OAR 436-001-0438: Attorney Fees Under ORS 656.383(1) (Temporary Disability Compensation Benefits)

(1) An attorney fee under ORS 656.383(1) is payable after an order on reconsideration under ORS 656.268 is issued, as provided in this rule. If attorney fees under ORS 656.383(1) are at issue at hearing or on board review, the rules in OAR chapter 438 apply. (2) Using the matrix in section (5) of this rule, the insurer must calculate the amount of and pay to the worker’s attorney a fee when: (a) The worker disagrees with the temporary disability dates shown on the Notice of Closure and raises it as an issue in the request for reconsideration under ORS 656.268; (b) The reconsideration order issued under ORS 656.268 modifies the temporary disability dates shown on the Notice of Closure; (c) As a result of the modification of the temporary disability dates, the insurer determines additional temporary disability compensation benefits are due and payable to the worker; and (d) The worker was represented by an attorney in the reconsideration proceeding. (3)(a) The total fee under this rule, not including any fee under ORS 656.268(6)(c), may not exceed $5,600. The maximum amount will be adjusted annually by the same percentage increase, if any, to the average weekly wage defined in ORS 656.211. The adjusted amount will be published before July 1 of each year in Bulletin 356 (available on the division’s website at http://wcd.oregon.gov/Bulletins/bul_356.pdf ). If the average weekly wage does not change or decreases, the maximum will not be adjusted for that year. (b) The formula in the matrix is intended to result in a reasonable fee that considers the time devoted by the attorney to the issue of temporary disability compensation, that is proportionate to the benefit to the worker, and that takes into account the out-of-compensation fee under ORS 656.268(6)(c). (4) If the criteria in subsections (2)(a), (b), and (d) are met, the director will make a finding in the order on reconsideration issued under ORS 656.268 regarding the number of hours the attorney devoted to the issue of temporary disability compensation. (a) A statement of services will be considered if submitted within 14 days of the date the reconsideration proceeding begins as provided in OAR 436-030-0145(2). (b) If a statement of services is not submitted within 14 days of the date the reconsideration proceeding begins, the director will presume the attorney devoted one to two hours to the issue of temporary disability compensation. (c) A statement of services submitted more than 14 days after the reconsideration proceeding begins will not be considered by the director, but will be included in the record. (5) The amount of the attorney fee under this rule is to be calculated by adding (a) a base amount for the time devoted by the attorney to the issue of temporary disability compensation to (b) a percentage of the additional amount of temporary disability compensation benefits due and payable to the worker. Dollar amounts should be rounded to the nearest whole dollar. [See attached table.] (6) If a party disputes the entitlement to or the amount of an attorney fee under this rule, that party may request a hearing before the Workers’ Compensation Board. The Administrative Law Judge and board are not bound by this rule in determining whether a fee under ORS 656.383(1) is due or in determining the amount of the fee. (7) Disputes regarding attorney fees under ORS 656.383(1) in reconsideration proceedings under ORS 656.268 are not matters under ORS 656.704(2)(a). (8) An attorney fee under ORS 656.383(1) and this rule must be paid in addition to an attorney fee under ORS 656.268(6)(c) and OAR 436-001-0432. [ED. NOTE: To view attachments referenced in rule text, click here to view rule.]