Opinion
84-3-280; CA A31666
Argued and submitted November 19, 1984
Reversed and remanded April 10, 1985
Appeal from Circuit Court, Umatilla County.
J. F. Olsen, Judge.
Kenneth D. Peterson, Jr., Hermiston, argued the cause and filed the brief for petitioner.
Mildred J. Carmack, Portland, argued the cause for respondent. With her on the brief were Schwabe, Williamson, Wyatt, Moore Roberts, Portland.
Before Richardson, Presiding Judge, and Warden and Newman, Judges.
NEWMAN, J.
Reversed and remanded.
This case is a companion to AMFAC, Inc. v. Ingram, 72 Or. App. 168, 694 P.2d 1005 (1985). Claimant appeals a circuit court order that dismissed her attorney's "Motion to Determine Claimant's Attorneys Fees." The attorney filed the motion within 30 days after the Workers' Compensation Board reversed the referee, holding that claimant's occupational disease claim was compensable and fixing her attorney fees. ORS 656.386(1); OAR 438-47-040(2). The attorney disagreed with the amount of fees that the Board set. At the time of the motion in the circuit court, employer had already filed a petition for review in this court in AMFAC, Inc. v. Ingram, supra. The circuit court ruled that it lacked jurisdiction to consider the motion. We reverse.
Initially, employer had denied this claim. Claimant requested a hearing, and the referee held her claim compensable. On employer's motion for reconsideration, the referee held the claim noncompensable. Claimant appealed to the Board and prevailed on the merits. Employer then petitioned for review, and we reversed the Board and held the claim noncompensable. AMFAC, Inc. v. Ingram, supra.
ORS 656.388(2) provides:
"If an attorney and the referee or board or appellate court cannot agree upon the amount of the fee, each forthwith shall submit a written statement of the services rendered to the presiding judge of the circuit court in the county in which the claimant resides. The judge shall, in a summary manner, without the payment of filing, trial or court fees, determine the amount of such fee. This controversy shall be given precedence over other proceedings."
It provides a claimant a remedy to challenge the amount of attorney fees that the Board sets, if the attorney "forthwith" submits the matter to the presiding judge of the circuit court. We have held that "forthwith" means within 30 days of the Board's order. SAIF v. Culwell, 65 Or. App. 332, 671 P.2d 759 (1983), rev den 296 Or. 411 (1984).
We do not decide whether claimant could have appealed to this court the amount of the fees that the Board had set, compare Button v. SAIF, 45 Or. App. 295, 298, 608 P.2d 206, rev den 289 Or. 107 (1980), with Bentley v. SAIF, 38 Or. App. 473, 481, 590 P.2d 746 (1979), or whether she could have raised that issue by cross-petition in AMFAC, Inc. v. Ingram, supra.
At the time of the motion in the circuit court, it had jurisdiction to determine the amount of the award for attorney fees. Claimant had prevailed before the Board, which had set attorney fees for services up to and including the Board level. Concededly, none of the statutes which authorize attorney fee awards in workers' compensation cases — ORS 656.382, ORS 656.386(1) and ORS 656.388(1) — allows an award to claimant if she does not finally prevail. See Brown v. EBI Companies, 289 Or. 905, 618 P.2d 959 (1980); SAIF v. Paresi, 62 Or. App. 139, 142 n 1, 660 P.2d 684, rev den 295 Or. 259 (1983). She may, however, finally prevail in AMFAC, Inc. v. Ingram, supra, on Supreme Court review. The circuit court erred in dismissing the attorney's motion for lack of jurisdiction. It should have determined the amount of attorney fees for services up to the Board level.
ORS 656.382(2) provides for an award of attorney fees
"[i]f 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 referee, board or court finds that the compensation awarded to a claimant should not be disallowed or reduced * * *."
In AMFAC, Inc. v. Ingram, supra, employer initiated the request for referee reconsideration and for Court of Appeals review. The referee and this court found that claimant is not entitled to compensation. In neither instance did the reviewing body find that "the compensation awarded to a claimant should not be disallowed or reduced."
ORS 656.386(1) provides for an award of attorney fees if a claimant "finally prevails" in a proceeding after a denial of compensation. Claimant has not "finally prevailed" in AMFAC v. Ingram, supra, and will not unless the Supreme Court on review reverses the decision on compensability. See also OAR 438-47-060.
ORS 656.388(1) provides for an award of attorney fees "[i]n cases in which a claimant finally prevails after remand from the Supreme Court, Court of Appeals or board * * *."
Reversed and remanded.