) 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;
  (B) A claim for compensation for a condition omitted from a
notice of acceptance, made pursuant to ORS 656.262 (6)(d), which
the insurer or self-insured employer does not respond to within
60 days; or
  (C) A claim for an aggravation made pursuant to ORS 656.273 (2)
or for a new medical condition made pursuant to ORS 656.267,
which the insurer or self-insured employer does not respond to
within 60 days.
  (c) A denied claim shall not be presumed or implied from an
insurer's or self-insured employer's failure to pay compensation
for a previously accepted injury or condition in timely fashion.
Attorney fees provided for in this subsection shall be paid by
the insurer or self-insured employer.
 
   { +  (2)(a) If an attorney fee has been allowed under
subsection (1) of this section, the court, board or
Administrative Law Judge may order payment of reasonable fees and
expenses for necessary witnesses who attend the hearing at the
request of the claimant and for reasonable costs of reports from
expert witnesses submitted by the claimant.
  (b) The necessity of witnesses, the reasonableness of fees and
expenses requested and the reasonableness of costs for reports
from expert witnesses shall be determined by the court, board or
Administrative Law Judge.
  (c) Payment of fees, expenses and costs ordered under this
section shall be made by the insurer or self-insured employer and
are in addition to compensation payable to the claimant. + }
    { - (2) - }   { + (3) + } In all other cases, attorney fees
shall be paid from the increase in the claimant's compensation,
if any, except as otherwise expressly provided in this chapter.
  SECTION 2.  { + The amendments to ORS 656.386 by section 1 of
this 2005 Act apply to workers' compensation claims in which the
hearing on the claim denial is held after the effective date of
this 2005 Act. + }
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