74th OREGON LEGISLATIVE ASSEMBLY--2007 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 274
 
                           A-Engrossed
 
                         Senate Bill 404
                 Ordered by the Senate April 27
           Including Senate Amendments dated April 27
 
Sponsored by COMMITTEE ON RULES
 
 
                             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.
 
  Authorizes payment of certain reasonable fees, expenses and
costs associated with litigation of workers' compensation claim
if claimant prevails against claim denial. { +  Caps payment at
$1,500 unless claimant demonstrates extraordinary circumstances
justifying payment of larger amount. + }
 
                        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 a claimant finally prevails against a denial as
provided in subsection (1) of this section, the court, board or
Administrative Law Judge may order payment of the claimant's
reasonable expenses and costs for records, expert opinions and
witness fees.
  (b) The court, board or Administrative Law Judge shall
determine the reasonableness of witness fees, expenses and costs
for the purpose of paragraph (a) of this subsection.
  (c) Payments for witness fees, expenses and costs ordered under
this subsection shall be made by the insurer or self-insured
employer and are in addition to compensation payable to the
claimant.
  (d) Payments for witness fees, expenses and costs ordered under
this subsection may not exceed $1,500 unless the claimant
demonstrates extraordinary circumstances justifying payment of a
greater amount. + }
    { - (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 2007 Act apply to workers' compensation claims in which the
order on the compensability of the claim denial has not become
final on or before the effective date of this 2007 Act. + }
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