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
B-Engrossed
Senate Bill 404
Ordered by the House June 4
Including Senate Amendments dated April 27 and House Amendments
dated June 4
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.
{ + Provides that if injured worker signs attorney fee
agreement for representation on workers' compensation claim and
attorney was instrumental in obtaining additional compensation or
settling claim, Administrative Law Judge or Workers' Compensation
Board shall grant attorney lien for attorney fees out of
additional compensation awarded or proceeds of settlement. + }
A BILL FOR AN ACT
Relating to workers' compensation claims; creating new
provisions; and amending ORS 656.386 and 656.388
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. + }
SECTION 3. ORS 656.388 is amended to read:
656.388. (1) No claim or payment for legal services by an
attorney representing the worker or for any other services
rendered before an Administrative Law Judge or the Workers'
Compensation Board, as the case may be, in respect to any claim
or award for compensation to or on account of any person, shall
be valid unless approved by the Administrative Law Judge or
board, or if proceedings on appeal from the order of the board
with respect to such claim or award are had before any court,
unless approved by such court. In cases in which a claimant
finally prevails after remand from the Supreme Court, Court of
Appeals or board, then the Administrative Law Judge, board or
appellate court shall approve or allow a reasonable attorney fee
for services before every prior forum as authorized under ORS
656.307 (5), 656.308 (2), 656.382 or 656.386. No attorney fees
shall be approved or allowed for representation of the claimant
before the managed care organization or Director of the
Department of Consumer and Business Services except for
representation at the contested case hearing.
(2) Any claim for payment to a claimant's attorney by the
claimant so approved shall, in the manner and to the extent fixed
by the Administrative Law Judge, board or such court, be a lien
upon compensation.
{ + (3) If an injured worker signs an attorney fee agreement
with an attorney for representation on a claim made pursuant to
this chapter and additional compensation is awarded to the worker
or a settlement agreement is consummated on the claim after the
fee agreement is signed and it is shown that the attorney with
whom the fee agreement was signed was instrumental in obtaining
the additional compensation or settling the claim, the
Administrative Law Judge or the board shall grant the attorney a
lien for attorney fees out of the additional compensation awarded
or proceeds of the settlement in accordance with rules adopted by
the board governing the payment of attorney fees. + }
{ - (3) - } { + (4) + } The board shall, after consultation
with the Board of Governors of the Oregon State Bar, establish a
schedule of fees for attorneys representing a worker and
representing an insurer or self-insured employer, under this
chapter.
{ - (4) - } { + (5) + } The board shall approve no claim
for legal services by an attorney representing a claimant to be
paid by the claimant if fees have been awarded to the claimant or
the attorney of the claimant in connection with the same
proceeding under ORS 656.268.
{ - (5) - } { + (6) + } Insurers and self-insured employers
shall make an annual report to the Director of the Department of
Consumer and Business Services reporting attorney salaries and
other costs of legal services incurred pursuant to this chapter.
The report shall be in such form and shall contain such
information as the director prescribes.
SECTION 4. { + The amendments to ORS 656.388 by section 3 of
this 2007 Act apply to all claims in which an order that grants
attorney fees is issued after the effective date of this 2007
Act, regardless of the date of injury. + }
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