Opinion
87-13614; CA A63131
Reconsideration filed March 27 1991.
Reconsideration filed May 17, 1991. Reconsideration allowed; opinion ( 105 Or. App. 67, 803 P.2d 1203) Motion for reconsideration denied October 2, 1991.
Judicial Review from Workers' Compensation Board.
Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and David L. Runner, Assistant Attorney General, Salem, for petition.
Thomas Cary, and Coons, Cole Cary, P.C., Eugene, for motion.
Employer has petitioned for review of our decision, 105 Or. App. 67, 803 P.2d 1203 (1990), arguing that we erred in concluding that the Workers' Compensation Board had authority to award attorney fees under ORS 656.382(1) for services rendered in a vocational assistance proceeding before the Director of the Department of Insurance and Finance. We treat the petition as a petition for reconsideration, modify our opinion and adhere to it as modified. ORAP 9.15.
Employer correctly asserts that we erred in stating that whether to award attorney fees is a "matter concerning a claim." 105 Or App at 71. "Matters concerning a claim" are "those matters in which a worker's right to receive compensation, or the amount thereof, are directly in issue." ORS 656.704(3). Attorney fees are not compensation. Harrington v. Board of Trustees, 100 Or. App. 733, 738, 788 P.2d 1019, rev den 310 Or. 133 (1990); Saxton v. SAIF, 80 Or. App. 631, 723 P.2d 355, rev den 302 Or. 159 (1986).
Employer contends that, because entitlement to attorney fees is not a matter concerning a claim and because the Director has no statutory authority to award attorney fees in a vocational assistance matter, the Board lacks authority to award attorney fees for such claims. We disagree. After seeking review of her claim for vocational assistance through the administrative review process, as required by the statute, claimant was authorized to appeal the Director's decision, which she did. ORS 656.283(2) limits the Board's authority to modify the Director's decision. However, it does not limit the Board's authority to act on ancillary issues, such as attorney fees, that are outside the Director's authority and for which the Board has separate authority. As discussed in our earlier opinion, ORS 656.382(1) gives the Board authority to award attorney fees in this type of case.
Claimant has moved for reconsideration. We deny the motion.
Reconsideration allowed; opinion modified and adhered to as modified. Motion for reconsideration denied.